Court of Appeals Opinions

Format: 12/28/2014
Format: 12/28/2014
American Casualty Company of Reading, Pennsylvania v. State of Tennessee
M2013-00898-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Robert N. Hibbett, Commissioner

Five separate groups of Pennsylvania-domiciled insurance companies filed five separate tax refund claims inwhicheach challenges the imposition of retaliatory insurance premium taxes by the Tennessee Department of Commerce and Insurance pursuant to Tenn. Code Ann. § 56-4-218. The central issue presented is whether Pennsylvania’s surcharges or assessments forthree Workmen’s Compensation funds are imposed upon Tennessee-domiciled insurance companies doing business in Pennsylvania and, therefore, fall within Tennessee’s retaliatory insurance premium tax statute. The Tennessee Claims Commission ruled in favor of the state and all of the Pennsylvania insurance companies appealed. Finding no error, we affirm.

Court of Appeals 07/31/14
Donreil A. Borne v. Celadon Trucking Services, Inc.
W2013-01949-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Robert S. Weiss

Plaintiff was injured in an accident involving three tractor-trailer trucks. Plaintiff, who was riving a tractor-trailer, sued the other truck drivers and the trucking company owners of the ehicles. However, prior to trial, Plaintiff entered into an agreement with one of the trucking companies whereby Plaintiff and the agreeing defendant agreed to cooperate regarding the litigation and to work together to expose the defenses asserted by the non-agreeing defendant. The jury returned an itemized verdict of $3,705,000 for the Plaintiff against the non-agreeing defendant. The trial court denied the non-agreeing defendant’s motion for a new trial, but it suggested a remittitur of $1,605,000, for a total award of $2,100,000. Plaintiff accepted the remittitur under protest and the non-agreeing defendant appealed to this Court. For the following reasons, we affirm in part and we reverse in part. Specifically, we affirm the physical pain and mental anguish and permanent injury awards as reduced by the trial court; we reverse the trial court’s suggested remittitur of the loss of earning capacity award and we instead reinstate the jury verdict of $1,455,000; and we further reduce the loss of enjoyment of life award to $50,000. Thus, we approve a total award to Plaintiff of $2,105,000.

Shelby County Court of Appeals 07/31/14
In Re: Taylor, A.B., et al.
W2013-02312-COA-R3-PT
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Martha Brasfield

This appeal involves the termination of parental rights. The appellant father was incarcerated for the murder of the mother of the children at issue in this case. The foster parents, relatives of the children’s mother, filed this petition to terminate the father’s parental rights and adopt the children. After a trial, the trial court granted the petition and terminated the father’s parental rights. The father now appeals. On appeal, he challenges only the trial court’s finding that termination of his parental rights is in the best interest of the children. Discerning no error, we affirm.

Tipton County Court of Appeals 07/31/14
In Re: Nicholas G., et al.
W2014-00309-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Clayburn Peeples

This is a termination of parental rights case. Appellant/Mother appeals the trial court’s termination of her parental rights on grounds of: (1) abandonment pursuant to Tennessee Code Annotated Sections 36-1-113(g)(1) as defined by Tennessee Code Annotated Sections 36-1-102(1)(A)(i) and (ii); and (2) substantial non-compliance with the permanency plans pursuant to Tennessee Code Annotated Section 36-1-113(g)(2). We conclude that the grounds for termination of Mother’s parental rights are met by clear and convincing evidence in the record, and that clear and convincing evidence also exists that termination of Mother’s parental rights is in the children’s best interests. Affirmed and remanded.

Gibson County Court of Appeals 07/31/14
Deshon Ewan, et al. v. The Hardison Law Firm, et al.
W2013-02829-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Walter L. Evans

Defendant appeals the trial court’s order of voluntary dismissal of Plaintiffs’ complaint. Defendant argues that Plaintiffs were not entitled to a voluntary dismissal because a motion for summary judgment was filed prior to the entry of the order on the nonsuit. We hold that a motion for summary judgment filed after a written notice of nonsuit has been filed does not preclude the plaintiff’s right to take a voluntary dismissal pursuant to Rule 41 of the Tennessee Rules of Civil Procedure. We also conclude that the Defendant is not entitled to sanctions pursuant to Rule 11 of the Tennessee Rules of Civil Procedure. Affirmed and Remanded.

