Charlie Gardner, Jr. v. Tennessee Department of Correction
This appeal involves a dispute between a prisoner and the Tennessee Department of Correction regarding the Department’s confirmation of the prisoner as a member of a Security Threat Group. The prisoner filed a petition pursuant to Tenn. Code Ann. § 4-5-225 (2005) in the Chancery Court for Davidson County seeking a declaratory judgment that the Department’s Security Threat Group policies and their application to him were invalid. The trial court granted the Department’s Tenn. R. Civ. P. 12.02(6) motion to dismiss, and the prisoner has appealed. We have determined that the prisoner failed to state a claim upon which relief can be granted because Tenn. Code Ann. § 4-5-225 petitions cannot be used to challenge the Department’s internal management policies. |
Davidson | Court of Appeals | |
Phyllis G. Mitchell v. Diane T. Hutchins
This appeal involves a legal malpractice action. When the client discovered that her attorney had failed to file a personal injury complaint before the statute of limitations ran, she filed identical legal malpractice complaints in both the Circuit Court of Dickson County and the Circuit Court for Montgomery County. After the Montgomery County complaint was dismissed for failure to prosecute, the client's former attorney moved to dismiss the Dickson County complaint on the ground of res judicata. The trial court denied the motion, and the attorney filed an application for an extraordinary appeal in accordance with Tenn. R. App. P. 10. We granted the application and have now determined that the trial court properly denied the attorney's motion to dismiss. |
Dickson | Court of Appeals | |
Dewayne Edward Holloway v. State of Tennessee
This is a claim filed against the State by a minor-decedent’s father for the wrongful death of the minor-decedent based on T.C.A. 9-8-307 (a)(1)(E) (Negligent Care, Custody and Control of Person). Claims Commissioner found that the State did not have care, custody and control of the minor child and, therefore, the Claims Commission is without jurisdiction to consider the claim. Father appeals. We affirm. |
Court of Appeals | ||
Neal Roberson v. West Nashville Diesel, Inc.
A repairer sold equipment at auction to enforce its lien and collect its charges for repairs. It also attempted to collect storage charges that had not been agreed to. The trial court found the repairer was not entitled to storage charges, and we agree under the facts of this case. The trial court also awarded the owner of the equipment damages for the difference in the fair market value of the equipment and the amount received at auction. We modify that award to the measure authorized by statute in the absence of a challenge to the auction procedures. The trial court found the repairer violated the Tennessee Consumer Protection Act, and we reverse that holding. |
Davidson | Court of Appeals | |
Tennessee Farmers Assurance Company, et al v. Loren L. Chumley
Taxpayer insurance companies brought suit in consolidated cases for refund of franchise and excise taxes which taxpayers had paid under protest. The taxes were assessed as a result of an audit conducted by the Tennessee Department of Revenue's field audit division and covering tax years 1995 through 1998. The taxpayers assert that they are allowed to take credit against the franchise and excise taxes for the amount they actually paid in gross premiums tax plus the credit they were granted against said tax by virtue of Tennessee investments. The Commissioner asserts that they are only entitled to credit on the franchise and excise taxes for the amount of gross premiums tax actually paid. The Chancery Court of Maury County entered judgment granting taxpayers motion for summary judgment holding that the commissioner's interpretation of the statutes defeated the incentives for investment in Tennessee securities provided under the gross premiums tax statutes. The revenue commissioner appealed. Finding that Commissioner of the Department of Revenue is not estopped from assessing franchise and excise taxes against the Appellee, either by statute or by equity, and that the credit against franchise and excise taxes includes only the amount of gross premiums taxes paid and collected by the Department of Commerce and Insurance, we vacate the summary judgment granted to the Appellees and grant summary judgment for Appellant. |
Maury | Court of Appeals | |
John Moore, et al. v. Metropolitan Board of Zoning Appeals et al.
