Court of Appeals Opinions

Format: 10/02/2014
Format: 10/02/2014
Rebecca Lynn Willenberg v. Mark Edward Willenberg
M2013-02627-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Robbie T. Beal

In this divorce action, Husband appeals the trial court’s ruling that Wife was incapable of rehabilitation and the award of alimony in futuro. Wife also appeals contending that the award of alimony in futuro was too low; that the court failed to award her attorney fees; and that the court refused to designate her as the custodian for their son’s college account. We reverse the court’s ruling that Wife is incapable of rehabilitation and its award of alimony in futuro, and remand for further proceedings; in all other respects, we affirm the judgment.

Williamson County Court of Appeals 09/23/14
Bobby Murray, et al. v. Dennis Miracle, et al.
E2013-00498-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Frank V. Williams, III

Bobby Murray and Loretta Murray (“Plaintiffs”) sued Dennis Miracle and Robert Daniel Smith (“Defendants”) with regard to a dispute involving real property located in Roane County, Tennessee. After a trial, the Chancery Court for Roane County (“Trial Court”) entered its judgment on February 11, 2013, finding, inter alia, that Defendants did not dispute that Plaintiffs had a right to improve the roadway at issue, but that the parties disagreed regarding the nature of the road work to be performed. In its judgment, the Trial Court, inter alia, appointed a Special Commissioner to supervise the proposed road work and detailed how the work should be implemented. Plaintiffs appeal the Trial Court’s judgment. We find and hold that Plaintiffs have significantly failed to comply with Tenn. R. App. P. 27 rendering this Court unable to address any of Plaintiffs’ potential issues. We, therefore, affirm the Trial Court’s judgment, find Plaintiffs’ appeal frivolous, and award Defendants damages for frivolous appeal. Defendants raise an issue on appeal regarding whether the Trial Court erred in reversing its order regarding discovery sanctions. We find and hold that the Trial Court erred in interpreting our previous Opinion to require reversal of the sanctions. We, therefore, vacate the Trial Court’s September 25, 2012 order, reinstate the Trial Court’s September 22, 2010 order awarding Defendants attorney’s fees against 1 Plaintiffs as discovery sanctions, and remand to the Trial Court to address Plaintiffs’ motion for reconsideration of these sanctions.

Roane County Court of Appeals 09/23/14
Kevin Mamon v. Geico Insurance, et al.
M2013-02114-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Hamilton Gayden

Inmate filed suit pro se against Geico Indemnity Company, Master Muffler, and Sam Owens for breach of contract, negligence, fraud, and conversion related to the repairs of his automobile. The suit was initially dismissed for Plaintiff’s failure to comply with T. C. A. §§ 41-21-805 and 41-21-807. Plaintiff filed a motion for relief, which the court granted. At the same time, Plaintiff moved to amend his complaint; he attached the amended complaint to the motion. Thereafter, one defendant filed a motion to dismiss for failure to prosecute, which the court granted. We reverse the judgment and remand for further proceedings.

Davidson County Court of Appeals 09/22/14
Jimmie Bradford, et al. v. State of Tennessee
W2014-01188-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Commissioner Nancy C. Miller-Herron

Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal. Consequently, this appeal is dismissed.

Court of Appeals 09/22/14
In Re: Shameel S., et al
E2014-00294-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Brandon Fisher

Valerie S. (“Mother”) appeals the termination of her parental rights to her minor children Shameel S., born November 1996, and LaRiea S., born May 1998, (“the Children”). Acting upon a petition to terminate parental rights filed by the Tennessee Department of Children’s Services (“DCS”), the Juvenile Court for Anderson County (“the Juvenile Court”) terminated Mother’s parental rights to the Children on the ground of severe abuse pursuant to Tenn. Code Ann. § 36-1-113(g)(4) and Tenn. Code Ann. § 37-1-102. Mother argues on appeal that DCS did not exercise reasonable efforts to reunify Mother and the Children in the period before a finding of severe abuse. We find and hold that clear and convincing evidence was shown that the ground existed to terminate Mother’s parental rights to the Children for severe child abuse, that clear and convincing evidence was shown that termination was in the Children’s best interest, and that DCS exercised reasonable efforts. We affirm the Juvenile Court.

Anderson County Court of Appeals 09/19/14
Gary Atchley v. Tennessee Credit, LLC
M2013-00234-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Larry B. Stanley, Jr.

This appeal arises from the chancery court’s decision to rescind a transaction for the sale of property. Purchaser gave Seller a check for $18,000 to buy a piece of property. Purchaser later sent a letter to the Seller attempting to rescind the transaction when he discovered Seller did not have title to the property it attempted to sell. Thereafter, Seller came into possession of the deed to the property and attempted to convey it to Purchaser. Purchaser filed suit in chancery court to rescind the transaction. The trial court held the transaction should be rescinded and the purchase price returned to the Purchaser because the Seller did not own the property at the time of the transaction. Seller appeals, asserting that Purchaser should be compelled to accept the after-acquired-title to the property or, alternatively, that it was entitled to specific performance. We have reviewed the record and the relevant legal principles and have determined that the trial court did not err in rescinding the transaction. The trial court’s judgment is affirmed.

