Court of Appeals Opinions

Format: 05/26/2015
Format: 05/26/2015
Farmers Mutual of Tennessee v. Jennifer Atkins
E2014-00554-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Jerri S. Bryant

The trial court granted summary judgment to the insurance company on the issue of whether the insured’s failure to submit to an Examination Under Oath precluded her recovery. Because material factual disputes exist, we reverse.

Monroe County Court of Appeals 12/15/14
Maria Beth Reynolds v. William Reynolds
M2013-01912-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement
Trial Court Judge: Judge Phillip R. Robinson

Wife filed a criminal contempt petition against Husband alleging seven violations of the order of protection she obtained against him. The trial court found Husband guilty of six of the seven counts of criminal contempt and, after considering each count of contempt individually, sentenced him to a total of 28 days in jail to be served consecutively. Husband challenges five of the six findings of criminal contempt and the sentence. Husband also challenges the exclusion of his witness based on her violation of Tennessee Rule of Evidence 615. We have determined the trial court did not abuse its discretion in excluding Husband’s witness for violating Rule 615. We have also determined the evidence supports the finding that Husband violated the order of protection on each of the five counts he challenges and that the sentence imposed is appropriate. Therefore, we affirm the trial court in all aspects.

Davidson County Court of Appeals 12/12/14
In Re: Josie A., et al
M2014-00442-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Wayne C. Shelton

Father’s parental rights to his three children were terminated on the grounds of abandonment by failure to visit, failure to support, and failure to provide a suitable home, as well as persistence of the conditions that led to the removal of the children. He appeals, contending that there is not clear and convincing evidence sufficient to terminate his parental rights. Finding no error in the judgment of the trial court, we affirm.

Montgomery County Court of Appeals 12/12/14
David Jones v. Mortgage Menders, LLC, et al
M2014-00140-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This appeal involves several claims relating to the sale and refinancing of Plaintiff’s two properties. When Plaintiff defaulted on the mortgages, Mortgage Menders, LLC offered to purchase the properties,fulfill the mortgage indebtedness, refurbish the properties for resale, and remit half of the profits when the properties sold. Mortgage Menders, LLC borrowed money from Defendant Hazlewood to accomplish the terms of the agreement. Defendant Hazlewood also served as an escrow and closing agent for two later transactions involving the properties. When Plaintiff failed to receive any portion of the proceeds relating to the sale of one of the properties, he filed suit for breach of contract, fraud, and civil conspiracy against each of the parties involved. Defendant Hazlewood filed a motion for summary judgment, asserting that he was entitled to judgment as a matter of law. The trial court partially granted the motion for summary judgment, finding that Defendant Hazlewood was not a party to the contract and that he had not participated in a civil conspiracy. Years later, the court dismissed the remainder of the case for failure to prosecute. Plaintiff appeals. The decision of the trial court is affirmed in part and reversed in part. We remand the case for proceedings consistent with this opinion.

Davidson County Court of Appeals 12/12/14
Damon Tatum v. Mercedeas Tatum
W2013-02112-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Jerry Stokes

The trial court denied Defendant Mother’s motion to recuse in this post-divorce dispute. We affirm.

Shelby County Court of Appeals 12/12/14
Gary Haiser Et Al. v. Michael Haines Et Al.
E2013-02350-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Ronald Thurman

This appeal arises from an internal conflict in a planned community. A group of property owners (“Plaintiffs”) sued another group of property owners (“Defendants”) 1 in the Chancery Court for Cumberland County (“the Trial Court”). Both groups contested which was the legitimate Board of Directors for the community association. Plaintiffs sought, among other things, declaratory relief as to the rights and responsibilities of the parties. Plaintiffs filed a motion for class action certification. The Trial Court, finding that Plaintiffs had failed to establish the requirements of typicality and adequacy of representation, denied Plaintiffs’ request for class certification. Plaintiffs appeal the denial of class certification. Finding no abuse of discretion, we affirm the Trial Court.

