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| Arthur/Mary Anderson vs. John Howser
W2000-00937-COA-R3-CV
This is a medical malpractice case. The defendants filed a motion for summary judgment, supported by an affidavit from the defendant physician. The plaintiffs filed the opposing affidavit of an expert physician. When the defendants attempted to depose the plaintiffs' expert, they were informed that he would not be testifying at trial. However, the plaintiffs' expert's affidavit was never withdrawn from the record, nor was his testimony recanted. The trial court gave the plaintiffs additional time to secure an expert for trial. The plaintiffs failed to secure an expert within the time period and filed a notice of voluntary non-suit. The trial court granted the defendants' motion for summary judgment, holding that the plaintiffs' response to the motion for summary judgment must be supported by the affidavit of an expert who is expected to testify at trial. The plaintiffs appealed. We affirm. Where the plaintiff submits the affidavit of an expert in response to a motion for summary judgment, and it is undisputed that the expert will not testify for trial, the plaintiff has not demonstrated that he has a justiciable claim warranting a trial, and the granting of summary judgment is appropriate.
Authoring Judge: Judge Holly M. Kirby
Originating Judge:James F. Russell |
Shelby County | Court of Appeals | 10/10/00 | |
| Karine Bailey vs. Michael Bailey
M2000-00325-COA-R3-CV
These parties were divorced in September 1995, and their Marital Dissolution Agreement was incorporated in the decree of divorce. They were parents of two children, and the court approved the agreement for shared physical custody of the children whereby each parent had custody of both children fifty percent of the time. The MDA provided, "[T]he parties have agreed to deviate from the child support award guidelines due to the shared physical custody of the children." Husband paid Wife $500 per month, which was not in accordance with the guidelines. In June 1999, Husband filed a motion to terminate his child support obligation because of a significant increase in Wife's income. The trial court denied the application, and Husband appeals. We vacate and remand for further proceedings.
Authoring Judge: Judge William B. Cain
Originating Judge:Don R. Ash |
Rutherford County | Court of Appeals | 10/10/00 | |
| Douglas Shanklin vs. UT Medical
W1999-01982-COA-R3-CV
This appeal arises from a trial court's finding that a subsequent action by Doctor was barred under the doctrine of res judicata due to the court's decision in an earlier case. On appeal, Doctor argued that his earlier action for age discrimination and retaliation in violation of the Tennessee Human Rights Act was not the same as the current action, which involves breach of contract and unjust enrichment. We affirm the trial court's ruling.
Authoring Judge: Judge David R. Farmer
Originating Judge:Robert L. Childers |
Shelby County | Court of Appeals | 10/10/00 | |
| McBee vs. HCA Health Svcs. of TN
M2000-00271-COA-R3-CV
This appeal involves a hospital patient who was injured in a fall two days following surgery. The patient and her husband filed suit against the hospital in the Circuit Court for Davidson County alleging that her attending nurse had negligently permitted her to ambulate without adequate assistance and support. The hospital filed a motion for summary judgement supported by the attending nurse's affidavit stating that she had complied with the applicable standard of care for the post-operative ambulation of surgical patients. The patient did not submit any countervailing expert affidavits, and the trial court granted the hospital's summary judgment motion. On this appeal, the patient asserts that she should not have been required to file countervailing expert affidavits either because her complaint was based on simple negligence or because the attending nurse's negligence was so plain that no expert testimony was required. We find that the patient's complaint is for medical malpractice and that the attending nurse's conduct is not so plainly negligent that it obviates the necessity of expert proof. Accordingly, we affirm the trial court.
Authoring Judge: Judge William C. Koch, Jr.
Originating Judge:Walter C. Kurtz |
Davidson County | Court of Appeals | 10/10/00 | |
| McDonnell P.L.C. vs. Select-O-Hits
W2000-00044-COA-R3-CV
This is a suit for the recovery of attorney's fees. The Appellee brought a complaint against the Appellant in the Chancery Court of Shelby County, seeking to recover $120,000.00 in attorney's fees. The Appellant filed an answer and counterclaim, seeking to recover $10,000.00 it paid to the Appellee and $10,953.05 it paid in legal fees to another law firm. The Chancery Court of Shelby County found that the $120,000.00 fee was excessive and entered a judgment in favor of the Appellee in the amount of $89,685.00. The trial court dismissed the Appellant's counterclaim. The Appellant appeals from the decision of the Chancery Court of Shelby County granting a reduced amount of attorney's fees to the Appellee and dismissing the Appellant's counterclaim. For the reasons stated herein, we affirm the trial court's decision as modified.