Warren County Court of Appeals 09/16/14
William Gregory Hall, Jr. v. Hillary Hudgens Hall
E2013-02227-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge William K. Swann

This is an appeal of the trial court’s grant of a one-year extension of an order of protection. The petitioner/father had initially obtained an ex parte order of protection against the respondent/mother in August 2005. Subsequent to the expiration of that ex parte order, the parties were divorced in January 2007, with the trial court incorporating into the final decree of divorce an agreed permanent parenting plan awarding the parents equal co-parenting time with their two minor children. Five years later under the docket number of the previous order of protection, the father initiated the instant action by filing an ex parte petition for a new order of protection against the mother. The trial court granted an ex parte order and subsequently entered a one-year order of protection to which the parties agreed on August 30, 2012. This order of protection, inter alia, allowed the mother three telephone calls per week with the children but no in-person contact. On October 1, 2012, the father filed a petition to modify the permanent parenting plan, utilizing the docket number of the original divorce action. In July 2013, the father filed, again within the divorce action, a motion to consolidate the order of protection and permanent parenting plan proceedings, requesting that the order of protection be extended indefinitely. Following a bench hearing, the trial court granted a one-year extension of the order of protection. The mother appeals. Because we determine that the preponderance of the evidence does not support a finding that the father proved the allegation of domestic abuse at the time the extension was granted, we vacate the trial court’s extension of the order.

Knox County Court of Appeals 09/15/14
In Re Ayden J.C.
E2013-02644-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Darryl Edmondson

This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate Parents’ parental rights to the Child. The trial court found that clear and convincing evidence existed to support the termination on the statutory grounds of abandonment for failure to remit support, substantial noncompliance with the permanency plans, and the persistence of conditions which led to removal. The court further found that termination of each parent’s parental rights was in the best interest of the Child. Parents appeal. We reverse the court’s termination of Father’s parental rights for failure to remit child support. We affirm the court’s termination of parental rights in all other respects.

Union County Court of Appeals 09/15/14
Tina L. Milam, et al. v. Titlemax of Tennessee, et al.
W2013-02675-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge John R. McCarroll, Jr.

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 09/12/14
Catherine Harvey, et al. v. Massage Envy of Tennessee, LLC
W2014-00674-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge John R. McCarroll, Jr.

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 09/12/14
Khadijeh Naraghian v. Darryle K. Wilson
W2014-00515-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Robert Samual Weiss

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 09/12/14
James Witt v. Tennessee Board of Parole, Et Al.
M203-02843-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Claudia C. Bonnyman

Plaintiff is an inmate in the Tennessee prison system serving a life sentence with the possibility of parole for first degree murder. The Tennessee Board of Parole declined to recommend the inmate for parole, citing as its reason the seriousness of his offense. The inmate filed a common law writ of certiorari in Davidson County Chancery Court challenging the Board’s decision to deny him parole. The chancery court dismissed the petition for failure to state a claim upon which relief can be granted. We affirm.

Davidson County Court of Appeals 09/12/14
Mark Coffey v. City of Oak Ridge, Tennessee
E2013-02200-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Donald Ray Elledge

This is a retaliatory discharge case in which a former police officer filed suit against his department for back pay, front pay, and other compensatory damages. The trial court found that the police officer did not establish the elements of retaliatory discharge under the Tennessee Public Protection Act and dismissed his suit. The police officer appeals. We affirm the decision of the trial court.

Anderson County Court of Appeals 09/12/14
Corey A. Adams v. Tennessee Department of Corrections et al.
M2013-00370-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robbie T. Beal

The Disciplinary Board of the Turney Center Industrial Complex convicted Petitioner of assault based upon his involvement in a gang stabbing of another inmate, the conviction was affirmed by the Commissioner of the Department of Correction. Petitioner then filed this common law writ of certiorari with the Chancery Court of Hickman County to challenge his conviction. The trial court granted the writ and the administrative record was filed with the trial court. Thereafter, on motion of the respondents, the trial court denied relief to Petitioner on the grounds that the record demonstrated that the disciplinary board had not acted illegally,arbitrarily,or exceeded its jurisdiction,and that Petitioner’s due process rights were not violated. Finding no error, we affirmed. Petitioner then filed a Tenn. R. App. P. 11 application to the Supreme Court, which granted the application and remanded to this court with instructions to address the issue of whether the trial court“ improperly dismissed the writ of certiorari without first disposing of [Petitioner’s] pretrial motions.” After requesting supplemental briefs on the issue, we have concluded that the trial court erred in dismissing the writ of certiorari without first disposing of Petitioner’s motions. We reach this decision because we are unable to conclude that the outcome of the petition could not have been affected had the trial court granted some or all of the motions. Accordingly, we reverse the judgment of the trial court and remand this matter for further proceedings.

