Court of Appeals Opinions

Format: 02/22/2018
Format: 02/22/2018
Ronald Osborne, Et Al. v. The Metropolitan Government Of Nashville And Davidson County
M2017-01090-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

A patron at a convenience center owned and operated by a metropolitan government fell and injured himself at the center. The trial court found that the metropolitan government breached its duties and was at fault for the patron’s injuries, but that the patron was also at fault in failing to notice the drainage cut that caused his fall. The trial court apportioned eighty percent of the fault to the metropolitan government and twenty percent to the patron. The metropolitan government appeals, arguing that the patron was at least fifty percent at fault. We affirm the decision of the trial court.

Davidson County Court of Appeals 02/22/18
Edward Ronny Arnold v. Burns Phillips, Commissioner Tennessee Department of Labor And Workforce Development
M2017-01103-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Russell T. Perkins

A state employee who lost his job due to a reduction-in-force was placed on administrative leave with pay and received a severance package. The Department of Labor and Workforce Development denied his claim for unemployment benefits for the period in which he received administrative leave with pay. As the employee acknowledges, he subsequently received the maximum unemployment benefits allowable for the applicable one-year period. Therefore, the employee cannot receive benefits for the contested period, which is the relief sought in this case. This case cannot provide relief to the employee, and the appeal is moot.  

Davidson County Court of Appeals 02/22/18
Gameel Mesad v. Joseph Yousef
M2016-01931-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Carol L. McCoy

Plaintiff entered into a contract with Defendant for the purchase of a convenience market, whereby Plaintiff purchased the store’s inventory and assumed the lease and other contractual obligations of the business. Three years after the sale, Plaintiff filed suit, alleging fraud, unjust enrichment, breach of contract, and violations of the Tennessee Trade Mark act of 2000, all in connection with the sale and operation of the business. Following a trial, the trial court dismissed the suit. Plaintiff appeals; we affirm the judgment.

Davidson County Court of Appeals 02/22/18
April Elaster v. Gary Massey, Jr., et al.
E2017-00020-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Don R. Ash

In this legal malpractice case, defendant-attorneys filed a motion for summary judgment alleging that they complied with the applicable standard of care. In response to the summary judgment motion, Appellant failed to offer any expert proof that
defendant-attorneys breached the applicable standard of care. Accordingly, the trial court granted summary judgment on this basis. Discerning no error, we affirm.

Hamilton County Court of Appeals 02/22/18
David Jones v. Mortgage Menders, LLC, Et Al.
M2017-01452-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Thomas W. Brothers

This appeal concerns an effort to re-assert causes of action under the Savings Statute. In July 2006, David Jones (“Plaintiff”) filed an action in the Circuit Court for Davidson County (“the Trial Court”). On February 12, 2016, Plaintiff took a voluntary non-suit. On February 2, 2017, Plaintiff filed a purported complaint (“the February 2 Document”) attempting to re-assert his original claims, which featured his typewritten name rather than his handwritten signature. Victor Hazelwood and Advantage Title & Escrow, Inc. (“Defendants”) filed a motion for summary judgment, which the Trial Court granted. Plaintiff appealed. We hold that Plaintiff’s typewritten name qualified as his signature and that his filing, while quite deficient as a piece of legal writing, was not so deficient as to render it not a complaint in the first place. We reverse the judgment of the Trial Court.

Davidson County Court of Appeals 02/21/18
Steven Santore, et al. v. Karloss Stevenson, et al.
W2017-01098-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robert L. Childers

At issue in this personal injury action is whether the trial court erred by striking the defendant’s affirmative defense that an unknown “John Doe” driver of an Averitt Express truck was comparatively at fault for the plaintiff’s injuries. Relying on Brown v. Wal- Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000) and Tenn. Code Ann. § 20-1-119, the trial court struck the affirmative defense as to John Doe and Averitt Express upon the finding that the defendant failed to sufficiently identify John Doe so that the plaintiff may serve process on John Doe. We have determined the trial court’s discretionary decision to strike the affirmative defense of comparative fault as to John Doe and Averitt Express was premature because the defendant was not afforded a reasonable opportunity to engage in pre-trial discovery to endeavor as to the identity of John Doe in sufficient detail for the plaintiff to serve process on John Doe. Therefore, we reverse and remand for further proceedings consistent with this opinion.

