Court of Appeals Opinions

Format: 05/24/2017
Format: 05/24/2017
William Dale Alsup v. David C. Alsup
W2016-00925-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Carma Dennis McGee

This is a declaratory judgment case. Decedent, mother to the parties, died testate, leaving a holographic will that divided her real property between her two sons, David Alsup/Appellant and William Alsup/Appellee. The probate court admitted the will to probate. Following completion of the probate proceeding, William obtained a survey dividing the property as provided for in Decedent’s will. David refused to accept the survey procured by William, and William then filed this action to quiet title and for ejectment. David filed an answer but did not file a counterclaim or a countervailing survey. William moved for summary judgment, which the trial court granted. Discerning no error, we affirm.

Henry County Court of Appeals 05/23/17
Lynn E. Harrison v. Edwin B. Harrison, Jr.
E2016-00672-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Rex A. Dale

This divorce case involves a marriage of eight years’ duration. Because the parties had reached an agreement with regard to the division of certain marital assets, the trial court was requested during a bench trial to divide the parties’ retirement and pension accounts, or the marital portion thereof, and other limited marital assets and liabilities. The trial court considered the relevant statutory factors and apportioned the remaining assets and liabilities 60% to the wife and 40% to the husband. The trial court also awarded the husband $1,000.00 in attorney’s fees and $180.42 in court reporter fees. The husband has appealed. Discerning no reversible error, we affirm.

Loudon County Court of Appeals 05/22/17
State of Tennessee, ex rel., Deedra Climer Bass v. Jose Ramon Gonzalez-Perez
W2016-00655-COA-R3-JV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Special Judge Nancy Percer Kessler

Jose Ramon Gonzalez-Perez (“Father”) appeals the March 7, 2016 order of the Juvenile Court for Shelby County (“the Juvenile Court”) finding him in contempt for non-payment of child support. Father raises several issues including whether Father can be held guilty of contempt when benefits Father receives pursuant to 33 U.S.C.A. § 901 et seq., the Longshore and Harbor Workers’ Compensation Act, are exempt from “all claims of creditors and from levy, execution, and attachment or other remedy for recovery or collection of a debt . . . ” under § 916 of the Longshore and Harbor Workers’ Compensation Act; whether the Longshore and Harbor Workers’ Compensation Act preempts inclusion of Father’s benefits from the calculation of child support; and whether Father was guilty of contempt for non-payment of child support. We find and hold that although the benefits Father receives are exempt from levy, execution, attachment, etc., Father may be found guilty of contempt; that the Longshore and Harbor Workers’ Compensation Act does not preempt the inclusion of the benefits Father receives from the calculation of child support; and that Father had the present ability to pay child support and willfully failed to do so making Father guilty of contempt. We, therefore, affirm the March 7, 2016 order of the Juvenile Court finding Father in contempt for non-payment of child support.

Shelby County Court of Appeals 05/19/17
Claire Nicola Bell v. Timothy John Bell - Concurring
E2016-01180-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Jeffrey Hollingsworth

I concur in the majority’s determination that the evidence does not preponderate against the trial court’s judgment (1) finding a material change in circumstances; (2) holding that “the best interest of the children [is] that [Mr. Bell] be the Primary Residential Parent;” and (3) awarding father 215 days of residential parenting time with the balance of days awarded to mother.

Hamilton County Court of Appeals 05/18/17
Claire Nicola Bell v. Timothy John Bell
E2016-01180-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This appeal concerns visitation in a post-divorce setting. Claire Nicola Bell (“Mother”) and Timothy John Bell (“Father”) are parents of the two minor children at issue, ages eleven and seven at trial (“the Children”). Mother and Father divorced in 2012. Both parents were named “co-primary residential parents” and each parent received equal visitation time with the Children. Later, as the arrangement grew contentious, Mother filed a petition for modification seeking to be named exclusive primary residential parent. Father, in turn, filed a counter-petition seeking the same designation. A hearing was conducted before the Circuit Court for Hamilton County (“the Trial Court”). Afterward, the Trial Court named Father primary residential parent and awarded him increased visitation time with the Children. We affirm the judgment of the Trial Court.

