Court of Appeals Opinions

Format: 10/18/2018
Format: 10/18/2018
Ricky L. Boren, et al. v. Hill Boren, PC, et al.
W2017-02383-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Senior Judge Robert E. Lee Davies

T. Robert Hill (“Hill”) and Hill Boren, P.C. (collectively “Defendants”) appeal the November 6, 2017 order of the Chancery Court for Madison County (“the Trial Court”) finding Defendants in civil contempt. Defendants raise multiple issues regarding whether Defendants received proper notice, whether damages may be awarded absent a finding of willful contempt, whether the Trial Court erred in awarding damages pursuant to Tenn. Code Ann. § 29-9-104, and whether the Trial Court erred in allowing Plaintiffs access to corporate documents. We find and hold that Defendants received sufficient notice, that damages may not be awarded absent a finding of willful contempt, that the Trial Court did not err in awarding damages pursuant to Tenn. Code Ann. § 29-9-104 for the willful failure to turn over a computer server, and that the Trial Court did not err in allowing access to corporate documents. We, therefore, vacate the awards of damages for failure to turn over the copy machine and failure to turn over the Copitraks. We affirm the Trial Court’s holding Defendants in civil contempt with regard to the failure to turn over the server and awarding damages for this contempt. The remainder of the Trial Court’s order is affirmed.

Madison County Court of Appeals 10/17/18
Louise Brandon v. Shelby County Tennessee, et al.
W2017-00780-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert L. Childers

Plaintiff/Appellant appeals the dismissal of her negligence action against Shelby County, Tennessee, brought pursuant to the Tennessee Governmental Tort Liability Act. The trial court found that Appellant’s complaint contained a fatal deficiency in that it failed to allege Appellant’s injuries were sustained as a result of a government employee’s negligent act or omission while acting within the scope of his or her employment. Discerning no error, we affirm.

Shelby County Court of Appeals 10/16/18
Leighanne Gordon v. Noah Adrian Gordon
M2017-01275-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Deanna B. Johnson

In this post-divorce action, a mother filed a petition to modify the parenting plan, seeking modification of the residential parenting schedule. The father filed a counter-petition requesting that he be designated the primary residential parent. At the conclusion of the father’s direct examination, the mother moved for an involuntary dismissal of his counter-petition, arguing that he failed to prove a material change of circumstance that warranted a change in the primary residential parent. The trial court dismissed the father’s counter-petition and modified the residential parenting schedule. Because the trial court did not allow the father to complete his proof before granting the motion for involuntary dismissal, we vacate the trial court’s judgment in part, affirm in part, and remand for further proceedings.

Williamson County Court of Appeals 10/16/18
John R. Deberry v. Cumberland Electric Membership Corporation
M2017-02399-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Ross H. Hicks

This is a retaliatory discharge claim brought by an employee against his employer, alleging he was fired in retaliation for claiming workers’ compensation benefits. The trial court ruled in favor of the employee, finding that the employee had made a prima facie showing that his termination was in retaliation for his claim for workers’ compensation benefits. The trial court also found that the employee established the employer’s stated non-discriminatory reason was pretext. Because the record does not reflect that the trial court exercised its own independent judgment, we vacate and remand for proceedings consistent with this opinion.

Montgomery County Court of Appeals 10/15/18
In Re Larry P. Et Al.
M2018-00466-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Charles B. Tatum
The juvenile court terminated the parental rights of the mother on grounds of abandonment by willful failure to support, abandonment by willful failure to visit, and persistence of conditions and found that termination was in the best interest of the two children. On appeal, we find that clear and convincing evidence supports all three grounds as well as the trial court’s best interest determination. We, therefore, affirm the trial court’s decision.
Wilson County Court of Appeals 10/15/18
Robert Sawyers, Sr. v. E & R Auto Sales, Inc.
M2018-00495-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Kelvin D. Jones

This appeal arises from a dispute over an automobile purchase. Robert Sawyers, Sr. (“Plaintiff”) filed a claim against E & R Auto Sales, Inc. (“Defendant”) in the General Sessions Court for Davidson County (“the General Sessions Court”) alleging that Defendant sold him a problem-riddled vehicle and seeking $13,000 in damages. The General Sessions Court dismissed Plaintiff’s action. Plaintiff appealed to the Circuit Court for Davidson County (“the Trial Court”). The Trial Court dismissed a counter-claim filed by Defendant and awarded Plaintiff $350.00. Plaintiff appeals pro se, arguing he should have been awarded more money. Plaintiff’s brief fails to comply with Tenn. R. App. P. 27. We, therefore, find that Plaintiff has waived his issue on appeal. Furthermore, the record contains no transcript or statement of the evidence. As such, the record presented to this Court precludes meaningful review of the issue on appeal. Given all this, we affirm the judgment of the Trial Court.