This appeal involves a dispute between the developers of the site of a former commercial laundry and dry cleaning plant located in a residential neighborhood and a group of neighboring residents and property owners. Following two public hearings, the Metropolitan Board of Zoning Appeals approved a mixed-use development that included renovating two of the existing structures and constructing a new structure containing underground parking and additional retail and residential space. The neighboring property owners filed a petition for a common-law writ of certiorari and a writ of supersedeas in the Chancery Court for Davidson County challenging the Board’s decision. Following a review of the record of the Board’s proceedings, the trial court upheld the Board’s decision, and the property owners appealed. We have determined that the Board followed the proper procedures and did not act arbitrarily, and that its decision is supported by material evidence. |
Davidson | Court of Appeals | |
Adolph M. Groves, Jr. v. Sandra Rorex Groves
This appeal arises from the last of many petitions and counter-petitions by both parties to change custody of the parties' only child, to modify child support, to acquire arrearage judgments for non-paid child support, and for contempt of court. The order from which this appeal arose awarded custody of the child to the mother and dismissed the father's petition for contempt. Prior to this order, custody had been awarded to the father; however, he had not provided financial support for the child, and the child had not lived with him since the entry of the order awarding him custody. The dismissal of the father's petition was based upon the trial court's finding the father had failed to comply with the previous order he was seeking to enforce. Finding no error, we affirm. |
Davidson | Court of Appeals | |
Consumer Advocate Division of the Office of the Attorney General v. Tennessee Regulatory Authority
This is a consolidation of three appeals involving three tariffs filed by BellSouth Telecommunications, Inc. with the Tennessee Regulatory Authority. All three tariffs contained bundled offerings of telecommunications services and non-telecommunications services. The Consumer Advocate Division of the Office of the Attorney General was allowed to intervene in these proceedings in order to address the question of BellSouth’s obligation, under the Federal Telecommunications Act of 1996, to offer for resale the telecommunications services contained in the bundled offerings. The Tennessee Regulatory Authority entered orders allowing the tariffs to go into effect without the telecommunications service portions thereof being offered for resale. The Consumer Advocate appealed and the cases were consolidated for that purpose. In 2005, during the pendency of this appeal, the Tennessee General Assembly enacted T.C.A.§65-37-103 (Supp. 2005). This statute specifically exempts retail offerings of combinations or bundles of products or services from the jurisdiction of the Tennessee Regulatory Authority. In addition, all three of the tariffs at issue in this case expired, by their own terms, during the pendency of this appeal, rendering the appeal moot. Because we do not find that these appeals fall within any of the exceptions to the mootness doctrine, we dismiss the appeal as moot. |
Davidson | Court of Appeals | |
James Ross Keith v. Jordan Ashley Surratt
In this child custody case, Father appeals and argues that the trial court erred in awarding Mother primary residential custody of the parties' twin minor children. Mother also appeals and argues that the trial court erred in setting Father's child support, in failing to assess her attorney's fees against Father, and in changing the children's surname to that of Father. After careful review of the evidence and applicable authorities, we find no error and affirm the judgment of the trial court in all respects. |
Wilson | Court of Appeals | |
Allison Lyn Simmons v. Richard Lee Simmons
Both parties appeal aspects of the final divorce decree. Husband contends the trial court erred by awarding wife transitional alimony in excess of his ability to pay and in excess of her need. Wife raises six issues, contending she should have been granted the divorce due to his abuse; that child support should be increased; that she should be awarded the tax deductions for all three children; that she should be named trustee of life insurance for the benefit of the children; and that husband should pay her attorney fees at trial and on appeal. We affirm the trial court in all respects but one, finding the transitional alimony was set at an amount greater than husband's ability to pay. |
Robertson | Court of Appeals | |
Willie Johnson v. Corrections Corporation of America
An inmate incarcerated in a prison operated by Corrections Corporation of America sued the corporation for damages arising from its alleged failure to provide him with proper dental care while he was in its custody. The defendant filed a motion to dismiss for improper venue and/or for untimeliness. The trial court granted the motion and dismissed the case with prejudice, but did not state the reason for its decision. We affirm the trial court because the one-year statute of limitations had passed before the plaintiff filed his complaint. |
Davidson | Court of Appeals | |
Thomas David Caldwell v. Davina Kay Duke Caldwell
Thomas David Caldwell ("Father") filed a complaint for divorce from his wife of ten years, Davina Kay Duke Caldwell ("Mother"). The trial court, inter alia, awarded the parties a divorce, named Mother primary residential parent of the parties' minor child, and divided the parties' marital property. Father appeals both the custody determination and the division of marital property. We affirm. |
Bradley | Court of Appeals | |
Leslie Randolph (Walker) Brown v. Ralph Truman Brown, Jr.
The wife sued for back child support on the basis that the parties' Marital Dissolution Agreement provided for a percentage of the husband's income which had not been paid. The Trial Court refused to award back support. On appeal, we affirm the Judgment of the Trial Court. |
Hamilton | Court of Appeals | |
Kathryn Headrick v. Bradley County Memorial Hospital, et al.
