Court of Appeals Opinions

Format: 05/25/2015
Format: 05/25/2015
Richard K. Williams, by and through his attorney-in-fact, Jennifer Ann Rezba v. Healthsouth Rehabilitation Hospital North
W2015-00639-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge James F. Russell

This accelerated interlocutory appeal results from the trial court’s denial of Appellant’s motion for recusal. Having reviewed the trial court’s ruling on the motion for recusal pursuant to the de novo standard of review required under Tennessee Supreme Court Rule 10B, we affirm.

Shelby County Court of Appeals 05/08/15
Henriette M. Fisher v. Chandranita M. Ankton
W2014-00882-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

Plaintiff filed suit against defendant alleging negligence resulting in an automobile accident. Plaintiff procured issuance of multiple summonses, but did not return the final summons within ninety days after its issuance. Defendant filed a motion to dismiss asserting insufficiency of process, insufficiency of service of process, and expiration of the statute of limitations. The trial court granted defendant’s motion and concluded that Tennessee Rules of Civil Procedure 3 and 4.03 required dismissal when a plaintiff failed to file a return of proof of service within ninety days. Based on this finding, the trial court also concluded that plaintiff had intentionally delayed service. We reverse in part, vacate in part, and remand.

Shelby County Court of Appeals 05/05/15
David Chambers, et al. v. Illinois Central Railroad Company
W2013-02671-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Robert Samual Weiss

This appeal arises out of a negligence action brought against a railroad for damage to the plaintiffs’ home and storage building during a flood in and around Memphis, Tennessee. Railroad moved for summary judgment on the ground that the negligence claim was preemptioned by federal law and that plaintiff could not prove causation. The trial court initially denied the railroad’s motion but, on reconsideration, granted summary judgment; plaintiffs appealed. We reverse the grant of summary judgment and remand for further proceedings.

Shelby County Court of Appeals 05/05/15
Larry D. Williams v. City of Burns
M2012-02423-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Robert E. Burch

We granted permission to appeal in this case to address whether the evidence established that the plaintiff police officer was discharged solely in retaliation for conduct protected under the Tennessee Public Protection Act,Tennessee Code Annotated section 501-304, sometimes called the Whistleblower Act. The chief of police for the defendant municipality had the plaintiff police officer “fix” a traffic ticket for a relative. After the plaintiff officer complained to the mayor that the police chief had pressured him into illegal ticket fixing, the police chief discharged the plaintiff. The defendant municipality claimed that it terminated the officer’s employment because he violated the chain of command by reporting the ticket fixing to the mayor, and also because he undermined the chief’s authority with the other officers in the police department. We hold that the municipality’s assertion that it discharged the plaintiff for going outside of the chain of command amounts to an admission that it retaliated against the plaintiff for refusing to remain silent about illegal activities, conduct that is protected under the Tennessee Public Protection Act. After a review of the record, we also hold that the evidence preponderates in favor of a finding that the second reason proffered by the municipality for the officer’s discharge, that he undermined the police chief’s authority, is pretext for retaliation. Accordingly, we hold that the plaintiff was discharged solely in retaliation for conduct protected under the Public Protection Act.

Dickson County Court of Appeals 05/04/15
In re Destiny W.
M2014-01256-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Charles B. Tatum

This appeal involves the termination of Mother’s parental rights to her child. At ten and one-half weeks old, the Department of Children’s Services placed the child with guardians due to Mother’s drug use. About eighteen months after the child’s placement with the guardians, the Guardian ad Litem filed a petition for termination of parental rights. The juvenile court found statutory grounds for termination of Mother’s parental rights and that termination was in the child’s best interest. On appeal, Mother argues that the Guardian ad Litem did not have standing to file the petition to terminate parental rights and that clear and convincing evidence did not support the juvenile court’s conclusion that termination of Mother’s parental rights is in the child’s best interest. We affirm.

