Court of Appeals Opinions

Format: 05/26/2018
Format: 05/26/2018
John Edwards v. Paula Renee Herman
E2017-01206-COA-R9-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John D. McAfee

In this personal injury action arising from an automobile-motorcycle accident, the trial court granted the plaintiff’s motion to enlarge the time allowed to obtain service of process on the defendant upon finding that the plaintiff’s failure to timely obtain service of process had been due to excusable neglect. Consequently, the trial court in the same order denied the defendant’s motion to dismiss the plaintiff’s complaint for lack of service. Upon the defendant’s subsequent motion, the trial court granted permission for an interlocutory appeal, as did this Court. Upon review of the issues certified by the trial court, we affirm the trial court’s utilization of Tennessee Rule of Civil Procedure 6.02 as a method of enlarging the timeframe for issuance and service of process, pursuant to Tennessee Rule of Civil Procedure 3, when the complaint was timely filed and when excusable neglect can be demonstrated. However, having concluded that the trial court made insufficient findings and conclusions regarding excusable neglect in this matter, we vacate the trial court’s determination on that issue and remand this matter to the trial court for further proceedings consistent with this opinion. We also vacate the trial court’s determination that the defendant would be estopped from asserting a defense based on the statute of limitations because the parties had no express agreement waiving service of process in this matter.

Campbell County Court of Appeals 05/16/18
Robert A. Hanks, et al v. First American Title Insurance Company
M2017-00560-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swinery
Trial Court Judge: Chancellor Louis W. Oliver, III

Robert A. Hanks and Lee E. Hanks (“Plaintiffs”) sued First American Title Insurance Co. (“First American”) for breach of contract with regard to an owner’s title insurance policy (“Title Policy”). First American filed a motion for summary judgment. After a hearing, the Chancery Court for Sumner County (“the Trial Court”) granted summary judgment to First American after finding and holding, inter alia, that the Title Policy excluded any claim pursuant to either federal bankruptcy code or Tennessee law for an alleged fraudulent conveyance, fraudulent transfer, or preferential transfer. Plaintiffs appeal the grant of summary judgment to this Court. We find and hold that First American made a properly supported motion for summary judgment demonstrating that Plaintiffs’ evidence is insufficient to establish an essential element of their claim and that Plaintiffs failed to demonstrate that there are genuine disputed issues of material fact with regard to the claims for fraudulent conveyance or fraudulent transfer. We further find and hold that the claim for post-petition transfer is not excluded from coverage pursuant to exclusion 4 of the Title Policy, and, therefore, summary judgment on the post-petition claim was improper. We, therefore, affirm the grant of summary judgment, in part, and reverse it, in part, and remand this case to the Trial Court for further proceedings consistent with this Opinion.

Sumner County Court of Appeals 05/16/18
Fredrick Sledge v. Tennessee Department of Corrections, et al
M2017-01510-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Claudia C. Bonnyman

Fredrick Sledge (“Petitioner”) appeals the June 16, 2017 order of the Chancery Court for Nashville and Davidson County (“the Trial Court”) dismissing Petitioner’s October 2016 petition for declaratory judgment (“2016 Petition”) based upon the prior suit pending doctrine. We find and hold that the prior suit pending doctrine applies as Petitioner had a prior suit pending involving the same parties and the same subject matter in a court that had both personal and subject matter jurisdiction. We, therefore, affirm the Trial Court’s June 16, 2017 order dismissing Petitioner’s petition.

Davidson County Court of Appeals 05/16/18
Dana Looper v. City of Algood
M2016-01880-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Larry B. Stanley, Jr.

Former police officer appeals the denial of her petition for a writ of certiorari and the denial of her motion for relief from a final judgment related to the termination of her employment. Here, the evidence was undisputed that the former police officer neglected her duties, failed to follow the directive of a “superior” and was repeatedly informed about various instances of misconduct. As such, the city administrator’s decision to uphold Appellant’s dismissal was supported by material evidence and was neither arbitrary, illegal, nor capricious.

Putnam County Court of Appeals 05/16/18
Sandra Buttram v. Kenneth Ramsey
E2017-00937-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge J.B. Bennett

Kenneth Ramsey (“Defendant”), pro se, appeals the April 18, 2017 order of the Circuit Court for Hamilton County (“the Circuit Court”) granting Plaintiff’s motion to dismiss Defendant’s appeal from General Sessions Court to the Circuit Court. Defendant’s brief on appeal severely fails to comply with Tenn. R. App. P. 27. We, therefore, find that Defendant has waived his issues on appeal. We affirm the Trial Court’s April 18, 2017 order.

