Court of Appeals Opinions

Format: 12/14/2017
Format: 12/14/2017
In Re Estate of Bessie Adcock Bingham
M2016-01186-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor James B. Cox

This appeal arises from the probate administration of an estate. The principal issues concern a certificate of deposit and the trial court’s approval of attorney fees paid from the estate to the estate’s first attorney. The trial court awarded the certificate of deposit to the decedent’s son, finding that the certificate of deposit passed to the son as the surviving joint tenant. With respect to attorney fees paid to estate’s first attorney, the trial court approved fees in the amount of $12,400 and disapproved fees in the amount of $7,600. The decedent’s daughter appealed. Finding no error, we affirm.

Bedford County Court of Appeals 06/13/17
Church of The First Born Of Tennessee, Inc. v. Tom Slagle, et al.
M2014-01605-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Charles K. Smith

A dispute among members of a church arose over control of the church. One group of members incorporated and then filed suit against individual members of the church seeking to quite title to certain real property. The parties filed cross-motions for summary judgment. In granting the individual church members’ motion and denying the corporation’s motion, the trial court found the church to be congregationally governed with a clear and established practice for handling real property transactions. We conclude that the corporation lacked standing to bring the action and that the corporation’s case should be dismissed on that basis. Therefore, we reverse.  

Trousdale County Court of Appeals 06/13/17
Sonya C. Franklin Sardon v. Troy Eugene Sardon
M2015-01672-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Phillip R. Robinson

Post-divorce proceeding wherein Mother petitioned the court for a modification of the parenting plan and to increase Father’s child support obligation; following a hearing, the court granted her petition. Father appeals the upward deviation to his basic support obligation to pay a portion of the children’s extracurricular activities, the failure to give Father credit for additional funds he paid Mother each month, and the award of attorney’s fees to Mother. Upon consideration of the record, we discern no error and, accordingly, affirm the judgment of the trial court.  

Davidson County Court of Appeals 06/13/17
Knox County, Tennessee, et al. v. Delinquent Taxpayers, et al.
E2016-01750-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor John F. Weaver

This case involves an attempt by Omer G. Kennedy and Angela Helms (landowners) to exercise their right of redemption with respect to their property sold at a delinquent tax sale. Jon Johnson (tax sale purchaser) bought the property on January 13, 2015. Within the one-year redemption period, landowners paid $37,892.81, the amount they thought was required to redeem the property. Tax sale purchaser filed a motion for additional funds, consisting of payments he had made for insurance on the property and interest, under Tenn. Code Ann. § 67-5-2701 (Supp. 2016). The trial court granted the motion in an order entered January 11, 2016. The order gave landowners 30 days to pay the additional amount. Because notice of the order was not sent to their last known address, landowners did not receive the notice until after the 30 days had passed. They paid the additional amount of $5,869.43 on February 18, 2016. Tax sale purchaser moved the court to deny the redemption, arguing that the payment was not timely. The trial court denied the motion, holding that its order of January 11, 2016, was void because it was not effectively entered under Tenn. R. Civ. P. 58. and not effectively served under Tenn. R. Civ. P. 5. Alternatively, the trial court ruled that landowners were entitled to relief for excusable neglect under Tenn. R. Civ. P. 60. Tax sale purchaser appeals. We affirm.

Knox County Court of Appeals 06/13/17
Michael G. Breakey, et al. v. Sequatchie County, Tennessee, et al.
M2016-01504-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jeffrey F. Stewart
Appellees/taxpayers filed suit against Sequatchie County, seeking to set aside the tax sale of their property. As grounds, Appellees alleged that they were not afforded due process and were never notified of the delinquent tax action. The trial court ruled in favor of the taxpayers and set aside the tax sale due to lack of notice sufficient to provide due process. Sequatchie County appealed. Discerning no error, we affirm.
 
Sequatchie County Court of Appeals 06/12/17
In Re P.T.F.
E2016-01077-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Timothy E. Irwin

In this termination of parental rights case, the Department of Children’s Services filed a petition to terminate the parental rights of T.W.B. (mother) with respect to her child, P.T.F. The trial court found clear and convincing evidence of two grounds supporting termination. By the same quantum of proof, the trial court held that termination of mother’s parental rights is in the best interest of the child. Mother appeals. We affirm.