Wilson County Court of Appeals 04/30/15
Pinnacle Roofs Plus v. William Murphy
M2014-01286-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Roofing company filed a civil warrant against homeowner for money owed on a written contract after completion of work and homeowner refused to pay. Homeowner countered by filing a civil warrant for breach of contract alleging that roofing company was not licensed as required by Tenn. Code Ann. § 62-6-603 prior to entering into contract. The circuit court found that roofing company was licensed at all material times and awarded a monetary judgment in favor of roofing company. Homeowner appealed. Finding no error, we affirm. 

Davidson County Court of Appeals 04/30/15
Robert W. Halliman et al v. Heritage Bank et al
M2014-00244-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Ross H. Hicks

After foreclosing on three lots securing three loans, the mortgagee, Heritage Bank, sought to satisfy the outstanding deficiency by foreclosing on the debtors’ family-owned property that additionally secured these obligations. To prevent the impending foreclosure, the debtors commenced this action contending they are not liable for the deficiency because the properties sold at foreclosure for an amount materially less than their fair market value. In its answer, the bank asserted a counterclaim seeking a deficiency judgment and attorneys’ fees. At the close of the debtors’ case-in-chief, the bank moved for involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02(2). The trial court granted the motion, finding that the debtors failed to prove the fair market value of the three properties at the time of each foreclosure was materially less than the foreclosure sale prices; therefore, the debtors failed to overcome the presumption afforded by Tenn. Code Ann. § 35-5-118(b) that the foreclosure sale prices equaled the fair market value. The court then conducted a trial on the bank’s counterclaim for the deficiency and awarded the bank a judgment of $111,115.66. The trial court also awarded attorney’s fees in the amount of $55,000, which was substantially less than the bank requested. Both parties appeal. The debtors contend the trial court erred in dismissing their claim because they presented sufficient proof that the sale prices were materially less than fair market value; they also contend the bank was not entitled to recover its attorneys’ fees. The bank contends the trial court erred by reducing its fee application. We have determined the debtors failed to prove that the sales price for each of the foreclosed properties was materially less than their fair market value at the time of each sale, and we find no error with the award of attorneys’ fees. Accordingly, we affirm.

Montgomery County Court of Appeals 04/30/15
In re Mattie H.
M2014-01350-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Jere M. Ledsinger

The trial court entered an order establishing paternity and setting child support for a non-marital child. The trial court also granted J. W. B.’ s (hereinafter “Father”) oral motion to change the child’s surname from T. H.’ s (hereinafter “Mother”) to Father’s. Mother appeals only the order changing the child’s surname. We reverse.

Coffee County Court of Appeals 04/30/15
Regina D. Wiser v. Cyrus W. Wiser, Jr.
M2013-02510-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Larry B. Stanley, Jr.

Husband was ordered in an earlier proceeding to increase his alimony and child support payments to Wife. The following year, Husband filed a petition to reduce his alimony and child support payments due to a substantial and material change of circumstances. Husband alleged both that Wife was cohabitating with another person and that Husband’s income had significantly decreased. The trial court denied Husband’s petition and awarded Wife attorney’s fees. Husband appeals, and we affirm the trial court’s judgment in all respects.

Rutherford County Court of Appeals 04/30/15
Community First Bank And Trust v. The Velligan Family Trust, et al
M2014-00370-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Stella L. Hargrove

The matters in dispute pertain to four promissory notes. After the Bank filed suit to collect on the notes, Defendants filed counterclaims against the Bank and cross-claims against one of its agents. Following discovery, the Bank and its agent moved for summary judgment on all claims; Defendants opposed summary judgment on several grounds. Finding that the unpaid balances on the notes and the resulting deficiencies were undisputed and that Defendants released all claims against the Bank and its agent when they executed forbearance agreements, the trial court granted summary judgment in favor of the Bank in the amount of $204,024.25, and summarily dismissed all claims asserted by Defendants. We affirm.

