Court of Appeals Opinions

Format: 05/23/2016
Format: 05/23/2016
Jeffery Walton v. Tennessee Department of Correction, et al.
W2015-01336-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Martha Brasfield

Appellant, an inmate at a state prison operated by a private contractor, filed the underlying pro se petition for a writ of certiorari to challenge the result of a disciplinary proceeding against him. The trial court dismissed the petition against the private contractor's employees on the ground that these employees could not impose punishment on the inmate under Tennessee Code Annotated Section 41-24-110(5) and were, thus, not proper parties to the petition. As to the Appellee Tennessee Department of Correction, the trial court dismissed the petition, finding that the board had not acted illegally, arbitrarily, or fraudulently and that the inmate had not stated a claim for violation of due process. We affirm and remand.

Hardeman County Court of Appeals 05/23/16
In re Addison P.
E2015-02102-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Jerri S. Bryant

Mother appeals the termination of her parental rights on grounds of abandonment by willful failure to visit and wanton disregard. Because the trial court entered an order during the proceedings that excluded wanton disregard as a ground and this ground was not tried by implied consent, we reverse the trial court's finding of wanton disregard. In addition, the trial court failed to make any finding that Mother's failure to visit the child was willful. Accordingly, we vacate this ground and remand to the trial court for further proceedings.

McMinn County Court of Appeals 05/20/16
Jon R. Ross v. Anna L. Rosswoods
M2015-01475-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge William R. Goodman, III

This appeal involves a post-divorce parental relocation. The mother notified the father that she intended to relocate outside of Tennessee with the parties’ minor son. The father filed a petition opposing the relocation on the grounds that it would not be in the child’s best interest; the petition was filed outside the 30-day filing period set forth in Tennessee Code Annotated section 36-6-108. The trial court excused the untimely filing of the father’s petition, reasoning that the mother waived the defense by failing to plead it as an affirmative defense. After a hearing, the court found that the mother’s proposed move would not be in the child’s best interest. The mother now appeals. We conclude that the mother was not required to raise the untimely filing as an affirmative defense. Because the father failed to file a written petition opposing the mother’s relocation within 30 days of receiving notice of her proposed relocation, the trial court erred in conducting any further analysis under Section 36-6-108. We therefore reverse the judgment of the trial court and remand this case for such further proceedings as may be necessary and consistent with this Opinion.
 

Montgomery County Court of Appeals 05/19/16
Lawrence Joseph Wilkerson, III v. Charlene Monique Wilkerson
M2014-02412-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This appeal arises from post-divorce efforts to modify a permanent parenting plan. Mother filed a petition in which she requested a modification to the permanent parenting plan. Father filed a counter-petition in which he requested to be named the primary residential parent of their children. The trial court found that Father failed to prove a material change in circumstance as necessary to change the primary residential parent designation and that Mother failed to prove a material change in circumstance as necessary to modify the permanent parenting plan. After reviewing the record, we find the evidence preponderates against the trial court’s finding that there was no material change in circumstance sufficient to modify the residential parenting schedule. Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings.
 

Montgomery County Court of Appeals 05/19/16
In Re Charles K. Jr., Et Al.
M2015-00714-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Sheila Calloway

This appeal involves the termination of a mother and father’s parental rights to their children. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of each parent’s rights on the statutory grounds of abandonment for failure to visit, abandonment based upon each parent’s conduct prior to incarceration that exhibited a wanton disregard for the children’s welfare, substantial noncompliance with the permanency plans, and the persistence of conditions which led to removal. The court further found that termination was in the best interest of the children. The parents appeal. We affirm the judgment of the trial court as modified in this opinion.
 

Davidson County Court of Appeals 05/19/16
Donna Faye Shipley Ex Rel. Frank Shipley v. Robin Williams
M2014-02279-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Health care liability action filed in November 2002 in which patient alleges that physician was negligent in failing to assess her condition, failing to provide proper medical care, failing to admit her to the hospital or refer her to another doctor, and failing to properly follow-up with her. The trial court granted summary judgment on all claims and, following an appeal to this court in which we reversed the grant of summary judgment on all claims, the Supreme Court reinstated summary judgment on the failure to admit claim and remanded the case for trial on the remaining claims. On remand, on the patient’s motion, the trial court set aside the summary judgment on the failure to admit claim, applying the “substantially different evidence” exception to the law of the case doctrine; following further discovery, the court reinstated summary judgment on that claim. After a trial, the jury found that the physician did not breach the standard of care and judgment was entered in her favor. Patient appeals, contending that the court erred in granting partial summary judgment on the failure to admit claim in 2006 and in reinstating the claim on remand; in restricting and excluding certain evidence at trial; in allowing evidence designed to shift blame from the physician to the patient and others; and in awarding sanctions against counsel for the patient. Finding no error or abuse of discretion, we affirm the judgment in all respects.
     

