Court of Appeals Opinions

Format: 12/11/2017
Format: 12/11/2017
Randall Lloyd Case v. Mary Kathryn Case
E2017-02025-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge M. Nicole Cantrell

The notice of appeal in this case indicates on its face that the appellant is appealing from a decision entered on September 18, 2017. However, there is no final judgment in the proceedings below entered on September 18, 2017, or any other date. Because the case remains pending in the trial court, we lack jurisdiction to consider this appeal.

Anderson County Court of Appeals 12/11/17
Kim Maura Baxstrom (Webb) v. Kirk Ewing Webb
E2017-01651-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge W. Neil Thomas, III

This is an appeal from an order granting a motion filed pursuant to Rule 60 of the Tennessee Rules of Civil Procedure. Because the order does not resolve all issues raised in the proceedings below, this appeal is dismissed for lack of jurisdiction without prejudice to the filing of a new appeal once a final judgment has been entered.

Hamilton County Court of Appeals 12/11/17
Kim Covarrubias v. Gerald Edward Baker
E2016-02316-COA-R3-CV
Authoring Judge: Judge Frank G. Clement Jr., P.J., M.S.
Trial Court Judge: Judge Gregory S. McMillian

This appeal arises out Husband’s petition to reduce his alimony in futuro obligation and Wife’s motion for criminal contempt for Husband’s failure to pay his alimony obligation in full. Wife opposed the modification of alimony on two grounds: (1) the 2007 Marital Settlement Agreement was not modifiable and (2) there had been no material change in circumstances. The trial court held that the alimony in futuro provision was modifiable and, based on a finding that Husband had proven a material change in circumstances, reduced Husband’s alimony obligation. The court then calculated Husband’s alimony arrearage for 2015 based on his income in 2007, not on his income as stated on his W-2 for 2015, which was greater. The court also dismissed the contempt petition upon a finding that Wife failed to prove the essential elements. Wife appeals, contending the trial court erred (1) by dismissing her motion for criminal contempt; (2) by finding that the trial court had the authority to modify alimony; (3) by finding that a substantial and material change in circumstances warranted a modification; and (4) by failing to properly calculate Husband’s alimony arrearage for 2015. We have determined that the double jeopardy clause of the Fifth Amendment to the United States Constitution precludes us from reviewing the trial court’s decision to dismiss the contempt petition; therefore, we affirm the dismissal of the criminal contempt petition. As for Husband’s petition to modify alimony in futuro, we affirm the trial court’s determination that the alimony in futuro provision was modifiable; however, we have determined that there is no factual basis to support a finding that Husband proved a substantial and material change in circumstances. Accordingly, we reverse the trial court’s decision to decrease Husband’s alimony obligation and remand with instructions to reinstate the alimony award as stated in the final divorce decree. Because the alimony arrearage judgment was based on the reduced alimony obligation, we also reverse that award and remand with instructions for the trial court to award an arrearage judgment based on Husband’s gross earnings in 2015, not his salary in 2007. Therefore, we affirm in part, reverse in part, and remand for recalculation of the alimony arrearage judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part, Reversed in Part, and Remanded.

Knox County Court of Appeals 12/11/17
Metropolitan Development And Housing Agency v. Nashville Downtown Platinum, LLC
M2017-00450-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Kelvin D. Jones

In this condemnation case, a jury trial was held concerning the amount of compensation owed to Appellant as a result of the governmental taking of its property. The jury returned a verdict finding that the fair market value of the property had been over $2,000,000.00 on the date of the taking, and the trial court entered judgment on the verdict. Although Appellant now appeals raising several issues, we affirm the trial court’s judgment.

Davidson County Court of Appeals 12/08/17
Tina Lynn Davis Newell v. First State Bank, Inc., et al.
W2017-01209-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joe H. Walker, III

A customer of a tanning salon injured herself upon exiting the salon when she fell while stepping off the curb onto a snow and ice-covered portion of the parking lot where she had parked her car. The customer brought suit against the owners of the tanning salon and of the shopping center, as well as a grounds keeping service, alleging that the codefendants negligently failed to clear the ice and snow from the parking lot or warn her of the potential danger. The owners of the tanning salon filed a motion for summary judgment. Finding that the tanning salon owed no duty to the customer, the trial judge granted summary judgment. The customer appealed. We affirm.

