Court of Appeals Opinions

Format: 07/04/2015
Format: 07/04/2015
Hanna (John) Nazi, et al. v. Jerry's Oil Company, Inc.
W2014-02008-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Nathan B. Pride

The trial court determined that Appellant Hanna (John) Nazi executed the contractual documents between the parties as the owner/proprietor of the Handy Peddler and that he was liable for a judgment in favor of Appellee Jerry‘s Oil Company, Inc. We affirm.

Madison County Court of Appeals 06/24/15
The Cohn Law Firm, et al. v. YP Southeast Advertising & Publishing, LLC, et al.
W2014-01871-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Kenny W. Armstrong

Plaintiff law firm and lawyer brought suit against defendant advertising companies alleging, inter alia, breach of contract and misrepresentation. Defendants moved to dismiss the complaint because the parties' contracts included a forum selection clause that provided all litigation arising from the contracts would take place in the state of Georgia. The trial court found the forum selection clause enforceable and granted defendants' motion to dismiss. On appeal, plaintiffs argue that the trial court erred in enforcing the forum selection clause because the contracts are adhesion contracts and unconscionable. Discerning no error, we affirm.

Shelby County Court of Appeals 06/24/15
James T. Patterson v. Lincoln Medical Center
M2014-01145-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Franklin L. Russell

Suit was instituted under the Governmental Tort Liability Act and the Health Care Liability Act against a county-owned hospital four days after the patient gave the hospital notice of a potential health care liability claim. The trial court dismissed the complaint for failure to state a cause of action, holding that the patient did not demonstrate extraordinary cause to institute suit prior to the expiration of 60 days from giving notice of his claim under the Health Care Liability Act. Finding that the record does not establish extraordinary cause, we affirm the judgment of the trial court.

Lincoln County Court of Appeals 06/23/15
Administrative Management Resources, LLC v. James G. Neeley
M2014-01073-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Carol L. McCoy

A staff leasing company filed this petition for judicial review of the administrative decision of the Tennessee Department of Labor and Workforce Development (“the Department”). In its decision, the Department determined that the company had illegally transferred employees from one entity to another to acquire a lower unemployment insurance premium rate. We affirm the chancery court’s decision finding substantial and material evidence to support the Department’s determination.

Davidson County Court of Appeals 06/23/15
In re Gavin G.
M2014-01657-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Stella L. Hargrove

This appeal arises from the termination of Father’s parental rights. After Father had not seen the child for over a year-and-a-half, Mother and her husband petitioned to terminate Father’s parental rights. Following a trial, the chancery court found that Father had abandoned the child by willfully failing to visit him. The court also found that the termination of Father’s parental rights was in the child’s best interest. Father appeals the court’s determination that he abandoned the child and that the termination of his rights was in the child’s best interest. We affirm.  

Maury County Court of Appeals 06/23/15
In re Jayden B.T.
E2014-00715-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Dennis W. Humphrey
This is a termination of parental rights case, focusing on Jayden B.T., the minor child (“the Child”) of Jayson T. (“Father”) and Britney B. (“Mother”). On July 2, 2013, the Child's maternal aunt and her husband, with whom the Child had been residing, filed a petition to terminate the parental rights of both parents. Following a bench trial, the trial court found that grounds existed to terminate the parental rights of both parents upon its finding, by clear and convincing evidence, that the parents had abandoned the Child by willfully failing to visit the Child, willfully failing to support the Child, and failing to provide a suitable home. The trial court also found clear and convincing evidence as to both parents of the statutory ground of persistence of the conditions that led to removal of the Child. The court further found, by clear and convincing evidence, that termination of Father's and Mother's parental rights was in the Child's best interest. Father has appealed. We conclude that the evidence was insufficient to support a finding that Father abandoned the Child through failing to visit him and therefore reverse the trial court's finding as to that ground. In addition, we determine that the statutory grounds of persistence of the conditions leading to removal and abandonment through failure to provide a suitable home are not applicable to Father, and we therefore reverse the trial court's findings regarding those two grounds. We affirm the trial court's judgment in all other respects, including the termination of Father's parental rights upon the ground of abandonment through willful failure to support the Child.
 
