03/27/08 IN RE ADOPTION OF M. D. W., JR. MARY ANNE MARCIANTE v. WILLIAM HAROLD PERRY STATE OF TENNESSEE ex rel, PEGGY DOREEN (HUNN) FLATT v. JERRY KEITH FLATT |
03/04/2008
SANDRA YEVETTE TURNER, as next friend, next of kin, natural mother, and personal representative of JESSICA JOVAN TURNER, deceased v. STERILTEK, INC., THE VANDERBILT UNIVERSITY d/b/a VANDERBILT UNIVERSITY MEDICAL CENTER, HERBERT S. SCHWARTZ, M.D., ED GLENN, M.D., and JOHN/JANE DOE CORRECTION Court: TCA This appeal involves negligence and medical malpractice. The defendant corporation does off-site sterilization of surgical instruments for the defendant medical center. On July 12, 2002, the defendant physicians were performing surgery on the plaintiff's daughter at the defendant medical center, using instruments sterilized by the defendant corporation. During the surgery, an agent of the corporation informed the physicians that some of the instruments they were using might be contaminated. After receiving this information, the physicians stopped the surgery before it was completed. As a result, the plaintiff's daughter had to return to the medical center at a later date, at which time the defendant physicians successfully completed the necessary surgical procedure. The plaintiff filed this lawsuit against the corporation, the medical center, and the physicians, seeking damages for alleged negligence and medical malpractice. The defendants filed motions for summary judgment supported by expert affidavits. The trial court granted the defendants' motions for summary judgment on all claims. The plaintiff appeals. We affirm in part and reverse in part. We affirm the trial court's grant of summary judgment as to the plaintiff's claims against both of the defendant physicians and, accordingly, as to the plaintiff's claim that the defendant medical center is vicariously liable for the actions of the physicians. We also affirm the grant of summary judgment as to the plaintiff's claim against the defendant corporation for failure to provide sterilized instruments and batteries, and as to the plaintiff's claim as a third-party beneficiary to the contract between the corporation and the medical center. As to the remaining claims against the corporation and the medical center, we reverse the trial court's grant of summary judgment. http://www.tba2.org/tba_files/TCA/2008/turners_Corr_030408.pdf 03/04/2008 CHRISTINA JO BERTUCA v. THEODORE JOSEPH BERTUCA This is an appeal from a divorce action filed by Christina Jo Bertuca against her husband, Theodore Joseph Bertuca. The divorce was granted on June 23, 2005, but the trial court reserved the issue of a division of marital assets. That matter was tried in February, 2006. While the hearing related to a variety of assets, most of the evidence presented related to the value of the husband's ninety percent ownership in Capital Food Services, a Tennessee general partnership that was engaged in the ownership and operation of seven McDonald's franchises located in Wilson County, Tennessee. The trial court determined the value of Capital Food Services had increased by $1,000,000 above the amount paid for the restaurants. The value of Mr. Bertuca's interest had, therefore, increased by $900,000 and half that amount was awarded to Ms. Bertuca. Mr. Bertuca has appealed challenging the conclusions reached by the trial court. Ms. Bertuca has appealed from the judgment of the trial court allowing Mr. Bertuca to pay the sum awarded in eighty-four equal monthly installments without interest and asserting she is entitled to her attorneys' fees on appeal. Having carefully reviewed the record, we affirm the judgment of the trial but modify the increase in value of Capital Food Services to $780,768 and Ms. Bertuca's award to $350,345.50, payable as ordered by the trial court. http://www.tba2.org/tba_files/TCA/2008/bertucac_Revised_030408.pdf 11/28/2007 LAWRENCE LEVINE ET AL. v. RON MARCH ET AL. Court: TCA This appeal involves a dispute over the personal property of a wife who was murdered by her husband. Following their appointment as conservators of her property, the wife's parents filed suit in the Circuit Court for Davidson County against their son-in-law and certain members of his family seeking to recover their daughter's personal property. Following a three-day trial, the jury returned a $222,449.10 verdict for the parents against the husband's brother, sister, and brother-in-law. On this appeal, the husband's family members take issue with the denial of their motion for directed verdict based on the statute of limitations, the failure to join the original conservator as a necessary party, the admissibility of certain evidence, and the jury instructions. We have determined that the trial court did not commit error during the trial and, therefore, affirm the judgment. http://www.tba2.org/tba_files/TCA/2007/levinel_112807.pdf 11/28/2007 IN RE: ADOPTION OF M.P.J., dob 1/29/02 Court: TCA This is a case involving the termination of a father's parental rights. The Department of Children's Services instituted a dependent and neglect proceeding and the court granted a protective order removing the minor child from the mother's home. At the time, the father's whereabouts were unknown. The child, almost seven months old, was placed in the temporary custody of her great- aunt. The father subsequently began serving a 56 month sentence in federal prison. When the child was almost five years old, the great-aunt petitioned the court for the termination of both the mother and the father's parental rights and for the adoption of the child. The mother joined in the petition. After a termination hearing, the court announced that the father had abandoned the child, that his rights were terminated, and granted the great-aunt's petition for adoption. The court first entered an order of adoption, but had yet to enter the order terminating the father's parental rights. The court then issued an order of termination, but failed to include any findings of fact. Next, the court issued an amended order of termination with specific findings of fact, nunc pro tunc to the termination hearing date. Father appeals, arguing (1) that the trial court failed to make findings of fact; (2) that there is not clear and convincing proof of abandonment; (3) that the Department of Children's Services did not afford him a reasonable opportunity to reunite with the child; and (4) that substantial harm to the child must be proven before a court may constitutionally terminate a parent's rights. We affirm. http://www.tba2.org/tba_files/TCA/2007/inreadoptionofMPJ_112807.pdf 11/28/2007 WILLIAM EDWARD HARGROVE v. MERRIELLEN HARGROVE a/k/a MERRIELLEN WARSTLER Court: TCA This is a post-divorce case involving disputes over obligations in the Marital Dissolution Agreement and modification of the visitation schedule contained in the permanent parenting plan. Husband filed for divorce from Wife, and on August 25, 1998, the chancery court entered a final decree of divorce that incorporated the Marital Dissolution Agreement. The permanent parenting plan was filed on February 12, 2004. Concerning Husband and Wife's minor son, born January 7, 1990, the residential schedule in the permanent parenting plan provided that Husband would be the primary residential parent and Wife would be responsible for the child every other weekend and during certain holidays. As to property division, the Marital Dissolution Agreement required Husband to transfer one-half of his pension plan to Wife. Concerning the marital home, Wife agreed to execute a quitclaim deed to Husband conveying her interest to Husband simultaneously with Husband paying her $15,000. After a contempt hearing, the court modified the parenting schedule; found that Wife was entitled to one-half of Husband's pension, but not one-half of Husband's annuity; and found that Husband had satisfied the $15,000 obligation. Wife appeals pro se, arguing that the modification of the residential schedule found in the parenting plan is void because the court did not follow Tenn. Code Ann. section 36-6-405(a). Wife also argues that the parties' intent was that she was to receive half the annuity along with half the pension. Finally, Wife contends that Husband did not meet his burden of proof to establish the defense of accord and satisfaction. We affirm. http://www.tba2.org/tba_files/TCA/2007/hargrovew_112807.pdf |