The primary issue in this case is whether a trial court may use the common fund doctrine in a wrongful death action to spread attorneys' fees equitably among the surviving beneficiaries of the action. The trial court consolidated two wrongful death actions, which were brought by the surviving spouse and children of the decedent, and it gave the surviving spouse control of the consolidated action. After the suit was settled, the trial court awarded the surviving spouse's attorney one-third of the settlement proceeds as a fee. On appeal, the children argued that the trial court improperly awarded fees to the surviving spouse's attorney from their share of the settlement because they possessed no contract with that attorney. A majority of the Court of Appeals held that although the award of fees could be proper under the common fund doctrine, the case should be remanded to resolve factual ambiguities in the record. We granted permission to appeal and hold that a trial court has the discretion to apply the common fund doctrine to the proceeds of a wrongful death action, thereby obliging the beneficiaries of that action to pay a reasonable fee to the attorney procuring the judgment or settlement. We also hold that the record contains no evidence showing that the trial court abused its discretion in awarding fees to the surviving spouse's attorney. The judgment of the Court of Appeals is affirmed in part and reversed in part.
Knox
Supreme Court
John Pitt d/b/a Pitt Excavating vs. Tyree Org. Ltd. & Doug Suess Concrete M2001-00115-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Irvin H. Kilcrease, Jr.
This is a declaratory judgment action involving the interpretation and application of an indemnification provision contained in a construction contract. Defendant, Doug Suess d/b/a Doug Suess Concrete (hereinafter "Suess"), appeals from the final order of the trial court granting summary judgment to both plaintiff, John Pitt, II d/b/a Pitt Excavating (hereinafter "Pitt") and defendant, Tyree Organization Limited (hereinafter "Tyree"). We reverse.
Davidson
Court of Appeals
Kay E. Duncan v. Modine Manufacturing Co., Inc. and Jim E2000-02995-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: James B. Scott, Judge
The trial court found that in the current work-related injury the plaintiff sustained an 8 percent permanent partial disability to the body as a whole and a 15 percent permanent partial disability to the body as a whole as a result of an aggravation of her pre-existing depression. The plaintiff had previously sustained a work-related carpal tunnel injury and received an award of 35 percent for the injury, which was stipulated to convert to 17.5 percent. The trial court found the plaintiff's current 95 percent disability coupled with her pre-existing right arm condition rendered her permanently and totally disabled in accordance with Tennessee Code Annotated _ 5-6-27(4)(A)(i). The trial court assessed 82.5 percent of the award to the defendant employer and the balance to the Second Injury Fund. We affirm the judgment of the trial court and remand the case to the trial court for entry of such orders as are necessary to carry out the judgment.
Knox
Workers Compensation Panel
Travelers Indemnity Co. vs. Kenton Freeman, et al M2001-00657-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Ellen Hobbs Lyle
Travelers Indemnity Company [Travelers] filed a complaint for a declaratory judgment respecting its liability to pay UM coverage for the minor child of its policyholder who was divorced from the child's mother, with joint custody having been awarded. Mother was killed in a traffic accident in Alabama; her passenger child was injured. Mother owned and was driving her automobile, and she also had UM coverage. The adverse driver had split liability coverage all of which was paid, in equal parts, to the Administrator of the mother's estate, and to the minor child. Mother's UM carrier paid its entire policy proceeds to her administrator. Travelers objected, inter alia, to the lack of allocation of the proceeds of mother's UM coverage. Travelers' insured, on behalf of his minor child, filed a counter-claim against Travelers for the entire UM coverage, notwithstanding an amount certain had never been determined. The court found that Travelers had never disputed that the value of the minor child's claim exceeded the UM coverage and rendered a summary judgment against Travelers for an amount certain. We vacate and remand.