Roane County Court of Appeals 06/23/15
In re Kayden H.
E2014-02360-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Tammy M. Harrington

This is a termination of parental rights case, focusing on Kayden H., the minor child (“the Child”) of Kristy L. (“Mother”) and Johnathan H. (“Father”). On January 28, 2014, the Child’s paternal grandparents, Linda H. and Donald H. (“Grandparents”), filed a petition to terminate the parental rights of the parents and adopt the Child. Father joined as a co-petitioner in order to consent to the termination of his parental rights. Father is not a party to this appeal. Following a bench trial, the trial court found that grounds existed to terminate the parental rights of Mother upon its finding by clear and convincing evidence that Mother had abandoned the Child by willfully failing to provide support and willfully failing to visit the Child in the four months preceding Mother’s September 2013 incarceration. The court also found by clear and convincing evidence that Mother had abandoned the Child by exhibiting wanton disregard for the Child’s welfare prior to Mother’s incarceration. The court further found by clear and convincing evidence that termination of Mother’s parental rights was in the Child’s best interest. Mother has appealed. Discerning no reversible error, we affirm.

Blount County Court of Appeals 06/23/15
In re Destaney D. et al.
E2014-01651-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge James W. McKenzie

This is a termination of parental rights action involving two minor children, Destaney D. and Rebekah D. (―the Children‖). In April 2012, the Tennessee Department of Children’s Services (―DCS‖) removed the Children from their mother due to her drug use. The Children were allowed to remain in the care of Amy M. and Jeremy M., a married couple with whom the Children had been residing following their mother’s arrest. On February 21, 2014, Amy M. and Jeremy M. (―the Petitioners‖) filed a petition to terminate the parental rights of the Children’s parents. The petition alleged, as a statutory ground for termination, abandonment by willful failure to support. The Petitioners subsequently filed an amended petition alleging the additional statutory ground of persistence of the conditions leading to removal. Despite being properly served with process, the Children’s mother failed to answer the petition or otherwise make an appearance in this matter. The trial court accordingly terminated her parental rights by default judgment entered on July 21, 2014. She is not a party to this appeal. Following a bench trial on the merits, the trial court granted the petition as to the father upon finding that the Petitioners had proven by clear and convincing evidence the grounds of (1) abandonment by willful failure to support and (2) persistence of the conditions leading to removal. The court also found clear and convincing evidence that termination of the father’s parental rights was in the Children’s best interest. The father has appealed. Having determined that the statutory ground of persistence of conditions is inapplicable to the present action, we reverse the trial court’s determination as to this ground. We affirm the trial court’s judgment in all other respects, including the termination of the father’s parental rights.

Rhea County Court of Appeals 06/23/15
S.A.M.D. v. J.P.D.
W2014-01015-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donna M. Fields

This is a post-divorce action. The trial court denied Wife's motion to continue, found that she breached the parties' marital dissolution agreement, and credited Husband for amounts he paid for necessaries when calculating Husband's child support arrearage. Wife appeals. We affirm.

Shelby County Court of Appeals 06/23/15
In re: Estate of Georgia Myers Smelcer
E2014-01499-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Douglas T. Jenkins

Hal H. Lane appeals the May 20, 2014 judgment of the Chancery Court for Greene County (“the Trial Court”) finding and holding, inter alia, that Joseph J. Holt was the person who took care of Georgia Myers Smelcer (“Deceased”) until her death and, therefore, inherited real property known as the Hartshaw Addition pursuant to the Last Will and Testament of Georgia Myers Smelcer. We find and hold that the evidence does not preponderate against the Trial Court’s findings, and we affirm.

