Court of Appeals Opinions

Format: 03/02/2015
Format: 03/02/2015
The Metropolitan Government Of Nashville & Davidson County, TN, et al. v. The Board of Zoning Appeals of Nashville & Davidson County, TN, et al.
M2013-00970-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancerllor Claudia Bonnyman

Advertising company applied to the Metropolitan Government Department of Codes and Building Safety for a permit to convert its standard billboard to a digital billboard. The zoning administrator denied the request; the company appealed to the Metropolitan Board of ZoningAppeals,which reversed the administrator’sdecision and granted the permit. Days later, the permit was revoked on the ground that the proposed digital billboard violated a provision in the zoning code. The company again appealed to the Board of Zoning Appeals, which held that the permit had been revoked in error and reinstated the permit. The Metropolitan Government then filed a petition for a writ of certiorari seeking review of the Board’s decision; the trial court reversed the decision granting the permit.  The advertising company appeals; finding no error, we affirm the judgment of the trial court.

Davidson County Court of Appeals 10/13/14
Connie Reguli, et al. v. Board of Professional Responsibility of The Supreme Court of Tennessee
M2014-00158-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Ellen H. Lyle

This is a declaratory judgment action in which Petitioners, who were respondents in an ongoing disciplinary proceeding, requested the trial court answer 15 questions concerning the applicable rules of procedure and evidence and the process and organization of the Board. The trial court dismissed the action, finding that Petitioners merely sought an advisory opinion and that it lacked subject matter jurisdiction to afford the relief desired. Petitioners appeal. We affirm.

Davidson County Court of Appeals 10/13/14
Loretta M. Gaither v. Michael Deleon Gaither - separate concurring opinion
E2013-02681-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jacqueline S. Bolton

I concur completely in the majority’s treatment of the piano issue. Under the proof before the trial court, I also concur in the majority’s decision to modify the trial court’s judgment as to the marital residence and the overall division of the marital estate. I write separately to express my view that it is sometimes appropriate to take into account the cost of selling an asset even though there is no present intent to sell. Since the proof in this case does not support the trial court’s “20%” decision, I agree that this particular part of the trial court’s judgment is not correct.

Hamilton County Court of Appeals 10/13/14
Loretta M. Gaither v. Michael Deleon Gaither
E2013-02681-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jaqueline S. Bolton

This is a divorce action involving the proper classification and division of the parties’ assets. The trial court found one asset, a baby grand piano, to be the wife’s separate property as it had been a gift to her from the husband. All other assets were determined to be marital. The most valuable asset was the parties’ marital residence, which was appraised at a value of $475,000. Although the trial court awarded the marital residence to the wife rather than ordering it to be sold, the trial court deducted twenty percent from the home’s equity value for the associated costs had it been sold. The trial court subsequently fashioned a nearly equal percentage distribution of the marital assets and debts, which included an allocation of a portion of the equity in the home to the husband. The husband has appealed. We determine that the trial court correctly classified the piano as the wife’s separate property. We also determine that the trial court improperly deducted the costs associated with a hypothetical sale of the marital residence from its equity value. We therefore modify the trial court’s award of equity in the home to the husband to effectuate the trial court’s ostensible overall percentage distribution. We affirm that equitable distribution in all other respects. We decline to award the wife attorney’s fees on appeal.

Hamilton County Court of Appeals 10/13/14
Phillip M. Nall, et al v. The City of Oak Ridge. et al
E2013-02608-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge William E. Lantrip

Four sergeants with a municipal police department filed a grievance complaining that there was an unlawful disparity in pay among the sergeants on the force. The personnel board for the municipality denied the grievance. The sergeants appealed. The trial court determined that the Uniform Administrative Procedures Act was applicable under the facts of the case and the personnel board’s decision that it lacked authority to grant the relief sought was supported by material and substantial evidence. We affirm as modified.

