Court of Appeals Opinions

Format: 02/21/2017
Format: 02/21/2017
Linda Jane Parimore v. Gerald David Parimore
W2016-01188-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Martha Brasfield

Husband appeals: (1) the denial of his Rule 60.02 motion on the basis of fraud; and (2) the grant of attorney’s fees to Wife. We affirm the trial court’s denial of Husband’s Rule 60.02 motion but reverse the grant of attorney’s fees to Wife. We also decline the award of damages to Wife on appeal. Affirmed in part, reversed in part, and remanded.

Tipton County Court of Appeals 02/17/17
Pavement Restorations, Inc. v. Thomas E. Ralls, et al.
W2016-01179-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor George R. Ellis

Employee’s employment was terminated for smoking in a company truck in violation of the employer’s rule. Employee’s initial request for unemployment benefits was denied. The Appeals Tribunal affirmed the denial of benefits, but the Commissioner’s Designee later reversed, finding that employee’s conduct was exempt from the definition of misconduct and concluding that the employee was, therefore, not terminated for workrelated misconduct as defined in the unemployment compensation statutes. On appeal to the chancery court, the trial court concluded that evidence in the record supported the Commissioner’s Designee’s decision. Discerning no error, we affirm.

Court of Appeals 02/17/17
City of Church Hill v. Roger Elliott
E2016-01915-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Alex E. Pearson

Because defendant was charged and found guilty of violating a state statute, rather than a municipal ordinance, we conclude that we are without subject matter jurisdiction to consider this appeal. Therefore, we must transfer this case to the Tennessee Court of Criminal Appeals in accordance with Rule 17 of the Tennessee Rules of Appellate Procedure for further adjudication.

Hawkins County Court of Appeals 02/17/17
In Re: John J.
M2016-01136-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Sam E. Benningfield, Jr.

This is an appeal from an order terminating a Mother’s parental rights to her son. The Department of Children’s Services filed a petition to have the child declared dependent and neglected when he was observed with burn marks on his thigh and fingers. He was adjudicated to be dependent and neglected, and custody was given to the Department. A petition to terminate Mother’s parental rights was subsequently filed and, following a trial, the court held that Mother had abandoned the child by failing to visit him and by engaging in behavior which exhibited a wanton disregard for the child’s welfare; the court also determined that termination of Mother’s rights was in the child’s best interest. Mother appeals, contending that the court erred in holding that termination of her rights was in the child’s best interest. After a thorough review of the record, we affirm the judgment of the trial court in all respects.  

White County Court of Appeals 02/17/17
Reginald Davis v. City of Memphis, et al.
W2016-00967-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Walter L. Evans

This appeal involves the termination of a firefighter’s employment with the City of Memphis. The firefighter appealed his termination to the City of Memphis Civil Service Commission. He also filed a lawsuit in federal district court asserting various causes of action against the City of Memphis and other defendants. After a six-day jury trial in federal court, the jury returned a verdict in favor of the defendants. The City of Memphis then sought dismissal of the firefighter’s appeal before the Civil Service Commission based on the principles of res judicata and/or collateral estoppel. The Civil Service Commission granted the motion and dismissed the appeal. The firefighter then sought review in chancery court, and the chancery court upheld the decision of the Civil Service Commission. We reverse and remand for further proceedings.

Shelby County Court of Appeals 02/16/17
State of Tennessee Ex Rel. Tanikia Yolanda Hurt v. William George Bulls, III
E2015-02078-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Robert D. Philyaw

This case originated when the State, acting on behalf of Tanikia Yolanda Hurt (Mother), filed a petition against William George Bulls, III (Father) seeking to have him held in contempt because of his failure to pay child support. A juvenile court magistrate dismissed the State’s petition, finding that Father had paid all of his arrearage. On the day the court dismissed the petition, Mother filed a new pleading, a motion, again seeking a finding of contempt against Father. She once again alleged unpaid support in addition to other matters. This motion was also dismissed. Mother appeals. We affirm.

Hamilton County Court of Appeals 02/16/17
In Re Estate of Earsie L. Kirkman
W2016-00759-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

This case involves the disposition of several certificates of deposit that were held in joint tenancy, with right of survivorship, by Decedent and her daughter, Appellee. Appellants, beneficiaries of Decedent’s estate, argued that the certificates of deposit were probate assets. The trial court denied the objection and closed the estate, finding that the certificates of deposit passed to Appellee as the surviving joint tenant. Appellants appeal. Affirmed and remanded.