Knox County Court of Appeals 06/12/17
Rhonda Sue Griffis Grubb v. James Wesley Grubb
E2016-01851-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Frank V. Williams, III

This appeal arises from a divorce. Rhonda Sue Griffis Grubb (“Wife”) filed for divorce against husband James Wesley Grubb (“Husband”) in the Chancery Court for Roane County (“the Trial Court”). Trial in this matter was bifurcated. The validity of the parties’ antenuptial agreement (“the Agreement”) was tried first. The Trial Court found that the provision in the Agreement purporting to cap Wife’s alimony was unenforceable but otherwise upheld the Agreement. Later, trial was conducted on the remaining issues in the case. Citing her adultery and a clause in the Agreement, the Trial Court declined to grant Wife alimony. However, the Trial Court awarded Wife a substantial portion of the marital estate. The Trial Court also ruled upon child support, parenting time, and education for the parties’ two daughters. Husband appealed to this Court raising numerous issues. Wife raised additional issues of her own. We find and hold that Husband failed to carry his burden as to the validity of the Agreement. As to the second stage of this bifurcated matter, we find that the Trial Court’s final judgment is devoid of factual findings to such a degree that we cannot effectively review the remaining issues in this case. We reverse as to the validity of the Agreement. We vacate and remand for further proceedings as necessary and for entry of a new final judgment containing detailed factual findings and conclusions of law as to the remaining issues.

Roane County Court of Appeals 06/09/17
State ex rel. Appaloosa Bay, LLC et al. v. Johnson County, Tennessee, et al.
E2016-01163-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John C. Rambo

Two owners of separate lots in a planned residential subdivision of twenty lots brought this action against the Johnson County Regional Planning Commission and several state entities after the subdivision’s developer went into bankruptcy and development of the subdivision was halted. When the developer had earlier posted a performance bond securing the completion of the subdivision’s infrastructure, the planning commission had approved the subdivision plat, although infrastructure, including roads and utilities, had not been completed. After developer’s bankruptcy, the State of Tennessee bought the land comprising all of the subdivision lots, except the two owned by the plaintiffs. All of the remaining land in the intended subdivision, except for several other lots purchased by individuals before the bankruptcy, is now part of the Doe Mountain Recreation Area — an entity subsequently created by the State. Plaintiffs brought this action for breach of contract between developer and the planning commission. Plaintiffs also asked the trial court to issue a writ of mandamus compelling the county to complete the proposed subdivision infrastructure. The trial court granted the defendants summary judgment. The plaintiffs appeal. We affirm.

Johnson County Court of Appeals 06/09/17
Jessica Marcel Broadnax v. Quentin Elliott Lawrence
E2016-01176-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge J.B. Bennett

This case is again before this Court after being remanded to the Circuit Court for Hamilton County (“the Trial Court”) for a determination of whether it was in the best interest of the parties’ minor child (“the Child”) to relocate to New Jersey with Jessica Marcel Broadnax (“Mother”). Mother appeals the Trial Court’s May 5, 2016 order upon remand, which found, inter alia, that it was in the best interest of the Child to remain with Quentin Elliott Lawrence (“Father”) and not to move with Mother to New Jersey. We find and hold that the evidence in the record on appeal does not preponderate against the Trial Court’s findings. Finding no error on the part of the Trial Court, we affirm.

Hamilton County Court of Appeals 06/08/17
Raymond Cass Ballard v. Gertrude Cayabas
W2016-01913-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Tony Childress

This is an appeal arising out of a petition to change the primary residential parent and a petition for civil and criminal contempt. The notice of appeal for the criminal contempt finding was not timely filed, and the appeal is therefore dismissed as to the criminal contempt. With respect to the remaining issues, we remand this matter to the trial court for the limited purpose of conducting an evidentiary hearing regarding the timeliness of this appeal.

Dyer County Court of Appeals 06/08/17
Ally Financial v. Tennessee Department of Safety & Homeland Security
M2016-01894-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Claudia Bonnyman

The Tennessee Department of Safety and Homeland Security forfeited a finance company’s interest in a vehicle after determining that the finance company failed to timely file a claim to contest the forfeiture after receiving notice. The finance company thereafter filed a petition for judicial review. The trial court reversed the forfeiture on the basis that the Tennessee Department of Safety and Homeland Security failed to prove that it sent proper notice to the finance company. We vacate the judgment of the trial court and remand for further proceedings before the administrative agency. 

