Federal Insurance Company a/s/o Robert and Joanie Emerson v. Martin Edward Winters, d/b/a Winters Roofing Company
The defendant contractor entered into a contract to replace a roof. When the newly installed roof developed leaks, the defendant hired an independent contractor to make the necessary repairs. While performing the work, the independent contractor caused a fire, resulting in an $871,069.73 insurance claim by the homeowners. As subrogor to the homeowners’ rights and claims arising out of the fire, the plaintiff insurance company sued the defendant in both tort and in contract. The defendant filed a motion for summary judgment, asserting that because he had subcontracted the work, he could not be liable. The trial court granted the motion on both the negligence and breach of contract claims. The Court of Appeals reversed, holding that the defendant had a non-delegable contractual duty to perform the roofing services in a careful, skillful, and workmanlike manner. This Court granted the defendant’s application for permission to appeal in order to determine the propriety of the claim under the theory of contract. Because the defendant had an implied non-delegable duty to install the roof in a careful, skillful, diligent, and workmanlike manner, the judgment of the Court of Appeals is affirmed. The case is remanded to the trial court for proceedings consistent with this opinion. |
Hamilton | Supreme Court | |
First Tennessee Bank N.A. v. Harold Woodward et al.
First Tennessee Bank, N.A. (“the Trustee”) is the trustee of a testamentary trust established under the will of Steve Woodward (“the Deceased”) for the benefit of his son, Jeffrey Clinton Woodward (“the Son”). Steve Woodward died in 2005. The Deceased’s will (“the Will”) provides that at his death a trust was to be created for the benefit of the Son. The Son is to receive a monthly payment from the trust and, at age 50, the Son is to receive the corpus of the trust. The Deceased’s brother, Harold Woodward (“the Brother”), is the recipient under the Will of “all of the property that would make up my residual estate and not named herein. . . .” The trust was created and payments were being made to the Son until he died in 2009 at the age of 33. The Trustee filed this action asking the court to determine its obligations as trustee with respect to the corpus of the trust. The suit named all parties with a possible interest in the outcome as defendants, including the Son’s estranged wife, Andrea Woodward (“the Wife”). The trial court ordered the Trustee to distribute the corpus of the trust to the Brother. The Wife appeals. We reverse. |
Knox | Court of Appeals | |
Janice W. Winkler v. Charles S. Winkler
This is a divorce case. The parties had a long marriage and one minor child. The wife obtained an order of protection against the husband on behalf of herself and the child and filed for divorce. After a trial, the trial court granted the wife a divorce, extended the order of protection against the husband, and divided the marital assets. The trial court did not award the husband parenting time, and required the husband to attend anger management classes and pay child support. The wife was awarded the marital home subject to a lien in favor of the husband. The husband appeals the child support and the failure to award him parenting time. The wife appeals the trial court’s award of a lien on the parties’ marital residence in favor of the husband. We affirm as to parenting time and child support, and reverse as to the lien on the marital residence. |
Rutherford | Court of Appeals | |
In Re: Elaina M.
