Court of Appeals Opinions

Format: 07/09/2014
Format: 07/09/2014
Margaret Renee Wright v. Patricia Dunlap et al.
M2014-00238-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Ross Hicks

The plaintiff, Margaret Renee Wright, has appealed from the dismissal of her action for damages arising out of an automobile accident. Upon review of the record, this court determined that neither Ms. Wright’s Tenn. R. Civ. P. 59 motion nor her notice of appeal were timely filed. We thus ordered Ms. Wright to show cause why her appeal should not be dismissed. Ms. Wright’s trial counsel has filed a response asserting that both Ms. Wright’s Tenn. R. Civ. P. 59 motion and her notice of appeal were in fact timely filed. 2 It appears fromMs. Wright’s response that certain documents were omitted from the record. Nevertheless, we still conclude that Ms. Wright’s Tenn. R. Civ. P.59 motion was untimely and thus dismiss the appeal.

Montgomery County Court of Appeals 05/01/14
In Re Ella M. I., et al.
M2013-01543-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge George L. Lovell

Mother appeals the termination of her parental rights. We conclude from the record that clear and convincing evidence does not support the trial court’s finding of willful abandonment and, accordingly, reverse.

Maury County Court of Appeals 05/01/14
Jim Najib Jirjis v. Tammy Sue Jirjis
M2013-00512-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Derek K. Smith

The trial court granted a divorce to a husband and wife after a marriage of nineteen years. The court named the husband as the primary residential parent of the parties’ children, divided the marital property between the parties, and awarded the wife transitional alimony of $3,000 per month for five years. The husband argues on appeal that the trial court erred in including his separate property in the marital estate subject to division. The wife argues that the alimony award was insufficient in light of the length of the parties’ marriage and the disparity in income between them, and that the court erred in failing to award her attorney’s fees. We agree that husband’s separate property should not be included in the marital estate, but that the division of property is still equitable. We hold that the wife is entitled to alimony in futuro. We also find that she should be awarded one-half of the attorney’s fees she incurred at trial.

Williamson County Court of Appeals 05/01/14
In Re: Ashley B.
W2013-02584-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Van McMahan

The order appealed is not a final judgment and therefore, this appeal is dismissed for lack of jurisdiction.

McNairy County Court of Appeals 05/01/14
City Press Communications, LLC et al v. Tennessee Secondary School Athletic Association
M2013-01429-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

The principal issue is whether an association that governs and coordinates interscholastic athletic competition of substantially all public and private secondary schools in Tennessee is the functional equivalent of a government agency for purposes of the Tennessee Public Records Act. Two reporters and their newspaper filed this action pursuant to Tenn. Code Ann. § 10-7-505 to obtain records from the Tennessee Secondary School Athletic Association regarding the enforcement of its bylaws on member schools. The chancery court held that the association was the functional equivalent of a government agency; therefore, it was subject to the Tennessee Public Records Act, codified at Tenn. Code Ann. § 10-7-503 et seq. The court also ordered it to produce the records at issue, subject to the redaction of students’ names. We affirm.

Davidson County Court of Appeals 04/30/14
In Re: Glenn J., et al
M2013-01803-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Tom E. Gray

Father of two children appeals the termination of his parental rights on the grounds of abandonment by failure to support and the finding that termination of his parental rights would be in the best interest of the children. Finding no error we affirm.

Sumner County Court of Appeals 04/30/14
A To Z Smart Products & Consulting, et al. v. Bank of America
M2013-01261-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Carol L. McCoy

Garnishor obtained a final judgment which held Garnishee liable for full amount of outstanding debt of the judgment-debtor. The trial court granted Garnishee’s motion to alter or amend and vacated the conditional judgment and the final judgment against the Garnishee; Garnishor appeals. Finding no error, we affirm.

Davidson County Court of Appeals 04/30/14
Antonius Harris, et al v. Tennessee Rehabilitative Initiative In Correction
M2013-00501-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Ellen H. Lyle

Fourmen who worked forTennessee Rehabilitative Initiative in Correction (TRICOR)while incarcerated in the Department of Corrections filed a grievance with the Department, contending that TRICOR had failed to pay them all the wages they had been promised. The Grievance Committee ruled in their favor, but TRICOR and the Department refused to authorize any additional pay. The men filed two different actions in the Davidson County Chancery Court. This appeal is from the denial of the trial court in Part III of a motion to reconsider. The trial court denied the motion. We affirm.

Davidson County Court of Appeals 04/30/14
In Re: Alexis L., et al.
M2013-01814-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ken Witcher

Mother appealed the trial court’s determination that several grounds for terminating her parental rights had been met and that termination was in the best interest of her children. She failed to appeal or argue one of the grounds for termination, so the trial court’s finding regarding that ground is final. Because only one ground need be found, we decline to examine the other grounds. We agree with the trial court’s determination that clear and convincing evidence existed to conclude that termination of Mother’s parental rights is in the best interest of the children.

