Court of Appeals Opinions

Format: 10/21/2017
Format: 10/21/2017
James Ryan Skelton v. Jenna Marie Skelton
M2015-01426-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Joseph Woodruff

A father and mother moved to modify a permanent parenting plan in which they were each named primary residential parent. Both parents alleged, for different reasons, that a material change in circumstance had occurred sufficient to modify custody. After a hearing, the court determined a material change in circumstance had occurred and that modification of the current joint custody arrangement was in the child’s best interest. The court named the father the primary residential parent and granted the mother liberal visitation. The mother appeals, arguing that the court erred in finding that her move was a material change and in dismissing her modification petition. Upon review, we conclude that the evidence does not preponderate against the chancery court’s findings, and the court did not err in dismissing Mother’s petition. Accordingly, we affirm.

Lewis County Court of Appeals 05/16/17
Wesley Finch v. O.B. Hofstetter/Anderson Trust, et al.
M2016-00562-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Russell T. Perkins

This appeal stems from a dispute over a tract of real property in Nashville.  The plaintiff, who claims to have entered into an enforceable contract for sale of the disputed tract, brought multiple claims against multiple defendants after the land was not transferred to him.  After competing cross-motions for summary judgment were filed, the trial court dismissed all of the plaintiff’s claims, finding, inter alia, that the plaintiff never entered into a valid, enforceable contract regarding the subject property.  For the reasons stated herein, we affirm and remand for further proceedings consistent with this Opinion. 

Davidson County Court of Appeals 05/16/17
In Re: Hailey K., Et Al.
E2017-00397-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Timothy E. Irwin

This is a termination of parental rights appeal. The Trial Court Judge announced a ruling from the bench at the conclusion of the final hearing below and then subsequently entered a written order vacating the oral ruling. The order vacating the oral ruling contemplates further proceedings in the Trial Court. Because there is no final written order terminating the parental rights of the appellant, Shanna K., to her children, we have no jurisdiction to consider this appeal.

Knox County Court of Appeals 05/16/17
Individual Healthcare Specialists, Inc. v. BlueCross BlueShield Of Tennessee, Inc.
M2015-02524-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

This is a breach of contract action in which the issues hinge on the meaning of several provisions in the agreement. In 1999 and again in 2009, BlueCross BlueShield of Tennessee, Inc. (“BlueCross”) and Individual Healthcare Specialists, Inc. (“IHS”) entered into a general agency agreement that authorized IHS to solicit applications for individual insurance policies through IHS’s in-house agents and outside “subagents.” The commission rates to be paid were stated in a schedule, which was subject to modification by BlueCross. During the first eleven years, BlueCross modified the commission schedule several times and each modification was prospective only. In 2011, BlueCross modified the commission schedule and, for the first time, applied the commission schedule retrospectively. At the same time, IHS determined that BlueCross had been underpaying commissions since 1999. As a consequence, it commenced this action asserting claims for, inter alia, breach of contract and damages, while also claiming it was entitled to recover its attorney’s fees based on the contract’s indemnification provision. BlueCross denied any breach of contract. It also asserted the statute of limitations defense as a bar to recovering any commissions that accrued more than six years earlier, and asserted that IHS was not entitled to recover its attorney’s fees because the indemnification provision did not apply to disputes between the contracting parties. Shortly thereafter, BlueCross terminated the general agency agreement and began paying renewal commissions directly to IHS’s subagents instead of paying them to IHS as it had done since 1999. IHS then amended its complaint to assert a claim that BlueCross also breached the agreement by failing to pay commissions directly to IHS. Following a bench trial, the court denied BlueCross’s statute of limitations defense on the ground that IHS’s claims were “inherently undiscoverable.” The court also determined that BlueCross breached the contract by underpaying commissions, by applying the 2011 commission rates for renewals to existing policies, and by failing to pay all renewal commissions to IHS after termination of the general agency agreement. As for damages, the court awarded IHS some of the damages it claimed but denied others on the ground the evidence was speculative. As for IHS’s attorney’s fees, the trial court considered parol evidence to ascertain the intent of the parties and held that the indemnification provision authorized the recovery of attorney’s fees in a dispute between the contracting parties. Accordingly, it held that IHS, as the prevailing party, was entitled to recover its attorney’s fees. Both parties appeal. We affirm the trial court in all respects but one, that being the award of attorney’s fees. We have determined the trial court erred by considering parol evidence to determine the meaning of the indemnification provision. We also find that the indemnification provision does not apply to contractual disputes between the parties. Accordingly, IHS is not entitled to recover its attorney’s fees in this action.

