Court of Appeals Opinions

Format: 08/09/2020
Format: 08/09/2020
William A. Reese, Jr. v. Dominick Amari
M2019-00329-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Clara W. Byrd

This is an action to revive a judgment originally entered in 1987; the judgment debtor moved to have the judgment set aside, contending that the judgment was void. The trial court denied the motion and renewed the judgment; the judgment debtor appeals. Upon our review, we conclude that the record shows that the debtor answered the complaint but failed to appear at the trial, which proceeded in his absence and led to the judgment; consequently, the judgment was valid. Accordingly, we affirm the trial court’s denial of the motion to set aside the judgment.

Wilson County Court of Appeals 07/28/20
Herbert Moncier v. Timothy Wheeler
E2020-00943-COA-T10B-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Kristi M. Davis

Petitioner appeals the denial of his motion to recuse the trial court in an attorney’s fees lawsuit. Because the Petitioner failed to comply with the mandatory requirements of Rule 10B of the Rules of Tennessee Supreme Court, we affirm the trial court’s ruling.

Knox County Court of Appeals 07/28/20
Todd Randolph Napier v. Kristen C. Napier
M2019-00978-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James G. Martin, III

Father appeals the trial court’s denial of his motion to set aside a default judgment. Discerning no abuse of discretion in the trial court’s decision, we affirm and remand for a determination of Mother’s fees incurred in this appeal.

Williamson County Court of Appeals 07/27/20
in Re Madison J.
M2019-01188-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Ted A. Crozier

This case involves the termination of a biological mother’s parental rights to her minor child. The father and the stepmother initiated the case by filing a petition to terminate the mother’s rights and to allow stepmother to adopt the child. In their petition, the parties argued the mother abandoned the child by failing to visit and failing to provide support. Trial was held in March 2017, nearly three years after the petition was filed. In June 2019, the trial court granted the petition and entered its final order, finding there was clear and convincing evidence that the mother abandoned the child and that it was in the child’s best interests to terminate the mother’s parental rights. The mother timely appealed. We affirm in part, reverse in part, and remand.

Montgomery County Court of Appeals 07/24/20
The Metropolitan Government Of Nashville & Davidson County, Tennessee v. Prime Nashville, LLC
M2019-00564-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Amanda Jane McClendon

This is an action to enforce a citation from the Codes Department of the Metropolitan Government for operating a short-term rental property without a permit. The owner of the property appeals the default judgment entered as a sanction for failing to comply with the trial court’s order granting a motion to compel discovery. Upon a thorough review of the record, we have determined that the trial court did not abuse its discretion in entering the judgment as a sanction; accordingly, we affirm the judgment in all respects. 

Davidson County Court of Appeals 07/23/20
In Re Estate of Paul D. Freeman, Deceased
M2018-02131-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Louis W. Oliver

This appeal arises from an action to remove the decedent’s son as the executor of the estate. The action also sought to remove the decedent’s son as the nominated trustee of two testamentary trusts; however, the trustee never assumed his duties because neither trust was ever funded. The decedent’s wife was the principal beneficiary of the estate and both testamentary trusts. The action was initiated by the conservator for the decedent’s wife who alleged, inter alia, that the executor/trustee failed to distribute any property or income to the wife and used the assets for his personal benefit. The conservator also alleged that he improperly used the estate’s assets to satisfy a bank loan that encumbered real property he jointly owned with the decedent for which he and the decedent were liable. The conservator claimed the bank loan was not a lawful debt of the estate because the bank failed to file a claim against the estate within the time limits set forth in Tenn. Code Ann. § 30-2-307. In response, the executor/trustee contended the action to remove him was barred by the one-year statute of limitations for breach of trust actions. He also contended the debt to the bank was properly paid in accordance with the law of exoneration. After a hearing, the trial court found that the law of exoneration did not apply and held that the estate was not obligated on the debt to the bank because the bank did not timely file a claim against the estate. Additionally, the trial court removed the decedent’s son as both the executor and trustee based on his persistent failure to administer the estate and appointed a successor executor and successor trustee. The successor executor filed an inventory and accounting for the estate, and the former executor filed an objection. At the hearing that followed, the former executor submitted into evidence a document entitled “Land Agreement” and claimed that the agreement was enforceable against the estate as a contract to make a will. The trial court determined that the Land Agreement was a contract to make a will, but the claim was time barred. In its final order, the court assessed damages against the former executor and awarded the conservator her attorney’s fees. The former executor appealed, arguing that (1) the action was barred by the statute of limitations for breach of trust actions, (2) the Land Agreement was enforceable against the estate, (3) the debt to the bank was properly paid under the law of exoneration, and (4) he was not liable for attorney’s fees. We affirm the trial court’s decision in all respects.

