Court of Appeals Opinions

Format: 05/25/2016
Format: 05/25/2016
Cheryl Erma Green v. YMCA of Memphis and the Mid-South
W2014-02190-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Gina C. Higgins

Appellant appeals the trial court‘s order enforcing a settlement agreement, arguing that the agreement was the product of coercion on the part of her attorney. We affirm.

Shelby County Court of Appeals 11/04/15
SNS Electrical Inspections, P.C., et al v. State of Tennessee
W2015-00145-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Nancy Miller-Herron, Commissioner, TN. Claims Commission

This is an appeal from the Tennessee Claims Commission involving a contract dispute. The Claims Commissioner concluded that the Appellants were not entitled to damages other than for services rendered because their services contract with the State was terminated for cause. Discerning no error, we affirm.

Court of Appeals 11/04/15
Charlotte D. Culpepper v. Brandon K. Culpepper
E2014-00815-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge W. Neil Thomas, III

This appeal arises from an action for divorce wherein the trial court ordered the parties’ marital debt to be divided in a nearly equal fashion. The trial court awarded child support to the wife, who was designated primary residential parent and who received a greater share of co-parenting time with the children. The court also awarded child support retroactive to the date of the filing of the divorce complaint. In addition, the court allocated both federal tax exemptions for the children to the wife. The husband has appealed. We affirm the trial court’s judgment with a slight modification in the amount of the child support arrearage award.

Hamilton County Court of Appeals 11/04/15
Cody Wade By His Co-Conservators, et al v. Tennessee Department of Finance And Administration, et al.
M2014-01736-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Russell T. Perkins

Appellant TennCare enrollee has been receiving 24/7 care from a private duty nurse in the home of his grandparents in Martin, Tennessee. TennCare determined that he could receive adequate care for less cost in a special respiratory care unit in St. Francis Hospital in Memphis. Enrollee, through his grandparents as his co-conservators, filed an administrative appeal. The administrative law judge agreed with TennCare. Appellants appealed that decision to chancery court, which reversed the administrative law judge’s decision as being arbitrary and capricious. TennCare appealed. We reverse the decision of the chancery court and affirm the administrative law judge’s opinion.

Davidson County Court of Appeals 11/03/15
Cynthia Rhea Helton v. Gregory Herbert Helton
E2014-01861-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor William Everett Lantrip

This post-divorce appeal concerns the trial court's denial of the husband's motion to terminate his spousal support obligation and to add his current wife as a beneficiary to his life insurance policy. We affirm the court's denial of the termination of the support obligation but reverse the court's denial of the request to amend the life insurance policy.

Anderson County Court of Appeals 11/03/15
Donald Nichols v. Knox County, Tennessee
E2014-01566-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Deborah C. Stevens

On August 13, 2010, following a violation of his probation, Donald Nichols began serving a sentence at the Knox County Detention Facility (KCDF). He was assigned to a second floor cell. The only bed available there was a top bunk. On August 20, 2010, Nichols was subjected to a physical examination by KCDF's medical staff. The staff detailed his medical history as pain in his lower back and extremities, as well as surgeries on his knee, foot, and ankle. On August 27, 2010, while he was asleep, Nichols rolled off his bed and hit the floor. As a result, his head was bloody, and he had intense pain in his neck and back. The on-duty nurse examined him and gave him ibuprofen for pain. In the weeks that followed, Nichols continued to have ongoing pain. He made multiple requests for medical assistance. He had an x-ray on November 5, 2010. That x-ray and a subsequent CT Scan and MRI revealed that he had several cervical fractures as a result of his fall. Through the efforts of his criminal attorney, Nichols was released from KCDF on November 10, 2010. Thereafter, in January 2011, he had surgery and incurred medical expenses of approximately $240,000. He filed a complaint against Knox County, alleging common law negligence. Nichols filed a motion for partial summary judgment. Knox County filed a motion for summary judgment.

Knox County Court of Appeals 11/02/15
Leslie Dean Ritchie v. Tennessee Board of Probation and Parole, et al.
M2015-00187-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal concerns the dismissal of an allegedly untimely petition for writ of certiorari due to the trial court’s lack of subject matter jurisdiction. Because the petitioner has alleged that he filed an administrative appeal, the disposition of which would render his petition timely, we reverse the dismissal of his petition. We remand this matter to the trial court for a determination regarding the timeliness of the petition following the conclusion of the administrative appeal.  

Davidson County Court of Appeals 10/30/15
Sarah Ward, et al v. Shelaena Ward
M2014-02237-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge John D. Wootten, Jr.

