Court of Appeals Opinions

Format: 09/01/2015
Format: 09/01/2015
In re Estate of Mary Pauline Stumpe Schorn
E2013-02245-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor William Everett Lantrip
This is an estate case before this court a second time. The decedent’s eldest son was named the personal representative of his mother’s estate. Two siblings, citing accounting irregularities and other issues, eventually sought their brother’s removal from the personal representative position. The trial court agreed with the siblings and named a substitute personal representative. The initial personal representative appeals. Discerning no error, we affirm.
 
Anderson County Court of Appeals 04/17/15
Thomas Wenzler, Sr. v. Shelby County, Tennessee, et al.
W2014-01097-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Arnold B. Goldin

This case involves judicial review of a decision of the Shelby County Civil Service Merit Board. The appellee was terminated from his employment with the Shelby County government due to an alleged violation of a conflict of interest policy. After a two-day hearing, the Civil Service Merit Board upheld the employee‟s termination. The employee sought judicial review in chancery court. After reviewing the record, the chancellor found no substantial and material evidence to support the termination of the employee and ordered him reinstated with backpay and benefits. The County appeals. Discerning no error, we affirm the decision of the chancery court.

Shelby County Court of Appeals 04/16/15
Terry Pritchett v. Comas Montgomery Realty & Auction Company, Inc. et al
M2014-00583-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robert E. Corlew,III

Plaintiff purchased a commercial building at auction. After determining that the building was smaller than represented in the auction advertisements, Plaintiff filed suit asserting a claim against the auction company for negligently misrepresenting the square footage of the building. Defendant admits the advertisement incorrectly stated the square footage but insists it is not liable because, prior to the auction, Plaintiff signed a “Terms of Sale” agreement stating that Plaintiff “shall rely entirely on [his] own inspection and information,” and that “[e]verything will be sold ‘AS IS, WHERE IS’, with no guarantee of any kind, regardless of statement or condition made from the auctioneer,” and the same terms were restated immediately prior to the commencement of bidding. Defendant further relies on the contract of sale, which included the “as is” clause and did not contain a representation concerning the square footage of the building. After engaging in discovery, Defendant filed a motion for summary judgment, arguing that Plaintiff could not have justifiably relied on the representations in light of the “as is” disclaimers he signed and heard, and that Plaintiff failed to establish the applicable standard of care. The trial court granted summary judgment for Defendant, which Plaintiff contends was error. We have determined that Plaintiff’s agreement to rely entirely on his own inspection and information and to purchase the property on an “as is” basis negates any reliance on Defendant’s representation, which is an essential element of a claim for negligent misrepresentation. Therefore, we affirm the grant of summary judgment in favor of Defendant.

Rutherford County Court of Appeals 04/15/15
Terry Pritchett v. Comas Montgomery Realty & Auction Company, Inc. et al
M2014-00583-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robert E. Corlew,III

Plaintiff purchased a commercial building at auction. After determining that the building was smaller than represented in the auction advertisements, Plaintiff filed suit asserting a claim against the auction company for negligently misrepresenting the square footage of the building. Defendant admits the advertisement incorrectly stated the square footage but insists it is not liable because, prior to the auction, Plaintiff signed a “Terms of Sale” agreement stating that Plaintiff “shall rely entirely on [his] own inspection and information,” and that “[e]verything will be sold ‘AS IS, WHERE IS’, with no guarantee of any kind, regardless of statement or condition made from the auctioneer,” and the same terms were restated immediately prior to the commencement of bidding. Defendant further relies on the contract of sale, which included the “as is” clause and did not contain a representation concerning the square footage of the building. After engaging in discovery, Defendant filed a motion for summary judgment, arguing that Plaintiff could not have justifiably relied on the representations in light of the “as is” disclaimers he signed and heard, and that Plaintiff failed to establish the applicable standard of care. The trial court granted summary judgment for Defendant, which Plaintiff contends was error. We have determined that Plaintiff’s agreement to rely entirely on his own inspection and information and to purchase the property on an “as is” basis negates any reliance on Defendant’s representation, which is an essential element of a claim for negligent misrepresentation. Therefore, we affirm the grant of summary judgment in favor of Defendant.

Rutherford County Court of Appeals 04/15/15
Christy L. Griffith v. Glen H. Griffith
E2014-00892-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jerri S. Bryant

This divorce case involves issues of property classification, valuation, and division. The parties were married for fifteen years, with one child born of the marriage. At the time the parties married, the husband owned an interest in his family's motorcycle dealership. The husband inherited remaining interests in that dealership from his parents during the marriage. At trial, the court found that the dealership was a separately owned asset that became marital property by reason of transmutation. The trial court also made determinations regarding the value of the dealership and the real property upon which it operates. Following these determinations, the trial court rendered what it considered to be an equitable division of the parties' marital assets. Husband has appealed. Because we determine the trial court's classification and valuation of the dealership to be in error, as well as the valuation of the business-related real property, we further determine the overall distribution of marital assets to be in error. We vacate the trial court's judgment with regard to those issues and remand for further proceedings. The balance of the trial court's judgment is affirmed.

