Court of Appeals Opinions

Format: 06/29/2016
Format: 06/29/2016
Sylvia Folger v. Robert Folger
E2014-02069-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Ronald Thurman

This appeal arises from a divorce. Sylvia Folger (“Wife”) sued Robert Folger (“Husband”) for divorce in the Chancery Court for Cumberland County (“the Trial Court”). After a trial, the Trial Court, among other things, awarded Wife transitional alimony. On appeal, Wife raises a number of issues. Because of Wife's pronounced economic disadvantage relative to Husband, we modify the judgment of the Trial Court to increase the amount of Wife's transitional alimony, and remand this case for the Trial Court to award Wife attorney's fees as alimony in solido as well as her reasonable attorney's fees incurred on appeal. Otherwise, we affirm the judgment of the Trial Court.

Cumberland County Court of Appeals 01/28/16
Mimi Hiatt v. Kevin L. Hiatt
E2015-00090-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Tammy M. Harrington

This appeal concerns post-divorce matters. Mimi Hiatt (“Wife”) and Kevin L. Hiatt (“Husband”) divorced. Wife some years later filed a motion to modify the final decree of divorce in the Circuit Court for Blount County (“the Trial Court”) seeking to increase Husband’s child support and alimony obligations. Husband, in turn, filed a motion to recover claimed overpayments he made on the marital residence because Wife had transferred it to a trust. The Trial Court found, among other things, that Wife was voluntarily underemployed and declined to increase her spousal support for that reason. The Trial Court also ruled that Wife’s divestment of the marital residence constituted a “sale” under the Marital Dissolution Agreement (“the MDA”) and awarded a judgment to Husband for payments he made on the mortgage after Wife’s transfer of the marital residence to the trust. Wife appeals to this Court. We hold that Wife’s transfer of the marital residence to a trust constituted a sale per the MDA, and we affirm the Trial Court in its award to Husband for overpayment. However, we find that Wife proved a substantial and material change in circumstances, and we remand for the Trial Court to determine an increase in Wife’s alimony in light of this change and all relevant factors. We find further that the Trial Court erred in declining to award Wife her attorney’s fees relative to alimony. As a final matter, we award Wife her attorney’s fees incurred on appeal related to the alimony issue, and remand for the Trial Court to determine Wife’s reasonable attorney’s fees related to the alimony issue on appeal. The judgment of the Trial Court is affirmed, in part, and, reversed, in part.

Blount County Court of Appeals 01/28/16
Greg Layman v. Aaron Acor et al.
E2015-00750-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge O. Duane Slone

This action was originally filed in general sessions court against three defendants and resulted in a judgment for the plaintiff. Two of the co-defendants appealed to circuit court. The remaining co-defendant successfully sought to have the general sessions judgment set aside for insufficient service of process. Thereafter, the general sessions court transferred the claim against the one remaining co-defendant to circuit court to be consolidated with the pending appeal filed by the other co-defendants. The plaintiff subsequently voluntarily dismissed the action. One co-defendant filed a motion to alter or amend, asserting that the circuit court should not have allowed the plaintiff to voluntarily nonsuit the action. The circuit court denied the motion, and the co-defendant timely appealed. Discerning no error, we affirm the circuit court’s judgment.

Sevier County Court of Appeals 01/28/16
Church of God in Christ, Inc., et al v. L.M. Haley Ministries, Inc., et al. - DISSENT
W2015-00509-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Martha Brasfield

ARNOLD B. GOLDIN, J., Dissenting.
In light of the facts that are presented by the pleadings in this case, I must respectfully dissent from the majority's decision to affirm the trial court's dismissal of this property dispute. The majority opinion places much emphasis on the fact that the local church has not “withdrawn” from COGIC, and by citing to Church of God in Christ, Inc. v. Middle City Church of God in Christ, 774 S.W.2d 950 (Tenn. Ct. App. 1989), it suggests that judicial intervention would be improper at this time. Although the Appellees, an apparently vocal group within the local church, still claim that they want to remain a part of COGIC, they refuse to abide by the decisions of the hierarchal church's Ecclesiastical Council, thereby creating, if not an actual withdrawal from the hierarchal church, a schism between the members of the local church. The ecclesiastical decisions having, therefore, been made by the hierarchal church, I am of the opinion that the alleged facts of this case do not prevent judicial intervention to decide the property issues that have arisen between the hierarchal church and members of the local church. From my perspective, they necessitate it. Because resolution of the dispute among the parties is not dependent on the trial court's ruling on matters of conscience or religious doctrine or polity, the trial court should not be precluded from exercising jurisdiction over the case.

