Court of Appeals Opinions

Format: 07/14/2020
Format: 07/14/2020
Carol Buckley v. The Elephant Sanctuary In Tennessee, Inc.
M2020-00883-COA-T10B-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Deanna Bell Johnson

This is an accelerated interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B, from the trial court’s denial of a motion for recusal. Having reviewed the petition for recusal appeal, pursuant to the de novo standard as required under Rule 10B, § 2.01, we reverse the trial court’s decision to deny the motion for recusal and remand with instructions for another judge to be designated to preside over this case.

Lewis County Court of Appeals 07/14/20
Douglas D. Dailey v. Violet L. Dailey
E2019-00928-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Tammy M. Harrington

This appeal arises from a divorce action. During the trial court proceedings, the parties agreed on a distribution of a majority of the marital property. However, a hearing was necessary concerning missing gold and silver that had been purchased during the marriage. The Trial Court found Husband not to be a credible witness. The Trial Court further found that the gold existed, that Husband had control of the safe room where the gold was located, and that Husband was responsible for the gold being missing. Husband appeals the Trial Court’s judgment to this Court. Discerning no error, we affirm.

Blount County Court of Appeals 07/13/20
In Re Daniel B. Jr. Et Al.
E2019-01063-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Brian J. Hunt

A mother appeals the termination of her parental rights to her children. The juvenile court determined that there were five grounds for terminating the mother’s parental rights and that termination of her parental rights was in the children’s best interest. Because the record contains clear and convincing evidence to support both the grounds for termination and the best interest determination, we affirm.

Anderson County Court of Appeals 07/10/20
Kimberley Arnold Bates v. Charles Anthony Bates
M2019-00505-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Clara W. Byrd

A wife filed for divorce after approximately seventeen years of marriage. Following a bench trial, the trial court declared the parties divorced, divided the marital estate, and awarded the wife alimony in futuro. The husband appealed, challenging the trial court’s valuation of his separate property interest in a closely held corporation and the division of the marital estate. We have determined that the trial court erred in undervaluing the husband’s separate property interest and modify the valuation to $255,000. Because the trial court failed to allocate all of the marital debt, we vacate the trial court’s division of the marital estate and award of alimony and remand the case for further consideration.

Wilson County Court of Appeals 07/09/20
Robin Drewry Luttrell (Wassenberg) v. Samuel Richard Wassenberg
W2017-02443-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Martha B. Brasfield

Five years after the parties’ divorce, the father relocated to another state. Both parents moved for modification of the joint parenting plan, seeking to be named primary residential parent. Finding that the father’s move was a material change in circumstances, the court entered a temporary plan that designated the mother as primary residential parent. Before trial, the court sanctioned the father for his complete failure to respond to the mother’s Rule 34 requests. After a trial, the court found that modification of the parenting plan was in the child’s best interest. The modified plan named the mother the primary residential parent and substantially reduced the father’s parenting time. The court also modified child support retroactive to the date of the mother’s petition and found the father in both civil and criminal contempt. Because the court’s final order lacks sufficient findings of fact and conclusions of law to explain its modification decision, we vacate that part of the court’s order and remand for entry of an order in compliance with Rule 52.01 of the Tennessee Rules of Civil Procedure. We also vacate the post-trial civil contempt sanctions imposed by the court for the father’s violation of the modified plan. In all other respects, we affirm.

Fayette County Court of Appeals 07/09/20
In Re Nehemiah H. Et Al.
M2019-01167-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Elizabeth C. Asbury

This dependency and neglect action focuses on ten siblings: Josiah, Nehemiah, Jonathan, Hadasah, Nathaniel, Noah, Hope, Malachi, Obadiah, and Grace (“the Children”), whose ages ranged from eighteen years to one year at the time of trial. All of the Children were born during the marriage of Amy H. (“Mother”) and Timothy H. (“Father”). The Children were taken into the custody of the Department of Children’s Services (“DCS”) based on allegations of abuse and neglect by the parents. The Fentress County Juvenile Court (“juvenile court”) determined that the Children were dependent and neglected, and the parents appealed that ruling to the Fentress County Circuit Court (“trial court”). Following a de novo trial, the trial court also determined that the Children were dependent and neglected and that the parents had committed severe child abuse. Both Mother and Father have appealed. Discerning no reversible error, we affirm.