Hardin County Court of Appeals 02/15/17
James S. Schrade v. Cassandra Jean Ament Schrade
E2016-01105-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Larry Michael Warner

This appeal concerns an effort to reduce an alimony obligation. James S. Schrade (“Husband”) filed a petition for reduction of alimony in the Probate and Family Court for Cumberland County (“the Trial Court”) against ex-wife Cassandra Jean Ament Schrade (“Wife”). Husband cited changed economic conditions that rendered him unable to meet his alimony obligation without tapping into his separate property. At trial, Husband also presented proof that a rebuttable presumption arose that Wife did not need the alimony as her adult children lived with her. The Trial Court found no material change in circumstances and also declined to find that the rebuttable presumption applied. Husband appeals. Finding the language of the marital dissolution agreement (“the MDA”) unequivocal and as market fluctuations are foreseeable, we affirm the Trial Court in its finding of no material change in circumstances. However, Husband presented sufficient proof to trigger the statutory rebuttable presumption for cohabitation with third parties, and we remand to the Trial Court for a determination on that issue. We affirm, in part, and, vacate, in part, the judgment of the Trial Court, and remand for further proceedings consistent with this Opinion.

Cumberland County Court of Appeals 02/13/17
State of Tennessee v. Norman Eugene Clark
E2016-01629-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Steven W. Sword

The State of Tennessee (“the State”) attempted to divest Dateline NBC and NBCUniversal News Group of protection provided under Tenn. Code Ann. § 24-1-208, the press shield law. The Criminal Court for Knox County (“the Trial Court”) found and held that the State had failed to meet its burden under Tenn. Code Ann. § 24-1-208 and denied the State’s motion to divest. The State appeals. We find and hold that the State failed to prove by clear and convincing evidence both that “the information sought cannot reasonably be obtained by alternative means,” and that there is “a compelling and overriding public interest of the people of the state of Tennessee in the information.” Tenn. Code Ann. §§ 24-1-208(c)(2)(B) and (c)(2)(C). We affirm the judgment of the Trial Court denying the State’s motion to divest.

Knox County Court of Appeals 02/13/17
Gerald Rush, et al. v. Jackson Surgical Associates PA, et al.
W2016-01289-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kyle Atkins

This is a healthcare liability action. After sustaining injuries as a result of alleged surgical error, Appellant filed this action against the surgeon and his medical group. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121(a)(2)(E). The trial court granted the motion to dismiss, and Appellant appeals. Discerning no error, we affirm and remand.

Madison County Court of Appeals 02/13/17
Elizabeth Madeline Shelton Bewick v. Robert Kent Bewick
M2015-02009-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Senior Judge Jon Kerry Blackwood

This appeal stems from a divorce proceeding where the wife was awarded a divorce on the ground of adultery. The husband appeals and raises several issues related to the trial court’s division of the marital estate. He also challenges the trial court’s award of alimony in solido to the wife. Having reviewed the record transmitted to us on appeal, we affirm the trial court’s division of the marital estate but vacate the award of alimony and remand for further proceedings consistent with this Opinion.

Warren County Court of Appeals 02/13/17
Phyllis Arrington, Et Al. v. B.J. Broyles, Et Al.
E2016-00363-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Douglas T. Jenkins

This appeal involves the plaintiffs’ complaint for breach of common law and statutory warranties, violations of the Tennessee Consumer Protection Act, and promissory estoppel regarding the purchase of drywall that was later found defective . The plaintiffs voluntarily dismissed their claim for breach of common law and statutory warranties, while the seller sought summary judgment. Following a hearing, the trial judge recused himself before ruling on the motion for summary judgment. Thereafter, he entered an order granting partial summary judgment. The new judge then entered a final order of dismissal, confirming the grant of summary judgment and dismissing the case in its entirety. The plaintiffs appeal , claiming that remand is appropriate because not all issues were resolved by the grant of summary judgment . We agree and reverse.

Greene County Court of Appeals 02/10/17
City of Chattanooga, et al. v. Tax Year 2011 City Delinquent Real Estate Taxpayers
E2016-00025-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Pamela A. Fleenor

This appeal was filed by a purchaser who bought a parcel of real property in Hamilton County, Tennessee, at a delinquent tax sale. After the sale, the person who had owned the property at the time of the sale conveyed it to a married couple. The title agency, who assisted with the closing, the original owner, and the couple moved to redeem the property upon learning of the tax sale. The trial court granted their request, divested title from the tax sale purchaser, and vested it in the original owner. The tax sale purchaser appeals. We affirm as modified.

