Court of Appeals Opinions

Format: 01/23/2019
Format: 01/23/2019
Reliant Bank v. Kelly D. Bush Et Al.
M2018-00510-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Deanna B. Johnson

Following an appeal in which this Court affirmed the judgment of the chancery court, the unsuccessful appellants moved the chancery court for relief from the judgment under Rule 60.02 of the Tennessee Rules of Civil Procedure. The chancery court granted the motion by reducing the amount of the original judgment. The matter is now before us again on the grant of Rule 60 relief. Because the Rule 60 motion was untimely, we reverse the grant of relief.    

Williamson County Court of Appeals 12/28/18
Larry E. Parrish, P. C. v. Nancy J. Strong - Concurring In Part and Dissenting In Part
M2017-02451-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor J. B. Cox

I concur in all aspects of the opinion, save one. The majority concludes that the Chancery Court of Lincoln County erred in denying the motion of Nancy J. Strong to hold Larry E. Parrish personally liable for the obligations of Larry E. Parrish, P.C. The majority vacates the trial court’s decision and “remands for a hearing” on that issue. Because I would affirm the denial of the motion, I respectfully dissent from that part of the opinion.  

Lincoln County Court of Appeals 12/28/18
Larry E. Parrish, P. C. v. Nancy J. Strong
M2017-02451-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor J. B. Cox

A professional corporation through which a lawyer practiced law brought suit against a former client seeking to recover the “res” transferred to the corporation under an assignment of chose-in-action executed by the client as a means of paying fees owed to the corporation for its representation of the client in a legal malpractice action. The client counterclaimed for breach of contract. A jury found in favor of the client and awarded her compensatory and punitive damages. We find in favor of the client on all issues raised by the corporation. As to the client’s issues, we find that the trial court erred in failing to require the corporation to file a bond with regard to the injunction restraining the client from using certain funds during the pendency of the litigation and in failing to hold a hearing on the issue of piercing the corporate veil.       

Lincoln County Court of Appeals 12/28/18
In Re Antonio J., Et Al.
M2017-01833-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Sheila Calloway

A mother placed the children that are the subject of this appeal with a child placement agency because she was unable to provide a stable home for them. Ten months later, the agency filed a petition to have the children declared dependent and neglected; the court appointed a guardian ad litem for the children and in due course declared the children to be dependent and neglected and continued custody with the agency. The guardian ad litem initiated this proceeding to have the mother’s parental rights terminated on the grounds of abandonment by failure to visit and support, abandonment by failure to establish a suitable home, substantial non-compliance with permanency plans, and persistence of conditions; the agency later filed a separate petition on most of the same grounds also seeking termination of mother’s rights. Following a trial, the court terminated the mother’s rights on the grounds of abandonment by failure to visit, substantial non-compliance with the permanency plans, and persistence of conditions; the court also found that termination of mother’s rights was in the children’s best interest. The mother appeals, denying that grounds existed to terminate her rights and that termination was in the children’s best interest; the guardian ad litem and agency appeal the failure of the court to sustain the ground of abandonment by failure to support. Upon our de novo review, we affirm the determination that the evidence established the grounds of abandonment by failure to visit, substantial non-compliance with the permanency plans, and persistence of conditions; we vacate the holding that termination of mother’s rights was in the children’s best interest and remand the case for further consideration.  

Davidson County Court of Appeals 12/28/18
In Re Frederick S.
W2018-00941-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge J. Roland Reid

Mother appeals the termination of her parental rights to her child. The juvenile court found three statutory grounds for termination: (1) abandonment by failure to establish a suitable home; (2) persistence of conditions; and (3) mental incompetence. The court also found that termination of Mother’s parental rights was in the child’s best interest. We conclude that the record contains clear and convincing evidence to support two of the three statutory grounds for termination. We further conclude that the record contains clear and convincing evidence that termination is in the child’s best interest. So we affirm the termination of Mother’s parental rights.

Haywood County Court of Appeals 12/26/18
Albert Bell et al. v. Richard Cadmus d/b/a Band-Type Supply
E2017-02149-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael S. Pemberton

In this unlawful detainer action, the defendant appeals the dismissal of his appeal by the Loudon County Circuit Court (“circuit court”) from an order to disburse funds entered by the Loudon County General Sessions Court (“general sessions court”). Discerning no reversible error, we affirm.

