Court of Appeals Opinions

Format: 08/27/2014
Format: 08/27/2014
Jeremiah David Hawk v. Erika Leigh Hawk (Ricker)
E2013-02458-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jon Kerry Blackwood

This post-divorce appeal concerns a parenting plan that provided for equal time between the Parents, who subsequently filed competing petitions to modify, claiming that a material change in circumstances necessitated a change in the parenting plan. The trial court found that a change in circumstances had not yet occurred but awarded Mother approximately 12.5 days of additional parenting time after deciding that the Child should attend school in Mother’s county. Father appeals. We affirm the trial court’s decision.

Greene County Court of Appeals 08/26/14
Edwin Dennison, et al. v. Glenna Overton
E2013-02290-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge David R. Duggan

Edwin Dennison, Kaye Dennison, Joel Campbell, and Christine Campbell (“Plaintiffs”) sued attorney Glenna Overton (“Defendant”) for legal malpractice. Defendant filed a motion for summary judgment alleging that Plaintiffs’ claim was barred by the statute of limitations and that Defendant’s actions were not the proximate cause of any loss to Plaintiffs. After a hearing, the Circuit Court for Blount County (“the Trial Court”) granted Defendant summary judgment after finding and holding, inter alia, that Plaintiffs had notice of the alleged negligence and the fact that Plaintiffs had suffered an injury by August of 2009 and, therefore, the suit filed on September 21, 2010 was barred by the applicable one year statute of limitations. Plaintiffs appeal to this Court raising issues regarding whether the Trial Court erred in finding their suit barred by the statute of limitations and whether the Trial Court erred in finding that Plaintiffs could not prove that Defendant’s actions were the proximate cause of any loss to Plaintiffs. We find and hold, as did the Trial Court, that Plaintiffs were on notice of the alleged negligence and loss in August of 2009 and that their suit, therefore, was barred by the statute of limitations. We affirm the Trial Court’s judgment.

Blount County Court of Appeals 08/25/14
Kenneth D. Hardy v. Tennessee State of Tennessee
M2013-02103-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Carol Soloman

Former police officer at Tennessee State University filed suit against the university, the Tennessee Board of Regents, and the chief of the university police department under the Tennessee Human Rights Act,the Tennessee Public Protection Act,and Title VIIof the Civil Rights Act of 1964. The trial court granted the defendants’ motion for summary judgment and former officer appeals. We vacate the order granting summaryjudgment and remand the case for further proceedings.

Davidson County Court of Appeals 08/22/14
Middle TN Rehabilitation Hospital, LLC. v. Health Services & Development Agency, et al.
M2013-02180-COA-R3-CV
Authoring Judge: Special Judge Amy V. Hollars
Trial Court Judge: Judge Russell T. Perkins

This appeal arises from a petition for judicial review of the Tennessee Health Services and Development Agency’s decision to deny one and grant the other of two competing applications for a certificate of need to establish a rehabilitation hospital. Discerning no error, we affirm the chancery court’s order upholding the agency’s decision.

Davidson County Court of Appeals 08/22/14
Theresa R. Francis v. Robert A. Francis, Jr.
M2013-01957-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Michael R. Jones

Wife appeals the trial court’s division of property and denial of an award of alimony in this divorce action. We affirm.

Montgomery County Court of Appeals 08/22/14
William D. Stalker, et al. v. David R. Nutter, et al.
M2013-02463-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Tom E. Gray

In this non-jury case, builders of a home appeal the dismissal of their breach of contract claim against the prospective buyers, the court’s determination that the builders breached the construction and sale agreement, and the order awarding the earnest money deposit to the buyers. Finding no error, we affirm the trial court’s judgment.

