Court of Appeals Opinions

Format: 04/30/2016
Format: 04/30/2016
Stephen Leon Kelley v. Kenneth D. Varner et al.
E2015-00165-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Pamela A. Fleenor

Stephen Leon Kelley (“Plaintiff”) filed suit seeking, among other things, to have the 1958 divorce decree of Mary Joyce Long Kelley v. Joseph Gordon Kelley, Jr. (“the Divorce Decree”) set aside so that Plaintiff could be declared one of only two heirs at law of Mary Joyce Long Kelley (“Deceased”) entitled to inherit by intestacy. The Chancery Court for Hamilton County (“the Trial Court”) dismissed Plaintiff’s suit pursuant to Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief can be granted, among other things. Plaintiff appeals to this Court. We find and hold that Plaintiff’s collateral attack upon the Divorce Decree cannot be sustained because the Divorce Decree is not void upon its face. We, therefore, affirm the Trial Court’s order dismissing Plaintiff’s suit.

Hamilton County Court of Appeals 11/23/15
Fredrick Sledge v. Tennessee Department of Correction, et al
M2014-02564-COA-R3-CV
Authoring Judge: Chief Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

Fredrick Sledge (Petitioner), an inmate in the custody of the Tennessee Department of Correction (TDOC), challenges TDOC’s calculation of his release eligibility date. The chancery court (the trial court) granted TDOC summary judgment, finding that “the undisputed facts and law establish [Petitioner’s] sentence has been correctly calculated.” Because the criminal court’s order sentencing Petitioner awarded him 3,521 days of pretrial jail credit, while TDOC’s calculation of his release eligibility was based upon only 516 days of credit, there is a genuine issue of material fact regarding the correct calculation of his release eligibility date. We vacate the trial court’s summary judgment and remand for further proceedings.
 

Davidson County Court of Appeals 11/20/15
Eva L. Hines v. Terence J. Hines
M2014-01836-COA-R3-CV
Authoring Judge: Chief Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Royce Taylor

This is a divorce case. Eva L. Hines (Wife) filed a complaint for divorce from Terence J. Hines (Husband) while he was incarcerated in Arkansas. Husband was released from prison several days before the scheduled date of trial. Before and after his release, Husband asked that the case be continued so he could secure an attorney. On the original trial date, the court granted Husband’s request and continued the case for two weeks. On the morning of the rescheduled trial date, Husband called and advised the court that he would be late; in response, he was told that trial would begin as scheduled. Husband did not appear at the courthouse in time for the trial. The trial proceeded in his absence, and the court entered a final divorce decree. Husband filed a Tenn. R. Civ. P. 60.02 motion requesting that the court set aside the final decree, which he says substantively amounts to a default judgment. He seeks a new trial. The court denied his motion. Husband appeals. We affirm the trial court’s judgment denying his Rule 60 motion

Rutherford County Court of Appeals 11/20/15
Metropolitan Development and Housing Agency v. Howard Allen, Jr. -Dissent
M2015-00079-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Amanda Jane McClendon

I agree with the majority’s conclusion that the circumstances in this case do not warrant dismissal for failure to prosecute. However, because I find other grounds for dismissal from the record, I respectfully dissent. See Cont’l Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn. 1986). (stating Court of Appeals may affirm a judgment on a different ground than that relied upon by the trial court when the correct result was reached). 

Davidson County Court of Appeals 11/20/15
Metropolitan Development and Housing Agency v. Howard Allen, Jr.
M2015-00079-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Amanda Jane McClendon

A former tenant of Metropolitan Development and Housing Agency (“MDHA”) appeals the decision of the circuit court dismissing the case for failure to prosecute pursuant to Tenn. R. Civ. P. 41.02(1). We have concluded that the trial court erred in dismissing the case for failure to prosecute. The order is reversed and the matter is remanded to the trial court for further proceedings.