Tipton County Court of Appeals 12/07/17
Frankie G. Munn v. Sandra M. Phillips Et Al. - Dissenting
E2016-02242-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Rex H. Ogle

The majority holds that a remand to the trial court is necessary “[b]ecause the trial court failed to make specific findings of fact and conclusions of law regarding the applicability of any res judicata defense . . . .” (Italics in original.) I believe the record in this case clearly shows that the claim of the appellee Frankie G. Munn is barred by the doctrine of res judicata. Hence, I see no need for a remand.

Cocke County Court of Appeals 12/07/17
Frankie G. Munn v. Sandra M. Phillips Et Al.
E2016-02242-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Rex H. Ogle

In this unjust enrichment action, the trial court awarded the plaintiff $42,929.00 for the fair market rental value of improved real property that the plaintiff purchased at a foreclosure sale in 2012 but did not gain possession of until 2015. Following the foreclosure sale, the plaintiff was forced to litigate for a period of three years to obtain title, during which time the former owners of the home, who had defaulted in payments on their mortgage, remained in possession and failed to pay rent. The plaintiff subsequently filed this action in the trial court, seeking an award of fair market rental value of the home from the former owners. The trial court ordered that the former owners pay reasonable rent of $1,200.00 per month from August 2, 2012, the date of the foreclosure sale, to July 24, 2015, the date upon which the court in the prior action entered a final order declaring the plaintiff to be the rightful owner of the property. The former owners have appealed. Because the trial court failed to make specific findings of fact and conclusions of law regarding the applicability of any res judicata defense, we vacate the trial court’s judgment and remand this matter to the trial court for resolution of that issue.

Cocke County Court of Appeals 12/07/17
In Re Estate of Eunice Katherine Sanders McCollum
M2015-02169-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Michael R. Meise

This is a probate case, and the parties are Decedent’s children. Appellant son filed a claim against Appellee daughter, alleging that she mishandled the Decedent’s financial affairs, both during Decedent’s life and after her death in 2007. In 2009, the trial court appointed a special master, who conducted two evidentiary hearings and filed two reports, which essentially exonerated Appellee from any wrong-doing. Two years later, the trial court ordered the Administrator of the estate to pay certain fees and file certain applications so that the estate could be closed, and dismissed all pending motions filed by the parties. Appellant filed a motion to alter or amend the judgment of the trial court that was denied. Concluding that the Appellant did not have standing to bring a claim against Appellee, we affirm and remand.  

Dickson County Court of Appeals 12/05/17
In Re Brooklyn J.
E2016-00482-COA-R3-PT
Authoring Judge: Judge Frank G. Clement Jr., P.J., M.S.
Trial Court Judge: Judge J.B. Bennett

The mother of twins seeks to set aside the termination of her parental rights on the ground the judgment is void for lack of personal service. In August 2013, relatives who had legal custody of the children filed a “Petition for Termination of Parental Rights and Adoption.” After two failed attempts to locate the mother for service of process, she was served by publication. In December 2013, the trial court entered an Order of Default terminating her parental rights, and the children were adopted shortly thereafter. The mother received actual notice of the termination of her parental rights and the adoption no later than April 2014, but she waited until October 2015 to file a Tenn. R. Civ. P. 60 motion to set aside the 2013 judgment. Following a hearing, the trial court ruled that the 2013 judgment was void for lack of personal service but that the mother was not entitled to relief from the judgment based on “exceptional circumstances.” The mother appealed. We affirm the trial court’s determination that the mother is not entitled to relief based on exceptional circumstances, they being that she had actual notice of the judgment eighteen months prior to seeking relief, which manifested an intention to treat the judgment as valid, and that granting relief would impair the children’s and the adoptive parents’ substantial interests of reliance on the judgment.