In this modification of child custody case, Father petitioned the court to change custody based on Mother’s relocation and the subsequent interference with his visitation. Finding a material change in circumstances, the juvenile court named Father primary residential parent. Mother appeals. Concluding that a material change in circumstances existed and the change in custody was in the child’s best interest, we affirm. |
Rutherford | Court of Appeals | |
William James Jekot v. Pennie Christine Jekot
Wife appeals the trial court’s decision to substantially reduce her alimony, contending there has not been a substantial and material change of circumstances. The parties were divorced in 2005 following a thirty year marriage. In 2008, Husband filed a petition for modification of alimony. The trial court held that a decrease in Husband’s income constituted a substantial and material change of circumstance, which warranted the reduction in alimony. The trial court also held that Husband was entitled to interest on overpayments of alimony. Wife appealed. We reverse based on the finding that there was not a substantial and material change of circumstance. We also find that although Husband is entitled to recover overpayments of alimony following the first appeal, he is not entitled to interest on the overpayments. Wife has requested her attorney’s fees. Applying the principles stated in Gonsewski v. Gonsewski, __S.W.3d __, 2011 WL 4116654 (Tenn. Sept. 16, 2011), we find Wife is not entitled to recover her attorney’s fees on appeal. |
Rutherford | Court of Appeals | |
Jennifer Lynn Jackman v. Kenneth Robert Jackman
This is an appeal of an alimony award. The trial court entered an order declaring Husband and Wife divorced, but reserved all financial issues, including alimony, for trial at a later date. After the trial, the trial court entered a final order awarding Wife rehabilitative alimony and ordering her to undergo a vocational rehabilitation evaluation. Husband filed a petition for contempt and to modify the final order based on Wife’s failure to file proof of her completion of a vocational rehabilitation evaluation. In response, Wife filed proof of her completed vocational rehabilitation evaluation, and filed a counter-petition for contempt and to modify the final order seeking alimony in futuro. Subsequently, Wife filed a motion pursuant to Tennessee Rule of Civil Procedure 60.01, arguing that the language of the final order failed to include the trial court’s findings that the alimony award was not final, and was subject to change based on the results of the vocational rehabilitation evaluation. The trial court granted Wife’s Rule 60.01 motion, and conducted a hearing to determine the appropriate nature and amount of alimony to be awarded based on the results of the vocational rehabilitation evaluation. Following the hearing, the trial court awarded Wife alimony in futuro, increased the amount of alimony awarded, and required Husband to maintain additional life insurance to secure his alimony in futuro obligation. Husband appeals the order granting Wife’s Rule 60.01 motion, and further argues that Wife was required to show a substantial and material change of circumstances to warrant a modification of the original rehabilitative alimony award. Finding that the trial court’s alimony award was not final, and therefore the trial court retained jurisdiction to consider the results of the vocational rehabilitation evaluation, we affirm the trial court’s award of alimony in futuro. |
Shelby | Court of Appeals | |
State of Tennessee v. Jeremy Brandon Scott
The Defendant, Jeremy Brandon Scott, pled guilty to aggravated assault, a Class C felony. See T.C.A. § 39-13-102 (2006) (amended 2009, 2010, 2011). Although he was sentenced as a Range I, standard offender to three years and six months with six months’ confinement, a conflict exists regarding the length of probation. On appeal, the Defendant contends that the trial court erred by denying his request for judicial diversion and his request for three years’ probation. We affirm the denial of judicial diversion and the imposition of six months’ confinement. We vacate the judgment of the trial court and remand the case to the Davidson County Criminal Court for clarification of the length of probation and entry of a corrected judgment. |
Davidson | Court of Criminal Appeals | |
Alan Howard Peters et al. v. Casey Burgess et al.
