Court of Appeals Opinions

Format: 12/04/2016
Format: 12/04/2016
Terry K. King, et al v. Stephen S. Kelly
M2015-02376-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kelvin D. Jones

Plaintiffs appeal from the trial court’s order denying their motion to enforce two offers of judgment offered serially by the defendant. Because the trial court improperly certified its judgment as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure, we dismiss this appeal for lack of subject matter jurisdiction.  

Davidson County Court of Appeals 06/28/16
Vanessa Young Colley v. John S. Colley, III
M2014-02495-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Phillip E. Smith

In this post-divorce action, Vanessa Young Colley (“Mother”) filed a petition for modification of the Permanent Parenting Plan (“Parenting Plan”) entered in connection with the parties’ Marital Dissolution Agreement (“MDA”) seeking to change the decision-making authority with regard to educational decisions for the parties’ minor children. After a hearing, the Circuit Court for Davisdon County (“the Trial Court”), inter alia, modified the Parenting Plan to change joint decision-making with regard to education to Mother having sole decision-making authority with regard to education. John S. Colley, III (“Father”) appeals the decision of the Trial Court raising issues with regard to the change in decision-making authority, the denial of Father’s petition for recusal, and the award to Mother of attorney’s fees, among other things. We find and hold that some of Father’s issues seek an advisory opinion, and we refuse to address those issues. With regard to the issue of recusal, we find no error in the Trial Court’s resolution of this issue. We further find and hold that Mother proved a material change in circumstances justifying a change in decision-making authority with regard to education and further proved that it was in the children’s best interest for Mother to have sole decision-making authority with regard to education. We, therefore, affirm.

Davidson County Court of Appeals 06/28/16
In re Estate of Tandy Nathan Dalton
E2014-02204-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

In this probate action, the executrix proposed to distribute the decedent’s real and personal property in a manner that she claimed was in accordance with the decedent’s Last Will and Testament (“Will”). One beneficiary, one of the decedent’s three adult children, objected, claiming that the decedent had granted her an option to purchase one parcel of real property owned by the decedent. The trial court determined that the real property in question was an asset of the probate estate and that the executrix could administer it in accordance with the decedent’s Will. The trial court also determined that a settlement agreement executed by the decedent’s three children precluded the claim of an option to purchase. The beneficiary appealed. Pursuant to Tennessee Code Annotated § 30-2-301, we vacate the trial court’s denial of the beneficiary’s requests for an inventory and accountings and remand for further proceedings. We affirm the trial court’s judgment in all other respects.

Grainger County Court of Appeals 06/28/16
John Richardson, et al. v. Trenton Special School District
W2015-01608-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Clayburn Peeples

This is a negligence case involving the alleged sexual assault of a six-year-old boy by another six-year-old boy in the bathroom of an elementary school. The trial court determined that the Appellee school district was entitled to summary judgment as a matter of law because the assault was not foreseeable. We conclude that there are disputes of material fact, which preclude the grant of summary judgment. Accordingly, we reverse and remand.

Gibson County Court of Appeals 06/27/16
Charlotte Pickel Wilson v. Jeremiah Pickel
E2015-01472-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

This case involves a purportedly forged deed. Appellant appeals the trial court’s decision to set aside a quit claim deed that was allegedly executed in favor of Appellant by his now deceased grandfather. The trial court found the signature on the deed was forged and not that of the grandfather. In so ruling, the trial court applied the preponderance of evidence standard. Because the correct standard is clear and convincing evidence, we vacate and remand to the trial court for further proceedings.

Knox County Court of Appeals 06/27/16
Paul M. Martin v. Perma-Chink Systems, Inc.
E2015-01466-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Deborah C. Stevens

This appeal arises from an age discrimination lawsuit brought under the Tennessee Human Rights Act ("THRA"). Paul M. Martin ("Martin") sued his former employer Perma-Chink Systems, Inc. ("Perma-Chink") in the Circuit Court for Knox County ("the Trial Court"). Martin alleged that he had been fired as a sales representative for Perma-Chink because of his age, then 60. The matter was tried before a jury, which returned a verdict in favor of Martin. Perma-Chink filed an appeal to this Court, and Martin raises his own issues on appeal. Perma-Chink argues, among other things, that the Trial Court erred in admitting a chart ("the Chart") containing raw data of employee ages at their date of termination, and that Martin failed to prove a prima facie case of age discrimination. We, inter alia, affirm the age discrimination judgment for Martin.