Shelby County Court of Appeals 02/20/18
Deborah Evans Wilhoit v. Gary Dennis Wilhoit
M2017-00740-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joe Thompson

This is a post-divorce modification of alimony case. Appellant/Husband contends that the trial court erred by not terminating his alimony in futuro and life insurance obligations. We conclude that Husband’s alimony obligation should be modified to $500 per month so that the parties can retain enough assets to continue to support themselves for a longer duration. Affirmed as modified.

Sumner County Court of Appeals 02/16/18
George Metz, Et Al. v. Metropolitan Government of Nashville And Davidson County, TN, Et Al.
M2017-00719-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This appeal arises from the dismissal of a petition for writ of certiorari to challenge two administrative decisions by the Planning Commission of the Metropolitan Government of Nashville, Davidson County, Tennessee. The petition was dismissed pursuant to a Tenn. R. Civ. P. 12.02(1) motion for lack of subject matter jurisdiction. The challenge to the first decision was dismissed because the statutory sixty-day period had run from the date the minutes approving the challenged decision had been entered. The challenge to the second decision, the Planning Commission’s decision to approve the final site plan, was deemed untimely because the challenge to a site plan must be filed within sixty days of the entry of the minutes approving the master development plan, not the final site plan, and the statutory period had run. Finding no error, we affirm.

Davidson County Court of Appeals 02/16/18
Travis Daniel Woolbright v. Lee Anna Woolbright
M2016-02420-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Amy V. Hollars

In this appeal, a father challenges the trial court’s award of equal parenting time to the child’s mother. The father contends that he should be awarded more parenting time because the majority of the statutory best interest factors weigh in his favor and he provides the child more stability. We have reviewed the record and find that the trial court did not abuse its discretion in awarding equal parenting time to the parties. 

Putnam County Court of Appeals 02/16/18
Bank of New York Mellon v. Chandra Berry
W2017-01213-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Mary L. Wagner

A bank filed a wrongful detainer warrant in general sessions court against a homeowner who defaulted on her loan, and the homeowner raised counterclaims that the foreclosure was wrongful and fraudulent. The general sessions court awarded the bank possession of the property and dismissed the homeowner’s counterclaims as barred by res judicata based on an earlier action in which the homeowner sought to prevent the foreclosure. The homeowner appealed the general sessions court’s decision, and the circuit court also dismissed the homeowner’s counterclaims based on res judicata. The homeowner appealed the circuit court’s judgment to this court, and the bank sought an award of its attorney’s fees as damages for having to defend against a frivolous appeal. We affirm the circuit court’s judgment and deny the bank’s request for an award of its fees.

Shelby County Court of Appeals 02/15/18
Robert Harvey Santee v. Stacy Lynn Santee - concurring in part and dissenting in part
E2016-02535-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Telford E. Forgerty, Jr.

I concur completely in the majority’s decisions pertaining to (1) the allocation of the parties’ debt; (2) the imputation of income to wife for the purpose of calculating child support; and (3) wife’s request for her attorney’s fees as alimony in solido. In my judgment, there is no error regarding any of these matters. I dissent, however, from the majority’s decision to award wife “rehabilitative” alimony rather than alimony in futuro. I do so because, I believe, the evidence clearly and overwhelmingly preponderates against the trial court’s “rehabilitative” decision.

Sevier County Court of Appeals 02/15/18
Robert Harvey Santee v. Stacy Lynn Santee
E2016-02535-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Telford E. Forgerty, Jr.

This appeal concerns divorce and child support matters. Robert Harvey Santee (“Husband”) sued wife Stacy Lynn Santee (“Wife”) for divorce in the Chancery Court for Sevier County (“the Trial Court”). After a trial, the Trial Court awarded Husband a divorce based upon Wife’s inappropriate marital conduct. The Trial Court divided the marital estate, awarded Wife rehabilitative alimony, and imputed income to her for child support purposes. Wife appealed to this Court, arguing that, among other things, as a stay-at-home mother in a long-term marriage, rehabilitative alimony is insufficient. Husband argues in response that he has longstanding plans to retire. We find that the Trial Court erred in imputing income to Wife for two years of child support purposes when the Trial Court also found that Wife was capable of going to school for those two years to improve her financial situation and awarded rehabilitative alimony for Wife to do exactly that. Otherwise, we affirm the judgment of the Trial Court.

