Court of Appeals Opinions

Format: 12/13/2018
Format: 12/13/2018
Deborah Hart v. Memphis Light, Gas, & Water Division
W2018-00254-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Valerie L. Smith

The parties dispute whether, under Tennessee Code Annotated section 16-15-710, the applicable statute of limitations was tolled by service of process when no proof of service was returned to the court as required under Tennessee Code Annotated section 16-15-902(a). Under the holding in Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013), we conclude, as did the trial court, that Appellee’s failure to make return to the court did not, ipso facto, constitute a lack of service of process such that the statute of limitations expired. Affirmed and remanded.

Shelby County Court of Appeals 12/13/18
LaFarge North America v. Warren Mills, et al.
W2017-00431-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Mary L. Wagner

The trial court granted summary judgment in favor of Appellee, finding that the guaranty agreement Appellant executed was enforceable. At the time Appellant executed the guaranty, Choctaw II, LLC (“Choctaw”), a company of which Appellant was a member, owed approximately $275,000.00 to Appellee on an open credit line, which was guaranteed by William Carrier, another owner of Choctaw. Mr. Carrier filed bankruptcy, and Appellee closed the open credit line for lack of guaranty. In an effort to continue to purchase materials from Appellee, Appellant signed a guaranty. After Appellant signed the guaranty, Appellee sold an additional $75,000 worth of goods to Choctaw, and Choctaw paid Appellee approximately $79,000 after Appellant signed the guaranty. Appellee applied these payments to the $275,000 balance and then sought payment for the $75,000 in goods from Appellant. The trial court held that Appellee properly applied the payments to the older debt. We hold that the guaranty agreement is enforceable. However, as to the application of the payments, we hold that Appellee was required to apply the $79,000 to the debt guaranteed by Appellant. Because the payments were sufficient to pay off the $75,000 in goods, Appellant owes nothing to Appellee under the guaranty and is entitled to summary judgment. Reversed and remanded for entry of summary judgment in favor of Appellant.

Shelby County Court of Appeals 12/13/18
Nationwide Mutual Fire Insurance Company v. Memphis Light, Gas, and Water
W2017-02551-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

Plaintiff/Appellant Nationwide appeals the trial court’s grant of Defendant/Appellee’s motion to dismiss for failure to state a claim for which relief can be granted. Defendant’s motion was based on the argument that Plaintiff’s claim was time-barred pursuant to the Tennessee Governmental Tort Liability Act, and that Tennessee Code Annotated section 20-1-119 did not allow Plaintiff to timely add Defendant to the suit. Because we conclude that the trial court incorrectly applied Tennessee’s comparative fault statute, we reverse.

Shelby County Court of Appeals 12/13/18
Johnny McClain, Jr. v. Tennessee Board of Parole, Et Al.
M2018-00205-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Russell T. Perkins

This is an appeal from the dismissal of an inmate’s petition for common law writ of certiorari. The Tennessee Board of Parole denied petitioner parole, citing the seriousness of the offense, the substantial risk that petitioner would not conform to the conditions of his release, the adverse effect his release would have on institutional discipline, and his need to complete therapeutic community. Petitioner appealed the Board’s decision by petition for writ of certiorari. The petition was dismissed by the trial court, which found that the petitioner had failed to present any facts that would support a claim that the Board acted illegally, fraudulently, arbitrarily, or in excess of their jurisdiction. This appeal followed. We affirm.

Davidson County Court of Appeals 12/11/18
In Re Gaberiel S. Et Al.
M2018-00522-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Bratten H. Cook II

A father appeals the termination of his parental rights to his four children. The juvenile court found five statutory grounds for termination: (1) abandonment by willful failure to support; (2) abandonment by failure to provide a suitable home; (3) substantial noncompliance with the permanency plans; (4) persistence of conditions; and (5) failure to manifest an ability and willingness to personally assume custody or financial responsibility of the children. The court also found that termination of the father’s parental rights was in the children’s best interest. We affirm.

