Court of Appeals Opinions

Format: 12/10/2016
Format: 12/10/2016
Jean Dedmon v. Debbie Steelman, et al.- Concur
W2015-01462-COA-R9-CV
Authoring Judge: Special Judge Joe G. Riley
Trial Court Judge: Judge Clayburn Peeples

I fully concur with the majority opinion by my learned colleague based upon existing case law, which we are bound to follow as an intermediate appellate court. I write separately to express my concerns relating to modern billing practices of medical providers and their effect upon present-day personal injury litigation . Were it not for existing case law which we are bound to follow as an intermediate appellate court, I would apply the West rationale to personal injury litigation.

Crockett County Court of Appeals 06/02/16
Omni Insurance Company A/S/O Lisa J. Earl v. Dennis R. Nickoloff
E2015-01450-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Donald R. Elledge

This appeal arises from an accident involving an automobile and a pedestrian that occurred in Anderson County. The pedestrian's insurer, as subrogee of the pedestrian, filed the instant action, alleging that the defendant driver should be held liable for negligence and negligence per se. Following a bench trial, the trial court assessed liability against the driver and awarded the pedestrian's insurer $50,000.00 in damages. The driver timely appealed. On appeal, the driver filed a statement of the evidence, approved by the trial court, that contains insufficient evidence to support the trial court's judgment. We therefore reverse the trial court's judgment.

Anderson County Court of Appeals 06/02/16
Scott Elmer McCarter v. Debra Lynn Walker McCarter
E2015-00549-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ben W. Hooper

In this second appeal involving the instant divorce action, the wife appeals the trial court's enforcement of an enhanced judgment lien on behalf of her former counsel and the court's inclusion of certain tractor tires within the farm equipment previously awarded to the husband in the final judgment for divorce. Having determined that the record contains no proof of notice to the wife of the hearing at which the trial court awarded the enhanced judgment lien, we vacate the portion of the judgment enforcing the enhanced portion of the attorney's lien. We remand for further proceedings consistent with this opinion, including an evidentiary hearing addressing enforcement of the enhanced portion of the attorney's lien with notice to include the wife's former counsel. We affirm the trial court's judgment in all other respects.

Sevier County Court of Appeals 06/01/16
In re Hailey S.
M2015-00842-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ken Witcher

This appeal involves the termination of a father’s parental rights to his child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of his rights on the statutory grounds of abandonment for failure to remit child support, substantial noncompliance with the permanency plans, and the persistence of conditions which led to removal. The court further found that termination was in the best interest of the child. The father appeals. We affirm the judgment of the trial court as modified in this opinion.

Macon County Court of Appeals 05/31/16
In re Trenton W.
M2015-01223-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Louis W. Oliver

This appeal arises from the termination of a mother’s parental rights. When the child turned six months old, a juvenile court found Mother and Father’s child dependent and neglected and placed the child in the custody of the paternal grandparents. After having custody for nearly five years, the paternal grandparents filed a petition for termination of Mother’s and Father’s parental rights and for adoption in chancery court. The trial court terminated Father’s parental rights at a separate hearing. At the hearing on Mother’s parental rights, the trial court found clear and convincing evidence that Mother, who was incarcerated when the petition to terminate was filed, abandoned the child. The court also found it to be in the best interest of the child to terminate Mother’s parental rights. Mother appeals, and we affirm.  

Sumner County Court of Appeals 05/31/16
Ricky Flamingo Brown, Sr. v. State of Tennessee
M2015-00415-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Robert N. Hibbett, Commissioner, TN Claims Commission

Inmate appeals the dismissal of his claim that funds awarded to him as a result of a claim he filed with the Tennessee Claims Commission were incorrectly applied to his overdrawn inmate trust account. Finding that the application of the funds in this manner did not violate the pertinent statutes, we affirm the judgment of the Commission.  

Court of Appeals 05/31/16
Delwin L. Huggins et al. v. R.Ellsworth McKee et al.
E2015-01942-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Jon Kerry Blackwood
Appellant appeals the trial court‘s grant of summary judgment dismissing his claims
against a limited liability corporation surrounding the sale of the corporation and the
distribution of the proceeds to one member. Although we reverse the trial court‘s ruling
with regard to the application of Tennessee Code Annotated Section 48-237-101(d), we
otherwise affirm the trial court‘s ruling granting summary judgment to the corporation on
all claims asserted by Appellant.
 
Hamilton County Court of Appeals 05/31/16
In re Jayden L. et al.
E2015-02054-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Sharon M. Green

Mother appeals the termination of her parental rights as to her three biological children. The trial court terminated Mother’s parental rights on the grounds of abandonment by an incarcerated parent and persistent conditions. The trial court also found that termination of Mother’s parental rights was in the children’s best interest. We have reviewed the trial court’s findings as to the grounds for termination and the best interests of the children, and we conclude that they are supported by clear and convincing evidence and therefore affirm the judgment of the trial court.