Greene County Court of Appeals 06/22/15
Joseph J. Holt v. Trustee of the Willoughby Cumberland Presbyterian Church Cemetary, et al.
E2014-01502-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Douglas T. Jenkins

Hal H. Lane appeals the May 20, 2014 Declaratory Judgment of the Chancery Court for Greene County (“the Trial Court”). We find and hold that Mr. Lane is not an aggreived party to this judgment and, therefore, lacks standing to appeal the judgment. We, therefore, affirm.

Greene County Court of Appeals 06/22/15
Dominick J. Leonardo v. Ashli Leonardo - Concur/Dissent
M2014-00372-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Amanda Jane McClendon

I concur in the majority Opinion's ruling with regard to the modification of the parties' parenting plan to allow Father more time with the child. I must, however, dissent from the majority's holding that the trial court did not err in modifying Mother's child support obligation, where no pleadings were filed notifying Mother that the issue would be tried, no opportunity to conduct discovery on the issue, and no opportunity to present evidence to the trial court concerning modification of child support. For this reason, I must respectfully file this partial dissent from the majority Opinion.

Davidson County Court of Appeals 06/18/15
Dominick J. Leonardo v. Ashli Leonardo
M2014-00372-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Amanda Jane McClendon


This case involves the trial court‘s post-divorce modification of a parenting plan and modification of the parents‘ respective child support obligations. The trial court granted Appellee/Father‘s petition to modify the minor child‘s residential parenting schedule to give Appellant/Mother and Appellee/Father equal residential parenting time with the child under Tennessee Code Annotated Section 36-6-101(a)(2)(C). After modifying the residential parenting schedule, the trial court also modified the parties‘ respective child support obligations. Mother appeals. Discerning no error, we affirm and remand.

Davidson County Court of Appeals 06/18/15
Donnie G. Goodwin, et al v. Jim Bale Construction, LLC
M2014-00919-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jane W. Wheatcraft

This appeal arises from a construction dispute. Appellants/Homeowners brought suit against Appellee/Builder. Appellants claim that Appellee built their home on uncontrolled fill material, which caused excessive cracking in the garage and the driveway. Appellee contends that Appellants' home was built on virgin soil, rather than fill material as alleged by Appellants. Both sides proffered expert testimony to prove the cause of the cracks. The trial court found Appellee's expert credible and concluded that the home was built on virgin soil. Because the evidence does not preponderate against the trial court's finding on this issue, we affirm this finding. However, we vacate the trial court's award of discretionary costs to Appellees in the amount of $9,210.60 and remand for reconsideration in light of our opinion.

Sumner County Court of Appeals 06/18/15
Mark Thomas Whitten v. Dana Nichole Willis Whitten
M2014-00645-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Stella L. Hargrove

Mother appeals from the trial court’s post-divorce determination that a modification of the parenting plan to designate Father as the primary residential parent of their children was in the children’s best interest. Mother contends the trial court erred in considering statements of the parties’ child made outside of court. Mother also contends the trial court erred in its application of the best interests factors set forth in Tennessee Code Annotated section 36-6-106. We affirm the judgment of the trial court.

Davidson County Court of Appeals 06/18/15
In re Makenzie L.
M2014-02285-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ben H. Cantrell

In this termination of parental rights case, paternal great-aunt and great-uncle, who were named ―primary residential parents' of a minor child, filed a petition to terminate the parents' rights to their daughter on the grounds of persistence of conditions that led to removal, severe abuse, abandonment by failure to visit, and abandonment by failure to support. The trial court held that grounds did not exist for termination and returned the child to the custody of the parents. We have reviewed the record and affirm the trial court‘s findings with respect to persistent conditions and abandonment by failure to visit. However, we have determined that the trial court erred in excluding evidence of alleged sibling abuse in rendering its decision that the grounds of severe abuse were not proven. In addition, we hold that there is clear and convincing evidence that the parents abandoned the child by failing to support her in the four months preceding the filing of the petition. Finally, we affirm the trial court‘s holding with respect to attorney‘s fees. Therefore, having found that the trial court erred in failing to consider evidence of alleged sibling abuse and that a ground exists for termination, we remand the case for the trial court to consider whether the ground of severe abuse, as defined by Tenn. Code Ann. § 36-1-113(g)(4) is proven by clear and convincing evidence and whether termination of parental rights is in the child‘s best interest.

