Editorial
Front Page - Friday, November 19, 2010
Case Digests: Tennesse Court of Appeals Syllabus
Michael Szemborski, et al vs. Roger Sayner
Hamilton County – The order from which the appellant Roger Sayner seeks to appeal was entered in the trial court on Aug. 18, 2010. A notice of appeal was filed with and received by the trial court clerk on Sept. 21, 2010. Because the notice of appeal was not timely filed, we lack jurisdiction of this appeal. Accordingly, this appeal is dismissed with costs taxed to the appellant.
Catherine M. Love et al vs. Doris Lakins Woods
Blount County – This case arises from the trial court’s denial of Plaintiff/Appellants’ motion to enforce a settlement agreement. Appellants, the surviving children of decedent, filed a wrongful death claim against the Appellee herein, the driver of a car involved in the accident that killed decedent.
During negotiations, Appellee/Defendant’s attorney proposed a settlement in the amount of Appellee’s insurance policy limit, which Appellee’s attorney misstated to be $100,000, when, in fact, the policy limit was $50,000. The trial court denied Appellants’ motion to enforce the $100,000 settlement, finding that the settlement was not enforceable, as it failed to contain certain material terms of the agreement.
We conclude that the trial court failed to determine whether an agency relationship existed between the Appellee’s attorney and the insurance company, and also whether the insurance company is required to be a party to this litigation. Vacated and remanded.
Beverly Angel v. Diane Nixon
Smith County – The paternal grandmother of a three-year-old child filed a petition seeking visitation pursuant to Tenn. Code Ann. § 36-6-306. The grandmother contended that the child’s mother prevented the grandmother from seeing the child following the death of the child’s father. Grandmother also contended that she had a significant existing relationship with the child and that the loss of this relationship was likely to cause severe emotional harm to the child. The trial court granted the petition and awarded the grandmother three hours of visitation every third Sunday at the grandmother’s home. The mother appealed, arguing that the trial court erred in making the award to the grandmother because the mother did not oppose visitation.
Alternatively, she argued that the proof did not support a finding that the grandmother had a significant existing relationship with the child or that the child would be severely emotionally harmed from severance of that relationship.
We affirm the trial court’s determination that the grandmother is entitled to three hours of visitation every third Sunday.
Jennifer (Pitts) Bradford vs. David Wilson Pitts
Cumberland County – The father was paying child support, became disabled and filed a Petition to suspend child support payments until his disability insurance began paying. By the time of the hearing on his Petition, his disability insurance began paying a monthly amount. The trial judge ultimately refused to lower the child support payments, finding that the father established no variance between his income before and after his disability. The father tendered his income tax return for the year when the child support obligation was set, but the trial court refused to consider this evidence. On appeal, we vacate and remand.
Quint Bourgeois vs. McCurdy and Candler, LLC, et al
Sevier County – The pertinent order in this case was entered by the trial court on Aug. 25, 2010. Therefore, the 30th day from and after the date of entry of the order was Friday, Sept. 24, 2010. The date of Sept. 24, 2010, was not a legal holiday, and there is nothing before us to indicate that it was a day when “weather or other conditions have made the office of the court clerk inaccessible.” Tenn. R. App. P. 21(a). The appellant’s notice of appeal was received and filed by the trial court clerk on Monday, Sept.r 27, 2010. As can be seen, the notice was not filed and received by the trial court clerk within 30 days of the date of entry of the order from which the appeal was taken. Accordingly, we have no jurisdiction of this appeal due to the untimely filing of the notice of appeal. Appeal dismissed.
Providence Crossings, LLC v. SC Realty Capital, L.P., SC Capital, LLC, and Smith Realty Interests, L.P
Davidson County – Purchaser of landlocked property brought action against the sellers, seeking to recover damages allegedly caused by the failure of the sellers to complete a road extension or otherwise to ensure reasonable access to the property, which had been purchased for development of multi-family rental units. The trial court granted summary judgment to the sellers, finding that the right of the purchaser to proceed with the action was extinguished when the bank that provided financing for the development of the property foreclosed on the loan secured by the property and subsequently sold the property to another entity.
The court concluded that the purchaser did not have standing to pursue the claims. Finding that a genuine issue of material fact exists as to whether the purchaser’s cause of action was included in the assets foreclosed upon, we reverse the judgment of the trial court and remand for further proceedings.
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