Davidson
Court of Appeals
Rutherford County vs. Martha Wilson M2000-01382-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Don R. Ash
This appeal involves a dispute over the interpretation of a grant of real property giving a life estate to the grantor's daughter with the remainder to go to the "heirs of her body" and, if at her death there were none, to the grantor's heirs at law. Rutherford County condemned a portion of the property, and the parties dispute apportionment of the condemnation proceeds. The life tenant is still living; therefore, her life estate has not terminated. However, the widow of the life tenant's deceased son claims that she has a one sixth (1/6) interest in the property because her husband owned a vested transmissible interest in the remainder, which passed in part to his widow on his death by intestate succession. The trial court found that Tennessee's statute governing class gifts requires that the son's issue, living at the termination of the life estate, would take his share of the remainder. Therefore, the widow would not be entitled to a portion of the remainder. The widow now appeals to this court. For reasons discussed herein, we affirm the trial court's determination that the widow had no interest in the remainder.
Rutherford
Court of Appeals
State of Tennessee v. Chivous Sirrel Robinson E2001-00865-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Richard R. Baumgartner
The defendant, Chivous Sirrel Robinson, was convicted of one count of solicitation to commit first degree murder and one count of second degree murder. He was sentenced to twenty-three years incarceration for the second degree murder conviction and nine years incarceration for the solicitation conviction. The sentences were ordered to run consecutively. In this appeal the defendant argues that (1) the trial court erred in declining to admit at the defendant's request the redacted statement of Toni Hill, the alleged co-perpetrator of the murder, (2) the trial court erred in denying the defense's motion to sever the solicitation count from the substantiative murder count for purposes of trial, (3) the trial court erred in admitting certain photographs of the victim's body, and (4) the trial court erred in ordering consecutive sentencing.
Mario Ricky Orlando Printis appeals from his convictions of driving under the influence and evading arrest. He questions the sufficiency of the evidence that he committed Class D felony evading arrest, as opposed to the Class E form of that crime, and he complains that the trial court sentenced him too harshly. Because we are unpersuaded, we affirm the convictions and sentences imposed. Due to an omission from the DUI judgment form, however, we modify that judgment to correspond with the lower court's pronouncements at the sentencing hearing.
Obion
Court of Criminal Appeals
Tony Makoka v. Wendy Makoka-Mhlanga M2001-00363-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Muriel Robinson
A prisoner filed a petition to enforce an agreed order that granted him visitation rights with his minor daughter. The child's mother asked the trial court to dissolve the agreed order. The court found that it was not in the best interests of the child to compel her to visit her father in prison, dissolved the agreed order, and enjoined the father from engaging in activities that amounted to harassment of the mother. We affirm the trial court.
Davidson
Court of Appeals
Travis Poole v. State of Tennessee W2001-01196-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Roy B. Morgan, Jr.
In his petition for post-conviction relief, petitioner alleges that he received ineffective assistance of counsel, he illegally pled guilty to second degree murder, and his guilty plea was not made knowingly and voluntarily. The trial court dismissed the petition. We affirm.
Madison
Court of Criminal Appeals
State of Tennessee v. Winfred Lee Faulcon W2001-01153-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Lee Moore
The Appellant, Winfred Lee Faulcon, was convicted after a trial by jury of two offenses of possession of a Schedule VI controlled substance, marijuana, with intent to sell, which stemmed from events that occurred on October 21st and November 16th of 2000. Faulcon received two consecutive eighteen-month community corrections sentences with nine months of continuous confinement in the county jail. On appeal, Faulcon raises the following issues for our review: (1) whether the State's action of releasing a witness which the State had subpoenaed for trial constituted misconduct when the witness thereafter became unavailable to the defense; (2) whether the evidence was sufficient to support his convictions; (3) whether the two charges against Faulcon should have been considered as one continuing criminal enterprise and thus, would have resulted in the imposition of only one sentence; (4) whether the trial court erred in imposing a sentence in excess of the minimum necessary for class E felonies; and (5) whether the trial court erred in not imposing an alternative non-incarcerative sentence for the entire period. After a review of the record, we find that Faulcon's issues are without merit. Accordingly, the judgment of the Dyer County Circuit Court is affirmed.
