Court of Appeals Opinions

Format: 07/06/2015
Format: 07/06/2015
In Re Estate of Dorothy Jean McMillin
E2014-01199-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Michael W. Moyers

This is an estate case. Appellant was the executor of his mother’s estate. Appellant’s siblings, Appellees herein, brought suit against the Appellant in the Knox County Chancery Court for depletion of the estate alleging he exercised undue influence over the decedent to obtain certain funds for himself and his wife. A jury awarded the estate $284,800, and that award is on appeal. While that appeal was pending, the Probate Division of the Knox County Chancery Court heard Appellees’ motion filed in the estate case to have the Appellant removed as executor of the estate. The Probate Division of Knox County Chancery Court granted the Appellees’ motion removing the Appellant. Appellant appeals, arguing that because the depletion case was on appeal, the Probate Division of the Knox County Chancery Court lacked jurisdiction to remove him as executor of the estate. Discerning no error, we affirm.

Knox County Court of Appeals 02/12/15
Laney T. Efferson, et al v. Barbara R. Stephens
M2014-00326-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Tom E. Gray

Plaintiffs,  two  grandchildren of the  decedent  who  are  executors of their  deceased mother‟s estate, brought this action on behalf of the decedent contending that Barbara Stephens, one of the decedent‟s three daughters, unduly influenced the decedent to name Ms. Stephens as the sole beneficiary of her estate, to the exclusion of her other children and grandchildren. The decedent died in 2009, this action was commenced in August 2012, and the decedent‟s will was admitted to probate in January 2013, without contest.  Thereafter, Ms. Stephens filed a motion for summary judgment for lack of standing and two motions to dismiss under Tenn. R. Civ. P. 12.02(6) for lack of standing and lapse of  the three-year statute of limitations. The trial court granted all three motions. Plaintiffs appeal contending, inter alia, they have standing because their mother‟s estate suffered a financial loss when Ms. Stephens deprived their mother, and her estate, of the substantial economic interests (her inheritance), and their claims are not time-barred, because the statute of limitations was tolled due to the decedent‟s incompetence under Tenn. Code  Ann. § 28-1-106. Because the decedent‟s will was admitted to probate and Plaintiffs did  not attempt to contest the validity of the decedent‟s will until after summary judgment was granted, it was undisputed, when the trial court ruled on this matter, that the decedent  died  testate, and  Ms.  Stephens  was  the  sole  beneficiary of the decedent‟s  estate. Therefore, neither Plaintiffs, individually, nor their mother‟s estate suffered a “distinct and palpable injury” for which the court could grant relief; as a consequence, they do not have standing. See Lynch v. City of Jellico, 205 S.W.3d 384, 395 (Tenn. 2006). We, therefore, affirm the summary dismissal of this action.

Sumner County Court of Appeals 02/11/15
In Re Malaysia C.
M2014-01019-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James G. Martin, III

This is a termination of parental rights case brought by Appellees, who are the prospective adoptive parents. Although Mother/Appellant initially joined in the petition to terminate her parental rights and for adoption, she later withdrew her consent. Appellees moved forward with the termination of Mother’s parental rights on their own petition, which the trial court granted. Mother now appeals the trial court’s termination of her parental rights on the ground of abandonment by willful failure to support the child. Mother also appeals the trial court’s finding that termination of her parental rights is in the child’s best interest. Because there is clear and convincing evidence in the record to support both the ground for termination of Mother’s parental rights and the trial court’s finding that termination is in the child’s best interest, we affirm and remand.

Williamson County Court of Appeals 02/10/15
In Re Estate of William Daniel Oakley
M2014-00341-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge George C. Sexton

This appeal arises from the denial of a petition to establish a lost will. Following a bench trial in which the opportunity and motive of key witnesses to destroy the original will were at issue, the trial court failed to “find the facts specially” as mandated by Rule 52.01 of the Tennessee Rules of Civil Procedure. The only findings of fact made by the trial court read: “The evidence in the case was relatively undisputed so this court will not reiterate a lot of the facts. The dispute between the parties is over how the evidence is to be interpreted.” Whether or not the evidence was “relatively undisputed” is debatable; nevertheless, we have concluded thatconflictinginferencescan be drawn from undisputed evidence concerning the dispositive issue, that being whether persons who had access to the original will had the motivation to destroy the original will. Therefore, it was incumbent upon the trial court to make findings, even on stipulated or undisputed facts. See Lovelace v. Copley, 418 S.W.3d 1, 35 (Tenn. 2013). Because the trial court did not make sufficient findings of fact to afford this court a clear understanding of the basis of its decision, and realizing that the credibility of two key witnesses who may have had the opportunity and motive to destroy the original will was at issue at trial, we are unable to conduct an effective de novo review. Under these circumstances, we would generally remand a case such as this to afford the trial court the opportunity to state its findings of fact and conclusions of law and enter judgment accordingly; however, the judge who tried this case retired in August of 2014. Therefore, we have no choice but to vacate the judgment and remand for a new trial.

