Court of Appeals Opinions

Format: 03/27/2017
Format: 03/27/2017
Mr. Bult's, Inc. v. Tennessee Department of Labor & Workforce Development
M2015-01867-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Senior Judge Ben H. Cantrell

A long haul waste carrier was cited for violating safety regulations by the Tennessee Department of Labor and Workforce Development, Division of Occupational Safety and Health Administration (the “Division”). The waste carrier informed the Division that it had corrected the alleged violations and received an automated reply that the Division had ceased operations due to the federal government’s suspension of funding. The waste carrier intended to contest the citations but failed to notify the Division of its intent within the statutory twenty-day period. Once the Division was operating again and the waste carrier informed the Division of its intent to contest the citations, the Division responded that the waste carrier had waited too long and that the citations had become final orders by operation of law. The waste carrier filed a petition for judicial review in chancery court, and the trial court remanded the case back to the Division to allow the waste carrier to seek relief pursuant to Rule 60.02(1) of the Tennessee Rules of Civil Procedure. The Division appealed, claiming the chancery court lacked subject matter jurisdiction to consider the petition. We affirm the trial court’s judgment.

Davidson County Court of Appeals 10/11/16
Larry E. Parrish, P. C. v. Nancy J. Strong, et al.
M2015-02495-COA-R9-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor J. B. Cox

This is a Tennessee Rule of Appellate Procedure 9 Interlocutory appeal. Upon further review, we have determined that none of the issues certified for interlocutory appeal are properly before us. Accordingly, we vacate our order granting interlocutory appeal and dismiss the appeal.

Lincoln County Court of Appeals 10/07/16
Cincinnati Insurance Company v. Josie Rochelle Malone
M2015-02362-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge J. Mark Rogers

This is an appeal from an order granting summary judgment in which Defendant argues that summary judgment was improper because a dispute of material fact exists regarding her affirmative defenses. Finding no error, we affirm.

Rutherford County Court of Appeals 10/07/16
In re Michael B.
M2015-02497-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Suzanne Lockert-Mash

This is a termination of parental rights case. Father and Stepmother filed a petition to terminate the parental rights of Mother to the child. The trial court found that the grounds of abandonment for willful failure to visit, willful failure to support, and conduct demonstrating a wanton disregard for the welfare of the child had been proven by clear and convincing evidence. The trial court also found that termination was in the best interest of the child. Mother appeals. We reverse the finding of abandonment for willful failure to support but affirm the other grounds for termination and the finding that termination is in the best interest of the child. The termination of Mother’s parental rights to the child is therefore affirmed. 

Humphreys County Court of Appeals 10/06/16
Ocoee Utility District Of Bradley And Polk Counties, Tennessee v. The Wildwood Company, Incorporated
E2016-00382-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Lawrence Howard Puckett

This appeal involves the condemnation of property by a utility district. The trial court entered an order of possession vesting title of the property in the utility district and reserved the issue of just compensation for a jury trial. Prior to trial, the utility district filed a motion in limine seeking to exclude the expert appraisal and testimony of the landowner‟s expert witness. The trial court permitted the expert to testify over the objections of the utility district. At the conclusion of the three-day jury trial, the jury returned a verdict of $417,000 for the seven-acre parcel at issue, which was the same value suggested by the landowner‟s expert witness. After the trial court denied the utility district‟s motion for a new trial, the utility district timely filed a notice of appeal. The utility district maintains on appeal that the trial court erred by failing to exclude the testimony of the landowner‟s expert witness, and it also argues that the jury verdict is not supported by material evidence. We vacate the judgment of the trial court and remand for a new trial.

Bradley County Court of Appeals 10/06/16
In Re Cannon H.
W2015-01947-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Dan H. Michael

This appeal involves a dispute between unmarried parents regarding the modification of a residential parenting schedule for their minor child. Following a hearing, a juvenile court magistrate modified the parties’ existing parenting schedule to permit Father to exercise parenting time with the child during the first, third, and fifth weekends of each month. Father requested a rehearing before the juvenile court judge. The case was reheard, and the juvenile court judge ordered a similar parenting schedule permitting Father to exercise parenting time during the second, fourth, and fifth weekends of each month. The juvenile court also ordered Father to pay Mother’s attorney’s fees in the amount of $3,500. On appeal, Father takes issue with the parenting schedule and award of attorney’s fees ordered by the juvenile court. Having reviewed the record and considered the arguments presented, we affirm the juvenile court’s parenting schedule; however, we vacate the award of attorney’s fees and remand the case to the juvenile court for a determination as to the amount and reasonableness of the attorney’s fees incurred.