Shelby County Court of Appeals 07/31/14
Paul L. McMillin v. Ted Russell Ford, Inc. et al.
E2013-01782-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: E2013-01782-COA-R3-CV

In 2011, for approximately four months, Plaintiff worked as a car salesman for Ted Russell Ford (“the dealership”) in Knoxville. After he was fired in November 2011, he brought this action against the dealership and others alleging, among other things, retaliatory discharge under the common law and the Tennessee Public Protection Act, Tenn. Code Ann. § 50-1- 304 (2008 & Supp. 2013). Plaintiff alleged that his former employer fired him because he (1) refused to be involved when prospective customers test drove vehicles and (2) informed his supervisor that the dealership was breaking the law when it allowed test drives in cars that did not have dealer license plates or adequate proof of financial responsibility. The trial court granted the defendants summary judgment, holding that plaintiff did not establish a prima facie case because, in the court’s words, the plaintiff “did not engage in protected
activity by refusing to take test drives without a license plate on the vehicle or proof of registration or insurance in the vehicle.” The trial court held that these infractions did not implicate “a matter of fundamental or significant public concern, such as would overcome Tennessee’s employment-at-will doctrine.” Alternatively, the court held that the person responsible for firing plaintiff was not aware, prior to the firing, that plaintiff had refused to participate in test drives. The court held that “[t]he allegedly protected activity was not the basis of the adverse employment action taken against Plaintiff.” We affirm the trial court’s grant of summary judgment and its dismissal of plaintiff’s action.

Knox County Court of Appeals 07/31/14
Arthur B. Roberts et al. v. Robert Bailey et al.
E2013-01950-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Frank V. Williams, III

This is the second appeal to this Court involving the instant real property dispute. At issue is a 58-acre portion (“Disputed Property”) of what was an approximately 100-acre tract acquired by N.B. Bailey and his wife, Pearl Bailey, by warranty deed in 1918. The original plaintiffs, Arthur B. and Tia Roberts, were neighboring landowners who 1 brought a boundary dispute action in March 2009 against the original defendants, Robert W. Bailey, Richard Neal Bailey, and Lisa Bailey Dishner (“the Baileys”). During the course of the boundary dispute, N.B. and Pearl Bailey’s descendants and successors in title became aware that their ownership interest in the Disputed Property could be affected by the possibility that N.B. and Pearl Bailey owned the original 100 acres as tenants in common rather than tenants by the entirety. The first appeal arose when the Baileys, proceeding as third-party plaintiffs, filed a motion to quiet title to the Disputed Property against the third-party defendants, Dale Littleton, Alice Littleton, Kimber Littleton, Mark Lee Littleton, and Charlotte Dutton (“The Littletons and Ms. Dutton”). On March 30, 2010, the trial court granted partial summary judgment in favor of the Littletons and Ms. Dutton, and the court certified its order as a final judgment pursuant to Tennessee Rule of Civil Procedure 54.02. On appeal, this Court questioned the finality of that March 2010 order but allowed the appeal to proceed on an interlocutory basis. Roberts v. Bailey, 338 S.W.3d 540, 541 n.1 (Tenn. Ct. App. 2010), perm. denied (Tenn. Mar. 9, 2011) (“Roberts I”).

Loudon County Court of Appeals 07/31/14
Warren Tywon Fowler v. Joy R. McCroskey, In Her Official Capacity As Clerk Of The Criminal Court Of Knox County
E2013-02365-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Deborah C. Stevens

The plaintiff, a state prison inmate, appeals the trial court’s grant of summary judgment in favor of the defendant criminal court clerk. The plaintiff alleges that the court clerk induced a breach of contract by assessing him with court costs he asserts the State agreed to waive in return for his pleading guilty to felony charges. The trial court found that the plaintiff could not use his affidavit to raise a genuine issue of material fact regarding an alleged oral promise made by the prosecutor when the criminal judgments and written plea agreement, taken together, unambiguously assessed court costs to the plaintiff. The court therefore found that the plaintiff was unable to prove an essential element of his claim. Discerning no error, we affirm.