Knox County Court of Appeals 06/27/16
Michael G. McConnell v. Armed Services Mutual Benefit Association
M2015-01184-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Carol L. McCoy

Employee brought action against former Employer alleging wrongful termination under the Tennessee Disability Act (“TDA”), Tenn. Code Ann. § 8-50-103; the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. §§ 4-21-101–102; impermissible disclosure of medical information in violation of the TDA; breach of contract; and misrepresentation in violation of the Tennessee Employment Security Law, Tenn. Code Ann. § 50-7-711. The trial court granted the Employer’s motion to dismiss all claims, and the Employee appeals. Discerning no error, we affirm the judgment of the trial court. 

Davidson County Court of Appeals 06/23/16
Andrea Renea Hopwood v. Corey Daniel Hopwood
M2015-01010-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Michael Binkley

This appeal concerns several issues relative to a divorce. We agree with the trial court that Mother is a candidate for rehabilitative alimony. We reverse the trial court as to the duration of the award, however, reducing the award to eight years. We also vacate the trial court’s ruling with regard to the amount of the alimony award and remand to the trial court for reconsideration of Father’s ability to pay alimony consistent with his other obligations. Finally, we reverse the trial court’s award of attorney’s fees anticipated to be incurred on appeal and vacate the trial court’s award of all of Mother’s requested attorney’s fees, instead remanding to the trial court for a determination of only those fees attributable to child custody and child support. All other issues are affirmed. 

Williamson County Court of Appeals 06/23/16
Larry Williams v. City of Jamestown, Tennessee
M2015-00322-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge John D. McAfee

This appeal involves a visitor to a county courthouse who slipped and fell on ice in the parking area. Because the portion of the parking area where the visitor fell was owned by the city, the visitor filed suit against the city under the Tennessee Governmental Tort Liability Act. Following a bench trial, the trial court dismissed the suit, finding that the city did not breach a duty of care to the visitor. The trial court also found that, even if there had been a breach of duty, the visitor was more than fifty percent at fault for his injuries. The visitor appeals, claiming that the trial court’s written order does not accurately reflect its oral ruling, that the city breached a duty of care by creating a dangerous condition that it did not remedy in a reasonable manner and time, and that the evidence preponderates against the trial court’s factual finding that he was more than fifty percent at fault. We affirm.  

Fentress County Court of Appeals 06/23/16
Brentwood Chase Community Association v. Triet Truong, et al.
M2015-00192-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

Suit to enforce restrictive covenants in a residential subdivision. The homeowners association filed suit alleging that a resident was conducting commercial activity in violation of the restrictive covenants. The trial court granted the association’s motion for summary judgment in part, enjoining the resident from conducting the activity and awarding the association attorneys fees. On appeal, the resident seeks a reversal of the determination that the activity in which she was engaged violated the covenant; the association appeals the denial of summary judgment on the additional ground on which the motion was based. Finding no error, we affirm the trial court in all respects.   

Davidson County Court of Appeals 06/23/16
Patricia Sue Kuhlo v. Ernest Charles Kuhlo
M2015-02155-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph A. Woodruff

In this divorce action, Husband contends the trial court erred by denying his request for “assistance of an attorney,” in valuing his minority partnership interest in a real estate venture, in the division of the marital estate, by ordering the sale of real estate without assuring the sale would be for fair market value, by awarding Wife transitional alimony, and by awarding Wife her attorney’s fees. We affirm. 

Williamson County Court of Appeals 06/23/16
The Estate of Carlene C. Elrod v. Michael S. Petty et al.
M2015-00568-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley

Plaintiff appeals the summary dismissal of this action based on the statute of frauds and judicial estoppel, the award of expenses and attorney’s fees as a discovery sanction, and the award of discretionary costs. In April 2005, Carlene Elrod, now deceased, signed four quitclaim deeds conveying real property in fee simple to her grandson, Michael Petty. In April 2011, Mrs. Elrod filed a verified complaint to set aside the conveyances on tort grounds including mistake, fraud, and deceit, claiming she was under the influence of prescription medications at the time of the conveyances, which deprived her of the mental capacity to contract. Mrs. Elrod died while the action was pending and her estate was substituted as plaintiff. The estate filed an amended complaint in which it dropped all tort claims and asserted a breach of contract claim. Specifically, the estate alleged that the conveyances were based on an oral contract pursuant to which Mr. Petty agreed to pay all rental income from the properties to Mrs. Elrod until her death, and that Mr. Petty honored this agreement for five years but breached the agreement by retaining all rental income thereafter. Following discovery, the defendants, Mr. Petty and his wife, filed a motion for summary judgment. The trial court summarily dismissed the complaint finding: (1) the claims were barred by the Tennessee Statute of Frauds because they were based on a purported oral contract pertaining to the transfer of real property, and (2) the claims were barred by the doctrine of judicial estoppel given the factual inconsistencies between the initial verified complaint and the amended complaint. The court also assessed expenses and attorney’s fees against the plaintiff as a sanction for failing to comply with discovery, and discretionary costs. We affirm the grant of summary judgment based on the statute of frauds. We also affirm the award of expenses and attorney’s fees pursuant to Tenn. R. Civ. P. 37.01 and discretionary costs pursuant to Tenn. R. Civ. P. 54.04.