Hamilton County Court of Appeals 02/10/17
Rhonda Sue Watkins v. Kenneth Danny Watkins
M2016-00165-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael Binkley

This is the second appeal of this case. In the first appeal, this Court affirmed the trial court’s grant of appellee’s petition to modify child custody and child support but vacated the trial court’s judgment with respect to appellant’s petition to modify alimony for lack of findings. On remand, the trial court found that appellant failed to establish a material change in circumstances justifying an increase in the alimony award that she was already receiving. Appellant appeals. Because appellant’s brief failed to comply with the applicable rules, we dismiss her appeal in its entirety. In addition, we deny appellee’s request for attorney’s fees. 

Williamson County Court of Appeals 02/10/17
Mark George v. Shelby County Board of Education
W2016-01191-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James R. Newsom

This is a teacher tenure case. Appellant, a tenured teacher employed by Appellee Shelby County Board of Education, was fired for insubordination and conduct unbecoming. Appellant appealed the Shelby County School Board’s decision to the Chancery Court for Shelby County. In a post-trial motion, Appellee petitioned the court to consider an email notification of the board’s decision that was sent to Appellant’s attorney. Specifically, Appellee argued that the email constituted statutory notice to the Appellant so as to start the thirty-day time period for filing an appeal of the board’s decision in the trial court. Tenn. Code Ann. 49-5-513(b). The trial court denied the motion as newly discovered evidence. We conclude that the email goes directly to the question of whether the Appellant’s petition was timely so as to confer subject-matter jurisdiction on the trial court. Accordingly, the trial court erred in treating the motion as one for permission to file “newly discovered evidence.” Because the trial court applied an incorrect legal standard in ruling on the admissibility of the email evidence and did not address the question of its subject-matter jurisdiction, we vacate the trial court’s order and remand for further proceedings.

Shelby County Court of Appeals 02/08/17
Shameka Rushing v. AMISUB (SFH), Inc., et al.
W2016-01897-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert Samual Weiss

This is a premises liability case. Appellant slipped and fell in a clear liquid on the floor of the St. Francis Hospital emergency room and filed suit against the hospital. In its answer, the hospital denied liability and alleged comparative fault on the part of Appellant and its housekeeping management service, Crothall Healthcare, Inc. Appellant amended her complaint to name Crothall as a defendant. Appellees filed motions for summary judgment. The trial court granted both motions, finding that Appellant had failed to show that Appellees had actual or constructive notice of a dangerous condition. Appellant appeals. Discerning no error, we affirm the trial court’s grant of summary judgment.

Shelby County Court of Appeals 02/08/17
Nancy Lynn Hopper v. Anthony Angelo Debboli
M2016-00861-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Howard W. Wilson

Former Husband and Wife owned a business together while they were married. In a post-divorce order, the trial court decreed that the business was to be wrapped up and sold. Former Husband failed to comply with the order and Former Wife filed a motion for a temporary restraining order (“TRO”) and a petition for civil contempt. The court granted Former Wife a TRO but did not rule on the petition for contempt. Former Wife filed a motion to set a hearing on her petition for contempt two years later, and the trial court dismissed the motion as moot. Former Wife appealed, and we reverse the trial court’s judgment. We conclude that this Court lacks subject matter jurisdiction over this appeal because the trial court failed to resolve all outstanding issues in the case.

Rutherford County Court of Appeals 02/08/17
Margaret Cruce v. Memmex Inc. d/b/a Salsa Cocina Mexicana Restaurant
W2016-01167-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

In this premises liability case, the plaintiff appeals the trial court’s grant of summary judgment to the defendant property owner. Discerning no error, we affirm.

Shelby County Court of Appeals 02/07/17
Tiffine Wendalyn Gail Runions, et al. v. Jackson-Madison County General Hospital District, et al., Concur in part and Dissent in part
W2016-00901-COA-R9-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donald H. Allen

I concur in the majority opinion’s denial of West Tennessee Health Network and West Tennessee Healthcare, Inc.’s Motion to Dismiss and/or for Summary Judgment. Like the majority, I express no opinion whatsoever on whether dismissal of these two parties might be appropriate under other theories. However, I must respectfully dissent from the majority opinion’s holding that pre-suit notice was provided to the District and that amendment of Ms. Runions’ complaint was proper. The majority opinion states: “we cannot ignore the unmistakable acknowledgement from Ms. Zamata’s letter that Ms. Runions did, in fact, provide written notice of a potential claim against the District.” Herein lies my disagreement with the majority opinion.

