Court of Appeals Opinions

Format: 08/29/2016
Format: 08/29/2016
Justin R. Rogers v. Blount Memorial Hospital, Inc. et al.
E2015-00136-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge David R. Duggan

This appeal involves a health care liability action filed by the plaintiff against Blount Memorial Hospital, Inc. (“BMHI”) and the doctor who treated the plaintiff at BMHI from September 8, 2012, to September 13, 2012. The plaintiff filed his complaint on December 13, 2013, alleging that the defendant doctor had misdiagnosed his illness, causing a delay in treatment and resultant permanent injuries. Both defendants filed motions to dismiss, which were converted into motions for summary judgment with the filing of additional affidavits. The trial court granted summary judgment in favor of BMHI based on, inter alia, the applicable statute of limitations and BMHI's immunity as a governmental entity.

Blount County Court of Appeals 02/29/16
S. Carmack Garvin, Jr., et al v. Joy Malone
M2015-00856-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge James G. Martin, III

Plaintiffs and Defendant were involved in a motor vehicle accident. Plaintiffs allege Defendant was negligent in causing her van to run into the rear of their car and that as a result of Defendant’s negligence, Plaintiffs suffered damages. During trial, Defendant introduced photographs of the vehicles taken immediately after the collision, which the trial court permitted, over Plaintiffs’ objection, for the purpose of impeaching Plaintiffs’ testimony. The evidence was heard by a jury, which determined Defendant was not at fault. Plaintiffs filed a motion for a new trial, which the trial court denied. On appeal, Plaintiffs argue the trial court erred by allowing the jury to consider Defendant’s photographic evidence for purposes of impeachment. We conclude the trial court did not err and affirm its judgment.

Williamson County Court of Appeals 02/26/16
James Burton v. Faye Barna
M2015-00132-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Elizabeth C. Asbury

Due to the inadequacies of appellant’s brief and appellant’s failure to provide a transcript or statement of the evidence, we conclude that he has waived consideration of this appeal, and we affirm the judgment of the chancery court.

Fentress County Court of Appeals 02/26/16
Stephanie Nichole Lee v. Christopher Cornell Eskridge
E2014-02555-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Gregory S. McMillan

The trial court, upon finding that Christopher Cornell Eskridge (Respondent) repeatedly violated orders of protection issued to protect Stephanie Nicole Lee (Petitioner), sentenced him to ten days in jail and required him to post a $2,500 bond in accordance with Tenn. Code Ann. § 36-3-610(b)(2) (2014). On appeal, Respondent challenges the constitutionality of this statute. None of the issues raised on appeal, including the constitutional issue presented by Respondent, were raised with the trial court. Furthermore, Respondent did not timely notify the Attorney General of his constitutional challenge, as required by Tenn. Code Ann. § 29-14-107(b) (2000) and Tenn. R. Civ. P. 24.04. We hold that Respondent waived these issues. Accordingly, we affirm the judgment of the trial court.

Knox County Court of Appeals 02/26/16
Daniel W. Mithcell v. Tricia Lurlene Hall
E2014-01919-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Richard R. Vance

This appeal arises from a dispute over modification of child support. Daniel W. Mitchell (“Petitioner”) filed a petition against his ex-wife Tricia Lurlene Hall (“Respondent”) in the Circuit Court for Sevier County (“the Trial Court”) seeking a modification of his child support obligation given the parties’ second oldest child turning 18. The matter was referred to a Special Master. The Trial Court designated the date of the final hearing, March 31, 2014, as the effective date for the modification of child support rather than the date when the child at issue reached age 18, and ordered Petitioner to pay an arrearage accordingly.

Sevier County Court of Appeals 02/26/16
Barry Michael Spencer, II v. Christina Marie Spencer
M2014-01601-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

In this appeal, a mother challenges the trial court’s award of equal parenting time to the child’s father. The mother contends she should be awarded more parenting time because, among other things, she was the child’s primary caregiver during the parties’ marriage. We have reviewed the record and find that the trial court did not abuse its discretion in naming mother the primary residential parent and awarding equal parenting time to the parties.