Davidson County Court of Appeals 10/12/18
Stephen P. Geller v. Henry County Board of Education
W2017-01678-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Carma Dennis McGee

A tenured teacher serving as an assistant principal was transferred to teach at an alternative school after the local director of schools learned that the teacher did not hold an administrator’s license. On appeal, the teacher asserts that the transfer was arbitrary and capricious where the director of schools did not comply with the law concerning when assistant principals are required to hold administrator’s licenses. Following a trial, the trial court dismissed the teacher’s complaint, ruling that the director of school’s belief that the teacher was required to hold an administrator’s license was reasonable. We conclude that the director of schools’ actions and beliefs were not reasonable under the circumstances; as such, we reverse and remand for further proceedings.

Henry County Court of Appeals 10/12/18
Kevin Millen v. Raquel Hatter, et al.
W2016-01975-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Donna M. Fields

A pro se plaintiff filed suit over the seizure of his bank account. The defendants all moved to dismiss under Tennessee Rule of Civil Procedure 12, and the trial court granted the motions. We affirm.

Shelby County Court of Appeals 10/11/18
In Re Augusta C. Farmer Family Trust
M2018-00121-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This appeal arises from an action to terminate a testamentary trust, the only assets of which were non-income producing real estate. The trial court ruled that the trust terminated by operation of law pursuant to the terms of the trust following the death of the primary beneficiary, the father of the residuary beneficiaries, and it ordered the clerk of the court to prepare a deed transferring the real estate to the seven beneficiaries. The trustees appealed, contending they have the sole discretion to determine the manner of distribution, which includes the option of selling the real estate to one of the trustees and then distributing the net proceeds from the sale to the beneficiaries. We affirm the trial court’s determination that the trust terminated by its own terms upon the death of the primary beneficiary. Although we agree with the trustees’ argument that they had the discretion to distribute the assets in kind or sell the assets and distribute the net proceeds to the beneficiaries, the record reveals they failed to do so in a timely manner. Because the trustees failed to “proceed expeditiously” to distribute the trust assets to the beneficiaries, as Tenn. Code Ann. § 35-15-817(b) requires, we affirm the judgment of the trial court.

Robertson County Court of Appeals 10/11/18
In Re: Virgil W., Et Al.
E2018-00091-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Darryl Edmondson

A father’s parental rights to two children were terminated on the grounds of abandonment by incarceration, substantial noncompliance with the permanency plan, failure to manifest an ability and willingness to assume custody, and upon a determination that terminating the father’s parental rights would be in the best interest of the children. Father appeals; finding no error, we affirm

Anderson County Court of Appeals 10/11/18
Paul Zachary Moss v. Shelby County Civil Service Merit Board
W2017-01813-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor JoeDae L. Jenkins

Appellant was previously terminated from his employment with the Shelby County Fire Department. After the Shelby County Civil Service Merit Board upheld Appellant’s termination, judicial review followed in the Shelby County Chancery Court, which affirmed the Merit Board’s decision. In his appeal to this Court, Appellant contends that the decision upholding his termination should be reversed due to a violation of his due process rights. We agree and reverse.

Shelby County Court of Appeals 10/10/18
Lewis Creed Jackson v. Sharon Smith Jackson
M018-00361-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Amy V. Hollars

The parties initiated divorce proceedings in 2012. Trial dates were set and then continued a number of times until August 2017, when the trial court issued an order stating that the trial would take place on October 31, 2017, and that there would be no more continuances. Neither the husband nor his attorney appeared for the trial, and the wife proceeded to present evidence in support of her case. The trial court granted the wife a divorce, designated her the primary residential parent, divided the marital property, awarded her child support, and awarded her attorney’s fees. The husband moved to have the divorce decree set aside based on excusable neglect, inadvertence, or mistake. The trial court denied the husband’s motion, and the husband appealed. On appeal, the husband challenges the trial court’s refusal to set the decree aside. He also alleges the trial court erred in dividing the marital property, finding he was voluntarily underemployed for purposes of calculating his child support obligation, and awarding the wife her attorney’s fees. We affirm the trial court’s judgment in all respects.

Putnam County Court of Appeals 10/09/18
Joseph Meersman, Jr. Et Al. v. Regions Morgan Keegan Trust, Et Al.
M2017-02043-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This appeal concerns the dismissal for lack of personal jurisdiction, insufficient process, and insufficient service of process of a lawsuit regarding the administration of two trusts of which appellant, Joseph Peter Meersman, Jr., was a beneficiary. Appellant first had summons issued and attempted service by mail on March 1, 2016. The case remained dormant for over a year before the appellant filed additional documents. The appellees subsequently filed motions to dismiss, basing the motions primarily on insufficient service of process. The trial court granted each defendant’s motion to dismiss, concluding that there was insufficient process, insufficient service of process, and the court lacked personal jurisdiction over the defendants due to the insufficient service of process. We affirm.  