Sevier County Court of Appeals 02/15/18
Estate of Mark Bentley v. Wood Byrd, et al.
W2017-00446-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Kyle Atkins

In this case, a judgment creditor pursued enforcement of a foreign judgment. Although the judgment creditor obtained a charging order against the judgment debtor’s interest in a partnership and later moved to foreclose this interest, the judgment debtor subsequently moved to dismiss the case and vacate all prior orders by alleging that he had never been properly served. The trial court denied the motion to dismiss and entered an order allowing foreclosure against the partnership interest. Despite filings by the judgment debtor highlighting the absence of personal service, the trial court ultimately left its enforcement orders undisturbed. Because we agree that the judgment debtor never received proper service incident to the judgment creditor’s attempt to enroll the foreign judgment, we vacate the trial court’s orders relating to execution.

Madison County Court of Appeals 02/15/18
In Re Nevaeh B.
W2016-01769-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Van McMahan

This is a termination of parental rights case. The trial court terminated Mother/Appellant’s parental rights on the grounds of: (1) abandonment by an incarcerated parent for willful failure to visit, willful failure to support, and wanton disregard; (2) failure to substantially comply with the requirements of the permanency plan; and (3) persistence of the conditions that led to the Child’s removal. The trial court also found, by clear and convincing evidence, that termination of Appellant’s parental rights is in the child’s best interest. Because the proof is not sufficient to establish that the child was removed from Appellant’s home, we reverse the ground of persistence of conditions. The trial court’s order is otherwise affirmed.

Chester County Court of Appeals 02/14/18
In Re Estate of James Kemmler Rogers
M2017-00602-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Stella L. Hargrove

This probate action is before this Court on appeal for the second time. Following remand from this Court subsequent to the first appeal, the trial court determined that the petitioner did have standing to file her petition for probate as a “purported creditor” of the decedent. The trial court ultimately denied the petition, however, finding “no basis for either primary or ancillary probate in Tennessee.” The trial court had also previously awarded sanctions against the petitioner and her counsel pursuant to Tennessee Rule of Civil Procedure 11. The petitioner has appealed. Discerning no error in the trial court’s denials of both primary and ancillary probate, we affirm such determinations. Although we also affirm the trial court’s imposition of Rule 11 sanctions against the petitioner and her counsel generally, we vacate the specific award granted against the petitioner personally and remand such issue to the trial court for a determination of the proper amount of sanctions to be awarded against the petitioner solely pursuant to Rule 11.02(1). We affirm the trial court’s judgment in all other respects.

Giles County Court of Appeals 02/14/18
In Re Carter K.
M2017-01507-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Kenneth R. Goble

This appeal involves a custody dispute between the unmarried parents of a minor child. Mother filed a petition in the juvenile court seeking custody of the minor child, a determination of Father’s child support arrearage, the establishment of a child support order, the entry of a permanent parenting plan, and an award of attorney’s fees. Mother also sought a temporary restraining order preventing Father from removing the child from her care, custody, and control. Following several pre-trial hearings, the case proceeded to trial. At the conclusion of the trial, the juvenile court awarded visitation to Father. Within days of the trial, Mother filed a motion to vacate the juvenile court’s ruling based on Mother’s allegation that Father had perjured himself at the trial. Following a hearing at which Father failed to appear, the juvenile court suspended Father’s visitation, and in a reversal of the its prior decision, ordered Father to pay all of Mother’s attorney’s fees incurred throughout the proceedings. Because we find that the juvenile court’s orders fail to comply with the requirements of Tennessee Rule of Civil Procedure 52.01 such that we are unable to determine the basis for the juvenile court’s decisions, we vacate the court’s orders pertaining to the establishment of a permanent parenting plan, the suspension of Father’s parenting time, and attorney’s fees, and we remand for more detailed findings of facts and conclusions of law. 