Anderson County Court of Appeals 10/10/14
Paul T. Coleman v. Billie A. Brown, et al.
E2013-01544-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John F. Weaver

In the present consolidated action, the plaintiff sought a determination from the trial court that he was the sole owner of a corporation and two limited partnerships based on the deaths of the other shareholders/partners. The trial court found that the plaintiff had failed, pursuant to the terms of the respective partnership agreements and the corporate buy-sell agreement, to assert his right to purchase the decedents’ interests within a reasonable time after their deaths. The trial court concluded that the plaintiff had waived his right to purchase those interests and was barred from now asserting such claim. The plaintiff has appealed that ruling. We affirm the trial court’s ruling regarding ownership of the corporate shares and partnership interests, although on different grounds. Determining that the corporate shares and partnerships interests are held by the personal representatives as assets of the decedents’ estates, we modify the trial court’s judgment to remove the designation of the personal representatives as assignees.

Knox County Court of Appeals 10/10/14
In Re: Christopher J.B.,Jr., et al.
E2014-00489-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Larry Michael Warner

This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate Mother’s parental rights to her three children. The trial court found that clear and convincing evidence existed to support the termination of Mother’s parental rights on the statutory grounds of abandonment for failure to visit and provide support and failure to comply with the requirements contained in the permanency plans. The court further found that termination of her rights was in the best interest of the Children. Mother appeals. We affirm the trial court’s termination of Mother’s parental rights.

Cumberland County Court of Appeals 10/09/14
Randy Scott Lower v. Melanie Ewing Lower
M2013-02593-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ross H. Hicks

This post-divorce appeal concerns Mother’s request to relocate to Alabama with the Parties’ minor child. Father objected to the move and responded by filing a petition to modify the parenting plan in which he opposed Mother’s requested relocation and requested designation as the Child’s primary residential parent. Following a hearing, the trial court granted Mother’s request to relocate and revised the parenting plan to reflect the change in visitation as a result of the relocation. Father appeals. We affirm the decision of the trial court.

Montgomery County Court of Appeals 10/08/14
Potter's Shopping Center, Inc. v. Joseph Szekely, et al.
M2014-00588-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Andrew R. Tillman

Appellants appeal from the trial court’s decision to grant partial summary judgment to the Appellee. After reviewing the record, we find that the trial court failed to state the legal grounds on which it was granting summary judgment as required by Tennessee Rule of Civil Procedure 56.04. Consequently, this Court cannot proceed with our review and must vacate the order at issue.

Fentress County Court of Appeals 10/08/14
Roger Jamal Myrick v. State of Tennessee, et al.
M2013-02352-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Claudia C. Bonnyman

This appeal arises from a decision by the Davidson County Chancery Court dismissing inmate’s petition for declaratory judgment. Inmate was convicted of second degree murder and sought a declaratory order from the Tennessee Department of Correction (“TDOC”) claiming he was eligible for parole and requesting a parole hearing date. The request was denied, so inmate filed a petition for declaratory judgment with the Davidson County Chancery Court, arguing that he was entitled to a parole hearing and mandatory parole pursuant to Tenn. Code Ann. §§ 40-28-115(b)(1) and -117(b). The State filed a motion to dismiss for failure to state a claim based on Tenn. Code Ann. § 40-35-501. The trial court granted the State’s motion, and this appeal followed. We affirm the decision of the trial court.

Davidson County Court of Appeals 10/08/14
Bobby W. McEarl, et al. v. Talmo Johnson, et al.
W2014-00274-COA-R3-CV
Authoring Judge: Judge Kenny W. Armstrong
Trial Court Judge: Judge James F. Butler

This appeal arises from a boundary line dispute. The parties contest the location of the common boundary line between their respective properties. Appellees argue that the boundary line lies at the center of the creek that runs between the parties’ properties. Appellants contend that the boundary lies on the creek’s east bank. Both sides proffered expert testimony to prove the boundary location. The trial court found Appellees’ expert credible. Based on the testimonies of Appellees’ expert and their predecessor in title, and the deeds submitted into evidence, the court determined that the boundary line was located along the centerline of the creek. The trial court also awarded damages to Appellees based on Appellants’ removal of timber from the disputed area. Appellants appeal. Because the evidence does not preponderate against the trial court’s findings, we affirm and remand.