Hickman County Court of Appeals 09/11/14
Beverly Meadow v. D & G Limited Assortments, Inc.
M2013-01627-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement
Trial Court Judge: Judge C. L. Rogers

The trial court granted a directed verdict pursuant to Tenn. R. Civ. P. 50.01 in favor of the defendant in a premises liability action. The court found the defendant did not have constructive notice of the defective condition stating, “the plaintiff has not met the burden of proof of more likely than not that this unsafe condition existed for a period of time in order to be corrected or warned about[.]” The plaintiff, who sustained a broken femur when the automatic sliding glass door at the front of the grocery store closed on her, presented an expert witness who testified that “the immediate cause of the accident was the failure of the presence sensing capability” of the automatic door. The expert testified that had the defendant conducted daily safety checks of the sensors in the proper manner, the defendant would have known that they were not functioning properly, and the likelihood the sensors first failed on the day of the incident “was extremely small.” Whether the defendant conducted daily safety checks in the appropriate manner was disputed. Taking the strongest legitimate view of the evidence and allowing all reasonable inferences in favor of the plaintiff while discarding all evidence to the contrary as Rule 50.01 requires, we have concluded the evidence is sufficient to create an issue for the jury to decide whether the defendant had constructive notice in time to remedy or warn customers of the defective condition of the door. We, therefore, reverse and remand for further proceedings.

Sumner County Court of Appeals 09/11/14
Herbert N. Jackson v. State of Tennessee
W2013-02423-COA-R3-CV
Authoring Judge: Judge Kenny W. Armstrong
Trial Court Judge: Commissioner Nancy Miller-Herron

This is an appeal from the Tennessee Claims Commission’s dismissal of Appellant’s claim against the Madison County Circuit Court for alleged sentencing errors made in Appellant’s criminal case. The Commission dismissed the claim on the ground of judicial immunity. Appellant appeals. Because the Appellant failed to timely file his notice of appeal, this Court does not have subject matter jurisdiction over this appeal. Accordingly, we dismiss.

Court of Appeals 09/11/14
In Re Jewell M.
M2012-02625-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kenneth R. Goble

Father of Child filed a petition seeking parenting time with Child when she was four years old. Mother sought retroactive child support from Father dating back to Child’s birth. The trial court entered an order stating that the child support arrearage would be measured from the date Father filed his petition. The permanent parenting plan order that was entered the same day, however, was inconsistent and indicated that the arrearage would be measured from the date of Child’s birth. Father appealed, arguing that the order measuring the child support arrearage from the date of the petition should control. The record contains no transcript or statement of the evidence, and we cannot determine which order contains the correct date. We vacate the portion of the trial court’s judgments relating to Father’s child support arrearage and remand the case back to the trial court for further proceedings. Should the court determine the child support arrearage should date back to the filing of the petition rather than to Child’s birth, the court will have an opportunity to make findings supporting such a deviation from the child support guidelines, as required by the applicable statutes and guidelines.

Montgomery County Court of Appeals 09/10/14
Joseph J. Levitt, Jr. v. City of Oak Ridge, Et Al.
E2013-02625-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor William E. Lantrip

Joseph J. Levitt, Jr. (“Plaintiff”) appeals the dismissal of his suit against the City of Oak Ridge, Oak Ridge Board of Building and Housing Appeals, and Denny Boss (“Defendants”) entered by the Chancery Court for Anderson County (“the Trial Court”). We find and hold, as did the Trial Court, that Plaintiff’s suit is barred by res judicata, and we affirm. We further find and hold Plaintiff’s appeal to be frivolous and remand to the Trial Court for an award of damages for frivolous appeal.

Anderson County Court of Appeals 09/10/14
Chris Eric Strickland v. Pennye Danielle Strickland
M2013-02657-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Amy Hollars

In the first appeal in this divorce action, the case was remanded for the trial court to adopt a parenting plan that increased Mother’s parenting time and to adjust her child support obligation accordingly. Mother appeals the order entered on remand,contending that the trial court failed to give her meaningful parenting time as directed and by imputing income to her based on a finding that she is voluntarily underemployed. Finding no error, we affirm the trial court’s judgment.