Montgomery County Court of Appeals 02/14/18
Charles Walker v. Metropolitan Government Of Nashville And Davidson County
M2016-00030-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joe P. Binkley, Jr.

Homeowner brought an action against the Metropolitan Government of Nashville and Davidson County (“Metro”) for damages to his property caused by storm water runoff under the tort theory of a temporary continuous nuisance. Homeowner alleged that each time it rained, the drainage overflow from the street caused his property to flood. Homeowner sought to compel Metro to repair or replace the broken drainage pipe on his property. The trial court granted summary judgment to Metro based on the doctrine of sovereign immunity. Finding no error, we affirm the judgment of the trial court.

Davidson County Court of Appeals 02/13/18
Bobby Reed v. Willie Kate Reed Et Al.
E2017-00273-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Douglas T. Jenkins

This appeal involves the interpretation and construction of a trust agreement. John Marion Reed and his wife Willie Kate Reed, in the process of their estate planning, executed a revocable living trust agreement. They conveyed approximately 204.61 acres of real property to the trust. Shortly thereafter, Mr. Reed died testate. The trust was the sole residual beneficiary of his will. Mrs. Reed, the successor trustee, distributed all of the real estate in the trust to herself by way of a quitclaim deed. She then terminated the trust. Bobby Reed, her son and a beneficiary of the trust, filed this action alleging that Mrs. Reed exceeded her authority under the terms of the trust agreement. He asked the trial court to order an accounting of the assets of the trust that had been distributed by Mrs. Reed since her husband’s death. He sought the return to the trust of the assets wrongfully distributed. The trial court held that Mrs. Reed did not have the authority to transfer all of the real estate in the trust. Accordingly, the court voided the quitclaim deed, and granted the requested relief of Bobby Reed. We affirm the trial court’s judgment.

Greene County Court of Appeals 02/13/18
Stephanie Diane Bramlett v. Michael Lee Bramlett
E2016-02229-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Lawrence Howard Puckett

This case involves the intent of Stephanie Diane Ellerman, formerly Bramlett, (mother) to relocate with the parties’ minor child. Mother, the primary residential parent, seeks to move from Cleveland, Tennessee to Greenville, Tennessee, a distance of approximately 160 miles. She sent notice to Michael Lee Bramlett (father) of her intent to relocate. The notice indicated that mother intended to relocate because she had remarried and intended to move into her husband’s residence. Father responded with a petition objecting to the relocation. The court entered an order allowing mother to move, finding that the move has a reasonable purpose and is not vindictive or meant to interfere with father’s coparenting time. Father appeals. We affirm. We decline mother’s request for attorney’s fees and expenses at the trial court level. In the exercise of our discretion, we do award to mother her reasonable fees and expenses on appeal.

Bradley County Court of Appeals 02/13/18
Leslie Johansen v. Leon Sharber, Et Al.
M2017-00639-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Mitchell Keith Siskin

This appeal concerns a release of liability. Leslie Johansen (“Johansen”) was a passenger in an ATV accident that resulted in the death of the driver, Lee Martin Sharber. Johansen sued Leon Sharber, Personal Representative of Lee Martin Sharber’s Estate, in the Circuit Court for Rutherford County (“the Trial Court”) alleging negligence. Johansen’s uninsured motorist carrier, GEICO Casualty Company (“GEICO”), was joined as a defendant. While the tort action was underway and without GEICO’s approval, Johansen executed a release of claim regarding the Personal Representative which was filed in the Probate Court for Rutherford County (“the Probate Court”). GEICO filed a motion for summary judgment, arguing that, as a result of the release, Johansen forfeited any recovery rights she had against GEICO. The Trial Court granted summary judgment to GEICO. Johansen appealed. We hold that the release executed by Johansen served to release GEICO from any liability arising from Johansen’s personal injury claim stemming from the ATV accident. We affirm the judgment of the Trial Court.