Shelby County Court of Appeals 10/05/16
In Re Piper H.
W2015-01943-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Dan H. Michael

This appeal involves a dispute between unmarried parents regarding a residential parenting schedule for their minor child. Following a hearing, a juvenile court magistrate ordered a structured parenting schedule permitting Father to exercise parenting time with the child during the first, third, and fifth weekends of each month. Father requested a rehearing before the juvenile court judge. The case was reheard, and the juvenile court judge ordered a similar parenting schedule permitting Father to exercise parenting time during the second, fourth, and fifth weekends of each month. The juvenile court also ordered Father to pay Mother’s attorney’s fees in the amount of $3,500. On appeal, Father takes issue with the parenting schedule and award of attorney’s fees ordered by the juvenile court. Having reviewed the record and considered the arguments presented, we affirm the juvenile court’s parenting schedule; however, we vacate the award of attorney’s fees and remand the case to the juvenile court for a determination as to the amount and reasonableness of the attorney’s fees incurred.

Shelby County Court of Appeals 10/05/16
Margaret Smith v. HSBC Mortgage Services, Inc., et al.
W2016-01159-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Jim Kyle

Because the order appealed does not comply with Rule 58 of the Tennessee Rules of Civil Procedure, the order is not a final judgment. Consequently, this Court lacks jurisdiction and this matter must be dismissed.

Shelby County Court of Appeals 10/04/16
Murray Owen Wilhoite, Jr. v. Brenda Ruth Wilhoite, et al.
M2016-00848-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Joseph A. Woodruff

Husband filed a breach of contract action against his Wife while their divorce was pending. When the parties settled the divorce, Husband voluntarily dismissed his breach of contract action. Husband later filed a motion to reinstate his breach of contract action against Wife, which the trial court denied. We affirm.

Williamson County Court of Appeals 09/30/16
Nicole Aquino Williamson v. Paul Landon Lamm
M2015-02006-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Robert L. Jones

This case involves the modification of a permanent parenting plan under which the parents exercised equal parenting time. The mother, who was designated the primary residential parent in the original plan, filed a petition to modify and alleged a material change had occurred in that the child had reached school age and the distance between the parents made the parenting schedule unworkable. The father did not file a counter-petition but filed a competing parenting plan. After a hearing, the trial court changed the primary residential parent for the upcoming school year to the father, established a new residential parenting schedule, and invited the mother to file a new modification petition for the following school year. The mother appealed. We conclude the preponderance of the evidence does not establish a material change in circumstance sufficient to modify the primary residential parent but does establish a material change sufficient to meet the lower standard for modification of the residential parenting schedule. Consequently, we reverse the decision of the trial court and remand for a determination of a residential parenting schedule that is in the best interest of the child.

Maury County Court of Appeals 09/30/16
Willie Johnson v. Turney Center Disciplinary Board, et al.
M2016-00424-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph A. Woodruff

An inmate of the Tennessee Department of Correction filed a petition for common law writ of certiorari seeking review of his prison disciplinary conviction. The trial court dismissed the petition on the grounds that the court lacked subject matter jurisdiction to review his petition because the petitioner failed to file the documents required under Tenn. Code Ann. § 27-9-102, and failed to comply with the filing requirements of Tenn. Code Ann. § 41-21-805 and § 41-21-807. This appeal followed. We affirm. 