Maury County Court of Appeals 04/30/15
Rutherford Wrestling Club, Inc. v. Robert Arnold, et al.
M2013-02348-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge J. Mark Rogers

This appeal involves a dispute over the ownership of both real and personal property located at Blackman Middle School in Rutherford County, Tennessee between the appellant, Rutherford Wrestling Club, Inc., and the Appellees, consisting of Rutherford County, the Rutherford County Board of Education, and the Rutherford County Sheriff’s Department. The trial court rejected various theories raised by the appellant regarding its claim of ownership of the property. After conducting a trial, the trial court concluded that the property belonged to the appellees. On appeal, the appellant claims that the trial court erred in finding that the appellant was merely a booster club and had no ownership interest in either the real or personal property in question. We affirm the decision of the trial court.

Rutherford County Court of Appeals 04/30/15
VFS Leasing Co. v. Warren Mills
W2014-01085-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jerry Stokes

This appeal arises from the grant of summary judgment in favor of Appellee on a breach of lease and guaranty agreements case. The trial court entered a judgment against Appellant for the deficiency owed under the lease agreement. Appellant argues that the guaranties executed to secure the lease were not signed by him in front of a notary public and, therefore, are invalid. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 04/30/15
Charles Allen Hanna v. Jeannettee Lynn Hanna
W2014-02051-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

This is a post-divorce case. The parties executed a marital dissolution agreement, and the trial court incorporated the agreement into the divorce decree. Several years after the divorce, Appellee received a substantial social security disability payment that was deposited into a bank account held jointly with Appellant. Appellant later withdrew approximately one-half of the deposited amount. In response, Appellee took a vehicle that was awarded to Appellant under terms of the marital dissolution agreement. Appellee also filed a petition for contempt to enforce the marital dissolution agreement, asking that he retain ownership of the vehicle and that Appellant be disgorged of the $25,000 she withdrew from the parties’ joint account. In her answer and counterclaim for contempt, Appellant demanded the return of the vehicle, asserted that she was entitled to the funds withdrawn from the joint account, and requested her attorney’s fees. The trial court ordered the parties to return the funds and the vehicle to their original possessors and awarded Appellee attorney’s fees. We affirm in part and reverse in part.

Henderson County Court of Appeals 04/30/15
Flat Iron Partners, LP, et al. v. The City of Covington, et al.
W2013-02235-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Senior Judge Ben H. Cantrell

This is an appeal from the trial court’s grant of summary judgment to Appellees on their Open Meetings Act claim, and the grant of partial summary judgment to Appellees on their Fair Housing Act claims, i.e., disparate treatment and disparate impact. We conclude that the trial court erred in granting summary judgment on the Open Meetings Act claim. We further conclude that there are disputes of material fact that preclude the grant of partial summary judgment on the FHA claims. Accordingly, we reverse the trial court’s grant of summary judgment and vacate the trial court’s entry of judgment on a jury verdict on the issue of damages. Reversed in part, vacated in part, and remanded.

Tipton County Court of Appeals 04/30/15
Barbara McGinnis v. State of Tennessee, Dissent
W2014-02272-COA-R9-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Commissioner Nancy Miller-Herron, Judge

The majority concludes that Appellee’s failure to file her notice of appeal with the Claims Commission within ninety days of the date the Division of Claims Administration denied the claim is fatal to her appeal. See generally Tenn. Code Ann. § 9-8-402(c). Because I conclude that the issue of whether a notice of appeal to the Claims Commission is jurisdictional is a matter of some import that should first be decided by the Claims Commission, I must respectfully dissent from the majority Opinion.

Court of Appeals 04/30/15
Barbara McGinnis v. State of Tennessee
W2014-02272-COA-R9-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Commissioner Nancy Miller-Herron, Judge

This is an interlocutory appeal of the Tennessee Claims Commission’s denial of Appellant State of Tennessee’s motion to dismiss the Appellees’ appeal of the denial of her tort claim by the Division of Claims Administration. Appellee filed her notice of appeal with the Commission 91 days after notice of the denial of her claim. Although Tennessee Code Annotated Section 9-8-402(c) allows only 90 days for a party to appeal the denial of his or her claim, the Commission applied Tennessee Rule of Civil Procedure 6.05 to enlarge the time by three days and, thus, held that Appellees’ notice of appeal was timely. We conclude that Tennessee Rule of Civil Procedure 6.05 is inapplicable to this case. Accordingly, we hold that Appellees’ appeal was not timely filed so as to confer jurisdiction over her claim to the Commission. Because the Commission lacked jurisdiction, the State was entitled to dismissal of the appeal. Reversed and remanded with instructions.