Davidson County Court of Appeals 05/19/16
Clean Harbors Environmental Services, Inc. v. State of Tennessee
M2014-01136-COA-R3-CV
Authoring Judge: W. Neal McBrayer
Trial Court Judge: Robert N. Hibbett, Commissioner, TN Claims Commission

This appeal arises from a contract dispute. The Tennessee Department of Environment and Conservation (“TDEC”) contracted with a third party for the collection and disposal of certain types of waste. The contract required the waste to be disposed of within the United States. TDEC claimed the contractor allowed waste to move outside the United States and, as a result of the alleged contract violation, recouped a portion of the contract payments by “short-paying.” The contractor filed a complaint with the Tennessee Claims Commission to recover the recouped payments. On cross-motions for summary judgment, the Claims Commission granted summary judgment in favor of the contractor but denied its request for pre-judgment interest. Although for purposes of summary judgment it assumed that some waste collected by the contractor left the country, the Claims Commission found such a breach by the contractor to be immaterial. TDEC and the contractor both appeal. We affirm the grant of summary judgment to the contractor, although on different grounds; we reverse the denial of pre-judgment interest. 

Court of Appeals 05/18/16
Credential Leasing Corporation of Tennessee, Inc. v Patrick L. White
E2015-01129-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jerri S. Bryant

The defendant, a practicing attorney, prepared a deed of trust for the benefit of the plaintiff lender concerning a loan made by the lender to the defendant‘s brother. The subject property was subsequently foreclosed upon by the first mortgage holder without notice to the lender. The lender later discovered that its deed of trust contained certain defects. The lender filed the instant action against the defendant, claiming that the defendant was liable for professional negligence, breach of contract, fraudulent misrepresentation, and a violation of the Tennessee Consumer Protection Act. The trial court granted summary judgment in favor of the lender on the professional negligence claim while granting summary judgment in favor of the defendant on the breach of contract claim.

Monroe County Court of Appeals 05/17/16
Jill St. John-Parker v. Virgil Duane Parker
E2014-01338-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Lawrence H. Puckett

In this divorce, the trial court's main challenge was to classify and divide corporate debentures worth over two million dollars. After considering the evidence, the trial court classified all of the debentures as marital property and awarded Wife a share equal to $450,000. After this Court granted Husband's motion to stay execution on distribution of the assets, the trial court awarded Wife temporary alimony. We have concluded that the trial court erred in its division of the debentures and in awarding attorney fees to Wife for her attorney's work regarding Husband's motion to stay execution. In all other respects, we affirm the trial court's decision.

Bradley County Court of Appeals 05/17/16
Sandra Gibson v. Young Men's Christian Association Of Middle Tennessee
M2015-01465-COA-R9-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge J. Mark Rogers

This is an appeal from an order denying summary judgment. The appellee signed a YMCA membership application and release agreement prior to tripping and falling on a sidewalk in front of the YMCA. The appellee filed suit, alleging negligence. The YMCA then filed a motion for summary judgment, claiming that the appellee expressly assumed the risk of her injuries. The trial court denied the YMCA’s motion for summary judgment but granted a motion for interlocutory appeal. We reverse the trial court’s order denying summary judgment and remand with instructions to enter summary judgment.      

Rutherford County Court of Appeals 05/16/16
Margaret McClain Sneed Wills v. David Kyle Wills
M2015-01639-COA-r3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Joe Thompson

This is an appeal of the trial court’s award of alimony. Husband appeals the trial court’s decision to award alimony in futuro as well as the amount of alimony awarded. We vacate both the trial court’s award of alimony in futuro and the amount awarded.

Sumner County Court of Appeals 05/16/16
In re Mason E., et al.
E2015-01256-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor E.G. Moody

The trial court found by clear and convincing evidence that Father had committed severe child abuse by knowingly exposing his three minor children to methamphetamine. Father appealed the trial court's decision to admit positive drug tests for the children into evidence and the trial court's finding of severe child abuse. We affirm.