Cumberland County Court of Appeals 12/12/14
Jimmy W. Bilbo, Et Al. v. Ocoee Place Condominium Homeowners Association, Et Al.
E2013-02535-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jon Kerry Blackwood

Jimmy W. Bilbo and Mildred D. Bilbo (“Plaintiffs”) sued Ocoee Place Condominium Homeowners Association (“Defendant”) for, among other things, negligent 1 construction which allegedly caused flooding that damaged Plaintiffs’ property. Defendant filed a motion for summary judgment alleging, in part, that Defendant did not own the relevant real property, that Defendant exercised no input or control over the construction, and that Plaintiffs’ action was barred by the statute of limitations and the statute of repose. The Circuit Court for Bradley County (“the Trial Court”) granted Defendant’s motion for summary judgment. Plaintiffs filed a motion to alter or amend, which the Trial Court denied. Plaintiffs appeal to this Court raising issues regarding whether the Trial Court erred in refusing to alter or amend the grant of summary judgment pursuant to Tenn. R. Civ. P. 54.02 or Tenn. R. Civ. P. 60.02. We find no abuse of discretion in the Trial Court’s denial of Plaintiffs’ Tenn. R. Civ. P. 54.02 or 60.02 motion, and we affirm.

Bradley County Court of Appeals 12/12/14
State ex rel. Department of Transportation v. William H. Thomas, Jr.
W2013-02082-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Walter L. Evans

This is the second appeal of this case involving the Appellee’s construction of a billboard without the required state permit. In the first appeal, this Court held that the trial court did not have subject-matter jurisdiction to adjudicate any of Appellee’s purported defenses or counterclaims raised in response to the State of Tennessee’s petition for injunctive relief. Accordingly, we held that the trial court’s order was “void and of no effect.” Upon remand, the State sought restitution for amounts paid to Appellee pursuant to the void order. In contravention of the law of the case, the trial court awarded Appellant only part of its restitution, and ruled in Appellee’s favor on his First Amendment defense to the State’s petition. Accordingly, we reverse the trial court’s order and remand the case with mandated instructions.

Shelby County Court of Appeals 12/11/14
In Re Conservatorship of Michael S. Starnes
W2013-02614-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kathleen N. Gomes

This is a conservatorship case. Appellant, the only child of Appellee, sought a conservatorship over Appellee after Appellee suffered a stroke. Appellee filed a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss the petition. The trial court, in its memorandum opinion, denied the Appellee’s motion to dismiss, finding Appellant’s petition to appoint a conservator “legally sufficient.” In that same opinion, the trial court considered matters outside the pleadings, converted the motion to dismiss to a motion for summary judgment, and sua sponte granted summary judgment in favor of Appellee. Appellant appeals. Because Appellant was not, as required under Tennessee Rule of Civil Procedure 12.02, “given reasonable opportunity to present all material made pertinent to [the] motion by Rule 56,” we vacate and remand.

Shelby County Court of Appeals 12/10/14
Charlotte J. Cartwright, et al. v. DMC-Memphis Inc. d/b/a Delta Medical Center, et al.
W2013-01614-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge John R. McCarroll, Jr.

This appeal requires consideration of the interplay between the pre-suit notice requirements of Tennessee Code Annotated § 29-26-121 and Tennessee’s savings statute, Tennessee Code Annotated § 28-1-105. In the instant case, Plaintiff re-filed a medical malpractice action within one year of a previous voluntary non-suit. Defendants moved to dismiss the re-filed action on the basis that the pre-suit notice provided incident to the initial lawsuit was deficient. They argued that the failure to provide the required notice in the first lawsuit meant Plaintiff’s original action was not properly commenced and therefore failed to toll the statute of limitations. The trial court agreed, determined that the second lawsuit was filed outside of the applicable limitation period, and dismissed Plaintiff’s claims. We reverse.

