Court of Appeals Opinions

Format: 04/23/2018
Format: 04/23/2018
Cheri Owens Tuncay v. Engin Halif Tuncay - Concurring
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Chancellor D. J. Alissandratos

This is a divorce case. Plaintiff-appellant Cheri Owens Tuncay was granted a divorce on the ground of inappropriate marital conduct. Mrs. Tuncay appeals the trial court’s division of the marital debts as well as the court’s failure to award her alimony beyond $5,000 in attorney fees.

Shelby County Court of Appeals 02/09/98
Homebound Medical Care of Southeast Tennessee, Inc., v. Hospital Staffing Services of Tennessee, Inc. Jeanine Warren, Nancy Hyde, AllCare Professional Svcs., and Stella Messer
Authoring Judge: Judge Don T. McMurray
Trial Court Judge: Chancellor Howard N. Peoples

This is an action whereby the plaintiff seeks to enforce a convenant not to compete in an employment agreement between the defendant, Warren, and the plaintiff. The defendants moved for summary judgment. The motion did not set out any grounds for relief but simply stated that defendants "file this motion for Summary Judgment, pursuant to Rule 56 of the Tennesse Rules of Civil Procedure" and referred the court to grounds stated in their briefs in support of themotion. The brief is not included in the record. Apparently, the parties did not make a designation of record and the Clerk of the court correctly omitted the brief pursuant to Rule 24, Tennessee rulesof Appellate Procedure.

Court of Appeals 02/06/98
Citizens For Collierville, Inc., A Tennessee Corporation, v. Town of Collierville, et al.
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Neal Small

Plaintiff/Appellant, Citizens for Collierville (“CFC”) appeals from the order of the 2 Chancery Court of Shelby County, Tennessee, which declared valid the decision of the Board of Mayor and Aldermen of the Town of Collierville approving of Resolution 96-35 with respect to the application of Baptist Memorial Hospital (“BMH”) for a planned development pursuant to the Town of Collierville’s zoning ordinance. For reasons stated hereinafter, we affirm the judgment of the trial court.

Shelby County Court of Appeals 02/06/98
Gina Franklin et al., v. Allied Signal, Inc.
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Whit A. Lafon

This appeal involves a suit filed by plaintiffs, Gina (“Mrs. Franklin”) and Barnee Franklin (“the Franklins”), against defendant, Allied Signal, Inc. (“Allied”), for personal injuries sustained when Mrs. Franklin tripped and fell on Allied’s premises on a metal loading ramp which protruded above the dock floor by one to two inches. The trial court granted Allied’s motion for summary judgment. The Franklins appeal and pose the following issues for our consideration: (1) whether the trial court committed error in granting the defendant’s motion for summary judgment; and (2) whether the “open and obvious rule” bars plaintiff’s recovery or is only a factor to be considered in assessing comparative negligence. For reasons stated hereafter, we reverse the judgment of the trial court and remand.

Madison County Court of Appeals 02/06/98
Wilma Jean Lampley, v. Gordon Ray Lampley
Authoring Judge: Presiding Judge Henry F. Todd
Trial Court Judge: Judge H. Denmark Bell

This is a post-divorce decree proceeding in which the defendant husband has appealed from an unsatisfactory disposition of his counter petition to terminate alimony.

Williamson County Court of Appeals 02/06/98
William Jeffrey Tarkington, v. Rebecca Juanita Tarkington
Authoring Judge: Presiding Judge Henry F. Todd
Trial Court Judge: Judge Muriel Robinson

The husband, William Jeffrey Tarkington, has appealed from a judgment of the Trial Court finding him and his wife, Rebecca Juanita Tarkington, guilty of inappropriate marital conduct and declaring them to be divorced pursuant to TCA § 36-4-129.

Davidson County Court of Appeals 02/06/98
JoAnne Pollock v. Donnie F. Pollock
Authoring Judge: Presiding Judge Henry F. Todd
Trial Court Judge: Judge Robert L. Jones

The defendant, Donnie F. Pollock, has appealed from the judgment of the Trial Court awarding the plaintiff a divorce on grounds of adultery and inappropriate marital conduct, awarding plaintiff, $8,000.00 alimony in solido and $500.00 per month alimony until she reaches 65 years or one of the parties dies; ordering defendant to pay $2,400.00 of plaintiff’s attorneys fees, and distributing the marital estate and liability for debts.

Lawrence County Court of Appeals 02/06/98
Rickye D. Anderson v. Lois L. Anderson
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Robert E. Corlew, III

Rickye D. Anderson (the Father) appeals the trial court’s order denying his petition to reduce his child support payments to his ex-wife, L. Lois Anderson (the Mother), and ordering him to pay a portion of the Mother’s attorney’s fees. We affirm.