Washington County Court of Appeals 05/31/16
Larry Bachar v. Mike Partin, et al.
M2015-00724-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge J. Curtis Smith

In suit arising out of a motor vehicle accident, Defendants appeal the jury’s finding that Defendant driver was 60 percent liable for the accident, the award of damages for lost past and future income, and the failure of the trial court to hold a hearing on alleged juror misconduct. Finding that the jury’s apportionment of liability and award of damages are supported by material evidence and that there is no factual basis for a hearing on jury misconduct, we affirm the judgment.

  

Franklin County Court of Appeals 05/27/16
In re Maison W.
M2015-02153-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor J. B. Cox

Deanna R.H.B. (“Mother”) appeals the order of the Chancery Court for Lincoln County (“the Trial Court”) finding and holding that it had been proven by clear and convincing evidence that grounds existed to terminate Mother’s parental rights to the minor child Maison W. (“the Child”) for persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3), and for severe abuse pursuant to Tenn. Code Ann. § 36-1-113(g)(4), and that it was in the Child’s best interest for Mother’s parental rights to be terminated. We find and hold that the evidence in the record does not preponderate against the Trial Court’s finding by clear and convincing evidence that grounds existed to terminate Mother’s parental rights to the Child and that it was in the Child’s best interest to terminate Mother’s parental rights. We, therefore, affirm.

Lincoln County Court of Appeals 05/27/16
Roy Leonard Sewell v. Diane Holland Sewell
E2015-00983-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge W. Neil Thomas, III

In this post-divorce parenting and child support action, the father filed petitions in January 2013 to register and modify the parties' 1997 Georgia divorce decree in the Hamilton County Circuit Court (“trial court”). In the divorce decree, the Georgia court had, inter alia, designated the mother as the primary residential parent of the parties' infant son and directed the father to pay weekly child support. The trial court subsequently entered an agreed order registering the Georgia decree. Following a hearing conducted in March 2013, the trial court entered an order designating the father as the primary residential parent, incorporating a modified permanent parenting plan order, and setting child support to be paid by the mother. The mother subsequently filed a petition to register and enforce a 1998 Georgia court order finding the father in contempt and a 2003 Georgia income deduction order.

Hamilton County Court of Appeals 05/27/16
Julia H. "Robin" Meyers, et al. v. First Tennessee Bank, N.A.
E2014-01943-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Douglas T. Jenkins

This is a Tenn. R. App. P. 9 appeal by First Tennessee Bank, N.A. (the Trustee) from the trial court's order denying the Trustee's motion for summary judgment. The beneficiaries of the Ray Haney TUW Residual Trust (the Trust) filed suit against the Trustee for breach of trust. The Trustee asserts that the suit is time-barred; it relies upon Tenn. Code Ann. § 35-15-1005 (2007). The trial court denied the Trustee's motion, holding that there are genuine issues of material fact with respect to whether the suit was timely filed. The Trustee filed an application for an interlocutory appeal, which the trial court granted. We followed suit. We now affirm the trial court's decision denying summary judgment.

Greene County Court of Appeals 05/27/16
John A. Brubaker v. H. T. Beckham
M2014-01751-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge George C. Sexton

A dispute arose between the purchaser of real property and a prior owner over certain personalty, including equipment and motor vehicles, left on the real property. After the prior owner removed one item of personalty and dumped tree waste on the real property, the purchaser filed suit against the prior owner seeking, among other things, injunctive relief. Following a hearing, the trial court granted the requested injunctive relief and concluded that the personalty that remained on the real property was owned by the purchaser. The prior owner of the real property appeals the trial court’s decision that the personalty remaining on the real property was abandoned. Because the trial court’s order does not satisfy the requirements of Rule 52.01 of the Tennessee Rules of Civil Procedure, we vacate the judgment and remand for further proceedings.

Cheatham County Court of Appeals 05/26/16
Horace Paul Eledge v. Jerry Paul Eledge
M2015-01055-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Stella L. Hargrove