Davidson County Court of Appeals 05/15/17
Teresa Kocher, et al. v. Laua Bearden, et al.
W2016-02088-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Rhynette N. Hurd

This appeal involves a third-party’s attempt to intervene in this case in order to gain access to documents in the record, as the entire record was previously sealed by the trial court pursuant to an agreed order between the original parties. The trial court denied the third-party’s motion to intervene and also denied its motion to modify the order sealing the record. For the following reasons, we reverse the trial court’s denial of the motion to intervene, vacate its denial of the motion to modify the protective order sealing the record, and remand for further proceedings.

Shelby County Court of Appeals 05/15/17
Joyce Stockton, et al. v. Ford Motor Company-Partial Dissent
W2016-01175-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Roy B. Morgan, Jr.

Although I agree with the majority Opinion’s discussion of the improper jury instructions given by the trial court in this case, I cannot agree with the majority’s analysis with regard to the duty owed by Ford. Because Ford’s duty is a threshold issue that must be determined prior to any consideration of the jury instructions given by the trial court, I therefore file this partial dissent.

Madison County Court of Appeals 05/12/17
Joyce Stockton, et al. v. Ford Motor Company-Concur
W2016-01175-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Roy B. Morgan, Jr.

I concur fully in the majority Opinion. I also agree with the dissent that this Court “has no authority to overrule or modify Supreme Court’s opinions.” Bloodworth v. Stuart, 428 S.W.2d 786, 789 (Tenn. 1968). I, however, disagree with the dissent regarding duty of care as the Trial Court was in fact cognizant of and adhered to our Supreme Court’s majority opinion in Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008).

Madison County Court of Appeals 05/12/17
Joyce Stockton, et al. v. Ford Motor Company
W2016-01175-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Roy B. Morgan, Jr.

This is a jury case. Automobile mechanic and his wife, Appellees, filed suit against Appellant Ford Motor Company for negligence in relation to wife’s diagnosis of mesothelioma. Appellees allege that Ford’s brake products, which contained asbestos, were unreasonably dangerous or defective such that Ford owed a duty to warn Mr. Stockton so that he, in turn, could protect his wife from exposure to air-borne asbestos fibers. The jury returned a verdict against Ford for $3.4 million. Ford appeals. Because the jury verdict form is defective, in that it omits two necessary questions in products liability cases, i.e., that the product at issue was unreasonably dangerous or defective and that the plaintiff’s injuries were reasonably foreseeable, we vacate the judgment and remand.

Madison County Court of Appeals 05/12/17
Wondimu Borena v. Jason Jacocks, et al.
M2016-00449-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Thomas W. Brothers

This is a mechanic’s lien case. Appellee/auto repair shop agreed to repair Appellant’s vehicle for $5,267.30. Appellant paid this amount, but Appellee raised the estimate to $9,489.30. Appellant did not pay the additional costs. Under a purported mechanic’s lien, Tennessee Code Annotated Section 66-19-103, Appellee sold Appellant’s vehicle for $4,500.00. Appellant filed a complaint, seeking damages for conversion and for violation of the Tennessee Consumer Protection Act. The trial court dismissed Appellant’s Tennessee Consumer Protection Act claim. Concerning the conversion claim, the trial court held that Appellee did not have a valid mechanic’s lien and had converted the property. The trial court awarded $10,000.00 in damages to Appellant. Appellant appeals, arguing that the damage award is insufficient. Discerning no error, we affirm.