Fayette County Court of Appeals 01/27/16
Church of God in Christ, Inc., et al v. L.M. Haley Ministries, Inc., et al.
W2015-00509-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Martha Brasfield

A hierarchical church filed a complaint against one of its local churches, seeking an order establishing the hierarchical church's control over the local church's real and personal property. The trial court dismissed the complaint on the basis of the doctrine of ecclesiastical abstention. Discerning no error, we affirm.

Fayette County Court of Appeals 01/27/16
In re Makendra E.
W2015-01374-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Martha Brasfield

This is a termination of parental rights case. The child at issue in this case was placed in foster care at age two. When the child was ten years old, the child‘s foster parents filed a petition in Dyer County Chancery Court seeking to terminate the parental rights of the child‘s parents and to adopt the child. The trial court entered an order terminating the parental rights of the child‘s mother and father and granting the foster parents‘ petition to adopt the child. The mother has appealed the termination of her parental rights on the ground of abandonment by willful failure to visit in the four months prior to the filing of the petition to terminate her parental rights. The mother also appeals the trial court‘s finding that termination of her parental rights is in the child‘s best interest. We affirm the judgment of the trial court.

Dyer County Court of Appeals 01/27/16
Dr. Robin M. Stevenson v. American Casualty Company of Reading, Pennsylvania
W2015-00425-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Robert L. Childers

This appeal involves a lawsuit filed by an insured against his insurer due to the insurer's failure to pay a claim for a theft loss. The trial court granted summary judgment to the insurer, finding no coverage under the policy. We affirm.

Shelby County Court of Appeals 01/27/16
In re Aaliyah E
E2015-00602-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Dwaine B. Thomas

This is a termination of parental rights case, focusing on Aaliyah E., the minor child (“the Child”) of Wanda M. (“Mother”) and Christopher E. (“Father”). The Child was taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) on November 19, 2013, upon investigation of the Child’s lack of legal guardianship while the parents were incarcerated. On October 30, 2014, DCS filed a petition to terminate the parental rights of Mother and Father. Following a bench trial, the trial court found that statutory grounds existed to terminate the parental rights of both parents upon its finding by clear and convincing evidence that (1) the parents abandoned the Child by failing to provide a suitable home, (2) the parents failed to substantially comply with the reasonable responsibilities and requirements of the permanency plans, and (3) the conditions leading to the Child’s removal from the home persisted. As to Father, the court also found by clear and convincing evidence that prior to incarceration, he had abandoned the Child by showing wanton disregard for the Child’s welfare. The court further found by clear and convincing evidence that termination of Mother’s and Father’s parental rights was in the Child’s best interest. Mother and Father have each appealed. Having determined that, as DCS concedes, Mother was incarcerated during the entire applicable four-month statutory period following the Child’s removal into protective custody, we reverse the trial court’s finding regarding the ground of abandonment through failure to provide a suitable home as to Mother only. We affirm the trial court’s judgment in all other respects, including the termination of Mother’s and Father’s parental rights to the Child.

Monroe County Court of Appeals 01/26/16
In re Saliace P., et al.
W2015-01191-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Jason L. Hudson

This case involves the termination of a mother's parental rights to her three daughters. The children were previously adjudicated dependent and neglected due to physical abuse of the children by the mother's boyfriend. After the children were in foster care for about a year, the Department of Children's Services filed a petition to terminate the mother's parental rights on several grounds. The trial court found by clear and convincing evidence that three grounds for termination were proven and that termination was in the best interest of the children. The mother appeals. We affirm in part, reverse in part, and remand for further proceedings. We affirm the termination of the mother's parental rights.