The petitioner was convicted of possession of a controlled substance with intent to sell, and his conviction was affirmed on direct appeal. In his petition for post-conviction relief, he asserted that trial counsel was ineffective. The post-conviction court dismissed the petition, following a hearing. We affirm the order of the post-conviction court.
Carroll
Court of Criminal Appeals
State of Tennessee v. Danny Davidson W2001-00118-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge William B. Acree
Defendant was convicted of attempted manufacture of methamphetamine. On appeal, defendant submits that the evidence was insufficient to support the conviction, and the trial court erred in not charging the jury on facilitation. We conclude the evidence was sufficient to uphold the conviction, and defendant was not entitled to an instruction on facilitation. We affirm.
The Defendant was indicted for two counts of promoting prostitution and for two counts of patronizing prostitution. Following a bench trial, the Defendant was convicted of two counts of attempting to patronize prostitution, a Class C misdemeanor; sentenced to thirty days suspended; and fined $50.00 for each count. The Defendant now appeals, arguing the following: (1) that the evidence is insufficient to support the convictions; (2) that the conduct by law enforcement in this case was so outrageous as to constitute a defense; (3) that a fatal variance exists between the indicted charges and the evidence presented at trial; (4) that the trial court erred in failing to suppress the audio and video tape evidence that was introduced at trial; and (5) that the trial court erred in denying the Defendant's motion to seal the audio and video tape evidence in this case. Concluding that the evidence is insufficient to support the convictions, we reverse the judgment of the trial court and dismiss the charges against the Defendant.
Roane
Court of Criminal Appeals
Erica Slaughter vs. Rosetta Rowe E2001-00840-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Samuel H. Payne
Erica R. Slaughter ("Slaughter") sued Rosetta Rowe ("Rowe") for slander and harassment after an alleged physical altercation precipitated by Slaughter's affair with Rowe's husband. After the physical altercation, Slaughter filed assault charges against Rowe leading to her arrest. The assault charge was eventually dismissed. Rowe filed a counter-claim for malicious prosecution. Each party testified at trial to her version of the events. The Trial Court concluded neither party carried her burden of proof on her claim and dismissed the entire lawsuit. Rowe appeals, and we affirm.
Hamilton
Court of Appeals
State of Tennessee v. Christopher Charles Hall M2001-00599-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James K. Clayton, Jr.
The defendant pled nolo contendere to reckless homicide, a Class D felony. The defendant contends the trial court erred in refusing to grant him full probation and sentencing him to two years of split confinement, with six (6) months to be served in the county jail and the remainder served on probation. Due to the reckless nature of the killing, involving alcohol use simultaneous with the handling of weapons, we conclude the trial court did not erroneously sentence the defendant to a two-year sentence involving some form of confinement. We affirm the defendant's sentence imposed by the trial court.
Rutherford
Court of Criminal Appeals
Christy Bauer vs. William Bauer M2001-00266-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Russell Heldman
In this divorce case, the Trial Court awarded custody of the child of the parties to the mother, and awarded attorney fees to the mother. Father has appealed these awards. We affirm.
Williamson
Court of Appeals
Cecelia Hutcheson v. Andrew W. Hutcheson M2000-02340-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Arthur E. Mcclellan
On August 18, 2000, Appellant was held to be in civil contempt of court for failure to pay alimony and failure to deliver property to his former wife in compliance with the previous divorce judgment in the case. We affirm the judgment of the trial court.
Sumner
Court of Appeals
Nicole Keeler v. Michael Keeler M2001-00684-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol A. Catalano
In this divorce case, the trial court awarded the parties joint custody of their minor children, with primary physical custody awarded to the father. The mother contends on appeal that she is the more fit parent and should have been given primary custody. We affirm the trial court.
