Court of Appeals Opinions

Format: 10/18/2019
Format: 10/18/2019
Patricia A. Graham v. Garrett Weaver Et Al.
E2018-00682-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Donald Ray Elledge

Plaintiff appeals the dismissal of her premises liability action for failure to show that Defendant was the owner of the premises or built the deck on which Plaintiff fell. Plaintiff has failed to file a trial transcript or statement of the evidence; consequently, we accord the trial court’s judgment a presumption that the evidence supports the holding and affirm the judgment.

Anderson County Court of Appeals 09/10/19
Sharon A. Loving v. Jonathan E. Loving
E2018-00667-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor M. Nichole Cantrell

Husband appeals from a divorce judgment and the entry of a permanent parenting plan, arguing that the trial court erred in not allowing him to put on any proof at the trial of this matter. For the reasons stated herein, and because we conclude that Husband should have been able to put on proof concerning the child’s best interests, we vacate the permanent parenting plan and remand for further proceedings consistent with this opinion.

Anderson County Court of Appeals 09/10/19
In Re Brenlee F.
E2018-01498-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor M. Nichole Cantrell

This action involves the termination of a mother’s parental rights to her minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the statutory grounds of abandonment by her (1) failure to visit; (2) failure to support; and (3) conduct that exhibited a wanton disregard for the child’s welfare. The trial court also found that termination was in the best interest of the child. We reverse the trial court on its finding that the mother abandoned the child by failing to remit support. We affirm the trial court on all other rulings.

Anderson County Court of Appeals 08/30/19
In Re: Kaden W.
E2018-00983-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Brian J. Hunt

This is a termination of parental rights case involving the parental rights of the mother, Tora W. (“Mother”), to her minor child, Kaden W. (“the Child”), who was eleven years old at the time of trial. On January 19, 2017, the Anderson County Juvenile Court (“trial court”) found that the Child was dependent and neglected and entered an order removing the Child from Mother’s custody and placing the Child into the temporary legal custody of the Tennessee Department of Children’s Services (“DCS”). The Child was immediately placed in foster care, where he remained at the time of trial. On December 20, 2017, DCS filed a petition to terminate the parental rights of Mother.1 Following a bench trial, the trial court terminated Mother’s parental rights to the Child upon determining by clear and convincing evidence that (1) Mother had abandoned the Child by failing to provide a suitable home for him, (2) Mother had not substantially complied with the reasonable requirements of the permanency plans, and (3) the conditions leading to the Child’s removal from Mother’s custody persisted. The trial court further found by clear and convincing evidence that termination of Mother’s parental rights was in the best interest of the Child. Mother has appealed. Discerning no reversible error, we affirm.

Anderson County Court of Appeals 05/13/19
Daniel James Finstad v. Jessica Ann Calfee Finstad
E2017-01554-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge M. Nicole Cantrell

In this action for divorce, alimony was the only remaining issue at trial. After the hearing, the trial court entered a final decree of divorce declaring that wife is an economically disadvantaged spouse pursuant to Tenn. Code Ann. § 36-5-121(f) and that husband is able to pay her alimony. The court held that there was no proof that wife was underemployed and no proof she could be rehabilitated; it therefore awarded wife alimony in futuro. We hold that the trial court abused its discretion in awarding wife alimony in futuro. We modify the trial court’s judgment so as to provide wife transitional alimony. As modified, the judgment of the trial court is affirmed. We remand this case to the trial court with instructions.

Anderson County Court of Appeals 10/19/18
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
Duracap Asphalt Paving Co. Inc. v. City of Oak Ridge et al.
E2017-02414-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge M. Nichole Cantrell

The unsuccessful bidder on a contract for a street resurfacing project brought suit against the City of Oak Ridge, alleging that the city had not followed the competitive bidding process mandated by its municipal code. Plaintiff’s complaint sought declaratory relief, equitable relief and damages, as well as review under a writ of certiorari. The trial court determined that the lawsuit presented a proper case for review under the common law writ of certiorari and dismissed the pleaded original causes of action, finding their joinder to be inappropriate. The certiorari action was later dismissed after the trial court determined that it was not supported by a proper oath or affirmation. On appeal, plaintiff challenges the trial court’s conclusion that this case was proper for certiorari review. We affirm.

