Court of Appeals Opinions

Format: 08/09/2020
Format: 08/09/2020
In Re: Victoria Bowling
E2007-00262-COA-R3-JV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Jon Kerry Blackwood

Defendant was cited for criminal contempt by Judge. Another Judge found defendant guilty of contempt. We affirm.

Anderson County Court of Appeals 09/25/07
Tennie Martin and Roya Mitchell, et al v. NorFolk Southern Railway Company, et al - Dissenting
E2006-01021-COA-R3-CV
Authoring Judge: Judge Charles Susano, Jr.
Trial Court Judge:

CHARLES D. SUSANO, JR., dissenting.
I start with an elementary and bedrock principle of Tennessee jurisprudence: when a party
timely files a complaint in circuit court, alleges facts making out a cause of action, and demands a
jury, that party has a constitutional right to have a jury pass upon the merits of its allegations. Tenn.
Const. Art. I, §6. (“That the right of trial by jury shall remain inviolate . . .”). I fully recognize that
a party’s jury demand and its right to pursue its alleged cause of action can be legitimately thwarted
if the party sued can demonstrate, under the rubric of Tenn. R. Civ. P. 56, that it is entitled to
summary judgment. Hence, if the material facts pertaining to a defense are not in dispute and if
those facts show conclusively that the defendant is entitled to a judgment, the plaintiff loses its
constitutional right to a jury trial, its case is over, and the defendant goes away with summary
judgment.

Anderson County Court of Appeals 07/06/07
Tennie Martin and Roya Mitchell, Co-Personal Representatives of the Estate of Kathryn Martin, deceased, and Tennie Martin and Roy A. Mitchell, et al v. NorFolk Southern Railway Company, et al
E2006-01021-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Circuit Judge Donald R. Elledge

Decedent’s vehicle was struck by defendants’ train at a railroad crossing, resulting in decedent’s death. The Trial Court granted Defendants’ Summary Judgment. The Estate has appealed. We affirm the Trial Court’s Judgment.

Anderson County Court of Appeals 07/06/07
Mark Cowan v. Kim Hatmaker, In Re: BC, D.O.B 4/15/93, Minor Child Under Eighteen (18) years of age
E2005-01433-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor William E. Lantrip

The father filed a Petition to Change Custody of child from the mother to the father, alleging change of circumstances. Following trial, the Trial Court refused to order a change of custody, but modified the Parenting Plan. On appeal, we affirm.

Anderson County Court of Appeals 03/03/06
Mark Cowan v. Kim Hatmaker - Concurring
E2005-01433-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor William E. Lantrip

I agree with the results reached by the trial court – including the award of attorney’s fees – as affirmed by the majority opinion. I write separately to express my disagreement with the appellant’s belief and the majority’s belief that the trial court did not find a change in circumstances warranting a change in the custodial arrangement. I recognize that the trial court did not find a change in circumstances warranting a change in the identity of the primary residential parent. However, I believe the trial court did find that the circumstances regarding the child’s custodial arrangement had changed so as to “affect[] the child’s well-being in a meaningful way,” Blair v. Badenhope, 77 S.W.3d 137, 150 (Tenn. 2002); and that it then proceeded to (1) modify the existing parenting plan by transferring decision-making authority regarding the educational/extracurricular activities of the child from the father to the mother and (2) grant the mother the right to obtain a second opinion as to medical matters.

Anderson County Court of Appeals 03/03/06
M.D. v. R.L.H.
E2005-00324-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Pat Hess

M.D. ("Mother") filed a petition seeking to terminate the parental rights of R.L.H. ("Father") to the parties' seven year old son. Following a hearing, the Juvenile Court held that grounds for terminating Father's parental rights had been established by clear and convincing evidence. However, the Juvenile Court made no factual findings or conclusions of law as to whether terminating Father's parental rights was in the best interest of the child. The judgment of the Juvenile Court is affirmed in part, vacated in part, and remanded for further proceedings.

Anderson County Court of Appeals 11/22/05
Laschinski T. Emerson v. Oak Ridge Research, Inc. a/k/a Oak Ridge Realty Holding, Inc. and Nathaniel Revis - Concurring and Dissenting
E2004-01974-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge James B. Scott, Jr.

I find it necessary to dissent, respectfully, as to two parts of the majority’s Opinion.  I concur with the majority’s Opinion except as further expressed herein.

Anderson County Court of Appeals 10/05/05
Laschinski T. Emerson v. Oak Ridge Research, Inc. a/k/a Oak Ridge Realty Holding, Inc. and Nathaniel Revis
E2004-01974-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge James B. Scott, Jr.