Fentress County Court of Appeals 07/08/20
Helen M. Bell v. D. Breck Roberts, II
M2018-02126-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge James G. Martin, III

The plaintiff filed this personal injury action seeking compensation for injuries allegedly sustained in an automobile accident. The jury found in favor of the defendant and awarded zero damages. On appeal, the plaintiff argues that the jury verdict was inadequate and the special verdict form was misleading. We conclude that there is material evidence in the record to support the jury award. And we deem the plaintiff’s second issue waived. So we affirm.

Williamson County Court of Appeals 07/08/20
In Re Jaxon W. H.
E2019-01836-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Douglas T. Jenkins

A father appeals the trial court’s decision terminating his parental rights on the grounds of abandonment by failure to support and failure to visit. Finding clear and convincing evidence to support both grounds and that termination of the father’s parental rights is in the child’s best interest, we affirm the trial court’s decision.

Hamblen County Court of Appeals 07/02/20
Sinan Gider v. Lydia Hubbell
M2018-01941-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Sheila Calloway

The mother of an eight-year-old child petitioned to have the primary residential parent designation changed from the father to herself. The juvenile court found she failed to show that a material change of circumstance warranted such a change, and she appealed. We affirm the juvenile court’s judgment.

Davidson County Court of Appeals 07/01/20
In Re Easton W.
E2018-01883-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert D. Philyaw

This consolidated appeal concerns a father’s action, filed pro se, to be granted custody of his child, or, in the alternative, reasonable visitation without the requirement of paying child support. Following a series of hearings in juvenile court, the father was named the primary residential parent, a permanent parenting plan was adopted, and the child support proceedings were assigned a separate docket number to be handled by Maximus/Child Support Services. Because the action was originally yet mistakenly filed as a dependency and neglect action by the father, the mother appealed the juvenile court’s decision to circuit court. On the father’s motion to alter or amend, the juvenile court struck the dependency and neglect language from its order, and the circuit court then dismissed the action for lack of subject matter jurisdiction. We affirm the juvenile court’s decision in decreeing this matter a paternity and visitation action, and we find that the circuit court correctly held that it lacked subject matter jurisdiction over the appeal.

Hamilton County Court of Appeals 07/01/20
Leo Landry, Et Al. v. Sumner County Board of Education
M2019-01696-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Joe H. Thompson

This is a negligence case arising out of an injury suffered by a middle school student when a chair fell on his finger in his school’s lunchroom. The trial court determined that summary judgment was warranted as a matter of law because there was insufficient evidence to demonstrate that a dangerous condition existed and because the incident was not foreseeable.  We conclude that there is no dispute of material fact and that summary judgment in favor of the school district was properly granted; accordingly, we affirm.

Sumner County Court of Appeals 06/30/20
In Re: Lachlan B., Et Al.
E2019-01698-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge Robert D. Arnold

This appeal concerns the trial court’s decision to change the non-marital children’s surname from that of the mother to the father. We vacate the trial court’s decision and remand for findings of fact to facilitate appellate review.

Washington County Court of Appeals 06/30/20
Lois Irene Davis, Et Al. v. 3M Company, Et Al.
M2018-02029-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Senior Judge Robert E. Lee Davies

In this wrongful death action, the plaintiff, the decedent’s spouse, asserted claims against multiple defendants. The plaintiff settled with all but one of the defendants prior to trial, and the settling defendants were dismissed from the case. At trial, the sole remaining defendant asserted the comparative fault of the decedent and the settling defendants. The jury assigned percentages of fault to the decedent, the defendant, and the settling defendants but returned a verdict in favor of the plaintiff. The jury found noneconomic damages that, when reduced by the percentage of the decedent’s fault, exceeded the statutory cap. So the trial court entered a judgment against the defendant based on its percentage fault as applied to the statutory cap. On appeal, the plaintiff argues that the statutory cap was incorrectly applied. We affirm.

