Court of Appeals Opinions

Format: 01/30/2015
Format: 01/30/2015
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
In Re Ra'niyah T.
W2014-00680-COA-R3-JV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Special Judge Dan H. Michael

This is a child custody and visitation case. After protracted litigation, and the entry of several temporary orders on visitation, the trial court implemented a permanent custody and visitation schedule. Appellant/Mother appeals the trial court’s designation of Appellee/Father as the child’s primary residential parent, and also appeals the trial court’s award of Father’s attorney fees. Discerning no error, we affirm. Affirmed and remanded.

Shelby County Court of Appeals 09/05/14
In Re Ra'niyah T.
W2014-00680-COA-R3-JV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Special Judge Dan H. Michael

This is a child custody and visitation case. After protracted litigation, and the entry of several temporary orders on visitation, the trial court implemented a permanent custody and visitation schedule. Appellant/Mother appeals the trial court’s designation of Appellee/Father as the child’s primary residential parent, and also appeals the trial court’s award of Father’s attorney fees. Discerning no error, we affirm. Affirmed and remanded.

Shelby County Court of Appeals 09/05/14
Jennifer Scarlett Robbins Goodman v. Temitope "Michael" Bamiji Ogunmola
E2014-00045-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Andrew R. Tillman

This appeal involves Defendant’s motion to set aside a default judgment entered against him in a divorce action. The trial court denied the motion. Defendant appeals. We affirm the decision of the trial court.

Scott County Court of Appeals 09/04/14
The Metropolitan Government of Nashville-Davidson County, TN v. The Board of Zoning Appeals of Nashville and Davidson County, TN, et al
M2013-01283-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Carol L. McCoy

Company which builds and manages billboards applied to the Metropolitan Department of Codes and Building Safety for permits to convert two static billboards to digital billboards. When the applications were denied by the Zoning Administrator, the company appealed to the Metropolitan Board of Zoning Appeals, which reversed the administrator’s decision and granted the permits. The Metropolitan Government of Nashville and Davidson County then filed a petition for a writ of certiorari seeking review of the Board’s decision; the trial court dismissed the petition on the ground that the Metropolitan Government did not have standing to bring the proceeding. We reverse the decision and remand for further proceedings

Davidson County Court of Appeals 09/03/14
Everette Ivey v. CRS Exteriors
E2014-01518-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Deborah C. Stevens

The appellant, Everette Ivey (“Plaintiff”), appeals from an order of the trial court which granted the motion for summary judgment filed by the appellee, CRS Exteriors (“Defendant”), entered judgment in favor of Defendant on its counterclaim and dismissed Plaintiff’s claim for relief in the original complaint. The order held in abeyance “[t]he remaining issues with regard to the damages due [Defendant], along with the issue of attorneys’ fees recoverable by [Defendant] under the terms of the contract” at issue in the proceedings below. Because it is clear that the order appealed from does not resolve all issues raised in the proceedings below, this appeal is dismissed for lack of jurisdiction.

Knox County Court of Appeals 08/29/14
In Re Asher S.C.
E2013-01830-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Rex Henry Ogle

This is a termination of parental rights case concerning A.S.C. (“the Child”), the son of A.G.S. (“Mother”) and C.D.T. (“Father”). Mother and Father were never married. Two years after the Child was born, Mother, as the sole plaintiff, filed a petition to terminate Father’s parental rights based on his alleged abandonment of the Child. After Mother and C.R.S. (“Stepfather”) were subsequently married, Mother filed a motion to join Stepfather and an amended petition to terminate Father’s rights and allow Stepfather to adopt the Child. Father objected and filed a counterclaim in which he requested that he be designated as the alternate residential parent and granted traditional visitation rights. After a bench trial, the court terminated Father’s rights based on its finding, said to be made by clear and convincing evidence, that multiple forms of abandonment exist. The court further found, also by clear and convincing evidence, that termination was in the best interest of the Child. Father appeals. He challenges the four-month period of time used to establish abandonment by failure to visit or support the Child; the sufficiency of the evidence of grounds for termination; and the trial court’s best-interest determination. We conclude that the trial court erred in its calculation of the four-month period for consideration of abandonment pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i)(2010). As a result, we vacate the trial court’s finding of abandonment by failure to provide child support as a ground for termination. In all other respects, the judgment is affirmed.

Sevier County Court of Appeals 08/29/14
Carolyn M. Heaton v. Jason Barrett Heaton - Dissent
E2013-01985-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jeffrey M. Atherton

I cannot concur in the majority’s treatment of the marital residential property as joint property. The majority concludes that it was, in the language of the parties’ prenuptial agreement, “Co-Owned Property.” The trial court held that a finding of “Co-Owned Property” would be “inconsistent with the intent and conduct of the parties, not compelled by the pre-marital agreement.” The court went on to say that such a finding “would result in an unequivocally inequitable windfall.” Hence, in my judgment, the issue for us is whether the evidence preponderates against the trial court’s findings on this subject.