Loudon County Court of Appeals 12/26/18
State of Tennessee v. Christopher Bernard Simmons
M2018-00937-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Defendant appeals the trial court’s refusal to dismiss the State’s claim that he violated Tennessee’s implied consent statute. Discerning no error, we affirm.

Davidson County Court of Appeals 12/21/18
Amnon Shreibman, Et Al. v. First Class Corporation Et Al.
M2017-02289-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle

A commercial landlord filed suit against its tenant and the guarantor of the lease. After obtaining a default judgment against the tenant, the landlord moved for partial summary judgment on the question of the guarantor’s liability. The chancery court concluded that the guarantor was liable under the guaranty. And following a trial on damages, the court entered judgment against the tenant and the guarantor. The guarantor appeals solely on the issue of his personal liability, arguing that his guaranty was conditional. Because the guaranty was an absolute undertaking, we affirm.  

Davidson County Court of Appeals 12/21/18
J.Y. Sepulveda v. Tennessee Board of Parole
M2018-00601-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Ellen Hobbs Lyle

In this matter involving a petition for writ of certiorari filed by a self-represented petitioner, the trial court dismissed the petition for lack of subject matter jurisdiction. Determining that the petitioner failed to properly verify the truth of the contents of his petition in accordance with the requirements of Article VI, Section 10 of the Tennessee Constitution and Tennessee Code Annotated
§ 27-8-104(a), we affirm the dismissal of the petition.

Davidson County Court of Appeals 12/21/18
In Re: Mikko B.
E2018-00521-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

A mother and her husband petitioned the court to terminate the biological father’s parental rights to his son on the grounds of abandonment by failure to visit and failure to support. After a trial, the court terminated Father’s rights on those grounds and upon its holding that termination of Father’s rights would be in the best interest of the child. Father appeals. Upon our review, we affirm the judgment in all respects.

Knox County Court of Appeals 12/21/18
In Re: Nevaeh N.
E2018-00770-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Douglas T. Jenkins

Mother and Father jointly appeal from the order terminating their parental rights as to their minor child based upon the statutory ground of abandonment by willful failure to support, as well as a finding that termination was in the child’s best interest. Because we conclude that Petitioners/Appellees failed to show by clear and convincing evidence that Mother and Father willfully failed to support the child, we reverse.

Hawkins County Court of Appeals 12/21/18
Bill E. Owens, Et Al. v. Otto Muenzel, Jr., Et Al.
E2018-00199-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Carter Scott Moore

This appeal arises from an action for personal injuries incurred in a vehicle collision. The alleged tortfeasor died subsequent to the injury-causing accident. The plaintiffs, unaware of the death of the decedent, commenced this action and named him as a defendant. The plaintiffs also sued their uninsured/underinsured motorist insurance carrier. Upon learning of the death of the decedent, the plaintiffs moved for the trial court to appoint an administrator ad litem. The trial court eventually dismissed the matter in its entirety with prejudice upon finding, inter alia, that it did not possess subject matter jurisdiction to appoint an administrator ad litem and that the action was barred by the statute of limitations. We affirm.

Sevier County Court of Appeals 12/21/18
Kenneth Fulmer, et al. v. Jeffrey Follis, et al.
W2017-02469-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Felicia Corbin Johnson

Purchasers of real property brought this action against the sellers alleging fraud, fraudulent misrepresentation, fraudulent inducement, and fraudulent concealment. The alleged misrepresentations and concealment related to severe water damage to one wall of the purchased house. The trial court found in favor of the purchasers with respect to each claim. After our thorough review of the record, we conclude that because the purchasers were on notice of potential defects and failed to exercise ordinary diligence, the evidence preponderates against the trial court’s finding that the purchasers reasonably relied on the sellers’ misrepresentations and concealment. We reverse and remand for further proceedings.