Court of Appeals 04/30/15
In re Jake S.
M2014-01092-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Sophia Brown Crawford

This appeal arises out of a dispute regarding parenting time and child support obligations. After Father’s paternity was established, a magistrate judge named Mother the primary residential parent and granted her 230 days of parenting time. The magistrate judge granted Father 135 days. Father was ordered to pay $156 in monthly child support, plus $50 per month towards his arrearage. After Mother’s request for rehearing, the juvenile court judge conducted a de novo hearing. The juvenile court granted Mother 285 days of parenting time and Father only 80. The juvenile court also set Father’s child support at $331 per month, plus $50 towards his arrearage. Father appeals. We affirm. 

Davidson County Court of Appeals 04/29/15
Albert Franklin Summers v. Nakisha Layne
M2014-01324-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Jim T. Hamilton

At issue in this appeal is a custody dispute between Albert Franklin Summers (“Father”) and Nakisha Layne (“Mother”). In addition to finding that Mother failed to comply with the parental relocation statute codified at Tennessee Code Annotated § 36-6-108, the trial court determined that it would be in the minor child’s best interests to designate Father as the primary residential parent. Although we conclude that the trial court erred in finding the parental relocation statute to be applicable to this case, we nonetheless determine that it conducted the proper analysis with respect to its custody decision. We affirm the trial court’s designation of Father as the primary residential parent.

Giles County Court of Appeals 04/29/15
Leslie Ann Cremeens v. Eric Scott Cremeens
M2014-00152-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amy V. Hollars

Mother challenges the modification of the parenting plan, specifically the designation of Father as the primary residential parent and the new parenting schedule. Mother contends that the trial court’s best interest determination was flawed because the trial court failed to consider the expert testimony of a psychologist who examined the child in Tennessee. She also contends the court erred by failing to require the guardian ad litem to investigate the records of a psychologist who examined the child in Georgia. Because Mother failed to provide a transcript of the evidence or a statement of the evidence, we must assume there was sufficient evidence to support the trial court’s factual determinations. We find no error with the investigation by the guardian ad litem because he was not required to investigate the records of every medical professional that examined the child; instead, by rule, the guardian ad litem is to “conduct an investigation to the extent that the guardian ad litem considers necessary to determine the best interests of the child. . . .” Tenn. Sup. Ct. R. 40A, § 8(b)(1). Further, Mother failed to proffer a summary of the Georgia psychologist’s records or testimony; therefore, there is no factual basis for us to conclude that testimony of the Georgia psychologist would have affected the court’s decision. As for the Tennessee psychologist, the record reveals that the trial court did consider the expert’s testimony. As a result, we affirm the judgment of the trial court. We also declare this a frivolous appeal pursuant to Tenn. Code Ann. § 27-1-122. 

White County Court of Appeals 04/29/15
Timothy Joshua Gooding v. Jessika Ann Gooding
M2014-01595-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Michael Todd Burnett

Father appeals the parenting schedule contending it is not supported by the evidence and that the trial court erred by implicitly basing the parenting schedule on an erroneous legal standard, the tender years doctrine. Decisions concerning parenting plans are reviewed based on the deferential abuse of discretion standard. Nevertheless, discretionary decisions must be based on the applicable law and the relevant facts; accordingly, they are not immune from meaningful appellate review. In all actions tried upon the facts without a jury, the trial court is required, pursuant to Tenn. R. Civ. P. 52.01, to find the facts specially, state separately its conclusions of law, and enter judgment accordingly. The underlying rationale for this mandate is that it facilitates appellate review by affording a clear understanding of the basis of the trial court’s decision; in the absence of findings of fact and conclusions of law, this court is left to wonder on what basis the court reached its ultimate decision. When a trial court fails to comply with Rule 52.01, the appellate court cannot determine whether the trial court applied the correct legal standard or what reasoning it employed. In such circumstances, the appellate court is not required to review the discretionary decision with deference. In this case, the trial court established a parenting schedule without identifying the legal principles it applied or the factual basis for its decision; therefore, it failed to satisfy the Rule 52.01 mandate. Having no way of knowing the reasoning for the trial court’s decision, we conducted a de novo review of the record to determine where the preponderance of the evidence lies and found no factual or legal basis for the disparity in parenting time afforded the parents. Accordingly, we reverse the parenting schedule and remand with instructions for the trial court to establish a parenting schedule consistent with the statutory aspiration to maximize each parent’s participation in the life of the child based on all relevant facts and circumstances. Further, the court is to identify the factual and legal basis upon which the new parenting schedule is based as Tenn. R. Civ. P. 52.01 requires. 