Montgomery County Court of Appeals 02/25/16
In re Estate of Glenda Joyce Panter Hillis
M2015-00404-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Larry B. Stanley

The surviving husband of the decedent challenges the validity of their 1992 antenuptial agreement and a 2010 quitclaim deed from the decedent to her son. The decedent, Glenda Joyce Panter Hillis, presented her husband with an antenupital agreement on the day before their wedding. The agreement stated that each party waived “all claims of inheritance, descent and distribution in and to the parties [sic] private and real property . . . which in any way or manner arise or accrue by virtue of said marriage . . . .” However, it did not include any financial or asset disclosures. The husband signed the agreement, and the parties married on December 30, 1992. In March of 2010, Mrs. Hillis executed a will that left her husband a car and a life estate in her real property, including some of the personal property in the marital residence, with the residue of her estate going to her son. Three months later, she executed a quitclaim deed pursuant to which she transferred a life estate in all of her real property to herself and her husband, with the remainder to her son. Mrs. Hillis died in 2012, following which her will was admitted to probate. Soon thereafter, her husband filed a petition for an elective share and a separate civil action in which he sought to invalidate the 2010 quitclaim deed as a fraudulent conveyance. The executor and Mrs. Hillis’s son opposed both petitions. The son demanded a jury trial regarding the validity of the antenuptial agreement, but the trial court concluded there was no way to separate the legal and factual issues without confusing a jury and consolidated both cases for trial. Following a bench trial, the court concluded that the antenuptial agreement was invalid because it did not include the required disclosures about Mrs. Hillis’s assets and because it contained contradictory provisions. As for the 2010 quitclaim deed, the court ruled that the conveyance was not fraudulent and refused to set the deed aside. All parties appeal. The son contends the court erred in denying him a jury trial. The son also contends the court erred by invalidating the antenuptial agreement. The husband contends the trial court erred by denying his petition to invalidate the 2010 quitclaim deed. We find no reversible error with the decision to deny the son’s request for a jury trial. We affirm the trial court’s decision to invalidate the antenuptial agreement because the agreement did not include the requisite financial and asset disclosures. We affirm the decision concerning the 2010 quitclaim deed because the evidence does not preponderate against the trial court’s finding that the 2010 transfer was not fraudulent. 

Warren County Court of Appeals 02/25/16
In re Landon H.
M2014-01608-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Stella L. Hargrove

This case began as a petition for dependency and neglect filed in juvenile court by the child’s grandmother. The child’s father filed his own petition seeking custody. The juvenile court found the child to be dependent and neglected and awarded custody to the father. Upon appeal to circuit court, mother stipulated the child was dependent and neglected as of the date the petition was filed. The circuit court accepted the stipulation and found the child dependent and neglected on the date of the petition. After a five-day hearing on the proper disposition of the child, the circuit court awarded custody jointly to the child’s mother and grandmother, with certain conditions. The father appeals the circuit court’s decision, arguing the court erred in awarding custody to the mother and the grandmother. Because the circuit court failed to determine whether the child was dependent and neglected as of the date of the de novo hearing, we vacate the circuit court’s order and remand for a new hearing.

Maury County Court of Appeals 02/25/16
Lamar Tennessee, LLC DBA Lamar Advertising of Knoxville v. City of Knoxville, Tennessee, Et Al.
E2014-02055-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Daryl R. Fansler

In 2006, Lamar Tennessee, LLC began the conversion of two of its billboards from ―vinyl-faced to ―digital display‖ utilizing light-emitting diode (LED) technology. Before Lamar could complete these conversions, a sign inspector for the City of Knoxville issued a stop-work order on each of the billboards. A zoning inspector for the City, in her own name, subsequently filed a complaint against Lamar, grounded in Tenn. Code Ann. § 13-7-208(a)(2) (Supp. 2005), seeking temporary and permanent injunctive relief prohibiting Lamar from ―repurposing‖ the two vinyl-faced billboards into billboards featuring LED digital displays. In response, Lamar filed a complaint against the City seeking a declaration that the two billboards were not in violation of the zoning regulations and/or that the provisions of the zoning regulations pertaining to billboards with digital displays were unconstitutional. These cases were eventually consolidated. Each party filed a motion for summary judgment. The trial court granted the City‘s motion and permanently enjoined Lamar from converting the billboards at issue from vinyl structures into billboards with LED digital displays. Lamar appeals. We affirm.

