Court of Appeals Opinions

Format: 01/27/2015
Format: 01/27/2015
In Re: Emmalee O., et al.
E2014-00261-COA-R3-JV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jon K. Blackwood

This appeal concerns an allegation of child sexual abuse against a parent. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Knox County (“the Juvenile Court”) against Alan O. (“Father”) alleging that he had sexually abused his then three year old daughter Emmalee O. (“the Child”). The Child had disclosed that Father had “poked” and “rubbed” her vagina. For his part, Father asserted that he touched the Child’s vaginal area only as part of his normal parenting duties, and that he never touched her in an inappropriate manner. After a trial, the Juvenile Court found that the Child was a victim of severe child abuse by Father. The case was appealed to the Circuit Court for Knox County (“the Trial Court”). After a new trial, the Trial Court found that the Child was a victim of severe child abuse by Father. Father appeals to this Court. We hold, inter alia, that the evidence rises to the level of clear and convincing sufficient to establish severe child abuse. We affirm the judgment of the Trial Court in its entirety.

Knox County Court of Appeals 01/27/15
Cathy C. Phipps v. William Phipps
E2014-00922-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert M. Estep

In this post-divorce appeal, the husband seeks reversal of the trial court’s classification of a certificate of deposit as marital property and the grant of alimony. We affirm the decision of the trial court.

Bradley County Court of Appeals 01/27/15
Leslie A. Muse v. Robert L. Jolley, Jr.
E2014-02462-COA-T10B-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Telford E. Forgety

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, from the trial court’s denial of a motion to recuse in a divorce proceeding. Having reviewed the petition for recusal appeal filed by the Wife, Leslie A. Muse (“Wife”), pursuant to Rule 10B of the Rules of the Tennessee Supreme Court, along with the motion to dismiss this appeal filed by Husband, Robert L. Jolley, Jr. (“Husband”), we conclude that the petition was not timely filed. Accordingly, we grant the motion, and dismiss this appeal.

Knox County Court of Appeals 01/23/15
State of Tennessee Ex Rel. Bradley County v. #'s Inc. et al.
E2014-00121-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jerri S. Bryant

This appeal stems from an action filed by the State of Tennessee ex rel. Bradley County regarding delinquent real property taxes. The property at issue was sold during a tax sale in 2006. The owners of the property at the time of the tax sale subsequently filed an action to set aside the tax sale, alleging that they were not afforded due process and were never notified of the delinquent tax action. The trial court granted summary judgment to the owners and voided the tax sale due to lack of proper notice. The party who purchased the subject property at the tax sale has appealed. Discerning no error, we affirm.

Bradley County Court of Appeals 01/23/15
Edward Faria v. Wilson & Associates, PLLC, et al
M2013-02396-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

This appeal arises from a suit by a borrower against a servicing agent and law firm to enjoin a foreclosure sale and to set aside the assignment of the deed of trust. The action was ultimately dismissed on summary judgment. The trial court found that the borrower lacked standing to enjoin the sale because he no longer had an interest in the real property subject to the foreclosure sale. The trial court also found that, to the extent the borrower’s claims sounded in fraud, they were barred by the applicable statute of limitations. We affirm the trial court’s judgment.

Davidson County Court of Appeals 01/21/15
Andrea Janoyan v. Jano Janoyan
E2013-01669-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Daryl R. Fansler

This appeal concerns entitlement to attorneys’ fees under a marital dissolution agreement after one party’s notice of rescission. Wife attempted to rescind her acceptance of the Marital Dissolution Agreement, claiming she was under duress when she entered into the contract. The trial court found that Wife was not under duress and that her attempted rescission was a breach of contract. The trial court also awarded Husband his attorney’s fees. On appeal, Wife maintains that her attempted rescission did not constitute a breach of contract and that, in any event, the amount of attorney’s fees awarded to Husband was unreasonable. We affirm the decision of the trial court.

