Court of Appeals Opinions

Format: 03/25/2017
Format: 03/25/2017
Nove Kephart, Sr. v. Daniela F. Schwarzer Kephart
M2015-02285-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor L. Craig Johnson

The father of two children opposes the relocation of the children with their mother from middle Tennessee to Harrison, Arkansas. He also contends he is entitled to a child support deviation. At trial, testimony revealed that the mother wants to relocate because her husband accepted a position in Harrison that resulted in an annual salary increase of $20,000, plus a bonus. The mother also testified that she was offered a job in Harrison that pays more than her current position. The trial court granted permission to relocate, finding that the relocation had a reasonable purpose because the mother and her husband would receive a significant increase in annual income and increased opportunities for advancement in Arkansas. The trial court also found that relocating would not result in serious harm to the children and was not intended to defeat the father’s visitation. In addition, the trial court denied the father’s request for a child support deviation. The father appealed, contending that the court’s findings about the relocation are erroneous and that he is entitled to a child support deviation. The evidence supports the trial court’s findings regarding the purpose and nature of the relocation. Additionally, the father is not entitled to a child support deviation under the plain language of the regulations. Accordingly, we affirm.

Coffee County Court of Appeals 10/26/16
Vicki J. Redick v. Saint Thomas Midtown Hospital, et al
M2016-00428-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Amanda McClendon

Vicki J. Redick (“Plaintiff”) appeals the dismissal with prejudice of her health care liability action against Saint Thomas Midtown Hospital (“the Hospital”) and Jane Doe, an employee of the Hospital. We find and hold that Plaintiff, despite application of the common knowledge exception when appropriate, would be unable to prove her claim without expert proof, and therefore, Plaintiff was required to file a certificate of good faith in compliance with Tenn. Code Ann. § 29-26-122. As Plaintiff failed to file the required certificate of good faith, we find no error in the judgment of the Circuit Court for Davidson County (“the Trial Court”) dismissing Plaintiff’s case with prejudice for failure to comply with Tenn. Code Ann. § 29-26-122.

Davidson County Court of Appeals 10/26/16
Anderson Lumber Company, Inc. v. Chris Kinney, et al.
E2016-01640-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge David R. Duggan

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 for Disqualification or Recusal filed by the Defendants, William Kinney and Margaret Kinney ("Defendants") in this case that arises out of the indebtedness of Defendants' business, Kinney Custom Interiors, to the Plaintiff, Anderson Lumber Company, Inc. ("Plaintiff"). Having reviewed the petition for recusal appeal filed by Defendants, and finding no error in Trial Court's ruling, we affirm.

Blount County Court of Appeals 10/26/16
Jack Wayne Butler v. Tennessee Board of Nursing
M2016-00113-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Ellen H. Lyle

An applicant for a nursing license filed a petition for a writ of certiorari regarding the decision of the Tennessee Board of Nursing to deny his license. The trial court ruled: (1) that the applicant was not entitled to a contested case prior to the denial of his initial nursing license; (2) that the Tennessee Board of Nursing correctly found that the applicant’s license could be denied due to his “fraud or deceit” in his efforts to procure his license; and (3) that the Tennessee Board of Nursing could not rely on an expunged conviction to establish the statutory ground of “guilty of a crime.” Both parties appeal. Discerning no error, we affirm the decision of the trial court. 

Davidson County Court of Appeals 10/25/16
James Smallwood v. State of Tennessee
M2016-00276-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Commissioner Robert N. Hibbett

An inmate of the Tennessee Department of Correction filed a claim against the State of Tennessee seeking to recover damages for personal injuries he sustained when he was attacked on August 23, 2013, by a fellow inmate. The Claims Commissioner found that the material facts were not disputed and there was no forewarning of the assault. Because the claimant provided no evidence showing that the attack was foreseeable, the Claims Commissioner concluded that the prison did not breach any duty to protect the claimant and summarily dismissed the claim. The claimant appealed. We affirm. 

Court of Appeals 10/25/16
John Hamilton v. Metropolitan Government Of Nashville And Davidson County, et al
M2016-00446-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Amanda Jane McClendon

This case involves a challenge to an election commission’s decision not to set a special election to fill a vacancy in the office of district council. Appellant, a Davidson County resident and registered voter, appeals the trial court’s grant of Appellees’, the Metropolitan Government of Nashville & Davidson County and the Davidson County Election Commission, Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss. The trial court granted Appellees’ motion on its finding that Appellant’s petition failed to aver facts sufficient to show a distinct and palpable injury to Appellant so as to establish his standing to challenge the election commission’s decision not to schedule a special election. Discerning no error, we affirm and remand.