After her daughter was injured in an ATV accident, Plaintiff filed suit against her daughter’s step-grandmother, in whose home the daughter was staying on the night of the accident and who owned the ATV, alleging numerous causes of action sounding in negligence. The trial court granted Defendant’s motion for summary judgment; Plaintiffs appeal as to the claims for negligent entrustment and negligent supervision. Finding no reversible error, we affirm the judgment.

Court of Appeals 10/30/15
Robert Bean, et al v. Wilson County School System, et al.
M2014-02577-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Charles K. Smith

This case involves a residency dispute relevant to a child’s enrollment in a Wilson County public high school. After school officials determined that the child was not a resident of Wilson County, they informed her parents that the child could not attend high school in the county school system. The parents filed suit in chancery court seeking injunctive relief related to the child’s enrollment in school and participation in athletics. After an evidentiary hearing, the trial court determined that the child lived in Wilson County and enjoined the local board of education from interfering with the child’s enrollment. The trial court also declared that the child should be afforded the same opportunities as other students as it relates to participation in athletics. On appeal, we affirm.  

Court of Appeals 10/29/15
Tim Elswick, et al v. Shelaena Ward
M2014-02237-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Kelvin D. Jones

This case arises from a contract for home improvement services. After the work was completed and Homeowners failed to pay the contract price, Contractor filed a civil warrant and was awarded a judgment in general sessions court. Homeowners failed to timely appeal the judgment to circuit court. They subsequently filed a petition for writ of certiorari and supersedeas in circuit court contending Contractor was not duly licensed and the Home Improvement Contractor’s Act prevented Contractor from recovering on the contract. Homeowners subsequently filed a complaint asserting a claim under the Tennessee Consumer Protection Act. The circuit court denied the petition for writ of certiorari and dismissed the complaint as res judicata. We affirm.

Court of Appeals 10/29/15
Estate of Phyllis Thibodeau,et al v. St. Thomas Hospital
M2014-02030-COA-R3-CV
Authoring Judge: Judge Joseph P. Binkley, Jr.
Trial Court Judge: Presiding Judge Frank G. Clement

Plaintiffs, a husband and wife, filed suit against St. Thomas Hospital alleging claims for ordinary negligence and a derivative loss of consortium. The complaint alleged that St. Thomas was liable for injuries Plaintiffs sustained as a result of the hospital’s employees’ failure to properly support the wife as they attempted to transfer her from a bariatric stretcher to her automobile. St. Thomas moved to dismiss the claim on the grounds Plaintiffs failed to comply with the pre-suit notice and good faith certificate filing requirements of the health care liability statute set forth in Tenn. Code Ann. §§ 29-26-121 and -122. Plaintiffs responded that the complaint was not subject to the filing requirements because it sounded in ordinary negligence, not health care liability. The trial court held that Plaintiffs’ action is a health care liability action subject to the filing provisions of the health care liability statute and dismissed Plaintiffs’ claim with prejudice, finding it undisputed that Plaintiffs failed to comply with Tenn. Code Ann. §§ 29-26-121 and -122. Plaintiffs appeal. Having applied the clear language of the health care liability statute to Plaintiffs’ complaint, we conclude that the allegations contained therein meet the definition of a health care liability action as defined in Tenn. Code Ann. § 29-26-101(a)(1) and that Plaintiffs were required to comply with Tenn. Code Ann. §§ 29-26-121 and -122. Therefore, we affirm.

Davidson County Court of Appeals 10/29/15
Gela Annette Fabrizio v. Keith Anthony Fabrizio, Sr.
E2014-02067-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jerri S. Bryant

This appeal arises from an action for divorce wherein the trial court awarded alimony to the plaintiff wife, whom the court determined to be economically disadvantaged due to her inability to maintain employment. The husband has appealed the spousal support award, asserting that the trial court erred in its analysis of the applicable statutory factors. Discerning no error, we affirm.

Monroe County Court of Appeals 10/29/15
Sharon Lynnette Howard v.Randall Lynn Howard
E2014-01991-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Lawrence H. Puckett

In this divorce action involving the dissolution of a marriage of relatively short duration, the husband appeals the trial court's distribution of the marital estate, particularly the award of the marital residence and a 1969 Ford Mustang automobile to the wife. In order to more nearly return the parties to the positions they were in prior to the marriage, we modify the distribution of the marital estate to award the 1969 Ford Mustang automobile to the husband. We also modify the trial court's judgment concerning the marital residence to extend the wife's deadline for refinancing the debts associated with the marital residence to one year following the issuance of mandate by this Court. We affirm the trial court's judgment in all other respects.