DeKalb County Court of Appeals 12/11/18
Dwight Mitchell v. State of Tennessee, Department of Health
M2017-02041-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

Plaintiff filed a declaratory judgment action in 2017, seeking to have the chancery court invalidate two final orders entered against him by the Tennessee Department of Health, one entered in 2008, revoking his license to operate a residential home for the aged, and the second entered in 2011, placing him on the Tennessee Abuse Registry. Upon the Department’s motion, the chancellor dismissed the action for lack of subject matter jurisdiction, for failure to timely seek review under the Administrative Procedures Act, and on the basis of res judicata. The plaintiff appeals; on our de novo review, we affirm the dismissal of the petition for failure to comply with the judicial review provisions set forth in Tennessee Code Annotated section 4-5-322.  

Davidson County Court of Appeals 12/11/18
Windell Middleton v. City of Millington, Tennessee
W2018-00338-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Jerry Stokes

The trial court granted summary judgment to defendant city on the basis of the expiration of the statute of limitations. Specifically, the trial court ruled that plaintiff’s complaint was ineffective to toll the statute of limitations where service of process on the city clerk did not comply with Rule 4.04(8) of the Tennessee Rules of Civil Procedure and process was not reissued. Discerning no error, we affirm.

Shelby County Court of Appeals 12/11/18
Mary Reynolds, As Administrator Of The Estate Of Carol Ann Reynolds, v. Gray Medical Investors, LLC., Et Al.
E2017-02403-COA-R9-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Jean A. Stanley

We granted the Tenn. R. App. P. 9 application for interlocutory appeal in this case to consider whether a healthcare provider can use Tenn. Code Ann. § 68-11-272, (“the peer review statute”), to claim privilege and exclude evidence that an employee was threatened with dismissal or retaliation if the employee refused to change their story or alter documents in order to cover up possible negligent conduct. We find and hold that the peer review privilege contained within Tenn. Code Ann. § 68-11-272 never was intended to allow a healthcare provider to attempt without fear of adverse consequences to force an employee to commit perjury. We, therefore, reverse the July 31, 2017 order of the Circuit Court for Washington County (“the Trial Court”) excluding the testimony of defendants’ employee pursuant to the peer review privilege contained in Tenn. Code Ann. § 68-11-272 and remand this case for further proceedings consistent with this Opinion.

Washington County Court of Appeals 12/11/18
In Re Eleanor Chappell Revocable Living Trust
W2017-02541-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Karen D. Webster

Decedent’s son, Appellant, sought to set aside Decedent’s trust, alleging that Decedent lacked capacity at the time she executed the trust and that Appellees, Decedent’s sister and the sister’s husband, exercised undue influence over Decedent in the execution of the trust. Appellees moved for dismissal arguing that Appellant’s lawsuit was barred by res judicata based on Appellant’s previous suit for conservatorship over Decedent. The trial court held that the elements of res judicata were not met but dismissed Appellant’s lawsuit on its finding that same was barred by the six-year statute of limitations for claims for breach of fiduciary duty under Tennessee Code Annotated section 28-3-109(a)(3). We conclude that the trial court’s conclusion as to res judicata was correct. However, because Appellant’s complaint does not state a cause of action for breach of fiduciary duty, the applicable statute of limitations is that set out in Tennessee Code Annotated section 35-15-604(a)(1), and Appellant’s lawsuit was timely filed.

Shelby County Court of Appeals 12/10/18
In Re Estate of Jimmy D. Harris
W2016-01768-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Karen D. Webster

Wife of the decedent appeals the probate court’s denial of her petition to admit a will to probate. Because we conclude that the testimony presented did not rebut the presumption of due execution created by the will’s attestation clause, we reverse.

Shelby County Court of Appeals 12/10/18
In Re Michayla T. Et Al.
M2018-00367-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge William M. Locke

A mother appeals the termination of parental rights to her two children. After investigating a report of drug exposure, the Tennessee Department of Children’s Services (“DCS”) obtained emergency temporary custody of the children. After nearly ten months, DCS petitioned to terminate the mother’s parental rights. The juvenile court found by clear and convincing evidence six statutory grounds for termination: abandonment by failure to establish a suitable home, abandonment by an incarcerated parent by willful failure to support, abandonment by wanton disregard, substantial noncompliance with the permanency plans, persistence of conditions, and failure to manifest an ability and willingness to assume custody or financial responsibility for the children. The court also found by clear and convincing evidence that termination of the mother’s parental rights was in the children’s best interest. We affirm.