Sullivan County Court of Appeals 05/16/16
In re Kaitlin W. et al.
E2015-01553-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Timothy E. Irwin

This appeal arises from a termination of parental rights. The Tennessee Department of Children‘s Services ("DCS") filed a petition in the Juvenile Court for Knox County ("the Juvenile Court") seeking to terminate the parental rights of Remus W. ("Father") to his five children ("the Children"). After a trial, the Juvenile Court found that the grounds of wanton disregard, persistent conditions, and severe child abuse had been proven against Father by clear and convincing evidence, and that termination of Father‘s parental rights was in the Children‘s best interest. Father appeals. We reverse the judgment of the Juvenile Court as to the grounds of wanton disregard and persistent conditions. We affirm the Juvenile Court as to the ground of severe child abuse and as to its best interest determination. Having reversed the Juvenile Court as to only two of the three grounds found for termination, we, therefore, affirm the judgment of the Juvenile Court terminating Father‘s parental rights.

Knox County Court of Appeals 05/16/16
Patricia Harper v. Eric Dixon Et Al.
E2015-00411-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge O. Duane Slone

This is a breach of contract action involving a residential kitchen remodeling project. The plaintiff homeowner filed a complaint against the defendant contractor and his construction company, alleging that the contractor had breached the parties' contract by failing to complete the project and walking off the job. The contractor filed a counter-complaint, alleging, inter alia, that the homeowner owed the construction company funds for work completed and reimbursement of material costs. Following a bench trial, the trial court dismissed the individual contractor as a party but found that the construction company had materially breached the contract. Setting off the amount the homeowner owed contractually from the damages determined, the court awarded a judgment to the homeowner in the amount of $3,555.40. The homeowner appeals the amount of the damages award and the set-off. She further appeals the trial court's denial of her oral motion to allow her substitution as party plaintiff in the capacity of trustee for her son, to whom she had conveyed her interest in the home in trust. Having determined that the trial court made two mathematical errors in calculating the final award to the homeowner, we modify the award to $4,055.40. We affirm the judgment in all other respects.

Sevier County Court of Appeals 05/16/16
Siamak Kadivar v. Nahid Fathiamirkhiz a/k/a Nancy Amir
M2014-02352-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Michael Binkley

This is a divorce case. Prior to the parties’ marriage, Husband started a used car dealership with his father. Husband continued to operate the business after he and his wife were married. Husband bought his father’s interest in the company after the marriage and became the sole owner. After the parties separated, the business’s value continued to increase. Husband filed for divorce, citing irreconcilable differences. The trial court granted the divorce, and the parties agreed that the business was marital property at the time of the marriage. The trial court found that Wife did not substantially contribute to the business after the parties separated and that any increase in its value was Husband’s separate property. We reverse the trial court’s finding that the business was separate property after the parties separated, modify the judgment to reflect this reversal, and affirm in all other respects.
 

Williamson County Court of Appeals 05/13/16
Karla J. Dennis, et al. v. Donelson Corporate Centre I, LP, et al.
M2015-01878-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Thomas W. Brothers

This is a negligence case. Appellee, an elevator maintenance company, contracted with building owner to provide maintenance service for the building’s elevators. Plaintiff was injured when one of the elevators allegedly did not level properly, causing her to fall as she was exiting the elevator. Plaintiff and her husband brought suit against the building’s owner, the building’s management company, and Appellee. Appellee filed a motion for summary judgment, which the trial court granted. Appellants appeal.
 

Davidson County Court of Appeals 05/13/16
Jimmie D. Gulley d/b/a Kleen-Way Disposal v. Robertson County Planning & Zoning Commission
M2015-00734-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This is a zoning dispute arising out of a trash-collection business being operated in an agricultural-residential zone. The county planning and zoning commission determined that the business did not comply with existing zoning. The business owner sought review before the board of zoning appeals and, when the board affirmed the commission’s decision, filed a petition for certiorari review in chancery court, which held that the board’s action was not arbitrary and was supported by material evidence. We affirm the judgment of the chancery court.

Robertson County Court of Appeals 05/12/16
Mark A. Grant v. Kathy H. Grant
M2014-01835-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ross H. Hicks

After a long-term marriage, the wife obtained a divorce based on the husband’s inappropriate marital conduct. The trial court determined the value of the marital property, divided the marital estate, and awarded the wife both alimony in futuro and alimony in solido. The husband appealed, arguing the court erred in valuing his ownership interests in three general partnerships, in dividing the marital estate, and in awarding the wife alimony. After reviewing the extensive record in this case, we affirm the trial court’s decision.