Davidson County Court of Appeals 06/07/17
Sarah Nichole Neveau v. Adam Paul Neveau
E2015-02221-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Rex A. Dale

This is an appeal from a divorce. The trial court granted the parties an absolute divorce and named the mother the primary residential parent of the parties’ minor child. The father filed this appeal challenging the designation of the mother as the primary residential parent and questioning the number of days of parenting time he received in the parenting plan. We find that the evidence does not preponderate against the trial court’s designation of the mother as the primary residential parent; however, the evidence does preponderate against the parenting plan that greatly limits the parenting time awarded to the father. Because we have concluded that the evidence preponderates against the parenting plan, we remand this issue to the trial court to adopt a plan that affords the father additional parenting time and to modify the child support award to comport with the new parenting plan. We also conclude that the tax exemption should be awarded to the father until such time as the mother becomes employed, at which time the issue can be revisited.

Loudon County Court of Appeals 06/07/17
In Re E.C.
E2016-02582-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Sharon M. Green

In this termination of parental rights action, Father’s parental rights were terminated based on the following grounds: (1) failure to manifest an ability and willingness to assume legal and physical custody of the child; (2) that placing the child in Father’s legal and physical custody would pose a risk of substantial harm to the child’s physical and psychological welfare; (3) failure to establish or exercise paternity; and (4) abandonment by wanton disregard for the welfare of the child. We affirm the grounds of failure to manifest an ability and willingness to assume legal and physical custody of the child and failure to establish or exercise paternity. However, we reverse with respect to the remaining grounds. We also affirm the trial court’s determination that termination of Father’s parental rights is in the best interest of the child. Affirmed in part, reversed in part, and remanded

Washington County Court of Appeals 06/06/17
In Re Gunner F.
M2016-01650-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge George L. Lovell

The trial court determined that the primary residential parent should be changed from mother to father without any change in the equal division of parenting time.  Because the trial court failed to address the best interest of the child in its order, we vacate and remand for the entry of findings of fact and conclusions of law.

Maury County Court of Appeals 06/06/17
Samuel L. Graham, Jr., et al. v. The Family Cancer Center, PLLC, et al.
W2016-00859-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Donna M. Fields

This is a medical malpractice action. The plaintiffs timely filed suit against the defendants concerning the failure to timely diagnose the husband’s prostate cancer. After voluntarily dismissing the initial suit, the plaintiffs provided pre-suit notice before filing a second suit pursuant to the saving statute. The defendants moved for summary judgment, arguing that the plaintiffs lacked sufficient expert testimony to establish their claim. The court agreed and granted summary judgment. We affirm.

Shelby County Court of Appeals 06/05/17
Mitch Goree, et al. v. United Parcel Service, Inc.
W2016-01197-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jerry Stokes

This is the second appeal of this employment discrimination case involving two plaintiffs. In the first appeal, Goree v. United Parcel Service, 490 S.W.3d 413 (Tenn. Ct. App. 2015), perm. app. denied (Tenn. March 23, 2016), this Court reversed the judgment as to one plaintiff and affirmed the judgment as to the other plaintiff, the Appellant in the instant case. On remand, the trial court determined that the specific attorney’s fees chargeable to each plaintiff could not be determined and reduced the previous award of attorney’s fees and costs by 50%. Appellant appeals. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 06/02/17
Dale J. Montpelier, et al. v. Herbert S. Moncier, et al. - DISSENT
E2016-00246-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Deborah C. Stevens

I respectfully dissent from the majority’s opinion in this case. I disagree with the majority’s conclusion that “the complaint fails to state a cause of action for abuse of process.” Applying the appropriate standard of review as correctly articulated by the majority, I believe the complaint does state a claim upon which relief can be granted as to the abuse of process claim.

Knox County Court of Appeals 06/01/17
Dale J. Montpelier, et al. v. Herbert S. Moncier, et al.
E2016-00246-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Deborah C. Stevens

This is a common law abuse of process case. The plaintiffs contend that the defendant attorney abused otherwise lawful process without authorization and for an improper purpose. The trial court dismissed this case as a matter of law for failure to state a claim upon which relief can be granted pursuant to Rule 12.02(6). We affirm.

Knox County Court of Appeals 06/01/17
Walnut Run Homeowner's Association, Inc. v. Jerry Wayne Wilkerson
E2016-01084-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jeffrey M. Atherton

The owner of property in a residential subdivision appeals the order of the trial court prohibiting construction of an eight-foot wooden fence. We affirm.