Bradley County Court of Appeals 04/14/15
In re Alexis B.
E2014-00943-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Larry Michael Warner

This is a termination of parental rights case, focusing on Alexis B., the minor child (“the Child”) of Katie R. (“Mother”) and Johnny R.B. (“Father”). On August 26, 2013, the Child's paternal grandparents, Johnny B. and Deborah B. (“Grandparents”), filed a petition to terminate the parental rights of both parents and adopt the Child. Father subsequently agreed to surrender his parental rights to the Child, and he is not a party to this appeal. Following a bench trial, the trial court found that grounds existed to terminate the parental rights of Mother upon its finding, by clear and convincing evidence, that Mother had abandoned the Child by willfully failing to provide financial support and willfully failing to visit the Child in the four months preceding the filing of the petition. The court further found, by clear and convincing evidence, that termination of Mother's parental rights was in the Child's best interest. Mother has appealed. Having concluded that the evidence preponderates against a finding that Mother had the ability to financially support the Child during the determinative period, we reverse the trial court's finding that Mother abandoned the Child by willfully failing to provide support. We affirm the trial court's judgment in all other respects, including the termination of Mother's parental rights.

Cumberland County Court of Appeals 04/14/15
Colette Suzanne Turman v. Fred Turman
W2014-01297-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Carma Dennis McGee

The trial court referred this divorce case to a Special Master, indicating that the issues to be decided by the Special Master would be determined by the parties. The Special Master limited her consideration to the valuation of the parties’ property. The trial court subsequently entered an order purporting to resolve all the remaining issues in the case. However, the trial court failed to make specific findings of fact and conclusions of law in its written order. Accordingly, we vacate and remand for further proceedings.

Henry County Court of Appeals 04/14/15
A.C. Odom v. J.B. Odom
E2014-01049-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jacqueline S. Bolton

This appeal arises from a petition to terminate alimony. A.C. Odom (“Husband”) filed a petition to terminate his alimony obligation to his ex-wife J.B. Odom (“Wife”) in the Circuit Court for Hamilton County (“the Trial Court”).1 Husband’s petition was based on his retirement from his career as an orthopedic surgeon. The Trial Court found that there had not been a substantial or material change in circumstances and denied Husband’s petition to terminate alimony. Husband appealed to this Court. We find and hold that Husband’s retirement was objectively reasonable, that it constitutes a substantial and material change in circumstances, that Wife is no longer economically disadvantaged relative to Husband, and Husband’s alimony obligation to Wife is terminated henceforth. We reverse the judgment of the Trial Court.

Hamilton County Court of Appeals 04/14/15
In Re E.G.H. et al.
E2014-01146-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Michael W. Moyers

S.J. (Mother) challenges the order terminating her parental rights to her minor children, E.G.H. and E.W.H. (collectively, the Children). The Children were removed from Mother’s custody as a result of (1) Mother’s drug use during pregnancy as well as (2) domestic violence in the home. In 2009, a year after the Children came into state custody, they were placed in the custody of an uncle, V.E.E. (Uncle), and his wife, J.G.E. (Aunt) (collectively, Petitioners). In 2012, Petitioners filed a petition seeking termination of the biological parents’ rights and the adoption of the Children. Following a trial, the court found, by clear and convincing evidence, that Mother abandoned the Children by willfully failing to visit them. By the same evidentiary standard, the court determined that termination is in the Children’s best interest. On this appeal, Mother challenges the sufficiency of the evidence proffered to establish a ground for termination and the trial court’s best interest decision. We affirm.

Knox County Court of Appeals 04/14/15
Johnny L. Smith, et al. v. Metropolitan Government of Nashville and Davidson County
M2014-01325-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Thomas W. Brothers

The plaintiffs sued the Metropolitan Government, claiming that prior citations that had  been issued to them and paid by them were issued without authority and handled by the general sessions court without jurisdiction.  The trial court granted summary judgment in favor of the government.  The plaintiffs appealed, and we affirm. 

