Court of Appeals Opinions

Format: 06/26/2016
Format: 06/26/2016
Brett Patterson v. State of Tennessee
M2014-02477-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Commissioner Robert N. Hibbett

The State of Tennessee (“the State”) appeals the decision of the Tennessee Claims Commission (“the Claims Commission”) awarding Brett Patterson (“Patterson”) $439.10 for arts-and-crafts supplies that Patterson was required either to mail out of the prison or donate pursuant to a policy of the Turney Center Industrial Complex (“Turney Center”) where Patterson is an inmate. We find and hold that the Claims Commission does not have jurisdiction over intentional torts, and as no negligence was alleged or shown, the Claims Commission lacked jurisdiction over this case. We, therefore, vacate the decision of the Claims Commission and dismiss this case.

Court of Appeals 02/03/16
Mamie D. Fuller v. Joan C. Banks, et al.
W2015-01001-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Clayburn Peeples

This is a premises liability case. Appellant had rented property from Appellees for approximately one year when Appellant was injured as a result of a fall when the railing along the stairs of the premises allegedly collapsed. The trial court granted summary judgment in favor of Appellees based upon its conclusion that Appellees had negated the essential element of Appellant's claim that, in order for Appellees to have been negligent in the accident, any defect in the stairs or supporting structure must have existed at the time of the execution of the lease. Discerning no error, we affirm and remand.

Haywood County Court of Appeals 02/03/16
Janet Wynn Snyder v. First Tennessee Bank, N.A.
E2015-00530-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor John F. Weaver

This case involves the trial court's award of litigation costs, inclusive of attorney's fees, pursuant to Tennessee Code Annotated § 20-12-119(c) (Supp. 2015), upon granting the defendant's Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss the plaintiff's action. The trial court entered a judgment in favor of the defendant in the amount of $10,000, the statutory maximum, against the plaintiff and her surety. The plaintiff appeals the portion of the ruling holding the surety liable for the $10,000 judgment of litigation costs in the event the principal fails to satisfy the judgment. Having determined that the surety's cost bond explicitly referred to “costs” as defined in Tennessee Code Annotated § 20-12-120 (2009), rather than as defined in subsection -119(c), we reverse the trial court's judgment as to the surety. We affirm the trial court's judgment against the principal and remand for enforcement of that judgment.

Knox County Court of Appeals 02/03/16
Christopher Eric Tidwell v. Alicia Ann Tidwell
M2015-00376-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Michael Binkley

This appeal results from a divorce proceeding between Christopher Eric Tidwell (“Father”) and Alicia Ann Tidwell (“Mother”). On appeal, Father challenges the trial court’s determination of Mother’s income for child support purposes, the trial court’s award of rehabilitative alimony to Mother, and the trial court’s award of attorney’s fees to Mother. Having reviewed the record transmitted to us, we affirm the trial court’s determination of Mother’s income, vacate a portion of the awarded rehabilitative alimony, and modify the award of attorney’s fees.

Hickman County Court of Appeals 02/02/16
Kevin Lee Carnett v. PNC Bank, NA
W2015-01677-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Donald H. Allen

Plaintiff filed a complaint against the defendant-bank to halt foreclosure proceedings. When the bank did not answer the complaint, the plaintiff filed a motion for default judgment. The trial court denied the motion for default judgment and, sua sponte, dismissed the complaint. We affirm the denial of plaintiff‟s motion for default judgment but vacate the dismissal of his complaint.

Chester County Court of Appeals 02/02/16
City of Jackson v. Barry Walker
W2015-00621-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Roy B. Morgan, Jr.

This appeal involves an allegedly unsafe building in the City of Jackson. After a hearing, the City of Jackson’s environmental court ordered the property owner to demolish the building. The property owner appealed to circuit court. After another hearing, the circuit court declared the property a public nuisance and also ordered it demolished. The property owner appeals. He argues that the City of Jackson failed to follow the correct procedures under the city code, and therefore, he should not be required to demolish the structure. Discerning no merit in this assertion, we affirm.