Maury County Court of Appeals 06/30/20
DANA MARLENE PAGLIARA v. TIMOTHY J. PAGLIARA
M2019-01397-COA-R9-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Deanna B. Johnson

This interlocutory appeal arises from a pending divorce action. During discovery, the husband sought certain communications between the wife and her attorneys. During some of these meetings between the wife and her attorneys, a third party was present during discussions of whether the wife should report conduct by the husband to law enforcement. The wife could not identify which of the meetings the third party had been present and which she had not. Because the wife did not meet her burden of proof in demonstrating that attorney-client privilege applied to the communications, we affirm the judgment of the Trial Court.

Williamson County Court of Appeals 06/29/20
Greg Calfee Builders LLC v. Neill Magee and Diane Magee
E2019-00905-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jerri S. Bryant

This appeal concerns an alleged breach of contract. Greg Calfee (“Mr. Calfee”), on behalf of Greg Calfee Builders LLC (“GCB”), and Neill MaGee (“Mr. MaGee”) signed an agreement (“the Contract”) whereby GCB would custom-build a home for Mr. MaGee and his wife, Diane MaGee (“the MaGees,” collectively). Mr. MaGee, citing a number of construction defects, later terminated GCB from the job and told Mr. Calfee that GCB could not come back despite GCB’s willingness and offer to correct the defects. GCB sued the MaGees in the Chancery Court for Bradley County (“the Trial Court”) seeking to recover money it alleged was still owed to it. Mr. MaGee filed a counterclaim. GCB filed a motion for summary judgment, which the Trial Court granted. The MaGees appeal. We find and hold, inter alia, that under both Tennessee caselaw and the Contract, Mr. MaGee was required to give GCB notice and a reasonable opportunity to cure the defects, yet he failed to do so. GCB is entitled to judgment as a matter of law. We affirm.

Bradley County Court of Appeals 06/29/20
In Re Zaliyah S. et al.
M2019-01241-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Philip E. Smith

This is a dependency and neglect case focusing on twin siblings (collectively, “the Twins”), who are the minor children of Tamika S. (“Mother”). The Twins were taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) upon an investigation prompted by a referral that Mother had given birth to the Twins after she had previously lost custody of one of her other children due to nutritional and medical neglect. Following Mother’s refusal to comply with DCS’s request to perform a health check on the Twins, DCS filed a petition for custody and emergency removal. The Juvenile Court for Davidson County (“juvenile court”) conducted a hearing and adjudicated the Twins dependent and neglected upon its finding that Mother had committed severe child abuse. The juvenile court awarded DCS legal and physical custody of the Twins. Mother appealed to the Circuit Court for Davidson County (“trial court”), which, following a de novo trial, issued a final order determining that Mother had perpetrated severe child abuse upon the Twins while they were in her care. Consequently, the trial court adjudicated the Twins dependent and neglected. The trial court ordered that it would be in the Twins’ best interest to remain in DCS custody. Mother has appealed. Discerning no reversible error, we affirm.

Davidson County Court of Appeals 06/26/20
In re Khrystchan D.
M2018-01107-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Shelia Calloway

In this appeal from Juvenile Court, the Mother of the parties’ child appeals the order holding her in criminal contempt for failing to present the child for Father to exercise parenting time and the order changing the child’s surname to that of the Father; the Father appeals the designation of Mother as primary residential parent. Upon a thorough review of the record, we affirm the judgment holding Mother in contempt and designating Mother as primary residential parent; we vacate the judgment changing the child’s surname and remand the case for the court to make specific findings as to whether the name change is in the child’s best interest.

Davidson County Court of Appeals 06/26/20
Anthony D. Herron v. State of Tennessee
W2020-00776-COA-T10B-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Commissioner James A. Hamilton, II

This is an accelerated interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B, from the trial court’s denial of a motion for recusal. Having reviewed the petition for recusal appeal, pursuant to the de novo standard as required under Rule 10B,
§ 2.01, we affirm the claims commissioner’s decision to deny the motion for recusal.