Knox County Court of Appeals 07/31/14
Eric Johnson et al. v. Parkwest Medical Center
E2013-01228-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Deborah C. Stevens

Eric Johnson, acting individually and as next of kin of the decedent, Jana Lanell Johnson, and the Estate of Jana Lanelle Johnson (“Plaintiffs”), filed the instant action on April 27, 2010, regarding Ms. Johnson’s death. The action alleged health care liability claims pursuant to Tennessee Code Annotated § 29-26-115, as well as other claims, including ordinary negligence and intentional infliction of emotional distress. An agreed order granting partial summary judgment to Parkwest Medical Center (“Parkwest”) was entered with regard to Plaintiffs’ non-medical claims. Parkwest subsequently filed a motion to dismiss, alleging that Plaintiffs failed to comply with all of the requirements of Tennessee Code Annotated § 29-26-121 regarding the health care liability claim. Upon hearing, the trial court granted the motion. Plaintiffs filed additional motions regarding newly discovered evidence, including a motion seeking to set aside the prior order granting partial summary judgment or to amend the complaint, a motion to amend the certificate of good faith, and a motion seeking sanctions. The trial court denied Plaintiffs’ motion seeking to set aside the prior order granting partial summary judgment or to amend the complaint, as well as Plaintiffs’ motion to amend the certificate of good faith. The trial court failed to rule on Plaintiffs’ motion seeking sanctions. Plaintiffs have appealed to this Court. We affirm the trial court’s dismissal of Plaintiffs’ health care liability claim based on Plaintiffs’ failure to substantially comply with the requirements of Tennessee Code Annotated § 29-26-121. We vacate the trial court’s rulings with regard to Plaintiffs’ motions to amend and motion to set aside the partial summary judgment order. We remand for further proceedings consistent with this opinion.

Knox County Court of Appeals 07/31/14
In Re Colby W., et al
M2013-01060-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Robert L. Jones

Tennessee Department of Children’s Services filed a petition for temporary custody of child, alleging that he was dependent and neglected. On de novo review from the Juvenile Court, the Circuit Court, Maury County, adjudicated child dependent and neglected and found that child suffered severe abuse while in the care of his parents. Mother appealed. We affirm.

Maury County Court of Appeals 07/30/14
Charles M. Murphy, Jr. v. Kathy J. Cole, Et Al.
M2013-02225-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor J. B. Cox

The Tennessee Department of Human Services appeals an order of the trial court reversing the Department’s holding that an applicant was not eligible for food stamp benefits or to apply for certain medicare coverage due to excessive income. Upon consideration of the record, we reverse the judgment of the trial court, affirm the decision of the Department and dismiss the petition for review.
 

Marshall County Court of Appeals 07/30/14
Alfred E. Emrick, Jr. v. Gregory Moseley, Et Al.
M2013-01829-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ross H. Hicks

The General Sessions Court of Montgomery County entered a final judgment against the garnishees for the full amount of the judgment debtor’s debt, even though the garnishees had filed an answer and informed the court of the amount of their payments made to the judgment debtor. On appeal, the Circuit Court affirmed this final judgment, and the garnishees timely appealed to this Court. We vacate the final judgment for the full amount of the debt because (1) no conditional judgment was entered, (2) the garnishees were not provided with notice of a conditional judgment, and (3) the garnishees answered and properly informed the court regarding the amount of their payments made to the judgment debtor. We remand this action to the trial court for further proceedings consistent with this opinion.

Montgomery County Court of Appeals 07/30/14
Joshua Wayne Taylor v. Mary Katherine Taylor
E2013-01734-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jacqueline S. Bolton

This is a post-divorce case stemming from the parties’ competing pleadings, both of which sought a modification of their earlier-filed agreed permanent parenting plan as well as other relief. Within a few months of their divorce, Mary Katherine Taylor (“Mother”) had filed a petition to modify the residential parenting schedule. Joshua Wayne Taylor (“Father”) filed a counterclaim also seeking a modified residential schedule and, furthermore, a change in the custody designation. Following a bench trial, the court found that there was no material change in circumstances warranting a change in the identity of the primary residential parent, but that there was a material change supporting a modification  of the residential schedule. The court ordered a new schedule that substantially increased Mother’s parenting time and provided Father with only standard visitation. The court dismissed each party’s attempt to find the other in contempt. Father appeals. We affirm.

