Court of Appeals Opinions

Format: 06/18/2018
Format: 06/18/2018
Andrew "Rome" Withers v. Rosalind D. Withers
W2016-01663-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Jim Kyle

This appeal revolves around a pro se litigant’s efforts to assume control of the assets of a trust and to replace the trustee. After the dismissal of his second petition related to the trust, the pro se litigant filed this appeal. We dismiss the appeal for failure to file a brief that complies with the appellate rules. We also grant the trustee’s request for attorney’s fees and expenses incurred on appeal.

Shelby County Court of Appeals 01/30/18
In Re Alivia F.
M2016-02328-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ronald Thurman

A mother appeals from the termination of her parental rights to her child. The chancery court found clear and convincing evidence of two statutory grounds for termination: abandonment by willful failure to support and persistence of conditions. The court also found that termination of the mother’s parental rights was in the child’s best interest. Because we conclude that the evidence was less than clear and convincing as to each ground for termination, we reverse.    

White County Court of Appeals 01/30/18
In Re: A'Reeyon L.
E2017-00261-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Tom Greenholtz

This appeal arises out of a delinquency proceeding in Hamilton County Juvenile Court (“juvenile court”). The juvenile was accused of violating his probation by failing to report to his probation officer as required by the rules of his probation. Following a hearing and ruling by the juvenile court, the matter was appealed to the Hamilton County Criminal Court (“trial court”). Upon a bench trial and de novo review, the trial court found that the juvenile had violated his probation by failing to report to his probation officer. The trial court subsequently ordered that the juvenile be committed to the custody of the Department of Children’s Services (“DCS”) pursuant to Tennessee Code Annotated § 37-1-131(a)(4). Discerning no error, we affirm.

Hamilton County Court of Appeals 01/30/18
In Re Catherine J.
W2017-00491-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Special Judge Harold W. Horne

This is a termination of parental rights case involving the parental rights of the father, Clyde J. (“Father”), to his minor child, Catherine J. (“the Child”). On October 27, 2015, the Shelby County Juvenile Court (“trial court”) placed the Child into the custody of the Tennessee Department of Children’s Services (“DCS”). The Child was immediately placed in foster care, where she remained at the time of trial. Following a hearing conducted on February 3, 2016, the trial court found the Child to be dependent and neglected as to Father due to improper guardianship. On August 4, 2016, DCS filed a petition to terminate Father’s parental rights. Following a bench trial before a special judge on January 26, 2017, the trial court found by clear and convincing evidence that Father had abandoned the Child by failing to visit the Child, failing to financially support the Child, and exhibiting wanton disregard for the Child’s welfare prior to his incarceration. The trial court also found clear and convincing evidence that termination of Father’s parental rights was in the best interest of the Child. The trial court entered a final judgment on February 13, 2017, terminating Father’s parental rights to the Child. Father has appealed. Discerning no error, we affirm.

Shelby County Court of Appeals 01/30/18
In Re Joel B.
M2016-01370-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Sharon Guffee

A trial court designated the father of a child born out of wedlock as the primary residential parent and imputed additional income to the mother for purposes of child support after determining she was underemployed. The mother appealed the trial court’s judgment. During the pendency of the appeal, dependency and neglect proceedings in the trial court resulted in the child’s removal from the father’s residence and his placement with the mother in California. The dependency and neglect proceedings rendered moot the mother’s challenge of the trial court’s designation of the father as the primary residential parent, leaving the imputation of additional income to the mother as the only issue on appeal. Concluding the trial court did not abuse its discretion in allocating additional income to the mother for child support purposes, we affirm that aspect of the trial court’s judgment.

Maury County Court of Appeals 01/29/18
Harakas Construction, Inc. v. Metropolitan Government Of Nashville and Davidson County, Et. Al.
M2016-01540-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Russell T. Perkins

Harakas Construction, Inc. appeals the judgment of the Chancery Court for Davidson County (“the Trial Court”) granting summary judgment to Metropolitan Government of Nashville and Davidson County (“Metro”) and Dale and Associates, Inc. (“Dale”). We find and hold that the Trial Court correctly granted summary judgment to Metro based upon sovereign immunity and that the Trial Court correctly granted summary judgment to Dale because Dale had negated essential elements of Harakas’s claim. 