Hamilton County Court of Appeals 12/05/17
In Re Prince J.
E2016-00479-COA-R3-PT
Authoring Judge: Judge Frank G. Clement Jr., P.J., M.S.
Trial Court Judge: Judge J.B. Bennett

The mother of twins seeks to set aside the termination of her parental rights on the ground the judgment is void for lack of personal service. In August 2013, relatives who had legal custody of the children filed a “Petition for Termination of Parental Rights and Adoption.” After two failed attempts to locate the mother for service of process, she was served by publication. In December 2013, the trial court entered an Order of Default terminating her parental rights, and the children were adopted shortly thereafter. The mother received actual notice of the termination of her parental rights and the adoption no later than April 2014, but she waited until October 2015 to file a Tenn. R. Civ. P. 60 motion to set aside the 2013 judgment. Following a hearing, the trial court ruled that the 2013 judgment was void for lack of personal service but that the mother was not entitled to relief from the judgment based on “exceptional circumstances.” The mother appealed. We affirm the trial court’s determination that the mother is not entitled to relief based on exceptional circumstances, they being that she had actual notice of the judgment eighteen months prior to seeking relief, which manifested an intention to treat the judgment as valid, and that granting relief would impair the children’s and the adoptive parents’ substantial interests of reliance on the judgment.

Hamilton County Court of Appeals 12/05/17
In Re: Jaiden A.
E2016-02421-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John D. McAfee

This is a dependency and neglect case. After adjudication of dependency and neglect, the juvenile court granted custody to the child’s paternal grandparents. Mother/Appellant appealed that decision to the circuit court. Because the circuit court did not conduct a de novo hearing, we vacate its order and remand for further proceedings.

Scott County Court of Appeals 12/05/17
In Re Christopher J., et al.
W2016-02149-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Special Judge Harold W. Horne

Father appeals the termination of his parental rights to two children. The juvenile court found clear and convincing evidence that Father was criminally convicted of the intentional and wrongful death of the children’s mother and that termination of parental rights was in the children’s best interest. We conclude that the record contains clear and convincing evidence to support both findings. Thus, we affirm the termination of parental rights.

Shelby County Court of Appeals 12/04/17
Briggs & Stratton Power Products Group, LLC v. Osram Sylvania, Inc., et al.
W2016-01799-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge William B. Acree

The tenant of a warehouse and the warehouse owner’s property manager disagree over which party is responsible for the damage caused by a fire that destroyed the tenant’s inventory. We have concluded that the “as is, where is” lease between the warehouse owner and the tenant places the responsibility for the damage on the tenant and that the trial court properly granted summary judgment in favor of the property manager.

Dyer County Court of Appeals 12/04/17
Citrina Louise Gensmer v. Luke August Gensmer
W2017-00443-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Carma Dennis McGee

The divorced mother and father of a nine year-old child were sharing residential time equally when the mother notified the father of her intent to relocate to Gulfport, Mississippi, eight to nine hours away. The father opposed the relocation and asked the court to designate him as the primary residential parent. After determining that the parties spent substantially equal intervals of time with the child during the twelve months immediately preceding the trial, the court conducted a best interest analysis to determine whether it was in the child’s best interest to relocate with the mother. Concluding that it was not in the child’s best interest to relocate, the court designated the father as the primary residential parent and entered a new parenting plan in which the mother was awarded sixty-four days per year of residential time with the child. The mother appealed several aspects of the trial court’s decision, and we affirm the judgment in all respects.

Henry County Court of Appeals 11/30/17
In Re Estate Of John Jefferson Waller, Jr.
M2017-00360-COA-R9-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge David Randall Kennedy

In this interlocutory appeal involving a will contest, the trial court determined that Appellant did not have standing to contest the will at issue. In light of the Tennessee Supreme Court’s recent decision in In re Estate of Brock, No. E2016-00637-SC-R11-CV, 2017 WL 5623526 (Tenn. Nov. 22, 2017), we reverse and remand for further proceedings.

Davidson County Court of Appeals 11/30/17
Michael Tomlin, Et Al. v. Renal Care Group, Inc. Et Al.
M2016-02216-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Russell T. Perkins

A real estate consultant brought suit against a renal care company and related corporate affiliates alleging breach of contract for failing to pay real estate commissions. The commissions were allegedly owed based upon the consultant’s work in negotiating one original lease for a dialysis clinic, and based upon several alleged renewals of leases that had originally been negotiated by the consultant. The parties’ consulting agreement specified that the consultant was entitled to commissions upon execution of original leases, and at any subsequent renewals or extensions of the original leases. Because the order appealed is not final in that it fails to adjudicate at least six of the former consultant’s claims, this Court lacks subject-matter jurisdiction over the appeal. Tenn. R. App. P. 3(a). Accordingly, the appeal is dismissed. 