Montgomery
Court of Appeals
Sylvester Young v. Leah Barrow M2001-00876-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Marietta M. Shipley
This appeal arises out of a minor intersection accident. The complaints of the driver and passenger of one of the motor vehicles against the driver of the second motor vehicle were consolidated in the Circuit Court for Davidson County. The trial court granted a directed verdict against the plaintiff driver at the close of the plaintiffs' proof. Thereafter, the plaintiff driver filed a second lawsuit against the defendant driver and her insurer. The trial court dismissed the second suit on the ground of res judicata and granted the insurer's motion for a judgment on the pleadings. The plaintiff driver has perfected this appeal. We affirm the dismissal of his second complaint.
Davidson
Court of Appeals
Mark Tinsley v. Suzanne Tinsley M2001-02319-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Robert E. Burch
Mother sought modification of child support and a judgment against Father for contempt in the form of retroactive child support due to his failure to supply her with a yearly statement of his income as required by the final divorce decree. The trial court ordered a modification of the prospective child support, determining the amount of the obligation by averaging Father's fluctuating income for the three years prior to the hearing and awarded Mother a $54,192.00 judgment for retroactive child support during the five years that Father failed to provide his income statements to Mother. Because the trial court correctly calculated the prospective child support obligation, we affirm the amount of Father's monthly obligation in the amount of $1,300.00 from the date the petition was filed. However, because the trial court has no authority to award retroactive child support modification, we vacate the $54,192.00 judgment for retroactive child support. We remand the case for further proceedings to set reasonable attorney fees.
Cheatham
Court of Appeals
Paul Ivy v. Tennessee Department of Correction M2001-01219-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Carol L. Mccoy
This appeal involves a dispute between a prisoner and the Department of Correction regarding a disciplinary proceeding at the Deberry Special Needs Facility in Davidson County. The prisoner filed a petition for writ of certiorari in the Chancery Court for Davidson County alleging the disciplinary board acted illegally, arbitrarily, and vindictively by violating the Department's Uniform Disciplinary Procedures when it disciplined him for attempted escape. The Department filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss, and the trial court, citing Sandin v. Conner, 512 U.S. 472, 115 S.Ct. 2293 (1995), dismissed the petition. The prisoner has appealed. We have determined that the order dismissing the prisoner's petition should be reversed in part and that the case should be remanded for further consideration in light of Willis v. Tennessee Dep't of Corr., 113 S.W.3d 706 (Tenn. 2003).
Davidson
Court of Appeals
Jeffrey Haithcote v. Donal Campbell M2001-01828-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Mccoy
A prisoner convicted of numerous crimes filed a Petition for Declaratory Judgment, arguing that the Department of Correction had erred in its calculation of his sentence expiration date, and that he was entitled to be released. The Department stood by the correctness of its calculations. The petitioner's sentence expired during the course of the proceedings, and he was released. The trial court then dismissed the petition as moot. We affirm.
Davidson
Court of Appeals
Estate of Theresa Cunningham M2001-01965-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Floyd Don Davis
The plaintiff filed a claim against the estate of the deceased more than eighteen months after the first publication of notice to creditors and twenty months after her death. The trial court granted him a judgment against the estate for the full amount of his claim. We reverse.
Franklin
Court of Appeals
William Steele v. Richard Berkman M2001-02250-COA-R10-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Hamilton V. Gayden, Jr.
This appeal arises from a medical malpractice complaint filed by the Appellees in the Circuit Court of Davidson County against the Appellant, six other doctors, and two hospitals. The Appellant filed a motion for summary judgment. The trial court denied the Appellant's motion for summary judgment. The Appellant filed an application for extraordinary appeal with this Court pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. This Court granted the application for extraordinary appeal. For the reasons stated herein, we reverse the trial court's denial of summary judgment against the Appellant.
Davidson
Court of Appeals
Thomas Dyer v. TDOC M2001-01446-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Irvin H. Kilcrease, Jr.
