TN Court of Appeals

FERRYL THERESITA McCLAIN v. RICHARD PERRY McCLAIN

This is a post-divorce child custody action involving two children, who were sixteen and seventeen years of age at the time of the most recent trial. The parties were divorced by order of the Sullivan County Law Court (“divorce court”) in July 2001. Concomitant with the divorce decree, the divorce court entered a permanent parenting plan designating the father as the primary residential parent.

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Attorney 1: 

Lois B. Shults-Davis, Erwin, Tennessee, for the appellant, Richard Perry McClain.

Attorney 2: 

Ronald D. Tuech, Mountain Home, Tennessee, for the appellee, Ferryl Theresita McClain.

Judge: 
FRIERSON

JERRY ALAN THIGPEN v. TROUSDALE COUNTY HIGHWAY DEPARTMENT, ET AL.

Jerry Thigpen sued the Trousdale County Highway Department and two individuals, alleging damage to his home caused by roadway resurfacing. The trial court dismissed the lawsuit, concluding that the claims were barred by the Tennessee Governmental Tort Liability Act (“GTLA”). We affirm.

Attorney 1: 

Jerry Alan Thigpen, Hartsville, Tennessee, pro se appellant.

Attorney 2: 

W. Carl Spining, Nashville, Tennessee, for the appellees, Randy Summers, Bill Scruggs, and the Trousdale County Highway Department.

Judge: 
MCBRAYER

IN RE HALLEY M.

Jerome V. and Teresa V. (“Petitioners”) appeal the May 26, 2015 order of the Circuit Court for Sumner County (“the Trial Court”) dismissing their Petition for Adoption and Termination of Parental Rights (“the Petition”) based upon Tenn. Code Ann. § 36-1-119. We find and hold that Petitioners have shown good cause why the Petition should not be dismissed, and we vacate the Trial Court’s May 26, 2015 order, reinstate the Petition, and remand this case for further proceedings.

Attorney 1: 

Patti B. Garner, Gallatin, Tennessee, for the appellants, Jerome V. and Teresa V.

Attorney 2: 

Bruce N. Oldham, Gallatin, Tennessee, for the appellee, Jeremy M.

James B. Hawkins, Gallatin, Tennessee, Guardian ad Litem.

Judge: 
SWINEY

MARTIN E. HUGHES v. TENNESSEE DEPARTMENT OF CORRECTION ET AL.

The plaintiff, an inmate proceeding self-represented, filed a “Petition for Declaratory Judgment” (“Petition”) on June 24, 2016, alleging that the Hardeman County Correctional Facility (“HCCF”) staff had failed to follow numerous policies established by the Tennessee Department of Correction (“TDOC”). In conjunction with the Petition, the plaintiff filed a motion seeking a temporary restraining order and a preliminary injunction.

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Attorney 1: 

Martin E. Hughes, Whiteville, Tennessee, Pro Se.

Attorney 2: 

Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; and Eric A. Fuller, Assistant Attorney General, for the appellees, Tony Parker, Commissioner of the Department of Correction, and Donnelle Peterson.

Judge: 
FRIERSON

BRITTANY NICOLE VANDYKE v. BROOKE E. FOULK, M.D., ET AL.

This is a medical malpractice action in which the plaintiff filed suit against the hospital and her physicians following the death of her newborn son hours after his delivery. The case proceeded to a jury trial. The jury found in favor of the defendants. Following the denial of post-trial motions, the plaintiff appeals, claiming the trial court erred in excluding testimony and when it gave a jury instruction on the sudden emergency doctrine. We reverse and remand for a new trial.

Attorney 1: 

Mark T. Hurt, Abingdon, Virginia, for the appellant, Brittany Nicole VanDyke.

Attorney 2: 

Charles T. Herndon, IV, Elizabeth M. Hutton, and Stephanie E. Stuart, Johnson City, Tennessee, for the appellees, Medical Education Assistance Corporation, Brooke Elliott Foulk, M.D., and Howard Ernest Herrell, M.D.