Sumner County Court of Appeals 08/21/14
Shirley M. Cartwright v. Tennessee Farmers Mutual Insurance Company
M2013-02019-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Stella L. Hargrove

Shirley M. Cartwright (“Plaintiff”) sued Tennessee Farmers Mutual Insurance Company (“Defendant”) alleging breach of a contract of insurance. Defendant filed a motion for summary judgment. After a hearing, the Circuit Court for Maury County (“the Trial Court”) entered an order finding and holding, inter alia, that Plaintiff’s response to Defendant’s motion was untimely and would not be considered and that Defendant was entitled to summary judgment. Plaintiff appeals raising issues regarding whether the Trial Court erred in finding her response untimely, whether the Trial Court erred in granting Defendant summary judgment, and whether the Trial Court erred in denying two other motions filed by Plaintiff. We find and hold that Plaintiff’s response to Defendant’s motion for summary judgment was filed timely. We, therefore, reverse the Trial Court’s decision finding Plaintiff’s response untimely and refusing to consider it. As it was error to refuse to consider Plaintiff’s response to Defendant’s motion for summary judgment, we vacate the grant of summary judgment to Defendant and the Trial Court’s denial of Plaintiff’s motions and remand this case to the Trial Court for further proceedings consistent with this Opinion.

Maury County Court of Appeals 08/21/14
Dorah Elizabeth Johnson v. Jeffrey Walter Johnson
W2013-02248-COA-R3-CV
Authoring Judge: Judge Paul G. Summers
Trial Court Judge: Judge George R. Ellis

This appeal stems from a divorce proceeding and child support modification. On appeal, the appellant husband challenges several decisions made by the trial court after it had entered an order purporting to be the final decree of divorce. Because prior orders reserved issues not addressed in this divorce decree, we find this divorce decree was not a final order, and thus, subject to revision by later orders. Consequently, we find the trial court had jurisdiction and did not abuse its discretion in later revising awards contained in the non-final divorce decree and affirm the later changes in part. Additionally, in a later order purporting to modify the child support award, we find the trial court failed to properly make findings of facts and conclusions of law in compliance with Rule 52.01 of the Tennessee Rules of Civil Procedure and remand in part on this issue.

Crockett County Court of Appeals 08/21/14
First Community Bank, N.A. v. First Tennessee Bank, N.A., et al.
E2012-01422-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Wheeler A. Rosenbalm

Plaintiff brought this action against Defendants for fraud, constructive fraud, negligent misrepresentation, civil conspiracy, unjust enrichment, and violation of the Tennessee Securities Act, codified at Tennessee Code Annotated section 48-1-101, et seq. The claims arose out of the purchase of asset-backed securities that were later deemed unmarketable, causing a significant financial loss to Plaintiff. Defendants filed motions to dismiss pursuant to Rule 12.02(6), arguing that the claims were untimely, that Plaintiff failed to plead its claims with particularity, and that the losses were caused by general market conditions. Nonresident Defendants also objected to the court’s personal jurisdiction. The trial court dismissed the complaint. Plaintiff appealed the dismissal to this court, and we affirmed the
dismissal against Nonresident Defendants for lack of personal jurisdiction but reversed the dismissal for failure to state a claim as to the remaining defendants. In so holding, this court found that consideration of matters outside the pleadings pertaining to the running of the statute of limitations converted the motions to dismiss into one for summary judgment, thereby requiring remand of the entire case for further discovery. The remaining defendants filed an application for permission to appeal. The Tennessee Supreme Court granted the application and remanded the case for “consideration of the trial court’s alternative basis of dismissal of [the] complaint, i.e., the failure to state a cause of action or state a claim for which relief can be granted (other than on the basis of the running of the applicable statutes
of limitations or repose).” Upon remand, we reverse the decision of the trial court.

Knox County Court of Appeals 08/20/14
In Re Aireona H.W.
E2014-00241-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert D. Philyaw

This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate Mother’s parental rights to the Child. The trial court found that clear and convincing evidence existed to support the termination of Mother’s parental rights on several statutory grounds and that termination of her rights was in the Child’s best interest. Mother appeals. We affirm the decision of the trial court.

Hamilton County Court of Appeals 08/20/14
Ram Tool & Supply Co., Inc. Et Al. v. HD Supply Construction Supply, LTD. d/b/a Whit Cap Construction Supply, Robert Maples and Tim Pruitt
M2016-02264-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Joseph Binkley, Jr.