Montgomery County Court of Appeals 05/12/16
In re Estate of Lois Culp
M2015-01421-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Stella L. Hargrove

This case involves the distribution of assets in a testamentary trust. The decedent’s will provided for her real property to be left in a trust established for the benefit of her children and grandchildren. After the will was admitted to probate, the trustee filed a petition seeking judicial authorization to sell the property to avoid reoccurring expenses and prevent waste. One of the beneficiaries submitted a response in which he asserted that he and all of the other beneficiaries opposed selling the property. Following a hearing, the trial court entered an order in which it held that the will granted the trustee unrestricted authority to sell the property without judicial authorization if, in her best judgment, doing so would be in the beneficiaries’ best interest. The beneficiary appealed. We affirm.  

Wayne County Court of Appeals 05/12/16
Mark A. Grant v. Kathy H. Grant
M2014-01835-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ross H. Hicks

After a long-term marriage, the wife obtained a divorce based on the husband’s inappropriate marital conduct. The trial court determined the value of the marital property, divided the marital estate, and awarded the wife both alimony in futuro and alimony in solido. The husband appealed, arguing the court erred in valuing his ownership interests in three general partnerships, in dividing the marital estate, and in awarding the wife alimony. After reviewing the extensive record in this case, we affirm the trial court’s decision.

Montgomery County Court of Appeals 05/12/16
Charles Benson et al v. Knox County et al.
E2015-01357-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge William T. Ailor

This appeal arises from a zoning and land use dispute. The defendants applied to rezone most of the property at issue from Agricultural to Planned-Residential and sought approval of a development plan for a multi-dwelling project consisting of 312 apartment units. They also requested a Use-Permitted-on-Review approval for a marina on a portion of the property that would remain zoned as Agricultural. At issue before us are three separate actions taken by Knox County legislative and administrative bodies in relation to the requests, specifically: (A) the County Commission’s rezoning of the property from Agricultural to Planned-Residential at 1to 5 dwelling units per acre; (B) the Board of Zoning Appeals’ approval of the development plan for 312 apartment units; and (C) the Board of Zoning Appeals’ denial of the marina proposal. The trial court upheld the actions. We affirm.

Knox County Court of Appeals 05/12/16
Marianne Greer v. Philip Ernest Cobble
E2015-01378-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

This is the second appeal of this case involving the distribution of a marital estate. Appellant appeals the order denying him relief pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure (Rule 60.02). Because the appellate record contains no transcript or statement of the evidence conveying an accurate and complete account of what transpired as required by the Tennessee Rules of Appellate Procedure, we conclude that the findings made by the trial court were based upon sufficient evidence. Affirmed and remanded.

Knox County Court of Appeals 05/11/16
Sears, Roebuck & Co. v. Richard H. Roberts, Commissioner, Department of Revenue
M2014-02567-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen H. Lyle


This case involves a taxpayer’s claim to a sales tax deduction under Tennessee Code Annotated § 67-6-507(e) for bad debts associated with private label and co-branded credit card programs. After an audit, the Tennessee Department of Revenue disallowed taxpayer’s bad debt deductions and assessed additional tax. Taxpayer paid the assessment and filed a claim for a refund, which was denied. Taxpayer sued the Commissioner of the Department of Revenue (“Commissioner”) in chancery court, seeking a declaration that it was entitled to the bad debt sales tax deduction and a monetary judgment for the additional assessed tax. On cross-motions for summary judgment, the chancery court granted the Commissioner’s motion, holding the taxpayer was not entitled to claim the deduction. We affirm.
 

Davidson County Court of Appeals 05/11/16
In re Ian B., et al
M2015-01079-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Howard W. Wilson

Father appeals the termination of his parental rights on the grounds of abandonment. The lack of a transcript prevents us from determining whether sufficient evidence supported the termination and denies Father proper appellate consideration of his claims. We therefore vacate the judgment of the trial court and remand the case for proceedings consistent with this opinion. 

Rutherford County Court of Appeals 05/11/16
In re Jimmy B., Jr.
E2015-02070-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Jeffrey D. Rader

This is a termination of parental rights case. In May 2015, the Tennessee Department of Children’s Services (“DCS”) filed a petition in Sevier County Juvenile Court seeking to terminate the parental rights of the child’s father. The juvenile court found by clear and convincing evidence that termination was appropriate on the following grounds: (1) abandonment by willful failure to support; (2) severe child abuse; and (3) persistence of conditions. The juvenile court also found by clear and convincing evidence that termination was in the child’s best interests. Father appealed. We hold that the record does not contain clear and convincing evidence to support termination on the grounds of abandonment for willful failure to support and persistence of conditions, and we reverse as to those grounds for termination.

Sevier County Court of Appeals 05/11/16