Cheatham County Court of Appeals 02/10/15
Eastman Credit Union v. Chadwick D. Hodges
E2013-02039-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Thomas J. Wright

On November 19, 2012, Eastman Credit Union (“Eastman”) filed suit against Chadwick D. Hodges (“Hodges”) seeking recovery for indebtedness owed by Hodges pursuant to two separate credit agreements. Eastman’s complaint noted that it had declared all amounts owed under the agreements to be due and payable and prayed that a judgment be entered in its favor for all monetary advances made under the agreements.

Hawkins County Court of Appeals 02/10/15
In Re Estate of Bill Morris
M2014-00874-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Jeffrey F. Stewart

This is a will contest. Appellants, Bill Morris, Jr., and Cheryl Morris, appeal the trial court‟s determination that their Father‟s will was properly executed pursuant  to the requirements of Tennessee Code Annotated Section 32-1-104.  We conclude that the witnesses to the will only signed the affidavit of attesting witnesses and  not the will itself.  Accordingly, we reverse and remand.

Franklin County Court of Appeals 02/09/15
Judy Woodard v. Farmers Family Restaurant, et al.
M2014-00132-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Michael R. Jones

Plaintiff filed suit against her former employer for sexual discrimination, employer retaliation, intentional infliction of emotional distress, negligent hiring, retention and supervision practices, and workers’ compensation retaliation. The parties entered into an agreement which settled Plaintiff’s claims; pursuant to the terms of the agreement,the parties submitted an agreed order dismissing the case which was entered by the court. Thereafter, Plaintiff filed a motion to vacate the order of dismissal, and her former employer filed a motion to enforce the settlement. After a hearing on the motions, the court entered an order dismissing the complaint. Plaintiff filed a motion for relief, which the court denied. Finding no error, we affirm the judgment of the trial court.

Dickson County Court of Appeals 02/09/15
Michael Savage v. City of Memphis
W2014-01067-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Arnold B. Goldin

In this appeal, we are asked to determine whether an Assistant City Attorney of the City of Memphis was an agent properly authorized to settle a dispute with a former employee. The former employee sued the City to enforce a settlement agreement he purportedly reached with the Assistant City Attorney for an amount in excess of $500.00. His complaint alleged that although he was never informed that the agreement was contingent on the Mayor’s approval, the Mayor subsequently rejected the agreement, and the City, based on the Mayor’s rejection, refused to honor it. The Memphis City Charter provides that the City Attorney has independent authority to settle claims against the City for amounts less than $500.00, but settlements for amounts exceeding $500.00 must be entered “by and with the approval of the Mayor.” After a period of discovery, the City filed a motion for summary judgment contending that the former employee’s evidence was insufficient to establish that the Assistant City Attorney acted with authority to bind the City to the settlement agreement. The former employee opposed the City’s motion and filed his own motion for summary judgment, in which he argued that evidence established the Mayor either actually or apparently authorized the Assistant City Attorney to enter the settlement agreement. The trial court granted the former employee’s motion for summary judgment after finding that the Assistant City Attorney acted with apparent authority to enter the settlement agreement. On appeal, we find that the record does not contain evidence sufficient to establish that the Assistant City Attorney acted with either actual or implied authority to bind the City. In light of our findings, we reverse the trial court and hold that summary judgment should be granted in favor of the City.

Shelby County Court of Appeals 02/09/15
Tracy Diane Bolton v. William Jeff Bolton
M2013-01894-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Jim T. Hamilton


This divorce action follows a long-term marriage of nearly twenty-five years.  Husband appeals the trial court's property division, determination of his income, award of transitional alimony to Wife, and the award of attorney's fees to Wife.  We affirm.