Davidson County Court of Appeals 05/12/17
J. Alexander's Holdings, LLC v. Republic Services, Inc.
M2016-01526-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Thomas W. Brothers

A Tennessee company brought an action in the Davidson County General Sessions Court against an Arizona company for breach of contract and negligence, seeking recovery for damage to plaintiff’s restaurant, which was located in Michigan. The case was dismissed on the ground of improper venue. Plaintiff appealed to the circuit court, which granted summary judgment to defendants on the basis of improper venue, lack of personal jurisdiction, and forum non conveniens. Plaintiff appeals. We reverse the holdings that the trial court lacked personal jurisdiction over the defendant and that venue was improper; we affirm the dismissal on the ground of forum non conveniens and vacate the denial of the motion to amend the complaint.

Davidson County Court of Appeals 05/12/17
In Re Sydney B.
M2016-01236-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge L. Craig Johnson

In this termination of parental rights case, prospective adoptive parents appeal the trial court’s dismissal of their petition after finding that father did not willfully fail to pay support for the child. We reverse and remand for further proceedings.

Coffee County Court of Appeals 05/12/17
In Re: Wesley P.
W2016-02131-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor W. Michael Maloan

This is the second appeal regarding the termination of Father’s parental rights with respect to this child. On October 22, 2014, the trial court entered an order terminating both Mother’s and Father’s rights to their son based on a finding of severe abuse and a determination that it was in the child’s best interest that both parents’ rights be terminated. Mother and Father appealed that determination to this Court. On May 29, 2015, this Court issued an opinion, In re Wesley P., No. W2014-02246-COA-R3-PT, 2015 WL 3430090 (Tenn. Ct. App. May 29, 2015), affirming the trial court’s finding of severe abuse but reversing the termination of parental rights on the basis that it was not in the best interest of the child to do so at that time. On January 12, 2016, DCS filed another petition to terminate Mother’s and Father’s parental rights, alleging several grounds for termination. Mother subsequently surrendered her parental rights to the child voluntarily, and her rights are not subject to this appeal. After a full hearing, the chancery court found by clear and convincing evidence that all grounds for termination alleged against Father existed and that termination of Father’s parental rights was in the best interest of the child. Father appeals. We affirm.

Weakley County Court of Appeals 05/12/17
Tracy Darrell Adkins v. Rhonda Forlaw Adkins
M2017-00495-COA-T10B-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Michael Binkley

After the trial court denied Wife’s motion to set aside the mediated Marital Dissolution Agreement and Permanent Parenting Plan and entered its order declaring the parties divorced, Wife filed a motion seeking recusal of the trial judge. The judge denied the motion, and Wife timely filed her petition for recusal appeal seeking an interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B from the trial court’s denial of her motion. We affirm the trial court’s decision to deny the motion for recusal.

Williamson County Court of Appeals 05/11/17
Kim L. Higgs v. John C. Green
M2016-01369-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Kelvin D. Jones

This appeal arises from a two-car accident. In her complaint, Plaintiff alleged that the collision occurred because Defendant violated several statutory rules of the road by failing to yield the right of way and making a turn across traffic without confirming it was safe to do so. Defendant denied any negligence and claimed that Plaintiff was more than 50% at fault. Following a trial, the jury found that Plaintiff was 75% at fault; as a result, judgment was entered for Defendant. On appeal Plaintiff contends she is entitled to a new trial for two reasons. She contends the trial court abused its discretion by limiting the testimony of the investigating police officer to what the parties told him at the scene and to matters that are reflected in his accident report. She also contends she is entitled to a new trial due to jury misconduct. Finding no abuse of discretion, we affirm.

Davidson County Court of Appeals 05/11/17
Chase Home Finance, LLC v. Jo Ann Street
W2016-01026-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Gina C. Higgins

Appellant appeals from the trial court’s decision granting a judgment of possession to the Appellee bank. Because of profound deficiencies in Appellant’s brief, we hold that her arguments are waived. Accordingly, the trial court’s judgment is affirmed.