Warren County Court of Appeals 12/07/18
Andrea Scott et al. v. Carlton J. Ditto et al.
E2017-01356-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

This is the second appeal of a case in which a parcel of property was sold by the City of Chattanooga at a delinquent tax sale. The property had earlier been sold at a foreclosure sale conducted by the holder of a deed of trust on the property. The successor in interest to the purchaser of the property at the foreclosure sale brought an action against the purchaser at the tax sale and others to quiet title to the property; the tax sale purchaser filed a counterclaim and cross-claim against two of the defendants. The trial court granted summary judgment to the foreclosure sale purchaser based on its determination that she was a bona fide purchaser without notice of the tax sale and that she had recorded her deed first; the court dismissed the cross-claims. The tax sale purchaser appealed and this Court affirmed the dismissal of the cross-claims and reversed the grant of summary judgment to the foreclosure sale purchaser, holding that there was a genuine issue of material fact as to whether she had notice of the tax sale purchaser’s interest in the property prior to her purchase. Upon remand, the case was tried without a jury, and the trial court ruled in favor of the foreclosure sale purchaser, holding that she was a bona fide purchaser of the property without notice of the tax sale purchaser’s claim of ownership. Tax sale purchaser appeals; finding no error, we affirm the judgment.

Hamilton County Court of Appeals 12/06/18
Jon Vazeen v. Martin Sir
M2018-00333-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Don R. Ash

Jon Vazeen (plaintiff) filed this action for legal malpractice and fraud against his former attorney, Martin Sir (defendant). Plaintiff alleged that defendant was guilty of “repeated unprofessional behavior” and the “inept and total mishandling” of his divorce case. He also alleged defendant defrauded him by “infusing several thousand dollars of fake items in his invoice” for attorney’s fees. (Underlining in original). The trial court granted defendant summary judgment on the malpractice claim because the complaint was not filed within one year of the accrual of the claim, as required by Tenn. Code Ann. § 28-3-104(c)(1)(2017). The court granted summary judgment on the fraud claim on the ground of res judicata. The court held that the fraud claim was barred by the earlier dismissal of plaintiff’s ethics complaint based upon the alleged fraud of the defendant with the Board of Professional Responsibility (the Board). We affirm the summary judgment of the trial court on the legal malpractice claim. We hold that the Board’s decision to dismiss an ethical complaint does not bar plaintiff from bringing a malpractice or fraud claim against an attorney on the ground of res judicata. Summary judgment on the fraud claim is vacated and the case is remanded for further proceedings.

Davidson County Court of Appeals 12/05/18
Stephanie Solima v. David Solima
M2017-01924-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Joseph Woodruff

This appeal involves a post-divorce custody dispute between David Solima (father) and Stephanie Solima (mother) with respect to their only child, A.J.S. Father filed a petition in the trial court seeking a modification of the then-existing permanent parenting plan. Finding that there had been a material change in circumstances, the court entered an order modifying the parenting plan. Father then filed a motion to alter or amend, which the trial court denied. Father now appeals the court’s order denying his motion. We hold that the order appealed from is not a final judgment because the trial court has not fully adjudicated the issue of child support. Accordingly, we dismiss this appeal for lack of subject matter jurisdiction and remand for further proceedings.

Williamson County Court of Appeals 12/05/18
Teresa Kocher, et al. v. Laua Bearden, et al.
W2017-02519-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Rhynette N. Hurd

This is the second appeal in this dispute involving a third party’s attempt to obtain access to a record that was sealed in the trial court pursuant to an agreed order. In the first appeal, this Court explained that judicial records are presumptively open, and the reason for sealing judicial records must be compelling. Because the trial court had not articulated any specific reasons for keeping the record sealed, we remanded for the trial court to reconsider its decision to deny the petitioner access to the record. We said, “If the trial court determines on remand that the record should remain sealed due to a compelling reason, that reason ‘is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.’” Kocher v. Bearden, 546 S.W.3d 78, 87 (Tenn. Ct. App. 2017) perm. app. denied (Tenn. Oct. 6, 2017) (quoting In re NHC-Nashville Fire Litig., 293 S.W.3d 547, 560 (Tenn. Ct. App. 2008)). Unfortunately, the trial court did not comply with these instructions on remand. After repeatedly expressing disagreement with this Court’s decision, the trial judge refused to modify the seal on the record, citing only “confidential information pertaining to the minor plaintiff.” Because both the trial court and the appellees have failed to articulate any compelling reason for maintaining the seal to the exclusion of the petitioner, we reverse the order of the trial court and remand for reassignment to a different trial judge and the entry of an order allowing the petitioner to access the sealed record.