Hamilton County Court of Appeals 08/29/14
Carolyn M. Heaton v. Jason Barrett Heaton
E2013-01985-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jeffrey M. Atherton

This case focuses on whether the trial court properly enforced and interpreted the parties’ prenuptial agreement when equitably dividing their assets incident to a divorce and whether the trial court properly set child support pursuant to the Child Support Guidelines. The plaintiff filed a complaint for divorce on May 30, 2012. The parties proceeded to trial in May 2013 on the issues of property division, child support, and attorney’s fees. An agreement was reached concerning a co-parenting schedule for their daughter. The court found that the parties’ prenuptial agreement was enforceable but that it did not require that the parties’ jointly owned marital residence be divided equally. The trial court did, however, divide the parties’ jointly owned personalty equally. In making findings with regard to the parties’ respective annual income amounts, the court set child support accordingly. The trial court also declined to award attorney’s fees to either party. Husband timely appealed. We vacate the trial court’s rulings regarding division of the real property, the award of child support, and attorney’s fees, and we remand this case to the trial court for further proceedings consistent with this opinion. We affirm the trial court’s judgment in all other respects.

Hamilton County Court of Appeals 08/29/14
In Re Hayden L.E.B.
E2013-01880-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Tim Irwin

Rebecca H. and Christopher H. (“Petitioners”) filed a petition seeking to terminate the parental rights of Kayla H. (“Mother”) and Aaron B. (“Father”) to the minor child Hayden L.E.B. (“the Child”). After a trial the Juvenile Court for Knox County 1 (“the Juvenile Court”) terminated Father’s parental rights to the Child after finding clear and convincing evidence of grounds for termination pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(iv) for abandonment by willful failure to pay support and abandonment by wanton disregard and clear and convincing evidence that it was in the Child’s best interest for Father’s parental rights to be terminated. Father appeals the termination of his parental rights to this Court. We find and hold that the evidence does not preponderate against the Trial Court’s findings made by clear and convincing evidence, and we affirm.

Knox County Court of Appeals 08/29/14
In Re: Marianna F. et al.
M2013-01898-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ross H. Hicks

Unmarried parents of two children sought to modify a Permanent Parenting Plan. Mother also sought to collect a child support arrearage owed by Father. The trial court modified the residential parenting plan without conducting a best interest analysis. The trial court also declined to add statutory interest, as requested by Mother, to the child support arrearage owed by Father. Mother appealed certain aspects of the trial court’s judgment and sought attorney’s fees incurred on appeal. We affirm in part, reverse in part, vacate in part, and remand.

Montgomery County Court of Appeals 08/28/14
Deborah Russo v. Suntrust Bank
E2013-02052-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Neil Thomas, III

This is an action brought against SunTrust Bank, executor of the estate of James Darrel Russo, Sr. (“decedent”). Decedent’s former wife, plaintiff Deborah Russo, alleged that Albert W. Secor, a SunTrust employee, who was  handling the estate’s affairs for the bank, promised her that SunTrust would continue to pay insurance premiums under a policy of health insurance insuring plaintiff. In July 2006, SunTrust paid one premium payment. Coverage under the policy lapsed after that due to non-payment of premium. The trial court granted partial summary judgment to SunTrust, holding that the bank “cannot be held liable as executor of the estate of [decedent] because the Plaintiff is not a beneficiary of that estate.” After Secor filed an affidavit attesting that he acted on behalf of SunTrust as the executor of the estate only, and not on behalf of the bank in any other capacity, the trial court granted SunTrust summary judgment as far as its individual responsibility is concerned. At issue is the correctness of the trial court’s second ruling. We hold that there is no genuine issue of material fact regarding the capacity in which Secor was acting when he made the alleged promise. Plaintiff presented no evidence suggesting that Secor acted in any capacity other than as a representative of SunTrust in its fiduciary capacity. Furthermore, any alleged promise by Secor to bind SunTrust individually to pay the insurance premiums is barred by the statute of frauds, Tenn. Code Ann. § 29-2-101(a)(1) (2012). We affirm.

Hamilton County Court of Appeals 08/28/14
Dennis Michael Christie v. Shannon Denise Christie
M2012-02622-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor James G. Martin, III

In this divorce action, Mother asserts that the trial court erred in designating Father as primary residential parent and in allocating sole decision-making authority to him, in the distribution of marital property, and in failing to seal her medical records at trial. We modify the distribution of marital property in part; in all other respects we affirm the judgment of the trial court.