Madison County Court of Appeals 02/02/16
Randy L. Fielder v. Southern Health Partners et al.
M2014-01819-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ross H. Hicks

The plaintiff filed the instant action regarding injuries he allegedly received while in the custody of the Robertson County Detention Center. The trial court dismissed the action sua sponte based on multiple grounds, including untimeliness pursuant to the applicable statute of limitations. The plaintiff filed a motion seeking alteration of the order of dismissal. The trial court denied the request by a handwritten notation supplied on the face of the motion. The plaintiff appealed. Having determined that there is no valid, final order in this matter, we conclude that the appeal must be dismissed due to this Court’s lack of subject matter jurisdiction.

Robertson County Court of Appeals 02/01/16
Kyle Kernan v. Beverly J. Kernan Nabors et al.
E2014-01679-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Bill Swann

Post-divorce, a guardian was appointed for two minor children while their mother received treatment for substance abuse. The guardian, the half-brother of the minors, sought child support from both parents. The guardian alleges, inter alia, the trial court abused its discretion by adjusting for tax deductions before calculating the mother's gross income for child support due and by allowing her credit for support in kind and purchases of necessities. We affirm the trial court's findings.

Knox County Court of Appeals 02/01/16
Daniel Richmond v. Vanguard Healthcare Services, LLC et al - Dissenting
M2014-02461-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Franklin L. Russell

The majority Opinion concludes that a reasonable juror (1) could not find that Mr. Richmond had reasonable cause to believe the presence of the soiled bandage was connected to “illegal activity,” as required by the Tennessee Public Protection Act (“TPPA”), and (2) could not find that Mr. Richmond could demonstrate that his termination for reporting the incident violated any clear public policy under his common law claim. Because I conclude that a reasonable juror could conclude that Mr. Richmond had reasonable cause to believe that the presence of the soiled bandage stemmed from neglect of the patient, I must respectfully dissent. 

Bedford County Court of Appeals 01/29/16
Daniel Richmond v. Vanguard Healthcare Services, LLC et al.
M2014-02461-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Franklin L. Russell

The former administrator of an assisted living facility appeals the summary dismissal of his claim for retaliatory discharge under the Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann. § 50-1-304, and common law. Plaintiff contends he was fired in retaliation for initiating an internal investigation and submitting an internal report to his supervisors concerning an incident that arose when the son of an elderly resident observed an old bandage stuck to the bottom of his mother’s foot, which was revealed when her sock was removed in order to check the dressing for a wound on her ankle. Defendants contend Plaintiff’s claims are legally deficient because there was no neglect or illegal activity to report, and that Plaintiff grossly overreacted after being informed that an old bandage was found on the ball of a resident’s foot in a sock when the resident’s wound, which was on her ankle, was properly dressed and bandaged. Defendants also rely on the fact that Plaintiff did not file a qualifying internal or external report of neglect until after he was fired. The trial court summarily dismissed the TPPA claim stating “leaving a bandage in a sock, where a patient’s wound is in fact otherwise sufficiently bandaged, is not illegal activity as defined by the statute. Leaving the bandage in the sock is not ‘abuse and neglect’ as defined in the statute.” The court dismissed the common law whistleblower claim because Plaintiff did not show that Defendants engaged “in illegal conduct or in any way . . . posed a threat to an important public policy of the State when all that was done was to leave an old bandage in a patient’s sock.” Plaintiff appeals the summary dismissal of his claims under the TPPA and common law. We affirm.

Bedford County Court of Appeals 01/29/16
Magdi Mikheil et al v. Nashville General Hospital at Meharry et al.
M2014-02301-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

In this health care liability action, the plaintiffs disagree with a number of the trial court’s rulings upon which it based its decision to grant summary judgment in favor of the defendants. The trial court excluded the plaintiffs’ life care planner due to their failure to provide a complete disclosure of the life care planner’s opinions in a timely manner. The trial court ruled that the plaintiffs’ sole standard of care expert, a neurosurgeon, was not competent to testify as to the standard of care of the defendant nurse practitioner. Furthermore, the trial court precluded the plaintiffs’ standard of care expert from testifying at all due to the plaintiffs’ repeated failure to comply with the court’s orders regarding discovery. We find no abuse of discretion with respect to the trial court’s decisions and affirm the judgment.  

