Court of Appeals Opinions

Format: 12/03/2016
Format: 12/03/2016
Dorothy Holmes v. Christ Community Health Services, Inc., et al.
W2016-00207-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge James F. Russell

The plaintiff filed this action alleging medical malpractice against a physician who examined the plaintiff five days after injury to her shoulder, as well as the facility wherein the physician practiced. The plaintiff alleged, inter alia, that the defendant physician failed to properly diagnose a fracture dislocation in her shoulder, causing a delay in appropriate treatment. The plaintiff‘s subsequent treating physician opined in his deposition and via affidavit that if the plaintiff‘s injury had been diagnosed earlier, the plaintiff would likely have avoided an extensive surgical procedure, resultant infection stemming from such surgery, and residual impairment to her shoulder. The trial court excluded this testimony as speculative, granting summary judgment in favor of the defendant physician and hospital. The plaintiff has appealed. We determine that the trial court erred in excluding the causation evidence as speculative. We therefore vacate the court‘s grant of summary judgment in favor of the co-defendants.

Shelby County Court of Appeals 11/29/16
Paul Housewright, et al. v. Dr. Ronald K. McCormack, et al.
E2016-00272-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Douglas T. Jenkins

This appeal concerns the validity of a warranty deed in which the decedents conveyed a parcel of property for the benefit of a church. The deed contained a reversionary clause requiring the property to revert back if no longer used for the benefit of the church. The same parcel was included in another deed that did not contain a reversionary clause but was recorded before the original deed. The church listed the property for sale approximately 67 years later. The decedents' heirs filed suit. The defendants sought summary judgment, claiming that ownership of the property was established through the deed recorded first. The court granted summary judgment. We affirm.

Hawkins County Court of Appeals 11/29/16
Stanley Creekmore, Administrator For The Estate of Alma B. Long v. Jason S. Hackler, et al.
E2016-00405-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Elizabeth C. Asbury

This is the second appeal of this property dispute concerning a mother's reservation of a life estate in property conveyed to her son pursuant to a warranty deed. The mother initially brought suit against the son to enforce her right to possession. She later sought to amend her complaint in an attempt to attack the validity of the deed. Before ruling upon the motion to amend, the trial court granted summary judgment based upon the expiration of the applicable statute of limitations for ejectment actions. This court reversed in Long v. Creekmore, No. E2012-01453-COA-R3-CV, 2013 WL 1320515 (Tenn. Ct. App. Mar. 28, 2013). Upon remand, the trial court denied the motion to amend the complaint and dismissed the action following the death of the mother and son. The administrator of the mother's estate appeals. We affirm the trial court.

Campbell County Court of Appeals 11/29/16
Mark Henderson v. City Of Mount Pleasant, Tennessee et al.
M2016-00639-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge David L. Allen

Petitioner, the interim city manager for the City of Mount Pleasant, Tennessee, filed suit seeking a declaratory judgment that the votes of two commissioners to terminate his employment were void due to a conflict of interest. He contends their votes were void because ethics complaints filed by Petitioner against the two commissioners were pending at the time of the vote. The trial court dismissed the petition for failure to state a claim upon which relief can be granted, pursuant to Tenn. R. Civ. P. 12.02(6), upon the finding that the petition failed to allege facts which would show that the commissioners had a personal financial interest in the outcome of the vote on Petitioner’s employment. Petitioner appealed; we affirm.

Maury County Court of Appeals 11/28/16
Security Equipment Supply, Inc. v. Richard H. Roberts, Commissioner Of Revenue, State of Tennessee
M2016-00423-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

At issue is whether a taxpayer’s sales are properly classified as “retail sales” or “wholesale sales” under the Business Tax Act, Tenn. Code Ann. §§ 67-4-701 to -730, and Tenn. Comp. R. & Regs. 1320-04-05-.47. Following an audit, the Tennessee Department of Revenue determined that the taxpayer misclassified its sales as “wholesale sales,” when they should have been classified as “retail sales,” and assessed the taxpayer with $74,088.10 in tax liability. After paying the assessment, the taxpayer filed suit seeking a refund. The chancery court held that the sales in question were “retail sales” within the context of the statute and denied the request for a refund. We conclude that the business activities were properly classified as retail sales; therefore, we affirm the judgment of the chancery court.

