Nystar Tennessee Mines-Strawberry Plaints, LLC v. Claiborne Hauling, LLC, DBA Claiborne Trucking, LLC
This case involves a motion for attorney’s fees filed by Nyrstar Tennessee Mines – Strawberry Plains, LLC. Nyrstar and Claiborne Trucking, LLC are parties to a contract. Nyrstar prevailed in an underlying breach of contract action against Claiborne. After prevailing in the underlying case, Nyrstar filed a motion asking to be awarded its attorney’s fees pursuant to the parties’ contract. The issue before us is whether the language of the contract is sufficient to allow Nyrstar to seek fees. The trial court held that the language is not sufficiently specific to create a contractual right to recover attorney’s fees. Nyrstar appeals. We affirm. |
Knox | Court of Appeals | |
Megan C. England v. Sonya Schnur Et Al.
Megan England filed a petition for a restraining order, protective order and injunctive relief against Sonya Schnur, Roswell Schnur, and Lisa Schnur, alleging, among other things, that the respondents had taken actions that caused her to fear for her safety. The trial court granted her a temporary restraining order. Three days later, respondents filed motions to dismiss under Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief can be granted. Respondents subsequently filed two affidavits in support of the motions. Shortly thereafter, petitioner filed a notice of voluntary nonsuit asking for dismissal of her petition without prejudice. Respondents opposed the dismissal unless it was entered with prejudice. Contrary to the respondents’ request, the court dismissed the action without prejudice. We hold that the trial court did not consider matters outside the pleadings in making its decision. As a consequence, the motion of the respondents was not converted into a motion for summary judgment. In the alternative, even if the conversion occurred, the trial court had discretion to grant the petitioner’s request without prejudice under the authority of Stewart v. Univ. of Tenn., 519 S.W.2d 591, 593 (Tenn. 1974). The trial court did not abuse its discretion in declining to make its dismissal with prejudice. Accordingly, we affirm |
Hamilton | Court of Appeals | |
Metropolitan Government of Nashville And Davidson County, Tennessee v. Teleport Communications America, LLC
The Metropolitan Government of Nashville and Davidson County (“Metro”) sued Teleport Communications America, LLC (“TCG”) in the Chancery Court for Davidson County (“the Trial Court”) to recover a fee for TCG’s use of Metro’s public rights-of-way. TCG contended the fee was unlawful and refused to pay. Metro and TCG previously had entered into a franchise agreement in keeping with an ordinance requiring telecommunications providers to pay 5% of their gross revenues to Metro. The Tennessee Court of Appeals later ruled in another case against an ordinance purporting to set a gross revenue franchise fee as being akin to a tax. The Trial Court cited this holding to invalidate the ordinance in the present case. Metro nevertheless pursued this action further, seeking to recover under a contractual theory. After extensive litigation, the Trial Court found that TCG owed damages to Metro in the amount of $550,000. The Trial Court reasoned that even though the underlying ordinance was invalid, the parties had entered into a franchise agreement and Metro was entitled to some measure of compensation. TCG appealed. We affirm the judgment of the Trial Court. |
Davidson | Court of Appeals | |
In Re Danely C.
M.V.C. , the mother of Danely C., an undocumented minor born in Honduras, filed a petition in the trial court seeking an order appointing M.V.C. as guardian of her daughter. She further asked the court to make findings as mandated by 8 U.S.C.A. § 1101(a)(27)(J) (2014). Findings favorable to the petitioner are a prerequisite for Danely C. to apply under federal law for special immigrant juvenile status. The petitioner prayed “[t]hat sevice of process issue as necessary upon [Danely C].” The trial court, acting sua sponte, dismissed the petition, finding “no justiciable controversy in this cause.” We vacate the judgment of the trial court and remand for a hearing with respect to the matters contemplated by 8 U.S.C.A. § 1101(a)(27)(J). |
Rutherford | Court of Appeals | |
Alisa Leigh Eldridge v.Lee Savage
This dispute arises from Buyer’s purchase of a home from Seller in 1994. After discovering extensive pre-existing fire damage to the home in 2010, Buyer filed a complaint against Seller, alleging misrepresentation, mistake, and violation of the Tennessee Consumer Protection Act. The trial court granted summary judgment in favor of Seller, finding that Buyer’s cause of action was barred by the applicable statute of limitations. Buyer appeals, alleging that Seller’s fraudulent misrepresentations and concealment and the discovery rule tolls the statutes of limitations. She also contends these are factual issues to be determined by a jury. We have concluded that a reasonable jury could not legitimately resolve the facts relied upon by Buyer in her favor; therefore, the trial court acted appropriately by summarily dismissing all of her claims as time barred. Accordingly, we affirm. |
Overton | Court of Appeals | |
In Re Chloe C.