Davidson County Court of Appeals 01/29/16
Fit2Race, Inc., et al v. Janson Miles Pope, et al.
M2015-00387-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ross H. Hicks

Defendants in a federal civil conspiracy case that was voluntarily dismissed filed a malicious prosecution case in state court against the plaintiff and his attorney. The plaintiff and his attorney filed motions for summary judgment, which the trial court granted. The defendants appealed, and we affirm the trial court’s judgment. When a plaintiff voluntarily dismisses a lawsuit, the dismissal does not constitute a “favorable termination” for purposes of satisfying the third element of a malicious prosecution lawsuit.

Davidson County Court of Appeals 01/29/16
Theresa A. Green v. William Phillip Green
M2014-02278-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ross H. Hicks

In this divorce case, the wife proceeding pro se appeals the division of marital property and the trial court’s denial of her request for alimony. She also appeals the trial court’s award of court costs. She elected not to file a transcript or a statement of the evidence. Because the wife’s first two issues are factual in nature, the lack of transcript or statement of evidence prevents us from reaching the substance of the issues raised by the wife. We find no abuse of discretion by the trial court in assessing court costs. Accordingly, we affirm the judgment of the trial court. We also find that the appeal is frivolous.

Montgomery County Court of Appeals 01/29/16
Regina K. Deal v. Robert C. Tatum
M2015-01078-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Larry J. Wallace

At issue is the ownership of real property. Plaintiff and Defendant divorced in 2001. In February 2005, they purchased a home as “tenants in common with right of survivorship.” Seven months later, in September 2005, Defendant transferred his interest in the property to Plaintiff by quitclaim deed. In March 2009, Plaintiff quitclaimed her interest in the property to Defendant. Neither quitclaim deed was recorded until a dispute arose in September 2014 following which Plaintiff commenced this action to set aside the 2009 quitclaim deed based on fraud. Plaintiff contends Defendant fraudulently induced her into conveying the property by assuring her that he would refinance the property and give Plaintiff her share of the equity within one year. Defendant insists he purchased the property outright for $9,000, a payment Plaintiff admits receiving. At trial, Defendant objected to evidence of a purported oral agreement based on the statute of frauds. The trial court ruled the defense had been waived and that evidence of an oral agreement was admissible based on equitable estoppel, an exception to the statute of frauds. At the conclusion of the trial, the court ordered that Plaintiff’s name be put back on the deed so that “both of you . . . own the property together.” Both parties appeal. The trial court summarized the testimony of the witnesses and discussed some relevant legal principles; however, it made few findings of fact, and the findings of fact and conclusions of law identified by the trial court fail to disclose the steps by which the trial court reached its decision. Although, we do not have a clear understanding of the basis for the trial court’s decision, it appears that the trial court’s ruling was based on equitable estoppel, which is significant because equitable estoppel is not a basis for affirmative relief. Because equitable estoppel is not a basis for the relief granted and the trial court did not make sufficient findings of fact and conclusions of law as required by Tenn. R. Civ. P. 52.01, we vacate the judgment and remand for the trial court to make findings of fact that include as much of the subsidiary facts as is necessary to disclose the steps by which the trial court reached its ultimate conclusion on each factual issue.

Dickson County Court of Appeals 01/29/16
In re Donna R.
M2015-00629-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Timothy K. Barnes

Father of a child who was determined to be dependent and neglected shortly after her birth had his parental rights terminated on the grounds of abandonment by an incarcerated parent – failure to support; failure to provide a suitable home and wanton disregard; failure to substantially comply with the requirements of the permanency plan; and persistence of conditions. Father appeals, asserting that the evidence does not sustain the trial court’s findings relative to those grounds as well as the holding that termination was in the child’s best interest. Father failed to appeal or argue one of the grounds for termination and, consequently, has waived that issue; the ground is thereby final and we decline to review the other grounds. Upon our review of the record, there is clear and convincing evidence that termination of Father’s rights is in the child’s best interest.
     