Davidson County Court of Appeals 11/30/17
Gary L. Key v. O.C. Renner Jr. Et Al.
E2016-01049-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Douglas T. Jenkins

Neighboring property owners disagree over the terms of an oral agreement for construction of a private road across their properties. After the road was completed, one property owner failed to pay his part of the construction costs or grant a permanent easement permitting use of the road. The other property owner filed a complaint for specific performance or, in the alternative, damages for breach of contract. The defendant admitted the parties had an agreement but disputed the terms and raised the defense of the statute of frauds. After a trial, the court ruled that the defendant was equitably estopped from asserting the statute of frauds and awarded specific performance. On appeal, the defendant argues that the plaintiff is not entitled to enforce the agreement because either the statute of frauds bars enforcement of the agreement or the plaintiff was the first party to breach. After a thorough review of the record, we affirm the judgment as modified.

Greene County Court of Appeals 11/30/17
Glenn R. Funk v. Scripps Media , Inc. Et Al.
M2017-00256-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge William B. Acree

A public figure filed a defamation lawsuit against an investigative reporter and a television station based on two news stories that were aired in February 2016. The defendants filed a motion to dismiss, claiming that their reports were constitutionally protected speech, were privileged as a fair and accurate report of pleadings and documents filed in two other lawsuits, and did not contain false or defamatory statements. The plaintiff served interrogatories and requests for documents on the defendants in an effort to discover the defendants’ investigative files. The defendants objected on the grounds of relevance and the Tennessee fair report privilege. The plaintiff filed a motion to compel, arguing that he needed the discovery to respond to the defendants’ motion to dismiss by uncovering evidence of actual malice. The trial court agreed and granted the motion to compel. The defendants filed an interlocutory appeal of the trial court’s decision granting the motion to compel. They argue that (1) actual malice is not an element of the fair report privilege and (2) the trial court erred in granting the plaintiff’s motion to compel. We agree with the defendants’ position on both issues and reverse the trial court’s judgment.

Davidson County Court of Appeals 11/30/17
Alisa Leigh Eldridge v.Lee Savage
M2016-01373-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Jonathan L. Young

This dispute arises from Buyer’s purchase of a home from Seller in 1994. After discovering extensive pre-existing fire damage to the home in 2010, Buyer filed a complaint against Seller, alleging misrepresentation, mistake, and violation of the Tennessee Consumer Protection Act. The trial court granted summary judgment in favor of Seller, finding that Buyer’s cause of action was barred by the applicable statute of limitations. Buyer appeals, alleging that Seller’s fraudulent misrepresentations and concealment and the discovery rule tolls the statutes of limitations. She also contends these are factual issues to be determined by a jury. We have concluded that a reasonable jury could not legitimately resolve the facts relied upon by Buyer in her favor; therefore, the trial court acted appropriately by summarily dismissing all of her claims as time barred. Accordingly, we affirm.

Overton County Court of Appeals 11/29/17
In Re Danely C.
M2016-02054-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Howard W. Wilson

M.V.C. , the mother of Danely C., an undocumented minor born in Honduras, filed a petition in the trial court seeking an order appointing M.V.C. as guardian of her daughter. She further asked the court to make findings as mandated by 8 U.S.C.A. § 1101(a)(27)(J) (2014). Findings favorable to the petitioner are a prerequisite for Danely C. to apply under federal law for special immigrant juvenile status. The petitioner prayed “[t]hat sevice of process issue as necessary upon [Danely C].” The trial court, acting sua sponte, dismissed the petition, finding “no justiciable controversy in this cause.” We vacate the judgment of the trial court and remand for a hearing with respect to the matters contemplated by 8 U.S.C.A. § 1101(a)(27)(J).

Rutherford County Court of Appeals 11/29/17
Metropolitan Government of Nashville And Davidson County, Tennessee v. Teleport Communications America, LLC
M2016-02222-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Russell T. Perkins

The Metropolitan Government of Nashville and Davidson County (“Metro”) sued Teleport Communications America, LLC (“TCG”) in the Chancery Court for Davidson County (“the Trial Court”) to recover a fee for TCG’s use of Metro’s public rights-of-way. TCG contended the fee was unlawful and refused to pay. Metro and TCG previously had entered into a franchise agreement in keeping with an ordinance requiring telecommunications providers to pay 5% of their gross revenues to Metro. The Tennessee Court of Appeals later ruled in another case against an ordinance purporting to set a gross revenue franchise fee as being akin to a tax. The Trial Court cited this holding to invalidate the ordinance in the present case. Metro nevertheless pursued this action further, seeking to recover under a contractual theory. After extensive litigation, the Trial Court found that TCG owed damages to Metro in the amount of $550,000. The Trial Court reasoned that even though the underlying ordinance was invalid, the parties had entered into a franchise agreement and Metro was entitled to some measure of compensation. TCG appealed. We affirm the judgment of the Trial Court.