Davidson County Court of Appeals 10/09/18
Charles Reed v. West Tennessee Healthcare, Inc., et al.
W2018-00227-COA-R9-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Kyle Atkins

We granted this Rule 9 interlocutory appeal in this healthcare liabilty action to consider whether termination of representation by plaintiff’s prior legal counsel a few weeks before the expiration of the statute of limitations in this healthcare liability action constitutes sufficient extraordinary cause to excuse (1) plaintiff’s failure to wait at least sixty days to file the complaint after providing pre-suit notice as required by Tenn. Code Ann. § 29-26-121; and, (2) plaintiff’s failure to file a Certificate of Good Faith with the complaint as required by Tenn. Code Ann. § 29-26-122. We find and hold that the Trial Court did not err in finding and holding that termination of representation by plaintiff’s prior legal counsel a few weeks before the expiration of the applicable statute of limitations does constitute the type of extraordinary cause sufficient to excuse plaintiff’s failure to comply with Tenn. Code Ann. §§ 29-26-121 and 29-26-122. We, therefore, affirm the Trial Court’s orders denying the motions to dismiss.

Madison County Court of Appeals 10/08/18
In Re Estate of Karen Klyce Smith
W2017-02035-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Karen D. Webster

Decedent died intestate leaving her mother, Esther Pearson, as her sole heir. Appellant is Decedent’s sister and Ms. Pearson’s daughter. Appellant appeals the trial court’s determination that the Disclaimer Ms. Pearson signed was ineffective. Appellant also appeals the trial court’s denial of her Motion to Intervene. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 10/08/18
Katherine E. Anderson v. Ming Wang, Et Al.
M2018-00184-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Thomas W. Brothers

This is a health care liability case. The trial court granted Appellees’ motion for summary judgment on Appellant’s res ipsa loquitur claim under Tennessee Code Annotated section 29-26-115(c). Appellant appeals. Because Appellant presented sufficient evidence at the summary judgment stage to create a dispute of fact, we reverse the trial court’s grant of summary judgment.

Davidson County Court of Appeals 10/05/18
Herbert T. Stafford v. Matthew L. Branan
M2018-00072-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jeffrey F. Stewart
Appellant appeals the trial court’s grant of an easement by implication in favor of Appellee along a common driveway on Appellant’s property. Because Appellee met his burden to establish an easement by implication, we affirm.
Sequatchie County Court of Appeals 10/05/18
GREGORY WHITE, ET AL. v. JACK MILLER, ET AL.
M2018-00381-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Charles K. Smith
This is the second appeal of this action involving a residential real estate transaction decided upon cross motions for summary judgment. We remanded to the trial court for ruling upon the remaining claims of breach of fiduciary duty and a corresponding violation of Tennessee Code Annotated section 62-13-404(2) raised in the complaint but not ruled upon by the trial court. Upon remand, the trial court granted summary judgment in favor of the defendant real estate agent and brokerage firm. We affirm.
Wilson County Court of Appeals 10/05/18
Tina Y. Vaughn v. Kimberly Dickens-Durham
W2017-00716-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge James F. Russell

Appellant, surviving child of Decedent, brought suit against Appellee, Decedent’s granddaughter, for alleged violations of the Tennessee Adult Protection Act. Appellant filed the lawsuit in her individual capacity, and the trial court dismissed the case, finding that Appellant lacked standing. Discerning no error, we affirm.

Shelby County Court of Appeals 10/04/18
In Re Marneasha D., et al.
W2017-02240-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Special Judge Harold W. Horne

This is a termination of parental rights case involving the parental rights of two fathers to their respective children who were born to the same mother. On March 21, 2017, the Tennessee Department of Children’s Services (“DCS”) and the children’s guardian ad litem jointly filed a petition to terminate the parental rights of the children’s mother and the two fathers. Following a bench trial, the trial court terminated the parents’ parental rights to the children on multiple statutory grounds and upon a determination that termination of their parental rights was in the best interest of the children. Because we are unable to ascertain whether the trial court’s judgment is an independent judgment of the trial court, we vacate the trial court’s judgment and remand for sufficient findings of facts and conclusions of law in compliance with Tennessee Code Annotated § 36-1- 113(k) (2017).