Hamilton County Court of Appeals 05/18/17
Debeora D. Whitfield v. Holly Thrasher Schroeder
M2016-00791-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Joe Thompson

This appeal involves an option to purchase real estate. After a bench trial, the circuit court awarded the tenant a judgment for $12,000. Because the trial court did not make sufficient findings of fact and conclusions of law to enable meaningful appellate review, we vacate the order and remand for further proceedings.

Sumner County Court of Appeals 05/17/17
Phillip Jay Seifert v. Maria Coveny Seifert
E2016-01340-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Michael W. Moyers

The principal issues in this divorce action arise from the parties’ antenuptial agreement. The trial court declared the parties divorced, classified the bulk of the assets as Husband’s separate property, divided the modest amount of assets that were classified as marital property, and awarded Wife alimony in futuro of $8,000 per month and alimony in solido of $500,000. Both parties appeal. Wife contends the court erred in classifying the bulk of the assets as Husband’s separate property and that the alimony awarded to her is insufficient. She also requests an award of attorney fees incurred on appeal. Husband contends that all of the income he earned during the marriage is his separate property, that all assets he acquired with that income is his separate property, and that the antenuptial agreement prohibited the trial court from considering the value of his separate property in awarding alimony to Wife. We affirm the trial court in all respects. We also find that Wife is entitled to recover reasonable and necessary attorney fees incurred on appeal.

Knox County Court of Appeals 05/17/17
Wayne A. Howes, et al. v. Mark Swanner, et al.
M2016-01892-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ross H. Hicks

Homeowners filed suit for breach of contract and fraud and/or negligent representation against the owners of a restoration business who performed repairs on their house after a fire.  When the defendants failed to respond to or appear at the hearing on the plaintiffs’ motion for summary judgment, the trial court granted summary judgment for the plaintiffs.  The defendants then filed a Tenn. R. Civ. P. 60 motion and affidavits stating that they did not receive notice of the hearing on the motion for summary judgment.  The trial court held a hearing on the Rule 60 motion and denied the motion.  Because there is no transcript or statement of the evidence regarding the hearing on the summary judgment motion or on the Rule 60 motion, we must accept the trial court’s findings of fact.  We find no abuse of discretion in the trial court’s denial of the plaintiffs’ Rule 60 motion.  

Montgomery County Court of Appeals 05/17/17
Winston Keith Kyle v. Janice Gomer Kyle
W2016-01699-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor George R. Ellis

This is an appeal from a final decree of divorce. The trial court's final decree of divorce included a division of marital property but failed to adjudicate the issue of alimony. A subsequent order states that the parties “agreed that [Wife’s] claim for alimony in futuro and rehabilitative alimony . . . are dismissed.” The appellate record contains no transcript or statement of the evidence for our review as required by the Tennessee Rules of Appellant Procedure. Accordingly, we conclude that there was sufficient evidence to support the trial court’s finding. Affirmed and remanded.

Gibson County Court of Appeals 05/17/17
Jamie Kay Cardle v. Daniel Marcum Cardle
M2016-00862-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Louis W. Oliver

Wife filed a complaint for divorce following a fifteen-year marriage.  The trial court granted Wife a divorce, distributed the marital estate, and awarded Wife alimony.  The trial court granted Husband’s request to pay the alimony in solido award over a period of six years, with post-judgment interest payable at 10% interest per annum.  Husband appeals the division of some of the marital assets and debts, the award of alimony in solido, and the post-judgment interest award.  We affirm the trial court’s division of the marital estate and the award of alimony in solido, but we modify the post-judgment interest rate from 10% to 5.50% to conform with the interest on judgments statute, Tenn. Code Ann. § 47-14-121.

Sumner County Court of Appeals 05/17/17
Mindy Leigh Veard v. Edward Eugene Veard, Jr.
M2017-00898-COA-T10B-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Philip E. Smith

This accelerated interlocutory appeal arises from the trial court’s denial of a motion for recusal. After carefully reviewing the trial court’s ruling pursuant to the de novo standard of review required under Tennessee Supreme Court Rule 10B, we affirm the decision of the trial court denying the motion for recusal.        

