Tennessee Administrative Office of the Courts

In this case involving serious injuries sustained in a collision between a school bus and a pickup truck, the evidence preponderates against the trial court’s findings. We must, therefore, reverse the trial court’s judgment in favor of the plaintiffs.
 

I must respectfully dissent in part from the majority opinion in this case. In the majority opinion, the majority states the issue raised by the Board of Zoning Appeals (“BZA”) as: “Whether the trial court erred in holding that the Dyer County Zoning Resolution does not require an applicant seeking a variance to have a written lease.” In a footnote, the majority observes that the appellate record contained “no such finding by the circuit court.” Instead of leaving it at that, the majority goes on to “construe the BZA’s argument as ‘Whether the Resolution requires an applicant seeking a variance to possess a valid lease.’ ”

Diane Benson and the Northwest Tennessee Shooting Sports Association filed requests for variances to devote property to a Use Permitted on Appeal within a Forestry-Agricultural-
Residential-District in Dyersburg. Mrs. Benson’s request was tabled, but the NTSSA’s request was ultimately granted. Mrs. Benson, along with two others, filed a petition for writ of certiorari and for declaratory judgment. Appellees filed motions to dismiss, which the trial court granted. We affirm the trial court’s dismissal of the declaratory judgment action and we affirm the trial court’s dismissal of Mary Kruger and Kurt Kruger’s petition for writ of certiorari. However, we reverse the trial court’s grant of summary judgment as to Mrs. Benson’s claim that the BZA acted illegally, arbitrarily or capriciously, and the case is remanded for further proceedings consistent with this opinion.

In reaching its conclusion that the plaintiff’s payment of $211.50 satisfied the requirements of Tennessee Code Annotated section 27-5-103 for appealing a case from general sessions court to circuit court, the majority relies upon the recent case of Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013). Because I believe Bernatsky is based upon a flawed premise, I respectfully dissent.

This case involves the bond requirements for an appeal from General Sessions Court to Circuit Court. The plaintiff sued the defendant for damages in General Sessions Court, and a judgment was entered in favor of the defendant. The plaintiff sought a de novo appeal to Circuit Court. Within ten days of the General Sessions Court judgment, the plaintiff filed a notice of appeal and paid $211.50 to the General Sessions Court clerk, pursuant to T.C.A. § 8-21-401(b)(1)(C)(i). The plaintiff did not file any further bond at that time. The plaintiff’s uninsured motorist insurance carrier filed a motion to dismiss, asserting that the Circuit Court lacked subject-matter jurisdiction over the case because the plaintiff had not complied with the appeal-bond requirement in T.C.A. § 27-5-103. The trial court granted the motion to dismiss on that basis. The plaintiff now appeals. We reverse the Circuit Court’s dismissal of the appeal from General Sessions Court in light of our recent decision in Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013), and remand for further proceedings.

The guardian ad litem for the minor child Krissa E. M. L. (“the Child”) filed a petition in the Juvenile Court for Sevier County (“the Juvenile Court”) seeking to terminate the parental rights of Lanesha L. (“Mother”) to the Child. The State of Tennessee Department of Children’s Services (“DCS”), which already had been involved with the Child’s case through dependency and neglect proceedings, was named in the petition and supported the prosecution of the petition. After a trial, the Juvenile Court terminated Mother’s parental rights to the Child after finding that grounds for termination pursuant to Tenn. Code Ann. §§ 36-1-113 (g)(1), (g)(2), and (g)(3), had been proven by clear and convincing evidence, and that clear and convincing evidence had been shown that it was in the Child’s best interest for Mother’s parental rights to be terminated.  We affirm.

Plaintiff appeals the dismissal of her complaint to recover for personal injuries sustained in a fall at the Davidson County Correctional Development Center. Finding no error, we affirm.

A subcontractor on a large project in Texas sued the general contractor claiming the general contractor breached an agreement the parties made regarding claims both had against the owner of the Texas project. The parties agreed the subcontractor would be entitled to a pro rata share of the settlement or judgment amount if the subcontractor’s claims were not itemized. The settlement agreement between the general contractor and the owner did not include an itemization of the subcontractor’s claims. The subcontractor had been given a prepayment of its claim against the owner in the amount of $300,000, and applying this to the subcontractor’s pro rata share, the general contractor determined the subcontractor was not entitled to anything more. The trial court deducted the $300,000 from the subcontractor’s claim and awarded the subcontractor its pro rata share of the difference. Both the subcontractor and general contractor appealed, the subcontractor claiming it was not awarded enough and the general contractor claiming the subcontractor was awarded too much. We reverse the trial court’s award and hold the $300,000 the subcontractor received as a prepayment was more than it was entitled to pursuant to the terms of the parties’ agreement. Accordingly, the contractor did not breach its agreement, and the subcontractor was not entitled to any damages.
 

The mother of the minor child at issue appeals the termination of her parental rights. The juvenile court found several grounds for terminating the mother’s parental rights and that termination was in the best interest of the child. We affirm the termination of the mother’s parental rights.

This is a dependency and neglect case focusing on Jaycee W. (“the Child”), the minor daughter of Ellie H. (“Mother”) and Jerry W. (“Father”). At age five weeks, the Child suffered a suspicious broken leg. Further examination revealed multiple other broken bones. The Department of Children’s Services (“DCS”) immediately took the Child into protective custody and filed a dependency and neglect petition alleging that the Child was severely abused in the custody of her parents. Following an adjudicatory hearing, the juvenile court found that the Child was dependent and neglected and that both parents had committed severe child abuse. Both appealed to the trial court. Following a trial de novo, the trial court made the same findings. Mother appeals the trial court’s finding that she is guilty of severe child abuse. We affirm.

This case involves an alleged agreement about funds distributed from a reopened estate. The decedent father died years ago, leaving three daughters and an estranged wife. The father’s estate was probated and closed. Long afterward, the petitioner daughter discovered unclaimed funds in the father’s name held by the State. Another daughter, the executrix of the father’s estate, reopened the father’s estate. Finding no claims against the estate, the probate court distributed the funds to the executrix, in accordance with the father’s will, and closed the estate. The daughter who discovered the unclaimed funds filed the instant petition in chancery court, asserting that the sisters had agreed that the funds would be split among them in accordance with their mother’s will. Based on the probate court’s adjudication of the father’s reopened estate, the chancery court granted summary judgment in favor of the executrix daughter, holding that res judicata barred the chancery court action. We affirm the grant of summary judgment as to allegations in the chancery court petition that the probate court should have distributed the funds differently. We reverse the grant of summary judgment as to the remainder of the chancery court petition, finding that the petition also asserts claims based on an alleged separate oral agreement among the sisters, and hold that the respondent executrix sister has not conclusively established the defense of res judicata as to these remaining claims.

Appellant appeals the trial court’s grant of summary judgment to the Appellee uninsured motorist carrier for failure to properly and timely serve the alleged tortfeasor. After a careful review of the record, we affirm.