Hamilton County Court of Appeals 07/30/14
Phillip Dean Patrick v. Nelson Global Products, Inc.
E2013-02444-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Donald R. Elledge

This is a retaliatory discharge action filed by Phillip Dean Patrick (“Plaintiff”), a former employee of Nelson Global Products, Inc. (“the Employer”). Plaintiff alleged that, on a day during his employment, he was standing nearby when a co-worker sustained a work-related injury. Plaintiff alleged that he was unlawfully terminated after the injured co-worker filed a claim for workers’ compensation benefits. According to Plaintiff, the co-worker’s filing was a “substantial factor” in the Employer’s decision to discharge him. The trial court granted the Employer’s Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted. Plaintiff appeals. We affirm.

Anderson County Court of Appeals 07/30/14
David M. Dulaney, Et Al. v. Don Walker Construction, Et Al.
E2013-00805-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge W. Neil Thomas, III

David M. Dulaney and Traci L. Dulaney (“Plaintiffs”) sued Don Walker Construction (“Walker Construction”) and Rhonda P. Walker (collectively “Defendants”) with regard to real property and a house constructed and sold by Defendants to Plaintiffs. After a trial, the Circuit Court for Hamilton County (“the Trial Court”) entered its judgment finding and holding, inter alia, that Plaintiffs had failed to prove negligent construction and had failed to prove misrepresentation and violations of the Tennessee Consumer Protection Act. Plaintiffs appeal. We find and hold that the evidence does not preponderate against the Trial Court’s findings, and we affirm.

Hamilton County Court of Appeals 07/30/14
Donald E. Price v. Oxford Graduate School, Inc.
E2013-02467-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jeffrey F. Stewart

This is a breach of contract case in which an administrator filed suit against a school for unpaid severance pay. The school claimed that the administrator did not provide the requisite 30-day notice for severance pay pursuant to the terms of his contract. The trial court found that the administrator satisfied the notice requirement under the term of his contract and awarded him damages. The school appeals. We affirm the decision of the trial court.

Rhea County Court of Appeals 07/30/14
Jamia Rentz v. Michael Rentz
E2013-02414-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge E.G. Moody

This appeal arises from the Parties’ numerous post-divorce issues. As relevant to this appeal, Father filed a petition to correct his child support obligation, alleging that his alimony payments to Mother should have been considered as income in setting his support obligation. Father also sought to modify his support obligation in recognition of the birth of his new son and his payment of health insurance. Following numerous hearings, the trial court declined to consider Father’s alimony payments in setting the support obligation but modified the obligation to reflect the birth of Father’s son and the payment of health insurance. The court awarded Mother attorney fees. Father appeals. We affirm the decision of the trial court.

Sullivan County Court of Appeals 07/30/14
Circle C Construction, LLC v. D. Sean Nilsen, Et Al.
M2013-02330-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

The issue in this case is whether a tolling agreement between the parties precludes the application of the savings statute set forth in Tenn. Code Ann. § 28-1-105(a). We agree with the trial court that the tolling agreement does preclude application of the savings statute and that the plaintiff’s legal malpractice action is barred by the termination date established in the agreement.

Davidson County Court of Appeals 07/29/14
Richard Jeremiah Garrett, Jr. v. Renee Michelle Elmore
M2013-01564-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Wayne C. Shelton

The father of the parties’ four-year-old child appeals the permanent parenting plan established by the juvenile court judge; specifically, he challenges the designation of Mother as the primary residential parent, the parenting schedule, the income imputed to each parent, and child support he is ordered to pay. He also contends Mother waived her right to a de novo rehearing of an earlier “order” by the magistrate, which favored Father, as she did not file a timely request for a de novo hearing; therefore, the juvenile court judge was without authority to conduct a de novo hearing or to enter judgment contrary to the magistrate’s order. We have determined the magistrate’s “order” was not a final judgment because the magistrate never prepared “findings and recommendations in writing,” which are to be provided to the juvenile court judge, as is expressly required by Tenn. Code Ann. § 37-1-107(d). Following the de novo hearing before the juvenile court judge, Mother was named the primary residential parent and she was awarded 218 days of parenting time; Father was awarded 147 days. In calculating child support, the trial court found that Mother was attending college part-time but that she was voluntarily unemployed and imputed income to her based on federal minimum wage. The court found that Father’s evidence concerning his modest income was unreliable and imputed income to Father pursuant to Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(iv). The court additionally afforded Mother a day care credit of $516 per month and set child support pursuant to the guidelines based upon the above findings. Father appeals. Finding no error, we affirm.

Montgomery County Court of Appeals 07/29/14