Shelby County Court of Appeals 10/04/18
Adriane Allen v. American Yeast, Inc., et al.
W2017-00874-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Gina C. Higgins

This appeal involves a post-mediation agreement reached between a plaintiff and the defendants following a car collision in Memphis, Tennessee. After the agreement was executed, the plaintiff refused to perform under the contract. The trial court determined that the agreement was an enforceable contract and ordered compliance with its terms. The plaintiff continued to refuse to perform, and the defendants filed a motion to hold the plaintiff in civil contempt. The plaintiff’s counsel filed a motion requesting the trial court to require the defendants to interplead the settlement funds despite the plaintiff’s nonperformance. The trial court denied the motion for civil contempt, granted the motion for interpleader of the settlement funds, and dismissed the case with prejudice. On appeal, we conclude that the plaintiff lost the ability to appeal the validity of the post-mediation agreement by failing to file a timely appeal. We further conclude that the trial court erred in considering the motion to interplead the settlement funds filed by the plaintiff’s attorney but affirm the trial court’s final order in all other respects. We, therefore, vacate in part, affirm in part, and remand for further proceedings consistent with this opinion.

Shelby County Court of Appeals 10/04/18
In Re Kaycee M.
M2017-02160-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Stella L. Hargrove

This action involves the termination of a father’s parental rights to his minor child. Following a bench trial, the court found that clear and convincing evidence existed to support the statutory grounds of abandonment for failure to support, abandonment based upon his conduct prior to incarceration, substantial noncompliance with the permanency plans, and failure to manifest an ability and willingness to assume custody or financial responsibility of the child. The court further found that termination was in the best interest of the child. We affirm.

Lawrence County Court of Appeals 10/03/18
Janet Thornton v. Coffee County Board of Education
M2018-00300-COA-R9-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Vanessa Jackson

This interlocutory appeal involves a complaint for damages under the Public Employee Political Freedom Act. The chancery court transferred the case to circuit court after determining that only unliquidated damages were “available” under the statute. We conclude that the complaint failed to allege any liquidated damages. As such, the chancery court correctly determined that it lacked subject matter jurisdiction to adjudicate this case. The trial court’s decision to transfer this case to circuit court is therefore affirmed.

Coffee County Court of Appeals 10/03/18
Vicki Baumgartner, Personal Representative Of The Estate of Richard R. Baumgartner v. Tennessee Consolidated Retirement System
M2017-01715-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Russell T. Perkins

This appeal involves the forfeiture of the retirement benefits of a former Tennessee trial judge after he was convicted in federal court of numerous felonies arising out of his official capacity as a trial judge and constituting malfeasance in office. The former trial judge appealed the termination of his benefits and participated in a contested case proceeding before an administrative law judge, who ultimately determined that the retirement benefits were properly terminated based on the felony convictions and that the statute requiring such forfeiture was not unconstitutional as applied to the former trial judge. The chancery court agreed with these conclusions. We likewise conclude that the application of the forfeiture statute did not unconstitutionally impair the pension contract of the former trial judge, nor did it unilaterally impose an impermissible retrospective law or constitute an excessive fine. We further conclude that the retirement benefits were suspended as of the appropriate date, despite the former trial judge’s insistence to the contrary. Accordingly, we affirm the decision of the chancery court and remand for further proceedings.

Davidson County Court of Appeals 10/03/18
Advanced Banking Services, Inc. v. Zones, Inc.
E2017-02095-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Justin C. Angel

This action involves the applicability of a forum selection clause contained within a contract for the installation of two network telephone systems. On April 8, 2015, the seller corporation sent to the buyer corporation a twenty-four-page, itemized quote for equipment and licensing required for the network telephone systems, which the buyer corporation’s president signed and returned to the seller. The quote, consisting of a purchase order with specified terms and conditions on each page, contained provisions for “Shipping Terms” and “RETURNS.” Under the heading for returns, the purchase order stated that additional terms and conditions applied and were available on the seller’s website. Following a dispute, the buyer filed a complaint in the Rhea County Circuit Court (“trial court”) against the seller, alleging breach of contract, misrepresentation, negligence, and unjust enrichment. The seller subsequently filed a motion to dismiss for improper venue, citing a forum selection clause contained in the “General Terms and Conditions of Sale” from the seller’s website, which specified King County, Washington, as the sole venue for litigating the terms of the contract. In an Order entered September 27, 2017, the trial court granted the motion to dismiss, finding that the forum selection clause was valid and enforceable. The buyer has appealed. Determining that the additional terms and conditions from the seller’s website were only applicable to returns and not to the contract as a whole, we reverse the trial court’s grant of the seller’s motion to dismiss.

Rhea County Court of Appeals 10/03/18