Alan Howard Peters was seriously injured when his vehicle collided with logs that had rolled off a truck. He and his wife filed this personal injury action and thereafter settled their claims against the defendant tortfeasors for policy limits of $1 million. In doing so, they reserved their claim against the uninsured motorist (“UM”) carrier, Cincinnati Insurance Company (“CIC”). The UM provisions in effect with CIC were set forth in an endorsement to a 2005 renewal of an umbrella policy. The UM endorsement to the original policy issued in 1999 and to the first renewal issued in 2002 expressly limited UM coverage to $1 million. A space in the 2005 renewal endorsement form that was intended for insertion of the UM policy limits was left blank, which, by default, rendered the limits of the UM endorsement equal to the $2 million liability limits of the umbrella policy. After the dismissal of the claims against the tortfeasors, CIC amended its answer to include a counterclaim asking the court to reform the policy to make the UM limits equal to the $1 million limits of the previous policies. The trial court entered an order reforming the policy. Subsequently the court entered an order dismissing the remaining claim against CIC. Mr. and Mrs. Peters appeal. We affirm. |
Bledsoe | Court of Appeals | |
American Express Bank, FSB v. Michael Fitzgibbons
American Express Bank, FSB, sued Michael Fitzgibbons on a sworn account for unpaid credit card debt. It later sought summary judgment. Following a hearing, the trial court granted the motion and entered a judgment against Fitzgibbons for $25,766.70 plus attorney’s fees and costs. Fitzgibbons appeals. We affirm. |
Sevier | Court of Appeals | |
State of Tennessee v. Clifford Edward Clark, Alias
Defendant-Appellee, Clifford Edward Clark, was indicted by the Knox County Grand Jury for vandalism of property valued at $1,000 or more but less than $10,000, a Class D felony, and reckless endangerment committed with a deadly weapon, a Class E felony. Clark filed several motions to suppress evidence and dismiss the indictment because of lost or destroyed evidence pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), which were denied. Clark then filed a motion to reconsider, which the trial court took under advisement. The trial court subsequently dismissed the indictment and suppressed certain evidence pursuant to both Ferguson and Arizona v. Gant, 129 S. Ct. 1710 (2009). In this appeal by the State, it argues that the trial court abused its discretion in dismissing the indictment and erred in granting Clark’s motions to suppress based on its holdings that: (1) the search of Clark’s vehicle violated Gant, and (2) the State’s loss or destruction of certain evidence violated Ferguson. Upon review, we reverse the trial court’s judgment, reinstate Clark’s indictment, suppress the photographic evidence of the camera housing, and remand for trial. |
Knox | Court of Criminal Appeals | |
In Re: Zeylon T.S.
This appeal concerns the termination of parental rights. The mother is appealing the juvenile court’s judgment terminating her parental rights. The child at issue was initially taken from his mother’s custody by the Tennessee Department of Children’s Services after his school reported excessive tardiness and absences. The juvenile court determined that the child was homeless, and that the mother would not provide for his needs. The child was placed with a relative. Lengthy proceedings ensued. The Department filed a petition to terminate the mother’s rights, which was eventually tried by the juvenile court. The juvenile court terminated the mother’s parental rights, and the mother now appeals, arguing that the State failed to prove by clear and convincing evidence any statutory grounds for termination, failed to prove that it made reasonable efforts to reunify, and failed to prove that the termination of her parental rights was in the best interest of the child. We affirm. |
Knox | Court of Appeals | |
Stephen W. Mencer v. David V. Lee
The plaintiff in this automobile accident case has filed a notice of appeal from an order entered on July 26, 2011, granting him a judgment in the amount of $250,000. Because the trial court has set aside the judgment and set the case for a jury trial, we dismiss the appeal for lack of a final judgment. |
Maury | Court of Appeals | |
Marquette Weaver v. Four Maples Homeowners Association and Westwood Management Corporation
This is a premises liability case in which the Plaintiff/Appellant, a resident of Defendants/Appellees’ condominium complex, was assaulted by unknown individuals. Appellant filed suit, asserting negligence on the part of Appellees in failing to timely repair a vehicle access gate on the property. The trial court granted summary judgment to Appellees, finding that Appellees owed no duty to Appellant as the harm was not reasonably foreseeable. We conclude that the evidence creates a dispute as to whether the underlying assault was foreseeable and, therefore, the grant of summary judgment was erroneous. Reversed and remanded. |
Davidson | Court of Appeals | |
Clifton A. Lake and Charleen J. Lake et al. v. The Memphis Landsmen, L.L.C., et al.