Anderson County Court of Appeals 09/06/18
In Re: Estate of Michael Denver Shell
E2017-02146-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge M. Nicole Cantrell

In this probate action, the intestate decedent owned real property at the time of his death that was titled solely in his name. The decedent’s spouse subsequently died within 120 hours of the decedent’s death. The trial court ruled that, pursuant to Tennessee Code Annotated § 31-3-120 (2015), the spouse’s heirs possessed no claim to or interest in the real property at issue. The spouse’s heirs have appealed. Discerning no reversible error, we affirm the trial court’s ruling. We decline to award attorney’s fees to the decedent’s estate as damages, determining that this appeal is not frivolous.

Anderson County Court of Appeals 08/29/18
Paul Koczera, Et Al. v. Christi Lenay Fields Steele, Et Al.
E2017-02056-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge John D. McAfee

This negligence action primarily concerns a failed attempt at service of process in an underlying healthcare liability action filed in 2008. After the dismissal of a defendant doctor in the underlying suit, the plaintiffs filed the present case asserting that the defendants prevented the doctor from being served with process in the healthcare liability action. The defendants moved for summary judgment. The trial court, among other rulings, granted the motion for summary judgment, and the plaintiffs appealed the trial court’s various rulings. In an opinion filed on April 28, 2017, we affirmed the denial of the plaintiffs’ motions for default judgment, to dismiss their own complaint as moot, and for additional time to conduct discovery; however, we vacated the order granting the defendants’ motion for summary judgment and remanded the case for entry of an order that complied with Tennessee Rule of Civil Procedure 56.04. On remand, the trial court again granted summary judgment explaining that its decision was based on its conclusion that no duty of care was owed by the defendants to the plaintiffs. We affirm.

Anderson County Court of Appeals 08/20/18
Joseph J. Levitt, Jr. v. City of Oak Ridge, et al.
E2016-02140-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor M. Nichole Cantrell

Joseph J. Levitt (“Owner”), the owner of the Applewood apartment complex located in Oak Ridge, Tennessee, appeals the September 14, 2016 order of the Chancery Court for Anderson County (“the Trial Court”) granting summary judgment to the City of Oak Ridge, the Oak Ridge Board of Building and Housing Appeals, and Denny Boss (collectively “the City”) in this suit seeking to overturn the City’s order that six of the Applewood buildings be vacated and demolished. Owner raises issues on appeal regarding the adminstrative warrants and whether the decision of the board was arbitrary, capricious, or illegal. We find and hold that the adminstrative warrants satisfied the requirements of Tenn. Code Ann. § 68-120-117 and that the decision of the board was not arbitrary, capricious, or illegal. We, therefore, affirm the Trial Court’s grant of summary judgment.

Anderson County Court of Appeals 07/24/18
Randall E. Pearson, MD, Et Al. v. Paul Koczera, Et Al.
E2017-00258-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John D. McAfee

This appeal follows prior appeals in this litigation that has spanned a decade. In this latest appeal, the trial court determined that the motions filed by the administrator ad litem for the estate of the third-party plaintiff should be denied. We affirm.

Anderson County Court of Appeals 05/07/18
Warren R. Schede v. Anthony & Gordon Construction Co., Inc.
E2016-02318-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Donald Ray Elledge

A bookkeeper for two companies was terminated after his employers learned that he had a conviction for money laundering and mail fraud arising out of his previous employment. The employee filed suit, alleging that he was terminated because of his age, in violation of the Tennessee Human Rights Act, and his disability, in violation of the Tennessee Disability Act. The employers moved for summary judgment, asserting that the employee was terminated for poor performance and for not disclosing the prior conviction, that these grounds constituted legitimate, nondiscriminatory grounds for termination, and that the employee could not demonstrate that these grounds were a pretext for unlawful discrimination. The trial court granted summary judgment to the employers, and the employee appeals. Finding that there are genuine issues of material fact as to whether the asserted reasons for Plaintiff’s termination are pretextual, we reverse the judgment and remand the case for further proceedings.