Knox County Court of Appeals 01/21/15
In Re Cloey R. et al.
E2014-00924-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge James W. McKenzie

This is a termination of parental rights case, focusing on Cloey R. and Andrea H., the minor children (“Children”) of Leonard H. (“Father”) and Laura R. (“Mother”). The Children were taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) on July 26, 2012, upon investigation of environmental neglect and the Children’s exposure to controlled substances. On May 16, 2013, DCS filed a petition to terminate the parental rights of Father and Mother. Following a bench trial conducted on November 7, 2013, the trial court granted the petition upon its finding, by clear and convincing evidence, that (1) both parents failed to substantially comply with the reasonable responsibilities and requirements set forth in the permanency plan, (2) Father failed to legitimate Cloey R., and (3) Mother abandoned the Children by willfully failing to visit them for at least four months preceding the filing of the termination petition. The court further found, by clear and convincing evidence, that termination of both Father’s and Mother’s parental rights was in the Children’s best interest. Father has appealed. Upon careful review 1 of the record, we reverse the trial court’s termination of Father’s parental rights for two reasons: (1) no permanency plan was admitted into evidence upon which the trial court’s finding that Father failed to substantially comply with the plan could be based and (2) Father’s standing as a putative biological father precluded the application of the statutory ground of failure to legitimate a child.

Rhea County Court of Appeals 01/21/15
Maston G. Lyons, III et al. v. Fielding H. Atchley, Jr.
E2013-02342-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Lawrence H. Puckett

Maston G. Lyons, III and Linda C. Lyons (“Plaintiffs”) sued attorney Fielding H. Atchley, Jr. (“Defendant”) alleging, in part, that Defendant had breached a duty that “cost the Plaintiffs their fair and complete hearing in Lyons v. Leffew et al.,” and that the alleged breach had “costs [sic] the Plaintiffs their fiduciary interest in said case.” Both sides filed motions for summary judgment. After a hearing on the parties’ motions, the Circuit Court for Hamilton County (“the Trial Court”) granted Defendant summary judgment. Plaintiffs appeal the grant of summary judgment and the award to Defendant of attorney’s fees for defending against Plaintiffs’ Rule 11 motion for sanctions. We find and hold that Plaintiffs sustained no damage as a result of the alleged action or inaction of Defendant and, therefore, the Trial Court did not err in granting Defendant summary judgment as a matter of law. We further find and hold that the Trial Court did not abuse its discretion in awarding reasonable attorney’s fees to Defendant for opposing Plaintiffs’ Rule 11 motion for sanctions. We affirm the Trial Court’s judgment.

Hamilton County Court of Appeals 01/20/15
Alethea Dean-Hayslett, as surviving widow of Jerry Hayslett v. Methodist Healthcare, et al. - Concurring Opinion
W2014-00625-COA-R10-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert L. Childers

I concur in the result reached by the majority Opinion that the trial court erred in imposing additional restrictions on Defendants’ counsel with regard to the requested ex parte interviews in this particular case.

Shelby County Court of Appeals 01/20/15
Althea Dean-Hayslett, as Surviving Widow of Jerry Hayslett v. Methodist Healthcare, et al.
W2014-00625-COA-R10-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert L. Childers

This is a healthcare liability action. The trial court granted Defendants’ joint motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f)(1), but added several conditions not specifically provided in the statute. The trial court denied Defendants’ joint motion for permission to seek an interlocutory appeal, and we granted Defendants’ motion for an extraordinary appeal to this Court under Rule 10 of the Tennessee Rules of Appellate Procedure. We reverse in part, affirm in part, and remand for further proceedings.

Shelby County Court of Appeals 01/20/15
J. Jason Tolleson v. Tennessee Department of Commerce and Insurance, et al
M2014-00439-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Carol L. McCoy

Employee of a contractor of alarm systems applied to be registered with the Alarm Systems Contractors Board. When his application was denied, the employee filed a petition for writ of certiorari seeking review of the Board’s decision; on the Board’s motion, the trial court dismissed the petition pursuant to Tenn. R. Civ. P. 12.02(6). Finding that the petition alleges sufficient facts to establish a right to certiorari review, we reverse the judgment and remand for further proceedings.

Davidson County Court of Appeals 01/13/15
Elizabeth F. Holland v. K-VA-T Food Stores, Inc., et al.
E2013-02798-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Richard R. Vance

This is a premises liability action in which Plaintiff filed suit against Defendant for injuries she sustained as a result of a trip and fall accident in a parking lot. Defendant filed a motion for summary judgment, arguing that he owed no duty to Plaintiff and that Plaintiff was more than 50 percent at fault for her injuries. The trial court granted the motion for summary judgment and dismissed the complaint. Plaintiff appeals. We affirm.

Sevier County Court of Appeals 01/13/15
Anita Adkins et al. v. Associates of the Memorial/Mission Outpatient Surgery Center, LLC.
E2014-00790-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge L. Marie Williams

This is a health care liability action in which Defendant sought summary judgment, claiming that Plaintiffs’ expert was not qualified to render an expert opinion because she was not practicing in her field during the year preceding the date of the injury. The trial court agreed and dismissed the action. Plaintiffs appeal. We reverse the decision of the trial court.