Davidson County Court of Appeals 10/25/16
The River Oak, GP, et al v. IOAN Bucse, et al.
M2015-02208-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Joe Thompson

This property dispute involves adjacent commercial property owners. When defendants revealed their intent to erect a fence between the adjoining properties, plaintiffs sued under the theories of adverse possession, prescriptive easement, and implied easement to use a portion of defendants’ property for parking, trash removal, and receiving deliveries. After a bench trial, the trial court found that plaintiffs failed to meet their burden of establishing their asserted rights over the area in dispute. Plaintiffs appeal the trial court’s conclusions as to prescriptive easement and easement by implication only. Discerning no error, we affirm. 

Sumner County Court of Appeals 10/25/16
Michael Angelo Coleman v. Tennessee Board of Parole, et al.
M2016-00410-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Ellen H. Lyle


This appeal involves a multi-count petition filed in chancery court by a prisoner after he was denied parole. The prisoner’s petition set forth five counts alleging various constitutional and civil rights violations in connection with the parole process, and he requested declaratory and injunctive relief related to these five counts. The sixth count in the petition sought review of the decision of the parole board pursuant to the common law writ of certiorari. The chancery court dismissed the five counts for declaratory and injunctive relief and certified its order of partial dismissal as final pursuant to Tennessee Rule of Civil Procedure 54.02, leaving only the certiorari action pending. We conclude that the trial court improvidently certified its order as final and dismiss the appeal.

Davidson County Court of Appeals 10/25/16
Edward Martin v. Gregory Powers, et al. - Dissent
M2014-00647-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge James G. Martin, III

I respectfully dissent from the majority opinion in this case.

The majority concludes that the Policy exclusion for any vehicle “owned or operated by a self-insurer under any applicable motor vehicle law” is ambiguous. I disagree. As explained below, under the plain Policy language, the rental car driven by the Defendant was not an “uninsured motor vehicle” because it was owned by a “self-insurer” under Tennessee’s Financial Responsibility Act. For this reason, I would conclude that the Policy does not provide UM coverage to the Plaintiff in this case.

Williamson County Court of Appeals 10/24/16
Norris Bettis v. Rebecca Bettis
E2016-00156-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Pamela A. Fleenor

This is an appeal of a trial court's award of alimony and valuation of marital assets. Husband appeals the trial court's decision to award a percentage of his bonus income as alimony as well as the trial court's valuation of stock allocated to Husband. Wife appeals the trial court's decision not to award her alimony in futuro. We affirm both the trial court's finding with respect to the value of the stock and its decision to not award alimony in futuro. However, we vacate the trial court's decision to award a percentage of Husband's bonus income as alimony and remand for proceedings consistent with this opinion.

Hamilton County Court of Appeals 10/24/16
State, ex rel., Melody Kay Rogers v. Donnie O'Keith Lewis
W2015-01882-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Dan H. Michael

This appeal involves a mother’s petition to set child support. The father objected to the petition, citing a prior order in which the parties agreed that no child support would be ordered but that he would remit payment for medical insurance or medical expenses as needed. The trial court granted the petition, set a current support obligation, and awarded retroactive child support and attorney fees, finding that the prior order was void as against public policy. The father appeals. We reverse the award of retroactive child support, vacate the attorney’s fees awarded and remand to the trial court for further proceedings consistent with this opinion.

Shelby County Court of Appeals 10/21/16
Rose Coleman v. Bryan Olson
M2015-00823-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Ross H. Hicks

This appeal concerns two disputes between the widowed husband and mother of a deceased woman: (1) the proper party to whom the woman’s life insurance proceeds are owed; and (2) a request for grandparent visitation. We conclude that the trial court erred in failing to return the life insurance beneficiary to the status quo that existed prior to wife’s violation of the automatic injunction pursuant to Tennessee Code Annotated Section 36-4-106(d)(2). The proceeds from the life insurance policy are therefore awarded to husband. We vacate, however, the trial court’s seizure of the grandmother’s Bank of America account and remand for further proceedings to determine if the funds contained therein represent the remainder of the life insurance proceeds improperly paid to the grandmother. We further conclude that the trial court erred in awarding grandparent visitation, where there was no evidence of opposition to visitation prior to the filing of the grandparent visitation petition. Reversed in part, vacated in part, and remanded.  