Davidson County Court of Appeals 01/29/18
In Re: Ke'Andre C., Et Al.
M2017-01361-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge George L. Lovell

This is a termination of parental rights case concerning two minor children. Mother is the biological parent of both children. Father is the biological parent of the younger child only. The trial court found by clear and convincing evidence that multiple grounds existed to terminate Mother’s parental rights to both children and Father’s parental rights to his child. Mother and Father appealed. We reverse the trial court’s finding as to one ground for termination asserted against Mother and one ground asserted against Father, but we otherwise affirm the termination of Mother’s and Father’s parental rights.      

Maury County Court of Appeals 01/29/18
In Re Michael O.
W2017-01412-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge William A. Peeler

The trial court terminated Father’s parental rights on the ground of abandonment by demonstrating a wanton disregard for his child’s welfare. DCS failed to offer evidence that Father knew of the child’s existence when Father was engaging in the behavior that demonstrated wanton disregard. Accordingly, we reverse the termination of Father’s parental rights.

Tipton County Court of Appeals 01/26/18
Homer L. Jones v. VCPHCS I, LLC
W2017-02142-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Jim Kyle

Following the end of the three-year term of a commercial real estate lease, the tenant continued to occupy the leased premises and pay rent to the landlord. The landlord accepted the rent payments for six months and then notified the tenant that the amount of the required rent had increased. The tenant paid the increased rent but notified the landlord that it was ending its tenancy in thirty days. Contending that the tenant had in effect exercised its option to renew the lease for an additional three years, the landlord demanded that the tenant pay rent for the remainder of the renewal term. The tenant refused, and the landlord brought this action for breach of the lease agreement. Both parties filed motions for summary judgment. Because the trial court found that the lease had not been renewed and the tenant properly terminated the resulting periodic tenancy upon thirty days’ notice, the court denied the landlord’s motion and awarded summary judgment to the tenant. We agree that the lease was not renewed, but because we conclude that the resulting periodic tenancy was year-to-year, the tenant was required to give at least six months’ notice prior to the end of the periodic tenancy. Thus, we affirm in part and reverse in part.

Shelby County Court of Appeals 01/26/18
Deborah Lacy v. HCA Tristar Hendersonville Hospital, Et Al
M2017-01055-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Joe H. Thompson

This action, which involves the plaintiff’s claims of assault and battery against her former co-workers and a medical doctor at the hospital where she was previously employed, is before this Court on appeal for the second time. See Lacy v. HCA Tristar Hendersonville Hosp., No. M2015-02217-COA-R3-CV, 2016 WL 4497953 (Tenn. Ct. App. Aug. 25, 2016) (“Lacy I”). The first appeal arose from an involuntary dismissal, pursuant to Tennessee Rule of Civil Procedure 41.02(2), following the close of the plaintiff’s proof during a bench trial. The plaintiff, proceeding without benefit of counsel, had filed a statement of the evidence, which was subsequently stricken from the record by the trial court upon an objection filed by the defendants. The first appeal came before this Court without a statement of the evidence in the record. Determining that the trial court had failed to resolve the parties’ conflicts concerning the plaintiff’s statement of the evidence, pursuant to Tennessee Rule of Appellate Procedure 24(c) and (e), and that the trial court had failed to make sufficient factual findings in its final order, this Court vacated the order of involuntary dismissal and remanded to the trial court for appropriate factual findings and a resolution of the conflicts concerning the statement of the evidence. Lacy I, 2016 WL 4497953, at *3. On remand, the defendants submitted a statement of the evidence, which, upon review, the trial court approved as accurate. The trial court then entered an order setting forth findings of fact and conclusions of law, determining that the plaintiff had failed to present proof of causation and damages during the bench trial. The trial court subsequently entered a final order dismissing the plaintiff’s claims with prejudice. The plaintiff timely appealed. Discerning no reversible error, we affirm.  