Davidson County Court of Appeals 06/23/16
In re M.B.R.
E2015-01906-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Janice Hope Snider

This is a termination of parental rights case. The Department of Children’s Services filed a petition to terminate the parental rights of B.L.R. (Father) with respect to his child, M.B.R. (the Child). The trial court found clear and convincing evidence of four grounds supporting termination. The court also found, by the same quantum of proof, that termination is in the best interest of the Child. Father appeals. We affirm.

Hamblen County Court of Appeals 06/23/16
In re Aiden R., et al.
E2015-01799-COA-R3-PT
Authoring Judge: Judge W.Neal McBrayer
Trial Court Judge: Judge Mark Toohey

This case arises from the dismissal after trial of a petition to terminate the parental rights of a mother and father. The juvenile court concluded that, although the Department of Children's Services had proven grounds for terminating the parents' rights, termination was not in the best interest of the children. On appeal, we find the Department of Children's Services did not prove by clear and convincing evidence statutory grounds for termination of the father's rights. We further find clear and convincing evidence supports only two statutory grounds for terminating the mother's rights. Because clear and convincing evidence does not support a finding that termination would be in the children's best interest, we affirm the decision of the juvenile court to dismiss the petition to terminate parental rights.

Sullivan County Court of Appeals 06/23/16
Commercial Painting Company, Inc. v. The Weitz Company, LLC, et al.
W2013-01989-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Kenny W. Armstrong

A subcontractor and general contractor executed a subcontract for a continuing care retirement community. The subcontractor filed a complaint against the general contractor and asserted claims for breach of contract and misrepresentation. The contractor filed a motion for partial summary judgment with respect to the claims for misrepresentation, which the trial court granted. The breach of contract claims were tried and the trial court awarded the subcontractor some damages, but less than the subcontractor sought. The subcontractor appealed the trial court‘s judgment granting the contractor‘s motion for partial summary judgment. We conclude the subcontractor stated claims for intentional or negligent misrepresentation and that the trial court erred in dismissing these claims. We reverse the trial court‘s judgment granting the contractor‘s motion for partial summary judgment and remand the case for further proceedings.

Shelby County Court of Appeals 06/20/16
Cash America International, Inc. v. Geico General Insurance Co.
M2015-01946-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Senior Judge Ben H. Cantrell

Insurance company filed garnishment action in general sessions court against employer garnishee. The sheriff served an hourly employee at one of the employer garnishee’s retail locations. Employer garnishee did not appear in the garnishment action, and the general sessions court entered judgment. Employer garnishee filed this action in the chancery court collaterally attacking the general sessions judgment based on improper service. The chancery court granted summary judgment in favor of employer garnishee. Discerning no error, we affirm.

Davidson County Court of Appeals 06/17/16
Vanderbilt Mortgage and Finance, Inc. v. Phillip W. Vandergriff et al.
E2015-01121-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor M. Nichole Cantrell

The plaintiff lender filed this action to quiet title to certain real property and regain possession of said property from its current occupants, one of whom owed a debt to the lender that originated in 1996. At the time of the making of the indebtedness, the debtor executed a deed of trust regarding the subject property to secure the debt. The property was subsequently sold at a delinquent tax sale in 2008. The tax sale purchaser later conveyed title to the property back to the debtor in 2012. Upon the debtor’s failure to make timely payments to the lender in 2013, the lender foreclosed on the subject property pursuant to the 1996 deed of trust.

Anderson County Court of Appeals 06/17/16
In re Quadavon H. et al.
E2015-02001-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Timothy E. Irwin

Mother appeals the termination of her parental rights to two children, asserting that the evidence does not sustain the grounds of abandonment by failure to support and persistence of conditions as found by the court and does not support the finding that termination of Mother's rights was in the children's best interest. Upon our review, the record clearly and convincingly supports the grounds found by the court, as well as the finding that termination of Mother's rights is in the children's best interest; consequently, we affirm the judgment.

Knox County Court of Appeals 06/16/16
In re Anicia B.
E2015-01424-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Mark Toohey

The trial court terminated Mother's parental rights based on the grounds of abandonment by failure to visit, abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plan, and persistent conditions and based on the trial court's finding that it was in the child's best interest to terminate Mother's parental rights. Mother appealed. We affirm.

Sullivan County Court of Appeals 06/16/16
Amanda Gilreath, et al. v. Chattanooga-Hamilton County Hospital Authority, et al.
E2015-02058-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This is a medical malpractice action1 in which the plaintiffs filed suit against the defendant hospital. The defendant hospital requested summary judgment. The trial court granted summary judgment and dismissed the action. We affirm.