This is an action by Father to rescind a quitclaim deed on the ground the deed was procured by Son’s fraud or constructive fraud. Father, believing his property might be subject to the claims of creditors, sought advice from Son on how to preserve his real property for the benefit of his two children and grandchildren. Son engaged an attorney to prepare a quitclaim deed reserving a life estate for Father and conveying the remainder interest in the property to Father’s two children, Son and Daughter. Father executed the deed without reading it. Two years later, after realizing he only held a life estate, Father asked both children to re-convey the property. Daughter complied, but when Son refused, Father commenced this action against Son. Following a bench trial, the court held that rescission of the deed was warranted because the deed was procured by Son’s fraud or constructive fraud given that “[Father] was under the domination and control of his son at the time the deed was signed.” Fraud can be established by proof of nondisclosure or concealment of a known material fact in situations where a party has a duty to disclose that fact. Justice v. Anderson County, 955 S.W.2d 613, 616 (Tenn. Ct. App. 1997). Similarly, constructive fraud is a breach of a legal or equitable duty which is deemed fraudulent because of its tendency to deceive others by, inter alia, violating a private confidence. Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 39 (Tenn. Ct. App. 2006). The general rule is that a party to a transaction has no duty to disclose material facts to the other. Homestead Grp., LLC v. Bank of Tenn., 307 S.W.3d 746, 751-52 (Tenn. Ct. App. 2009). However, such a duty may arise when there is a confidential relationship between the parties. Benton v. Snyder, 825 S.W.2d 409, 414 (Tenn. 1992). “The normal relationship between a mentally competent parent and an adult child is not per se a confidential relationship.” Kelly v. Allen, 558 S.W.2d 845, 848 (Tenn. 1977). In certain circumstances, however, a duty may arise out of a “family relationship” when there is proof of “dominion and control” sufficient to establish the existence of a confidential relationship. See Matlock v. Simpson, 902 S.W.2d 384, 385-86 (Tenn. 1995). We have determined that the evidence preponderates against the finding that Father was under the dominion and control of Son. The facts of this case reveal that Father was in good physical and mental health, lived separately from Son, and was not dependent on Son or anyone else for his daily needs. Although Father trusted Son completely, relied on Son for financial advice, and could be persuaded by Son’s ardent opinions, Son did not have control over Father or Father’s finances. To the contrary, Father described situations in which he independently conducted business and made his own decisions, some of which were contrary to Son’s wishes. Having determined that the evidence preponderates against the finding that Father was under the domination and control of Son at the time the deed was signed, we find no basis upon which to conclude that Son owed an affirmative duty to disclose all material facts relevant to the transaction. Because Son did not owe an affirmative duty to disclose all material facts relevant to the transaction, Father’s claim that Son procured the deed by fraud or constructive fraud cannot be sustained. Accordingly, we reverse the judgment of the trial court.

Lawrence County Court of Appeals 05/26/16
Johnathan Lee McDonough v. Sloan Marie McDonough
M2015-00027-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Special Judge Phillip E. Smith

Johnathan Lee McDonough (“Father”) appeals the order of the Circuit Court for Montgomery County (“the Trial Court”) denying Father’s post-divorce petition to relocate to Arizona with the parties’ three minor children (“the Children”), and granting Sloan Marie McDonough (“Mother”) primary residential custody of the Children. Father raises an issue with regard to whether the Trial Court erred in finding that Mother’s counter-petition was filed timely, and because of this alleged error, erred in not allowing Father to relocate with the Children pursuant to Tenn. Code Ann. § 36-6-108. We find and hold that Father failed to prove that he provided the required notice to Mother of the relocation pursuant to Tenn. Code Ann. § 36-6-108, and, therefore, the statutory response period never was triggered. As such, we find no error in the Trial Court’s determination that Mother’s counter-petition was filed timely, and we affirm the Trial Court’s order denying Father’s petition to relocate with the Children.

Montgomery County Court of Appeals 05/26/16
Rafia Nafees Khan v. Regions Bank et al.
E2015-01891-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

The trial court granted the defendants' motion to dismiss on the basis of prior suit pending and dismissed the plaintiff's lawsuit. Discerning no error, we affirm.

Knox County Court of Appeals 05/25/16
Crescent Sock Company v. Robert H. Yoe, III et al.
E2015-00948-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Michael J. Sharp

Crescent Sock Company filed this action against its Chief Executive Officer, Robert H. Yoe, III, the day before Crescent terminated his employment. It sought a declaratory judgment that Yoe’s employment contract and an agreement between Crescent and Yoe Enterprises, Inc., a company wholly owned by Yoe, were invalid and unenforceable. After a seven-day bench trial, the court found the two agreements to be valid. It enforced them and found in favor of Yoe and Yoe Enterprises on some of the causes of action in their counterclaim. The trial court awarded Yoe and Yoe Enterprises attorney’s fees of $765,880.77. Yoe’s employment contract, however, does not include Yoe Enterprises among those entitled to seek "prevailing party" fees and expenses.

