Court of Appeals Opinions

Format: 10/30/2014
Format: 10/30/2014
Mike Locke and Cvan Avian v. The Estate of David Rose
M2012-02508-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge David Randall Kennedy

After the death of David Rose, his two putative non-marital sons became involved in three separate lawsuits related to the proper distribution of his property. When Mr. Rose’s Executrix filed to probate his Will in solemn form, the putative sons, who were named residuary beneficiaries, objected, but later withdrew their objection. They then filed suit to set aside a 2006 Trust Agreement in order to reinstate prior trusts, the assets of which were to be distributed to Mr. Rose’s issue at his death. They also filed a separate lawsuit to establish Mr. Rose as their biological father. Their attempts to obtain some of their father’s assets were all unsuccessful. In all three cases, the trial court held that they were barred from establishing a father-son relationship because their attempts were time barred. We affirm the trial court’s dismissal of the sons’ petition to establish paternity filed in the probate case two years after the order admitting the will to probate. However, we reverse the trial court’s dismissal of the petitioners’ complaint challenging the validity of the 2006 Trust Agreement because they have standing to attempt to establish that they are “issue” of Mr. Rose. The deadline imposed by the trial court applied only “for purposes of intestate succession,” and the trust case did not involve inheritance through the statute regarding heirs of a person dying without a will. Mr. Rose had a will, which was probated. Any assets to be distributed to Mr. Locke and Mr. Avian from the preexisting trust(s) would be pursuant to the terms of the trust document(s), not pursuant to intestate succession. For the purpose of establishing their interest in the prior trust(s), the purported children were entitled to present proof that they were the children of Mr. Rose and were not time barred.

Davidson County Court of Appeals 06/30/14
Brittany Evans, by and through her attorney-in-fact, Mary Evans, her natural mother, v. Jennifer Williams, et al.
W2013-02051-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge R. Lee Moore, Jr.

This is a health care liability action appeal. The case was tried before a jury, resulting in a judgment for the defendant physicians. The trial court excluded the testimony of one of the plaintiff’s expert witnesses on the applicable standard of care after finding that he was not qualified under the locality rule. The plaintiff appealed to this Court arguing, among other things, that the trial court erred in its application of the locality rule. We hold that it was error for the trial court to exclude the witness, but find that any error was harmless under the facts of this case. We therefore affirm.

Gibson County Court of Appeals 06/30/14
In re: Kiara C.
E2013-02066-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson
Trial Court Judge: Judge Telford E. Forgety, Jr.

This is a termination of parental rights case, focusing on Kiara C., the minor child (“Child”) of Mark C. (“Father”) and Pamela B. (“Mother”). On April 9, 2012, Mother and Mother’s husband, Richard B. (“Stepfather”), filed a petition for termination of Father’s parental rights and adoption of the Child by Stepfather. Following a bench trial, the trial court granted the petition for termination upon its finding, by clear and convincing evidence, that Father had abandoned the Child by willfully failing to visit her and willfully failing to provide financial support in the four months preceding the filing of the petition. The court further found, by clear and convincing evidence, that termination of Father’s parental rights was in the Child’s best interest. Father has appealed. We affirm.

Blount County Court of Appeals 06/30/14
Capital Bank v. Oscar Brock, et al.
E2013-01140-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jeffrey M. Atherton

Capital Bank filed a complaint seeking a deficiency judgment against Oscar Brock and Frank E. Cowden, III (“Defendants”) after they defaulted on a loan and following the sale at foreclosure of the property securing the debt. After settlement discussions were unsuccessful, Capital Bank moved for summary judgment. It asserted that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. Defendants contested the motion but only as to the amount of the deficiency and the issue of whether Capital Bank is entitled to an award of attorney’s fees. As a defense to the deficiency claim, Defendants stated that the property was sold at foreclosure for an amount “materially less” than its fair market value and that Capital Bank’s knowledge of the alleged less-than- arketvalue sales price amounted to fraud, collusion or misconduct. The trial court granted Capital Bank’s motion. It was awarded a judgment of $168,798.98 which amount includes 70,628.85 in attorney’s fees. Defendants appeal.  We affirm.

Hamilton County Court of Appeals 06/30/14
Steven Barrick and Janice Barrick v. State Farm Mutual Automobile Insurance Company and Thomas Harry Jones
M2013-01773-COA-R3-CV
Authoring Judge: Senior Judge Don R. Ash
Trial Court Judge: Judge Derek Smith

This appeal arises from a trial court’s judgment granting State Farm Mutual Automobile Insurance Company (“State Farm”) and Agent Thomas Harry Jones’ motion for summary judgment and dismissing the Barricks’ action for negligence and violation of the Tennessee Consumer Protection Act. The Barricks held automobile insurance coverage through State Farm, with Thomas Jones as their agent, from 1985 until 2009, and their coverage limits remained the same throughout this period. The Barricks sued, claiming State Farm and Jones had a duty of care to advise the Barricks of their need for increased coverage. The Barricks now appeal, arguing the trial court erred in dismissing their claims. We affirm the trial court’s decision to grant summary judgment regarding the negligence claim. We reverse the trial court’s judgment based on the assumption of duty, which the trial court did not directly address, and the Tennessee Consumer Protection Act claims, since State Farm and Mr. Jones cannot meet their burden under Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 5 (Tenn. 2008), in these claims. We also reverse the trial court’s summary judgment in favor of State Farm for vicarious liability and failure to supervise in regard to the alleged assumption of duty by the agent.

Williamson County Court of Appeals 06/27/14
William H. Thomas, Jr. v. Tennessee Department of Transportation
M2013-01780-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Carol L. McCoy

This appeal arises from a petition for judicial review of the Tennessee Department of Transportation’s decision to deny the petitioner’s applications for billboard permits. Discerning no error, we affirm the chancery court’s decision upholding the Department’s denial.

