Court of Appeals Opinions

Format: 12/20/2014
Format: 12/20/2014
Buddy J. Webb, et al. v. Brent Douglas, et al.
W2014-00299-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ben H. Cantrell

Landowners, whose properties abut a gravel road that  crosses over the land of another, claim the right to use that road for ingress and egress.  The trial court found the gravel road was formerly a public road, but that the road ceased being a public road at some point.  Once the road ceased being a public road, the trial court found the landowners whose land abutted the road had a permanent easement and right to use the road for ingress and egress purposes.  The landowners over whose property the road crosses appealed.  We affirm the trial court’s judgment.

Benton County Court of Appeals 12/09/14
Lloyd L. Meyers v. Farmers Aid Association of Loudon County, Tennessee
E2013-02585-COA-R9-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Russell E. Simmons, Jr.

This is an interlocutory appeal from the denial of Appellant insurer’s motion for summary judgment in an action on a homeowner’s policy that contained a contractual one-year statute of limitations. The Appellee insured filed suit eighteen months after the loss occurred. In the trial court, the Appellant insurer moved for summary judgment, arguing that the one-year statute of limitations in the Appellee insured’s policy was a bar to his action. The trial court agreed with the Appellee’s interpretation of the policy provisions and denied the motion for summary judgment. This court granted the Appellant’s application for interlocutory appeal. Following our review, we reverse the trial court’s decision and remand the case for entry of summary judgment in favor of Appellant.

Loudon County Court of Appeals 12/09/14
Gary Connell, et al. v. Mia Scullark
W2014-00587-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge James F. Russell

Purchaser of real estate at a foreclosure sale filed a forcible entry and detainer action against the occupant of the real estate. The General Sessions Court of Shelby County awarded possession, despite the objection of an individual claiming she purchased the real estate prior to the foreclosure sale. On appeal, the Shelby County Circuit Court granted the foreclosure purchaser’s motion for summary judgment and affirmed the judgment of the general sessions court. The pre-foreclosure purchaser appeals. Finding that the pre-foreclosure purchaser lacks standing, we affirm the judgment of the Shelby County Circuit Court.

Shelby County Court of Appeals 12/08/14
Heather Lynn Spigner v. Michael Dean Spigner
E2013-02696-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Larry Michael Warner

In this post-divorce proceeding, Wife appeals the denial of her motion to partially set aside the final decree of divorce, the denial of two civil contempt petitions, and the trial court’s ruling with regard to the parties’ competing motions for modification of the parties’ permanent parenting plan. Because the order in the record with regard to both the contempt and parenting plan issues contain insufficient findings of fact or conclusions of law, we vacate and remand those issues to the trial court for reconsideration. We, however, affirm as to the denial of Wife’s motion to partially set aside the final divorce decree.

Cumberland County Court of Appeals 12/08/14
Audrey Bonner, et al. v. Dean Deyo, et al.
W2014-00763-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Donna M. Fields

This appeal results from the trial court’s suggestion of additur to a jury verdict stemming from an automobile accident. Plaintiff sued for damage to her vehicle and physical injuries sustained when she was rear-ended by one of the defendants. Plaintiff’s husband also asserted a loss of consortium claim. The plaintiffs sued both the driver of the vehicle and the vehicle’s owner, also husband and wife. As the matter of liability was stipulated, the only issues submitted to the jury was the amount of damages, if any, suffered by the plaintiffs. The jury returned a verdict awarding plaintiff $3,577.00 for her medical expenses, but declined to award the plaintiffs any damages claimed for other injuries, including any pain and suffering, loss of enjoyment of life, or loss of consortium. The trial court suggested an additur of $10,000.00 to the jury verdict. Defendants accepted the additur under protest and timely appealed to this Court. Discerning no error, we affirm.

Shelby County Court of Appeals 12/05/14
Laurie McCallen Bainer, et al. v. Mamie Ruth McCallen, et al.
W2014-00627-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Walter L. Evans

Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 12/03/14
J. L. Fralix v. The University of Tennessee
M2014-00342-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Russell T. Perkins


Plaintiff, a former employee of the Middle Tennessee Research and Education Center of the University of Tennessee, appeals the termination of his employment for gross misconduct in violation of the University’s Code of Conduct. He contends the statement he admittedly made to a female employee on university property did not justify termination of his employment. We affirm the termination of plaintiff’s employment.