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Floyd Peete, Jr. |
Shelby County | Court of Appeals | 10/10/00 | |
| Wills & Wills vs. Raymond Gill
W1999-01755-COA-R3-CV
Owners of adjacent properties entered into negotiations and a subsequent agreement regarding issues concerning their properties. Dispute between the parties arose after one owner began construction of a Walgreens store in an area one party contended was other than that designated for the location of future buildings on the plat configuring the parties' properties. The other party alleged that the parties did not have an agreement between them concerning the location of future buildings on the adjacent properties. The trial court determined that the parties only had a meeting of the minds as to drainage improvements and further determined that the agreement was a contract only for drainage in that the agreement did not contain specific, written restrictive covenants as to the location for future buildings. We affirm.
Authoring Judge: Judge David R. Farmer
Originating Judge:Walter L. Evans |
Shelby County | Court of Appeals | 10/10/00 | |
| Nancy Record vs. Brian Record
W2000-01294-COA-R3-CV
Husband appeals a final decree of divorce as it pertains to an upward deviation of child support, division of marital property and debt, and the award of alimony in solido for attorney fees. We affirm as modified.
Authoring Judge: Judge W. Frank Crawford
Originating Judge:Robert A. Lanier |
Shelby County | Court of Appeals | 10/10/00 | |
| Allied Business vs. Abraham Musa
W1999-00378-COA-R3-CV
This appeal involves a breach of contract regarding a commission owed for the sale of a business. Allied, the broker, claims that Abed Amro owes it a commission based on the contract between the parties. Amro, however, claims that he is not liable under the Listing Agreement even though it is undisputed that he signed the contract. The trial court held that Allied was not entitled to a judgment against Amro because Amro did not have an ownership interest in the business that was sold. We reverse.
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:John R. Mccarroll, Jr. |
Shelby County | Court of Appeals | 10/10/00 | |
| Tonya Ray vs. William Ray
M2000-00895-COA-R3-CV
This appeal involves a dispute over the custody of three-year-old twins between their biological father and the former husband of their biological mother. The biological father intervened in the divorce proceeding between the twins' mother and her husband in the Circuit Court for Davidson County seeking custody of the children. Following a bench trial, the trial court declared the parties divorced and awarded custody of the parties' two biological children to the mother's former husband. The trial court also concluded that the mother's former husband was comparatively more fit than the twins' biological father to have custody of the twins. In response to the biological father's Tenn. R. Civ. P. 59.04 motion suggesting that it had applied the wrong legal standard when it determined the custody of the twins, the trial court found that placing the twins with their biological father would expose them to a "substantial risk and danger of great harm." On this appeal, the twins' biological father takes issue with the evidentiary foundation of the trial court's refusal to grant him custody of his children. We have determined that the record does not contain clear and convincing evidence to support the trial court's conclusion that placing these children in their biological father's custody will expose them to substantial harm. Accordingly, we vacate the portion of the decree awarding custody of the twins to their biological mother's former husband.
Authoring Judge: Judge William C. Koch, Jr.
Originating Judge:Carol L. Soloman |
Davidson County | Court of Appeals | 10/10/00 | |
| Elliott vs. The Blakeford at Green Hills
M2000-00365-COA-R3-CV
The Director of Food Service at the defendant retirement home injured her hand on the job, and was terminated by her supervisor. She filed suit against her employer, claiming that she had been discharged in retaliation for making a workers' compensation claim. At the close of the plaintiff's proof, the trial court granted the defendant's motion for directed verdict. We reverse.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Thomas W. Brothers |
Davidson County | Court of Appeals | 10/10/00 | |
| State of Tennessee, Ex Rel. Judy Lynn Stanley v. John
04-99-009-M
Originating Judge:A. Andrew Jackson |
Dickson County | Court of Appeals | 10/10/00 | |
| Keeton vs. Hill
M1999-02272-COA-R3-CV
Plaintiff, a former employee, appeals from the trial court's grant of summary judgment to her former employer on her sexual harassment claim. Because the employer successfully demonstrated the elements required to establish the affirmative defense for employers recognized in Parker vs. Warren County Util. Dist., 2 S.W.3d 170, 175-76 (Tenn. 1999), we affirm the trial court.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Ellen Hobbs Lyle |
Davidson County | Court of Appeals | 10/10/00 | |
| Mitchell Lynn Roberts, v. Beverly Jean Roberts
M2000-00216-COA-R3-CV
This is an appeal from the trial court's modification of an order of visitation increasing the appellee's amount of summer visitation. We affirm the judgment of the trial court.
Authoring Judge: Presiding Judge Ben H. Cantrell
Originating Judge:Judge Allen W. Wallace |
Cheatham County | Court of Appeals | 10/05/00 | |
| S.E.A., Inc. vs. Southside Leasing Company and Moss W. Yater
E2000-00631-COA-R3-CV
S.E.A., Inc. brought suit in Knox County Chancery Court seeking an injunction and alternatively, damages, against its lessor, Southside Leasing Company, and Southside's secured creditor, Moss W. Yater, regarding a non-disturbance agreement. Yater is also Southside's majority shareholder, president and director. S.E.A.sought to sublease a portion of the property. Pursuant to the terms of the lease between S.E.A. and Southside, Southside consented to the sublease and executed the requested non-disturbance agreement. However, Yater, Southside's secured creditor, refused to execute the non-disturbance agreement unless Southside received a portion of the rent from the sublease. Defendants filed motions for summary judgment which were granted by the Trial Court. S.E.A. appeals the Trial Court's granting of summary judgment to the Defendants. We affirm.