Shelby County Court of Appeals 12/05/18
In Re R. L. Et Al.
M2017-02404-COA-R3-JV
Authoring Judge: Judge Charled D. Susano, Jr.
Trial Court Judge: Judge Ross H. Hicks

In this dependency and neglect case, the juvenile court adjudicated father’s (E.L.) six children dependent and neglected and one of the female children (R.L.) a victim of severe abuse perpetrated by father. Father appealed to the circuit court. After a de novo hearing, the circuit court entered an order holding that clear and convincing evidence exists to demonstrate that R.L. was sexually abused by father and as such was a dependent and neglected and severely abused child. The court similarly found clear and convincing evidence that father’s additional children were also dependent and neglected. Father appeals. We affirm. 

Montgomery County Court of Appeals 12/04/18
John N. Moffitt v. State of Tennessee
W2018-01108-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Roy B. Morgan, Jr.

Appellant appeals the trial court’s denial of his petition for restoration of citizenship rights under Tennessee Code Annotated section 40-29-105. Appellant contends that the trial court’s decision violates ex post facto protections by imposing a harsher sentence than that available at the time of his conviction. Discerning no error, we affirm and remand.

Henderson County Court of Appeals 12/04/18
City of Soddy Daisy, Tennessee v. Basil Marceaux
E2018-01046-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Kyle E. Hedrick

The Notice of Appeal in this case was filed with the Appellate Court Clerk on June 7, 2018, more than thirty (30) days after the April 4, 2018 date of entry of the only order in the record from which the appellant could be appealing. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

Hamilton County Court of Appeals 12/03/18
City of Chattanooga, Tennessee v. Basil Marceaux
E2018-00821-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Kyle E. Hedrick

The Notice of Appeal in this case was filed with the Appellate Court Clerk on May 7, 2018, more than thirty (30) days after the April 4, 2018 date of entry of the only order in the record from which the appellant could be appealing. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

Hamilton County Court of Appeals 12/03/18
Hamilton County Et Al. v. Tax Year 2011 Delinquent Taxpayers Et Al.
E2017-02505-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Pamela A. Fleenor

This case involves the right of redemption after a tax sale. REO Holdings, LLC (REO), purchased a parcel of real property at a delinquent tax sale. After the sale, the original property owners quitclaimed their remaining interest in the property to Basswood Revocable Land Trust (the Trust). The Trust filed a motion to redeem the property, which the trial court granted. REO appeals. We reverse.

Hamilton County Court of Appeals 12/03/18
Brianna Danielle King v. Aaron Jefferson Daily
M2017-01743-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Senior Judge William B. Acree

This appeal arises from a divorce action involving two minor children. Mother filed a complaint for divorce on the grounds of irreconcilable differences and inappropriate marital conduct. Father filed an answer and counter complaint based on Mother’s inappropriate marital conduct and adultery. As to the minor children, Father wanted to have the children vaccinated, and Mother opposed vaccinations on religious grounds. The trial court awarded the divorce to Father based on Mother’s inappropriate marital conduct and adultery. The court also designated Father as the primary residential parent and gave him sole decision-making authority for non-emergency medical decisions, which included vaccinations. On appeal, Mother contends that the court interfered with her right to exercise a religious exemption from vaccines. Mother also takes issue with the court’s decision to award the divorce to Father based on Mother’s adultery. She argues that because she had sexual relationships with other men after the parties separated, her acts do not constitute adultery. Finding no error, we affirm.

Rutherford County Court of Appeals 11/30/18
In Re Alexis S. Et Al.
M2018-00296-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Daryl Colson