Chester County Court of Appeals 10/08/14
G and N Restaurant Group, Inc. d/b/a City Cafe Diner v. City of Chattanooga
E2013-02617-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor W. Frank Brown, III

This action involves the constitutionality of a city ordinance regulating beer sales by establishments operating twenty-four hours a day. In June 2006, the defendant city amended its beer ordinance, which previously had required restaurants serving beer and other alcoholic beverages to serve no alcohol between the hours of 3:00 a.m. and 8:00 a.m. on weekdays and 3:00 a.m. and 12:00 noon on Sundays. Pursuant to the amended code section, no establishment remaining open for business of any type between the hours of 3:00 a.m. and 8:00 a.m. is permitted to simultaneously maintain a beer permit. The plaintiff restaurant is located within a hotel in Chattanooga and serves a wide variety of food items twenty-four hours a day. Upon its opening in 2004 and subsequent reopening in April 2006, pursuant to the unamended version of the city code, the restaurant served beer during the hours allowed. The restaurant continued to serve beer until it received a letter alleging a code violation from the Chattanooga Police Department in June 2011. Following a mandatory appearance before the Chattanooga Beer Board, the restaurant surrendered its beer permit. The restaurant brought this action in the trial court, alleging that the city code subsection at issue violated the restaurant’s substantive due process rights pursuant to the Fourteenth Amendment of the United States Constitution and article 1, section 8 of the Tennessee Constitution. The trial court ruled in favor of the city, finding, inter alia, that the code subsection was rationally related to a legitimate government interest. The restaurant appeals. Because we determine that the code subsection is not rationally related to a legitimate government interest, we reverse the judgment of the trial court and grant the restaurant’s request for a judgment declaring the subsection to be constitutionally invalid. We remand for further proceedings consistent with this opinion.

Hamilton County Court of Appeals 10/08/14
Tommy Williams, et al. v. Adrain Armitage, et al.
E2014-01479-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jeffrey F. Stewart

This is an appeal from an order resolving the claim for damages made by the appellee, Tommy Williams, in the Original Complaint. However, the order did not resolve the counterclaim filed by the appellant, Adrian A. Armitage, and Albert L. Armitrage. Because the order appealed from does not resolve all claims raised in the proceedings below, we dismiss this appeal for lack of a final judgment.

Rhea County Court of Appeals 10/07/14
Steven B. Stubblefield v. Tennessee Department of Health, et al.
M2013-02239-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ellen H. Lyle

A physician was charged with failing to report a reckless driving conviction on his medical license renewal application. Following a contested case hearing before an administrative agency, the physician’s medical license was placed on probation for five years. The physician sought judicial review, arguing the agency’s sanction was disproportionate to what he represented was merely a mistake. The trial court affirmed the agency’s decision, and the physician appealed. We affirm the trial court’s decision.

Davidson County Court of Appeals 10/06/14
John C. Wells, III v. Tennessee Board of Probation And Parole
M2013-02613-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Claudia C. Bonnyman

This appeal arises from a decision by the Tennessee Board of Probation and Parole (“the Board”) to deny inmate parole at his initial parole review hearing. Inmate was convicted of nine counts of aggravated sexual battery and was denied parole due to the seriousness of his crimes and the likelihood thathe would commit similar crimes again if released. Inmate filed a petition for a writ of certiorari, arguing that the Board exceeded its jurisdiction, was illegally comprised, and acted arbitrarily and capriciously. The trial court dismissed the petition with prejudice, and this appeal followed. We affirm the decision of the trial court.