Hickman County Court of Appeals 09/30/16
Eric Best v. Tennessee Department of Correction, et al.
M2016-00513-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Russell T. Perkins

Appellant, an inmate in the custody of Appellee, the Tennessee Department of Correction, filed a pro se petition for common law writ of certiorari in the trial court, seeking review of a prison disciplinary board’s decision finding him guilty of possession and use of a cell phone. Appellees moved to dismiss the petition for lack of subject matter jurisdiction on the ground that the petition was not verified as required by the Tennessee Constitution and Tennessee Code Annotated Sections 27-8-104(a) and 27-8-106. The trial court granted the dismissal, and Appellant appeals. Discerning no error, we affirm the dismissal of the petition.

Davidson County Court of Appeals 09/30/16
In re: M. D.
M2015-01023-COA-R3-JV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Clara W. Byrd

This appeal arises from a finding of dependency and neglect. The Tennessee Department of Children’s Services (“DCS”) filed a petition alleging that M. D. (“the Child”) was dependent and neglected based upon alleged sexual abuse by her father, D. D. (“Father”). The Child’s mother, S. D. (“Mother”), filed a cross-petition to intervene, and she sides with DCS on appeal. After a trial, the Circuit Court for Jackson County (“the Trial Court”) found the Child to be both dependent and neglected and a victim of severe abuse by Father. Father appeals to this Court. We find and hold that the evidence does not preponderate against the findings of the Trial Court, and the evidence rises to the standard of clear and convincing to prove the Child is dependent and neglected, as well as a victim of severe abuse. We further find no reversible error in the Trial Court’s considering Father’s drug use and troublesome courtroom behavior in assessing his credibility. We affirm the judgment of the Trial Court.

Jackson County Court of Appeals 09/30/16
Federal National Mortgage Association v. Arnold Emmitt Quarles, III
M2015-01620-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Howard W. Wilson

A borrower on a promissory note secured by his home became delinquent in his payments and the bank foreclosed and filed a successful unlawful detainer action in general sessions court. The borrower filed a petition for writ of certiorari and supersedeas in circuit court asserting wrongful foreclosure; he also filed a countercomplaint seeking declaratory relief and alleging causes of action for unjust enrichment and wrongful disclosure against the bank. Three defendants filed a motion for summary judgment, and the trial court granted the motion. The borrower filed a motion for permission to file an amended countercomplaint asserting causes of action for fraud and breach of contract against the bank, and the trial court granted the motion. The trial court further granted the defendants’ motion for summary judgment and certified the order as a final judgment pursuant to Tenn. R. Civ. P. 54.02. Because we have determined that the trial court erred in certifying the judgment as final under Tenn. R. Civ. P. 54.02, we vacate the trial court’s order and remand for further proceedings.

Rutherford County Court of Appeals 09/30/16
AT&T Mobility II, LLC et al v. Richard H. Roberts, Commissioner of Revenue, State of Tennessee
M2015-01118-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Claudia Bonnyman

Taxpayer filed a claim with the Tennessee Department of Revenue for refund of sales taxes of approximately $24 million that it erroneously collected from approximately 800,000 of its customers and paid to the Department. Over the course of the next three and a half years, representatives of the Department and the taxpayer worked together to identify and provide information in a format that would facilitate the review. While the claim was being reviewed, the taxpayer filed suit in chancery court; the parties continued to work to resolve the claim, and the court extended the disposition date of the suit. In due course, the Department refunded approximately $19 million, plus a portion of the interest sought by the taxpayer; the case proceeded to trial to determine whether the applicable statute permitted the taxpayer to recover additional interest. The court determined that the claim was resolved by the administrative review rather than by the court and awarded interest from the date the taxpayer supplied proper proof to the Department; the court also awarded costs and attorneys’ fees to the Commissioner. Taxpayer appeals. Finding no error, we affirm the judgment of the Chancery Court.

Davidson County Court of Appeals 09/30/16
In re Jaquan B.
E2015-02365-COA-R3-JV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge John B. Bennett

This is a dependency and neglect action involving the respondent mother’s two minor children, ages five and six at the time the incident giving rise to this action occurred. After it was discovered that the older child suffered, inter alia, a liver laceration as a result of physical abuse, the Hamilton County Juvenile Court determined that both children were dependent and neglected in the care of their mother. The juvenile court also determined that the older child was a victim of severe child abuse. The mother perfected a de novo appeal to the Circuit Court for Hamilton County. The circuit court likewise found, by clear and convincing evidence, that the children were dependent and neglected and that the mother committed severe child abuse against the older child. The mother appeals the circuit court’s finding of severe child abuse. We have determined that the evidence clearly and convincingly supports the circuit court’s findings that the children are dependent and neglected, and that the mother severely abused the older child. Thus, we affirm.