This is a termination of parental rights case involving the parental rights of the mother, Lequita S. (“Mother”), to her minor children, Alexis S., Jaxon S., and Jasmine S. (collectively, “the Children”). The Children were born in 2011, 2014, and 2017, respectively, to Mother and Jerry S. (“Father”). In November 2016, the Overton County Juvenile Court (“trial court”) entered an order removing Alexis and Jaxon from the parents’ custody and placing the two children into the temporary legal custody of the Tennessee Department of Children’s Services (“DCS”). These children were immediately placed in foster care, where they remained at the time of trial. The trial court subsequently entered an order on February 15, 2017, wherein the trial court found that Alexis and Jaxon were dependent and neglected due to the parents’ drug abuse and unsuitable home. Jasmine was placed into the same foster home as her siblings following her birth in June 2017, and the trial court entered an order on October 4, 2017, finding Jasmine to be dependent and neglected. On October 19, 2017, DCS filed a petition to terminate Mother’s and Father’s parental rights to the Children. Following a bench trial, the trial court terminated Mother’s parental rights to the Children upon determining by clear and convincing evidence that (1) Mother had abandoned the Children by failing to provide a suitable home for them, (2) Mother had abandoned the Children by her willful failure to visit them, (3) Mother had demonstrated substantial noncompliance with the permanency plans, (4) Mother had committed severe child abuse against Jasmine, (5) Mother had failed to manifest an ability and willingness to personally assume custody of or financial responsibility for the Children, and (6) the conditions leading to removal still persisted and a return of custody would in all probability cause the Children to be subjected to further abuse and neglect. The trial court further found clear and convincing evidence that termination of Mother’s parental rights was in the best interest of the Children. Mother has appealed. Discerning no reversible error, we affirm.

Overton County Court of Appeals 11/30/18
Caitlin J. Groves, Et Al. v. Tennessee Department of Safety And Homeland Security
M2016-01448-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

After his vehicle was seized, the owner filed a claim and request for hearing. After the passage of thirty days following the filing of his claim, the owner moved to dismiss the forfeiture, arguing that the Tennessee Department of Safety and Homeland Security had failed to timely set his claim for a hearing. The Administrative Law Judge took the motion to dismiss under advisement, but declined to set a hearing on the merits of the forfeiture. The owner sought interlocutory review of the decision not to set a hearing on the merits, which the Commissioner ultimately denied. Shortly before the Commissioner’s decision on the interlocutory appeal, the ALJ granted the owner’s motion to dismiss and ordered the vehicle returned. The ALJ also denied the owner’s request for attorney’s fees. The owner petitioned for judicial review of the Commissioner’s decision and later amended the petition to include a request for declaratory relief. The chancery court dismissed the owner’s petition for judicial review as moot. The court also dismissed the declaratory judgment action for improper joinder of an original action with an administrative appeal. We affirm.

Davidson County Court of Appeals 11/30/18
Mary L. Miller v. Brenda S. Maples, Et Al.
E2016-00511-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jeffrey M. Atherton

Following settlor’s death, settlor’s daughters, the beneficiaries of the settlor’s trust, engaged in mediation, which resulted in a settlement agreement concerning the distribution of the trust’s assets. Before the settlement was approved by the trial court under the Tennessee Uniform Trust Act (“TUTA”), one of the daughters died, and her estate was substituted in the lawsuit. The surviving siblings then joined in an amended complaint seeking a determination concerning whether the terms of the settlement agreement violated a material purpose of the trust so as to be unenforceable under the TUTA. The deceased daughter’s estate argued for enforcement of the settlement agreement such that the estate would receive the deceased daughter’s share of the trust. The trial court granted summary judgment in favor of the estate, holding that the settlement was enforceable under the TUTA. The trial court awarded attorney’s fees and costs to the estate under the terms of the settlement. We affirm the trial court’s enforcement of the settlement but reverse its award of attorney’s fees and costs to the estate.

Hamilton County Court of Appeals 11/30/18
State, ex rel., Shem Peter Malmquist v. Danielle Nicolosi Malmquist
W2017-00893-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Dan H. Michael

In this post-divorce dispute, the mother, a California resident, asked the court to modify a Tennessee child support order. At the hearing before the magistrate, the mother agreed to a voluntary dismissal without prejudice. But later she asked the juvenile court for a rehearing. At the request of both parties, the juvenile court then directed the magistrate to hold another hearing on the mother’s motion. At the new hearing, the magistrate denied the mother’s request to testify by telephone. And, because no one present was ready to proceed, the magistrate also dismissed the notice of rehearing. On appeal, the mother argues that she was entitled to testify by telephone under the Uniform Interstate Family Support Act and the Americans with Disabilities Act. We conclude that the Uniform Interstate Family Support Act did not apply to her request to modify a Tennessee child support order. We further conclude that the record does not support her claim under the Americans with Disabilities Act. So we affirm.

Shelby County Court of Appeals 11/29/18