Davidson County Court of Appeals 11/20/15
Vaal Hall, by and through his conservator, Theresa Anne Hall, and Theresa Anne Hall, individually v. Charles L. Owens Jr., et al.
W2014-02214-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donald H. Allen

This is an appeal from a trial court’s grant of summary judgment in a negligence case. Defendant’s truck collided with Plaintiff’s car causing Plaintiff serious injuries. Plaintiff sued Defendant for injuries stemming from the accident, which he alleged was proximately caused by Defendant’s negligence. Defendant filed a motion for summary judgment. It was undisputed that the accident occurred after Plaintiff’s car entered an intersection and proceeded to turn left across a lane of oncoming traffic despite the fact that the traffic signal facing him was red. It was further undisputed that the traffic signal facing Defendant was green as he proceeded into the intersection from the opposite direction in his truck. Traffic cameras installed at the intersection captured video footage of the collision, which was admitted as evidence. Based on the video footage and other undisputed evidence, the trial court determined that no reasonable juror could conclude that Plaintiff was less than 50% at fault. Plaintiff appealed. We affirm.

Madison County Court of Appeals 11/20/15
Martha Carter v. David Carter
M2014-02457-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Amanda Jane McClendon

Father filed a petition to reduce child support. Mother sought to have their almost eighteen-year-old daughter testify that she did not intend to exercise visitation with Father to the extent previously ordered by the court after she turned eighteen. The court refused to let her testify. The trial court used the number of days of parenting time previously ordered in calculating child support instead of zero. The trial court also ordered Mother to pay a portion of Father’s attorney’s fees. Mother appeals these issues. We affirm the trial court as to the testimony of the child and the calculation of child support. We reverse the trial court’s award of attorney’s fees.

Davidson County Court of Appeals 11/18/15
Tony Hall v. Gaylord Entertainment Company, et al.
M2014-02221-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Amanda Jane McClendon

This is a negligence action. While attending a holiday-themed ice exhibit, the plaintiff slipped and fell at the top of an ice slide attraction that was a feature of the exhibit and sustained injuries to his arm. The plaintiff subsequently filed suit against the company that constructed the ice slide asserting various theories of negligence. After the company filed a motion for summary judgment in which it demonstrated that the plaintiff had not presented any evidence to support his claims, the plaintiff conceded that the company was entitled to summary judgment on all of his claims except those related to negligent design of the ice slide. In support of his assertion that the company breached a standard of care in designing the ice slide, the plaintiff relied solely on American Society of Testing Materials safety standards for children’s playground equipment. The trial court determined that because the standards were not applicable to the ice slide, the plaintiff failed to demonstrate how the company was negligent in designing the ice slide. The trial court granted the company’s motion for summary judgment. We affirm.

Davidson County Court of Appeals 11/17/15
In re Hope A.
E2014-02407-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jon Kerry Blackwood

This appeal concerns a father's parental rights to his daughter. The trial court found clear and convincing evidence existed to support the termination of the father's parental rights on the statutory ground of abandonment when he willfully failed to visit the child for the four months preceding the filing of the termination petition. The court also found termination of the father's rights was in the best interest of the child. The father appeals. We affirm as modified.

Campbell County Court of Appeals 11/17/15
Randall Thompson v. Herbert Hamm
W2015-00004-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge D'Army Bailey

Plaintiff brought a malicious prosecution action against defendant. Defendant moved for summary judgment, which the trial court granted. Discerning no error, we affirm.

Shelby County Court of Appeals 11/17/15
Sandra Lee Westberry v. Steve Allen Westberry
E2015-02077-COA-T10B-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Lawrence H. Puckett

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, from the denial of a motion to recuse filed by Steve Allen Westberry ("Former Husband") in the parties' post-dissolution modification proceedings. Having reviewed the petition for recusal appeal filed by Former Husband, and finding no error in Trial Court's ruling, we affirm.