Davidson County Court of Appeals 11/28/16
Christopher Dylan Thompson v. Best Buy Stores, L.P.
E2015-02304-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge L. Marie Williams

Plaintiff Christopher Dylan Thompson ingested several doses of a liquid form of a drug, which he says was estazolam, before reporting to work for his employer, defendant Best Buy Stores, L.P. At work, he appeared tired and slow, and a manager told him to clock out and end his shift early. On his way home, plaintiff was involved in a car accident. He brought this negligent entrustment action, alleging that defendant breached a duty by not stopping him from leaving his place of employment in his own vehicle. The trial court granted defendant summary judgment, holding defendant “had no duty to prevent [plaintiff] from leaving the premises driving his own vehicle,” and relying on Lett v. Collis Foods, Inc., 60 S.W.3d 95 (Tenn. Ct. App. 2001), a factually similar case decided by this Court. We affirm.

Hamilton County Court of Appeals 11/28/16
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 Mac L.
E2016-00674-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Timothy E. Irwin

This appeal arises from the juvenile court's termination of a biological father's parental rights. The juvenile court found clear and convincing evidence of three grounds for termination and that termination of the father's parental rights was in the best interest of the child. After reviewing the record, we conclude that the grounds for terminating parental rights set forth in Tennessee Code Annotated § 36-1-113(g)(9) and relied upon by the juvenile court were inapplicable to the father in this case. Nevertheless, because there was clear and convincing evidence of two grounds for termination of the father's parental rights and that termination was in the best interest of the child, we affirm.

Knox County Court of Appeals 11/22/16
Michael Allen Sprouse v. Tiffany Dotson
M2016-00841-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joel Perry

This appeal requires us to interpret a version of a juvenile court statute effective prior to July 1, 2016. A juvenile court magistrate held a hearing on competing petitions to modify a parenting plan filed by a child’s parents. The magistrate announced her ruling from the bench at the conclusion of the hearing but did not enter a written order until several days later. Mother, dissatisfied with the magistrate’s ruling, filed a request for a rehearing before a juvenile court judge. Mother filed her request within five days of the entry of the magistrate’s order but ten days after the hearing before the magistrate. The juvenile court concluded that mother’s request for rehearing was untimely and confirmed the magistrate’s findings and recommendations as an order of the juvenile court. Because we conclude that the time for requesting a rehearing ran from the entry of the magistrate’s written order, mother’s request for rehearing was timely. Therefore, we reverse.   

Robertson County Court of Appeals 11/18/16
Debbie Tran v. Manila Bui, Et Al.
E2016-00544-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This case concerns a constitutional challenge to Tennessee Code Annotated Section 20-12-119(c). When the trial court grants a motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6) for failure to state a claim upon which relief may be granted, Section 20-12-119(c) provides for an award of reasonable attorneys' fees to the dismissed party. In this case, the trial court granted Appellees the statutory maximum of $10,000 in attorneys' fees. Appellant challenged the constitutionality of the statute on the ground that it violated the separation of powers doctrine. The trial court rejected Appellant's challenge, ruling that Tennessee Code Annotated section 20-12-119(c) is remedial in nature and does not violate Article II, section 2 of the Tennessee Constitution. Discerning no error, we affirm

Knox County Court of Appeals 11/17/16
In Re: Dustin T., Et Al. - DISSENT
E2016-00527-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge J. Michael Sharp
J. STEVEN STAFFORD, P.J.,W.S., dissenting in part.
I concur in the majority Opinion with regard to the trial court’s findings on the grounds of substantial noncompliance with the permanency plans, persistent conditions, and abandonment by wanton disregard. I also agree that termination of Mother’s and Father’s parental rights is in the children’s best interests. Because I cannot agree that the State has met its burden to show clear and convincing evidence of Mother’s abandonment by willful failure to support the children, however, I must file this partial dissent.
 
Bradley County Court of Appeals 11/17/16
In re Dustin T., et al.
E2016-00527-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge J. Michael Sharp

The Department of Children's Services (“DCS”) filed a petition to terminate the parental rights of the mother and father to their three children. The father was incarcerated in Georgia when the children were determined to be dependent and neglected, and the mother tested positive for illegal drugs and had illegal drugs and drug paraphernalia in her home when the children were removed. DCS developed three permanency plans over the course of eighteen months, with responsibilities set out for each parent. When it appeared that neither parent was in substantial compliance with the third plan, DCS filed a petition to terminate their rights. The trial court found the evidence clearly and convincingly supported the grounds DCS alleged for terminating the parents' rights and determined it was in the children's best interest that their parents' rights be terminated. Both the mother and father appeal the termination. We affirm the trial court's judgment.