Montgomery County Court of Appeals 01/29/16
Renee Pembroke (Cooley) v. Christopher Eugene Cooley
W2015-00583-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert Samual Weiss

This appeal concerns a post-divorce modification of alimony. During the underlying divorce proceedings, the parties executed a marital dissolution agreement providing that the husband would make payments to the wife of $8,000 per month in transitional alimony for a period of five years followed by payments of $7,500 per month in alimony in futuro for a period of five years. The agreement provided that the alimony in futuro payments could be modified by either party ―upon a showing of a material, unanticipated change in circumstances.‖ The agreement was incorporated into the trial court‘s final decree of divorce entered in January 2005. In April 2014, the wife filed a petition seeking to increase and extend the husband‘s alimony in futuro obligation. After a trial, the Shelby County Circuit Court found a change in circumstances warranting a modification of alimony and ordered that the husband continue to pay alimony in futuro of $6,200 per month beginning in January 2015 and continuing for a period of six years or until his retirement, whichever occurred later. The trial court also awarded the wife $30,000 as alimony in solido for attorney‘s fees. On appeal, we conclude that the record does not support the trial court‘s finding of a substantial and material change in circumstances. We therefore reverse the trial court‘s modification of the husband‘s alimony in futuro obligation. Additionally, we reverse the trial court‘s award of alimony in solido for attorney‘s fees. This matter is remanded for such further proceedings as may be necessary and are consistent with this Opinion.

Shelby County Court of Appeals 01/29/16
In re Estate of Marie Anderson Young
W2015-01753-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor George R. Ellis

The trial court denied a personal representative's fee request after concluding that the request did not comply with a local rule setting a personal representative's fee as a percentage of the value of the estate. We reverse and remand for the trial court to reconsider Appellant's fee request “in light of all the relevant circumstances.” In re Estate of Schorn, No. E2013-02245-COA-R3-CV, 2015 WL 1778292, at *8 (Tenn. Ct. App. Apr. 17, 2015).

Haywood County Court of Appeals 01/29/16
W & H LLC, et al v. Community Bank N.A. v. Willie Nelson
W2015-00878-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Walter L. Evans

The trial court entered a final judgment confirming an arbitration award in favor of the appellee. Appellants appealed. Due to deficiencies in the appellants' brief to this Court, we conclude that they have waived their issues on appeal. The appeal is dismissed.

Shelby County Court of Appeals 01/29/16
In re M.A.P. et al.
E2014-02413-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Randy M. Kennedy

This is a termination of parental rights case. The Department of Children's Services (DCS) filed a petition to terminate the parental rights of A.C.P. (Mother) with respect to her three minor children, ages twenty-two months to six years at the time of trial. The trial court found clear and convincing evidence of grounds. The court found the same quantum of evidence supporting the conclusion that termination of Mother‟s rights is in the children's best interest. Mother appeals. As modified, we affirm the trial court's judgment.

Sullivan County Court of Appeals 01/29/16
National Coal, LLC v. Brent Galloway
E2015-00723-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Elizabeth C. Asbury

This action concerns a petition to set aside a tax sale as void for lack of notice to the original property owner. The purchaser of the property filed a motion to dismiss, arguing that the original owner was not entitled to notice, that the petitioner received actual notice as the current owner, and that the petition was untimely. The petitioner countered with a motion for summary judgment. Following a hearing, the trial court dismissed the petition, finding that the petitioner received actual notice of the sale and that the time for filing such actions had passed. The petitioner appeals. We affirm.

Campbell County Court of Appeals 01/29/16
In re Michael B.M., et al.
E2014-02481-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Gregory McMillan

This action concerns a petition for custody filed by the maternal grandmother of three minor children. The juvenile court denied the petition, and the circuit court affirmed the denial on appeal following a de novo hearing. The maternal grandmother now appeals to this court. We dismiss the appeal in light of the adoption of the children during the pendency of this appeal.

Knox County Court of Appeals 01/29/16
Sylvia Folger v. Robert Folger
E2014-02069-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Ronald Thurman

This appeal arises from a divorce. Sylvia Folger (“Wife”) sued Robert Folger (“Husband”) for divorce in the Chancery Court for Cumberland County (“the Trial Court”). After a trial, the Trial Court, among other things, awarded Wife transitional alimony. On appeal, Wife raises a number of issues. Because of Wife's pronounced economic disadvantage relative to Husband, we modify the judgment of the Trial Court to increase the amount of Wife's transitional alimony, and remand this case for the Trial Court to award Wife attorney's fees as alimony in solido as well as her reasonable attorney's fees incurred on appeal. Otherwise, we affirm the judgment of the Trial Court.