Bradley County Court of Appeals 11/17/15
In re S. S.-G.
M2015-00055-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Robbie T. Beal

This is a termination of parental rights case. Father/Appellant appeals the termination of his parental rights on grounds of severe child abuse pursuant to Tennessee Code Annotated Section 36-1-113(g)(4) and persistence of conditions pursuant to Tennessee Code Annotated Section 36-1-113(g)(3). The child was found to be dependent and neglected by order of the Juvenile Court, and Appellant appealed the dependency and neglect finding to the Circuit Court. The ground of persistence of conditions requires a prior finding of dependency and neglect. However, our record does not reflect the status of Appellant’s appeal of the dependency and neglect order. In the absence of proof of full adjudication of the dependency and neglect appeal, we hold that the trial court erred in applying the ground of persistence of conditions. Accordingly, we reverse the termination of Appellant’s parental rights on that ground. Concerning the termination of Appellant’s parental rights on the ground of severe child abuse, the trial court’s order states only that Appellant “has sexually abused the child . . . pursuant to T.C.A. § 37-1-602 and that this sexual abuse constitutes severe abuse pursuant to T.C.A. § 37-1-102(b)(2[1]).” Because the code sections that the trial court relies upon contain numerous definitions of “child sexual abuse” and “severe child abuse,” in the absence of specific citation to the exact definition(s) relied upon, we cannot make a meaningful review of the trial court’s decision. Accordingly, we vacate the trial court’s termination of Appellant’s parental rights on the ground of severe child abuse and remand with instructions for the trial court to make specific findings as required under Tennessee Code Annotated Section 36-1-113(k). 

Williamson County Court of Appeals 11/16/15
Gunnar C. Skarbrevik, et al v. Personal Representative of Estate of Carolyn E. Brown
W2014-00809-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Donna M. Fields

An employee, who was injured in an accident with an uninsured motorist while on company business and while driving an automobile owned by his wife, sought to recover for his injuries through the uninsured motorist provision of his employer's business automobile policy. The insurer denied coverage, asserting that the policy only provided coverage for automobiles owned by the company. The trial court granted the employee's motion for partial summary judgment, holding that an endorsement to the policy which added employees using non-company vehicles on company business to the liability coverage operated to make those employees “insured” for purposes of the uninsured motorist coverage. Insurer appeals; finding no error in the trial court's interpretation of the policy, we affirm the judgment.

Shelby County Court of Appeals 11/16/15
Oneida Farms Development, Inc. v. Town of Huntsville
E2014-02179-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Elizabeth C. Asbury

This case involves a quo warranto action challenging the validity and reasonableness of an annexation ordinance. The trial court determined that, pursuant to Tennessee Code Annotated § 6-58-111, the plaintiff failed to prove that (1) the annexation ordinance was unreasonable for the overall well-being of the communities involved or (2) the health, safety, and welfare of the citizens and property owners of the municipality and territory would not be materially retarded in the absence of such annexation. The court therefore dismissed the plaintiff’s complaint. The plaintiff timely appealed. Discerning no error, we affirm the trial court’s judgment. Pursuant to an issue raised by the defendant, we also determine the plaintiff’s complaint to have been timely and properly filed.

Scott County Court of Appeals 11/16/15
William Thomas McFarland v. Michael S. Pemberton et al.
E2014-02176-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jon Kerry Blackwood

This case involves a challenge by a candidate for circuit judge to the qualifications of the winning candidate. William Thomas McFarland and Michael S. Pemberton were the only candidates in the August 7, 2014 election for Ninth Judicial District Circuit Judge.2 In March 2014, an eligible voter in the Ninth District, who is not a party to this suit, filed a complaint with the local election commission challenging Pemberton's eligibility to run for circuit judge, alleging he did not meet the residency requirement. The local election commission held a public hearing, and ultimately determined that Pemberton was eligible. Accordingly, his name was reflected on the ballot. He won the election. McFarland, who had knowledge of the March 2014 complaint and subsequent actions by the local election commission, then filed this election challenge, seeking to void the election results on the ground that Pemberton failed to satisfy the residency requirement. The trial court dismissed McFarland's claim as an untimely review of a quasi-judicial determination under Tenn. Code Ann. § 27-9-102 (Supp. 2015). McFarland appeals. We affirm.