McMinn County Court of Appeals 05/25/16
Gretchen Michele Benedict v. Donald Lester Benedict, Jr.
E2015-01427-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Pamela A. Fleenor

This is the second time this matter has been before us on appeal. The issue is again the correct amount of Donald Lester Benedict, Jr.’s (Father) income upon which child support is to be based. Gretchen Michele Benedict (Mother) argues that the trial court erred when it set Father’s child support based upon an incorrect income figure. We have determined that the trial court misinterpreted our previous opinion in Benedict v. Benedict, No. E2013-00978-COA-R3-CV, 2014 WL 2187779 (Tenn. Ct. App., filed May 27, 2014) (Benedict I). The trial court incorrectly held that Father’s income was $75,000 per year for the purpose of setting child support for the period February 2007 to May 2014. The trial court used the $75,000 annual figure even though the evidence showed that Father’s actual income during the period of 2010-2014 ranged from a low of $60,444 to a high of $199,530. We vacate the trial court’s judgment and remand for a recalculation of the amount of child support.

Hamilton County Court of Appeals 05/25/16
In re J.M.M.
E2015-01116-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Janice Hope Snider

This is a termination of parental rights case. The Department of Children’s Services filed a petition to terminate the parental rights of W.J.N. (Father) with respect to J.M.M. (the Child). The trial court found clear and convincing evidence of five grounds warranting termination. The court found the same quantum of evidence reflecting that termination is in the best interest of the Child. Father appeals. We affirm.

Hamblen County Court of Appeals 05/25/16
Judy Lance d/b/a J & B Discount v. Owner's Insurance Company
E2015-00274-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge J. Michael Sharp

This is a breach of insurance contract action for failure to remit payment pursuant to a business-owners policy after the subject property was destroyed by fire. The case proceeded to jury trial. After denying the insurance company's motion for a directed verdict, the court submitted the case to the jury. The jury found that the plaintiff was entitled to recover under the policy and awarded compensatory and punitive damages and prejudgment interest. The jury also imposed a bad faith penalty and damages pursuant to the Tennessee Consumer Protection Act. The insurance company appeals. We affirm in part and reverse in part.

Polk County Court of Appeals 05/25/16
Ted Cope et al. v. Hawkins County, Tennessee
E2015-01615-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Thomas J. Wright

Several property owners brought suit against the county for inverse condemnation when the county commission's road committee rescinded its recommendation to accept a road as a county road. The county sought dismissal for failure to state a claim upon which relief can be granted. The trial court dismissed the suit. The property owners appeal. We affirm.

Hawkins County Court of Appeals 05/25/16
In Re Brody., et al
M2015-01586-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Michael Binkley

This appeal concerns the propriety of a writ of certiorari granted by the Williamson County Chancery Court to review a protective custody order entered by the Williamson County Juvenile Court. The chancery court held that the protective custody order from the juvenile court was void and enjoined the Department of Children’s Services (“DCS”) from interfering with the paternal grandmother’s physical and legal custody of the minor children at issue. Because we are of the opinion that the chancery court did not have subject matter jurisdiction to review the juvenile court’s order, we vacate the judgment of the Chancery Court and remand.
 

Williamson County Court of Appeals 05/24/16
Megan E. Smith v. Justin L. Smith
M2015-01038-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge J. Mark Rogers

This is an appeal of an order modifying a party’s child support obligation. The trial court granted Appellee’s petition to downwardly modify her child support obligation based on a decrease in Appellee’s income. Appellant objected, arguing that Appellee was voluntarily underemployed. The trial court found that Appellee was not underemployed and determined Appellee’s income for the purpose of child support obligation by averaging the income she earned in each of her previous five positions. We affirm in part and vacate in part.      

Rutherford County Court of Appeals 05/24/16
Matthew Lee Wheeler v. Alethia Danielle Wheeler
M2015-00377-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Vanessa Jackson

This appeal involves a mother’s post-divorce petition to modify a parenting plan. The court below determined that while a material change of circumstances had occurred, modification of the plan was not in the child’s best interest. The mother appeals. Finding no error, we affirm the judgment of the Chancery Court.

Coffee County Court of Appeals 05/24/16
Raines Brothers, Inc. v. H. Michael Chitwood, et al.
E2015-01430-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This is the second appeal in this contract action, which stems from the failure of the defendant, H. Michael Chitwood, to pay for construction work performed by the plaintiff, Raines Brothers, Inc. (“Raines”). The work was performed on a home occupied by Mr. Chitwood but owned by a trustee, James Dreaden, who was also named as a defendant in the original action. Following a bench trial, the trial court awarded Raines a judgment against Mr. Chitwood and Mr. Dreaden (collectively, “Defendants”) in the amount of $66,762.71. The trial court also awarded prejudgment interest at the rate of eighteen percent per annum, beginning August 14, 2007. The trial court denied Raines's claim for attorney's fees. Following a timely appeal by Defendants, this Court determined that Raines adequately proved its entitlement to the trial court's judgment of $66,762.71 against Mr. Chitwood but reversed the trial court's judgment against Mr. Dreaden. This Court modified the trial court's award of the rate of interest from eighteen percent per annum to ten percent in accordance with relevant statutory and case law.

Hamilton County Court of Appeals 05/24/16