Madison County Court of Appeals 02/07/17
Tiffine Wendalyn Gail Runions, et al. v. Jackson-Madison County General Hospital District, et al.
W2016-00901-COA-R9-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donald H. Allen

This is an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. In this health care liability action, we must determine whether the plaintiff properly complied with the pre-suit notice requirement found in Tennessee Code Annotated section 29-26-121(a)(1). The original defendants in this matter all filed a motion to dismiss and/or for summary judgment alleging that they did not provide medical treatment to the plaintiff/appellee. Subsequently, the plaintiff filed a response to the defendants' motion acknowledging that she had mistakenly identified a proper defendant in this suit. The plaintiff also filed a motion to amend her complaint attempting to remedy that mistake by substituting in the proper defendant. After both motions were heard, the trial court denied the original defendants' motion to dismiss and/or for summary judgment and granted the plaintiff/appellee's motion to amend her complaint. For the following reasons, we affirm the decision of the trial court and remand for further proceedings.

Madison County Court of Appeals 02/07/17
In Re Braylin D.
M2015-02491-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Sheila Calloway

Mother, who had been designated as the primary residential parent of her eight-year-old child, appeals an order changing the designation to the child’s Father, contending that the material change of circumstances since the entry of the original parenting plan, as found by the trial court, was not sufficient to justify the modification of custody. We have determined that the evidence does not show that the child’s well-being has been adversely affected by the difficulties the parents have encountered in complying with the parenting plan or that the modification is in the child’s best interest; accordingly, we reverse the order changing the designation of the primary residential parent. We reverse the order denying Mother’s request for attorney’s fees for services incurred in securing a judgment for back child support and remand for a determination of the amount of the award.

Davidson County Court of Appeals 02/07/17
In re Colton R.
E2016-00807-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Tammy M. Harrington

This is a termination of parental rights case. Mother and Stepfather filed a petition to terminate the parental rights of Father to the child. The trial court found that the grounds of (1) abandonment for willful failure to visit as defined by Tennessee Code Annotated section 36-1-102(1)(A)(i), (2) abandonment for willful failure to visit by an incarcerated parent as defined by Tennessee Code Annotated section 36-1-102(1)(A)(iv), and (3) abandonment based on conduct demonstrating a wanton disregard for the welfare of the child had been proven by clear and convincing evidence. The trial court also found that termination was in the best interest of the child. Father appeals. We reverse the trial court’s finding of abandonment by willful failure to visit as defined by Tennessee Code Annotated section 36-1-102(1)(A)(i) but affirm the trial court in all other respects.

Blount County Court of Appeals 02/07/17
Samuel C. Clemmons, et al v. Johnny Nesmith
M2016-01971-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael Binkley

In this accelerated interlocutory appeal, Appellants appeal from separate orders denying two motions for recusal filed in this case. After thoroughly reviewing the record on appeal, we affirm the decision of the trial court to deny the recusal motions. 

Williamson County Court of Appeals 02/06/17
Bull Market, Inc. v. Adel Elrafei
W2016-01767-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph H. Walker, III

A purchaser of property entered into an installment contract and signed a promissory note specifying the day on which monthly payments were to be made. The purchaser began making payments on different days of the months and the seller accepted these payments over a course of years. Over seven years after the contract was executed, the seller sought to declare the contract null and void because the purchaser failed to tender his payment on the day specified in the note. The trial court awarded the seller relief and granted it possession of the property. The purchaser appealed, and we reverse the trial court’s judgment. We conclude the parties modified the terms of the promissory note through their course of conduct and that the purchaser did not breach the contract.

Tipton County Court of Appeals 02/03/17
In Re: Neveah W.
W2016-00932-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Walter L. Evans

This is the second appeal in this case involving a long-running battle between foster parents and the Tennessee Department of Children’s Services (“DCS”). In 2014, DCS removed the three-year-old child at issue from her foster home of three years. In the context of this already pending termination and adoption proceeding, the chancery court held an evidentiary hearing and determined that there was insufficient evidence to justify removal and that DCS had taken steps adverse to the child’s best interest. The chancery court ordered DCS to return the child to her foster home. On extraordinary appeal, this Court determined that a trial court cannot direct the placement of a foster child within DCS legal custody, but we recognized that the trial court could remove legal custody from DCS and place custody directly with the foster parents if warranted. One week prior to the hearing on remand, DCS participated in a surrender proceeding under a separate docket number and contemporaneously obtained an order of full guardianship over the child. DCS then moved to dismiss as moot the termination, adoption, and custody petitions pending in this case because DCS, as guardian, refused to consent to an adoption by the child’s former foster parents. The child’s current foster mother attempted to intervene. After a two-day trial, the trial court dismissed the former foster parents’ petitions as moot and granted the adoption to the current foster mother, as DCS in its role as guardian would only consent to an adoption by her. The child’s guardian ad litem appeals. The former foster parents and DCS raise additional issues. We affirm in part, vacate in part, reverse in part, and remand for further proceedings.

Shelby County Court of Appeals 02/03/17