The trial court denied Appellant’s motion to set aside a default judgment in this parentage action. Because Appellant was not properly served notice of the default judgment under Rule 55.01 of the Tennessee Rules of Civil Procedure, we reverse and remand the trial court’s decision for further proceedings pursuant to this opinion. |
Wilson | Court of Appeals | |
In Re Estate of Alfred C. Diviney, Sr.
In an agreed order settling a widow’s claim for exempt property and homestead against her husband’s estate, the parties included language that they were settling “all claims that the Petitioner asserted or might have asserted in the Petition.” When the widow subsequently petitioned for a year’s support and elective share, the trial court held that her claim was barred by res judicata. We affirm the judgment of the trial court. |
Davidson | Court of Appeals | |
Julie Ann Norman v. Joshua Shane Norman
A Father appeals the trial court’s decision to name the Mother as Primary Residential Parent of the parties’ two children. Discerning no error, we affirm the decision of the trial court, award the Mother her attorneys’ fee incurred on appeal, and remand the case for a determination of the amount. |
Wayne | Court of Appeals | |
In Re Caleb F. Et Al.
Shortly after entry of an agreed permanent parenting plan, Father filed a petition to find Mother in contempt and to modify the parenting plan. The petition alleged that a material change in circumstance had occurred since the adoption of the agreed plan, such as Mother allegedly interfering with Father’s parenting time. The juvenile court found a material change in circumstance had occurred and modified the parenting plan by increasing Father’s parenting time. From this ruling, Father appealed, claiming that the court erred by not granting him equal parenting time. Because the court’s order modifying the plan contains insufficient findings of fact and conclusions of law, we vacate and remand. |
Montgomery | Court of Appeals | |
Hoover, Inc. v. Ashby Communities, LLC, Et Al.
An asphalt paving company brought suit against the developer of a subdivision, and its managing member and guarantor, for breach of contract based on the developer’s failure to pay for services rendered under the contract. The developer answered, asserting multiple affirmative defenses, and counterclaimed, asserting that the company breached the contract, violated the Tennessee Consumer Protection Act, and mispresented that it would perform the work for the price specified in the contract. The trial court held that the developer breached the contract by failing to pay and awarded damages, interest, and attorney’s fees to the paving company. The developer appeals. Upon a thorough review of the record, we affirm the judgment in all respects. |
Williamson | Court of Appeals | |
In Re Arabella L.
Three years after the juvenile court in Tennessee approved a parenting plan for a child, the child’s father filed a petition to modify custody, alleging a material change in circumstances. The mother, who had filed a modification petition in Alabama, requested that the Tennessee court communicate with the Alabama court to determine which court had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The Tennessee court, after communicating with the Alabama court, determined that Alabama was a more convenient forum, declined to exercise jurisdiction, and dismissed the father’s petition. On appeal, the father argues that the Tennessee court failed to allow the parties access to a record of its communication with the Alabama court or an opportunity to present evidence before making its decision. Because we conclude that the juvenile court abused its discretion in declining to exercise jurisdiction without allowing the parties an opportunity to present evidence, we vacate the court’s decision and remand for further proceedings. |
Montgomery | Court of Appeals | |
Steve Merriweather, et al. v. Debra Merriweather, et al.
Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction. |
Shelby | Court of Appeals | |
Blue Water Bay At Center Hill, LLC, Et Al. v. Larry J. Hasty, Et Al.
This appeal follows the trial court’s confirmation of an arbitration award. There are four participating parties on appeal, the Appellant and three separate Appellees. With respect to the claims asserted by Appellee Blue Water Bay against the Appellant, we hereby vacate the trial court’s orders and remand for further proceedings because the trial court erred in not allowing the Appellant pre-arbitration discovery regarding issues pertaining to arbitrability. With respect to the claims involving the other two Appellees, we reverse the trial court’s orders due to the absence of a sufficient basis to establish arbitrability. |
Williamson | Court of Appeals | |
Tennessee Clutch And Supply , Inc. v. Auto-Owners (Mutual) Insurance Company
This appeal arises from a dispute between an insured and its insurance carrier concerning the coverage limits under an “Employee Dishonesty” endorsement to a commercial general liability policy for an employee’s dishonesty that spanned two policy years. After the insured discovered that one of its employees embezzled approximately $100,000 in 2014 and 2015, it filed a claim for $30,000, the aggregate of the policy limits of $15,000 for each policy year. The insurer took the position that the limitation of coverage for such an occurrence was $15,000, paid that amount, and denied the balance of the claim. The trial court held that the policy language was ambiguous and by construing the policies in favor of the insured, determined there were two policies, each of which provided $15,000 of coverage and ruled that Plaintiff was entitled to recover $30,000. The insurer appealed. Finding no ambiguity, we have determined that the 2015 policy was not a separate policy but a renewal of the 2014 policy, that the policy limit for employee dishonesty is $15,000 per occurrence, and that there was one continuous occurrence, as that term is defined in the policy, which spanned two years. We have also determined that the policy prohibits “stacking” of coverage from one policy year to the next. For these reasons, we respectfully reverse the judgment of the trial court and hold that the policy limits for the claim asserted by the insured is $15,000. |
Davidson | Court of Appeals | |
Edward Ronny Arnold v. Bob Oglesby, Et Al.