Bradley County Court of Appeals 11/17/16
Regions Bank v. Chas A. Sandford
M2015-02215-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Michael Binkley

This appeal arises from the trial court’s entry of a default judgment in favor of the plaintiff. The plaintiff bank filed a complaint seeking a judgment against the defendant on a sworn account. After several attempts, the plaintiff was unable to obtain personal service of process on the defendant and attempted to obtain service of process by mail. The plaintiff’s process server sent the summons by certified mail to the defendant’s residential address, and the mailing was returned marked “unclaimed.” The plaintiff filed proof of service, indicating that service had been properly completed pursuant to Tennessee Rule of Civil Procedure 4.04(11), and filed a motion for default judgment. A copy of the motion for default judgment was sent by mail to the defendant at the same residential address. The defendant filed a response “by special appearance” opposing the bank’s motion for default judgment based on insufficiency of service of process. Following a hearing, the trial court entered a default judgment in favor of the plaintiff. The defendant appealed. On appeal, we conclude that the trial court entered a default judgment in violation of Tennessee Rule of Civil Procedure 4.04(10), which expressly provides, “Service by mail shall not be the basis for the entry of a judgment by default unless the record contains a return receipt showing personal acceptance by the defendant[.]” We therefore vacate the trial court’s order entering a default judgment in favor of the plaintiff and remand this matter for further proceedings.  

Williamson County Court of Appeals 11/16/16
Cheryl Ellen Mouton v. Michael J. Mouton
E2016-00231-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge W. Neil Thomas, III

In this parental relocation case, the trial court erred in finding that the mother did not have a reasonable purpose in relocating to another state for her employment. Furthermore, mother's purpose in relocating was not vindictive. Therefore, the judgment of the trial court is reversed.

Hamilton County Court of Appeals 11/16/16
In re Dillon E.
M2016-00880-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Tim Barnes

This appeal concerns termination of a mother’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Montgomery County (“the Juvenile Court”) seeking to terminate the parental rights of Autumn N. (“Mother”) to her minor child, Dillon E. (“the Child”). The central issue of this parental rights case is Mother’s alleged prescription drug abuse. After a trial, the Juvenile Court found that four grounds were proven against Mother sufficient to terminate her parental rights to the Child, and that termination of her parental rights was in the Child’s best interest. Mother appeals the termination of her parental rights to this Court. DCS argues that the Juvenile Court erred in declining to find one additional ground for termination. We affirm the judgment of the Juvenile Court in its entirety.

Montgomery County Court of Appeals 11/15/16
William Gordon Ball v. Marjorie Happy Hayes Ball
E2016-00326-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael W. Moyers

This is an appeal from a “Final Hearing Order” in a divorce action. That order, however, did not resolve the issue of whether the husband had improperly deducted amounts he expended for moving services and rental of a storage building from his pendente lite alimony obligation due to the wife. Because the order appealed does not resolve all claims presented in the proceedings below, we dismiss this appeal for lack of subject matter jurisdiction.

Knox County Court of Appeals 11/15/16
In Re: Walter Peterson, Jr.
E2015-01211-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Pamela A. Fleenor

Wife challenges the trial court's decision authorizing the Department of Human Services to take her husband into protective custody pursuant to the Adult Protection Act. Because, after the trial court's decision, the adult taken into protective custody was released from DHS custody and later died, we have determined that this appeal is moot.

Hamilton County Court of Appeals 11/15/16
Donna Nance McLucas v. Shawn Michael Nance
M2016-00959-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Clara W. Byrd

Defendant in an unlawful detainer action filed a counterclaim against the plaintiff. Two days later, the plaintiff filed a notice of voluntary nonsuit, but the certificate of service on the notice indicated it was placed in the mail the same day that the counterclaim was filed. Based on the notice of voluntary dismissal, the trial court entered an order dismissing the action without prejudice. Defendant appeals, arguing that he should be permitted to proceed with his counterclaim. We affirm. 

Macon County Court of Appeals 11/14/16
In Re Tamera W., et al.
W2015-02463-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Gina C. Higgins

Mother and Father appeal from the trial court‘s finding that clear and convincing evidence exists to establish that the children at issue are dependent and neglected and the victims of severe abuse at both parents‘ hands. Discerning no error, we affirm.