Sumner County Court of Appeals 07/22/20
Suzette Michelle Gibson v. Michael Wayne Gibson
E2019-01051-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Gregory S. McMillan

In this post-divorce proceeding, the trial court dismissed a Husband’s petition to modify or terminate the transitional alimony he was obligated to pay on the basis of the provision of the parties’ Marital Dissolution Agreement that made the alimony obligation nonmodifiable. Husband appeals. Finding no error, we affirm the judgment.

Knox County Court of Appeals 07/22/20
In Re Braelyn S. - concurring and dissenting
E2020-00043-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge John S. McLellan, III

Because I believe that the line of cases holding that the petitioner seeking to terminate a parent’s rights under Tennessee Code Annotated section 36-1-113(g)(14) must prove both a “failure to manifest an ability and willingness to assume custody” with respect to the first prong of the analysis, I respectfully dissent from that portion of the majority’s opinion. See In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7 (Tenn. Ct. App. May 31, 2018). In all other respects, including affirming the termination of Father’s parental rights, I concur.

Sullivan County Court of Appeals 07/22/20
In Re: Braelyn S.
E2020-00043-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge John S. McLellan, III

Father appeals the termination of his parental rights. The trial court found grounds for termination by abandonment by failure to visit, abandonment by failure to support, and failure to manifest an ability and willingness to assume legal and physical custody of the child. The trial court also found termination was in the best interests of the child. We affirm in part and reverse in part, but affirm the termination of the father’s parental rights.

Sullivan County Court of Appeals 07/22/20
In Re: Sallie Ann Hofmann
E2019-01856-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge John C. Rambo

This appeal concerns an action to establish undue influence and violations of the Tennessee Adult Protection Act, codified at Tennessee Code Annotated section 71-6-120, et seq.2 The trial court denied the claims submitted by Plaintiff. We affirm.

Johnson County Court of Appeals 07/21/20
Sheila Mikel v. Tennessee Department Of Children's Services
E2019-02112-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge Jerri S. Bryant

A foster parent appealed the removal of two foster children from her home. This appeal arises from a petition for judicial review of the Tennessee Department of Children’s Services Administrative Procedures Division’s decision to dismiss the foster parent’s appeal on the basis of mootness. The Chancery Court affirmed the Commissioner’s decision. Finding substantial and material evidence in support of the Commissioner’s decision, we affirm.

Court of Appeals 07/21/20
James Scarlett v. AA Properties, GP
E2019-01371-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Kristi M. Davis

This appeal arises from a default judgment in a detainer action. AA Properties, GP (“AA Properties”) filed a detainer warrant against James Scarlett (“Scarlett”) in the General Sessions Court for Knox County (“the General Sessions Court”) concerning real property of Scarlett’s that had been foreclosed upon. Default judgment was entered against Scarlett and a writ of possession was issued. Scarlett later filed a petition for writ of certiorari and supersedeas in the Circuit Court for Knox County (“the Circuit Court”). AA Properties filed a motion to dismiss, which the Circuit Court granted. Scarlett appeals, arguing that the warrant was deficient in that it failed to state specifically that personal service was attempted. Scarlett argues further that, under the Tennessee Rules of Civil Procedure, only five days elapsed from the posting of the warrant to the hearing, when per statute he was entitled to six days. We hold, first, that the warrant sufficiently reflected that personal service was attempted. We hold further that, in this instance, the Tennessee Rules of Civil Procedure did not apply in the General Sessions Court. We affirm.

Knox County Court of Appeals 07/21/20
John Thomas Link v. Royce Hinson, Et Al.
M2019-00483-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Suzanne Lockert-Mash

Appellant sought a prescriptive easement over an existing road across Appellees’ property. The trial court granted Appellees’ Tennessee Rule of Civil Procedure 41.02(2) motion for involuntary dismissal at the close of Appellant’s proof and held that Appellant’s occasional use of the road to access his property for hunting purposes did not satisfy his burden of proof to establish an easement by prescription. Discerning no error, we affirm.