Bradley County Court of Appeals 10/29/15
In re Kiara S.
E2015-00003-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge O. Duane Slone

Rachel L.S. (“Mother”) and Brandon M.R. (“Step-father”) filed a petition seeking to terminate the parental rights of Paul P. (“Father”) to the minor child Kiara S. (“the Child”). After a trial, the Circuit Court for Sevier County (“the Trial Court”) entered its order dismissing the petition after finding and holding, inter alia, that Mother and Step-father had failed to prove by clear and convincing evidence that grounds existed to terminate Father's parental rights for abandonment by willful failure to visit or for abandonment by willful failure to support. Mother and Step-father appeal the dismissal of their petition. We find that the evidence in the record on appeal does not preponderate against the Trial Court's findings, and we affirm.

Sevier County Court of Appeals 10/29/15
State of Tennessee Ex Rel. Inger Brown v. Larry W. Shipe, Jr.
E2014-02064-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Timothy E. Irwin

The issue presented in this case is whether the trial court erred in its calculation of child support when it omitted from the calculation support due from Larry W. Shipe, Jr. (Father) during a period of time when he was incarcerated. We hold that the Child Support Guidelines, Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(ii)(I) (2008), which provide that “incarceration shall not provide grounds for reduction of any child support obligation,” mandate that incarceration does not absolve an individual from his/her obligation to pay child support. Accordingly, we vacate the trial court’s judgment and remand for a recalculation of Father’s child support arrearage.

Knox County Court of Appeals 10/29/15
Judy Muffley v. David George
M2012-00097-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Jeffrey S. Bivins

This appeal arises from the grant of a Rule 60.02 motion to set aside a final judgment. The plaintiff, acting pro se, filed a motion to revive or renew a judgment against the defendant. Due to inclement weather, the plaintiff was unable to attend the hearing on her motion. The trial court dismissed her motion with prejudice and released the underlying judgment. Subsequently, the plaintiff obtained counsel and filed a Rule 60.02 motion to set aside the trial court’s order. The trial court granted her motion and reinstated the original judgment. Finding no abuse of discretion, we affirm the trial court’s decision.

Court of Appeals 10/28/15
Coffee County Board of Education v. City of Tullahoma, et al.
M2014-02269-COA-R3-CV
Authoring Judge: Judge Vanessa Jackson
Trial Court Judge: Judge Andy D. Bennett

The Coffee County Board of Education filed suit against the City of Manchester and the City of Tullahoma to recover certain tax revenue the Board alleges it was owed pursuant to Tenn. Code Ann. § 57-4-306. The trial court held that the Board of Education lacked capacity to bring the suit and dismissed the petition. The Board of Education appeals asserting that the authority to sue to recover the funds is necessarily implied from the General Assembly’s grant of express powers and duties to the Board. We agree. Pursuant to Tenn. Code Ann. § 49-2-203(b)(5), the General Assembly has granted the Board the power to “[e]mploy legal counsel to advise or represent the board.” We find that this provision vests the Board with the authority to file suit to recover the funds at issue. Therefore, we must reverse the trial court’s dismissal of the lawsuit.  

Court of Appeals 10/28/15
Robin Flores v. Keith Celebrezze
E2015-01885-COA-T10B-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Pamela A. Fleenor

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, from the Trial Court=s denial of a post-judgment motion to recuse in a breach of contract case. Having reviewed the petition for recusal appeal filed by the Defendant, Keith Celebrezze (ADefendant@), we affirm the Trial Court.

Hamilton County Court of Appeals 10/28/15
Robert John Skowronski v. Donna Rae Wade
M2014-01501-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ross H. Hicks

This case involves the modification of a permanent parenting plan naming Mother the primary residential parent. Father petitioned to be named the primary residential parent after Mother moved with the child out-of-state without providing prior notice. After a one-day hearing, the trial court found a material change in circumstance and that naming Father the primary residential parent was in the best interest of the child. Although conceding she failed to give notice of the move, Mother argues there was no material change in circumstance and a change in primary residential parent was not in the best interest of the child. We affirm.

Montgomery County Court of Appeals 10/27/15
3659 Mendenhall, Inc., et al v. City of Memphis, et al.
W2014-02401-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Walter L. Evans

This is a declaratory judgment action. Appellant's application for a permit to erect a sign was denied by Appellee, the Memphis and Shelby County Office of Construction Code Enforcement. Appellant petitioned the trial court to declare that Code Enforcement was estopped from denying the permit. As grounds for estoppel, Appellant cites a letter issued to the Appellant five years earlier by an assistant county attorney when Appellant sought advice on erecting multiple signs at its location. After a hearing, the trial court granted the Appellees' motion for involuntary dismissal. We affirm and remand.