Rutherford County Court of Appeals 02/12/18
P. Robert Philp, Jr. v. Southeast Enterprises, LLC, Et Al.
M2016-02046-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Charles K. Smith

The tenant of office building sued the landlord, a limited liability company, and its two owners for various causes of action arising out of his eviction. Following a nine-day trial the court held that the tenant had been wrongfully evicted and his property converted, and awarded the tenant nominal damages of $1.00 for the eviction, $23,130.00 for conversion of his personal property located in the building, $5,000.00 in punitive damages, costs of $2,395.00 and pre-judgment interest of $6,224.27. The tenant appeals the awards of damages and costs, and contends that interest should be 10 percent rather than the 5.5 percent awarded. The landlord contends that the holding that the tenant was wrongfully evicted should be reversed, that the tenant was not entitled to an award of damages for conversion, and that the individual owners should not be held liable for the damage awards. Upon a thorough review of the record, we modify the award of damages for conversion of the tenant’s property and remand the case for the court to award interest from the date the property was converted; we affirm the decision to award punitive damages, vacate the amount of damages, and remand for the court to make specific findings of fact and conclusions of law relative to the appropriate factors and enter judgment accordingly; in all other respects, the judgment is affirmed.  

Wilson County Court of Appeals 02/09/18
Helen Shaw as Administrator for the Estate of John Suttle v. Lawrence B. Gross, M.D., et al.
W2017-00441-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Valerie L. Smith

The plaintiff in a health care liability action appeals the dismissal of her claim on the basis of the expiration of the statute of limitations and the failure to provide pre-suit notice compliant with Tennessee Code Annotated section 29-26-121(a)(3)(B). Because the undisputed facts in the record fail to establish that decedent was aware of the alleged misdiagnosis prior to his death, we reverse the trial court’s ruling on this issue. We also determine that the trial court failed to apply the appropriate standard or adequately explain its decision regarding the plaintiff’s alleged non-compliance with section 29-26- 121(a)(3)(B). We therefore vacate the dismissal of the complaint on this basis and remand for reconsideration in light of the appropriate standard. Reversed in part, vacated in part, and remanded.

Shelby County Court of Appeals 02/09/18
In Re: Mack E., Et Al.
E2017-01337-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Dennis "Will" Roach, II

Barbara E. (“Mother”) appeals the termination of her parental rights to the minor children Mack E., Hannah E., Amber E., Donnica B. and Barbara Jean B. (collectively “the Children”). Donald B. (“Father”) appeals the termination of his parental rights to the minor children Donnica B. and Barbara Jean B. We find and hold that the State of Tennessee Department of Children’s Services (“DCS”) proved by clear and convincing evidence that grounds existed pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1), (g)(2), and (g)(3) to terminate both Mother’s and Father’s parental rights and that it was proven by clear and convincing evidence that the termination of both Mother’s and Father’s parental rights was in the Children’s best interests. We, therefore, affirm the June 28, 2017 order of the Juvenile Court for Jefferson County (“the Juvenile Court”) terminating Mother’s and Father’s parental rights to the Children.

Jefferson County Court of Appeals 02/09/18
Quinton Clovis v. Raquel Hatter, Commissioner, Tennessee Department Of Human Services
M2017-00203-COA-R3-CV
Authoring Judge: Chief Justice D. Michael Swiney
Trial Court Judge: Chancellor William E. Young

Quinton Clovis (“Plaintiff”) appeals the February 7, 2017 order of the Chancery Court for Davidson County (“the Trial Court”) ordering, inter alia, that the Tennessee Department of Human Services (“the Department”) reinstate Plaintiff’s food stamp benefits. We find and hold that Plaintiff is not an aggrieved party, and thus, lacks standing to appeal. We, therefore, dismiss this appeal.

Davidson County Court of Appeals 02/08/18
Victoria Leanne Potts v. Timothy S. Potts
E2016-02283-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Thomas J. Wright

This appeal involves a contentious continuing dispute over visitation with the parties’ young daughter. After numerous hearings, the trial court reluctantly continued limited structured visitation to the mother. The principal issue raised on appeal is whether the trial court’s rulings were in the best interests of the child. Having carefully reviewed the voluminous record before us, we find that the evidence supports the parenting plan determination and other rulings made by the court.

Hamblen County Court of Appeals 02/08/18