Court of Appeals 06/25/20
In re Shyanne H. et al.
M2019-02127-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Sharon Guffee

This is a termination of parental rights case brought by the Tennessee Department of Children’s Services. The juvenile court terminated the parental rights of the mother and the father on the grounds of persistence of conditions and severe child abuse, pursuant to Tennessee Code Annotated sections 36-1-113(g)(3) and 36-1-113(g)(4), respectively. The juvenile court also terminated the father’s parental rights on the additional ground of severe child abuse pursuant to Tennessee Code Annotated section 36-1-113(g)(5). The Mother appealed the grounds for termination as well as the juvenile court’s finding that termination was in the children’s best interests, while the father only appealed the juvenile court’s best interests finding. Discerning no reversible error, we affirm.

Williamson County Court of Appeals 06/25/20
In Re Estate of Doris Marie Sublett Dorning
M2020-00787-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Michael E. Spitzer

A Tennessee Supreme Court Rule 10B petition for recusal appeal was filed in this Court following the trial court’s denial of a motion for recusal. For the reasons stated herein, we affirm the trial court’s denial of the motion.

Lewis County Court of Appeals 06/25/20
James V. Holleman v. Barbara J. Holleman
E2019-02163-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

This is the second appeal of this case. In Holleman v. Holleman, No. E2018-00451- COA-R3-CV, 2019 WL 2308066 (Tenn. Ct. App. May 30, 2019), this Court remanded the case to the trial court for the sole purpose of determining the amount of Husband’s reasonable attorney’s fees and expenses under the parties’ Marital Dissolution Agreement. On remand, Appellee/Husband provided an attorney affidavit and timesheets to support his request for $11,260.00 in fees. Appellant/Wife provided no evidence to dispute the amount, and the trial court entered judgment for Husband for the full amount. Wife contends that she did not receive proper notice of the hearing on Husband’s motion and further contends that the trial court erred in awarding Husband his attorney’s fees and expenses. Discerning no error, we affirm.

Knox County Court of Appeals 06/25/20
Janet Tidwell v. Holston Methodist Federal Credit Union, et al.
E2019-01111-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kristi M. Davis

Former CEO brought an action for libel, false light invasion of privacy, and retaliatory discharge pursuant to the Tennessee Public Protection Act. In this appeal from the trial court’s dismissal of the amended complaint pursuant to Tennessee Rule of Civil Procedure 12.02(6), we affirm the trial court.

Knox County Court of Appeals 06/25/20
Thomas Robert Blakemore v. Lynn Ann Blakemore
W2018-01391-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Carma Dennis McGee

This divorce action concerns the trial court’s division of the marital estate, calculation of child support, and its denial of alimony and attorney fees. We affirm in part, vacate in part, and remand for proceedings consistent with this opinion.

Henry County Court of Appeals 06/25/20
In Re Conservatorship of John Martin Muldoon
E2019-01621-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Larry Michael Warner

This appeal arises from a petition to appoint a conservator under Tennessee Code Annotated section 34-1-121. The petitioner/wife was originally appointed as conservator of respondent/husband in October 2018. Thereafter, the parties could not agree on an appropriate Statement of Evidence. The trial court ordered a new hearing so a court reporter could be present to provide a Transcript of Evidence. The respondent filed an appeal to this Court, which was dismissed for lack of appellate jurisdiction due to the non-final order. A new hearing took place in July 2019. The trial court found petitioner met her burden under Tennessee Code Annotated sections 34-1-101(7) and 34-1-126 and appointed the petitioner as conservator over the respondent’s person and property. The respondent appealed.

Cumberland County Court of Appeals 06/25/20
Anthea Hendrix Toutges v. Jennifer McKaig
E2019-01538-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor M. Nichole Cantrell

The Notice of Appeal filed by the appellant, Anthea Hendrix Toutges, stated that the appellant was appealing the judgment entered on August 19, 2019. As the August 19, 2019 order does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

Anderson County Court of Appeals 06/25/20