Montgomery County Court of Appeals 10/20/16
The City of Chattanooga Ex Rel. Don Lepard, Qui Tam, v. Electric Power Board of Chattanooga
E2015-01995-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This is a qui tam action brought by the plaintiff on behalf of himself and the City of Chattanooga (“the City”) against the Electric Power Board of Chattanooga (“EPB”). The plaintiff filed a complaint pursuant to the Tennessee False Claims Act (“TFCA”), see Tenn. Code Ann. §§ 4-18-101 to -108, alleging that EPB had overbilled the City for approximately twenty years by billing for lights not in existence and applying an incorrect energy cost calculation. EPB subsequently filed a motion to dismiss with supporting memorandum and attachments, asserting, inter alia, that EPB and the City were the same entity and that the City could not sue itself. Upon the plaintiff’s motion, the trial court, pursuant to Tennessee Rule of Civil Procedure 12.03, treated EPB’s motion to dismiss as a motion for summary judgment. Following a hearing, the trial court denied EPB’s motion upon finding that the relationship between the City and EPB was an issue of disputed material fact. However, upon EPB’s request for reconsideration and the filing of additional pleadings and attached documents, the trial court found that the issue of EPB’s relationship to the City was a matter of law. Following a second summary judgment hearing, the trial court granted summary judgment in favor of EPB based on a finding that an action brought by the City against EPB would constitute an impermissible case of the City’s suing itself. The plaintiff appeals. Although we determine that the trial court erred by denying the plaintiff’s motion to amend the complaint, we further determine this error to be harmless because the plaintiff’s additional claims would not have been able to survive summary judgment. Discerning no reversible error, we affirm.

Hamilton County Court of Appeals 10/20/16
City of La Vergne v. Randall T. LeQuire
M2016-00028-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Howard W. Wilson

This appeal arises from a traffic citation issued to the appellant by a municipal police officer. The citation charged the appellant with a violation of “SPEEDING 55-8-152,” a reference to Tennessee’s statutory prohibition on speeding codified at Tennessee Code Annotated section 55-8-152 (2012). The appellant was found guilty of speeding in the municipal court and appealed to the circuit court. The circuit court judge entered a judgment against the appellant for a violation of a municipal ordinance rather than for a violation of the state statute charged on the citation. On appeal, the appellant contends that the citation was insufficient to provide him with notice of the charge for which he was convicted. We agree. We, therefore, reverse the judgment of the circuit court and dismiss this case.  

Rutherford County Court of Appeals 10/19/16
Emily Mae Kelly v. Ryan Marshall Kelly
M2015-01779-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Joseph A. Woodruff

This is an appeal of an order denying Father’s petition to modify custody and visitation and for Rule 60.02 relief from a previous judgment of the court. Father appeals the trial court’s finding that no material change in circumstance existed that warranted a change in the parties’ parenting plan. Additionally, Mother appeals the trial court’s finding that Father is not voluntarily underemployed. We affirm. 

Lewis County Court of Appeals 10/19/16
Myrtle Robinson, et al. v. Edward Todd Robbins, MD
W2016-00381-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Gina C. Higgins

This is a health care liability action. The plaintiffs timely filed suit against the defendant concerning the inadequate care and treatment received by the decedent. After voluntarily dismissing the initial suit, the plaintiffs provided pre-suit notice before filing a second suit pursuant to the saving statute. The defendant moved to dismiss, arguing that the saving statute did not apply because there was no identity of parties between the actions. He explained that the second complaint was filed against him in his individual capacity while the initial complaint was lodged against him in his corporate capacity. The court agreed and held that the second action was barred for failure to file within the applicable statute of limitations. We reverse.

Shelby County Court of Appeals 10/19/16
Geico General Insurance Co. v. G & S. Transportation, Inc.
M2016-0430-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge J. Mark Rogers

This appeal arises from the circuit court’s grant of a motion to dismiss. Appellant Geico filed an action in general sessions court against Appellee G&S Transportation, seeking subrogation damages resulting from an automobile accident. The general sessions court entered a default judgment in favor of Geico. G&S appealed the case to circuit court. Three years later, G&S filed a motion to dismiss the case for failure of Geico to prosecute. Geico did not file a response and the trial court granted the motion to dismiss. Geico appeals. Discerning no error, we affirm.

