Court of Appeals Opinions

Format: 07/30/2014
Format: 07/30/2014
Tracy W. Hamilton v. Pemberton Truck Lines, Inc., et al.
E2013-01329-WC-R3-WC
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Larry H. Puckett

The employee sustained a work-related injury to his cervical spine. The trial court found permanent and total disability as a result of the injury. The employer has appealed, contending that the evidence preponderates against the trial court’s finding. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.

Monroe County Court of Appeals 07/16/14
In Re: Conservatorship of Robert E. L. Hathaway, Ward
W2013-01474-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert Benham

This is a conservatorship proceeding. The ward’s wife filed a petition to appoint a conservator in which she asked to be appointed as conservator for the ward. After a trial, the trial court held that the ward was disabled and in need of a conservator but appointed a public conservator instead of the wife. The trial court also set aside a transfer of real property, purportedly made by the ward prior to the filing of the conservatorship action. The wife now appeals, arguing that the trial court erred in setting aside the transfer of real property and in rejecting her request to be appointed conservator. Discerning no error, we affirm.

Shelby County Court of Appeals 07/16/14
Markeesha L. Rucker v. Frederick E. Harris
M2013-01240-COA-R3-JV
Authoring Judge: Special Judge Larry B. Stanley, Jr.
Trial Court Judge: Judge Walter C. Kurtz

The trial court fashioned a parenting plan that designated the mother of five year old twins as their primary residential parent and gave the father 91 days of visitation each year. The father argues on appeal that the trial court should have divided parenting time equally between the parties, or, in the alternative, simply granted him additional parenting time. He relies on language in the child custody statute,Tenn.Code Ann.§ 36-6-106(a),which directs the court to “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child . . .” For her part, the mother argues that the parenting plan adopted by the trial court is in the best interest of the children. We affirm, but we remand this case to the trial court for correction of a clerical error.

Davidson County Court of Appeals 07/15/14
Tennessee Farmers Mutual Insurance Company v. Judy Pauline Simmons, et al.
E2013-01419-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Thomas J. Seeley, Jr.

This case presents an issue regarding the proper interpretation of a policy of insurance. The insurance company filed a declaratory judgment action against the defendants, seeking a determination from the trial court regarding whether the insurance policy afforded coverage for an accident involving a four-wheeler vehicle owned by one of the defendants. The accident resulted in the death of a minor, Ryan Casey. The child’s father intervened in the declaratory judgment action. Following a hearing, the trial court concluded that the policy did not provide coverage. The intervenor has appealed. Discerning no error, we affirm.

Unicoi County Court of Appeals 07/15/14
Robert Walker and Susan Elder v. Charles Smith v. Clifford Byrne and Wife, Carol Byrne
M2013-01816-COA-R3-CV
Authoring Judge: Judge Holly M. KIrby
Trial Court Judge: Chancellor Jeffrey F. Steward

This appeal involves private condemnation of an easement. The plaintiffs and the defendant both owned property on an island in the Tennessee River. There was a causeway or land bridge across the river, connecting the island to the mainland. The trial court rejected the defendant’s claim for private condemnation of an easement on the plaintiffs’ property to enable the defendant to access the causeway.  It also enjoined the defendant from using the causeway or from entering onto the plaintiffs’ property to get to the causeway. The defendant appeals. We hold that the causeway is accessible by the public and so vacate the injunction. We reverse the trial court’s decision on the defendant’s private condemnation claim and hold that the defendant is entitled to condemnation of an appropriate easement under the facts of this case.

Marion County Court of Appeals 07/11/14
Myrtle Robinson, et al. v. Baptist Memorial Hospital, et al.
W2013-01198-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Gina C. HIggins

This is a medical negligence/wrongful death case. Following their mother’s death, Appellants’ filed the instant lawsuit against several doctors who provided treatment to their mother. During discovery, Appellants allegedly learned that the Appellee physician had amended his original consultation report to correct a mis-diagnosis of the Decedent’s condition. Appellants were granted leave to amend their complaint to add the Appellee and his medical practice as defendants to the lawsuit. The amended complaint naming the Appellees was filed some five years after the filing of the original lawsuit. Appellees moved for summary judgment on the ground that the statutes of limitations and repose barred Appellants’ case. The trial court granted summary judgment, finding that the Appellants had not shown facts sufficient to establish fraudulent concealment on the part of the Appellee physician so as to toll the applicable one-year statute of limitations and three-year statute of repose under Tennessee Code Annotated Section 29-26-116. The trial court also found that Appellants had failed to exercise due diligence in discovering the alleged fraudulent concealment. Appellants appeal. For the reasons stated herein, we affirm and remand.