Davidson County Court of Appeals 11/29/17
Megan C. England v. Sonya Schnur Et Al.
E2017-00085-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: E2017-00085-COA-R3-CV

Megan England filed a petition for a restraining order, protective order and injunctive relief against Sonya Schnur, Roswell Schnur, and Lisa Schnur, alleging, among other things, that the respondents had taken actions that caused her to fear for her safety. The trial court granted her a temporary restraining order. Three days later, respondents filed motions to dismiss under Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief can be granted. Respondents subsequently filed two affidavits in support of the motions. Shortly thereafter, petitioner filed a notice of voluntary nonsuit asking for dismissal of her petition without prejudice. Respondents opposed the dismissal unless it was entered with prejudice. Contrary to the respondents’ request, the court dismissed the action without prejudice. We hold that the trial court did not consider matters outside the pleadings in making its decision. As a consequence, the motion of the respondents was not converted into a motion for summary judgment. In the alternative, even if the conversion occurred, the trial court had discretion to grant the petitioner’s request without prejudice under the authority of Stewart v. Univ. of Tenn., 519 S.W.2d 591, 593 (Tenn. 1974). The trial court did not abuse its discretion in declining to make its dismissal with prejudice. Accordingly, we affirm

Hamilton County Court of Appeals 11/29/17
Nystar Tennessee Mines-Strawberry Plaints, LLC v. Claiborne Hauling, LLC, DBA Claiborne Trucking, LLC
E2017-00155-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John F. Weaver

This case involves a motion for attorney’s fees filed by Nyrstar Tennessee Mines – Strawberry Plains, LLC. Nyrstar and Claiborne Trucking, LLC are parties to a contract. Nyrstar prevailed in an underlying breach of contract action against Claiborne. After prevailing in the underlying case, Nyrstar filed a motion asking to be awarded its attorney’s fees pursuant to the parties’ contract. The issue before us is whether the language of the contract is sufficient to allow Nyrstar to seek fees. The trial court held that the language is not sufficiently specific to create a contractual right to recover attorney’s fees. Nyrstar appeals. We affirm.

Knox County Court of Appeals 11/29/17
Estate of Ella Mae Haire, Et Al. v. Shelby J. Webster, Et Al.
E2017-00066-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This appeal arises from a family dispute over joint bank accounts. Phillip Daniel Haire (“Danny Haire”) sued First Tennessee Bank National Association (“the Bank”) in the Chancery Court for Knox County (“the Trial Court”) alleging, among other things, breach of contract. The Bank had allowed Danny Haire’s late mother Ella Mae Haire (“Decedent”) to remove him unilaterally as joint tenant with right of survivorship from certain accounts. The Bank filed a motion to dismiss, which the Trial Court granted. Danny Haire appealed. We hold, inter alia, that Danny Haire’s complaint failed to identify which contract term the Bank allegedly breached, and that Decedent could have removed all of the funds from the account, thus effectuating the same practical result as that which actually occurred. We affirm the judgment of the Trial Court.

Knox County Court of Appeals 11/29/17
In Re Arabella L.
M2017-01069-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Wayne C. Shelton

Three years after the juvenile court in Tennessee approved a parenting plan for a child, the child’s father filed a petition to modify custody, alleging a material change in circumstances. The mother, who had filed a modification petition in Alabama, requested that the Tennessee court communicate with the Alabama court to determine which court had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The Tennessee court, after communicating with the Alabama court, determined that Alabama was a more convenient forum, declined to exercise jurisdiction, and dismissed the father’s petition. On appeal, the father argues that the Tennessee court failed to allow the parties access to a record of its communication with the Alabama court or an opportunity to present evidence before making its decision. Because we conclude that the juvenile court abused its discretion in declining to exercise jurisdiction without allowing the parties an opportunity to present evidence, we vacate the court’s decision and remand for further proceedings.  

Montgomery County Court of Appeals 11/28/17