Putnam County Court of Appeals 09/09/14
Rock-Tenn Converting Company, et al. v. The City of Memphis, et al.
W2014-00626-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Walter L. Evans

The dispute in this case arises from a contract for recycling services entered into by the City of Memphis and a recycling vendor. A competing recycling vendor and a citizen and taxpayer of the City of Memphis filed a complaint for declaratory judgment seeking to void the contract, on the ground that the contract was subject to the City of Memphis’s competitive bidding procedure. The trial court determined that, because the City of Memphis did not expend any monies in connection with its recycling contract, the contract was not subject to competitive bidding. The trial court granted summary judgment to the City of Memphis and its recycling vendor and this appeal followed. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 09/09/14
Judy Smith Stewart v. Johnnie Stewart
E2013-02548-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Richard R. Vance

This is the second appeal in this matter involving applicability of the parties’ agreement, embodied in their 1997 final decree of divorce, regarding issues related to the dissolution of their marriage. In May 2012, the husband sought to terminate his alimony obligation pursuant to said agreement, citing a material change of circumstances affecting his ability to pay. The trial court dismissed the husband’s motion, concluding that the language of the parties’ agreement rendered his alimony obligation non-modifiable. Husband timely appealed. Because we determine the husband’s alimony obligation to be modifiable, we reverse the trial court’s dismissal of the husband’s motion and remand this action to the trial court for a hearing to determine whether a modification of the husband’s alimony obligation is warranted. We vacate the trial court’s taxing of court costs to Husband, and we deny Husband’s request for an award of attorney’s fees on appeal.

Sevier County Court of Appeals 09/09/14
James Ray Mynatt v. Charlene Mynatt Lemarr, et al.
E2013-02347-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Andrew R. Tillman

This appeal involves property that the plaintiff alleged was transferred by a deed with a forged signature. The plaintiff filed an action to have the deed, filed over a decade earlier, set aside. The defendants contended that the signature on the deed was an authorized assisted signature, and was recorded and published within a few days after it was made. The defendants further asserted that they had no obligation to announce to anyone they had obtained the property. The trial court found the plaintiff failed to carry the burden of proof necessary to void the deed. The plaintiff appeals. We affirm.

Campbell County Court of Appeals 09/09/14
Stanley Dennis Waters, et al v. Benny Joe Pendergrass, et al.
E2013-00431-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Lawrence H. Puckett

Stanley Dennis Waters (“the plaintiff”), a detective with the Polk 2 County Sheriff’s Department, was seriously injured when the Polk County vehicle in which he was riding as a passenger was struck in the rear by a vehicle owned by one of the two named defendants and driven by the other named defendant (collectively “the Named Defendants”). The plaintiff’s vehicle was being driven by the Sheriff of Polk County. The plaintiff and his wife sued the Named Defendants. Process and a copy of the complaint were served3 upon two unnamed parties, Tennessee Risk Management Trust (“TRMT”) and Markel Corporation4 (collectively “the Unnamed Parties”). The suit against the Named Defendants was settled for the full amount of the liability limits of their respective casualty insurance policies. The plaintiffs seek to recover uninsured5 motorist benefits from the Unnamed Parties. The plaintiffs and the Unnamed Parties filed motions for summary judgment. The trial court granted the motion of the Unnamed Parties and denied the plaintiffs’ motion. The plaintiffs appeal. We affirm.

Bradley County Court of Appeals 09/09/14
In Re: Estate of Lois Whitten
W2013-02579-COA-R3-CV
Authoring Judge: Judge W. Michael Maloan
Trial Court Judge: Judge George R. Ellis

Creditor filed a claim against deceased debtor’s estate. Administrator of the estate filed an exception to the claim, alleging that it was not filed within the four-month period following publication of the Notice to Creditors. The Chancery Court, Gibson County, George R. Ellis, J. allowed the claim after finding that the notice provided to Creditor was insufficient to constitute “actual notice” of the probate proceedings, and thus the one-year limitation period for filing claims applied. Administrator appealed. We affirm the judgment of the Chancery Court.

Gibson County Court of Appeals 09/08/14
Roger Byrge v. Stacey Campfield, et al.
E2013-01223-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge John D. McAfee

This is a defamation case. Based on information that he received from a political source, then State Representative Stacey Campfield (“Campfield”) posted remarks on his blog alleging that candidate for State House Roger Byrge (“Byrge”) had been arrested on drugrelated charges. The information, however, turned out to be false. Byrge lost the election and sued Campfield for defamation in the Circuit Court for Campbell County (“the Trial Court”). Campfield, asserting that at the time of the posting he had no reason to doubt the accuracy of the information, moved for summary judgment. The Trial Court granted Campfield’s motion. Byrge appealed. We hold that the record before us in this case concerning the alleged defamation of a public figure contains evidence that is clear and convincing from which a trier of fact could find actual malice in Campfield’s publication of false statements about Byrge. We reverse the Trial Court and remand this case for further proceedings on Byrge’s claims against Campfield for defamation and false light invasion of privacy.

Campbell County Court of Appeals 09/08/14