Shelby County Court of Appeals 11/10/16
In Re: Maddox C.
M2016-01129-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Suzanne Lockert-Marsh

This is a termination of parental rights case. Father/Appellant, who is incarcerated, appeals the termination of his parental rights to the minor child. The trial court terminated Father’s parental rights on two statutory grounds: (1) abandonment, and (2) incarceration for more than ten years, see Tenn. Code Ann. §§ 36-1-113(g)(1) and (6), and on its finding that termination of Father’s parental rights is in the child’s best interest. Discerning no error, we affirm and remand.  

Dickson County Court of Appeals 11/09/16
In re Tamera W., et al.
W2015-01988-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Gina C. Higgins

Upon petition of the Tennessee Department of Children's Services (“the Department”), the trial court terminated the parental rights of Mother and Father. Among other things, the trial court concluded that Mother and Father had committed severe child abuse. The trial court also determined that the termination of parental rights was in the children's best interest. Having reviewed the record transmitted to us on appeal, we reverse the trial court's finding that Mother abandoned the children pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(iv). Moreover, we reverse the trial court's finding that Mother failed to substantially comply with the requirements of the family permanency plans created in this case. However, we conclude that clear and convincing evidence supports the other grounds for termination relied upon by the trial court, as well as the trial court's finding that the termination of Mother and Father's parental rights is in the children's best interest.

Shelby County Court of Appeals 11/09/16
Nathan Z. Vinson v. Kristin Denise Ball et al.
E2015-01856-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Larry M. Warner

This is a child custody action involving two minor children. In 2010, the biological parents of the children entered into an agreed order, which provided that the mother would be the primary residential custodian with the father enjoying visitation rights. Thereafter, the mother sent the children to live with their maternal grandfather. In July 2014, the father filed a petition seeking to modify the prior custody order and establish a permanent parenting plan wherein he would be designated the primary residential parent. The mother opposed this change, and the maternal grandfather sought to intervene in the action for the purpose of seeking custody of the children. The trial court awarded primary custody to the maternal grandfather, determining that a risk of substantial harm would result if custody of the children were awarded to the father. The father has appealed. Determining that there is a lack of clear and convincing evidence to support the trial court's finding of a risk of substantial harm, we reverse the custody award to the grandfather. We remand this matter for a hearing regarding whether a material change in circumstance has occurred since the initial custody award and whether modifying the designation of primary residential parent from the mother to the father is in the children's best interest. We also remand this matter for the trial court to revisit the issue of changing the children's surnames. We affirm the trial court's denial of the grandfather's request for retroactive child support.

Cumberland County Court of Appeals 11/09/16
Primestar Fund 1 TRS, Inc. v. Clarence Arnold Riggs, et al.
M2016-00245-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Vanessa Jackson

Corporate plaintiff filed an action for possession of real property. An individual claiming to be a partner in a limited partnership with an ownership interest in the real property moved to intervene in the action. The trial court granted plaintiff possession of the real property. The individual appeals the judgment for possession. We conclude that, because he was not aggrieved by the adjudication, the individual lacks standing to appeal. Moreover, because he is not a licensed attorney, he may not represent the limited partnership in this action.

Coffee County Court of Appeals 11/08/16
Christopher A. Hamilton v. Tennessee Board Of Probation And Parole, et al.
M2016-00458-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Russell T. Perkins

This appeal involves an incarcerated inmate’s filing of a petition for writ of certiorari, claiming that the Tennessee Board of Probation and Parole acted arbitrarily and without material evidence in denying his request for parole. The trial court granted the petition but ultimately affirmed the denial of parole. The petitioner appeals. We affirm.

Davidson County Court of Appeals 11/04/16
M & M Electrical Contractor, Inc. v. Cumberland Electric Membership Corporation
M2016-00358-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This appeal involves the termination of a contract between an electric power distributor and an independent contractor. After a bench trial, the trial court concluded that the electric power distributor was justified in terminating the contract because the independent contractor materially breached the contract by violating a safety policy and an oral directive from the power distributor. The independent contractor appeals, claiming that the evidence did not support a finding that it violated the safety policy or directive, that such a violation, even if it did occur, did not constitute a material breach of the contract, and that the power distributor was required to give notice and an opportunity to cure any default prior to terminating the contract. We affirm. 

Montgomery County Court of Appeals 11/04/16