Davidson County Court of Appeals 05/16/17
Gallatin Housing Authority v. Mahoganee Pelt
M2015-01694-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joe Thompson

This appeal arises from an indigent tenant’s petition for writs of certiorari and supersedeas for a de novo review of an unlawful detainer action originally filed in general sessions court. The tenant sought to remain in possession of the leased premises during the review without posting a possessory bond. The circuit court initially issued the writs and, in lieu of a bond, ordered the tenant to pay rent as it became due. The landlord objected, arguing that a possessory bond was mandatory under the applicable statute. The circuit court then ordered the tenant to post a bond and, after the tenant failed to comply, dismissed the previously issued writs. On appeal, the tenant argues that the circuit court erred in calculating the amount of the bond and in dismissing the writ of certiorari with the writ of supersedeas. She also contends that the landlord executed the writ of possession in violation of the initial stay of Tennessee Rule of Civil Procedure 62.01. We conclude that, although it erred in including court costs as part of the possessory bond in light of the tenant’s indigence, the trial court properly dismissed the writs of certiorari and supersedeas after the tenant failed to file a possessory bond. We also conclude that Rule 62.01 did not stay the dismissal of the writ of supersedeas. Consequently, we affirm.

Sumner County Court of Appeals 05/16/17
James Ryan Skelton v. Jenna Marie Skelton
M2015-01426-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Joseph Woodruff

A father and mother moved to modify a permanent parenting plan in which they were each named primary residential parent. Both parents alleged, for different reasons, that a material change in circumstance had occurred sufficient to modify custody. After a hearing, the court determined a material change in circumstance had occurred and that modification of the current joint custody arrangement was in the child’s best interest. The court named the father the primary residential parent and granted the mother liberal visitation. The mother appeals, arguing that the court erred in finding that her move was a material change and in dismissing her modification petition. Upon review, we conclude that the evidence does not preponderate against the chancery court’s findings, and the court did not err in dismissing Mother’s petition. Accordingly, we affirm.

Lewis County Court of Appeals 05/16/17
Wesley Finch v. O.B. Hofstetter/Anderson Trust, et al.
M2016-00562-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Russell T. Perkins

This appeal stems from a dispute over a tract of real property in Nashville.  The plaintiff, who claims to have entered into an enforceable contract for sale of the disputed tract, brought multiple claims against multiple defendants after the land was not transferred to him.  After competing cross-motions for summary judgment were filed, the trial court dismissed all of the plaintiff’s claims, finding, inter alia, that the plaintiff never entered into a valid, enforceable contract regarding the subject property.  For the reasons stated herein, we affirm and remand for further proceedings consistent with this Opinion. 

Davidson County Court of Appeals 05/16/17
In Re: Hailey K., Et Al.
E2017-00397-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Timothy E. Irwin

This is a termination of parental rights appeal. The Trial Court Judge announced a ruling from the bench at the conclusion of the final hearing below and then subsequently entered a written order vacating the oral ruling. The order vacating the oral ruling contemplates further proceedings in the Trial Court. Because there is no final written order terminating the parental rights of the appellant, Shanna K., to her children, we have no jurisdiction to consider this appeal.

Knox County Court of Appeals 05/16/17
Individual Healthcare Specialists, Inc. v. BlueCross BlueShield Of Tennessee, Inc.
M2015-02524-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