Davidson County Court of Appeals 06/17/15
In re Makenzie L.
M2014-01081-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ben H. Cantrell

In this termination of parental rights case, paternal great-aunt and great-uncle, who were named ―primary residential parents' of a minor child, filed a petition to terminate the parents' rights to their daughter on the grounds of persistence of conditions that led to removal, severe abuse, abandonment by failure to visit, and abandonment by failure to support. The trial court held that grounds did not exist for termination and returned the child to the custody of the parents. We have reviewed the record and affirm the trial court‘s findings with respect to persistent conditions and abandonment by failure to visit. However, we have determined that the trial court erred in excluding evidence of alleged sibling abuse in rendering its decision that the grounds of severe abuse were not proven. In addition, we hold that there is clear and convincing evidence that the parents abandoned the child by failing to support her in the four months preceding the filing of the petition. Finally, we affirm the trial court‘s holding with respect to attorney‘s fees. Therefore, having found that the trial court erred in failing to consider evidence of alleged sibling abuse and that a ground exists for termination, we remand the case for the trial court to consider whether the ground of severe abuse, as defined by Tenn. Code Ann. § 36-1-113(g)(4) is proven by clear and convincing evidence and whether termination of parental rights is in the child‘s best interest.

Davidson County Court of Appeals 06/17/15
Katherine Sanko v. Clinton Sanko
E2014-01816-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Frank Brown, III

This post-divorce appeal concerns the mother's notice of intent to relocate to Pennsylvania with the parties' minor children. The father responded by filing a petition in opposition to the requested relocation. Following a hearing, the trial court granted the father's petition. The mother appeals. We reverse the decision of the trial court.

Hamilton County Court of Appeals 06/16/15
Ford Motor Credit Company, LLC v. Alice McCormick-Jackson
W2014-02485-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Oscar C. Carr, III

This is an appeal from the trial court's order granting Appellee's motion for judgment on the pleadings in a breach of contract case. After the trial court granted Appellee's motion, Appellant filed a notice of appeal pro se. Due to deficiencies in Appellant's brief, we are unable to address the issues she raises on appeal. We therefore affirm.

Shelby County Court of Appeals 06/16/15
In re Steven C.
M2014-01944-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Sophia Brown Crawford

A father’s parental rights to his child were terminated on the grounds that the father failed to comply with the requirements of the permanency plans developed when the child went into the custody of the Department of Children’s Services and that the conditions which led to the child’s removal persisted. Father appeals, contending that the Department did not use reasonable efforts to reunite him with his child and that the court erred in finding that the child had been removed from Father’s home. Finding that clear and convincing evidence exists to support the grounds for termination of Father’s rights, and that termination of those rights is in the best interest of the child, we affirm the judgment of the trial court.

Davidson County Court of Appeals 06/15/15
In re Aisha R., et al.
E2014-01520-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert D. Philyaw

This is a termination of parental rights case in which the Tennessee Department of Children's Services filed a petition to terminate the parental rights of Christee R. and Matthew R. to two of their minor children. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of each parent's parental rights on the statutory grounds of persistence of conditions and mental incompetence and that termination of their rights was in the best interest of the children. The parents appeal. We affirm the decision of the trial court.

Hamilton County Court of Appeals 06/15/15
In re M.P.H.
E2014-02267-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jayne Johnston-Crowley

J.L.W. (Mother) appeals from the order terminating her parental rights to her minor daughter, M.P.H. (the Child). Based on evidence of Mother’s drug abuse, the Department of Children’s Services (DCS) removed the Child from Mother’s custody and placed her in foster care. The Child was later adjudicated dependent and neglected. Eighteen months after the Child’s removal, DCS filed a petition to terminate each of her parents’ rights. After a trial, the court granted the petition. As to Mother, the court found, by clear and convincing evidence, that (1) multiple grounds for termination exist, and (2) termination is in the Child’s best interest. Mother challenges each of these determinations. We affirm.