Hamilton County Court of Appeals 05/15/18
In Re: Samuel R., et al.
W2017-01359-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Jim Kyle

This appeal involves the termination of a father’s parental rights to his two children. The father suffers from paranoid schizophrenia. The trial court terminated his parental rights on the grounds of mental incompetence and abandonment by willful failure to visit and/or support. We reverse the trial court’s findings regarding abandonment but otherwise affirm the termination of parental rights.

Shelby County Court of Appeals 05/14/18
Family Trust Services, LLC, Et Al. v REO Holdings, LLC, Et Al.
M2016-02524-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal of a conviction for criminal contempt arises out of a civil suit brought by business owners against the owners and employees of a competing business for fraud in the use of the tax-sale and redemption process for real property. The trial court issued a temporary injunction, prohibiting defendants from, inter alia, recording deeds in real estate transactions without an authentic notary seal on the documents and requiring defendants to notify the court and opposing counsel of any documents they intended to record in the Register’s Office. Appellant, the owner of the business which was the subject of the injunction, subsequently formed a trust in which Appellant retained the right to direct the distribution of income and principal and to amend, revoke, or terminate the trust. The trustee of the trust was conveyed real property in trust and recorded the deed without the notice required by the injunction. The property was subsequently sold, and, at Appellant’s instruction, a portion of the proceeds of sale used to pay Appellant’s legal fees for a related proceeding; the trial court held that, in so doing, the Appellant willfully and for a bad purpose violated the injunction, and held him in contempt. On appeal, Appellant argues that the evidence is insufficient to support the conviction. We have reviewed the record and conclude that there is evidence to support the contempt conviction beyond a reasonable doubt and accordingly affirm the judgment.

Davidson County Court of Appeals 05/14/18
U.S. Bank National Association v. Letitia Robertson, et al.
W2017-01421-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Gina C. Higgins

This is an unlawful detainer case. U.S. Bank initiated an action against Letitia and Roderick Robertson in the general sessions court seeking possession of a residential property it had purchased at a foreclosure sale after the Robertsons defaulted on their home loan. The general sessions court issued U.S. Bank a writ of possession, and the Robertsons appealed to the circuit court. The circuit court granted U.S. Bank’s motion for summary judgment and writ of possession. The Robertsons appealed to this Court, arguing that the circuit court lacked subject matter jurisdiction over the unlawful detainer claim. Because we have concluded that the circuit court had subject matter jurisdiction, we affirm.

Shelby County Court of Appeals 05/11/18
Mayla C. Anders v. Jonah Paul Anders
W2017-00071-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Gina C. Higgins

This is an appeal from the entry of an order dismissing an order of protection, which had already expired by its own terms. Because the order of protection has expired, we affirm the decision of the trial court and dismiss the appeal as moot.

Shelby County Court of Appeals 05/11/18
James Edgar Yarbrough v. Cheryl Ann Pinegar Yarbrough
W2017-00152-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jerry Stokes

A wife filed a motion pursuant to Tennessee Rule of Civil Procedure 60.02(3) to set aside a final decree of divorce granted on the ground of irreconcilable differences. The trial court denied the motion, finding that she failed to prove by clear and convincing evidence that the judgment was void. We affirm the trial court’s decision.

Shelby County Court of Appeals 05/11/18
Tennessee Community Organizations, Et Al. v. Tennessee Department of Intellectual And Developmental Disabilities
M2017-00991-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Russell T. Perkins

Appellants, home and community based service providers and their professional trade organization, appeal the trial court’s grant of summary judgment in favor of Appellee Tennessee Department of Intellectual and Developmental Disabilities. The case, which was filed as a declaratory judgment action, involves financial sanctions levied against Appellant providers by Appellee for billing for day services in excess of the 243-day limit imposed by a federal waiver. Appellants assert, inter alia, that the imposition of these fines exceeded Appellee’s statutory and/or contractual authority. Discerning no error, we affirm the trial court’s grant of summary judgment against Appellants on all counts of their petition.

Davidson County Court of Appeals 05/11/18
State of Tennessee F/B/O City of Columbia v. 2013 Delinquent Taxpayers
M2017-01439-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge David L. Allen

This case involves Appellant’s attempt to redeem property that was purchased by Appellee at a tax sale. Appellant executed a power of attorney in favor of his son, which vested his son with authority to file the motion to redeem the subject property. Appellee objected to the motion on the ground that son, who is not a licensed attorney, engaged in the unauthorized practice of law by filing the motion to redeem; thus, Appellee argued that the motion was void. In response to the motion, Appellant filed an amended motion to redeem with the assistance of an attorney. The amended motion, however, was filed after the one year redemption period had expired. The trial court denied the amended motion to redeem, finding that the original motion to redeem was void and that the amended motion to redeem did not relate back to the date son filed the original motion. Thus, the trial court held that the amended motion was untimely. We hold that Appellant’s son was authorized, under the power of attorney, to file the original motion to redeem and that the filing of the form motion provided by the clerk’s office was not an unauthorized practice of law. Accordingly, we reverse the trial court’s order and remand.  