This is a breach of contract action in which the issues hinge on the meaning of several provisions in the agreement. In 1999 and again in 2009, BlueCross BlueShield of Tennessee, Inc. (“BlueCross”) and Individual Healthcare Specialists, Inc. (“IHS”) entered into a general agency agreement that authorized IHS to solicit applications for individual insurance policies through IHS’s in-house agents and outside “subagents.” The commission rates to be paid were stated in a schedule, which was subject to modification by BlueCross. During the first eleven years, BlueCross modified the commission schedule several times and each modification was prospective only. In 2011, BlueCross modified the commission schedule and, for the first time, applied the commission schedule retrospectively. At the same time, IHS determined that BlueCross had been underpaying commissions since 1999. As a consequence, it commenced this action asserting claims for, inter alia, breach of contract and damages, while also claiming it was entitled to recover its attorney’s fees based on the contract’s indemnification provision. BlueCross denied any breach of contract. It also asserted the statute of limitations defense as a bar to recovering any commissions that accrued more than six years earlier, and asserted that IHS was not entitled to recover its attorney’s fees because the indemnification provision did not apply to disputes between the contracting parties. Shortly thereafter, BlueCross terminated the general agency agreement and began paying renewal commissions directly to IHS’s subagents instead of paying them to IHS as it had done since 1999. IHS then amended its complaint to assert a claim that BlueCross also breached the agreement by failing to pay commissions directly to IHS. Following a bench trial, the court denied BlueCross’s statute of limitations defense on the ground that IHS’s claims were “inherently undiscoverable.” The court also determined that BlueCross breached the contract by underpaying commissions, by applying the 2011 commission rates for renewals to existing policies, and by failing to pay all renewal commissions to IHS after termination of the general agency agreement. As for damages, the court awarded IHS some of the damages it claimed but denied others on the ground the evidence was speculative. As for IHS’s attorney’s fees, the trial court considered parol evidence to ascertain the intent of the parties and held that the indemnification provision authorized the recovery of attorney’s fees in a dispute between the contracting parties. Accordingly, it held that IHS, as the prevailing party, was entitled to recover its attorney’s fees. Both parties appeal. We affirm the trial court in all respects but one, that being the award of attorney’s fees. We have determined the trial court erred by considering parol evidence to determine the meaning of the indemnification provision. We also find that the indemnification provision does not apply to contractual disputes between the parties. Accordingly, IHS is not entitled to recover its attorney’s fees in this action.

Davidson County Court of Appeals 05/15/17
Teresa Kocher, et al. v. Laua Bearden, et al.
W2016-02088-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Rhynette N. Hurd

This appeal involves a third-party’s attempt to intervene in this case in order to gain access to documents in the record, as the entire record was previously sealed by the trial court pursuant to an agreed order between the original parties. The trial court denied the third-party’s motion to intervene and also denied its motion to modify the order sealing the record. For the following reasons, we reverse the trial court’s denial of the motion to intervene, vacate its denial of the motion to modify the protective order sealing the record, and remand for further proceedings.

Shelby County Court of Appeals 05/15/17
Joyce Stockton, et al. v. Ford Motor Company-Partial Dissent
W2016-01175-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Roy B. Morgan, Jr.

Although I agree with the majority Opinion’s discussion of the improper jury instructions given by the trial court in this case, I cannot agree with the majority’s analysis with regard to the duty owed by Ford. Because Ford’s duty is a threshold issue that must be determined prior to any consideration of the jury instructions given by the trial court, I therefore file this partial dissent.

Madison County Court of Appeals 05/12/17
Joyce Stockton, et al. v. Ford Motor Company-Concur
W2016-01175-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Roy B. Morgan, Jr.

I concur fully in the majority Opinion. I also agree with the dissent that this Court “has no authority to overrule or modify Supreme Court’s opinions.” Bloodworth v. Stuart, 428 S.W.2d 786, 789 (Tenn. 1968). I, however, disagree with the dissent regarding duty of care as the Trial Court was in fact cognizant of and adhered to our Supreme Court’s majority opinion in Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008).

Madison County Court of Appeals 05/12/17
Joyce Stockton, et al. v. Ford Motor Company
W2016-01175-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Roy B. Morgan, Jr.

This is a jury case. Automobile mechanic and his wife, Appellees, filed suit against Appellant Ford Motor Company for negligence in relation to wife’s diagnosis of mesothelioma. Appellees allege that Ford’s brake products, which contained asbestos, were unreasonably dangerous or defective such that Ford owed a duty to warn Mr. Stockton so that he, in turn, could protect his wife from exposure to air-borne asbestos fibers. The jury returned a verdict against Ford for $3.4 million. Ford appeals. Because the jury verdict form is defective, in that it omits two necessary questions in products liability cases, i.e., that the product at issue was unreasonably dangerous or defective and that the plaintiff’s injuries were reasonably foreseeable, we vacate the judgment and remand.