In this appeal, the issue presented is whether a party has standing to pursue a personal injury claim in state court that accrued after the filing of the party’s bankruptcy petition and before the closing of the bankruptcy case. Ms. Headrick filed a Chapter 13 bankruptcy petition. While the bankruptcy case was pending, Ms. Headrick was involved in a single car accident and was treated for her injuries by Dr. Daniel Johnson at Bradley County Memorial Hospital. Subsequently, she converted her Chapter 13 bankruptcy case to a Chapter 7 bankruptcy case. While the Chapter 7 case was still pending, she discovered that she suffered a hip fracture in the car accident which she alleges that Dr. Johnson and the Hospital failed to timely diagnose and treat. Thereafter, Ms. Headrick received a discharge in bankruptcy and the bankruptcy case was closed. Ms. Headrick then filed a medical negligence case against Dr. Johnson and Bradley Memorial Hospital. The Defendants filed a motion for summary judgment asserting that Ms. Headrick did not have standing to bring the case. The trial court agreed and dismissed the case. After review of the record and applicable authorities, we hold that Ms. Headrick’s post-bankruptcy cause of action is not part of the bankruptcy estate and therefore, as a matter of law Ms. Headrick did have standing to bring the lawsuit. The trial court’s decision is reversed. |
Bradley | Court of Appeals | |
Pamela C. Lichtenwalter v. Chris Edward Lichtenwalter
This appeal illustrates the problems that befall divorcing parents when they agree, without court approval, to a child support arrangement that is inconsistent with the Child Support Guidelines. Five years after the parents' divorce, the mother filed a petition in the Circuit Court for Davidson County seeking to increase the father's child support obligation. The trial court approved a formula devised by the parties that did not comply with the Child Support Guidelines. The parties later ignored that formula and followed another ad hoc arrangement for approximately ten years. Eventually, the mother filed a petition in the trial court seeking to hold the father in contempt for failing to pay child support and to collect the arrearage. The trial court turned the matter over to a substitute judge who determined that the father was not in contempt because both parties had followed their formula to the best of their abilities even though it was ambiguous. The trial court also set the father's support for the remaining minor child and directed the father to pay $2,375 in additional support for that child. The mother appealed. We have determined that the father owes $64,529 in back child support and that the parties' three children are entitled to this arrearage. Therefore, we vacate the portion of the judgment regarding back child support and remand the case for the entry of an appropriate payment plan. |
Davidson | Court of Appeals | |
Joel T. Shuman v. Sharon Louise Alder Shuman
After the divorce where the wife was awarded alimony for two years, the wife petitioned the Court for alimony in futuro, which the Trial Court granted. On appeal, we affirm. |
Knox | Court of Appeals | |
Michael Lynn Younger v. State of Tennessee
Appellant, an inmate who was housed in a prison operated by a private prison operating company, filed a claim against the State for medical malpractice with the Claims Commission pursuant to T.C.A. § 9-8-307. The Claims Commission dismissed the claim for lack of jurisdiction because the treating physicians and staff allegedly responsible for the injuries to Appellant were not “state employees,” as defined by T.C.A. § 8-42-101(3)(A). We affirm. |
Davidson | Court of Appeals | |
Michael Sims v. Brenda Williams
The trial court found a divorced father guilty of criminal contempt and sentenced him to ninety days in jail after a hearing on the mother's petition for contempt at which the father failed to appear. We reverse because the father did not receive notice of the contempt proceedings sufficient to meet the requirements of Rule 42 of the Tennessee Rules of Criminal Procedure. |
White | Court of Appeals | |
Curtis Lee Cantrell v. Jami Lynn Cantrell
This appeal arises from a divorce case. After ten years of marriage, the husband filed a divorce complaint in the Chancery Court for Lincoln County. Even though both parties sought to be the primary residential parent prior to the trial, the court placed the children in the husband's custody after the wife attempted suicide. After conducting a bench trial, the court designated the father as the primary residential parent and granted the mother unsupervised visitation. On this appeal, the mother asserts that the trial court erred with regard to the custody of the children and the division of marital assets. She also insists that the trial court erred by holding her in criminal contempt. While we reverse the trial court's finding that the mother was in criminal contempt, we affirm the court's decisions regarding custody and the division of the marital estate. |
Lincoln | Court of Appeals | |
XL Sports, LTD. v. $1,060.000 Plus Interest Traceable to Respondent, RES, and Jerry Lawler
Following a transaction involving the sale of a business, the plaintiff filed suit against several defendants in federal court alleging causes of action grounded in federal and state law. The federal jury found some of the defendants liable, but they concluded that one of the defendants did not engage in any wrongdoing during the transaction at issue. Thereafter, the plaintiff filed suit in a Tennessee chancery court seeking to impose a constructive trust over funds held by the defendant exonerated by the jury. The defendant removed the case to the federal district court. The district court determined that the claim was barred by the doctrine of res judicata. The plaintiff appealed to the federal court of appeals, which ruled that the case was not properly removable, as it only presented a claim based upon state law. On remand to the chancery court, the defendant asserted the affirmative defenses of res judicata and collateral estoppel. The chancery court subsequently granted the plaintiff’s motion for summary judgment. The defendant appealed to this Court. We reverse the chancellor’s grant of summary judgment to the plaintiff, and we hold that the plaintiff’s claim for a constructive trust is barred by the doctrines of res judicata and collateral estoppel. Accordingly, we dismiss the case in its entirety. |
Shelby | Court of Appeals | |
Kenneth B. White v. Dr. William Bacon, et al.