A former state employee filed suit claiming that he should have been paid for the state holiday on November 27, 2015, because he worked on October 12, 2015, the day from which the holiday was shifted pursuant to Tenn. Code Ann. § 4-4-105(a)(3). His position was terminated before the November 27, 2015 holiday occurred. The general sessions and circuit courts granted the Department of General Services Commissioner’s motion to dismiss based on sovereign immunity. We reverse. |
Davidson | Court of Appeals | |
Dale (Crafton) Roberts v. James Frederick Roberts
This is the second time we have considered this child custody case on appeal. The parties have been embattled in post-divorce litigation almost continuously since entry of the final decree of divorce in 2007. In 2012, the parties sought to modify their parenting arrangement, and the trial court allowed a divorce referee to hear the matter. The court then attempted to retroactively appoint the divorce referee as a Special Master and adopted a modified version of the findings and recommendations of the divorce referee/Special Master. Father appealed, and on December 28, 2015, this Court vacated the trial court’s order and remanded the case for further proceedings as needed to adjudicate the parties’ petitions related to custody and parenting. On remand, the trial court held a three day hearing to determine whether to modify the parties’ current permanent parenting plan. The court concluded that the primary residential parent of the parties’ remaining minor child should be changed from Father to Mother. Father appeals. We hold that the trial court erred in refusing to consider all of the applicable best interest factors set forth in Tennessee Code Annotated section 36-6-106, specifically the preference of a child age twelve or older. We, therefore, vacate the order of the trial court and remand for further proceedings consistent with this Opinion. We decline mother’s request for attorney’s fees incurred on appeal. |
Shelby | Court of Appeals | |
Estate of Bonnie C. Brimer v. Bernice Hennessee et al.
Summary judgment was granted to the defendant in an action brought by the executrix of an estate to declare the rights of the parties to joint bank accounts created by the decedent. The executrix appeals the grant of summary judgment. We conclude that there is a genuine issue of material fact as to whether the decedent was unduly influenced and accordingly reverse the judgment and remand the case for further proceedings. |
Morgan | Court of Appeals | |
Verrina M. Shields Bey v. Wilson & Associates, PLLC, et al.
This is an appeal challenging the trial court’s order denying a motion for interlocutory appeal. Due to the deficiencies in Appellant’s brief on appeal, we find that she waived consideration of any issues on appeal and hereby dismiss the appeal. |
Shelby | Court of Appeals | |
In Re Conservatorship of Waltraud E. Lemonte
This appeal involves competing conservatorship petitions filed by the children of the Ward. Appellees, daughters of the Ward, filed a petition seeking to be named as co-conservators for the Ward and seeking to revoke powers of attorney executed by the Ward in favor of her son who is the Appellant. Appellant filed his answer and counter-petition to be appointed conservator. Appellees opposed Appellant’s counter-petition on the ground that he is a convicted felon and, therefore, ineligible to serve as the Ward’s conservator, under Tennessee Code Annotated Section 40-20-115. The trial court found that Appellant’s Nevada sentence for drug charges disqualified him from serving as the Ward’s agent or fiduciary. As such, the trial court revoked the Appellant’s powers of attorney and dismissed Appellant’s counter-petition. Discerning no error, we affirm. |
Montgomery | Court of Appeals | |
Jerretta Certain v. Judy Goodwin
On February 6, 2014, defendant Judy Goodwin, principal of Barfield Elementary School, received an anonymous telephone call. The caller said she was a nurse and the grandparent of a child that she had just picked up at the school. The caller reported that she had seen a teacher, as it turned out, plaintiff Jerretta Certain, who appeared to the caller to be in an altered state. The caller said Ms. Certain was putting children in danger. Principal Goodwin decided to investigate the caller’s claim. She asked Ms. Certain, school nurse Jessica Floyd, and Student Resource Officer Ward Bates, to come to Ms. Certain’s classroom. All three observed Ms. Certain. Generally speaking, each considered her to be in an altered state. They described her as appearing drowsy, slow, and walking with difficulty. They discovered in her bags seven bottles of medications, all prescribed for Ms. Certain, in properly-marked childproof containers. Ms. Certain alleges that Principal Goodwin stated, “I believe what we’re looking at is an addiction to prescription drugs.” The principal asked Nurse Floyd, “would you want your child in her classroom next year knowing that she’s addicted to prescriptions like this?” Ms. Certain brought this action against Principal Goodwin for defamation, invasion of privacy, and intentional infliction of emotional distress. The trial court granted Principal Goodwin summary judgment on all claims, holding as a matter of law that Ms. Certain could not establish the following essential elements: (1) actual malice; (2) that the alleged statements were defamatory; and (3) that the statements were published. Ms. Certain appeals. As modified, we affirm the judgment of the trial court. |