Shelby County Court of Appeals 07/11/14
Connie Hayes v. State of Tennessee
M2013-01811-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Claudia C. Bonnyman

This appeal involves the termination of a State employee.  The employee was late for work on numerous occasions prior to and throughout 2010. She sustained an at-work injury in October 2010. On January 15, 2011, she was tardy for work and a termination proceeding was commenced shortly thereafter. Prior to her receipt of the letter recommending termination, the employee tendered a request for FMLA leave, which leave was approved after termination was recommended, but before termination was confirmed. The Civil Service Commission affirmed the employee’s termination. The Chancery Court affirmed the employee’s termination and it dismissed her interference with FMLA claim. We affirm.

Davidson County Court of Appeals 07/10/14
Timothy Davis, as surviving spouse and next of kin of Katherine Michelle Davis v. Michael Ibach, M.D., and Martinson Ansah, M.D.
W2013-02514-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge William B. Acree

This is a medical malpractice wrongful death action. After the plaintiff filed this lawsuit, he timely filed a certificate of good faith, as required by the medical malpractice statute. The certificate did not include a statement that the executing party had “zero” violations of the statute. The defendants filed a motion to dismiss based on this omission. The plaintiff in turn filed a notice of voluntary nonsuit without prejudice. The defendants objected to a dismissal without prejudice. The defendants argued that, if the certificate of good faith does not strictly comply with the statutes, the trial court must dismiss the case with prejudice. The trial court granted the voluntary nonsuit without prejudice, and the defendants now appeal that decision. DIscerning no error, we affirm.

Dyer County Court of Appeals 07/09/14
Patricia Mulhaire-Breeden v. Nashville Midnight Oil, LLC et al.
M2014-00480-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Carol Soloman

This is an appeal from an order setting aside a default judgment. Because the order appealed does not resolve all the claims between the parties, we dismiss the appeal for lack of a final judgment.

Davidson County Court of Appeals 07/08/14
Thomas Hager, Et Al. v. John George
M2013-02049-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Carol L. McCoy

This case involves a dispute regarding the use of an abandoned county road.  The road runs through the land of John George, Appellee, who sought to deny his neighbors, Thomas and Bobbye Hager, Appellants, access to the road. The Hagers brought suit claiming they had acquired rights to use the road through adverse possession, a private access easement pursuant to the abandonment of a public road, or a prescriptive easement. The trial court found that the Hagers had established the creation of a prescriptive easement butlimited their right to maintain the easement to emergency conditions only. The Hagers argue that the trial court erred in restricting their ability to reasonably maintain the easement. Mr. George contends that the trial court erred in finding the Hagers had acquired rights in the road through a prescriptive easement. We find that the trial court correctly held that the Hagers acquired a prescriptive easement but that a right to conduct reasonable maintenance is a necessary incident of an easement by prescription. Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings.

Davidson County Court of Appeals 07/08/14
In Re Justin A. H.
M2013-00292-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Franklin L. Russell

This is a petition for dependency and neglect, child support, and breach of contract arising out of an international adoption.  The respondent adopted the subject child from Russia.  A few months later, after experiencing difficulties with the child, she placed the child on a oneway flight to Russia and sought to annul the adoption. The adoption agency that brokered the adoption filed this lawsuit against the respondent in juvenile court, seeking child support and alleging that the child was dependent and neglected. The juvenile court dismissed the case, and the case was appealed to the circuit court below. On appeal to circuit court, the petition was amended to add the child as a petitioner and to seek child support and damages arising out of the adoption contract. After protracted proceedings, the trial court granted the petitioners’ motion for default judgment against the respondent for failing to file an answer to the petition and failing to cooperate in discovery. The trial court later conducted a hearing on damages, at which the respondent did not appear. The trial court awarded damages to the petitioners and ordered the respondent to pay child support. It later denied the respondent’s motions for post-judgment relief. The respondent now appeals. Discerning no error, we affirm.

Bedford County Court of Appeals 07/07/14
Kimberly A. Sparkman v. Burns Phillips, Commissioner, Tennessee Department of Labor And Workforce Development, and First Tennessee Bank, N. A.
M2013-01235-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Stella L. Hargrove

This appeal involves the denial of unemployment compensation benefits. The petitioner was employed by the defendant bank. When the petitioner employee arrived for work, the employee’s supervisor smelled alcohol on her and asked her to take an alcohol test. The employee refused to take the alcohol test, and as a result her employment was terminated. The employee filed for unemployment benefits.  The defendant commissioner held that the employee was discharged for work-related misconduct and was disqualified from receiving unemployment benefits,and the denial of benefits was affirmed in the administrative appeals process. The employee then filed the instant lawsuit for judicial review of the administrative decision. The trial court affirmed the agency’s decision, and the petitioner now appeals. Discerning no error, we affirm.

Maury County Court of Appeals 07/07/14
Stephanie D. Turner v. Kevin Turner - Concurring Opinion
W2013-01833-COA-R3-CV
Authoring Judge: Senior Judge Paul G. Summers
Trial Court Judge: Judge Martha B. Brasfield

I concur with Judge Stafford’s thorough opinion. After several discussions and independent research, I believe that my colleagues are correct on the law.

Fayette County Court of Appeals 07/07/14