Knox County Court of Appeals 02/25/16
In re Lilly C. et al.
E2015-01185-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Larry M. Warner

This appeal involves termination of a father's rights to three children. The trial court found the father, who was incarcerated at the time of the final hearing, had abandoned the children by engaging in such conduct prior to incarceration as to exhibit a wanton disregard for their welfare, in that there was a history of domestic violence between the father and the children's mother. Further, the father had violated his probation by failing a drug screen. The court also found clear and convincing evidence revealed the father had not substantially complied with the provisions of the permanency plans. As a result, the court found termination was in the best interest of the children. The father appeals. We affirm.

Cumberland County Court of Appeals 02/25/16
Larry Steele v. Elizabeth Jones
M2014-01289-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Jane W. Wheatcraft

This appeal arises out of suit brought to recover possession of a dog; the party which brought the suit has appealed to this court. The document filed by the Appellant fails to comply with Rule 27 of the Tennessee Rules of Appellate Procedure and renders this Court unable to review the resolution of the case in the trial court. We therefore affirm the judgment of the circuit court.

Sumner County Court of Appeals 02/24/16
James Mason Yates v. Sally Jo Seitz Yates
M2015-00667-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Royce Taylor

Husband and Wife were married for a little over three years and had one child together when Husband filed a complaint for divorce. Wife wanted a prenuptial agreement, and Husband prepared and signed an agreement that he presented to Wife before the parties were married. Wife testified she signed the document Husband presented to her before the parties’ marriage ceremony. Following a pretrial hearing, the trial court determined the prenuptial agreement was not valid. The trial court reversed its ruling after a full trial, however, finding that Wife would not have married Husband without a prenuptial agreement. Based on the provisions of the prenuptial agreement, the trial court determined which property was separate, which property was marital, and then distributed the marital property. The parties agreed to split their parenting time equally. The trial court calculated the parties’ incomes and determined that based on each party’s ability to earn approximately $16,000 per month and the parties’ equal parenting time, no child support order was necessary. Husband appealed from the trial court’s final order. We affirm the trial court’s judgment in all respects but one. We reverse the trial court’s decision to deduct six percent from the value of the marital home to account for closing costs because there was no evidence that the parties planned to sell the house as part of the divorce.

Rutherford County Court of Appeals 02/24/16
In re Destiny H., et al.
W2015-00649-COA-R3-PT
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Chancellor Walter L. Evans

This appeal involves a petition to terminate a mother’s parental rights on the grounds of abandonment by willful failure to support and willful failure to visit. We affirm the trial court’s finding that grounds for termination do not exist as to either ground. Accordingly, we affirm the trial court’s decision not to terminate the parental rights of the mother.

Shelby County Court of Appeals 02/24/16
In re A'Leah M. et al.
E2015-01234-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Timothy E. Irwin

Tanisha M. (“Mother”) appeals the order of the Juvenile Court for Knox County (“Juvenile Court”) terminating her parental rights to the minor children A'Leah M. (“the Older Child”) and Sh Myah M. (“the Younger Child” or collectively “the Children”) for abandonment by willful failure to pay child support pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(i), for failure to comply with a permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2), and for persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). We find and hold that the evidence does not preponderate against the findings of the Juvenile Court made by clear and convincing evidence that grounds were proven to terminate Mother's parental rights to the Children and that it was in the Children's best interest for Mother's parental rights to be terminated. We, therefore, affirm.