Authoring Judge: Judge David Michael Swiney
Originating Judge:John F. Weaver |
Knox County | Court of Appeals | 09/29/00 | |
| Turner vs. Turner
M1999-00482-COA-R3-CV
This is a divorce case. Following a bench trial, the court below (1) granted a divorce to wife; (2) divided the marital property; (3) awarded wife alimony in the form of a $1,640.55 monthly payment out of husband's retirement account; and (4) declared that the alimony award was to be secured by the husband's retirement account. Husband appeals the alimony award, the use of the retirement account as security for the payment of alimony, and the trial court's division of the marital property. Wife takes issue with the division of the parties' marital property. We affirm.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Marietta M. Shipley |
Davidson County | Court of Appeals | 09/28/00 | |
| Barry Robinson v. Donald Brooks
M2003-00185-COA-R3-CV
This case involves the sale by auction of certain real property in Davidson County. The buyers brought suit in Davidson County Chancery Court seeking specific performance or, in the alternative, damages for breach of contract. From the trial court's grant of summary judgment for the defendants, the plaintiff buyers appeal. We affirm.
Authoring Judge: Judge William B. Cain
Originating Judge:Ellen Hobbs Lyle |
Davidson County | Court of Appeals | 09/28/00 | |
| Moss vs. TN Board of Paroles
M2000-00128-COA-R3-CV
At the hearing where appellant's parole was revoked, the Hearing Officer admitted sworn statements of alleged victims. The Trial Court upheld the revocation. We affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Ellen Hobbs Lyle |
Davidson County | Court of Appeals | 09/28/00 | |
| Franklin Nat'l Bank vs. Prowell
M2000-00580-COA-R3-CV
The Circuit Court of Williamson County refused to issue a writ of certiorari to review a judgment of the General Sessions Court of that county because the petition was untimely and the same issues were already pending in an action in Maury County. We affirm.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Jeffrey S. Bivins |
Williamson County | Court of Appeals | 09/28/00 | |
| Paul Farnsworth, A/K/A Ronnie Bradfield v. Donita Moore,
01623-COA-R3-CV
Originating Judge:Thomas W. Graham |
Bledsoe County | Court of Appeals | 09/28/00 | |
| Lassiter vs. Lassiter
M1999-00374-COA-R3-CV
This case involves a divorce ending a seven-year marriage. The divorce was awarded to the wife on grounds of the husband's inappropriate marital conduct. The trial court divided the property and debts according to the parties' stipulations. The court then awarded the wife alimony in futuro and ordered the husband to pay $750 of the wife's attorney fees. The husband appeals the awards of alimony and attorney fees. We affirm.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Carol A. Catalano |
Robertson County | Court of Appeals | 09/28/00 | |
| Wilson vs. So. Centr. Corr. Facility Disciplinary Bd
M2000-00303-COA-RM-CV
An inmate in a privately operated prison filed a Petition for Writ of Certiorari against the disciplinary board at that facility. The trial court dismissed his petition for failure to state a claim. We affirm
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Jim T. Hamilton |
Wayne County | Court of Appeals | 09/28/00 | |
| State Dept. of Children's Svcs. vs. L.S., In the Matter of D.S.
M1999-00847-COA-R3-CV
The Trial Court removed minor child from the parental home on grounds child was dependent and neglected. We affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:John J. Maddux |
Pickett County | Court of Appeals | 09/28/00 | |
| Joiner vs. Metro Gov't
M2000-00413-COA-R3-CV
The Trial Court entered consent Judgment over objection of defendant. We vacate Judgment and remand.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Carol L. Soloman |
Davidson County | Court of Appeals | 09/28/00 | |
| Tammy Elizabeth Hickman & Danny Ray Hickman vs. Eugenia Darlene Hickman
E2000-00927-COA-R3-CV
Plaintiffs sued to terminate the mother's parental rights. The Trial Judge held plaintiffs failed to carry the burden of proof. We affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Jeffrey F. Stewart |
Rhea County | Court of Appeals | 09/28/00 | |
| Dudley vs. Dudley
M1998-00982-COA-R3-CV
In this divorce case, the trial court awarded the divorce to the Wife and divided the property. Husband appeals the award of the marital residence and its contents to Wife. We affirm.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Carol A. Catalano |
Montgomery County | Court of Appeals | 09/28/00 |