Rutherford County Court of Appeals 10/17/16
Athlon Sports Communications, Inc. v. Stephen C. Duggan, et al.
M2015-02222-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal arises from a dispute over the fair value of stock in a dissenting shareholders case. Athlon Sports Communications, Inc. (“Athlon”) completed a merger (“the Merger”) which converted the minority dissenting shareholders’ (“Defendants”) shares into cash consideration and terminated their rights as shareholders. Athlon offered cash consideration for the shares at $0.10 per share. Defendants contend that their shares are worth at least $6.48 per share. Athlon sued Defendants to determine judicially the fair value of these shares. This case was tried before the Chancery Court for Davidson County (“the Trial Court”). After a trial, the Trial Court, applying the Delaware Block Method for determination of share value, found that the share value was $0.10 per share as of the date of the Merger. Defendants appeal to this Court, arguing that (1) the Delaware Block Method is ill-suited for a business like Athlon attempting a new venture, and is antiquated, generally; and, (2) that the Trial Court erred in its application of the Delaware Block Method. We find and hold that, under Tennessee law, the Trial Court properly utilized the Delaware Block Method. We find and hold further that the Trial Court considered the competing expert testimony, accredited Athlon’s expert, and the evidence does not preponderate against the Trial Court’s factual findings. We affirm the judgment of the Trial Court.

Davidson County Court of Appeals 10/17/16
In re Estate of James Kemmler Rogers
M2015-01439-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Stella Hargrove

Appellant, as a purported creditor of Decedent, appeals the trial court’s denial of her petition to open primary or ancillary probate of Decedent’s estate in Tennessee. Appellees, the Decedent’s surviving children, argued, inter alia, that Appellant lacked standing to pursue probate in Tennessee. The trial court did not address the standing issue before denying probate. We conclude that, in the absence of a ruling on standing, the trial court’s order is not final and appealable under Tennessee Rule of Civil Procedure 3(a). As such, this Court does not have subject-matter jurisdiction to hear the appeal. Appeal dismissed.

Giles County Court of Appeals 10/17/16
Catherine Cright v. Tijuan Overly, M.D. et al.
E2015-01215-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge William T. Ailor

Catherine Cright's husband passed away on August 4, 2008, due to complications arising from a stent placement procedure. Cright1 subsequently filed a medical malpractice action2 against Dr. Tijuan Overly, Knoxville Cardiovascular Group, P.C. (KCG), and University Health Systems, Inc. (UHS) (collectively the defendants). Cright nonsuited that action in April 2013 three days into trial. She later sent a notice letter to each of the defendants advising them of her intent to refile her action. She neglected to attach a HIPAA-compliant medical authorization. Thereafter, Cright refiled her complaint against the defendants, all of whom filed a motion to dismiss because of her failure to comply with the HIPAA-compliant authorization requirement set forth in Tenn. Code Ann. § 29-26-121(a) (Supp. 2009). The trial court granted the motions. Cright appeals. We affirm.

Knox County Court of Appeals 10/17/16
Aqua-Chem, Inc. v. D&H Machine Service, Inc.
E2015-01818-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Kristi M. Davis

Aqua-Chem, Inc. contracted with D&H Machine Service, Inc. for D&H to machine three large, identical pieces of equipment. The piece of equipment is referred to in the record as a “cooler.”The work was not done properly, rendering them unusable. Aqua-Chem sued D&H for breach of contract, seeking damages for the replacement cost of the coolers and for lost profits. Aqua-Chem also sought attorney’s fees and expenses pursuant to the terms of its agreement with D&H. Following a two-day bench trial, the court awarded Aqua-Chem $191,870 in replacement costs, but declined to make an award for lost profits. The court did award Aqua-Chem $50,000 in attorney’s fees and out-of-pocket expenses. D&H appeals. Both sides raise issues. D&H argues that the trial court erred when it held that the terms and conditions of the purchase orders presented to D&H were applicable to the facts of this case. It also argues that the award of damages is not supported by the evidence. Aqua-Chem contends that the trial court erred in refusing to award damages for lost profits. It also asserts that the trial court should have awarded it the full amount of its fees and expenses, the total of which was $64,739.48. We affirm the trial court’s judgment in all respects

Knox County Court of Appeals 10/17/16
LeAnn Barnes v. David Ellett Barnes
M2015-01254-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor J. B. Cox