Anderson County Court of Appeals 04/05/18
In Re: Estate Of Ernest Lester Salmons
E2017-00389-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge M. Nicole Cantrell

This appeal presents the issue of whether a trial court may properly transfer a probate proceeding that was allegedly filed in the wrong county to the county where the decedent was residing when he passed away. The administratrix of the probate estate was appointed by the Campbell County Chancery Court upon the filing of a verified petition alleging that the decedent died in Lake City, Tennessee. A defendant in a wrongful death lawsuit, subsequently filed by the administratrix regarding the death of the decedent, filed a motion in the Campbell County Chancery Court, seeking to have the previously issued letters of administration revoked because the decedent was residing in a nursing facility in Anderson County at the time of his death. Rather than revoking the letters of administration, the Campbell County Chancery Court transferred the probate matter to Anderson County. Subsequently, the Anderson County Chancery Court denied a similar motion, stating that it had no jurisdiction to revoke letters of administration issued by the Campbell County Chancery Court. The movant has appealed. Discerning no error, we affirm the Campbell County Court’s order transferring the probate action to Anderson County.

Anderson County Court of Appeals 03/14/18
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
Jason Donaldson v. Susan Donaldson
E2017-01806-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge M. Nicole Cantrell

This is an appeal from an order granting a motion filed pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. The order on appeal vacated and set aside the Final Decree of Divorce, Permanent Parenting Plan and Marital Dissolution Agreement previously entered by the Trial Court in the proceedings below. The appellee has filed a motion to dismiss this appeal arguing that the lack of a final judgment deprives this Court of jurisdiction. We agree and grant the motion to dismiss.

Anderson County Court of Appeals 11/09/17
Ray W. Buck v. Accurate C & Services, Inc., ET Al.
E2017-00231-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Donald Elledge

Ray W. Buck (“Plaintiff”) appeals the January 4, 2017 order of the Circuit Court for Anderson County (“the Trial Court”) granting summary judgment to Accurate C & S Services, Inc. (“Accurate”) and R&R Properties of Tennessee, LLC (“R&R”) in this suit for premises liability. We find and hold that the defendants made properly supported motions for summary judgment and that Plaintiff failed to respond with genuine disputed issues of material fact showing that a rational trier of fact could find in his favor. We, therefore, affirm the grant of summary judgment.

Anderson County Court of Appeals 11/06/17
Carl C. Smith, II v. Anderson County Sheriff Paul White, et al.
E2016-00656-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancelor M. Nichole Cantrell

This is an employment termination case involving a civil service employee. The petitioner was employed as a law enforcement officer with the Anderson County Sheriff’s Department (“the Department”) when the Department received notice from the Tennessee Department of Children’s Services (“DCS”) that the petitioner had been “indicated” as a perpetrator of child abuse in a DCS investigation pending in Roane County. The petitioner was placed on voluntary administrative leave. Upon subsequent notification that the DCS indication had been upheld through administrative review, the Department terminated the petitioner’s employment in November 2009. The petitioner appealed the termination to the Civil Service Board of the Anderson County Sheriff’s Department (“the Board”). While the appeal to the Board was pending, the petitioner filed a petition in the Roane County Chancery Court, seeking judicial review of DCS’s administrative decision. Upon review, the Roane County Chancery Court entered a judgment on August 3, 2012, reversing the classification and directing DCS to change the classification from “indicated” to “unfounded.” Through his counsel, the petitioner contacted Anderson County Sheriff Paul White to request reinstatement of his employment, but Sheriff White denied the request. Following a hearing conducted on August 6, 2013, the Board affirmed the Department’s termination decision and denied the petitioner’s motion for reinstatement filed during the hearing. The petitioner filed a petition for certiorari and review of the Board’s decision with the Anderson County Chancery Court (“trial court”) on September 4, 2013, naming the Board and Sheriff White as respondents (collectively, “Respondents”). The petitioner then filed a motion for partial summary judgment, averring that he had not been provided constitutionally sufficient notice of misconduct justifying termination. Following a hearing, the trial court, with Chancellor William E. Lantrip presiding, granted partial summary judgment in favor of the petitioner in an order entered February 27, 2014. The Respondents filed a “motion to revise order,” pursuant to Tennessee Rules of Civil Procedure 54 and 59. Following a hearing, the trial court, with Chancellor M. Nicole Cantrell now presiding, vacated the prior order granting partial summary judgment and affirmed the Board's decision. The petitioner has appealed to this Court. We affirm the portion of the trial court’s judgment affirming the Board’s decision to uphold the initial termination. However, having determined that the Board’s decision to uphold the denial of reinstatement was not supported by substantial and material evidence and yielded an arbitrary and capricious result, we reverse the trial court’s affirmance of the Board’s decision to uphold Sheriff White’s denial of the employee’s September 2012 request and the Board’s denial of the petitioner’s motion for reinstatement. We remand for entry of an order to reinstate the petitioner to his employment and a determination of back pay and other damages to be calculated from the point of his September 2012 request for reinstatement.