Shelby County Court of Appeals 12/20/18
Popularcategories.com, Inc. v. David Gerregano, Commissioner Of Revenue, State of Tennessee
M2017-01382-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Claudia Bonnyman

This appeal involves the Appellant’s liability for franchise and excise taxes assessed against it by the Tennessee Department of Revenue. The trial court determined that the Appellant’s incorporation in the State of Florida did not afford it the right to apportionment for tax purposes, and entered a judgment against it in an amount over $2,000,000.00. The trial court also determined that the Commissioner of Revenue was entitled to an award of attorneys’ fees and litigation expenses as the prevailing party under Tennessee Code Annotated section 67-1-1803(d). For the reasons stated herein, we reverse the trial court’s ruling on apportionment, vacate the monetary judgment and award of attorneys’ fees, and remand for further proceedings consistent with this Opinion.

Davidson County Court of Appeals 12/20/18
In Re: Kiara S. Et Al.
E2018-01131-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Brad Lewis Davidson

The trial court entered an order terminating Father’s parental rights to his two minor children based upon the statutory grounds of abandonment by willful failure to visit, abandonment by willful failure to support, and persistence of conditions, as well as a finding that termination was in both children’s best interest. From this order, Father appeals. We affirm the trial court’s findings as to the grounds of willful failure to visit and willful failure to support, but reverse the finding that clear and convincing evidence supports termination based upon the statutory ground of persistence of conditions. Because we conclude that termination is in the children’s best interest, we affirm the termination of Father’s parental rights.

Cocke County Court of Appeals 12/20/18
In Re Willard R. Sparks Revocable Trust 2004
W2017-01497-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Kathleen N. Gomes

This declaratory judgment action involves a multi-million dollar trust and a co-beneficiary and co-trustee’s request for a detailed accounting and a liquidation plan. The case was dismissed, and the managing trustee filed a motion for Rule 11 sanctions. The trial court found multiple Rule 11 violations by the petitioner and awarded $200,000 in sanctions. Finding no abuse of discretion, we affirm.

Shelby County Court of Appeals 12/20/18
Jeffrey Heatley, Et Al. v. David G. Gaither, Et Al.
M2018-00461-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ronald Thurman

Plaintiffs filed suit against the owners of a neighboring property, claiming that wastewater from the neighbors’ septic system was pooling onto the plaintiffs’ property. The defendants moved for summary judgment on two grounds: (1) their use of the septic system was authorized by an implied easement from the previous common ownership of the two properties; and (2) they did not breach any duty to the plaintiffs because they were unaware that the septic tank existed. In response, the plaintiffs argued that, after the septic tank’s discovery, the defendants continued to use it even though it was failing. The plaintiffs also moved to amend their complaint to add claims for gross negligence, nuisance, and continuing trespass. The trial court granted summary judgment for the defendants on all claims and denied the motion to amend the complaint. On appeal, we affirm the grant of summary judgment on trespass but reverse the grant of summary judgment on negligence. In light of our decision on the summary judgment motion, we also vacate the denial of the motion to amend the complaint. 

Putnam County Court of Appeals 12/19/18
In Re Brianna B.
M2017-02436-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Stella L. Hargrove

This action involves a termination petition filed by the father and stepmother of two minor children in an attempt to terminate the biological mother’s parental rights. Following a bench trial, the court found that clear and convincing evidence existed to support the statutory grounds of abandonment for failure to support and to visit and failure to manifest an ability and willingness to personally assume responsibility for the children. The court further found that termination was in the best interest of the children. We vacate the order of termination and remand for further proceedings. 

Maury County Court of Appeals 12/19/18
James McDonald Shea Brown Jr. v. John F. Weaver
E2018-00783-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert E. Lee Davies

Appellant, a beneficiary under the will of Decedent, brought this action in 2017 to recover funds that Appellee allegedly improperly safeguarded when he served as conservator for Decedent in 1980. On Appellee’s motion to dismiss, the trial court granted the motion finding that the complaint failed to state a claim upon which relief could be granted. The trial court also found that any cause of action arising from Appellee’s conduct as conservator was barred by the statute of limitations. Appellant then filed a motion to reconsider. Following a hearing, the trial court denied Appellant’s motion finding that Appellant’s action was barred by the statute of limitations. Discerning no error, we affirm.