Davidson County Court of Appeals 04/13/15
Fairy Berry v. City of Memphis
W2014-01236-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Karen R. Williams

This appeal arises from the trial court’s award of damages stemming from an automobile accident. In 2003, plaintiff was injured when her vehicle was struck by a Memphis Police Department officer’s car in an intersection. After a non-jury trial, the trial court awarded plaintiff damages for pain and suffering and loss of enjoyment of life. The City of Memphis appeals these damages, arguing (1) plaintiff’s expert non-treating physician was not qualified to opine as to emergency room treatment or costs; (2) plaintiff should not recover for her failure to mitigate her damages by exacerbating her injury; and (3) plaintiff’s testimony wherein she explains her ongoing pain did not warrant the amount of damages she was awarded. Discerning no error, we affirm.

Shelby County Court of Appeals 04/13/15
In Re Jarett M.
W2014-01995-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Tony A. Childress

This is a parental termination case. Father appeals the trial court’s termination of his parental rights with regard to the minor child at issue. The trial court terminated Father’s parental rights based on its finding, by clear and convincing evidence, that Father abandoned the child by willful failure to visit and willful failure to support the child. The trial court further found, by clear and convincing evidence, that termination was in the best interests of the child. We affirm.

Dyer County Court of Appeals 04/13/15
In Re Jordin M.
M2013-02275-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Donna Scott Davenport

In this juvenile court case, Father filed a petition to modify the parenting plan to make him the primary residential parent. At the beginning of the hearing, the parties stipulated that there had been a material change of circumstances. We have concluded that the evidence does not preponderate against the trial court’s determination that it was in the child’s best interest for Mother to be the primary residential parent.

Rutherford County Court of Appeals 04/09/15
Kenneth Marino v. Board of Administration City of Memphis Retirement System
W2015-00069-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Oscar C. Carr, III

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

Shelby County Court of Appeals 04/09/15
John Holmes Peacher-Ryan, et al. v. Heirs At Law of Ruth James Gaylor, et al.
W2013-02801-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kathleen N. Gomes

This is an appeal of the trial court’s adoption of a special master’s report. The trial court referred the case to the special master for determination of the proper heirs of a residuary trust. Because the procedure in the trial court failed to comply with the requirements of Tennessee Rule of Civil Procedure 53, we vacate and remand.

Shelby County Court of Appeals 04/09/15
In Re: Destin R.
M2013-02156-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge John T. Gwin

In this grandparent visitation case the mother of the child appeals the grant of the petition to establish grandparent visitation privileges. We vacate the judgment and remand the case for entry of an order in compliance with Tenn. Rule Civ. P. 52.01.

Wilson County Court of Appeals 04/08/15
In Re Tennessee Walking Horse Forfeiture Litigation
W2013-02804-COA-R3-CV
Authoring Judge: Special Judge Robert L. Childers
Trial Court Judge: Judge J. Weber McCraw

This case arises out of an appeal by the State of Tennessee, from an Order dismissing a Complaint for Judicial Forfeiture. The trial court granted Appellees’, the purported owners of two Tennessee Walking Horses, motion to dismiss for failure to comply with Tennessee Code Annotated Sections 39-14-210(f) and 39-11-707(c). We vacate and remand.

Fayette County Court of Appeals 04/08/15
Town of Collierville, et al. v. Town of Collierville Board of Zoning, et al.
W2013-02752-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Walter L. Evans

The Town of Collierville, Tennessee, passed an ordinance prohibiting the construction of new billboards. The Town, through its Development Department, asserted that two billboards erected prior to the passage of the ordinance were illegal and ordered that they be removed. The owner of the billboards appealed the removal order to the Board of Zoning Appeals, which did not affirm the order. The Town and the Development Department petitioned for writ of certiorari, seeking judicial review of the decision of the Board of Zoning Appeals. The Shelby County Chancery Court dismissed the petition for lack of standing. We conclude that the Town and the Development Department have standing. Therefore, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion.

Shelby County Court of Appeals 04/07/15
Michael Morgan v. Superior Catering Services, et al.
E2014-00005-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancelor W. Frank Brown

The underlying claim in this appeal concerns age discrimination. The action was filed initially against a single defendant. Three additional defendants were later added, but the plaintiff served process for them on the attorney for the initial defendant, instead of the individual defendants, a fact about which the added defendants learned only a few days prior to the trial. The trial ensued after the court refused to grant a continuance. A jury found all the defendants liable. The trial court awarded the plaintiff $70,000. The defendants collectively filed a motion for a new trial and raised the issues of insufficient service and the inadmissibility of direct evidence. In its first order, the trial court granted the defendants' motion for a new trial. The plaintiff thereafter filed a motion to alter or amend, after which the court reversed its prior ruling granting the new trial and reinstated the jury verdict. The defendants appeal. We reverse.

Hamilton County Court of Appeals 04/07/15
Charles Walker v. Bank of America, N. A. et al
M2014-00672-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joseph P. Binkley, Jr.