Shelby County Court of Appeals 12/09/14
Buddy J. Webb, et al. v. Brent Douglas, et al.
W2014-00299-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ben H. Cantrell

Landowners, whose properties abut a gravel road that  crosses over the land of another, claim the right to use that road for ingress and egress.  The trial court found the gravel road was formerly a public road, but that the road ceased being a public road at some point.  Once the road ceased being a public road, the trial court found the landowners whose land abutted the road had a permanent easement and right to use the road for ingress and egress purposes.  The landowners over whose property the road crosses appealed.  We affirm the trial court’s judgment.

Benton County Court of Appeals 12/09/14
Lloyd L. Meyers v. Farmers Aid Association of Loudon County, Tennessee
E2013-02585-COA-R9-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Russell E. Simmons, Jr.

This is an interlocutory appeal from the denial of Appellant insurer’s motion for summary judgment in an action on a homeowner’s policy that contained a contractual one-year statute of limitations. The Appellee insured filed suit eighteen months after the loss occurred. In the trial court, the Appellant insurer moved for summary judgment, arguing that the one-year statute of limitations in the Appellee insured’s policy was a bar to his action. The trial court agreed with the Appellee’s interpretation of the policy provisions and denied the motion for summary judgment. This court granted the Appellant’s application for interlocutory appeal. Following our review, we reverse the trial court’s decision and remand the case for entry of summary judgment in favor of Appellant.

Loudon County Court of Appeals 12/09/14
Gary Connell, et al. v. Mia Scullark
W2014-00587-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge James F. Russell

Purchaser of real estate at a foreclosure sale filed a forcible entry and detainer action against the occupant of the real estate. The General Sessions Court of Shelby County awarded possession, despite the objection of an individual claiming she purchased the real estate prior to the foreclosure sale. On appeal, the Shelby County Circuit Court granted the foreclosure purchaser’s motion for summary judgment and affirmed the judgment of the general sessions court. The pre-foreclosure purchaser appeals. Finding that the pre-foreclosure purchaser lacks standing, we affirm the judgment of the Shelby County Circuit Court.

Shelby County Court of Appeals 12/08/14
Heather Lynn Spigner v. Michael Dean Spigner
E2013-02696-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Larry Michael Warner

In this post-divorce proceeding, Wife appeals the denial of her motion to partially set aside the final decree of divorce, the denial of two civil contempt petitions, and the trial court’s ruling with regard to the parties’ competing motions for modification of the parties’ permanent parenting plan. Because the order in the record with regard to both the contempt and parenting plan issues contain insufficient findings of fact or conclusions of law, we vacate and remand those issues to the trial court for reconsideration. We, however, affirm as to the denial of Wife’s motion to partially set aside the final divorce decree.

Cumberland County Court of Appeals 12/08/14
Audrey Bonner, et al. v. Dean Deyo, et al.
W2014-00763-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Donna M. Fields

This appeal results from the trial court’s suggestion of additur to a jury verdict stemming from an automobile accident. Plaintiff sued for damage to her vehicle and physical injuries sustained when she was rear-ended by one of the defendants. Plaintiff’s husband also asserted a loss of consortium claim. The plaintiffs sued both the driver of the vehicle and the vehicle’s owner, also husband and wife. As the matter of liability was stipulated, the only issues submitted to the jury was the amount of damages, if any, suffered by the plaintiffs. The jury returned a verdict awarding plaintiff $3,577.00 for her medical expenses, but declined to award the plaintiffs any damages claimed for other injuries, including any pain and suffering, loss of enjoyment of life, or loss of consortium. The trial court suggested an additur of $10,000.00 to the jury verdict. Defendants accepted the additur under protest and timely appealed to this Court. Discerning no error, we affirm.