Maury County Court of Appeals 05/11/18
In Re J.T.,Et Al.
M2017-01509-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Michael Meise

In this termination of parental rights case, the Department of Children’s Services filed a petition to terminate the parental rights of B.B. (mother) and J.T. (father) with respect to J.T., Jr. and H.T. (the children). The trial court determined that clear and convincing evidence supported two grounds for termination: (1) substantial noncompliance with a permanency plan; and (2) persistence of conditions. By the same quantum of proof, the court determined that termination is in the best interest of the children. We vacate the trial court’s judgment with respect to the ground of persistence of conditions. As modified, we affirm the trial court’s judgment terminating the parental rights of the parents because termination is supported by clear and convincing evidence of substantial noncompliance with a permanency plan and is in the best interest of the children. 

Dickson County Court of Appeals 05/10/18
DL Rummage v. Kimberly Rummage
M2016-02356-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Philip E. Smith

This is a divorce case in which the trial court designated the mother as the primary residential parent, awarded her child support and a portion of her attorney’s fees as alimony, and awarded her retroactive child support. The father appealed, arguing the trial court erred in numerous ways. We decline to address the father’s arguments, however, and affirm the trial court’s judgment because the father’s brief does not comply with the requirements of Tennessee Rule of Appellate Procedure 27(a) or Court of Appeals Rule 6. We grant the mother’s request for frivolous appeal damages pursuant to Tenn. Code Ann. § 27-1-122.  

Davidson County Court of Appeals 05/09/18
In Re Emily J. Et Al.
M2017-01959-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Sharon Guffee

Mother appeals the termination of her parental rights to two children on the grounds of abandonment by failure to support and persistence of conditions. Upon our review, we conclude that the record contains clear and convincing evidence that the conditions which led to the children’s removal from Mother’s home persisted and that termination of her rights is in the children’s best interest; however, the evidence of abandonment by failure to support is not clear and convincing. Accordingly, we reverse the judgment in part and affirm the termination of her rights.  

Williamson County Court of Appeals 05/09/18
Matthew Brock Hance v. Danielle Smith Hance
E2017-01419-COA-R3-CV
Authoring Judge: Judge Frank G. Clement Jr., P.J., M.S.
Trial Court Judge: Judge Douglas T. Jenkins

The issue on appeal is whether the commencement of a dependency and neglect action in the juvenile court deprived the chancery court of subject matter jurisdiction to rule on a pending motion to modify a parenting plan. Shortly after Father filed his petition to modify the parenting plan in the chancery court, the Department of Children’s Services filed a dependency and neglect petition in the juvenile court. After the juvenile court held a preliminary hearing on the dependency and neglect petition and assumed jurisdiction, the chancery court modified the parents’ child support obligations and awarded the father the federal income tax exemption for the child. Months later, the mother filed a motion to vacate the chancery court’s judgment on the basis it was void ab initio for lack of subject matter jurisdiction. The chancery court denied the motion, and this appeal followed. Tenn. Code Ann. § 37-1-103 vests juvenile courts with exclusive original jurisdiction over dependency and neglect proceedings and, once a juvenile court has exercised jurisdiction in a dependency and neglect proceeding, its exclusive jurisdiction continues until the case has been dismissed, the custody determination is transferred to another court exercising domestic relations jurisdiction, or a petition for adoption is filed. Because none of the jurisdiction exceptions had occurred prior to the chancery court modifying the parenting plan, the chancery court’s order was void ab initio for lack of subject matter jurisdiction. Accordingly, the chancery court’s order modifying the parenting plan is hereby vacated.

Hamblen County Court of Appeals 05/08/18
In Re: Isaiah B.
E2017-01699-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Klyne Lauderback

Mother appeals the termination of her parental rights on grounds of (1) abandonment by failure to establish a suitable home; (2) persistence of conditions; (3) substantial noncompliance with permanency plans; and (4) failure to manifest a willingness and ability to assume custody of the child. We reverse the trial court’s ruling with regard to substantial noncompliance with permanency plans, but affirm the remaining grounds, as well as the trial court’s determination that termination is in the child’s best interest. The termination of Mother’s parental rights is therefore affirmed.

Carter County Court of Appeals 05/08/18
Polly Spann Kershaw v. Jeffrey L. Levy
M2017-01129-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge William B. Acree

This is a legal malpractice case. Appellant filed suit against Appellee, who had previously served as Appellant’s attorney in a divorce matter. Appellant alleged that she suffered monetary damages and was convicted of criminal contempt as a result of the negligent legal representation she received from Appellee in her divorce case. Appellee filed a motion for summary judgment claiming that Appellant’s claims were, among other things, barred by the doctrine of judicial estoppel as a result of the sworn statements Appellant made in conjunction with her divorce settlement. The trial court agreed and granted summary judgment in favor of Appellee. We affirm.      