Fentress County Court of Appeals 04/29/15
In Re: Eve C.
M2014-01420-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Donna Scott Davenport

Mother, whose daughter was placed in custody of the Department of Children’s Services at birth, appeals the termination of her parental rights on grounds of substantial non-compliance with the permanency plans and persistence of conditions. Finding no error, we affirm the termination of Mother’s rights.
   

Rutherford County Court of Appeals 04/29/15
Jennifer Broadrick v. Troy Broadrick
M2013-02628-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Timothy L. Easter

Father and Mother were divorced in Kentucky. As part of the divorce, they entered into an agreed custodial arrangement that granted them equal time with their child. Both parties subsequently relocated to Tennessee and now live within sixty miles of each other. Mother filed a petition to register the Kentucky plan and modify residential parenting time. Following a trial, the Tennessee court concluded that a material change in circumstance had occurred and modification of the parenting schedule was in the child’s best interest. In a new parenting plan, the court allocated Mother 246 days and Father 119 days of parenting time. Father appeals. We affirm.

Williamson County Court of Appeals 04/29/15
Rogelynn Emory v. Memphis City Schools Board of Education, now known as Shelby County Board of Education
W2014-01293-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Walter L. Evans

This is an appeal by a tenured teacher seeking relief for the school board’s failure to comply with the procedures set forth in the Tennessee Teacher Tenure Act for her termination. After receiving notice of charges pending against her, the teacher demanded a hearing before the school board. Pursuant to the Tenure Act, the school board was required to conduct a hearing on the charges within thirty days of the teacher’s demand. The school board failed to do so. The trial court held that because the delay did not affect the outcome of the hearing, the school board’s failure to comply with the Tenure Act was harmless and the teacher was not entitled to relief. On appeal, we conclude that Ms. Emory is entitled to an award of back pay for the number of days over thirty that she was suspended without pay and without a hearing following her demand for a hearing. We therefore reverse the judgment of the trial court and remand the case for a calculation of the proper amount of damages to which the teacher is entitled.

Shelby County Court of Appeals 04/29/15
Legacy Auto Sales, LLC, et al. v. Bank of New York Mellon, et al.
W2014-00637-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Arnold B. Goldin

This appeal arises from a suit by a borrower against a bank and its servicing agent. In its amended complaint, the borrower sought to enjoin a foreclosure sale and set aside the assignment of the deed of trust. Additionally, the borrower sought damages for several statutory violations, including alleged violations of the Tennessee Consumer Protection Act (“TCPA”). Though the trial court granted summary judgment in favor of the defendants on most of the claims, there is no final judgment with regard to the borrower’s TCPA claim. Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction and remand the case to the trial court for further proceedings.

Shelby County Court of Appeals 04/29/15
Connie L. Watson v. Ruby Anne Pike
E2014-02057-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Jerri S. Bryant
This is an appeal from an order granting a new trial in a Will contest proceeding initiated by the appellant, Connie Louise Watson (“Watson”), seeking to invalidate the Last Will and Testament executed by her father, Noah Richard Earls, Sr. (“Decedent”), in which the appellee, Ruby Anne Pike (“Pike”), was appointed the Decedent’s Personal Representative and Executrix of his estate. Because the order on appeal contemplates further proceedings in the Trial Court, it is not a final order and we have no jurisdiction to consider this appeal.
 
Bradley County Court of Appeals 04/29/15