Davidson County Court of Appeals 12/02/14
Phyllis Louise Bige v. City of Etowah
E2014-00271-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge J. Michael Sharp

Phyllis Louise Bige, a former police officer with the City of Etowah, brought this retaliatory discharge action against the City, alleging that she was fired because of her failure to meet a quota for citations. Her claim was predicated on Tenn. Code Ann § 39-16-516 (2014). The trial court granted defendant summary judgment, finding that an earlier judgment of the United States District Court dismissing plaintiff’s federal claims – including a claim that her substantive due process rights were violated because defendant required her to commit an illegal act – collaterally estopped plaintiff from proceeding with her retaliatory discharge claim under Tenn. Code Ann. § 50-1-304 (2014). We affirm the summary judgment of the trial court, but on different grounds. We hold that defendant demonstrated plaintiff’s evidence is insufficient to establish a genuine issue of material fact as to two essential elements of her claim – (1) that she refused to participate in an illegal activity, and (2) that defendant fired her solely because of her refusal to participate in an illegal activity. We affirm the grant of summary judgment.

McMinn County Court of Appeals 12/01/14
In Re E.L.R.
E2014-00394-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Frank V. Williams, III

S.R. (Mother) and D.M.S. (Father) challenge the order (1) terminating their parental rights with respect to their minor son, E.L.R. (the Child) and (2) approving the adoption of the Child by his legal custodian and maternal grandmother, E.W. (Grandmother) and her husband, T.C.W. Jr. (T.W.) (collectively, Grandparents). After a trial, the court found, by clear and convincing evidence, that (1) grounds for termination exist as to both Mother and Father and (2) termination is in the best interest of the Child. The court further found, also by clear and convincing evidence, that the adoption of the Child by Grandparents is in the Child’s best interest. Mother and Father appeal. They contest the finding of grounds for termination as well as the trial court’s best interest determination. We affirm.

Loudon County Court of Appeals 12/01/14
Sherry Juanita Carter Berkshire v. Edwin Carl Berkshire, III
E2014-00022-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Dennis W. Humphrey

The primary issue in this divorce case is whether the trial court erred in failing to find that Sherry Juanita Carter Berkshire (Wife) was entitled to long-term alimony in futuro from Edwin Carl Berkshire, III (Husband). Instead, the court awarded four months of transitional alimony. Wife, who was sixty at the time of the divorce, has numerous health problems and is totally and permanently disabled. Husband, who is twenty years her junior, is able-bodied and works as an automobile mechanic, with an earning capacity of at least $62,000 per year. Taking into account the relevant statutory factors and the totality of the circumstances, we modify the trial court’s alimony judgment to make it an alimony in futuro award in the amount of $150 per week. We decline Wife’s request to increase the trial court’s award of attorney’s fees to her, but we do award Wife a reasonable attorney’s fee for professional services rendered, plus expenses, in connection with this appeal, in an amount to be determined by the trial court on remand. Further, we modify the trial court’s decree requiring Wife to refinance the mortgage on the marital residence. As modified in the ways indicated, we affirm the trial court’s judgment.

Roane County Court of Appeals 12/01/14
Scott Elmer McCarter v. Debra Lynn Walker McCarter
E2013-00890-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ben W. Hooper, II

In this divorce action involving the dissolution of a thirty-six year marriage, the wife appeals the trial court’s distribution of the marital estate and the amount of alimony in futuro she was awarded by the court. She also contends that the trial court judge erred by denying multiple motions for his recusal. Discerning no reversible error, we affirm.

Sevier County Court of Appeals 12/01/14
John Wayne McDonald v. Jamie Rhea McDonald Bunnell
M2014-00581-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Timothy L. Easter

John Wayne McDonald (“Father”) and Jamie Rhea McDonald Bunnell (“Mother”) had two children during their marriage before divorcing in 2012. The permanent parenting plan entered with the divorce named Mother the primary residential parent. After Mother remarried and relocated with the children, Father filed a petition to modify the existing parenting plan and asked the court to designate him the children’s primary residential parent. Father argued that the behavior of Mother’s new husband (“Stepfather”) around the children constituted a material change in circumstance and that the modification would be in the children’s best interest. At a hearing, Father presented evidence that Stepfather used foul language around the children and had, in jest, referred to them using a racial slur.  The trial courtfound thatStepfather’sbehavior,though “distastefuland ill-advised,”did not constitute a material change in circumstance. Father appealed. After careful consideration, we conclude that the evidence in the record does not preponderate against the trial court’s finding. We affirm the judgment of the trial court.

Lewis County Court of Appeals 11/26/14
Daniel Louis Pinkava v. Tawania Leigh Kovacs-Pinkava
M2013-02375-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Laurence M. McMillan, Jr.