Macon County Court of Appeals 04/30/14
David R. Seaton et al. v. Wise Properties-TN, LLC
E2013-01360-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Lawrence H. Puckett

This case involves the trial court’s award of attorney’s fees to the defendant property buyer upon remand from this Court. The sellers initiated the original action for specific performance and breach of contract after the buyer refused to close on the purchase of real property. The buyer filed a counterclaim requesting attorney’s fees. The buyer subsequently moved for summary judgment, arguing that the sellers had been the first to breach the contract by failing to fulfill a condition precedent. The trial court granted summary judgment in favor of the buyer, and the seller appealed. Upon that original appeal, while this Court affirmed summary judgment, the issue of attorney’s fees was not raised. Following this Court’s remand to the trial court, the buyer moved for an award of attorney’s fees, pursuant to a default provision of the parties’ agreement. After conducting a post-remand hearing, the trial court awarded the buyer attorney’s fees in the amount of $106,485. The seller appeals. We conclude: (1) that the buyer abandoned its counterclaim for attorney’s fees by failing to question the finality of the summary judgment and by failing to raise the issue during the first appeal and (2) that the trial court exceeded its authority by considering the buyer’s post-remand motion. We therefore vacate the trial court’s award of attorney’s fees.

McMinn County Court of Appeals 04/30/14
Kenneth James Worgan v. Jeannie Antoinette Worgan
E2013-01756-COA-R3-CV
Authoring Judge: Chief Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

In this post-divorce case, Jeannie Antoinette Worgan (“wife”) filed a Tenn. R. Civ. P. 60.02 motion to alter or amend the final judgment, which had been entered over eleven months earlier. The final judgment had incorporated the parties’ marital dissolution agreement (“MDA”). Wife’s Rule 60.02 motion alleges that the MDA “failed to mention the division of the former husband’s pension” and that “[t]his oversight certainly must have resulted from a mistake, inadvertence, or excusable neglect.” The trial court denied the motion, finding that wife was aware of the pension of Kenneth James Worgan (“husband”) when she signed the MDA and that she had ample time and opportunity to review the MDA before signing it. We agree with the trial court’s ruling that wife has presented no ground for Rule 60.02 relief. Accordingly, we affirm.

Jefferson County Court of Appeals 04/30/14
Hannah Ann Culbertson v. Randall Eric Culbertson
W2012-01909-COA-R10-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge James F. Russell

This is the second extraordinary interlocutory appeal in this divorce case and custody dispute. In the first appeal, this Court held that the father did not automatically waive the psychologist-client privilege as to his mental health records by seeking custody or by defending against the mother’s claims that he was mentally unfit. While the first appeal was pending, the mother filed a motion asking the trial court to require the father to undergo a second mental health evaluation pursuant to Tenn. R. Civ. P. 35; the trial court granted the motion. The Rule 35 evaluating psychologist concluded that the father did not pose a danger to his children. Dissatisfied with this conclusion, the mother again asked the trial court to compel the father to produce all of the mental health records from his treating psychologists. After this Court rendered its decision in the first appeal, the trial court granted the mother’s request and again ordered the father to produce all of the mental health records from his treating psychologists. The trial court reasoned that the father waived the psychologist-client privilege as to all of his mental health records by allowing the evaluating psychologists to speak to his treating psychologists, by providing mental health records to the evaluating psychologists, and by testifying that he had a history of depression and had undergone treatment for it. It also ordered the father to produce all of his mental health records because the mother needed them to prepare her case. The father filed a request for a second extraordinary appeal, which this Court granted. We vacate the trial court’s order as inconsistent with this Court’s holding in the first appeal; we hold that there was at most a limited waiver of the psychologist-client privilege, only as to the privileged mental health information that the father voluntarily disclosed to the two evaluating psychologists involved in this case. As for mental health records not subject to a limited waiver of the privilege, we hold that the standard for the trial court to compel disclosure of the records is not met in this case. We remand the case for factual findings on any privileged mental health records the father voluntarily disclosed and other proceedings consistent with this opinion.

Shelby County Court of Appeals 04/30/14
Lester G. Murphy, Sr. v. State of Tennessee Child Support Services
M2012-02514-COA-R3-JV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Anthony L. Sanders

A mother and father divorced and the trial court ordered the father to pay the mother $50 a week as support for their two children. The children subsequently came into the legal custody of their maternal grandfather, but the court did not order support. Ten years later, the Tennessee Department of Children’s Services filed a petition to set child support against the father. After a hearing which the father did not attend, the trial court increased his child support obligation to $333 a month and declared that he owed back support of $31,635, which he was ordered to pay in monthly installments. Four years later, the father, acting pro se, filed a petition to modify the support order. The trial court dismissed the father’s petition, declaring only that its previous order was a valid one. Because there was an existing support order for the two children, the appropriate proceeding would have been one to modify that order. The requirements for modification were not met, and the trial court exceeded its authority by assessing an arrearage based upon an amount different from the amount set in the existing order. We accordingly hold that the father was entitled to Relief from a Final Order under Tenn. R. App. P. 60.02(5), and reverse the trial court’s denial of that relief. We also vacate the trial court’s earlier order imposing on the father a duty to pay a modified amount of support and retroactive child support.

Humphreys County Court of Appeals 04/29/14