Roane County Court of Appeals 11/16/15
Kenneth Marino v. Board of Administration City of Memphis Retirement System
W2015-00283-COA-R9-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Oscar C. Carr, III

We granted an application for an interlocutory appeal in this case to consider whether the Board of Administration of the City of Memphis Retirement System is exempt from the contested case procedures of the Uniform Administrative Procedures Act because the City of Memphis is organized as a home rule charter form of government. We hold that the Board is not exempt from the contested case procedures and therefore affirm the trial court's order granting partial summary judgment to the petitioner. This matter is remanded for further proceedings in accordance with the Uniform Administrative Procedures Act.

Shelby County Court of Appeals 11/16/15
In re Thomas T.
E2014-02369-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Timothy E. Irwin

This appeal involves the termination of a father's parental rights to his seven-year-old son. In 2011, the son was adjudicated dependent and neglected due to his parents' substance abuse and was placed in the custody of his paternal great-aunt and great-uncle. In 2013, the same great-aunt and great-uncle filed a petition, as prospective adoptive parents, seeking to terminate the father's parental rights on the statutory grounds of abandonment and persistent conditions. The trial court found that the grounds of abandonment and persistent conditions were proved by clear and convincing evidence. The father appeals. We affirm.

Knox County Court of Appeals 11/16/15
Brookside Homeowners Association v. Stan Vaught
M2015-00432-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Mitchell Keith Siskin

A party who failed to file a de novo appeal of a general sessions judgment filed the instant petition for writ of certiorari. The trial court dismissed the writ on the grounds that the petitioner had a “plain, speedy and adequate remedy” provided by Tenn. Code Ann. § 16-15-727(b), a de novo appeal. We agree and affirm.

Rutherford County Court of Appeals 11/13/15
Kristi L. Boren v. Daniel P. Rousos
M2014-02504-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robbie T. Beal

Mother filed a petition seeking to have Father held in criminal contempt for violating the parties’ parenting plan and mutual restraining order. The trial court found Father guilty of two of ten counts of criminal contempt and sentenced him accordingly. Father appeals, arguing the evidence was insufficient to prove his guilt beyond a reasonable doubt. We affirm the trial court’s judgment in all respects.

Williamson County Court of Appeals 11/13/15
Khadijeh Naraghian v. Darryle K. Wilson
W2014-02002-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert Samual Weiss

In this case, Appellant sued to recover for injuries she allegedly sustained in a motor vehicle accident that occurred in Shelby County, Tennessee. Following a trial of the case, the jury returned a verdict in favor of the Appellant but also found her to be partially at fault for the accident. The trial court reduced the awarded damages by the percentage of Appellant's comparative fault as found by the jury, and a judgment on the jury's verdict was entered. Although Appellant subsequently filed a motion for new trial, asserting various errors, that motion was denied by the trial court. Appellant then appealed to this Court reiterating the same concerns that she raised in her motion for new trial. Because we conclude that the jury's damages award is not supported by material evidence, we vacate the trial court's judgment and remand for a new trial.

Shelby County Court of Appeals 11/12/15
Robert Howard Lubell v. Deborah Jo Lubell
E2014-01269-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge J.Michael Sharp

This is a divorce action involving a long-term marriage between parties whose primary source of income throughout the marriage was their respective employment by a nonprofit corporation they had co-founded. The wife alleged that the nonprofit corporation was the husband's alter ego and should therefore be classified as the parties' marital asset. The trial court found, inter alia, that the nonprofit corporation could not be classified or distributed as a marital asset. The wife appeals this finding, as well as the trial court's (1) capping of the husband's child support obligation in combination with an award to the wife of transitional alimony, (2) denial of her requests for alimony in futuro and in solido, (3) allocation of certain marital debts to the wife, and (4) inclusion of extraordinary educational expenses in the calculation of the husband's income for child support purposes. Having determined that the trial court placed an improper cap on child support by linking it to the transitional alimony award and improperly considered extraordinary educational expenses as an adjustment to the husband's gross income rather than as a deviation, we vacate the trial court's determination of the husband's child support obligation. We remand for recalculation of the husband's child support obligation. We modify the award of transitional alimony to an award of alimony in futuro and separate the amount from the calculation of child support. Having also determined that the wife is entitled to an award of alimony in solido to more equitably adjust the distribution of the marital estate, we reverse the trial court's denial of alimony in solido and remand for the trial court to determine the amount to be awarded. We affirm the trial court's judgment in all other respects.