Maury County Court of Appeals 02/05/15
Jennifer Furnas Coleman v. Marty Alan Coleman
W2011-00585-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Arnold B. Goldin

This is an appeal of attorney’s fees in a post-divorce matter. The mother filed a petition to modify the permanent parenting plan suspend the father’s parenting time with the parties’ two minor children. The mother incurred around $16,000.00 in legal expenses litigating her petition and then changed attorneys. The parties eventually settled the petition with respect to the visitation issues, reserved the issue of attorney’s fees. Finding that the mother’s legal expenses of over $350,000.00 were not reasonable, the  Master recommended that the father only be required to reimburse the mother for approximately $124,000.00. The trial court the award further, awarding the mother approximately $42,000.00. Mother appeals, arguing that the trial court abused its discretion because all of her attorney’s fees were reasonable. Discerning no abuse of discretion, we affirm.

Shelby County Court of Appeals 02/04/15
Diana L. Powell, et al v. Penny D. Clark
M2014-01083-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert E. Corlew, III

This appeal involves a limitation of liability in an insurance policy. Appellant Allstate Insurance Company seeks reduction of its uninsured motorist liability by amounts paid by Appellee insured’s automobile insurance carrier. In light of the legislative intent that offsets should be limited to monies received from legally responsible parties or entities, and the limiting language used in the Allstate policy, we conclude that the trial court correctly denied the offset in this case. Affirmed and remanded.

Rutherford County Court of Appeals 02/03/15
In Re Robert C.
M2014-00702-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Donna Scott Davenport

This  is  a  termination  of parental  rights  case.  The  trial  court  terminated Appellant/Father’s parental  rights  on the grounds of:  (1)  abandonment; (2)  substantial  non-compliance  with  the  permanency plan;  and  (3)  persistence  of conditions. Because the grounds for termination of Father’s parental rights are  met by clear and  convincing  evidence,  and there  is  also  clear  and  convincing evidence that termination of Father’s parental rights is in the best interest of the child, we affirm and remand.

Rutherford County Court of Appeals 02/03/15
In Re Aalyah P.
W2014-01900-COA-R3-PT
Authoring Judge: PER CURIAM
Trial Court Judge: Judge Robert L. Childers

The Notice of Appeal was not timely filed, and we therefore have no jurisdiction to consider this appeal. Consequently, this appeal is dismissed.

Shelby County Court of Appeals 02/03/15
Joy Littleton, et al v. TIS Insurance Services, Inc.
E2014-00938-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Deborah Stevens

During a prior lawsuit, a construction company – in exchange for a covenant not to execute against the company’s assets – assigned to the entity that obtained a judgment against it the company’s insurance coverage claims. The plaintiffs in the previous action thereafter assigned those rights to the current plaintiffs to allow them to step into the shoes of the construction company and bring suit against the insurance broker. The trial court entered judgment on the pleadings in favor of the insurance broker on the ground that the current plaintiffs would not be entitled to recover any compensatory damages at trial. The plaintiffs appeal. We reverse.

Knox County Court of Appeals 02/03/15
Frederick Zahn v. Margaret Zahn Logan
M2014-00441-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge James G. Martin, III

In this post-divorce action, Father filed a petition to modify the permanent parenting plan to make him the primary residential parent. The trial court found a material change of circumstance but concluded that it was not in the child’s best interest to change the primary residential parent. We find no error in the trial court’s decision and affirm.

Williamson County Court of Appeals 02/02/15
Carolyn Ann Farley v. Roger Dale Farley, Sr.
M2014-00814-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Michael Binkley

In this post-divorce action, Father filed a petition to modify the permanent parenting plan to make him the primary residential parent. The trial court found a material change of circumstance but concluded that it was not in the child’s best interest to change the primary residential parent. We find no error in the trial court’s decision and affirm.

Hickman County Court of Appeals 02/02/15
Suntrust Bank v. Walter Joseph Burke a/k/a Walter Joseph Burke, Jr.
W2014-01443-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Karen R. Williams

This is a garnishment case. Appellee bank served a writ of garnishment on the Appellant realty company for the wages of Appellee’s debtor, Walter Burke. Appellant answered the garnishment stating that Mr. Burke was an independent contractor, and that Appellant owed him no funds at the time of the garnishment. During the six-month period after the garnishment was served, Appellant paid Mr. Burke commissions totaling $10,671.23, but paid no monies pursuant to the garnishment filed by Appellee. Appellee later filed a motion for judgment against Appellant for its failure to honor the garnishment for the statutory six-month period. Appellant responded to the motion, arguing that it was not subject to continuous garnishment because Tennessee Code Annotated Section 26-2-214 only applies to employers. The trial court held that the Appellant was subject to the six-month, continuous garnishment period and awarded Appellee bank judgment in the amount of $2,667.81, representing twenty-five percent of commissions paid to Mr. Burke. Appellant appeals. We reverse and remand.