Dyer County Court of Appeals 01/26/16
Krystal Choate Ex Rel. Clayton C. v. Vanderbilt University
M2014-00630-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

A patient suffered a blunt-force trauma head injury when he fell while attempting to mount a wheelchair accessible scale at a dialysis clinic. Complications from this injury led to his death. Plaintiff, the patient’s former spouse, brought two wrongful death actions on behalf of the patient’s minor child. Each action eventually named as defendants the dialysis clinic and the owner of the property where the dialysis clinic was located. After the trial court consolidated the actions, the property owner filed a motion for summary judgment. The court granted the motion, concluding the property owner had no liability under any legal theory asserted by Plaintiff. We affirm the dismissal of the claims against the property owner.

Davidson County Court of Appeals 01/25/16
Dorothy Harris v. Yolanda Chaffen, et al.
W2015-01996-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Jim Kyle

Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 01/25/16
Kathleen Barrett et al v. Ocoee Land Holdings, LLC et al.
E2015-00242-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jerri Bryant

The issues in this case bring into sharp focus the question of whether or not the successful litigants below are entitled contractually to an award of attorney's fees and expenses against the losing side, i.e. the plaintiffs. This litigation began in 2010 when Kathleen Barrett and her husband, Gerald Barrett, filed suit against three LLCs and three individuals. The gravamen of the complaint is related to the purchase of, and the planned construction of a house on, a lot in a subdivision. Following a jury trial, the defendants now before us on appeal won a favorable verdict on all allegations and theories of the plaintiffs. Despite this outcome, the trial court denied their request for an award of attorney's fees and expenses. The defendants now appeal. The defendants contend that two of the LLC defendants are entitled to an award of fees and expenses based upon contracts in the record. Furthermore, they argue that the individual defendants also are entitled to attorney's fees and expenses (1) based upon a theory of judicial estoppel and (2) pursuant to the provisions of Tenn. Code Ann. § 48-249-115(c) (2012). The Barretts filed a motion in this Court seeking a dismissal of this appeal. They based their motion primarily on a lack of standing. We hold that the motion is without merit. On the issue of attorney's fees and expenses, we reverse the trial court's decision in part and affirm it in part. This case is remanded for further proceedings consistent with this opinion.

Polk County Court of Appeals 01/25/16
Nancy F. Brown v. Nancy Mercer-Defriese et al.
E2015-00755-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Jeffrey Hollingsworth

Nancy F. Brown (Plaintiff) was walking through and contemplating the rental of a house owned by Nancy Mercer-Defriese and Spencer Defriese (Defendants) when she tripped over a three-inch threshold or step in the doorway between two rooms. She brought this premises liability action, alleging the step was an unreasonably dangerous and defective condition that caused her fall and resulting injuries. During the jury trial that followed, Plaintiff and Defendants presented the testimony of experts. Plaintiff's expert opined that the step was a “trip hazard.” One of the Defendants' experts agreed that the step was a trip hazard, while the other stated that “all stairs are trip hazards.” Plaintiff and Defendants each presented photographs of the doorway showing that the step and the floors on either side of the three-inch change in elevation are in a very similar color. The trial court granted Defendants' motion for a directed verdict at the conclusion of all of the proof, finding that it was not reasonably foreseeable that Plaintiff would trip over the step; that the step was open and obvious; and that Defendants did not owe Plaintiff a duty to warn her of the condition of the step. We hold that the evidence before the trial court and now before us establishes a genuine issue of material facts as to the Defendants' negligence. Accordingly, we vacate the trial court's judgment and remand for further proceedings.

Hamilton County Court of Appeals 01/25/16
In re Estate of Dennie Lamar Trent
E2015-00198-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Thomas Wright

Barry Trent, the Executor of the Estate of Dennie Lamar Trent, appeals the order of the Chancery Court for Hawkins County (“the Trial Court”) finding and holding that the claim against the estate filed by Brenda Jefferson for an unpaid $50,000 debt as evidenced by a note is valid. We find and hold that the evidence does not preponderate against the Trial Court's findings, and we affirm.