Meigs County Court of Appeals 06/15/15
Tennessee Farmers Mutual Insurance Company a/s/o Kenneth L. Couch v. Jackson Madison School System Board of Education
W2014-02218-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kyle Atkins

This case arises from a non-contact accident between a John Deere crop sprayer and a school bus. The sprayer, which is insured by Tennessee Farmers Mutual Insurance Company as subrogee of the owner, Appellee Kenneth L. Couch, was driven by Mr. Couch‘s employee, Cameron Martin. The school bus, which is owned by Appellant Jackson Madison School System Board of Education, was driven by its employee, Lawrence Davis. The trial court held that Mr. Davis was negligent in failing to appreciate the situation so as to ―take reasonable action to avoid an accident.‖ We conclude that the evidence preponderates against the trial court‘s finding of negligence on the part of Mr. Davis. Accordingly, we reverse the judgment of the trial court and remand for entry of judgment in favor of Appellant.

Madison County Court of Appeals 06/15/15
Carrie Coggins et al. v. Holston Valley Medical Center
E2014-00594-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John S. McLellan, III

On August 6, 2011, Carrie Coggins and her husband Joel R. Coggins (Plaintiffs) visited a patient at Wellmont Holston Valley Medical Center (Hospital). While there, Mrs. Coggins tripped and fell, sustaining serious injuries. Plaintiffs filed suit and alleged that Mrs. Coggins tripped over a feeding tube that, according to Plaintiffs, had been negligently left near her friend’s bed in such a way as to create a dangerous condition. Before they filed suit, Plaintiffs served Hospital with pre-suit notice of their intent to file. See Tenn. Code Ann. § 29-26-121 (2012). Hospital filed a motion to dismiss or, in the alternative, for summary judgment. The trial court granted Hospital summary judgment. The court held that (1) Plaintiffs’ action was an ordinary negligence action based on premises liability, not a health care liability action; and (2) Plaintiffs could not rely upon (a) Tenn. Code Ann. § 29-26-121(c), which extends the applicable statutes of limitations and repose for 120 days when pre-suit notice is properly given, or (b) Tenn. Code Ann. § 29-26-121(e), which provides that “[i]n the event that a complaint is filed in good faith reliance on the extension of the statute of limitations or repose granted by this section and it is later determined that the claim is not a health care liability claim, the extension of the statute of limitations and repose granted by this section is still available to the plaintiff.” We agree with the trial court’s holding that Plaintiffs’ claim sounds in ordinary negligence under a premises liability theory.

Sullivan County Court of Appeals 06/15/15
Heather Dawn Lyons Heilig v. Robert Todd Heilig
E2014-00586-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jacqueline S. Bolton

This is a post-divorce parent relocation case. Robert Todd Heilig (Father) notified Heather Dawn Lyons Bevil, formerly Helig (Mother) of his intent to move with the parties' minor son from Chattanooga to Toccoa, Georgia, about three and a half hours away, in order to assume new employment. Mother opposed the move and filed a petition asking the trial court to disallow it. Mother alleged that the parties were spending substantially equal intervals of time with the child, and that the move was not in the best interest of the child. The trial court, applying the parent relocation statute, Tenn. Code Ann. § 36-6-108 (2014), found that Father was spending substantially more time with the child than Mother, and held that Mother “failed to prove that the relocation does not have a reasonable purpose, that the relocation would pose a threat of specific and serious harm to [the child] or that the Father's motive is vindictive.” The trial court allowed Father to relocate with the child. Mother appeals, raising the issue of whether the trial court erred in its calculation of the parties' respective parenting time, and whether it should have found such time “substantially equal.” We affirm.

Hamilton County Court of Appeals 06/15/15