This case is before us upon mandate from the Tennessee Supreme Court for reconsideration of our previous opinion, Clifton Lake, et. al. v. Memphis Landsmen, L.L.C., et al., No. W2009-00526-COA-R3-CV, 2010 WL 891867 (Tenn. Ct. App. March 15, 2010), in light of the United States Supreme Court’s decision in Williamson v. Mazda Motor of America, Inc., et al., 131 S. Ct. 1131, 179 L. Ed.2d 75 (2011). Our conclusion, in Lake, that Appellants’ claims, based upon the type of glass and the lack of passenger seatbelts, are pre-empted is not disturbed by the Williamson decision because the basis of our holding involved more than preservation of the manufacturers’ ability to choose under the safety regulations. Under the law of the case doctrine, and because further review would exceed the scope of the Tennessee Supreme Court’s mandate, we decline to revisit our decision concerning the perimeter seating issue. Reversed and Remanded. |
Shelby | Court of Appeals | |
Kenneth E. Diggs v. Genetic Profiles Corporation
Appellant failed to timely file his Notice of Appeal. Thus, we dismiss this appeal for lack of jurisdiction. |
Shelby | Court of Appeals | |
State of Tennessee v. Lejeanra E. Polk
On August 4, 2008, the Montgomery County grand jury charged the defendant, Lejeanra E. Polk and a co-defendant, Nicole T. Davis, with one count of premeditated first degree murder, see T.C.A. § 39-13-202(a)(1) (1991 and Supp. 1995), and one count of first degree felony murder, see id. § 39-13-202(a)(2), for the November 1995 stabbing death of Carolyn Vega-Velasquez. Following a bench trial, the defendant was convicted of second degree murder and felony murder. At sentencing, the trial court merged the second degree murder conviction into the felony murder conviction and imposed a life sentence by operation of law. See id. § 39-13-208(c). The defendant challenges the sufficiency of the evidence on appeal. Discerning no infirmity in the evidence, we affirm the judgment of the trial court. |
Montgomery | Court of Criminal Appeals | |
State of Tennessee v. Brandon Ryan Weston
The defendant, Brandon Ryan Weston, pleaded guilty to two counts of burglary of an automobile, Class E felonies, and to two counts of theft of property over $1,000, Class D felonies. The trial court sentenced the defendant as a Range I, standard offender, to an effective sentence of two years and one day in the Tennessee Department of Correction. The trial court ordered the defendant to serve his sentences consecutively to his sentences in case number 08CR365 and Hamblen County case number 08CR437. The trial court also revoked the defendant’s probation in case numbers 08CR365 and 08CR437. On appeal, the defendant argues that the trial court erred by denying alternative sentencing. Following our review, we affirm the judgments of the trial court. |
Hawkins | Court of Criminal Appeals | |
Dolwin D. Cormia v. State of Tennessee
The Petitioner, Dolwin D. Cormia, filed a petition for writ of error coram nobis alleging that newly discovered evidence—a Naval document diagnosing the Petitioner with “antisocial personality disorder”—mandated a new trial. The Hamilton County Criminal Court summarily dismissed the petition concluding that the Petitioner did not state a cognizable claim for coram nobis relief. For the first time on appeal, the Petitioner alleges that the coram nobis judge erred by not sua sponte recusing himself based upon the fact that the coram nobis judge “was possibly an Assistant District Attorney and/or the Executive District Attorney” at the time his case was being prosecuted. Following a review of the record, we conclude that the Petitioner has failed to allege the existence of subsequently or newly discovered evidence that would warrant relief under a writ of error coram nobis. We also find that the Petitioner has failed to support his claim of recusal with sufficient documentation to require reversal. The order of summary dismissal is affirmed. |
Hamilton | Court of Criminal Appeals | |
Kevin Cox, D.V.M. v. Tennessee Board of Veterinary Medical Examiners
This is an appeal from an administrative decision against Appellant, a licensed veterinarian. Appellee Board of Veterinary Medical Examiners sanctioned Appellant for improperly prescribing medications to farms. Appellant appeals. Discerning no error, we affirm. |
Davidson | Court of Appeals | |
State of Tennessee v. Davis Bradley Waldroup, Jr.