Court of Appeals 08/28/14
In Re J.F., Et Al.
E2013-01712-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge O. Duane Slone

C.R.H. (“Mother”) appeals the trial court’s order terminating her rights to two minor children. The Department of Children’s Services (“DCS”) removed the children from Mother’s care following allegations that she locked one child in a bedroom for three days without access to water, food, or a bathroom. The children entered protective custody and were adjudicated dependent and neglected. DCS filed a petition to terminate Mother’s parental rights. After a bench trial, the court found (1) that multiple 1 grounds exist to terminate Mother’s rights and (2) that termination is in the children’s best interest, both findings said by the trial court to be made by clear and convincing evidence. Mother appeals. She challenges the trial court’s findings with respect to grounds, but does not contest the best-interest determination. We affirm.

Jefferson County Court of Appeals 08/28/14
State of Tennessee Ex Rel. Mark B. Garrett v. City of Norris, Tennessee
E2013-02355-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor William Lantrip

This appeal arises from a challenge to an annexation ordinance. The City of Norris, Tennessee (“Norris”) passed two annexation ordinances on the same day. The second territory to be annexed was contiguous to the city only through bordering the territory annexed earlier that same day. Mark B. Garrett (“Garrett”), a property owner in the second annexed territory, sued Norris in the Chancery Court for Anderson County (“the Trial Court”) in a bid to stop the annexation of this second territory (“the Territory”). The Trial Court eventually voided the annexation of the Territory on the basis that the Territory was not contiguous to the city. Norris appeals. We hold, inter alia, that the annexation ordinance purporting to annex the Territory is void because at the time of the passage of the annexation ordinance, the first annexation was not yet operative and the Territory, therefore, was not contiguous to the city as required by law. We affirm the Trial Court.

Anderson County Court of Appeals 08/28/14
Union County Education Association v. Union County Board of Education
E2013-02686-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Andrew R. Tillman

A Union County schoolteacher was twice interviewed by school administrators in an investigation of charges regarding the teacher’s alleged improper conduct. Both times, the teacher’s request to have a representative from the Union County Education Association (“the Association”) present with him for the investigatory interview was denied. After the investigation was complete, the teacher was not disciplined and no adverse action was taken against him. The Association brought this action alleging that the Union County Board of Education (“the Board”), acting through its agents, violated the Professional Educators Collaborative Conferencing Act of 2011 (“the Collaborative Conferencing Act”), Tenn. Code Ann. § 49-5-603 (2013), which provides that “[p]rofessional employees have the right to selforganization, to form, join or be assisted by organizations, to participate in collaborative conferencing . . . and to engage in other concerted activities for the purpose of other mutual aid and benefit. . . .” The Association sought a declaratory judgment that the Board’s refusal to allow the teacher to have a representative present was an unlawful act under Tenn. Code Ann. § 49-5-606. The trial court granted the Board summary judgment on the ground that the Association “had no injury in fact and therefore lacked standing to proceed with this action.” We hold that the rights provided to professional employees under section 603 of the Collaborative Conferencing Act include the right to have a representative of his/her organization present, upon the employee’s request, at an investigative interview where the employee reasonably believes the investigation may result in disciplinary action against him or her. We further hold that the Association has standing to pursue this action. Consequently, we vacate the trial court’s judgment.

Union County Court of Appeals 08/28/14
In Re Shainna S.C., Et Al.
E2014-00407-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Daniel Ray Swafford

This is an appeal by Joseph C. from an order terminating his parental rights to his two minor children, Shainna S. C. and Jason L. C. Because the record does not support the trial court’s finding that the Department of Children’s Services (DCS) proved by clear and convincing evidence the only ground relied upon in support of the termination of the appellant’s parental rights to his children, we vacate the order and remand for further proceedings.

Bradley County Court of Appeals 08/28/14
Bonny Browne v. Alexander Lee Browne, Jr.
E2013-01706-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jacqueline S. Bolton

In this divorce action, Wife appeals the trial court’s valuation of Husband’s ownership interest in three businesses, determination of Husband’s income, division of marital assets, duration of rehabilitative alimony awarded to her, amount of child support Husband was ordered to pay, and the amount of attorney’s fees awarded to her. We determine that the trial court accepted the calculation of a $134,085.00 promissory note as a liability for one business co-owned by Husband but failed to require value of the same amount as a note receivable for the business collecting payment on the debt, owned 50% by Husband. We therefore increase the trial court’s valuation of the business collecting payment on the debt by one-half the amount of the applicable note receivable, or $67,042.50. We also determine that the trial court erred by attributing to Husband the full liability for the third business, a limited liability company in which Husband owns a one-half interest. We accordingly reduce the allocation for that liability by one-half, or $45,689.50, increasing the total modification of the value of Husband’s net assets awarded by the trial court by the amount of $112,732.00. We award to Wife 48% of this increase, or $54,111.36, commensurate with what we determine to be the trial court’s equitable distribution of marital property, and we remand for a determination regarding the proper method of distribution for this additional award to Wife. We affirm the trial court’s judgment in all other respects.

Hamilton County Court of Appeals 08/27/14