Hamilton County Court of Appeals 01/13/15
Donna Ray v. Angela Petro
M2013-02694-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Carol Soloman

This is a breach of contract case arising from a sub-lease between a salon owner and her tenant.After Lessor terminated the Lease Contract,Lessee filed suit in general sessions court for damages. The general sessions court awarded Lessee $15,000 in damages. Lessor appealed to circuit court, which granted competing motions for summary judgment in favor of both Lessor and Lessee.  Lessee appealed. The judgment of the trial court is vacated and remanded, due to Tenn. R. Civ. P. 56.04 deficiencies in the trial court’s order.

Davidson County Court of Appeals 01/09/15
In Re: Kayla E., et al
M2014-01162-COA-R3-PT
Authoring Judge: Judge Richaed H. Dinkins
Trial Court Judge: Chancellor Jim T. Hamilton

Mother appeals the finding that termination of her parental rights to her child was in the child’s best interest. Finding no error, we affirm.

Lawrence County Court of Appeals 01/09/15
Everbank et al. v. Tommy J. Henson et al.
W2013-02489-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Walter L. Evans

EverBank, the assignee and current owner of a promissory note secured by a previously recorded second-priority deed of trust, and Mortgage Electronic Registration Systems, Inc. (“MERS”), which was identified in the second-priority deed of trust as the beneficiary of record and “nominee for Lender and Lender’s successors and assigns,” filed this action to set aside a foreclosure sale and to recover damages from the trustee acting pursuant to the first-priority deed of trust for failure to identify MERS as an interested party in the notice of the foreclosure sale as required by Tenn. Code Ann. § 35-5-104. The trial court summarily dismissed the claims against the trustee holding that the plaintiffs failed to record their interests in the property in order to put creditors or any purchasers on notice. The trial court also refused to set aside the foreclosure sale upon the ground that the plaintiffs lacked standing and that the new owners were bona fide purchasers for value; thus, the trial court found that they acquired the property free and clear of any unrecorded interests. We have determined that MERS’ interest was of record and that the trustee had an affirmative duty to identify MERS as an interested party in the notice of the foreclosure sale pursuant to Tenn. Code Ann. § 35-5-101 et seq., yet the trustee failed to do so. Accordingly, MERS is entitled to seek restitution from the trustee pursuant to Tenn. Code Ann. § 35-5-107, which provides that any person referenced in Tenn. Code Ann. § 35-5-106 who fails to comply with this chapter is “liable to the party injured by the noncompliance, for all damages resulting from the failure.” As for setting aside the foreclosure sale, although MERS has standing to bring the claim, it failed to state a claim upon which to set aside the sale, for the mere failure of a trustee to comply with the provisions of Tenn. Code Ann. § 35-5-101 et seq. is insufficient to set aside a foreclosure sale. We, therefore, affirm the dismissal of the claim to set aside the foreclosure sale, reverse the dismissal of MERS’ claim against the trustee to recover its damages, and remand for further proceedings consistent with this opinion.

Shelby County Court of Appeals 01/09/15
Lasco Inc. v. Inman Construction Corp., et al.
W2014-00802-COA-R3-CV
Authoring Judge: Presiding Judge J. Steve Stafford
Trial Court Judge: Judge Walter L. Evans

The trial court vacated an arbitration award of attorney’s fees in favor of the defendant general contractor and its surety, concluding that such award exceeded the power of the arbitrator. We reverse and remand to the trial court for the entry of an order confirming the arbitration award and a determination of the reasonable attorney’s fees of the general contractor and its surety.

Shelby County Court of Appeals 01/09/15
Myrtle Robinson, et al. v. Kenneth A. Okpor, MD, et al.
W2014-00030-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Gina C. Higgins

The trial court granted summary judgment to the Appellee medical providers on the basis of Appellant’s failure to comply with the health care liability notice provisions, expiration of the applicable statute of limitations, failure to state a claim upon which relief can be granted, and res judicata. We affirm as to the trial court’s ruling that Appellant’s claims are barred by the doctrine of res judicata.