Frank H. Anderson, Jr., Johnson City, Tennessee, for the appellee, Mountain States Health Alliance d/b/a Johnson City Medical Center.

Judge: 
MCCLARTY

SHAY SIMPSON, ET AL. v. NATIONAL FITNESS CENTER, INC., ET AL.

This appeal arises from a lawsuit filed by plaintiffs Shay and Brian Simpson (“the Simpsons,” collectively, or “Ms.” or “Mr. Simpson,” respectively) against defendants National Fitness Center, Inc. and National Fitness Center, LLC (“National Fitness,” collectively). Ms. Simpson and National Fitness orally contracted to allow the Simpsons “a couple of weeks” additional time to consider whether to cancel their club membership. After more than two weeks elapsed, the Simpsons elected to cancel but National Fitness refused to accept the cancellation.

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Attorney 1: 

Stanley F. Roden, Knoxville, Tennessee, for the appellants, National Fitness Center, Inc., and National Fitness Center, LLC.

Attorney 2: 

Katherine Sanford Goodner and Brady C. Cody, Knoxville, Tennessee, for the appellees, Shay Simpson and Brian Simpson.

Judge: 
SWINEY

JIMMY NEWELL v. RICHARD MONTGOMERY, ET AL.

The petitioner sought a writ of certiorari seeking redress for the respondents’ failure to schedule an initial parole hearing prior to his release eligibility date. The trial court dismissed the petition as moot, finding that a parole hearing was conducted following the filing of the petition and that any challenge relating to the parole hearing was untimely. The petitioner appeals. We affirm.

Attorney 1: 

Jimmy Newell, Hartsville, Tennessee, Pro Se.

Attorney 2: 

Herbert H. Slatery, III, Attorney General and Reporter, and Andrée S. Blumstein, Solicitor General, Nashville, Tennessee, for the appellees, the Tennessee Board of Parole; the Tennessee Department of Correction; Richard Montgomery, Chairman of the Tennessee Board of Parole; and Derrick Schofield, Commissioner of the Tennessee Department of Correction.

Judge: 
MCCLARTY

KEVIN J. MAMON V. GEICO INDEMNITY INSURANCE COMPANY, ET AL.

Plaintiff appeals the dismissal of his claims against all three defendants and the award of $400 to defendant Master Muffler on its counterclaim following a bench trial. We affirm the trial court in all respects.

Attorney 1: 

Kevin J. Mamon, Michigan City, Indiana, pro se.

Attorney 2: 

Joshua G. Offutt and Jennifer P. Ogletree, Nashville, Tennessee, for the appellee, Master Muffler.

Judge: 
CLEMENT

IN RE LEYNA A.

The parents of a minor child filed a petition to change the first and middle names of their child but not the surname. The trial court denied the petition without a hearing on the ground: “The Petition fails to state a valid reason for the name change, especially in light of the fact that Petitioners seek to change someone else’s name.” The parents filed a motion to alter or amend the judgment.

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Attorney 1: 

Elizabeth Noel Sitgreaves and Thomas H. Castelli, Nashville, Tennessee, for the appellants, Mark and Lynda A.

Judge: 
CLEMENT

IN RE ESTATE OF CHRISTINA MARIE COTTEN

The personal representative, on behalf of the decedent’s estate, brought this negligence action against the defendant based, inter alia, on the defendant’s alleged acts of displaying and failing to properly store and prevent accessibility to the firearm with which the decedent ultimately committed suicide. The trial court granted summary judgment in favor of the defendant, determining that he owed no duty of care to the decedent and that her suicide was an independent, intervening cause that broke the chain of causation. The estate has appealed.

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Attorney 1: 

H. Douglas Nichol, Knoxville, Tennessee, and John Chadwick Long, Gallatin, Tennessee, for the appellant, Benjamin Shea Cotten, as Personal Representative of the Estate of Christina Marie Cotten.

Attorney 2: 

Christopher M. Jones and Britney K. Pope, Nashville, Tennessee, for the appellee, Dr. Jerry Scott Wilson.

Judge: 
FRIERSON