Davidson County Court of Appeals 06/27/14
In Re Harli B.
M2013-02141-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Special Judge Nathan T. Brown

Father appeals the modification of the primary residential plan and specifically the designation of Mother as the primary residential parent of the parties’five-year-old daughter. In 2010, Father was designated as the primary residential parent of their two-year old child and the parents were awarded equal and shared parenting time based on an alternating weekly schedule. Over the next two years, the employment and marital status of each parent changed and Mother had three additional children. Based on these changes, Mother filed a petition in July 2012 to modify the primary residential plan requesting that she be designated as the primary residential parent. Finding, inter alia, that Mother was no longer employed, that she worked in the home caring for the parties’ child as well as her three younger children who were born after the initial plan went into effect, and that she had been acting as the de facto primary residential parent, the court granted Mother’s petition and designated her as the primary residential parent. We affirm.

Dickson County Court of Appeals 06/27/14
James E. Whalen, et al v. Quint Bourgeois
E2013-01703-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Frank V. Williams, III

This action arose over the sale of improved real property (“the Property”), consisting of approximately twenty-five acres located in Morgan County, Tennessee. Co-plaintiffs, James E. and Karen M. Whalen, entered into an agreement to purchase the Property from the defendant, Quint Bourgeois. The Whalens subsequently entered into an agreement with coplaintiffs, Alan and Kathleen Bone, to borrow the purchase price of the Property in return for an executed promissory note, secured by a deed of trust. The parties closed the purchase and sale of the Property on January 19, 2012, at the Roane County office of US Title of Tennessee, Inc. (“US Title”). On January 20, 2012, Mr. Bourgeois, upset that he had not received $900.00 in rent he believed the Whalens owed him, returned to the US Title office and convinced staff there to accept his uncashed check from the sale and give him the unrecorded deed. The plaintiffs filed this action against Mr. Bourgeois, ultimately amending their complaint to allege breach of contract, breach of the duty of good faith and fair dealing, and intentional interference with contractual relations. Following a bench 1 trial, the trial court found that Mr. Bourgeois had committed the tort of intentional interference with the
contractual relationship between the Whalens and the Bones. The court further found that because the purchase and sales contract between the plaintiffs and Mr. Bourgeois had been completed at closing, Mr. Bourgeois did not breach that contract but did intentionally commit egregious acts by, inter alia, demanding the deed from the title company. The court awarded the Whalens $110,000.00 in compensatory damages, $14,736.99 in prejudgment interest, and $55,000.00 in punitive damages. The court awarded the Bones $76,733.50 in compensatory damages and $40,000.00 in punitive damages.

Morgan County Court of Appeals 06/27/14
George Hutsell v. Jeff Kenley D/B/A Trademark Investments
E2013-01837-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Thomas J. Wright

This case presents issues regarding the propriety of the trial court’s rulings on evidentiary issues as well as a motion for directed verdict. The plaintiff sustained damages when his personalty, which was stored in a warehouse owned by the defendant, was subjected to water damage after the roof of the warehouse collapsed. The plaintiff filed the instant action seeking compensatory damages for the value of his damaged property. Prior to trial, the trial court ruled that the plaintiff could present evidence that the defendant also filed a claim with respect to his own damaged property stored in the warehouse. The trial court ruled, however, that the defendant would not be allowed to present evidence regarding the profitability of the plaintiff’s business. During the three-day trial, the defendant made a motion for directed verdict that was denied by the trial court. Following deliberations, the jury returned a verdict, finding the defendant to be 100% liable for the plaintiff’s loss and awarding damages to the plaintiff of $325,000. The defendant filed a renewed motion for directed verdict, a motion for new trial, and a motion for remittitur. All of the post-trial motions were denied by the trial court. The defendant appeals. Having determined that the trial court committed reversible error by allowing the plaintiff to present prejudicial evidence regarding the defendant’s own claim for damages, we vacate the jury’s award and remand for a new trial.

Hamblen County Court of Appeals 06/27/14
Dereck Cruz Legens v. Bobby Lecornu, et al. - Concurring Opinion
W2013-01800-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge William Michael Maloan

I concur fully with the result reached in this case and agree with virtually all of the analysis. I write separately only to draw out and emphasize a couple of issues.

Obion County Court of Appeals 06/26/14
Howard L. Boyd v. Amanda Mandy Wachtler, et al.
M2013-01545-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Thomas W. Brothers

The jury found that Defendants were liable for damages arising from breach of contract and that Plaintiff was liable for damages arising from negligence. It also found that Defendants were entitled to treble damages under Tennessee Code Annotated § 62-2-503. Plaintiff appeals. Finding material evidence to support the jury verdict, we affirm.

Davidson County Court of Appeals 06/26/14
Avalon Sections, 4.6 and 7 Homeowners Association v. Dilip Chaudhuri, et al.
M2013-02346-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Robbie T. Beal

Homeowners association brought declaratory judgment action against homeowners to enforce the development’s restrictive covenants. The trial court determined that the homeowners association’s architectural review committee (“ARC”) acted within its discretion in ordering homeowners to remove improvements the ARC found to be inconsistent with other homes in the neighborhood. We affirm.

Williamson County Court of Appeals 06/26/14
Diana Roberts, et al. v. Sue Prill, M.D., et al.
E2013-02202-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John S. McLellan, III

This is a health care liability action arising from the death of Decedent. Defendants moved to dismiss the action for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a)(2)(E). The trial court agreed and dismissed the action without prejudice. Plaintiff appeals the dismissal to this court. We affirm the trial court’s dismissal.

Sullivan County Court of Appeals 06/26/14