Knox County Court of Appeals 12/19/18
Shawn T. Slaughter v. Grover T. Mills Et Al.
E2017-02288-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jeff Hollingsworth

This matter involves Hamilton County’s attempt to recover funds it paid, through its on-the- job injury program, on behalf of one of its employees, Shawn T. Slaughter. Mr. Slaughter was injured while riding in a County vehicle when that vehicle collided with another vehicle; he filed suit against the drivers and the County. Prior to trial, Mr. Slaughter settled with one of the defendant drivers. After trial, having been found not atfault by the jury, the County attempted to assert a lien against settlement. The trial court held that the County does not have a contractual or statutory basis for a lien against Mr. Slaughter’s settlement. It further held that, because Mr. Slaughter was not made whole by his settlement, the County is not entitled to subrogation. The County filed a motion for reconsideration and requested a ruling on its asserted constitutional basis for recovery. The court denied the County’s motion. The County appeals. We affirm

Hamilton County Court of Appeals 12/19/18
CHS Development Corporation, Inc. D/B/A Bridge Documents v. Lakeview Neurorehab Center Midwest, Inc. d/b/a/ Lakeview Specialty Hospital
E2018-00519-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge L. Marie Williams

This contract dispute between CHS Development Corporation, Inc. d/b/a Bridge Documents (“CHS”), and Lakeview Neurorehab Center Midwest, Inc. d/b/a Lakeview Specialty Hospital (“Lakeview”), involves the interpretation of contract provisions regarding exclusivity and noncompetition. The trial court determined that the contract provisions at issue were clear and unambiguous and granted summary judgment in favor of CHS. Lakeview has appealed. Determining that the applicable contract provisions are ambiguous, we reverse the trial court’s grant of summary judgment to CHS and remand for an evidentiary hearing to determine the contractual intention of the parties with consideration of parol evidence as necessary. Consequently, we vacate the trial court’s award of damages and attorney’s fees to CHS. We affirm the trial court’s denial of summary judgment to Lakeview. We also deny CHS’s request for attorney’s fees on appeal.

Hamilton County Court of Appeals 12/19/18
State Ex Rel Herbert H. Slatery III, ET Al. v. Chevron Corporation, Et Al.
M2018-00789-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ellen H. Lyle

The Tennessee Attorney General issued several civil investigative demands (“CIDs”) to several oil companies as part of an investigation into false claims and violations of the Tennessee Petroleum Underground Storage Tank Act, Tenn. Code Ann. §§ 68-215-101--204. Compliance was incomplete, but the Attorney General filed suit in 2015 in circuit court. Portions of the suit were dismissed, and the Attorney General took a nonsuit. The Attorney General then filed suit in the chancery court to enforce the CIDs. The oil companies sought a protective order, which the court granted. The Attorney General appealed. We reverse.

Davidson County Court of Appeals 12/18/18
Laxmi Hospitality Group, LLC v. Rajesh Narayan
M2018-00450-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Claudia Bonnyman

A company that loaned $100,000 to two individuals filed a complaint to collect the amount due. One defendant filed for bankruptcy, and his debt to the company was discharged. The other defendant asserted that the complaint was barred by the statute of limitations. The company argued that the remaining defendant was equitably estopped from relying on the statute of limitations because he had misled the company to delay filing suit by promising to pay the debt without the need for litigation. The trial court agreed with the company and ruled that the statute of limitations did not bar the company’s claim. We affirm the trial court’s judgment on appeal. 

Davidson County Court of Appeals 12/18/18
In Re: Lesley A.
E2018-00594-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Terry Stevens

Mother appeals the trial court’s determination that her parental rights to her daughter should be terminated on the grounds of substantial noncompliance with the permanency plans, abandonment by failure to provide a suitable home, and persistence of conditions. Having concluded that clear and convincing evidence supports the trial court’s decisions regarding grounds as well as its determination that termination is in the best interest of the child, we affirm the trial court’s judgment.

Roane County Court of Appeals 12/18/18
Lawrence Benjamin Davenport v. Denise Michelle Davenport
W2017-01376-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert S. Weiss

In this divorce action, the mother appeals the trial court’s permanent parenting plan order, which designated the father as primary residential parent of the parties’ child and awarded him 280 days of annual residential co-parenting time. Having determined that the order appealed from does not adjudicate all of the claims between the parties and is therefore not a final order, we dismiss this appeal for lack of subject matter jurisdiction.

Shelby County Court of Appeals 12/17/18