This appeal involves the interpretation of a marital dissolution agreement (“MDA”). Wife filed suit to clarify the terms of the MDA regarding the apportionment of Husband’s future military retirement.  The trial court held that the MDA granted Wife twenty-five percent of Husband’s retirement benefits at the rank of captain, his rank at the time of divorce, including cost-of-living adjustments that will be in effect when he elects to retire. Husband appeals and argues that the award of retirement benefits was intended to be alimony in solido and was ascertainable at the time of divorce rather than at the time he elects to retire. We agree with the trial court’s interpretation and affirm the trial court in all respects.

Montgomery County Court of Appeals 11/26/14
In Re: MacKeznie N., et al.
M2013-02805-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ronald Thurman

Mother appeals the termination of her parental rights on the grounds of abandonment, contending that any failure to support or visit her children was not willful.Mother argues that her failure to support her children was a result of poverty and that her failure to visit was caused by obstruction on the part of the children’s grandmother/guardian. We find that the children’s grandmother/guardian failed to prove by clear and convincing evidence the existence of at least one of the statutory grounds for termination. We therefore reverse the termination of Mother’s parental rights.

Overton County Court of Appeals 11/26/14
Eric D. Brooks, et al. v. Tennessee Farmers Mutual Insurance Company
M2013-02326-COA-r3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor C. K. Smith

Plaintiffs filed suit against their property insurer for breach of their homeowner’s insurance policy to recover for damages sustained to their home as a result of a tornado; Plaintiffs also alleged that Defendant violated the Tennessee Consumer Protection Act (“TCPA”). A jury found that Defendant’s actions violated the TCPA and awarded damages to Plaintiffs. Finding Defendant’s conduct to be willful, the trial court doubled the jury’s award; the court also awarded Plaintiffs attorneys fees and costs. Defendant appeals. We modify the award of costs to Plaintiffs; in all other respects, we affirm the judgment of the trial court.

Macon County Court of Appeals 11/26/14
In Re: Paige A.F., et al.
E2014-00450-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Brandon Fisher

The State of Tennessee Department of Children’s Services (“DCS”) filed a petition seeking to terminate the parental rights of Joann P.F. (“Mother”) and Gary A.M. (“Father”) to the minor children, Paige A.F., Tristan J.A.M., and Gaige D.W.M. (“the Children”). After a trial, the Juvenile Court for Anderson County (“the Juvenile Court”) terminated Mother’s and Father’s parental rights to the Children after finding that clear and convincing evidence was proven of grounds to terminate Mother’s and Father’s parental rights for substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2) and for persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3), and that clear and convincing evidence was proven that it was in the Children’s best interest for Mother’s and Father’s parental rights to be terminated. Mother and Father appeal the termination of their parental rights to this Court. We find and hold that the evidence does not preponderate against the Juvenile Court’s findings made by clear and convincing evidence, and we affirm.

Anderson County Court of Appeals 11/26/14
Gregory Lance Peterson v. Tiara Blanco (Peterson)
W2014-01423-COA-R10-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Karen R. Williams

This matter arises from post-divorce proceedings regarding the parties’ minor child. Mother filed an application for extraordinary appeal after the trial court designated Father as Temporary Primary Residential Parent and ordered that Father could enroll the parties’ child in a school in his school district. Mother’s application submitted three issues for review, but we grant extraordinary review only as to the issue regarding the trial court’s order designating Father as Temporary Primary Residential Parent and ordering that Father could enroll the parties’ child in a school in his school district. We vacate and remand.

Shelby County Court of Appeals 11/26/14
Sheila Christine Jones Calloway v. Willard Randall Calloway
E2014-00558-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Frank V. Williams, III

This appeal arises from a divorce. Sheila Christine Jones Calloway (“Wife”) sued Willard Randall Calloway (“Husband”) for divorce in the Chancery Court for Roane County (“the Trial Court”). The Trial Court granted Wife a divorce on the ground of adultery by Husband. The Trial Court equally divided the parties’ marital residence but awarded Husband’s onehalf interest in the marital residence to Wife as alimony in solido. The Trial Court also awarded Wife alimony in futuro and attorney’s fees. Husband appeals. Given the parties’ relative earning capabilities and other relevant circumstances of this case, we affirm the Trial Court’s award to Wife of Husband’s one-half interest in the marital residence as alimony in solido. However, once Wife was awarded Husband’s one-half interest in the marital residence, she no longer was financially disadvantaged relative to Husband, and, therefore, the Trial Court erred in awarding Wife alimony in futuro and attorney’s fees. We affirm, in part, and, reverse, in part, the judgment of the Trial Court.

Roane County Court of Appeals 11/26/14
In Re: Jacob B.
M2014-00933-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ronald Thurman

In this termination of parental rights case, Father appeals the trial court’s finding that termination of his parental rights is in the child’s best interests. Father was convicted of murdering the child’s mother and is imprisoned on a life sentence. We have reviewed the evidence and affirm the trial court in all respects.