Plaintiff sued defendants for sexual harassment, assault and battery and retaliatory discharge. A jury returned a verdict for various damages, as well as punitive damages. The Trial Judge, acting as 13th juror, essentially approved the jury’s verdict, but reduced the punitive damages from $500,000.00 to $150,000.00, and awarded plaintiff attorney’s fees in the amount of $282,964.50, as well as discretionary costs. On appeal, we affirm in part, vacate in part and remand with instructions.

Anderson County Court of Appeals 10/05/05
City of Oak Ridge v. Diana Ruth Brown
E2004-01574-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge James B. Scott, Jr.

Diana Ruth Brown ("the defendant") was stopped by a City of Oak Ridge police officer and cited for speeding. Following an adverse decision in municipal court, the defendant appealed to the trial court. The trial court ruled that the defendant could not pursue, in the trial court, her assertion and defense that the posted speed limit of 45 mph was not legally established. Subsequently, that court found her guilty of speeding and imposed its judgment. The defendant appeals. Both sides raise issues. We vacate and remand for further proceedings.

Anderson County Court of Appeals 08/18/05
Earl A. Crow, III v. Daniel R. LeDoux, et al.
E2004-01640-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge James B. Scott, Jr.

Earl A. Crow, III, brought this action against his landlords, Daniel R. LeDoux and wife, Katherine Marie LeDoux (collectively "the defendants"), for injuries sustained by him in a fall caused by an allegedly defective heating grill in his apartment. The defendants filed a motion for summary judgment, arguing, inter alia, that the plaintiff's knowledge of the condition of the grill was at least co-extensive with that of the defendants, and that, as a consequence of this fact, no liability attached. The trial court agreed and granted the defendants' motion. The plaintiff appeals. We vacate the trial court's grant of summary judgment and remand for further proceedings.

Anderson County Court of Appeals 05/17/05
John William Thomas v. Norma E. Pino-Rutkowski
E2004-01324-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge James B. Scott, Jr.

This is an appeal from a jury verdict in favor of John William Thomas ("Plaintiff") in the amount of $190,095, of which $53,295 was for relocation expenses and increased rent. Plaintiff was injured when he was struck by a vehicle driven by Norma E. Pino-Rutkowski ("Defendant") while Defendant was backing out of a parking space. Due to his poor eyesight, Plaintiff does not have a driver's license and has to walk to work. Plaintiff claimed he was required to move much closer to work because he could no longer walk as far as he could before being injured. Plaintiff sought as part of his damages his relocation expenses and the $300 in his increased monthly rent. Defendant claims on appeal that Plaintiff was required to specifically plead these damages and because he failed to do so, that portion of the jury's verdict cannot stand. Defendant also claims the Trial Court erred when it allowed Plaintiff's granddaughter to testify and when it told the jury that "although the law in Tennessee may require insurance, you are not to consider the presence of insurance in this case." We agree with Defendant, and we vacate the judgment in its entirety and remand for a new trial.

Anderson County Court of Appeals 03/29/05
State of Tennessee, Department of Children's Services v. RDV
E2004-01216-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Patricia R. Hess

In this action to terminate father's parental rights, the Trial Court refused to appoint counsel for father, despite his claim of indigence. On appeal, we vacate the Judgment and remand for further hearing on the issue of indigency.

Anderson County Court of Appeals 03/17/05
Gary Montgomery v. Sonja K. Schedin
E2003-02600-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge James B. Scott, Jr.

Gary Robert Montgomery ("Plaintiff") and Sonja K. Schedin ("Defendant") were engaged to be married. After the engagement ended, Plaintiff filed a Writ of Possession in the General Sessions Court claiming Defendant refused to allow him to retrieve his personal property. At issue in the General Sessions Court was who was entitled to a boat and trailer, an ATV, an engagement ring, a trailer, and a 1998 Chevy pick-up truck. Plaintiff claimed Defendant bought the ATV for him as a gift, and that she also gave him $13,500 as a gift to buy the truck. After the General Sessions Court entered its judgment concluding, among other things, that the money was loaned to Plaintiff and was not a gift, Plaintiff appealed to the Circuit Court. The Circuit Court likewise concluded the money was loaned to Plaintiff and was not a gift. Plaintiff appeals. We modify the judgment of the Circuit Court and affirm the judgment as modified.

Anderson County Court of Appeals 10/05/04