Inmate filed a medical malpractice and negligence action against Defendants involved in his care following a slip-and-fall injury at the prison and Defendants involved in the maintenance of the prison. The trial court dismissed all named Defendants and inmate appeals. We affirm the decision of the trial court in all respects. |
Davidson | Court of Appeals | |
In Re Adoption of J.A.K. & K.R.K.
This is the second appeal in this proceeding to terminate a biological mother’s parental rights. On the first appeal, this court affirmed the trial court’s conclusion that the mother had abandoned the children but remanded the case to the trial court to make specific findings regarding whether the termination of the mother’s parental rights was in the children’s best interests. The trial court determined that terminating the mother’s rights would be in her children’s best interests, and the mother appealed. We have determined that the record contains clear and convincing evidence supporting the trial court’s conclusion. |
Lincoln | Court of Appeals | |
In Re Adoption of J.A.K. & K.R.K. - Concurring
The court reiterates a statement first appearing in a published opinion in Ray v. Ray, 83 S.W.3d 726, 733 (Tenn.Ct.App.2001). Quoting from In Re M.O.,173 S.W.3d 13, 18-19 (Tenn.Ct.App. 2005, the court says: |
Lincoln | Court of Appeals | |
David Helton, et al. v. Glenn Enterprises, Inc., dba Linmar Hospitality
David Helton and his wife, Charlotte Helton, brought suit against Glenn Enterprises, Inc., dba Linmar Hospitality, the operator of a Fairfield Inn in Knox County, for compensatory damages arising out of the theft of their drag racing vehicle and other personal property losses, all of which occurred while the plaintiffs were guests at the defendant's motel. At the conclusion of a jury trial, the court directed a verdict for the defendant, holding that there was no liability shown by the proof. This holding was predicated upon the fact that the parking lot where the plaintiffs parked their truck and trailer, while close to the defendant's motel, was not actually on the defendant's property. The plaintiffs appeal, arguing that the duty established by the Supreme Court in the case of McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891 (Tenn. 1996) should apply to the facts of this case. They contend that they made out a question for the jury on the McClung issue as well as on the issue of liability under the Tennessee Consumer Protection Act ("the TCPA"). We vacate the trial court's judgment on these two issues and remand for a new trial. |
Knox | Court of Appeals | |
Don Daugherty v. Sony Electronics, Inc., et al. - Concurring
I concur in the opinion authored by Judge Swiney to the extent that it affirms the trial court’s dismissal of the plaintiff’s claims based upon breach of express warranty, breach of implied warranty, unjust enrichment, and money had and received. I also concur that the plaintiff’s Tennessee Consumer Protection Act (“the TCPA”) claims are not subject to dismissal at this stage of the proceedings. I write separately to express my opinion that many of the plaintiff’s morespecific allegations pertaining to his general allegation of “unfair and/or deceptive acts or practices” under the TCPA appear to fall within the “loose general praise of wares sold” referred to in Restatement (Second) of Torts § 402B. See also Ladd v. Honda Motor Co., Ltd., 939 S.W.2d 83, 100 (Tenn. Ct. App. 1996). For example, I believe a reference to one’s product as “superior” in an advertisement or other writing is nothing more than a statement of the seller’s opinion as to the worth of its product. How does one measure whether a product is superior or not? For example, it may be superior in one aspect but not in another. If a company’s DVD player emits a sound that is rated better by independent experts when compared to the products of others; but has a lower rating in the same competition from a mechanical standpoint, should a jury be permitted to speculate as to which quality the company was touting when it referred to its product as “superior”? I think not. “Superior,” like beauty, is in the eyes of the beholder. |
Knox | Court of Appeals |