Hamilton County Court of Appeals 09/30/16
In re Damian M.
E2015-02353-COA-R3-JV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge John B. Bennett

This is a dependency and neglect action involving the respondent mother’s two minor children, ages five and six at the time the incident giving rise to this action occurred. After it was discovered that the older child suffered, inter alia, a liver laceration as a result of physical abuse, the Hamilton County Juvenile Court determined that both children were dependent and neglected in the care of their mother. The juvenile court also determined that the older child was a victim of severe child abuse. The mother perfected a de novo appeal to the Circuit Court for Hamilton County. The circuit court likewise found, by clear and convincing evidence, that the children were dependent and neglected and that the mother committed severe child abuse against the older child. The mother appeals the circuit court’s finding of severe child abuse. We have determined that the evidence clearly and convincingly supports the circuit court’s findings that the children are dependent and neglected, and that the mother severely abused the older child. Thus, we affirm.

Hamilton County Court of Appeals 09/30/16
James A. Long, et al v. Charles D. Ledford, et al.
E2016-00451-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: James E. Lauderback

In this bench trial following a de novo appeal from the general sessions court, the trial court awarded Appellees a judgment of $2,308.28 representing the principal and interest due on a promissory note. Appellants raise several issues concerning the general sessions court proceeding as errors on appeal. Discerning no error, we affirm.

Unicoi County Court of Appeals 09/30/16
In re Makenzie P., et al.
W2016-00400-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor James R. Newsom

This appeal arises from the termination of a mother's parental rights to her two children. The Department of Children's Services (“DCS”) removed the children from the mother's home due to drug exposure. After finding the children dependent and neglected, a juvenile court awarded custody of the children to mother's parents. The mother's parents then contracted with a nonprofit organization to place the children with a host family while the mother sought treatment for her drug use. Time passed, and the children ultimately spent time with several host families, including, finally, potential adoptive parents. When the health of mother's parents precluded them from retaining custody, mother, mother's parents, and the potential adoptive parents requested that the juvenile court award custody to the potential adoptive parents. The juvenile court granted the request, and several months later the potential adoptive parents filed a petition in chancery court to terminate mother's parental rights and to adopt. Following a trial, the chancery court found clear and convincing evidence of one ground for termination of parental rights and that termination was in the children's best interest. On appeal, Mother asserts a violation of due process because she was unrepresented in the dependency and neglect proceedings after her parents were awarded custody of the children. We affirm the termination of parental rights.

Shelby County Court of Appeals 09/30/16
In re Scott H.
W2016-00070-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Special Judge David S. Walker

This is a termination of parental rights case involving a ten-year-old child, Scott H. (“the Child”). On August 8, 2011, the Shelby County Juvenile Court (“trial court”) granted temporary legal custody of the Child to the Tennessee Department of Children's Services (“DCS”). The Child was immediately placed in foster care, where he has remained since that date. DCS subsequently filed a petition to terminate the parental rights of the Child's mother, Jill H. (“Mother”), and his father, William H. (“Father”), on April 17, 2015.1 Following a bench trial, the trial court terminated Mother's parental rights to the Child after determining by clear and convincing evidence that (1) Mother failed to substantially comply with the requirements of the permanency plans, (2) the conditions that led to the removal of the Child from Mother's custody still persisted, and (3) Mother was mentally incompetent to adequately care for the Child. The trial court further found by clear and convincing evidence that termination of Mother's parental rights was in the best interest of the Child. Mother has appealed. Discerning no error, we affirm.