Hawkins County Court of Appeals 01/25/16
Sima Aryan v. Nicholas Aryan
M2014-02302-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Phillip A. Robinson

Former husband filed a post-divorce petition seeking to hold former wife in contempt for her failure to pay and hold former husband harmless for indebtedness on the marital residence as required by the parties’ marital dissolution agreement. The trial court held former wife in contempt for her failure to pay, granted former husband a judgment of $2010.00 for the amount he paid in an attempt to keep the debt current, ordered former wife to sell the marital residence, and awarded former husband attorney’s fees. We hold the trial court’s ruling on contempt was in error because the trial court failed to make a threshold finding that former wife’s conduct was willful. On appeal, former wife asserts the trial court erred in requiring her to sell the former marital home. In support of its decision to require former wife to sell the home, the trial court reasoned that principles of equity demanded the result since former husband had no other remedy at law. We reverse the trial court, finding former husband was not without a remedy because he can file an action for breach of contract. The finding of contempt, judgment of $2010.00, and related award of attorney’s fees are vacated, and the portion of the order requiring former wife to sell the home is reversed.

Davidson County Court of Appeals 01/21/16
Christopher A. Pendola, MD, PC et al v. Associated Neurologists of Kingsport et al.
E2015-00685-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge E.G. Moody

This is a breach of contract action in which the plaintiff filed suit after the practice refused to honor the buyout provision in the partnership agreement. The practice filed a counter-complaint, arguing that the plaintiff was liable for his share of the partnership's outstanding financial obligations. Following a bench trial, the court ordered the practice to remit payment. The practice appeals. We affirm.

Sullivan County Court of Appeals 01/21/16
Gary Finley v. Marshall County, et al.
M2015-00313-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor J. B. Cox

Property owner sought recognition that his property had a nonconforming use as a rock quarry. We have determined that the property owner’s previous appeal before the board of zoning appeals, for which he did not file a petition for writ of certiorari in chancery court, is res judicata as to the present matter.

Marshall County Court of Appeals 01/20/16
In re Macedonia Cemetery
M2013-02169-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Ronald Thurman

This appeal involves a motion to set aside a declaratory judgment action involving a cemetery.  Service to the community at large was made by publication.  No answer, pleading, or response of any kind was filed within the time allowed by the court. Following a hearing, the trial court provided the Macedonia Cemetery Board of Trustees with the exclusive authority to oversee operation and maintenance of the cemetery.  The respondents filed a motion to set aside the judgment, claiming they had not received notice of the hearing.  The court denied the motion.  The respondents appeal.  We dismiss the appeal for failure to comply with Rule 27 of the Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals, as such the judgment of the trial court is affirmed.  

Clay County Court of Appeals 01/15/16
Robin G. Jones et al v. Bradley County, Tennessee et al.
E2015-00204-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Lawrence H. Puckett

This is a governmental tort liability action against Bradley County Fire Rescue and Bradley County (collectively Bradley County) arising out of a motor vehicle accident at a large intersection in Cleveland, Tennessee. Fire Rescue employee Matthew Mundall, responding to an emergency call in a Ford F-250 truck equipped with siren and emergency lights, began making a left turn against the red light after stopping or slowing in an attempt to make sure the oncoming traffic lanes were clear. Plaintiff Robin G. Jones, who had the green light and testified she did not hear or see the emergency vehicle, drove into the intersection and collided with the truck. After a bench trial, the trial court allocated 40% fault to Jones and 60% fault to county employee Mundall. The court awarded Jones a judgment against Bradley County in the amount of $207,366. Bradley County appeals, arguing that the court erred in its assessment of 60% fault against Mundall, and that the award of damages to Jones was excessive and unsupported by the evidence. We affirm.