Davidson County Court of Appeals 10/06/14
Kathryn A. Duke v. Harold W. Duke, III
M2013-00624-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge James G. Martin, III

This case involves the modification of a parenting plan. The trial court reduced Father’s time with the parties’ children to four hours of supervised time every other weekend. The trial court so limited the Father’s parenting time as a result of his intentional interference with the children’s relationship with Mother. Father appeals the trial court’s modification of the parenting schedule. In addition, he claims the trial court erred by: (1) limiting Father’s communication with the children; (2) refusing Father’s request to retain an expert to rebut testimony by an expert Mother and Father initially agreed would provide a recommendation about parenting time; (3) excluding certain portions of his treating physician’s testimony; (4) requiring the children to continue counseling sessions with a psychologist; (5) terminating Father’s participation in educational decisions for the children; (6) instituting a permanent injunction against Father; (7) finding Father guilty of six counts of criminal contempt; (8) finding Father in civil contempt; (9) denying Father’s requests to reopen the proof to present newly discovered evidence; and (10) awarding Mother $678,933.05 in attorneys’ fees and discretionary costs. We reverse the judgment of the trial court finding Father in civil contempt. We affirm the judgment in all other respects.

Williamson County Court of Appeals 10/03/14
Jay Jernigan, et al v. Charles K. Hunter, et al
M2013-01860-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Jduge Hamilton Gayden, Jr.

The parents of the decedent brought this wrongful death action against the individual who pled guilty to voluntary manslaughter of the decedent in a separate criminal proceeding. Following a bench trial, the trial court found the defendant directly and intentionally contributed to the wrongful death of the decedent, and entered judgment against the defendant in the amount of $250,000. The defendant raises numerous issues on appeal. Finding no error, we affirm.

Davidson County Court of Appeals 09/30/14
In Re: Grace Y.
M2013-02734-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Timothy Brock

This appeal involves the termination of a father’s parental rights to his five-year-old daughter. In 2010, the daughter was adjudicated dependent and neglected due to her parents’ substance abuse, and she was placed in the custody of her paternal grandmother and stepgrandfather. In 2013, these same grandparents filed a petition, as prospective adoptive parents, seeking to terminate the father’s parental rights on the statutory ground of persistent conditions. The trial court found that the ground of persistent conditions had been proven by clear and convincing evidence, and it also found by clear and convincing evidence that termination of the father’s parental rights was in the child’s best interest. The father appeals. We affirm.
 

Coffee County Court of Appeals 09/30/14
The Tennessean, et al. v. Metropolitan Government of Nashville And Davidson County, et al. - Dissent
M2014-00524-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

The Court’s decision in this case excepts materials that are “relevant to a pending or contemplated criminal action” from disclosure under the Public Records Act based upon Tennessee Rule of Criminal Procedure 16(a)(2). I find such a conclusion inconsistent with a fair reading of Rule 16(a)(2) and, therefore, respectfully dissent. However, because the trial court should have considered the victim’s rights, the criminal defendants’ Sixth Amendment rights under the United States Constitution,and the State’s interests in a fair trial before determining what materials were subject to public inspection, I would vacate the trial court’s ruling and remand for further proceedings.
 

Davidson County Court of Appeals 09/30/14
The Tennessean, et al. v. Metropolitan Government of Nashville And Davidson County, et al.
M2014-00524-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Russell T. Perkins

Various media outlets made request under the Tennessee Public Records Act for access to records accumulated and maintained by the Metropolitan Nashville Police Department in the course of its investigation and prosecution of an alleged rape in a campus dormitory. When the request was refused, the outlets a filed petition in Chancery Court in accordance with Tennessee Code Annotated § 10-7-505; the State of Tennessee, District Attorney General and alleged victim were permitted to intervene. The court held the required show cause hearing and, following an in camera inspection, granted petitioners access to four categories of records and documents. Petitioners, as well as the Metropolitan Government and Intervenors appeal, raising numerous and various statutory and constitutional issues. We have determined that the records sought are currently exempt from disclosure due to the continuing police investigation and pending prosecution; accordingly, we reverse the judgment of the Chancery Court and dismiss the petition.
 