Shelby County Court of Appeals 02/02/15
Leon Williams v. Jannie Williams - Dissent
M2013-01910-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Philip E. Smith

Because I disagree with the Court’s interpretation of the term “prevailing party” as used in the parties’ Martial Dissolution Agreement (“MDA”), I respectfully dissent. Citing Fannon v. City of LaFollette, 329 S.W.3d 418 (Tenn. 2010), the majority concludes “a party may be recognized as the prevailing party if that party achieves the primary benefit sought in instituting the legal proceeding and/or if the action modifies the opposing party’s behavior in a way that provides a direct benefit, regardless of the fact there was no hearing or judgment on the merits.” In my view, Fannon does not stand for such a proposition, and Fannon does not represent a departure from the interpretations of the term “prevailing party” by the United States Supreme Court.

Davidson County Court of Appeals 01/30/15
Leon Williams v. Jannie Williams
M2013-01910-COA-R3-CV
Authoring Judge: Presiding Frank G. Clement, Jr.
Trial Court Judge: Judge Philip E. Smith

In this post-divorce proceeding, Wife filed a petition for civil contempt to compel Husband to comply with the parties’ marital dissolution agreement (“MDA”) by either refinancing, paying in full, or selling real property mortgaged in her name in order to remove her from any liability on the indebtedness. Husband responded by filing a series of petitions for contempt, contending, inter alia, breach of the duty of good faith and fair dealing, unclean hands, breach of contract, and abuse of process for Wife’s alleged failure under the MDA to execute certain documents which would have facilitated Husband’s “assumption” of the existing mortgage. On the eve of the evidentiary hearing on Wife’s petition for contempt, Husband paid off the indebtedness. At the hearing that followed, the trial court ruled that the issue of Husband’s civilcontempt was moot due to the fact that he belatedlycomplied with the MDA; nevertheless, the court also ruled that Wife was entitled to recover her reasonable attorney’s fees, pursuant to the enforcement provision of the MDA, because she was the prevailing party. The enforcement provision of the MDA states: “In the event it becomes reasonably necessary for either party to institute legal proceedings to procure the enforcement of any provision of this Agreement, the prevailing party shall also be entitled to a judgment for reasonable expenses, including attorney’s fees, incurred in prosecuting the action.” Husband appeals contending Wife was not the prevailing party because there was never a ruling on the merits of her claim, and, therefore, she is not entitled to recover any of her attorney’s fees; he also challenges numerous other rulings by the trial court. For her part, Wife seeks all of her attorney’s fees incurred in the trial court, as well as attorney’s fees related to this appeal. We affirm the trial court’s determination that Wife was the prevailing party because, as the trial court correctlyfound,it was reasonablynecessaryfor Wife to institute legal proceedings to enforce Husband’s compliance with the MDA, and even though there was no hearing or ruling on the merits of her enforcement claim, “but for” Wife’s petition, Husband would not have fulfilled his obligation under the MDA to remove Wife from all liability on the mortgage debt. See Fannon v. City of LaFollette, 329 S.W.3d 418 (Tenn. 2010). We also affirm the trial court’s discretionary decision to award Wife a portion of her attorney’s fees. As for Husband’s remaining issues, we find that these are moot or they have been waived. Finally, we have determined that Wife is entitled to her attorney’s fees on appeal because she is the prevailing party on appeal.

Davidson County Court of Appeals 01/30/15
Patrick Richard Moorcroft v. Flora Templeton Stuart v. Natalie Talmage Moorcroft
M2013-02295-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge C. L. Rogers

This case began as an action for legal separation between a husband and wife. The two quickly entered into an agreed temporary parenting plan providing for the custody of their children. However, the children’s maternal grandmother intervened, seeking registration and enforcement under the Tennessee Uniform Child Custody Jurisdiction and Enforcement Act of a Kentucky grandparent visitation order. The circuit court granted registration and enforcement of the order. The parents appealed. Because we conclude that the grandmother was required to seek visitation under the Tennessee Grandparent Visitation Statute, we reverse the trial court’s decision.

Sumner County Court of Appeals 01/30/15
Travelers Casualty And Surety Company of America v. City of South Pittsburg,Tennessee
M2014-00269-COA-R9-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge J. Curtis Smith

In a suit arising out of a construction project at a wastewater treatment facility, the City of South Pittsburg brought an action against an engineering firm and a construction firm for breach of contract, negligence and professional negligence. The insurance company which issued a performance bond covering the project was added as a partyand moved for summary judgment on the ground that the City had not instituted a proceeding to recover under the bond within the two year period specified in the bond for doing so. The insurance company appeals the denial of its motion. Finding no error, we affirm the judgment of the trial court.