Shelby County Court of Appeals 12/05/14
Valdo Bowers Banks et al v. Bordeaux Long Term Care, et al
M2013-01775-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

The principal issue in this appeal is whether the 2011 amendments to the Healthcare Liability Act (“HCLA”) extend the statute of limitations in Governmental Tort Liability Act (“GTLA”) cases. The trial court concluded that the 2011 amendments did not extend the statute of limitations for healthcare liability claims against governmental entities and dismissed all claims against the governmental entities as time-barred. Plaintiff appealed. After this appeal was filed, this court ruled in Harper v. Bradley Cnty., No. E2014-00107COA-R9-CV, 2014 WL 5487788 (Tenn. Ct. App. Oct. 30, 2014), that the 2011 amendments to the HCLA extend the GTLA’s one-year statute of limitations by 120 days when a plaintiff has complied with the pre-suit notice requirements of the HCLA, and we concur with the ruling in Harper. Because the plaintiff in this action complied with the pre-suit notice requirements of the HCLA and commenced this action against the governmental entities within the 120-day window, we have determined this action was commenced timely. Therefore, the plaintiff’s claims against the governmental entities should not have been dismissed as time-barred. Accordingly, we reverse the dismissal of these claims and remand for reinstatement of the claims and for further proceedings consistent with this opinion.

Davidson County Court of Appeals 12/04/14
Laurie McCallen Bainer, et al. v. Mamie Ruth McCallen, et al.
W2014-00627-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Walter L. Evans

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

Shelby County Court of Appeals 12/03/14
J. L. Fralix v. The University of Tennessee
M2014-00342-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Russell T. Perkins


Plaintiff, a former employee of the Middle Tennessee Research and Education Center of the University of Tennessee, appeals the termination of his employment for gross misconduct in violation of the University’s Code of Conduct. He contends the statement he admittedly made to a female employee on university property did not justify termination of his employment. We affirm the termination of plaintiff’s employment.

Davidson County Court of Appeals 12/02/14
Phyllis Louise Bige v. City of Etowah
E2014-00271-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge J. Michael Sharp

Phyllis Louise Bige, a former police officer with the City of Etowah, brought this retaliatory discharge action against the City, alleging that she was fired because of her failure to meet a quota for citations. Her claim was predicated on Tenn. Code Ann § 39-16-516 (2014). The trial court granted defendant summary judgment, finding that an earlier judgment of the United States District Court dismissing plaintiff’s federal claims – including a claim that her substantive due process rights were violated because defendant required her to commit an illegal act – collaterally estopped plaintiff from proceeding with her retaliatory discharge claim under Tenn. Code Ann. § 50-1-304 (2014). We affirm the summary judgment of the trial court, but on different grounds. We hold that defendant demonstrated plaintiff’s evidence is insufficient to establish a genuine issue of material fact as to two essential elements of her claim – (1) that she refused to participate in an illegal activity, and (2) that defendant fired her solely because of her refusal to participate in an illegal activity. We affirm the grant of summary judgment.

McMinn County Court of Appeals 12/01/14
In Re E.L.R.
E2014-00394-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Frank V. Williams, III

S.R. (Mother) and D.M.S. (Father) challenge the order (1) terminating their parental rights with respect to their minor son, E.L.R. (the Child) and (2) approving the adoption of the Child by his legal custodian and maternal grandmother, E.W. (Grandmother) and her husband, T.C.W. Jr. (T.W.) (collectively, Grandparents). After a trial, the court found, by clear and convincing evidence, that (1) grounds for termination exist as to both Mother and Father and (2) termination is in the best interest of the Child. The court further found, also by clear and convincing evidence, that the adoption of the Child by Grandparents is in the Child’s best interest. Mother and Father appeal. They contest the finding of grounds for termination as well as the trial court’s best interest determination. We affirm.