Davidson County Court of Appeals 09/30/14
In Re Jayden G.
W2014-00881-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Daniel L. Smith

In this termination of parental rights case, Mother appeals not only the trial court’s findings of severe child abuse and persistent conditions as the grounds for termination, but also the trial court’s conclusion that termination was in the child’s best interest. We affirm the trial court’s finding of severe abuse, but reverse the trial court’s finding that clear and convincing evidence exists to prove the persistence of conditions. We also affirm the trial court’s finding that termination is in the child’s best interest, and therefore, affirm the termination of the Mother’s parental rights.

Hardin County Court of Appeals 09/30/14
Kenneth T. Whalum, Jr. v. Shelby County Election Commission - Concurring/Dissenting
W2013-02076-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Kenny W, Armstrong

I fully concur with the result reached in this matter and, specifically, the determination that the election was not invalid, that a new election is not required, and that Mr. Woods is the winner in the 2012 District 4 election to the Shelby County School Board.

Shelby County Court of Appeals 09/30/14
Kenneth T. Whalum, Jr. v. Shelby County Election Commission
W2013-02076-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Kenny W. Armstrong

This is an election contest case between the declared winner of a school board race in Shelby County and an unsuccessful candidate. The trial court invalidated the election on the ground that there was “clear uncertainty about the election outcome.” On appeal, the declared winner of the race argues: (1) the unsuccessful candidate has no standing to prosecute his election contest; (2) the trial court erred in failing to dismiss the case pursuant to Tennessee Code Annotated Section 5-1-111(a); and (3) the trial court erred in invalidating the election pursuant to Emery v. Robertson County Election Commission, 586 S.W.2d 103 (Tenn. 1979). We hold that the unsuccessful candidate maintains standing to prosecute this appeal, and that his claim is not moot. Additionally, we affirm the trial court’s denial of the declared winner of the race’s motion to dismiss, but reverse as to the trial court’s judgment declaring the election invalid and ordering a new election. Affirmed in part, reversed in part, and remanded.

Shelby County Court of Appeals 09/30/14
In Re K.N.B., et al
E2014-00191-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Mark Toohey

R.H.R. (“Father”) appeals the trial court’s judgment terminating his parental rights to his daughter, K.N.B., and to another child, S.M.J. (collectively “the Children”). Father is the putative biological father of S.M.J. The Department of Children’s Services (“DCS”) removed the Children and two half-siblings from their mother’s home and placed them in protective custody after police discovered them living in deplorable conditions. They were placed in foster care and subsequently adjudicated dependent and neglected. A year and a half later, DCS filed a petition to terminate parental rights. After a bench 1 trial, the court terminated Father’s parental rights to K.N.B. based on the court’s finding that abandonment grounds were proven by clear and convincing evidence. As to S.M.J., the court terminated Father’s rights based upon his failure to establish paternity. The trial court further found, also by clear and convincing evidence, that termination is in the best interest of the Children. Father appeals.2 He argues, with respect to S.M.J., that the evidence is insufficient. With respect to K.N.B., he asserts that he was incarcerated during a portion of the four-month period immediately preceding the filing of the petition to terminate and, consequently, DCS and the trial court erred in relying upon that four-month period in assessing the grounds of willful failure to visit and willful failure to support. He does not contest the trial court’s best-interest determination. We affirm as to the child S.M.J. and reverse as to K.N.B.

Sullivan County Court of Appeals 09/30/14
MSK Construction, Inc. v. Mayse Construction Company
E2014-00139-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Jerri S. Bryant

This is a breach of an oral contract action in which MSK filed suit against Mayse for failure to pay for the use of equipment and fuel used to fulfill a construction contract between Mayse and the City of Athens. Mayse denied liability. Following a bench trial, the trial court ruled in favor of MSK and awarded damages in the amount of $44,386.37 and prejudgment interest in the amount of $1231.39. Mayse appeals. We affirm the decision of the trial court.

McMinn County Court of Appeals 09/30/14