Davidson County Court of Appeals 05/08/18
Sammie L. Brookins, et al. v. Owen B. Tabor, Jr., et al.
W2017-00576-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert L. Childers

A plaintiff filed a health care liability complaint in 2015 against several physicians and entities that he later non-suited in order to comply with the pre-suit notice requirements set forth in Tenn. Code Ann. § 29-26-121(a). The plaintiff then filed a second complaint against the same defendants, relying on the saving statutes of Tenn. Code Ann. § 28-1- 105 and Tenn. Code Ann. § 29-26-121(c) to extend his statute of limitations. The plaintiff’s wife joined him as a plaintiff in the second complaint. The defendants filed motions to dismiss, alleging non-compliance with the pre-suit notice requirements and the statute of limitations. The trial court granted all of the defendants’ motions and dismissed the complaint. The plaintiffs appealed the trial court’s dismissal of the complaint against the physicians. We affirm the trial court’s dismissal of the complaint against all three of the physicians on statute of limitations grounds. We also affirm the trial court’s judgment dismissing the wife’s claims against all of the defendants.

Shelby County Court of Appeals 05/08/18
Renee Ann Bradley v. Richard Bradley
E2017-01626-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Michael A. Davis

A husband and wife were divorced in 2016, and the divorce decree permitted the husband to purchase the parties’ real property, which was in the wife’s name. The parenting plan provided the parties the opportunity to travel domestically or abroad with their minor son. The husband filed a contempt petition against the wife based on her refusal (1) to provide information to his lender that was necessary for him to close on the purchase of the property and (2) to cooperate with him to renew their child’s passport when the husband wanted to travel with the child to Europe. The trial court found the wife in contempt on both grounds and awarded the husband damages. The wife appealed, arguing that she was not willful in refusing to cooperate with the husband’s lender. The evidence showed that the wife believed the husband was trying to refinance her loan and add his name to her deed rather than purchase the property outright. We hold that the trial court erred in finding the wife willfully disobeyed the court’s order that she cooperate with the husband’s lender. We affirm the trial court’s order holding the wife in contempt for failing to cooperate with the husband in renewing the child’s passport.

Morgan County Court of Appeals 05/07/18
John A. Gardner Et Al. v. R & J Express, LLC
E2017-00823-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Beth Boniface

In this negligence action that arose from a tractor-trailer accident, the trial court dismissed the plaintiffs’ claims following the court’s determination that a critical piece of evidence had been destroyed by the plaintiffs, resulting in severe prejudice to the defendant. The court further determined that dismissal was the only equitable remedy for the plaintiffs’ spoliation of evidence. The plaintiffs timely appealed the dismissal of their claims. Discerning no reversible error, we affirm.

Hamblen County Court of Appeals 05/07/18
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
In Re Justice H., Et Al.
M2017-01870-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge G. Andrew Brigham

This appeal concerns the termination of two parents’ parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Stewart County (“the Juvenile Court”) seeking to terminate the parental rights of Joshua H. (“Father”) and Amie H. (“Mother”) to their minor children Justice and Alijah (“the Children,” collectively). After a trial, the Juvenile Court found the ground of severe abuse with respect to both parents. The Juvenile Court also found that termination of Mother’s and Father’s parental rights is in the Children’s best interest. Mother and Father appeal to this Court. Neither parent contests grounds for termination, but both parents challenge the Juvenile Court’s finding that termination of their parental rights is in the Children’s best interest. We find by clear and convincing evidence, as did the Juvenile Court, that termination of Mother’s and Father’s parental rights is in the Children’s best interest. We affirm the judgment of the Juvenile Court.

Stewart County Court of Appeals 05/04/18
In Re: Jury Venire for the Week of July 24, 2017
M2017-02113-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joseph P. Binkley, Jr.

The trial court ordered the Appellant to pay its employee for the full twelve hours of a work shift excused due to the employee’s jury service. For the reasons stated herein, we vacate the trial court’s judgment and order that the case be dismissed.

Davidson County Court of Appeals 05/03/18
Anne Shacklett v. Anthony A. Rose, Et Al.
M2017-01650-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joseph Woodruff

This is a slip-and-fall case. An employee of a catering company fell, injuring herself when leaving a private residence after dark as she attempted to traverse an outside staircase. The employee brought suit against the homeowners, and the homeowners filed a motion for summary judgment. The trial court granted the homeowners’ motion, concluding that the homeowners did not owe the employee a duty of care. Our review of the record has revealed that material, disputed facts remain which render this case inappropriate for summary judgment. Accordingly, we reverse and remand. 

Williamson County Court of Appeals 05/02/18