Cumberland County Court of Appeals 01/28/16
Mimi Hiatt v. Kevin L. Hiatt
E2015-00090-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Tammy M. Harrington

This appeal concerns post-divorce matters. Mimi Hiatt (“Wife”) and Kevin L. Hiatt (“Husband”) divorced. Wife some years later filed a motion to modify the final decree of divorce in the Circuit Court for Blount County (“the Trial Court”) seeking to increase Husband’s child support and alimony obligations. Husband, in turn, filed a motion to recover claimed overpayments he made on the marital residence because Wife had transferred it to a trust. The Trial Court found, among other things, that Wife was voluntarily underemployed and declined to increase her spousal support for that reason. The Trial Court also ruled that Wife’s divestment of the marital residence constituted a “sale” under the Marital Dissolution Agreement (“the MDA”) and awarded a judgment to Husband for payments he made on the mortgage after Wife’s transfer of the marital residence to the trust. Wife appeals to this Court. We hold that Wife’s transfer of the marital residence to a trust constituted a sale per the MDA, and we affirm the Trial Court in its award to Husband for overpayment. However, we find that Wife proved a substantial and material change in circumstances, and we remand for the Trial Court to determine an increase in Wife’s alimony in light of this change and all relevant factors. We find further that the Trial Court erred in declining to award Wife her attorney’s fees relative to alimony. As a final matter, we award Wife her attorney’s fees incurred on appeal related to the alimony issue, and remand for the Trial Court to determine Wife’s reasonable attorney’s fees related to the alimony issue on appeal. The judgment of the Trial Court is affirmed, in part, and, reversed, in part.

Blount County Court of Appeals 01/28/16
Greg Layman v. Aaron Acor et al.
E2015-00750-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge O. Duane Slone

This action was originally filed in general sessions court against three defendants and resulted in a judgment for the plaintiff. Two of the co-defendants appealed to circuit court. The remaining co-defendant successfully sought to have the general sessions judgment set aside for insufficient service of process. Thereafter, the general sessions court transferred the claim against the one remaining co-defendant to circuit court to be consolidated with the pending appeal filed by the other co-defendants. The plaintiff subsequently voluntarily dismissed the action. One co-defendant filed a motion to alter or amend, asserting that the circuit court should not have allowed the plaintiff to voluntarily nonsuit the action. The circuit court denied the motion, and the co-defendant timely appealed. Discerning no error, we affirm the circuit court’s judgment.

Sevier County Court of Appeals 01/28/16
Church of God in Christ, Inc., et al v. L.M. Haley Ministries, Inc., et al. - DISSENT
W2015-00509-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Martha Brasfield

ARNOLD B. GOLDIN, J., Dissenting.
In light of the facts that are presented by the pleadings in this case, I must respectfully dissent from the majority's decision to affirm the trial court's dismissal of this property dispute. The majority opinion places much emphasis on the fact that the local church has not “withdrawn” from COGIC, and by citing to Church of God in Christ, Inc. v. Middle City Church of God in Christ, 774 S.W.2d 950 (Tenn. Ct. App. 1989), it suggests that judicial intervention would be improper at this time. Although the Appellees, an apparently vocal group within the local church, still claim that they want to remain a part of COGIC, they refuse to abide by the decisions of the hierarchal church's Ecclesiastical Council, thereby creating, if not an actual withdrawal from the hierarchal church, a schism between the members of the local church. The ecclesiastical decisions having, therefore, been made by the hierarchal church, I am of the opinion that the alleged facts of this case do not prevent judicial intervention to decide the property issues that have arisen between the hierarchal church and members of the local church. From my perspective, they necessitate it. Because resolution of the dispute among the parties is not dependent on the trial court's ruling on matters of conscience or religious doctrine or polity, the trial court should not be precluded from exercising jurisdiction over the case.

Fayette County Court of Appeals 01/27/16