The parties in this case are competitors. The defendant company opened a branch in Nashville and began competing with the plaintiff; the defendant company hired employees away from the plaintiff and it allegedly worked with a now-former employee of the plaintiff to obtain plaintiff’s confidential information.  The plaintiff filed suit alleging, among other things, breach of the fiduciary duty of loyalty by unlawfully recruiting, aiding and abetting such breach,and conspiracyto unlawfully recruit. The trial court granted summary judgment in favor of the defendants,finding the plaintiff’s claims preempted by the Tennessee Uniform Trade Secrets Act (“TUTSA”). We affirm in part and reverse in part and we remand for further proceedings. Specifically, we find preempted by TUTSA, Ram Tool’s common law breach of fiduciary duty/loyalty claim–and its derivative claims–insofar as they are based upon the misappropriation of trade secrets. However, we find Ram Tool’s common law breach of fiduciary duty/loyalty claim–and its derivative claims–insofar as they are not grounded in the misappropriation of trade secrets, are not preempted by TUTSA; summary judgment was improperly granted as to these claims.

Davidson County Court of Appeals 08/19/14
Daniel Cohen v. Julie Didier (Cohen)
M2013-01370-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Phillip Robinson

This appeal involves the execution of documents in furtherance of the property division in a divorce decree. The parties were divorced many years ago. To carry out the property division, the final decree of divorce ordered the parties to execute copyright assignments. Twenty-five years later, the ex-husband filed this action to compel the ex-wife to execute the copyright assignments. The ex-wife argued that the action was barred by the ten-year statute of limitations applicable to an action on a judgment. Relying on Jordan v. Jordan, 147 S.W.3d 255 (Tenn. Ct. App. 2004), the trial court held that execution of the documents was a ministerial act to effectuate the property division in the divorce decree and was not execution on a judgment, so the action was not barred by the statute of limitations. After the ex-wife still failed to execute the copyright assignment documents, the trial court designated the clerk of the court to act for the ex-wife to execute them, pursuant to Tenn. R. Civ. P. 70. The ex-wife appeals. Discerning no error, we affirm.

Davidson County Court of Appeals 08/19/14
In Re: Joel B.
M2012-00590-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Alfred L. Nations

Juvenile court entered a default order against mother of minor child declaring the parentage of father and ordering a permanent parenting plan. We have determined that this order is void due to improper notice. We have further determined that the juvenile court erred in ordering the attachment of the minor child, who was living with mother in California.

Maury County Court of Appeals 08/18/14
John Wesley Green v. Champs-Elysees, Inc., et al.
M2013-00951-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Philip E. Smith

This appeal arises from a post-judgment discovery dispute. While the plaintiff’s prior appeal from the trial court’s judgment was pending in this court, the plaintiff made a discovery request in the trial court seeking to obtain alleged ex parte communications pertaining to the plaintiff’s attorney, the plaintiff, or the case. The trial court conducted a hearing and entered an order denying the discovery request; this appeal followed.  We have determined that the trial court lacked subject matter jurisdiction to rule on the plaintiff’s discovery requests; therefore, the order at issue in this appeal is void. Further, this court’s ruling in the prior appeal, which resolved all issues in the underlying case, is now a final judgment. The underlying case is concluded and, thus, no further proceedings are available other than the assessment and collection of costs.

Davidson County Court of Appeals 08/15/14
William E. Kantz, Jr. v. Herman C. Bell et al.
M2013-00582-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Carol Soloman

This dispute concerns a contract for the sale of real property. Believing the seller was impairing the buyer’s ability to close on time in order to sell the property under contract to someone else, the buyer filed this action to enjoin the seller from transferring the property to another and to require the seller to provide documentation necessary to close. The buyer also asserted claims for specific performance of the contract, breach of contract, and conspiracy against the seller, as well as claims for tortious interference with the contract and conspiracy against another defendant. The trial court found that the seller’s discussions with another potential buyer were merely to have a “back-up plan” in the event the buyer did not close; nevertheless, the court granted injunctive relief by extending the deadline to close the sale by thirty days and enjoined the seller from selling the property to another in the interim. One week later, the sale closed. The plaintiff then amended its complaint to limit its claims to breach of contract against the seller, and tortious interference with a contract and conspiracy against the seller and the party alleged to have tortiously interfered with the contract. The defendants filed motions to dismiss for failure to state claims for which relief could be granted pursuant to Tenn. R. Civ. P. 12.02(6). The trial court found that the seller did not breach the contract because the property was conveyed to the plaintiff pursuant to the terms of the contract and the delay in closing was not a breach of the contract. The court dismissed all other claims but for the conspiracy claims and declared the order a final appealable judgment pursuant to Tenn. R. App. P. 54.02. The plaintiff appealed. Finding no error, we affirm.