Bradley County Court of Appeals 11/12/15
In re The Estate of Ola Irene Tucker
E2014-02112-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Rex A. Dale

Dianna Lynne Johnson Allen appeals an order of the Probate Court for Loudon County (“the Trial Court”) holding that Ms. Allen lacked standing to assert pursuant to Tenn. Code Ann. § 31-2-105 a claim of inheritance by intestate succession to the Estate of Ola Irene Tucker (“the Estate”). We find and hold that Ms. Allen qualifies as a person born out of wedlock for purposes of Tenn. Code Ann. § 31-2-105(a)(2)(B). We, therefore, reverse the Trial Court's order holding that Ms. Allen lacked standing and remand this case to the Trial Court for a determination of whether Ms. Allen proved by clear and convincing evidence that Ewell Stephens Johnson was her father, which, if so proven, would allow Ms. Allen to inherit by intestate succession from the Estate.

Loudon County Court of Appeals 11/12/15
Mildred S. Draper v. Donald Mark Draper
E2014-02224-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Neil Thomas, III

This is a divorce action in which the husband appeals the trial court's classification of separate property and the division of marital property. We affirm the court's classification of property and reverse the court's division of marital property.

Hamilton County Court of Appeals 11/12/15
State of Tennessee Ex Rel. Victor S. Johnson, III, et al. v. Mark Gwyn, et al.
M2013-02640-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Carol L. McCoy

This appeal arises from a lawsuit seeking access to the Tennessee Bureau of Investigation (“the TBI”) file concerning former Knox County Criminal Court Judge Richard Baumgartner (“Baumgartner”). The plaintiffs, Gary Christian, Deena Christian, Hugh Newsom, and Mary Newsom (“Plaintiffs”), sued TBI Director Mark Gwyn (“Gwyn”) in the Chancery Court for Davidson County (“the Trial Court”), both in their individual capacities and in the name of the State of Tennessee, seeking declaratory and injunctive relief. Specifically, Plaintiffs sought a declaration that Tenn. Code Ann. § 10-7-504(a)(2)(A) is unconstitutional, as well as an order requiring the TBI to turn over its records concerning its investigation of Baumgartner. Gwyn filed a motion to dismiss, asserting lack of subject matter jurisdiction, lack of standing, and failure to state a claim. The Trial Court granted Gwyn’s motion to dismiss. Plaintiffs appeal to this Court, raising a number of issues. In view of the Tennessee Court of Criminal Appeals’ decision in State v. Cobbins, No. E2013-02726-CCA-WR-CO (Tenn. Crim. App. Feb. 4, 2015), Rule 11 appl. perm. appeal denied August 13, 2015, we hold that the doctrine of res judicata serves to bar Plaintiffs’ claims. We affirm the judgment of the Trial Court on the basis of res judicata.

Davidson County Court of Appeals 11/10/15
Michael David Martin v. Franklin Cool Springs Corporation, et al.
M2014-01804-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Robbie T. Beal

Plaintiff filed suit against the company providing billing services for the water and sewage utilities at his apartment; the complaint alleged that the company’s fee for late payments violated, among others, the Tennessee Consumer Protection Act. Defendant moved for dismissal pursuant to Tenn. R. Civ. P. 12.02(6), which was granted by the trial court. Defendant then sought recovery of the attorney’s fees it incurred in defending the TCPA claim and Plaintiff’s motions for sanctions. The court granted Defendant’s motion, awarding one-half of the amount sought. Plaintiff appeals the award of attorney’s fees; Defendant appeals the amount awarded. Finding no error, we affirm the judgment of the trial court in all respects; concluding that an award of fees incurred by Defendant on appeal is appropriate, we remand the matter to the trial court for determination of the amount to be awarded.

Williamson County Court of Appeals 11/10/15