Hamilton County Court of Appeals 06/15/16
Keith C. Celebrezze v. Robin Ruben Flores, et al.
E2016-00813-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Pamela A. Fleenor

The final judgment from which the pro se appellant seeks to appeal was entered on March 22, 2016. The Notice of Appeal received by the Clerk and Master on April 19, 2016, was submitted via facsimile transmission. The appellant subsequently filed a second Notice of Appeal on May 31, 2016, more than thirty (30) days after entry of the March 22, 2016 judgment. Because the second Notice of Appeal was not timely filed, and the first Notice of Appeal submitted by facsimile transmission was insufficient to invoke the jurisdiction of this Court, we have no jurisdiction to consider this appeal.

Hamilton County Court of Appeals 06/13/16
In Re Bailey W., et al
M2015-01576-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Michael Todd Burnett

This case involves termination of the parental rights of a mother to her four children. After investigating a report of drug exposure, the Tennessee Department of Children’s Services (“DCS”) obtained emergency temporary custody of the children. Ten months after the children were removed from the mother’s home, DCS filed a petition to terminate the mother’s parental rights on the grounds of abandonment by willful failure to support and failure to establish a suitable home, substantial noncompliance with the permanency plan, and persistence of conditions. The juvenile court found all grounds were established by clear and convincing evidence and that termination of the mother’s parental rights was in the children’s best interests. The mother appeals both the grounds for termination and that termination was in the children’s best interests. The mother also argues her due process rights were violated because the court admitted testimony by deposition. Although we conclude that the proof was less than clear and convincing that the mother willfully failed to support her children, we affirm the termination of parental rights. 

Fentress County Court of Appeals 06/10/16
Austin Davis v. Covenant Presbyterian Church of Nashville, et al.
M2015-02154-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Kelvin D. Jones

Following the trial court’s dismissal of their complaint, the plaintiffs filed a motion for relief from judgment pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure (“Rule 60.02”). The trial court found no basis for setting aside the judgment under Rule 60.02 and denied the motion. The plaintiffs appealed. We affirm.

Davidson County Court of Appeals 06/09/16
HCA Health Services of Tennessee, Inc., et al v. Bluecross Blueshield of Tennessee, Inc.
M2014-01869-COA-R9-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Carol L. McCoy

Interlocutory appeal in suit brought by healthcare corporations to recover costs for emergency medical services rendered to patients participating in Defendant’s insurance plans. We conclude that the Employee Retirement Income Security Act (“ERISA”) preempts plaintiffs’ state-law cause of action based on implied-in-law contract; that we are without subject matter jurisdiction to rule on whether Plaintiffs should be deemed to have exhausted the insurance company’s appeals process and therefore decline to consider whether summary judgment should have been granted on the defense of failure to exhaust administrative remedies; that Plaintiff is not entitled to relief under an implied-in-law contract cause of action as to those plans which are not governed by ERISA based upon the duties imposed on the parties by state and federal law; that the insurance company should have been granted summary judgment on certain coverage claims arising from plans not governed by ERISA because Plaintiffs failed to exhaust grievance procedures; that Tenn. Code Ann. § 56-7-110(b) does not bar coverage claims; and that 47 coverage claims were improperly included in this lawsuit and should have been dismissed on summary judgment. Accordingly, we affirm in part, reverse in part, and vacate in part the lower court’s order and remand for further proceedings.

Davidson County Court of Appeals 06/09/16
Victoria Haynes v. Benton Ned Bass, et al.
W2015-01192-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Walter L. Evans

Ex-wife sued ex-husband, mortgage company, title company, and attorney alleging causes of action for fraud, negligent misrepresentation, promissory estoppel, breach of contract, negligence, and civil conspiracy. Pursuant to the terms of a postnuptial agreement, a residence purchased in Collierville, Tennessee was to be ex-wife's separate property. Ex-wife alleged that ex-husband failed to deed the property to her as agreed in the postnuptial agreement. She further alleged that he forged or caused to be forged her name on loan documents for the Collierville residence, which were then “falsely notarized” by the attorney. Defendants asserted multiple defenses and filed motions to dismiss and for judgment on the pleadings. We have determined that the trial court properly dismissed all of the plaintiff's claims for failure to state a claim upon which relief could be granted. Plaintiff's damages were the result of her failure to pay the mortgage on the Collierville residence, which caused the Arkansas divorce court to hold her in contempt and to order the property sold at auction. Even if we assume that all of the allegations of the plaintiff's complaint are true, these allegations fail to make out a claim for relief.

Shelby County Court of Appeals 06/09/16