Shelby County Court of Appeals 05/11/17
Michael Todd Sansom v. Amanda Jane Sansom
M2016-01111-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Michael Binkley


This is a post-divorce child custody and parental relocation case. Father petitioned the trial court to modify the parties’ parenting plan to designate him as the minor child’s primary residential parent and to allow him to relocate the child from Tennessee to Virginia. Mother opposed Father’s petition and filed a counter-petition requesting the court modify the residential parenting schedule to reflect Father’s move to Virginia. The trial court found that a material change in circumstances existed to permit an examination of whether changing the child’s primary residential parent from Mother to Father was in the child’s best interest. After an analysis of the best interest factors set forth in Tennessee Code Annotated section 36-6-106(a), the court concluded that it would be in the child’s best interest to remain in Tennessee with Mother as her primary residential parent. The court also adopted Mother’s proposed residential parenting schedule. The trial court then calculated Father’s retroactive and prospective child support obligations and awarded Mother the attorney’s fees she incurred in defending Father’s petitions and successfully pursuing her own. Father subsequently filed a Rule 59 motion to alter or amend the trial court’s judgment and to reopen the proof in the matter. The trial court denied Father’s request and awarded Mother additional attorney’s fees she incurred in defending the motion to alter or amend. Father has appealed the trial court’s determination that Mother should remain the child’s primary residential parent, the new residential parenting schedule, the court’s application of Tennessee’s parental relocation statute, the calculation of the income of the parties, the calculation of child support, and the award of attorney’s fees. We conclude that the trial court erred in calculating the amount of Father’s monthly gross income. The award of child support is therefore vacated and remanded for reconsideration. We affirm the judgment of the trial court in all other respects. We decline both parties’ requests for attorney’s fees incurred on appeal.

Williamson County Court of Appeals 05/10/17
Deborah Lacy v. HCA Health Service of TN, Inc., et al.
M2016-01027-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Thomas W. Brothers

Plaintiff appeals the dismissal of her case and the award of sanctions against her. The trial court dismissed the action for failure of Plaintiff to comply with the pre-suit notice and certificate of good faith requirements of the Tennessee Health Care Liability Act. Plaintiff also argues that the trial court engaged in judicial misconduct. Discerning no reversible error, we affirm the judgment as modified.

Davidson County Court of Appeals 05/10/17
Sherra Robinson Wright v. The Estate of Lorenzen Vern-Gagne Wright, et al.
W2016-01251-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert L. Childers

This case involves a divorced party’s request to recover unpaid child support and alimony. The petitioner filed her lawsuit in the Shelby County Circuit Court, which denied her request for relief. Although the petitioner appeals, we conclude that the trial court was without subject matter jurisdiction over the petitioner’s claims. Because the petitioner’s ex-husband is deceased and the claims at issue are against the ex-husband’s estate, the petitioner was required to file her claims against the estate in the Shelby County Probate Court. We therefore vacate the judgment of the trial court and dismiss the case for lack of subject matter jurisdiction.

Shelby County Court of Appeals 05/10/17
Franklin Square Towne Homeowners Association Inc., et al. v. Joseph B. Kyles, et al.
W2016-02018-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Walter L. Evans

This case involves a dispute over property. The trial court ruled that the defendants’ driveway and air conditioner pads encroached onto the plaintiffs’ property but declined to order their removal. Rather, the trial court awarded the plaintiffs damages and ruled that the encroachments could remain in place. Both parties appealed. We affirm the trial court’s conclusion that plaintiffs’ action with regard to the driveway is not barred by the Tennessee Code Annotated section 28-2-103 statute of limitations. We reverse the trial court’s ruling, however, to note that any action regarding the air conditioners and their placement is barred by the section 28-2-103 statute of limitations. We also reverse the trial court’s ruling allowing the driveway to remain in place.

Shelby County Court of Appeals 05/10/17
Tina Yvette Vaughn v. Methodist Hospital Staff & Aministration
W2016-00422-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert Samual Weiss

This is an appeal from the grant of summary judgment, dismissing Appellant’s defamation lawsuit against Appellee. The trial court held that Appellant’s claim sounded in slander. Because Appellant filed her lawsuit more than six months after the offending statements were made, the trial court granted summary judgment on the sole ground that the applicable statute of limitations for slander, Tenn. Code Ann. § 28-3-103, had run. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 05/08/17
State of Tennessee Ex Rel. Kandi L. Smith v. Britani N. Thorne
M2016-01966-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Kenneth R. Goble