Anderson County Court of Appeals 05/01/17
Paul Koczera, et al v. Christi Lenay Fields Steele, et al.
E2015-02508-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge John D. McAfee

Plaintiffs brought suit asserting that defendants’ negligence prevented the proper defendant from being served with process in a healthcare liability action, as a result of which that defendant was dismissed from the suit. Contemporaneously with answering the complaint, Defendants moved for summary judgment on various grounds. Plaintiffs responded to the motion, disputing certain material facts and asking for additional time to conduct discovery. After settlement was reached in the healthcare liability suit, Plaintiffs filed a motion to dismiss their suit on the ground of mootness. The trial court denied plaintiffs’ motions for additional time for discovery and to dismiss their suit and granted Defendants’ motion for summary judgment. Plaintiffs thereafter filed a motion for default judgment against one defendant, which the trial court denied. Plaintiffs appeal the various rulings of the court. Upon our review, we affirm the denial of Plaintiffs’ motions for default judgment, to dismiss their complaint, and for additional time to conduct discovery in order to respond to the motion for summary judgment; we vacate the order granting summary judgment and remand the case for further proceedings.

Anderson County Court of Appeals 04/28/17
Trevor Howell v. Kennedy Smithwick
E2016-00628-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge M. Nicole Cantrell

Mother has appealed the trial court’s decisions regarding parenting time, criminal contempt, child support, and the child’s surname. We have determined that the trial court erred in finding Mother in criminal contempt as to one of the three incidents at issue, in setting temporary child support, in failing to order Father to pay child support by wage assignment, and in ordering the child’s surname to be changed to Father’s surname. In all other respects, we affirm the decision of the trial court.

Anderson County Court of Appeals 02/01/17
Richard Michelhaugh, et al v. Consolidated Nuclear Security, LLC
E2016-01075-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Donald Ray Elledge

This appeal arises from a dispute over vacation benefits. Richard Michelhaugh and John Williams (“Plaintiffs”), employees of Y-12 in Oak Ridge, filed suit in the Circuit Court for Anderson County (“the Trial Court”) against the contractor, Consolidated Nuclear Security, LLC (“CNS”), running their work site. Plaintiffs alleged that CNS deprived them of earned vacation time by changing the vacation policy mid work-year. CNS filed a Rule 12 motion to dismiss, which the Trial Court granted. Plaintiffs appeal to this Court. We find and hold that Plaintiffs alleged in their complaint that they were deprived of earned vacation time, that Plaintiffs’ allegations were sufficient to withstand CNS’s motion to dismiss, and that, therefore, the Trial Court erred in granting CNS’s motion to dismiss. We reverse the judgment of the Trial Court and remand this case for further proceedings.