This appeal comes before us a second time. In the first appeal, we affirmed in part and reversed in part the judgment of the trial court and remanded the case for the trial court to determine the manner in which to divide the marital estate given the adjustments we made and the nature of the marital assets; we also vacated the trial court’s amended order modifying the original award of alimony and reinstated the original award. On remand, the court entered an order providing that the Wife’s interest in Husband’s 401K Plan would be increased in the amount of the adjustments ordered by this court, to be made pursuant to the Qualified Domestic Relations Order which was also entered by the court; the court awarded Wife a judgment for the difference in the alimony awarded in the original decree and that paid by Husband pursuant to the amended decree. In this appeal, Wife challenges the trial court’s compliance with this court’s instructions. We find that the orders entered by the court comply with the instructions of this court as to the division of the marital estate; we modify the order relating to the award of alimony to specifically state the amount and type of alimony awarded.

Bedford County Court of Appeals 10/14/16
Athena of S.C., LLC et al. v. James F. Macri, Jr. et al.
E2016-00224-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Deborah C. Stevens

The plaintiffs sued an attorney for legal malpractice related to the enforcement of two promissory notes. The plaintiffs purchased these notes, which were secured by property at a real estate development, from the two other defendants in this lawsuit. During the purchase of these notes, the sellers were represented by the defendant-attorney in this lawsuit. Subsequently, the plaintiffs hired the same attorney to help them collect the amounts due under the notes from the real estate developer. The attorney drafted a complaint and an agreed judgment for each of the promissory notes and filed these documents in the Circuit Court for Knox County. The circuit court entered the agreed judgments the same day they were filed. When the plaintiffs attempted to sell the property that secured the promissory notes, the real estate developer's former business partner filed a motion for an injunction in federal court. The federal district court issued two injunction orders, one in May 2012 and one in August 2012. Both orders were based on findings that the transaction by which the plaintiffs acquired the promissory notes was likely fraudulent. On January 6, 2014, the parties who sold the notes to plaintiffs filed an affidavit that, according to the plaintiffs, admitted that the sale of the notes to plaintiffs was fraudulent. On January 6, 2015, the plaintiffs filed this action against their former attorney and the parties that sold them the promissory notes. The attorney filed a motion to dismiss under Tenn. R. Civ. P. 12.02(6), arguing that the plaintiffs' claim was time barred because it accrued in August 2012. The trial court granted this motion because it determined that the plaintiffs knew they had suffered an injury when the district court issued the second injunction order in August 2012. We affirm

Knox County Court of Appeals 10/14/16
Classic City Mechanical, Inc. v. Potter South East, LLC, et al.
E2015-01890-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin, Jr.
Trial Court Judge: Judge John F. Weaver

This case involves competing claims concerning a State construction project. The trial court awarded one of the subcontractors on the project compensatory damages, plus interest, based on the prime contractor's failure to remit payments for work that had been performed. On appeal, the prime contractor challenges the trial court's finding that it committed the first material breach of its contract with the subcontractor. The prime contractor also challenges the trial court's finding that it did not prove its claims for damages, which were predicated on an alleged delay created by the subcontractor and the subcontractor's cessation of performance. Although the subcontractor maintains that the trial court's findings regarding material breach should be left undisturbed, it appeals the trial court's specific award of interest, the dismissal of its fraudulent concealment claim, and the denial of its request for attorney's fees. Having reviewed the record transmitted to us on appeal, we affirm in part, modify in part, and remand for further proceedings consistent with this Opinion.

Knox County Court of Appeals 10/14/16
In re Dakota H. et al.
E2016-00036-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Darryl Edmondson

This is a termination of parental rights case focusing on the three minor children of Bobby H. (“Father”). On March 11, 2015, the Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate the parental rights of Father. DCS alleged as a basis for termination the statutory grounds of (1) abandonment by failure to provide a suitable home, (2) substantial noncompliance with the permanency plans, (3) persistence of the conditions leading to removal of the children, and (4) mental incompetence preventing adequate care of the children. Following a bench trial, the trial court granted the petition upon its determination by clear and convincing evidence that DCS had proven the statutory grounds of abandonment by failure to provide a suitable home and persistence of the conditions leading to removal of the children. The court further determined by clear and convincing evidence that termination of Father’s parental rights was in the children’s best interest. Father has appealed. Discerning no reversible error, we affirm.

Anderson County Court of Appeals 10/12/16