Sumner County Court of Appeals 01/26/18
Stuart Elseroad v. Kaitlin Cook
E2018-00074-COA-T10B-CV
Authoring Judge: Judge Frank G. Clement Jr., P.J., M.S.
Trial Court Judge: Judge Gregory S. McMillian

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. Petitioner contends the trial judge should have recused himself because Petitioner “was directly involved in a decision-making process that ultimately resulted in an effect on the [judge’s] finances.” Petitioner also contends recusal is required because “the Judge based his ruling almost exclusively on his own statements that he was unaware of the Petitioner’s involvement in his loan application process,” which statements made him “a material witness.” Having reviewed the petition for recusal appeal, pursuant to the de novo standard as required under Rule 10B, § 2.01, we affirm the trial court’s decision to deny the motion for recusal.

Knox County Court of Appeals 01/26/18
Opry Mills Mall Limited Partnership, Et Al. v. Arch Insurance Company, Et Al.
M2016-01763-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Russell T. Perkins

The primary claim at issue in this appeal is for breach of an insurance contract. The insured property at issue, Opry Mills Shopping Mall, sustained catastrophic damages from the May 2010 flood in Nashville, Tennessee. Following the flood, the insureds contended the policy provided $200 million of coverage. The insurers insisted the policy limit for the claim was $50 million pursuant to the High Hazard Flood Zones Limit due to the fact the location of the Mall had been designated on a Flood Insurance Rate Map as a Special Flood Hazard Area. The trial court summarily ruled that the policy limits were $200 million finding, inter alia, the insured properties that were limited to $50 million of coverage were listed on the High Hazard Flood Locations schedule in Endorsement 6 of the policy, and Opry Mills Shopping Mall was not listed. Therefore, the trial court ruled that the policy limits for the claim were $200 million. Following a lengthy trial, the jury awarded the insured a judgment of almost $200 million. The insurers appealed. We have determined the policy limits are $50 million. Because the insurers paid the insureds $50 million before the commencement of this action, which is all the insurers are obligated to pay on the claim, the judgment of the trial court is reversed. We have also determined that the trial court did not err by summarily dismissing the insureds’ alternative claim that was based on promissory estoppel.

Davidson County Court of Appeals 01/26/18
Linda Wimmer v. Chattanooga-Hamilton County Hospital Authority D/B/A Erlanger Health System - Dissenting
E2017-00352-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Neil Thomas, III

The majority holds that Erlanger was immune from suit pursuant to Tennessee Code Annotated section 29-20-101, et seq., the Tennessee Governmental Tort Liability Act (“GTLA”); that Ms. Wimmer failed to prove that said immunity was removed; and, in the alternative, that she failed to prove causation. I think the hospital is liable for this injury and the plaintiff should prevail.

Hamilton County Court of Appeals 01/26/18
Linda Wimmer v. Chattanooga-Hamilton County Hospital Authority D/B/A Erlanger Health System
E2017-00352-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge W. Neil Thomas, III

Linda Wimmer (“Plaintiff”) sued Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System (“Erlanger”) with regard to an incident in which Plaintiff was hit with an interior door and seriously injured. After a trial without a jury, the Circuit Court for Hamilton County (“the Trial Court”) entered its Memorandum and Judgment finding and holding, inter alia, there was no evidence that the location of the door constituted a defective design and no evidence that the door itself was defective, and that even if Erlanger had a duty to post a sign or put a glass window in the door, there was no evidence of causation. The Trial Court entered judgment in favor of Erlanger. Plaintiff appeals to this Court. We find and hold that Erlanger was immune from suit pursuant to Tenn. Code Ann. § 29-20-101, et seq., that Plaintiff failed to prove that said immunity was removed, and, in the alternative, that Plaintiff failed to prove causation. We, therefore, affirm the Trial Court’s judgment in favor of Erlanger.

Hamilton County Court of Appeals 01/26/18
Lorenzo Reed, Sr. v. Helen Akende-Reed
M2017-00628-COA-R3-CV
Authoring Judge: W. Neal McBrayer
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

A father filed a petition to modify his child support obligation based on a reduction in income. Following a trial, the court determined that there was a significant variance between the Tennessee Child Support Guidelines and the amount of support ordered, and the court reduced the father’s child support obligation. Discerning no error, we affirm.