White County Court of Appeals 11/25/14
In Re: Caira D. et al.
M2014-01229-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Sammie E. Benningfield, Jr.

Department of Children’s Services filed petition to terminate mother and father’s parental rights to two minor children. Mother subsequently surrendered her parental rights, and the trial court found father abandoned the minor children by willful failure to support and willful failure to visit. The trial court also found termination of father’s parental rights was in the best interests of the children. Father appeals. We affirm the trial court’s finding that father abandoned his children by willfully failing to support them;however,we have concluded that the evidence is insufficient to clearly and convincingly establish that father’s visitation with his children was merely token and that he willfully failed to visit his children. We affirm the trial court’s finding that termination of father’s parental rights is in the best interests of the children. Therefore, we affirm the termination of father’s parental rights.
 

White County Court of Appeals 11/25/14
Earl T. Adams v. Air Liquide America, L. P. et al.
M2013-02607-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas W. Brothers

The sole issue presented in this appeal concerns the constitutionality of Tenn. Code Ann. § 29-28-103, the ten-year statute of repose under the Tennessee Products Liability Act and the exceptions to the statute of repose for asbestos claims and silicone gel breast implant claims, but not for silica-related claims. After working as a sandblaster for thirty years, Plaintiff developed silica-related injuries. Thereafter, Plaintiff commenced a products liability action against several silica manufacturers and suppliers, which was filed outside the ten-year period. When the defendants moved for summary judgment contending the action was timebarred by the ten-year statute of repose, Plaintiff challenged the constitutionality of the statute of repose as applied to silica claimants on equal protection grounds. Utilizing a rational basis analysis, the trial court found that silica claims were not similarly situated by injury or class to asbestos claims, and, if they were similarly situated, a rational basis exists to distinguish between the two. The trial court also found that silica has no similarity to silicone gel breast implants. Thus, the trial court summarily dismissed the action as timebarred based on the ten-year statute of repose under the Tennessee Products Liability Act, specifically Tenn. Code Ann. § 29-28-103(a). We affirm.

Davidson County Court of Appeals 11/25/14
Claude R. Ellis v. Melisa Jane Godfrey Ellis
E2013-02408-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jerri S. Bryant

The issue on this appeal is whether the parties’ prenuptial agreement (the agreement) is valid and enforceable. The trial court held that it was not. The court did so based upon its finding that Claude R. Ellis (Husband) failed to prove that he provided a full and fair disclosure of his assets to Melisa Jane Godfrey Ellis (Wife) before the agreement was executed. The trial court further found (1) that, given the date the draft agreement was furnished to wife, she did not have an opportunity to seek independent counsel for advice; (2) that the agreement was unfair; and (3) that Wife was under duress when the draft was presented to her. Applying the principles set forth by the Supreme Court in Randolph v. Randolph, 937 S.W.2d 815 (Tenn. 1996), and its progeny, we affirm the judgment of the trial court.

Bradley County Court of Appeals 11/25/14
In Re Chelsea B. et al.
E2014-00758-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Daniel G. Boyd

This is a termination of parental rights case involving three minor children. In April 2012, temporary custody of the children was granted to the Tennessee Department of Children’s Services (“DCS”), and the children were placed in foster care. DCS subsequently filed a petition to terminate the parental rights of the mother and father on September 24, 2013. The petition alleged, as statutory grounds for termination, abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plans, persistent conditions, and severe child abuse. Following a bench trial, the trial court granted the petition as to the mother upon finding that DCS had proven by clear and convincing evidence the grounds of (1) abandonment by failure to provide a suitable home and (2) persistence of the conditions leading to removal. The court also found clear and convincing evidence that termination of the mother’s parental rights was in the children’s best interest. The mother has appealed.1 Discerning no error, we affirm.

Hawkins County Court of Appeals 11/25/14
In Re: Valena E.
W2014-00719-COA-R3-JV
Authoring Judge: Per Curiam
Trial Court Judge: Judge J. Weber McCraw

The Notice of Appeal was not timely filed, and we therefore have no jurisdiction to consider this appeal. Consequently, this appeal is dismissed.

McNairy County Court of Appeals 11/25/14
Ann C. Akard v. Wayne F. Akard
E2013-00818-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge John S. McLellan, III

This is a divorce case. After the trial court entered the final decree of divorce and awarded Wife/Appellee attorney’s fees associated with a motion to compel, Husband/Appellant filed this appeal. Although Husband did not formally file a motion to recuse either trial judge involved in this case, his appeal centers on alleged judicial and opposing counsel misconduct. Husband also seeks a new trial. We affirm.

Sullivan County Court of Appeals 11/25/14