Davidson County Court of Appeals 08/15/14
Jenica Deboer Hall v. Jeffrey Glen Hall
E2013-01984-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Lawrence Puckett

This post-divorce matter presents the primary issue of whether the trial court properly calculated, for child support purposes, the obligor parent’s income from self-employment. The trial court held that mortgage payments made by the obligor’s business with respect to a commercial building solely owned by the obligor should not be added to the obligor’s other income for the purpose of calculating child support. The obligee parent appeals that ruling to this Court. We affirm on that issue, concluding that such payments were already included in the obligor parent’s income calculation. We reverse the trial court’s finding concerning the obligor’s income, however, due to insufficient evidence regarding the nature of the depreciation deduction taken with respect to the commercial building. We remand for further proof regarding the depreciation deduction. The obligee parent also appeals the trial court’s failure to award attorney’s fees. Having concluded that the trial court must reconsider its determination of the obligor’s income, we also remand for the trial court to determine whether an award of attorney’s fees to the obligee parent is appropriate. We conclude that this is not an appropriate case for an award of attorney’s fees on appeal.

Bradley County Court of Appeals 08/14/14
Newgate Recovery, LLC v. Holrob-Harvey Road, LLC, et al
E2013-01899-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jerri S. Bryant

This appeal concerns a garnishment. Newgate Recovery, LLC (“Newgate”) brought a garnishment action in the Chancery Court for McMinn County (“the Trial Court”) against Manreet Singh (“Singh”) through Singh’s former employer R & R Group, Inc., d/b/a The Deerfield Inn (“Garnishee”). After Garnishee failed to respond to the garnishment, the Trial Court entered judgment against Garnishee in the amount of $1,283,066. Garnishee moved for relief from the judgment on the basis of insufficient service. The Trial Court granted Garnishee’s Tenn. R. Civ. P. 60.02 motion and set aside the final judgment on the basis of excusable negligence and ineffective service of process. Newgate appeals, arguing, among other things, that Garnishee waived the issue of service of process and that Garnishee’s employees had colluded to avoid a valid judgment. We find and hold that the Trial Court did not abuse its discretion in granting Garnishee’s motion for relief from judgment. We, therefore, affirm the Trial Court.

McMinn County Court of Appeals 08/14/14
Richard W. Gibbs, Et Al. v. Clint Gilleland, et al.
M2014-00275-COA-r3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Senior Judge Ben H. Cantrell

Plaintiffs brought this action against Rutherford County when the county prohibited them from building a home on undeveloped property because the property was below the Base Flood Elevation requirements established by the county. Plaintiffs contend the county had an affirmative duty under Article XIX, Section 19, of the Rutherford County Zoning Resolution to notify them, prior to their purchase of the property, that the property was below the Base Flood Elevation requirements, and the county breached that duty. In response to the complaint, the county filed a motion to dismiss for failure to state a claim based on the immunity provisions under the Tennessee Governmental Tort Liability Act, specifically Tennessee Code Annotated § 29-20-205(1), (3)-(4). The trial court granted the county’s motion to dismiss for failure to state a claim based on governmental immunity. Having determined that the county’s alleged acts or omissions were discretionary, not operational, the county has immunity; thus, we affirm the dismissal of this action.

Rutherford County Court of Appeals 08/13/14
John R. Wills, Jr. v. The City of Memphis, et al.
W2013-01861-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Kenny W. Armstrong

Landowner filed a petition for writ of certiorari in the Chancery Court of Shelby County, seeking review of the City of Memphis City Council’s decision to deny the landowner’s petition to subdivide his Belle Meade Subdivision lot into two lots. The trial court reversed the City Council’s decision, finding that the landowner had satisfied the requirements for subdivision under the Uniform Development Code, and remanded the case for rehearing before the City Council. On remand, the City Council’s review was limited to the record established at the previous hearing. For the reasons discussed herein, we affirm in part and vacate in part, and remand to the trial court with instructions to remand to the City Council for reconsideration.