Montgomery County Court of Appeals 01/25/18
Cynthia M. Kanka v. Christopher Kanka
M2016-01807-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor J.B. Cox

This appeal arises from a judgment of divorce and an award of damages in tort.  The trial court awarded the wife an absolute divorce and full custody of their minor child.  After determining that the husband was willfully and voluntarily underemployed, the court set child support based on his earning capacity rather than his actual gross income.  Then, the court classified, valued, and divided the marital property and awarded the wife both alimony in futuro and alimony in solido.  The court also granted the wife a judgment for compensatory damages on her tort claim.  On appeal, the husband challenges the court’s determination that he is willfully and voluntarily underemployed, the valuation of the marital residence, the alimony awards, and the award of damages in tort.  After careful review, we vacate the court’s award of damages to the wife for her child’s pain and suffering.  In all other respects, we affirm.

Marshall County Court of Appeals 01/25/18
Lew Winters v. Southern Heritage Bank
E2016-01679-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Jerri Bryant

This appeal arises from an alleged breach of contract. Lew Winters (“Winters”) sued Southern Heritage Bank (“the Bank”) in the Circuit Court for Bradley County (“the Trial Court”) for, among other things, breach of contract. Specifically, Winters asserted that the Bank wrongly backed out of a tripartite agreement involving the Internal Revenue Service (“the IRS”) which would have allowed Winters to obtain financing for new tractors and therefore be able to continue operating his trucking company. The Bank filed a motion for summary judgment, arguing that no such agreement was reached. Instead, according to the Bank, the parties only engaged in discussions about a possible resolution. The Trial Court granted the Bank’s motion for summary judgment. Winters appealed to this Court. We hold, inter alia, that the purported oral agreement violates the Statute of Frauds. We affirm the judgment of the Trial Court.

Bradley County Court of Appeals 01/25/18
In Re Hannah C.
M2016-02052-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge William R.Goodman III

This is a termination of parental rights case. The trial court terminated Appellant’s parental rights to the minor child on the grounds of: (1) abandonment by willful failure to support or visit; (2) abandonment by an incarcerated parent by wanton disregard; and (3) on grounds codified at Tennessee Code Annotated Section 36-1-113(g)(9)(A) et seq. Because Appellees did not meet their burden to show that Father willfully failed to support or visit the child, and because Appellees did not meet their burden to show that Father had the financial means to pay for his reasonable share of prenatal and postnatal support, we reverse the trial court’s findings as to these grounds. We affirm as to the other grounds found by the trial court. We also affirm the trial court’s finding that termination of Appellant’s parental rights is in the best interest of the minor child.

Montgomery County Court of Appeals 01/24/18
James Heflin, et al. v. Iberiabank Corporation
W2016-02414-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Felicia Corbin Johnson

Plaintiffs, an elderly man and his wife, sued their bank and affiliated entities and others, alleging various theories of liability. The elderly man, upon making two separate withdrawals of a large amount of cash from the bank, was robbed on two separate occasions following the withdrawals. Plaintiffs alleged that the robberies occurred because a bank employee informed her husband of the elderly couple’s address and of the large cash withdrawals. The bank filed a motion to dismiss for failure to state a claim upon which relief could be granted, and the trial court granted the motion. We affirm the dismissal of several claims because the Appellants’ brief does not comply with the Tennessee Rules of Appellate Procedure. We affirm the dismissal of the remaining claims because Appellants have not stated a claim for which relief may be granted.

Shelby County Court of Appeals 01/23/18
Julia Putman, et al. v. John W. Leach Administrator Ad Litem of the Estate of Bryane R. Litsinberger
W2017-00728-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Mary L. Wagner

This is a personal injury case involving a motor vehicle accident. The alleged tortfeasor died subsequent to the injury-causing accident. The plaintiffs were unaware of the decedent’s death and commenced this suit naming him as a defendant. Some months later, after learning of the decedent’s death, the plaintiffs sought the appointment of an administrator ad litem in the Probate Court and amended their complaint naming the administrator ad litem as a party as required by the survival statute. The defendant filed a motion to dismiss arguing that the plaintiffs’ complaint was not properly filed until after the expiration of the applicable statute of limitations. The trial court agreed and granted the defendant’s motion to dismiss. The plaintiffs timely appealed. Having concluded that the plaintiffs did not properly commence their lawsuit within the time afforded by the applicable statute of limitations, we affirm.