Loudon County Court of Appeals 12/01/14
Sherry Juanita Carter Berkshire v. Edwin Carl Berkshire, III
E2014-00022-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Dennis W. Humphrey

The primary issue in this divorce case is whether the trial court erred in failing to find that Sherry Juanita Carter Berkshire (Wife) was entitled to long-term alimony in futuro from Edwin Carl Berkshire, III (Husband). Instead, the court awarded four months of transitional alimony. Wife, who was sixty at the time of the divorce, has numerous health problems and is totally and permanently disabled. Husband, who is twenty years her junior, is able-bodied and works as an automobile mechanic, with an earning capacity of at least $62,000 per year. Taking into account the relevant statutory factors and the totality of the circumstances, we modify the trial court’s alimony judgment to make it an alimony in futuro award in the amount of $150 per week. We decline Wife’s request to increase the trial court’s award of attorney’s fees to her, but we do award Wife a reasonable attorney’s fee for professional services rendered, plus expenses, in connection with this appeal, in an amount to be determined by the trial court on remand. Further, we modify the trial court’s decree requiring Wife to refinance the mortgage on the marital residence. As modified in the ways indicated, we affirm the trial court’s judgment.

Roane County Court of Appeals 12/01/14
Scott Elmer McCarter v. Debra Lynn Walker McCarter
E2013-00890-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ben W. Hooper, II

In this divorce action involving the dissolution of a thirty-six year marriage, the wife appeals the trial court’s distribution of the marital estate and the amount of alimony in futuro she was awarded by the court. She also contends that the trial court judge erred by denying multiple motions for his recusal. Discerning no reversible error, we affirm.

Sevier County Court of Appeals 12/01/14
John Wayne McDonald v. Jamie Rhea McDonald Bunnell
M2014-00581-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Timothy L. Easter

John Wayne McDonald (“Father”) and Jamie Rhea McDonald Bunnell (“Mother”) had two children during their marriage before divorcing in 2012. The permanent parenting plan entered with the divorce named Mother the primary residential parent. After Mother remarried and relocated with the children, Father filed a petition to modify the existing parenting plan and asked the court to designate him the children’s primary residential parent. Father argued that the behavior of Mother’s new husband (“Stepfather”) around the children constituted a material change in circumstance and that the modification would be in the children’s best interest. At a hearing, Father presented evidence that Stepfather used foul language around the children and had, in jest, referred to them using a racial slur.  The trial courtfound thatStepfather’sbehavior,though “distastefuland ill-advised,”did not constitute a material change in circumstance. Father appealed. After careful consideration, we conclude that the evidence in the record does not preponderate against the trial court’s finding. We affirm the judgment of the trial court.

Lewis County Court of Appeals 11/26/14
Daniel Louis Pinkava v. Tawania Leigh Kovacs-Pinkava
M2013-02375-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Laurence M. McMillan, Jr.

This appeal involves the interpretation of a marital dissolution agreement (“MDA”). Wife filed suit to clarify the terms of the MDA regarding the apportionment of Husband’s future military retirement.  The trial court held that the MDA granted Wife twenty-five percent of Husband’s retirement benefits at the rank of captain, his rank at the time of divorce, including cost-of-living adjustments that will be in effect when he elects to retire. Husband appeals and argues that the award of retirement benefits was intended to be alimony in solido and was ascertainable at the time of divorce rather than at the time he elects to retire. We agree with the trial court’s interpretation and affirm the trial court in all respects.

Montgomery County Court of Appeals 11/26/14
In Re: MacKeznie N., et al.
M2013-02805-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ronald Thurman

Mother appeals the termination of her parental rights on the grounds of abandonment, contending that any failure to support or visit her children was not willful.Mother argues that her failure to support her children was a result of poverty and that her failure to visit was caused by obstruction on the part of the children’s grandmother/guardian. We find that the children’s grandmother/guardian failed to prove by clear and convincing evidence the existence of at least one of the statutory grounds for termination. We therefore reverse the termination of Mother’s parental rights.

Overton County Court of Appeals 11/26/14