Rutherford County Court of Appeals 02/06/98
Joey Brown, as next friend and natural guardian of Mitchell W. Brown, v. Walmart Discount Cities
Authoring Judge: Judge Ben H., Cantrell
Trial Court Judge: Judge Jim T. Hamilton

In this slip and fall case in which a child slipped on some ice cubes in the vestibule of a large department store, the jury returned a verdict for the plaintiff but attributed 70 % of the fault to the unknown person who placed or dropped the ice on the floor. Ruling on a post-trial motion, the trial judge held that the store’s fault was 100% because the plaintiff could not sue the unknown tortfeasor. On appeal, the defendant asserts that there is no evidence to support the verdict and that the trial judge erred in modifying the jury’s verdict with respect to the degree of fault. We find that there is evidence from which the jury could have found that the store was negligent and that the store cannot attribute part of the fault to the unknown tortfeasor. We, therefore, affirm the lower court’s judgment.

Lawrence County Court of Appeals 02/06/98
Roger Perry and Doris Perry, v. Donald Van Hise and Josephine Van Hise, Individually and D/B/A Van Hise Construction Company
Authoring Judge: Presiding Judge Henry F. Todd
Trial Court Judge: Judge Charles D. Haston, Sr.

This appeal involves the construction of a home. Plaintiffs engaged one of the defendants, Donald Van Hise, (hereafter, the defendant) to construct a home on their property. On May 24, 1994, defendant signed a proposal to construct the house, reserving the right to withdraw the proposal within 30 days, if not accepted by plaintiff. One of the plaintiffs signed an acceptance of the proposal. The other did not. On June 25, 1994, defendant tendered another proposal on different terms, which proposal was accepted by both plaintiffs. The second proposal contained an estimated time of completion of 3-1/2 - 4-1/2 months. Both proposals contained a base contract price subject to revision for changes during construction. Both contracts refer to “plans and specifications” but the record contains no plan and only a partial set of specifications. The plans and specifications were not specifically prepared for plaintiffs, but were “generic,” that is, sold on the general market, to be altered as desired; and alterations were made, producing part of the present controversy. Promptly after the second proposal was accepted.

Court of Appeals 02/06/98
State of Tennessee, Department of Human Services, v. Sylvia Fetterolf Ford, and Stanley Fetterolf
Authoring Judge:
Trial Court Judge: Judge Ben H. Cantrell

The State of Tennessee filed a petition to rehear in the above styled case on November 24, 1997. The State contends this court should rehear the case pursuant to Rule 39 of the Tennessee Rules of Appellate Procedure. Specifically, it contends our decision 1) conflicts with existing case law, 2) conflicts with a principle of law, and 3) overlooks a material fact upon which the parties were not heard. It is the opinion of this court that the motion is not well taken and, therefore, should be denied.

Putnam County Court of Appeals 02/06/98
Manuel Branch, Jr., v. Rodney McCroskey and Governor John Sevier Memorial Association
Authoring Judge: Judge Don T. McMurray
Trial Court Judge: Judge Dale Workman

In this action, the appellant (plaintiff) sought a recovery for damages sustained to his pickup truck, lost earnings and related expenses caused by a collision between his vehicle and a horse belonging to the defendant, Rodney McCroskey. The accident occurred in the plaintiff's lane of travel on a public road, generally referred to as the Governor John Sevier HIghway. The defendant, Rodney McCroskey, filed a cross-claim against the defendant, Governor John Sevier Memorial Association. He, owever, was permitted to take a voluntary non-suit. The case was tried before a jury and resulted in a verdict for the appelles (defendants) in the original action. Judgment for the defendants was duly entered on the verdict. The plaintiff filed a motion for a judgment notwithstanding the verdict (JNOV) or in the alternative for a new trial. The motion was overruled and this appeal resulted. We affimr the judgment of the trial court.

Knox County Court of Appeals 02/05/98
Steve Payne v. Jan Savell, C.S.J. Travel, Inc., and Carleen Stephens
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Dale Young

Steve Payne (“Payne”), a stockholder and former employee of CSJ Travel, Inc. (“CSJ”), sued CSJ and the corporation’s other stockholders, Jan Savell (“Savell”) and Carleen Stephens (“Stephens”)1, seeking damages for the defendants’ alleged breach of a contract to repurchase Payne’s CSJ stock. Payne’s action was filed in the Blount County General Sessions Court at a time when earlier litigation between Payne and CSJ in the Blount County Chancery Court was pending on appeal to this court. In the instant action, the defendants allowed a default judgment to be taken against them and thereafter appealed to the Blount County Circuit Court for a de novo trial. The Circuit Court denied the defendants’ joint motion for summary judgment, and instead granted summary judgment in favor of Payne and against CSJ for $6,666.64. Payne then filed a notice of voluntary dismissal of his suit against Savell and Stephens. The defendants appealed, arguing, among other things, that the Circuit Court erred in failing to grant them summary judgment, and erred in granting Payne a money judgment against CSJ.

Blount County Court of Appeals 02/05/98