Shelby County Court of Appeals 10/27/15
Harold Flynn Et Al. v. Citizens National Bank
E2014-02231-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Jon Kerry Blackwood

This appeal involves a long-term ground lease and leasehold financing. After numerous assignments to successor tenants and several foreclosures, Citizens National Bank (“the Bank”) became the successor tenant under the ground lease. After a fire at the property, the Bank notified the landlord that it intended to surrender the leased property and cease paying rent, according to its interpretation of a separate agreement executed by the parties. The landlord denied that the Bank was entitled to unilaterally surrender the leased property and cease paying rent. The landlord filed a detainer warrant in general sessions court and, after an adverse ruling, appealed to circuit court. The circuit court concluded that the separate agreement did not limit the Bank's liability under the ground lease, as the Bank claimed. Accordingly, the circuit court entered a judgment against the Bank for approximately $130,000 for unpaid rent, taxes, and attorney's fees. The Bank appeals, challenging the circuit court's interpretation of the separate agreement and its award of damages beyond the sum of $25,000. We affirm.

Sevier County Court of Appeals 10/26/15
Warren Bruce Maples v. Tennessee Farmers Mutual Insurance Co., et al.
E2015-00285-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Amy V. Hollars

In this appeal, the plaintiff alleged, inter alia, breach of contract by the insurance carrier. Pursuant to settled law in this state, the plaintiff had one year plus sixty days to institute suit on the policy. This action was filed one year and 134 days after the fire loss. The trial court found the lawsuit was not timely filed. The plaintiff appeals. We affirm.

Cumberland County Court of Appeals 10/26/15
Richard Garner v. Coffee County Bank
M2014-01956-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Vanessa Jackson

Plaintiff and his former wife purchased a house together in 2002. The former wife moved out of the house with all of her belongings in 2009, and the house suffered damage from a fire in 2010. The former wife was a named insured on the house, and each of the insurance checks issued to cover property loss and living expenses was made payable to both Plaintiff and his former wife. The president of the bank that held a mortgage on the house had a separate business relationship with the former wife. According to Plaintiff, the bank president informed him that he could not have any of the insurance proceeds unless one-half was given to the former wife, which proceeds were used to pay down the former wife’s separate and unrelated loan. The bank ultimately foreclosed on the house because the loan became delinquent. Plaintiff filed a complaint against the bank and president asserting conversion, wrongful foreclosure, and other related causes of action. The bank and the president filed a motion for summary judgment. Plaintiff did not file his opposition within the time prescribed by the procedural rules, and the trial court granted the bank and the president’s motion for summary judgment. On appeal, we affirm the trial court’s judgment in some respects and reverse the judgment in other respects. Plaintiff’s deposition transcript that the trial court considered in ruling on the motion for summary judgment raised genuine issues of material fact that precluded summary judgment on several of the causes of action alleged.  

Coffee County Court of Appeals 10/23/15
Elizabeth Eberbach v. Christopher Eberbach
M2014-01811-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James G. Martin, III

This post-divorce case involves issues concerning reimbursement for the parties’ children’s uncovered medical expenses and an award of attorney’s fees in favor of Mother. Father/Appellant contends that he is not responsible for the uncovered medical expenses on grounds that Mother/Appellee failed to timely send him copies of the bills as required under the permanent parenting plan. Father also contests the award of attorney’s fees and costs. Discerning no error, we affirm and remand.  

Williamson County Court of Appeals 10/23/15
In re: A.J.
M2014-02287-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Sharon Guffee

This is the second appeal from a finding of criminal contempt. Appellant and his wife originally filed a petition to have the Appellees’ daughter adjudicated dependent and neglected. The trial court entered an order, in which the parties could not contact each other or each other’s families. Appellant made contact with Appellees’ daughters on multiple occasions via text message and once in person. The Appellees filed a petition for contempt against Appellant, and the trial court found the Appellant guilty of four counts of criminal contempt and sentenced Appellant to the maximum punishment allowed for each contempt conviction with the sentences to run consecutively. On the first appeal, this Court affirmed the convictions of criminal contempt but vacated the sentence and remanded the case to the trial court with instructions to resentence the Appellant and explain its reasons for the sentence it imposed. On remand, the trial court found the Appellant guilty of twenty eight counts of criminal contempt. The trial court imposed twenty-four hour sentences for each count except one, for which the trial court imposed a five-day sentence. Appellant appeals from the convictions, the sentence, and the trial court’s denial of a motion to recuse. Affirmed in part, reversed in part, and remanded.

Williamson County Court of Appeals 10/22/15