The Polk County Grand Jury indicted Appellant, Davis Bradley Waldroup, Jr.,for two counts of especially aggravated kidnapping, one count of first degree murder, and one count of attempted first degree murder. These charges stemmed from an altercation Appellant had with his wife and her best friend at his trailer on Kimsey Mountain. A jury convicted Appellant of one count each of aggravated kidnapping, especially aggravated kidnapping, voluntary manslaughter, and attempted second degree murder. The trial court sentenced Appellant to an effective sentence of thirty-two years. On appeal, Appellant argues that the evidence was insufficient to support his conviction of aggravated kidnapping, that the trial court erred in denying his motion for change of venue, erred in allowing the introduction into evidence of a photograph of one of the victim’s injuries, and erred in denying his motion for judgment of acquittal. After a thorough review of the record on appeal, we affirm the judgments of the trial court. |
Polk | Court of Criminal Appeals | |
Elizabeth A. (Hayes)(Falin) Finch v. Timothy A. Hayes
In this post-divorce change of custody case, Elizabeth A. (Hayes) (Falin) Finch (“Mother”) and Timothy A. Hayes (“Father”) sought to modify their parenting plan regarding their daughter (“the Child”), who was born on July 13, 2000. At the time of the divorce, the parties designated Mother as the primary residential parent and provided Father with regularly scheduled visitation. Following a hearing in response to the parties’ motions for modification, the court designated Father as the primary residential parent and awarded Mother co-parenting time. Mother appeals. We affirm the decision of the trial court. |
Greene | Court of Appeals | |
State of Tennessee v. Tiffany Nicole Nance
The Defendant, Tiffany Nicole Nance, pled guilty to theft of property valued under $500, with an agreed sentence of eleven months and twenty-nine days to be served on probation. A probation violation warrant was issued, and, after a hearing, the trial court revoked the Defendant’s probation, finding that she had violated the terms of her probation. The court ordered her to serve sixty days of her sentence in confinement, followed by a reinstatement of her probation. On appeal, the Defendant contends the evidence is insufficient to sustain the trial court’s revocation of her probation. After a thorough review of the record and applicable law, we affirm the trial court’s judgment. |
Knox | Court of Criminal Appeals | |
State of Tennessee v. Roy A. Jamison Jr.
The Defendant, Roy A. Jamison, Jr., pled guilty to possession with the intent to deliver .5 grams or more of cocaine, a Class B felony, with a possible sentence range of eight to twelve years. The trial court sentenced the Defendant to ten years and ordered the Defendant to serve the first year of his sentence in the Tennessee Department of Correction and the balance in the Community Corrections Program. On appeal, the Defendant contends the trial court erred when it: (1) used the Defendant’s criminal history to enhance his sentence; and (2) sentenced him to confinement. After a thorough review of the record and relevant authorities, we conclude the trial court properly sentenced the Defendant. Accordingly, we affirm the trial court’s judgment. |
Hardin | Court of Criminal Appeals | |
Terrence G. Motley v. State of Tennessee
In 1994, the Petitioner, Terrence G. Motley, pursuant to a plea agreement, pled guilty to aggravated assault and aggravated burglary and was sentenced to three years in the Shelby County workhouse for each crime, with the sentences to be served concurrently. In 2010, the Petitioner filed “A Motion In The Nature of Writ Of Error Coram Nobis,” which the trial court dismissed without a hearing. The trial court held that the Petitioner’s claim was timebarred and that coram nobis relief was not applicable to the Petitioner’s claim. After a thorough review of the record, the briefs, and relevant authorities, we affirm the trial court’s judgment. |
Shelby | Court of Criminal Appeals | |
State of Tennessee v. Tammy Thompson
The Defendant, Tammy Thompson, was found guilty by a Maury County Circuit Court jury of assault, a Class A misdemeanor, and resisting arrest, a Class B misdemeanor. See T.C.A. §§ 39-13-101 (assault) (Supp. 2008) (amended 2009, 2010), 39-16-602 (resisting arrest) (2010). She was sentenced to eleven months and twenty-nine days, with sixty days to be served, for assault, and to six months on probation for resisting arrest. The sentences were imposed concurrently. On appeal, she contends that (1) the prosecution was barred by the statute of limitations, (2) the evidence was insufficient to support the resisting arrest conviction, (3) the trial court erred in admitting evidence of the Defendant’s conduct after she was taken to the jail, and (4) the trial court erred in failing to give a self-defense jury instruction. We affirm the judgments of the trial court. |
Maury | Court of Criminal Appeals |