Plaintiff submitted the winning bid for the purchase of improved real property from Defendant Bank at auction. Plaintiff and Bank executed a purchase agreement and Plaintiff paid earnest money. Before the scheduled closing date, Bank informed Plaintiff that it did not own part of the real property advertised for auction. It offered to sell Plaintiff the unimproved parcel for the contract amount or to terminate the contract. After Plaintiff informed Bank’s closing agent that he intended to close on the entire parcel as advertised for auction, Bank returned Plaintiff’s earnest money and terminated the contract. Plaintiff filed an action alleging intentional misrepresentation, negligent misrepresentation, and violation of the Tennessee Consumer Protection Act against Bank and the auction company. The trial court granted Bank’s motion to dismiss and granted the auction company’s motion for a judgment on the pleadings. We affirm the decision of the trial court and remand.

Davidson County Court of Appeals 04/06/15
Jay Daniel, et al. v. Allstate Insurance Company
W2014-01965-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Joe H. Walker, III

This is an appeal from the trial court’s grant of summary judgment in an action on a homeowner’s insurance policy that contained a one-year contractual limitations period on actions arising under the policy. The home of the insured parties was damaged by a fire on December 15, 2011. The insured parties submitted a claim with the insurer pursuant to their homeowner’s insurance policy. The insurer submitted an estimate and tendered a settlement check to the insured parties on April 2, 2012. Over a year later, on October 3, 2013, the insured parties filed suit alleging they were owed an additional $75,000 for personal use and construction improvements on a new home. The trial court granted summary judgment in favor of the insurer, finding that the insured parties’ claims were barred by the one-year contractual limitations period. After reviewing the record, we find no error in the trial court’s decision and affirm its grant of summary judgment.

Tipton County Court of Appeals 04/06/15
In Re Neveah W.
W2014-01531-COA-R10-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Kenny W. Armstrong

This extraordinary appeal arises from the trial court’s placement of a minor child while the minor child remains in the legal custody of the Tennessee Department of Children’s Services (“DCS”). The minor child was removed by DCS from the home of her Foster Parents, who had cared for her almost since birth, after allegations that the Foster Parents had abused one of their other children. The minor child’s guardian ad litem filed an emergency petition seeking the return of the child to the Foster Parents’ home, or alternatively, for an award of legal custody to the Foster Parents. After a hearing wherein DCS, the Foster Parents, and the GAL presented evidence, the trial court ordered that the child be returned to the Foster Parents’ home, but declined to remove the child from DCS’s legal custody. On appeal, we hold that a trial court may not direct placement of a child in the legal custody of DCS. We reverse the ruling of the trial court and remand for further proceedings.

Shelby County Court of Appeals 04/02/15
Clifford Swearengen v. DMC-Memphis, Inc., et al.
W2014-00724-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John R. McCarroll

This is an appeal from the trial court’s grant of a motion to dismiss Appellant’s medical malpractice action against defendants named in Appellant’s amended complaint filed more than one year after the cause of action accrued. The trial court found that Appellant’s claims against the additional parties were time barred because the amended complaint adding these parties was not filed within ninety days of the original answer asserting comparative fault against non-parties. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 04/02/15
Michael Adler v. Double Eagle Properties Holdings, LLC, et al.
W2014-01080-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Arnold B. Goldin

This case concerns the proper interpretation of a contract governing an interest in real property. The trial court concluded that the contract unambiguously granted a lease to one party, rather than an easement. Affirmed and remanded.

Shelby County Court of Appeals 04/02/15
Brooks Monypeny, et al. v. Chamroeun Kheiv
W2014-00656-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jerry Stokes

This is an appeal from a judgment entered on a jury verdict. The case arises from a motor vehicle accident. Appellant State Farm defended the case as the original plaintiffs’ uninsured motorist carrier. The original plaintiffs subsequently died, one as a direct result of injuries sustained in the accident, the other some two years after the accident. The plaintiffs’ children were substituted as plaintiffs/appellees. State Farm appeals the judgment on the jury verdict on numerous grounds, including: (1) denial of its motion for directed verdict; (2) scope of cross-examination; (3) denial of its motion for mistrial based upon inappropriate closing argument; (4) exclusion of notations on medical records; (5) various acts of alleged wrongdoing on the part of Appellees’ attorneys; (6) jury instructions; (7) admission of medical bills for original plaintiff’s long term assisted living expenses; (8) excessive verdict; (9) incorrect application of statutory cap on non-economic damages; (10) denial of credit for medical and death payments made by State Farm under the insurance policy; and (11) award of discretionary costs. Because there is material evidence to support the jury’s verdict, and because the trial court did not abuse its discretion, we affirm and remand.

Shelby County Court of Appeals 04/01/15