Madison County Court of Appeals 05/12/17
Wondimu Borena v. Jason Jacocks, et al.
M2016-00449-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Thomas W. Brothers

This is a mechanic’s lien case. Appellee/auto repair shop agreed to repair Appellant’s vehicle for $5,267.30. Appellant paid this amount, but Appellee raised the estimate to $9,489.30. Appellant did not pay the additional costs. Under a purported mechanic’s lien, Tennessee Code Annotated Section 66-19-103, Appellee sold Appellant’s vehicle for $4,500.00. Appellant filed a complaint, seeking damages for conversion and for violation of the Tennessee Consumer Protection Act. The trial court dismissed Appellant’s Tennessee Consumer Protection Act claim. Concerning the conversion claim, the trial court held that Appellee did not have a valid mechanic’s lien and had converted the property. The trial court awarded $10,000.00 in damages to Appellant. Appellant appeals, arguing that the damage award is insufficient. Discerning no error, we affirm.

Davidson County Court of Appeals 05/12/17
J. Alexander's Holdings, LLC v. Republic Services, Inc.
M2016-01526-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Thomas W. Brothers

A Tennessee company brought an action in the Davidson County General Sessions Court against an Arizona company for breach of contract and negligence, seeking recovery for damage to plaintiff’s restaurant, which was located in Michigan. The case was dismissed on the ground of improper venue. Plaintiff appealed to the circuit court, which granted summary judgment to defendants on the basis of improper venue, lack of personal jurisdiction, and forum non conveniens. Plaintiff appeals. We reverse the holdings that the trial court lacked personal jurisdiction over the defendant and that venue was improper; we affirm the dismissal on the ground of forum non conveniens and vacate the denial of the motion to amend the complaint.

Davidson County Court of Appeals 05/12/17
In Re Sydney B.
M2016-01236-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge L. Craig Johnson

In this termination of parental rights case, prospective adoptive parents appeal the trial court’s dismissal of their petition after finding that father did not willfully fail to pay support for the child. We reverse and remand for further proceedings.

Coffee County Court of Appeals 05/12/17
In Re: Wesley P.
W2016-02131-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor W. Michael Maloan

This is the second appeal regarding the termination of Father’s parental rights with respect to this child. On October 22, 2014, the trial court entered an order terminating both Mother’s and Father’s rights to their son based on a finding of severe abuse and a determination that it was in the child’s best interest that both parents’ rights be terminated. Mother and Father appealed that determination to this Court. On May 29, 2015, this Court issued an opinion, In re Wesley P., No. W2014-02246-COA-R3-PT, 2015 WL 3430090 (Tenn. Ct. App. May 29, 2015), affirming the trial court’s finding of severe abuse but reversing the termination of parental rights on the basis that it was not in the best interest of the child to do so at that time. On January 12, 2016, DCS filed another petition to terminate Mother’s and Father’s parental rights, alleging several grounds for termination. Mother subsequently surrendered her parental rights to the child voluntarily, and her rights are not subject to this appeal. After a full hearing, the chancery court found by clear and convincing evidence that all grounds for termination alleged against Father existed and that termination of Father’s parental rights was in the best interest of the child. Father appeals. We affirm.

Weakley County Court of Appeals 05/12/17
Tracy Darrell Adkins v. Rhonda Forlaw Adkins
M2017-00495-COA-T10B-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Michael Binkley

After the trial court denied Wife’s motion to set aside the mediated Marital Dissolution Agreement and Permanent Parenting Plan and entered its order declaring the parties divorced, Wife filed a motion seeking recusal of the trial judge. The judge denied the motion, and Wife timely filed her petition for recusal appeal seeking an interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B from the trial court’s denial of her motion. We affirm the trial court’s decision to deny the motion for recusal.

Williamson County Court of Appeals 05/11/17