Shelby County Court of Appeals 08/13/14
Gladys Ramirez v. Aaron M. Schwartz
M2013-02285-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Carol Soloman

This case arises from a personal injury lawsuit in which a plaintiff sought damages for injuries she sustained in a car accident. The defendant driver requested documents from plaintiff’s healthcare provider. The healthcare provider failed to produce all of the requested documents and was held in civil contempt. As sanctions, the trial court, inter alia, discharged the healthcare provider’s fees for medical services charged to the plaintiff and held the provider in violation of certain chiropractic regulations.  On appeal, the healthcare provider asserts that the trial court lacks authority to discharge the healthcare provider’s fees or to find it in violation of the chiropractic regulations. We agree that the trial court erred, and we vacate that portion of the trial court’s order discharging the fees for medical services and finding a violation of the chiropractic regulations.

Davidson County Court of Appeals 08/12/14
In Re: Christian G.
W2013-02269-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Special Judge Dan H. Michael

Father appeals the Juvenile Court’s ruling with regard to custody of his minor child. Because the court did not comply with Rule 52.01 of the Tennessee Rules of Civil Procedure, we vacate its judgment and remand the matter for entry of an order with appropriate findings of fact and conclusions of law.

Shelby County Court of Appeals 08/11/14
In Re: Christian G.
W2013-02269-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Special Judge Dan H. Michael

Father appeals the Juvenile Court’s ruling with regard to custody of his minor child. Because the court did not comply with Rule 52.01 of the Tennessee Rules of Civil Procedure, we vacate its judgment and remand the matter for entry of an order with appropriate findings of fact and conclusions of law.

Shelby County Court of Appeals 08/11/14
Marchelle Buman, Executor of the Estate of Kenneth Jenkins v. Alycia D. Gibson, P.A., Thomas Paul Evans, M.D., Andrew H. Lundberg, M.D., and Paris Surgical Specialists, PLLC
W2013-01867-COA-R3-CV
Authoring Judge: Senior Judge Paul G. Summers
Trial Court Judge: Judge C. Creed McGinley

This is a health care liability action involving a physician’s duties when supervising a physician’s assistant. The plaintiff alleged the supervising physician negligently supervised a physician’s assistant which resulted in the eventual amputation of the plaintiff’s leg. The physician moved for summary judgment, contending that he complied with all statutory duties. The plaintiff responded to this motion and simultaneously moved to amend her complaint to allege that the physician was vicariously liable for the negligent actions of the physician’s assistant. The trial court denied the plaintiff’s request to amend her complaint and granted the physician’s motion for summary judgment. Discerning no error, we affirm.

Henry County Court of Appeals 08/11/14
Eric Holmes v. Shelby County Sheriff's Office, et al.
W2013-02349-COA-R3-CV
Authoring Judge: Judge Donald E. Parish
Trial Court Judge: Judge Arnold B. Goldin

The order appealed is not a final judgment and therefore, we dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 08/08/14
Anil Construction, Inc. v. Patrick D. McCollum, Individually and d/b/a Pat's Custom Cabinets
W2013-01447-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge William B. Acree, Jr.

This appeal involves an alleged breach of a construction contract. The plaintiff general contractor hired the defendant subcontractor to build cabinetry for a new movie theater. The work was to be completed by the time the movie theater opened. At the time of the opening, some items regarding the cabinets remained undone, and the contractor refused to pay until the work was completed. The general contractor filed this lawsuit for breach of contract for failure to complete the project in a timely manner and for defective work, and the defendant subcontractor filed a counterclaim for breach of contract for failure to pay under the contract. The trial court held in favor of the subcontractor and awarded damages. The general contractor now appeals. We vacate the trial court’s judgment and remand the matter for findings of fact and conclusions of law as required under Tennessee Rule of Civil Procedure 52.01.

Madison County Court of Appeals 08/07/14