Knox County Court of Appeals 02/23/16
Tri-Cities Holdings, LLC v. Tennessee Health Services and Development Agency
M2015-00058-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Carol L. McCoy

An attorney from Georgia, who had been admitted to practice pro hac vice in a contested case hearing before the Tennessee Health Services and Development Agency, had his privilege to practice revoked by the Administrative Judge based upon representations he made as to the status of related federal litigation. On review by the Chancery Court, the revocation was affirmed. Discerning no error, we affirm the judgment of the Chancellor.

Davidson County Court of Appeals 02/22/16
Homer McCaig, et al. v. Roy L. Whitmore
W2015-00646-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Donald E. Parish

This is a premises liability case. Appellant Homer McCaig sustained multiple injuries while operating an all-terrain vehicle (ATV) on Appellee Roy Whitmore‘s property. The trial court determined that Mr. Whitmore owed no duty to the McCaigs based on the Tennessee Recreational Use Statute (―TRUS‖), Tennessee Code Annotated Sections 70-7-101 et seq. The trial court granted summary judgment in favor of the Appellee based on its determination that no exceptions to the statute were applicable. Discerning no error, we affirm and remand.

Carroll County Court of Appeals 02/22/16
Felisha Robinson v. University of Tennessee Health Science Center
W2015-01695-COA-R9-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Jim Kyle

This is a Tennessee Rule of Appellate Procedure 9 interlocutory appeal. Appellant The University of Tennessee appeals the trial court's denial of its Tennessee Rule of Civil Procedure 12.02(1) motion to dismiss Appellee's Tennessee Human Rights Act (“THRA”) claim for discrimination. Appellee, a student enrolled in The University of Tennessee Health Science Center's College of Nursing, was dismissed from the program after receiving a failing grade in the clinical portion of her studies. She filed suit in the Chancery Court of Shelby County for racial discrimination under the THRA and for alleged violation of the equal protection and due process protection provisions of the Tennessee Constitution. The trial court dismissed Appellee's equal protection and due process claims, but determined that Tennessee Code Annotated Section 4-21-311(a) evinced a legislative intent to waive the State's sovereign immunity for Appellee's THRA claims. Section 4-21-311(a) governs THRA claims for employment discrimination. However, Appellee's THRA claim is for alleged discrimination by a funded program. As such, Appellee's claim is governed by Part 9 of the THRA (specifically, Tennessee Code Annotated Section 4-21-905). Part 9 contemplates only administrative remedies for such violations, and we cannot find a clear legislative intent to waive sovereign immunity so as to allow Appellee to file her initial lawsuit in the chancery or circuit court. Accordingly, we reverse the trial court's order and remand for entry of an order of dismissal as to Appellee's THRA claim.

Shelby County Court of Appeals 02/22/16
In re Alleyanna S.
M2015-00544-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Michael W. Collins


This appeal arises from the termination of a mother’s and a father’s parental rights. On a petition for dependency and neglect, the juvenile court on an emergency basis removed the child from the parents. The parents later stipulated that the child was dependent and neglected, and the court made a finding that the child was a victim of severe child abuse at the hands of both parents. More than seven months later, the Tennessee Department of Children’s Services filed a petition to terminate parental rights based on the previous finding of severe child abuse by both parents and on the ground of willful abandonment for failure to support by the father. The trial court found clear and convincing evidence for both grounds and that it was in the best interest of the child to terminate parental rights. Both parents appeal. We affirm the termination of parental rights.

Smith County Court of Appeals 02/19/16
John E. Carter v. Herbert H. Slatery III, In His Official Capacity As Attorney General And Reporter
M2015-00554-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Carol L. McCoy

Father filed a petition to reduce child support. Mother sought to have their almost eighteen-year-old daughter testify that she did not intend to exercise visitation with Father to the extent previously ordered by the court after she turned eighteen. The court refused to let her testify. The trial court used the number of days of parenting time previously ordered in calculating child support instead of zero. The trial court also ordered Mother to pay a portion of Father’s attorney’s fees. Mother appeals these issues. We affirm the trial court as to the testimony of the child and the calculation of child support. We reverse the trial court’s award of attorney’s fees.    