Shelby County Court of Appeals 01/23/18
In Re K.Y.H.
M2017-00748-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Sheila D.J. Calloway

This is a termination of parental rights case. The Department of Children’s Services filed a petition to terminate the parental rights of C.K.H. (mother) with respect to her child, K.Y.H. The trial court found that clear and convincing evidence supported termination of mother’s rights based upon the persistence of conditions that led to the removal of the child. The trial court also found clear and convincing evidence that terminating mother’s rights was in the best interest of the child. Mother appeals. We affirm.

Davidson County Court of Appeals 01/23/18
Coffee County Board of Education v. City of Tullahoma
M2017-00935-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Vanessa Jackson

This is a controversy between the City of Tullahoma and Coffee County about the proper distribution of a portion of liquor by the drink revenues collected in Tullahoma. The trial court ruled that the distribution provisions of Tenn. Code Ann. § 57-4-306(2)(A) were not effective in Coffee County and that the statute was ambiguous. The trial court resorted to the legislative history to determine that Tullahoma should keep the funds addressed in Tenn. Code Ann. § 57-4-306(2)(A). We do not find the statutory language ambiguous and reverse the decision of the trial court.

Coffee County Court of Appeals 01/23/18
Conoly Brown, Et Al. v. Metropolitan Government Of Nashville And Davidson County, Et Al.
M2016-02269-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Claudia Bonnyman

Two individuals purchased commercial property for the purpose of housing a business offering “flex loans” to consumers; the property owners were denied a building permit because the Zoning Administrator concluded that “flex loans” constituted cash advances, and consequently, the property owners’ intended use violated the requirement in the Metropolitan Nashville and Davidson County Code of Ordinances that cash advance, check cashing, or title loan businesses be at least 1,320 feet apart. The property owners appealed to the Board of Zoning Appeals, which affirmed the decision of the administrator. The property owners then petitioned for certiorari review in Davidson County Chancery Court; the court granted the writ and, after a hearing, affirmed the Board’s decision. Finding that the decision of the Board is supported by substantial and material evidence and is not arbitrary or capricious, we concur with the decision of the trial court and affirm the Board’s decision.      

Davidson County Court of Appeals 01/23/18
Rachel Anderson, Et Al. v. Metropolitan Government Of Nashville & Davidson County, TN
M2017-00190-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Kelvin D. Jones

This case involves various issues related to an ordinance the Metropolitan Government of Nashville and Davidson County enacted to address short-term rental properties. Among other things, the enacted ordinance provided that no more than 3% of
non-owner-occupied single-family or two-family residential units would be granted short-term rental permits in each census tract. The plaintiffs, who previously listed their home on Airbnb.com, filed suit against the Metropolitan Government challenging the enforceability of the ordinance on several fronts. In addition to asserting that the enacted ordinance was unconstitutionally vague, the plaintiffs contended that the 3% cap on certain short-term rentals was an unlawful monopoly. After competing motions for summary judgment were filed, the trial court held that the definition of a “short-term rental property” was unconstitutionally vague as-applied to the plaintiffs, but it also held that the 3% cap did not constitute a monopoly. Given the plaintiffs’ success on their constitutional “vagueness” claim, the trial court found them to be prevailing parties under 42 U.S.C. § 1988 and awarded them certain attorney’s fees. On appeal, both sides raise issues asserting error. Because several definitions contained within the governmental ordinance have been amended since the filing of this appeal, we conclude that the plaintiffs’ constitutional “vagueness” claim is now moot. Concerning the propriety of the 3% cap on non-owner-occupied short-term rentals, we have determined that the cap is constitutionally permissible even assuming that it constitutes a monopoly. For reasons discussed herein, we vacate the award of attorney’s fees and remand the issue for reconsideration.   

Davidson County Court of Appeals 01/23/18
In Re Noah S., Et Al.
M2017-01228-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jere M. Ledsinger

This is a termination of parental rights case. The trial court terminated Appellant Mother’s parental rights on the grounds of: (1) abandonment by willful failure to support; and (2) failure to substantially comply with the reasonable requirements of the permanency plan. Because Appellees did not meet their burden to show that Mother willfully failed to provide support for the children, we reverse the trial court’s order as to the ground of abandonment by willful failure to support. The trial court’s order is otherwise affirmed.

Coffee County Court of Appeals 01/23/18