Bradley County Court of Appeals 01/15/16
Cardinal Health 108, Inc. et al v. East Tennessee Hematology-Oncology Associates, P.C. et al.
E2015-00002-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor John C. Rambo

This is a breach of contract action in which the trial court granted summary judgment to a creditor against defendant doctors. We affirm the grant of summary judgment

Washington County Court of Appeals 01/14/16
Doris Annette Christenberry v. J.G. Christenberry
E2015-00497-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge David R. Duggan

This appeal involves parties who were married for thirty-six years prior to divorcing in 2004. The wife claims that she received a judgment against the husband pursuant to their divorce entitling her to the sum of $24,000. The wife insists that because this judgment was never paid by the husband, she filed a lien against real property that was awarded to him in the divorce. Upon learning that the real property in question was scheduled to be sold at auction, the wife filed the instant action, seeking to stop the auction and enforce her lien. The trial court dismissed the wife's complaint and also dismissed and dissolved the underlying lien. Wife timely appealed. Having determined that the trial court's judgment of dismissal was erroneous, we reverse the judgment and remand for further proceedings consistent with this opinion.

Blount County Court of Appeals 01/14/16
Martin W. Bracey, Jr. v. Otis N. McDonald, et al.
M2014-01843-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Clara W. Byrd

Plaintiff who was injured in a motor vehicle accident timely filed suit against the driver and the owner of the truck with which he collided. More than a year after the accident and seven months after suit was filed, Plaintiff amended the complaint to assert causes of action against additional parties. Upon motion, the court dismissed the claims against the additional defendants on the basis of the statute of limitations. Holding that the amended complaints do not contain factual allegations sufficient to relate the claims against the additional defendants back to the filing of the original complaint or to otherwise prevent the running of the statute of limitations, we affirm the judgment dismissing the additional defendants and remand to the trial court for further proceedings in accordance with the opinion herein.  

Wilson County Court of Appeals 01/13/16
Eric Holmes v. Shelby County Sheriff's Office, et al.
W2015-01618-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Jim Kyle

Because the order appealed is not a final judgment, this appeal must be dismissed for lack of jurisdiction.

Shelby County Court of Appeals 01/12/16
In re Estate of Nathleene C. Skinner
M2015-00206-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge David Randall Kennedy

At issue in this appeal is whether the attorney-in-fact for Nathleene Skinner, the decedent, had the authority to incur post-mortem legal fees to defend an action by the decedent’s step-children to recover the cremated remains of their father, Roy Skinner. After Mr. Skinner died, his body was cremated, and Mrs. Skinner retained possession of his remains until her death. When Mrs. Skinner died, her body was also cremated, and her attorney-in-fact took possession of both her remains and her husband’s remains. While Mrs. Skinner’s estate was being administered in the probate court, the stepchildren of the decedent, the children of Roy Skinner, commenced a separate civil action to recover their father’s remains from the decedent’s attorney-in-fact. The estate of Mrs. Skinner was not brought into the action. The attorney-in-fact hired the plaintiff to represent him in the action to recover Mr. Skinner’s remains. After the action to recover the remains of Mr. Skinner was dismissed, the plaintiff filed a motion in the probate court to require Mrs. Skinner’s estate to pay his attorney’s fees. The executor of Mrs. Skinner’s estate opposed the motion. Following a hearing, the trial court denied the motion because there was “an insufficient showing that such fees were reasonable, necessary or for the benefit of this Estate.” The plaintiff appealed. We affirm the probate court’s determination that the services rendered by the plaintiff did not inure to the benefit of the estate of Mrs. Skinner. We have also determined that Mrs. Skinner did not grant her attorney-in-fact any post-mortem authority pertaining to her husband’s remains; therefore, her attorney-in-fact did not have the legal right to incur legal fees on her behalf to defend a civil action regarding Mr. Skinner’s remains. Accordingly, we affirm.

Davidson County Court of Appeals 01/11/16
In re Aiden M., et al.
E2015-01241-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Brad Lewis Davidson

This is an appeal by Amanda P. from an order terminating her parental rights to her two minor children, Aiden M. and Kaidence M. The order terminating the appellant's parental rights was entered on May 5, 2015. The Notice of Appeal was not filed until June 26, 2015, more than (30) days from the date of entry of the final order. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

Cocke County Court of Appeals 01/08/16