Shelby County Court of Appeals 09/30/16
James A. Long, et al. v. Charles D. Ledford, et al
E2015-02440-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jean A. Stanley

James A. Long and Patricia Long (“Plaintiffs”) sued Charles D. Ledford and Vivian Ledford (“Defendants”) with regard to a promissory note. After a trial, the Circuit Court for Unicoi County (“the Trial Court”) entered a Final Order granting Plaintiffs a judgment against Defendants for $21,296.01. Defendants appeal to this Court. The record on appeal contains no transcript and no statement of the evidence. We must assume that the record had it been preserved would contain sufficient evidence to support the Trial Court‟s factual findings. We, therefore, affirm

Unicoi County Court of Appeals 09/30/16
In re Quadayvon H., et al.
E2016-00445-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Timothy E. Irwin

This appeal involves the termination of a father’s parental rights to two of his children. The children’s mother’s rights were previously terminated. In 2010, the older child was adjudicated dependent and neglected due to his mother’s drug use; the father was incarcerated at the time. In 2012, both children were adjudicated dependent and neglected and removed from their mother’s home after an altercation involving the father and another child resulted in father’s arrest and mother’s arrest for drug use. In 2015, the Tennessee Department of Children’s Services filed a petition seeking to terminate the father’s parental rights on the statutory grounds of persistence of conditions and mental incompetence. The juvenile court found that both grounds were proved by clear and convincing evidence and also found by clear and convincing evidence that termination of the father’s rights was in the children’s best interests. The father appeals. We reverse.

Knox County Court of Appeals 09/30/16
In re Adrianna S.
M2015-02514-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Timothy R. Brock

Father appeals the termination of his parental rights. In 2011, Father was sentenced to serve concurrent fifteen-year and four-year prison sentences. Thereafter, the Department of Children’s Services filed a petition to terminate Father’s parental rights under Tenn. Code Ann. § 36-1-113(g)(6), which provides grounds for termination when the parent is imprisoned under a sentence of ten or more years and “the child is under eight (8) years of age at the time the sentence is entered by the court.” Father argued that this statute does not provide grounds for termination in this case because the child was not born at the time of Father’s sentencing; therefore, the statutory requirement that there be a “child” under the age of eight at the time of the parent’s sentencing has not been met. The juvenile court determined that the statutory language includes a child in utero at the time of the parent’s sentencing and the evidence clearly and convincingly established grounds for terminating Father’s parental rights. The juvenile court also determined that termination of Father’s parental rights is in the best interests of the child. After review, we affirm the holding of the juvenile court.

Coffee County Court of Appeals 09/29/16
George Campbell, Jr. v. Tennessee Department of Correction, et al.
M2015-01674-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Carol L. McCoy

This is a prisoner complaint filed under the Tennessee Governmental Tort Liability Act (TGTLA) against the Tennessee Department of Correction, the Commissioner of Correction, Corrections Corporation of America, the correctional facility where the prisoner was housed, and several prison employees, seeking arrearages for unpaid wages, as well as punitive and compensatory damages.  The complaint was filed in the Chancery Court of Davidson County. The trial court dismissed the prisoner’s complaint because it lacked subject matter jurisdiction to hear the case.  The prisoner now appeals.  Discerning no error, we affirm.

Davidson County Court of Appeals 09/29/16
Dallas K. Hurley, Jr. v. Ryan B. Pickens, M.D., et al
E2015-02089-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge William T. Ailor

Dallas K. Hurley, Jr. (“Plaintiff”) sued Ryan B. Pickens, M.D. and University Urology, P.C. (“Defendants”) alleging claims for health care liability. Defendants filed a motion to dismiss. While the motion to dismiss was pending, Plaintiff filed a notice of and motion for voluntary dismissal pursuant to Tenn. R. Civ. P. 41. The Circuit Court for Knox County (“the Trial Court”) granted Plaintiff a voluntary dismissal without prejudice. Defendants appeal to this Court raising issues regarding whether Plaintiff had the right to take a voluntary dismissal without prejudice when a motion to dismiss was pending and whether Plaintiff failed to comply with Tenn. Code Ann. § 29-26-122 requiring dismissal of Plaintiff’s suit with prejudice. We find and hold that Plaintiff had the right to take a voluntary dismissal even while a motion to dismiss was pending. Our resolution of this issue renders Defendants’ second issue moot. We, therefore, affirm the Trial Court’s order granting Plaintiff a voluntary dismissal.

Knox County Court of Appeals 09/29/16