Shelby County Court of Appeals 01/09/15
Siteworx, LLC v. J & M, Inc. et al.
E2014-00296-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Frank V. Williams, III

This appeal is from an order certified to be a final judgment pursuant to Rule 54.02 of the Rules of Civil Procedure. The order dismissed all of the claims made by the Plaintiff, SITEWORX, LLC (“SITEWORX”), against the Defendants, J & M Incorporated, Henson Construction Services, Inc., Clay Williams & Associates, Inc., Roane County, Tennessee, and Western Surety Company (“Defendants”). The order left unresolved the claims between Third-Party Plaintiff, J & M Incorporated, and Third-Party Defendant, Brian Mullins (“Mullins”). Because only Mullins appealed from the judgment and the judgment is not adverse to him, this appeal is dismissed for lack of jurisdiction.

Roane County Court of Appeals 01/09/15
Bank of New York Mellon v. Frances Hamby et al.
E2014-01952-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

The judgment from which the pro se appellants, Frances Hamby and Stephen Hamby, seek to appeal was entered on February 12, 2013. The Notice of Appeal was filed more than thirty (30) days from the date of entry of the judgment. The appellee, The Bank of New York Mellon, filed a motion to dismiss this appeal based upon the untimely filing of the Notice of Appeal. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal and grant the motion to dismiss.

Blount County Court of Appeals 01/09/15
Shelby County Government, et al. v. City of Memphis, et al.
W2014-02197-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Jim Kyle

In this accelerated interlocutory appeal from the denial of a recusal motion, the newly-elected trial court denied a recusal motion on the basis that he continued to represent one of the parties to the litigation in unrelated matters while winding down his law practice. The opposing parties filed an accelerated interlocutory appeal pursuant to Tennessee Supreme Court Rule 10B. Because this situation creates an appearance of impropriety, we reverse the judgment of the trial court.

Shelby County Court of Appeals 01/08/15
Charles W. Hendricks v. Lori A. Smith
E2014-00893-COA-R3-JV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Robert Philyaw

This appeal arises from a dispute over child custody. Charles W. Hendricks (“Father”) and Lori A. Smith (“Mother”) entered into an agreed permanent parenting plan concerning their two minor children (“the Children”). Less than two weeks after entry of the plan, Father filed a motion for custody of the Children in the Juvenile Court for Hamilton County (“the Juvenile Court”) alleging that the parenting plan had been procured by fraud as Mother had not disclosed that she worked as a licensed prostitute in Nevada. The Magistrate found a material change in circumstances and that it was in the best interest of the Children for Father to have custody. Mother appealed to the Juvenile Court. After a trial, the Juvenile Court found a material change in circumstances based on Mother’s having worked as a prostitute and her having concealed that fact, as well as Mother’s hostility to Father and the Children’s stepmother. The Juvenile Court entered a permanent parenting plan designating Father as primary residential parent of the Children. Mother appealed to this Court. Because the Juvenile Court did not conduct a best interest analysis, we vacate the judgment of the Juvenile Court and remand for further proceedings as necessary.

Hamilton County Court of Appeals 01/08/15
Mark Miller v. Annie Miller
M2014-00281-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Phillip R. Robinson

Plaintiff/Appellee Mark Andrew Miller (“Father”) filed a petition for contempt against Defendant/Appellant Annie Elizabeth Miller(“Mother”). After conducting a hearing, the trial court found Mother guilty of two counts of criminal contempt. Mother appealed asserting that the trial court lacked jurisdiction over the matter or, alternatively, that the evidence did not support a finding that she acted willfully. Although we conclude that the trialcourthad jurisdiction to adjudicate Father’s petition for contempt,we agree with Mother that the contempt convictions should be overturned. We reverse.

Davidson County Court of Appeals 01/07/15
Susan Anne Ogles v. Thomas Wayne Ogles
M2013-02215-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge L. Craig Johnson

This is an appeal from a three-day divorce trial. The trial court classified and valued the parties’ assets and divided the marital estate. The court awarded the wife $2,000 per month in transitional alimony for a period of 14 months, and it denied the parties’ requests for attorney’s fees. The wife appeals, challenging the trial court’s classification and valuation of certain assets, the alimony award, and the trial court’s decision to deny her request for attorney’s fees. Discerning no error, we affirm.

Coffee County Court of Appeals 01/07/15
Steven Rezba v. Michael Rezba
M2014-00553-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: James G. Martin, III

Father brought suit against Son in general sessions court for repayment of certain alleged debts. After Father’s case was dismissed, he appealed to circuit court, which also dismissed Father’s claims after a trial.  Based on the record on appeal, sufficient facts exist to support the trial court’s determination, and the decision of the trial court is affirmed.

Williamson County Court of Appeals 01/07/15