Marion County Court of Appeals 01/30/15
Nathan B. Overton et al. v. Westgate Resorts, LTD., L.P. et al.
E2014-00303-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This case involves the propriety of an award of punitive damages in the amount of $600,000. The plaintiffs sued the defendant timeshare developer, seeking to rescind a contract for purchase of a timeshare interest. The plaintiffs alleged, inter alia, that the defendant was guilty of fraud and misrepresentation, as well as violations of the Tennessee Time-share Act and the Tennessee Consumer Protection Act. Following the hearing, the trial court ruled in favor of the plaintiffs and allowed them to rescind the contract, ordering repayment of their purchase money. The trial court found that the defendant had violated the respective statutory provisions and was guilty of fraud and misrepresentation. The trial court thus determined that an award of punitive damages was proper, and following a second hearing regarding the amount of the punitive damage award, set such award at $600,000. The defendant has appealed this award. While we affirm the determination of the trial court that $600,000 represents a reasonable award of punitive damages considering all applicable factors, we must order remittitur of that award to $500,000 in accordance with the statutory cap found in Tennessee Code Annotated § 29-39-104(a)(5).

Sevier County Court of Appeals 01/30/15
Sandra Lynn Hobbs v. Lisa Hobbs Nottingham, et al.
E2013-002602-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor John S. McLellan, III

The quasi-parties in this matter had their bids accepted at a judicial sale, but they failed to carry out their purchases and close on the properties. After a re-sale was conducted, the trial court charged the quasi-parties with the difference between the amount of the original bids and the amount received for the properties at the re-sale. They were also assessed the expenses resulting from the re-sale. The quasi-parties appeal. We affirm.

Sullivan County Court of Appeals 01/30/15
American Heritage Apartments, Inc. v. The Hamilton County Water and Wastewater Treatment Authority, Hamilton County, Tennessee
E2014-00302-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jacqueline S. Bolton

The plaintiff, American Heritage Apartments, Inc. (“American Heritage”), commenced this lawsuit to protest a monthly flat charge in the amount of $8.00 per unit imposed by the defendant, The Hamilton County Water and Wastewater Authority (“the County WWTA”), on all of its sewer customers. The charge was instituted to fund a program designed to repair and refurbish private service laterals, defined as pieces of pipe that connect private property to the sewer lines. American Heritage sought declaratory judgment that the County WWTA, inter alia, had exceeded its authority by imposing an unjust and discriminatory charge. The County WWTA filed a motion to dismiss the complaint, which the trial court initially denied. Upon the County WWTA’s amended motion to dismiss and motion for summary judgment, American Heritage’s motion for partial summary judgment, and supplemental briefs submitted by both parties, the trial court granted summary judgment in favor of the County WWTA. The court found that because the Utility District Law of 1937, Tennessee Code Annotated §§ 7-82-101 to -804, provided an administrative procedure for contesting utility charges, no private right of action was available. The court further ruled that in the alternative, if a private right of action were allowed by this Court on appeal, American Heritage’s complaint could be certified as a class action lawsuit. American Heritage has appealed. Having determined that the trial court erred by applying the Utility District Law of 1937 to a non-utility district water and wastewater treatment authority, we reverse the grant of summary judgment. We affirm the trial court’s ruling regarding the class action certification.

Hamilton County Court of Appeals 01/30/15
In Re Guardianship of Taylour L., et al.
W2013-01296-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert Benham

This appeal concerns a guardianship proceeding for four children. The mother of the children (“Mother”) was killed while on duty as a police officer. The children’s maternal grandmother and the father (“Father”) of three of the children sought custody of all four children. The trial court ultimately awarded custody to the children’s maternal grandfather “Grandfather”), although Grandfather was not a party to the proceedings and did not request guardianship of the four children. Father appeals, asserting that the trial court erred in not awarding custody to him. We have determined that the trial court erred in awarding Grandfather guardianship of Father’s three biological children without first determining that there would be a substantial risk of harm to the children should Father be appointed guardian. Furthermore, we find that the trial court erred in awarding Grandfather guardianship of Mother’s fourth child without conducting a thorough best interest analysis. Therefore, we vacate the trial court and remand for further proceedings.

Shelby County Court of Appeals 01/29/15