Anderson County Court of Appeals 11/28/16
In re Dakota H. et al.
E2016-00036-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Darryl Edmondson

This is a termination of parental rights case focusing on the three minor children of Bobby H. (“Father”). On March 11, 2015, the Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate the parental rights of Father. DCS alleged as a basis for termination the statutory grounds of (1) abandonment by failure to provide a suitable home, (2) substantial noncompliance with the permanency plans, (3) persistence of the conditions leading to removal of the children, and (4) mental incompetence preventing adequate care of the children. Following a bench trial, the trial court granted the petition upon its determination by clear and convincing evidence that DCS had proven the statutory grounds of abandonment by failure to provide a suitable home and persistence of the conditions leading to removal of the children. The court further determined by clear and convincing evidence that termination of Father’s parental rights was in the children’s best interest. Father has appealed. Discerning no reversible error, we affirm.

Anderson County Court of Appeals 10/12/16
In re Dustin L. et al.
E2015-02265-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Brian J. Hunt

This is a termination of parental rights case focusing on the six minor children of Tonya F. (“Mother”) and Joshua F. (“Father”). On February 9, 2015, the Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate the parental rights of Mother and Father. DCS alleged as a basis for termination the statutory grounds of (1) failure to provide a suitable home, (2) substantial noncompliance with the permanency plans, and (3) persistence of the conditions leading to removal of the children. Following a bench trial, the trial court granted the petition upon its determination by clear and convincing evidence that DCS had proven all three statutory grounds alleged. The court further determined by clear and convincing evidence that termination of Mother’s and Father’s parental rights was in the children’s best interest. Mother and Father have appealed. Inasmuch as DCS has conceded that the elements of abandonment through failure to provide a suitable home were not proven as to either party, we reverse this statutory ground. We affirm the trial court’s judgment in all other respects, including the termination of Mother’s and Father’s parental rights to the children.

Anderson County Court of Appeals 09/28/16
Randall E. Pearson, M.D. et al. v. Paul Koczera et al.
E2015-02081-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John D. McAfee

This appeal arises from the trial court’s determination that it was without jurisdiction, following a prior appeal in the same matter, to act upon a motion seeking to alter or vacate an order entered after remand. The administrator ad litem for the third-party plaintiff has appealed from the trial court’s order determining that it lacked jurisdiction to act on her motion following remand. We determine that the trial court did possess jurisdiction to act on pending motions following the remand from the appellate courts. We therefore vacate the trial court’s order and remand this case for further proceedings. We also vacate the trial court’s order granting sanctions against the administrator ad litem for filing her motion to alter or vacate.

Anderson County Court of Appeals 09/23/16
In Re Mickia J.
E2016-00046-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Brian J. Hunt

This is a termination of parental rights case. Appellant/Father appeals the termination of his parental rights on the sole ground of persistence of the conditions that led to the child’s removal. Tenn. Code Ann. §36-1-113(g)(3). As a threshold requirement, in order for the persistence of conditions ground to apply in termination of parental rights proceedings, there must be a prior order adjudicating the child to be dependent and neglected. No such order is included in the appellate record. Furthermore, it is undisputed that Appellant was incarcerated at the time the child was removed from the home. Removal of the child from the parent’s home is a threshold requirement for applicability of the persistence of conditions ground. Because there is no order on dependency and neglect and because the child was not removed from Appellant’s custody or home, we conclude that the threshold requirements for applicability of the persistence of conditions ground are not met in this case. Reversed and remanded.

Anderson County Court of Appeals 09/19/16
In Re Joshua C.
E2016-00081-COA-R3-PT
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Brian J. Hunt

The mother of a child born in January 2015 appeals the termination of her parental rights. In March 2015, the two-month-old child was placed in state custody after the Department of Children’s Services received a referral that the child had been exposed to drugs in utero. Thereafter, the juvenile court adjudicated the child dependent and neglected and found that the mother had committed severe child abuse as defined in Tenn. Code Ann. § 37-1-102(b)(21). The mother did not appeal this order. In June 2015, the Department filed a petition for termination of parental rights. After a hearing, the trial court found the evidence clearly and convincingly established that the mother committed severe child abuse and that termination of the mother’s parental rights was in the child’s best interests. We affirm.

Anderson County Court of Appeals 07/28/16