Rutherford | Court of Appeals | |
In Re Estate of Lois Culp
This case deals with the issue of whether a personal representative of an estate can obtain additional attorney’s fees incurred in connection with an appeal−an appeal that occurred after the personal representative had disbursed all the estate funds other than those belonging to the estate beneficiary who pursued the appeal. That individual−Donnie Culp (Culp)−appealed the sale of his late mother’s real and personal property by Dianne Rich (the personal representative), executor of his late mother’s estate. Prior to Culp’s appeal, the personal representative obtained a court order closing the estate and awarding her $43,256.37 in attorney’s fees. These attorney’s fees included an estimated 40 hours for an appeal. After paying all estate debts, including her compensation and attorney’s fees, the personal representative disbursed all remaining estate funds, other than Culp’s share, to the other beneficiaries. The personal representative now seeks $17,500 in additional attorney’s fees for the over 70 hours that her attorney spent on the appeal. The trial court denied the personal representative’s request for additional attorney’s fees, holding that it would be inappropriate to award them to her out of Culp’s share of the estate. The court noted that the personal representative should have raised the issue before distributing the rest of the estate. We hold that the personal representative’s attorney was fully compensated by the initial award of attorney’s fees for her attorney’s services on appeal. We further hold that no estate funds remain from which the personal representative could obtain additional attorney’s fees because she distributed all funds other than Culp’s share. Additionally, we hold that Culp lacks standing to ask this Court to determine whether the personal representative should be individually liable for her attorney’s fees. The personal representative appeals. We affirm. |
Wayne | Court of Appeals | |
State, ex rel., Schrita O. v. Robert T.
This is an appeal from the juvenile court’s order establishing paternity and retroactive child support, for a child who was born in 1996 and reached majority during the course of these proceedings. In 2014, with the assistance of a Tennessee Department of Human Services Title IV-D Staff Attorney, the child’s mother filed a UIFSA petition in the Juvenile Court of Shelby County to establish paternity and an initial child support order and to recover retroactive child support for her son. Genetic testing confirmed Father’s parentage, and the trial court ordered Father to pay retroactive child support in the amount of $127,530.00. Father timely appealed. For the following reasons, we affirm in part and vacate in part. |
Shelby | Court of Appeals | |
State, ex rel., Schrita O. v. Robert T., Concur in part and Dissent in part
I concur in the majority’s decision in all respects but one. I respectfully disagree with the majority’s decision to “vacate the trial court’s judgment as to the calculation of retroactive child support and remand so that child support may be calculated based on the actual number of days Father exercised parenting time.” |
Shelby | Court of Appeals | |
R.B.E., PLLC et al. v. Emergency Coverage Corporation
This case focuses on a service contract between R.B.E,PLLC (RBE) and Emergency Coverage Corporation pursuant to which Dr. Robert Bruce Evans and his company were to provide medical services in emergency rooms. The issue before us is whether the subject contract obligates Emergency Coverage to schedule Dr. Evans for a minimum number of hours. Dr. Evans and RBE filed a breach of contract action alleging that Emergency Coverage failed to pay the required minimum monthly amounts due under the contract. Emergency Coverage filed a motion for summary judgment asserting that the contract contains a minimum availability requirement for Dr. Evans but no obligation on the part of Emergency Coverage to use Dr. Evans for a guaranteed number of hours. The trial court granted the motion. The plaintiffs appeal. We affirm |
Knox | Court of Appeals | |
Laronda F. Johnson v. Barry Dominick
This is an appeal from the trial court’s order concerning retroactive child support. Because the trial court’s order lacks the findings of facts and conclusions of law required under Tennessee Code Annotated Section 36-2-311(a)(11), we vacate the order as to retroactive child support. The order is otherwise affirmed. |
Montgomery | Court of Appeals |