Humphreys County Court of Appeals 07/20/20
Cook's Roofing, Inc. v. Hartford Underwriters Insurance Company
W2019-00271-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor JoeDae L. Jenkins

This appeal involves retrospective insurance premiums for an assigned risk workers’ compensation insurance policy. The insured employer is a roofing contractor. The insurance company conducted a retrospective premium audit and determined that the roofing contractor owed retrospective premiums based on the fact that its primary subcontractor was uninsured during a portion of the policy period. The roofing contractor refused to pay the increased premium, so the insurance company canceled the insurance policy. The roofing contractor filed this lawsuit against the insurance company, alleging negligence, promissory estoppel, and violation of the Tennessee Consumer Protection Act. The insurance company filed a counterclaim for the unpaid balance owed for the premiums under the policy. The insurance company filed a motion for summary judgment on all claims asserted by the roofing contractor and on its own counterclaim. The trial court granted the motion for summary judgment, dismissed the claims asserted by the roofing company, and entered judgment in favor of the insurance company and against the roofing contractor for $66,212 plus prejudgment interest. However, the trial court denied the insurance company’s subsequent motion to enforce the judgment against the two individuals who operated the roofing company and served as the sole officers and shareholders of the corporation. Both parties raise issues on appeal. For the following reasons, we affirm the decision of the chancery court in part, we reverse in part, and we remand for further proceedings consistent with this opinion.

Shelby County Court of Appeals 07/20/20
In Re Ne'Khiya M.
W2019-02223-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Jim Kyle

This is a termination of parental rights case. Mother and stepfather petitioned the trial court to terminate father’s parental rights as to mother’s and father’s minor child on the ground that he had willfully abandoned the child pursuant to Tennessee Code Annotated section 36-1-102(1)(A). Additionally, mother and stepfather petitioned that stepfather be allowed to adopt the child. While it was undisputed that father had abandoned the child, based on his failure to support or visit the child, the trial court found that father had attempted to establish a child support obligation against himself and that he had made numerous, yet unsuccessful, attempts to contact mother in order to visit the child following his release from prison. Accordingly, the trial court found that father’s abandonment was not willful and denied the termination petition. We affirm.

Shelby County Court of Appeals 07/20/20
Zula Wortham v. Kroger Limited Partnership I ET AL.
W2019-00496-COA-R3-CV
Authoring Judge:
Trial Court Judge:

Defendant grocery store appeals a jury verdict against it after a shopper fell in its store while operating a three-wheeled cart. The grocery store argues that the trial court erred in denying its motion for directed verdict, in granting summary judgment to a third-party defendant, and in not granting a new trial or remittitur of the substantial verdict. Because the grocery store has not met its burden to show reversible error, we affirm.

Shelby County Court of Appeals 07/16/20
George E. Chittenden, Et Al. v. BRE/LQ Properties, LLC
M2019-01990-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Kelvin D. Jones

This is a premises liability action arising from an injury suffered by a guest who slipped on ice in the parking lot of a hotel.  The plaintiffs appeal the trial court’s grant of summary judgment to the defendant.  Upon a thorough review of the record, we conclude that there is no dispute of material fact and that summary judgment in favor of the defendant was properly granted; accordingly, we affirm.

Davidson County Court of Appeals 07/15/20
The City of Jackson v. Lou Bosco ET AL.
W2019-00547-COA-R3-CV
Authoring Judge:
Trial Court Judge:

This case concerns a municipality’s attempt to restrict the persons who are able to collect and dispose of construction waste within its city limits. In relevant part, the municipality generally prohibits persons from collecting and disposing of waste accumulated within its borders. That task is reserved, subject to certain exceptions, to the municipality, who has entered into an exclusive contract with a corporate entity for waste disposal. The Appellants herein are a waste disposal services company and its managing member. The managing member was cited individually in the municipality’s Environmental Court for unauthorized refuse and trash disposal, and he was found to be in violation of the municipal ordinance. A de novo appeal was thereafter taken to the Circuit Court, where the waste disposal services company became a participating party. Among other things, the waste disposal services company asserted that the municipality’s effort to circumscribe waste collection was a violation of the Tennessee Constitution’s anti-monopoly and equal protection provisions. These constitutional claims were dismissed at summary judgment. In addition to its asserted constitutional claims, the waste disposal services company averred that certain of the City’s municipal ordinances provided it with authority to conduct its operations. Following a later hearing, the Circuit Court declined to issue any fines but nonetheless enjoined the waste disposal services company from further removal of waste when it was not the actual producer of waste. Several issues are now raised for our review on appeal. For the reasons stated herein, the judgment of the Circuit Court is reversed, and the injunction is vacated.

Madison County Court of Appeals 07/14/20
Carol Buckley v. The Elephant Sanctuary In Tennessee, Inc.
M2020-00883-COA-T10B-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Deanna Bell Johnson

This is an accelerated interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B, from the trial court’s denial of a motion for recusal. Having reviewed the petition for recusal appeal, pursuant to the de novo standard as required under Rule 10B, § 2.01, we reverse the trial court’s decision to deny the motion for recusal and remand with instructions for another judge to be designated to preside over this case.