Davidson County Court of Appeals 02/19/16
In re Phillip I.P., Jr. et al.
E2015-01058-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Sharon M. Green

This appeal concerns the termination of a mother’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition seeking to terminate the parental rights of Michelle P. (“Mother”) to her children Phillip and Emily (“the Children”). After a trial, the Juvenile Court found that clear and convincing evidence established the grounds of substantial noncompliance with the permanency plan and persistent conditions, and that termination of Mother’s parental rights was in the Children’s best interest. Mother appeals to this Court. We affirm the judgment of the Juvenile Court.

Washington County Court of Appeals 02/19/16
H & J Ditching & Excavating, Inc. v. Cornerstone Community Bank
E2015-01060-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jon Kerry Blackwood

Plaintiff H & J Ditching & Excavating, Inc. (Contractor) was hired by JRSF, LLC (Developer) to perform excavating and grading work on a subdivision construction project (the project) in West Knox County. Defendant Cornerstone Community Bank (Lender) provided financing for the project with a $2,512,500 construction loan. Complications arose, including the bankruptcy of one of Developer's primary members. Developer defaulted on the construction loan. Lender foreclosed and took possession by bidding on the property at the foreclosure sale.

Knox County Court of Appeals 02/19/16
In re Ava B.
E2015-01413-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Timothy E. Irwin

The petitioner in this parenting dispute appeals the trial court's order entered September 17, 2015. Having determined that the order at issue is not a final order, we dismiss the appeal for lack of subject matter jurisdiction.

Knox County Court of Appeals 02/19/16
National Public Auction Company, LLC v. Camp Out, Inc., et al.
M2015-00291-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Robert E. Corlew, III

An auctioneer filed suit against a recreational vehicle dealer for injunctive relief and damages; the dealer counterclaimed for fraud and other causes of action. A jury returned a verdict in favor of the dealer. Distribution of funds held by the court clerk was held in abeyance. This appeal is a post-judgment dispute as to whether the trial court erred in allowing the purchaser of a recreational vehicle at the auction to intervene after the trial court entered its judgment on the jury verdict to seek the return of money deposited with the court clerk, and whether the trial court erred in dismissing the dealer’s counterclaim against the purchaser and awarding the purchaser the return of his purchase price. We conclude that the trial court did not abuse its discretion in allowing the purchaser to intervene, but that the trial court erred in failing to allow the dealer to conduct discovery to determine whether the purchaser contributed to the loss in value of the vehicle.

Rutherford County Court of Appeals 02/18/16
Marchelle Renee Buman, Executor of the Estate of Kenneth Jenkins v. Alycia D. Gibson, P.A., et al.
W2015-00511-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Charles C. McGinley

This is a health care liability case. The trial court granted summary judgment to the defendant-medical providers after the exclusion of the plaintiff‟s standard-of-care expert due to failure to comply with discovery requests. Discerning no error, we affirm.

Henry County Court of Appeals 02/18/16
Cecil McNatt, et al. v. Jane Vestal (Kanizar); Henderson Villa Inc. v. Cecil McNatt, et al.
W2015-00870-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

This is a construction case. Appellee, Cecil McNatt, contracted to build and obtain the required licensing for an assisted living facility for Appellant Jane Vestal. The facility was constructed and licensed according to the parties' contract. Following completion, Appellant refused to pay the balance of the contract amount, citing the Appellee's lack of a contractor's license and numerous construction defects. Appellee filed suit against Appellant for breach of contract, and Appellant counterclaimed for violations of the Contractors Licensing Act and Tennessee Consumer Protection Act. The trial court concluded that Appellee did not violate the Contractors Licensing Act or the Tennessee Consumer Protection Act, dismissed Appellants' counterclaims, and awarded Appellees a judgment in the amount of $96,280.11. We conclude that trial court erred in concluding that the Appellee did not violate the Contractors Licensing Act, but we affirm the judgment to Appellee, with some modification of the amount awarded.

Chester County Court of Appeals 02/18/16