Hamilton County Court of Appeals 06/01/17
Town of Collierville, et al. v. Town of Collierville Board of Zoning, et al.
W2016-02032-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Walter L. Evans

This is the third appeal in an ongoing dispute between the Town of Collierville and the owner of property on which two billboards are situated. On February 12, 2013, the Town filed a petition for writ of certorari, challenging a decision of the Board of Zoning Appeals. Because the petition for writ of certorari does not comply with Tennessee Code Annotated section 27-8-106, the trial court and, therefore, this Court lack subject matter jurisdiction. We vacate the judgment of the chancery court and dismiss the petition.

Shelby County Court of Appeals 05/31/17
Daniel Paschedag v. Patricia L. Paschedag
M2016-00864-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Ross H. Hicks

This is an appeal from the trial court’s designation of a child’s primary residential parent. 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 designate Mother as the child’s primary residential parent. Father appealed. Mother has requested attorney’s fees incurred in defending this appeal. We affirm the judgment of the trial court, grant Mother’s attorney’s fees incurred on appeal, and remand to the trial court to determine the proper amount of Mother’s award of attorney’s fees.

Montgomery County Court of Appeals 05/31/17
Rodney And Tammy Henderson, et al. v. The Vanderbilt University - dissenting opinion
M2016-01876-COA-R9-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Joseph p. Binkley, Jr.

“The law of negligent infliction of emotional distress has been called ‘one of the most disparate and confusing areas of tort law.’” Lane v. Estate of Leggett, No. M2016-00448-COA-R3-CV, 2017 WL 1176982, at *3 (Tenn. Ct. App. Mar. 29, 2017) (citing Camper v. Minor, 915 S.W.2d 437, 440 (Tenn. 1996)). While this is a statement with which I agree, I must respectfully dissent from the majority opinion. I certainly do not dispute that the Plaintiffs in this case have suffered extreme emotional distress, nor do I mean to discount their grief and suffering as a result of the death of their daughter, Halle Henderson.

Davidson County Court of Appeals 05/31/17
Rodney And Tammy Henderson, et al. v. The Vanderbilt University
M2016-01876-COA-R9-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Joseph P. Binkley, Jr.

The trial court granted partial summary judgment to the defendant hospital on the ground that the plaintiffs could not establish that they witnessed or perceived an injury-producing event for purposes of their negligent infliction of emotional distress claims. We hold that the alleged failure of the defendant hospital to provide care to the plaintiffs’ daughter, despite repeated assurances from the hospital that it would occur, constitutes an injury-producing event that was witnessed by plaintiffs. Accordingly, the trial court erred in dismissing plaintiffs’ negligent infliction of emotional distress claims on this basis.

Davidson County Court of Appeals 05/31/17
Transfill Equipment Supplies & Services, Inc. v. Advanced Medical Equipment, LLC
M2016-00288-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Joe Thompson

In this breach of contract case, Transfill Equipment Supplies & Services, Inc. (TESS) sued Advanced Medical Equipment, LLC (AME) for delinquent payments of (1) rent due on TESS’s equipment, (2) purchases of medical oxygen, and (3) the fair market value of rented equipment that AME had not returned to TESS. AME filed a separate lawsuit against TESS seeking damages for conversion of oxygen tanks. After consolidating the cases, the Sumner County General Sessions Court awarded damages to TESS and dismissed all of AME’s claims. AME appealed to the trial court. The court found that AME was guilty of breach of contract due to its failure to make timely payments. As a consequence, the court awarded judgment to TESS in the amount of $34,999.45. The trial court also found that TESS had not converted AME’s oxygen tanks. AME appeals. We affirm.

Sumner County Court of Appeals 05/31/17
Lemuel Lewis v. Lynn Moore, et al.
M2015-02473-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Michael Binkley

In this breach of contract action, the plaintiff entered into a contract with a sole proprietor whereby he purported to purchase 10% of the sole proprietorship. The contract entitled the plaintiff to 10% of the cash withdrawals made from the business's account. It further provided that, should the sole proprietor dissolve the business and form a new entity of which she was a majority owner, the plaintiff would be entitled to 10% of the cash withdrawals taken by the sole proprietor from the new entity. Two years later, the sole proprietor closed the business and formed a new entity, a limited liability company, with another individual. The plaintiff filed suit, alleging breach of contract and violations of the duty of good faith and fair dealing. The trial court found for the sole proprietor, concluding that the sole proprietor was free to close her business at will. It further found that the sole proprietor did not breach the express terms of the contract, nor did she breach her implied duty of good faith and fair dealing, in closing her business and forming the LLC. Discerning no error, we affirm.

Williamson County Court of Appeals 05/31/17