This appeal involves child support for two minor children, H.T. and C.B. (“the Children”). Upon a prior dependency and neglect petition, the Montgomery County Juvenile Court (“trial court”) had awarded custody of the Children to their grandmother in an order entered December 29, 2010. The court had also granted the Children’s mother weekly visitation and ordered the mother to pay $410.00 monthly in child support. In April 2011, the State of Tennessee (“the State”), acting on behalf of the grandmother, filed a petition to set child support, which the trial court dismissed upon finding that support previously had been set. In December 2011, the State issued an administrative order, finding that the mother owed an arrearage of $4,510.00 and ordering her to pay an additional $205.00 per month. The mother subsequently filed a petition seeking custody of the Children and naming the grandmother as the respondent. Without notice to the State, the mother and the grandmother announced agreements to the trial court, which the court memorialized in two agreed orders: (1) a March 13, 2015 order returning custody of the Children to the mother and granting reasonable visitation to the grandmother and (2) a May 28, 2015 order waiving all child support arrearages owed to the grandmother, directing the mother to pay a $1,488.00 child support arrearage to the State at a rate of $50.00 per month, and reinstating the mother’s driver’s license. In September 2015, the State filed a petition for criminal contempt against the mother for failure to pay child support. The State subsequently filed a “motion to reconsider or set aside” the May 2015 agreed order, citing Tennessee Rule of Civil Procedure 60.02. Following a hearing, the trial court entered an order denying the State’s motion, directing the mother to pay the $1,488.00 arrearage to the State she previously had agreed to pay, and issuing an attachment for the mother’s failure to appear and failure to pay support. The State has appealed. Having determined that, pursuant to Tennessee Code Annotated § 37-1-159(a), the circuit court has sole jurisdiction to consider this appeal flowing from a dependency and neglect action, we transfer this appeal to the Montgomery County Circuit Court.

Montgomery County Court of Appeals 05/08/17
In Re: Addison P.
E2016-02567-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Jerri S. Bryant

This is the second appeal of this case. In the first appeal, this Court vacated the judgment and remanded to the trial court only for a determination of whether mother’s failure to visit the child was willful. On remand, the trial court found that mother’s failure to visit the child was willful. We affirm the trial court’s conclusion that clear and convincing evidence established the ground of willful failure to visit by an incarcerated parent. We also affirm the trial court’s determination that termination is in the child’s best interest. Consequently, we affirm the termination of Mother’s parental rights.

McMinn County Court of Appeals 05/08/17
In Re: Estate of Laura Copeland Farmer
M2016-01300-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge John Thomas Gwin
This appeal arises from a will contest. The decedent-mother had four children but left the majority of her estate to one daughter. The three plaintiff-siblings allege that the defendant-daughter exercised undue influence over their mother to induce her to change her will before she died. In the midst of a bench trial, the trial court entered an involuntary dismissal sua sponte at the close of plaintiffs’ proof. The trial court found that a confidential relationship existed between the decedent-mother and the defendant daughter, but the court also found by clear and convincing evidence that the mother was not influenced in the execution of her will. For the following reasons, we vacate the dismissal and remand for further proceedings.
 
Wilson County Court of Appeals 05/05/17
Deborah Lacy v. Saint Thomas Hospital West, et al
M2016-01272-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Thomas W. Brothers


Appellant brought a pro se action against several medical providers for injuries sustained when she was allegedly beaten during medical procedures. The trial court dismissed the complaint, under Tennessee Rule of Civil Procedure 12.02, for failure to comply with the procedural requirements of the Tennessee Health Care Liability Act (THCLA). On appeal, Appellant contends that she was not obligated to comply with the THCLA’s procedural requirements because her claim was based in tort and did not assert a health care liability claim. After reviewing the complaint, we conclude that it asserts several distinct claims, some of which are health care liability claims and some are not. We, therefore, affirm the trial court’s dismissal of the health care liability claims, but reverse the trial court’s grant of Appellees’ motions to dismiss the non-health care liability claims.

Davidson County Court of Appeals 05/04/17
In Re Damien G.M. - dissenting opinion
E2016-02063-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Kurt Andrew Benson

The first referral in this matter occurred on October 31, 2014. It involved “drug exposure of [Damien and his older sibling].” On December 15, 2014, there was a second referral to DCS, again for “drug exposure.” Methadone and methamphetamine were involved in the children’s care, or, more aptly, their non-care.

Bradley County Court of Appeals 05/03/17