Lewis County Court of Appeals 07/14/20
Douglas D. Dailey v. Violet L. Dailey
E2019-00928-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Tammy M. Harrington

This appeal arises from a divorce action. During the trial court proceedings, the parties agreed on a distribution of a majority of the marital property. However, a hearing was necessary concerning missing gold and silver that had been purchased during the marriage. The Trial Court found Husband not to be a credible witness. The Trial Court further found that the gold existed, that Husband had control of the safe room where the gold was located, and that Husband was responsible for the gold being missing. Husband appeals the Trial Court’s judgment to this Court. Discerning no error, we affirm.

Blount County Court of Appeals 07/13/20
In Re Daniel B. Jr. Et Al.
E2019-01063-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Brian J. Hunt

A mother appeals the termination of her parental rights to her children. The juvenile court determined that there were five grounds for terminating the mother’s parental rights and that termination of her parental rights was in the children’s best interest. Because the record contains clear and convincing evidence to support both the grounds for termination and the best interest determination, we affirm.

Anderson County Court of Appeals 07/10/20
Kimberley Arnold Bates v. Charles Anthony Bates
M2019-00505-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Clara W. Byrd

A wife filed for divorce after approximately seventeen years of marriage. Following a bench trial, the trial court declared the parties divorced, divided the marital estate, and awarded the wife alimony in futuro. The husband appealed, challenging the trial court’s valuation of his separate property interest in a closely held corporation and the division of the marital estate. We have determined that the trial court erred in undervaluing the husband’s separate property interest and modify the valuation to $255,000. Because the trial court failed to allocate all of the marital debt, we vacate the trial court’s division of the marital estate and award of alimony and remand the case for further consideration.

Wilson County Court of Appeals 07/09/20
Robin Drewry Luttrell (Wassenberg) v. Samuel Richard Wassenberg
W2017-02443-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Martha B. Brasfield

Five years after the parties’ divorce, the father relocated to another state. Both parents moved for modification of the joint parenting plan, seeking to be named primary residential parent. Finding that the father’s move was a material change in circumstances, the court entered a temporary plan that designated the mother as primary residential parent. Before trial, the court sanctioned the father for his complete failure to respond to the mother’s Rule 34 requests. After a trial, the court found that modification of the parenting plan was in the child’s best interest. The modified plan named the mother the primary residential parent and substantially reduced the father’s parenting time. The court also modified child support retroactive to the date of the mother’s petition and found the father in both civil and criminal contempt. Because the court’s final order lacks sufficient findings of fact and conclusions of law to explain its modification decision, we vacate that part of the court’s order and remand for entry of an order in compliance with Rule 52.01 of the Tennessee Rules of Civil Procedure. We also vacate the post-trial civil contempt sanctions imposed by the court for the father’s violation of the modified plan. In all other respects, we affirm.

Fayette County Court of Appeals 07/09/20
In Re Nehemiah H. Et Al.
M2019-01167-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Elizabeth C. Asbury

This dependency and neglect action focuses on ten siblings: Josiah, Nehemiah, Jonathan, Hadasah, Nathaniel, Noah, Hope, Malachi, Obadiah, and Grace (“the Children”), whose ages ranged from eighteen years to one year at the time of trial. All of the Children were born during the marriage of Amy H. (“Mother”) and Timothy H. (“Father”). The Children were taken into the custody of the Department of Children’s Services (“DCS”) based on allegations of abuse and neglect by the parents. The Fentress County Juvenile Court (“juvenile court”) determined that the Children were dependent and neglected, and the parents appealed that ruling to the Fentress County Circuit Court (“trial court”). Following a de novo trial, the trial court also determined that the Children were dependent and neglected and that the parents had committed severe child abuse. Both Mother and Father have appealed. Discerning no reversible error, we affirm.

Fentress County Court of Appeals 07/08/20
Helen M. Bell v. D. Breck Roberts, II
M2018-02126-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge James G. Martin, III

The plaintiff filed this personal injury action seeking compensation for injuries allegedly sustained in an automobile accident. The jury found in favor of the defendant and awarded zero damages. On appeal, the plaintiff argues that the jury verdict was inadequate and the special verdict form was misleading. We conclude that there is material evidence in the record to support the jury award. And we deem the plaintiff’s second issue waived. So we affirm.

Williamson County Court of Appeals 07/08/20