Court of Appeals Opinions

Format: 11/20/2017
Format: 11/20/2017
In Re Tyler G.
M2016-02170-COA-R9-PT
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Judge Ross H. Hicks

This interlocutory appeal concerns whether the circuit court may sever a termination of parental rights proceeding from an adoption proceeding, which were filed together in the circuit court, and transfer only the termination of parental rights proceeding to the juvenile court in another county. Reversed and remanded.

Robertson County Court of Appeals 05/03/17
In Re Bryson B.
E2017-00322-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge James L. Cotton, Jr.

This is an appeal by the appellant, Amanda M.-B., from an order terminating her parental rights to her minor child. The order terminating the appellant's parental rights was entered on December 12, 2016. The Notice of Appeal was not filed until February 13, 2017, more than thirty (30) days from the date of entry of the final order. The Attorney General, on behalf of the appellee, Tennessee Department of Children's Services, has filed a motion to dismiss this appeal based upon the untimely filing of the Notice of Appeal. Because the record confirms that the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal and grant the motion to dismiss.

Scott County Court of Appeals 05/03/17
In Re Jeremiah N., et al.
E2016-00371-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Douglas T. Jenkins

The maternal grandmother of three children filed a petition to terminate the parental rights of the father of each child on various grounds and to allow the grandmother to adopt the children; the children’s mother joined in the petition for the purpose of consenting to the termination of her parental rights and to the adoption. Two of the fathers were incarcerated at the time of the proceeding and the father of the third child was unknown. The trial court terminated the rights of the father of one child on the grounds of abandonment by engaging in conduct prior to his incarceration that exhibited a wanton disregard for the welfare of his child and on the ground that the father had been convicted of an offense and was under a sentence of more than ten years; the court terminated the rights of the father of another child on the grounds of abandonment by failure to support and visit his child within the four months preceding his incarceration and by engaging in conduct prior to his incarceration which exhibited a wanton disregard for the welfare of his child. The fathers of these children appeal. We reverse the judgment terminating the parental rights of one father on the ground of abandonment by failure to support and the judgment terminating the rights of the other father on the ground of abandonment by engaging in conduct evidencing a wanton disregard for his child; in all other respects, the judgments terminating the parental rights of the fathers are affirmed.

Hamblen County Court of Appeals 05/02/17
Jonathan Fitzrandolph Zink v. Rural Metro of Tennessee, L.P. et al.
E2016-01581-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Kristi Davis

In this action regarding injury allegedly caused by an emergency medical technician in the course of rendering medical aid, the trial court determined that the plaintiff’s claims were subject to the Tennessee Health Care Liability Act (“THCLA”) and dismissed the claims with prejudice based on the plaintiff’s failure to file a certificate of good faith pursuant to Tennessee Code Annotated § 29-26-122. The plaintiff has appealed, conceding that his claims sounded in health care liability but asserting that they should not have been dismissed with prejudice because a certificate of good faith was not required. Following our review of the complaint, we conclude that the plaintiff’s claims were subject to the common knowledge exception such that a certificate of good faith was not required pursuant to Tennessee Code Annotated § 29-26-122. We therefore reverse the trial court’s dismissal with prejudice and remand this matter to the trial court for entry of an order dismissing the plaintiff’s claims without prejudice based upon his failure to provide pre-suit notice.

Knox County Court of Appeals 05/02/17
Metropolitan Government of Nashville And Davidson County, Tennessee v. Board of Zoning Appeals Of Nashville And Davidson County, Tennessee, et al
M2016-01732-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Carol L. McCoy

A billboard company and the owners of the property upon which two billboards sit (“the defendants”) appeal the decision of the trial court holding that the board of zoning appeals erred in issuing building permits to the defendants to allow them to replace static display billboards with digital display billboards. Because we agree with the trial court’s conclusion that the ordinance at issue is a lighting regulation, not a zoning regulation, and that Tenn. Code Ann. § 13-7-208 therefore does not apply, we affirm the trial court’s decision.

Davidson County Court of Appeals 05/02/17
Emily Grubb Wade v. Jeremiah Kent Wade
E2016-01426-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Frank V. Williams, III

In this divorce action, the chancery court named Father the primary residential parent of the parties’ child. During the pendency of this appeal, Mother filed a dependency and neglect petition in juvenile court, and the juvenile court found the child dependent and neglected and awarded custody to Mother. We, therefore, remand this case to the chancery court to reconsider its decision in light of the juvenile court’s order.

Loudon County Court of Appeals 05/01/17
Carl C. Smith, II v. Anderson County Sheriff Paul White, et al.
E2016-00656-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancelor M. Nichole Cantrell

This is an employment termination case involving a civil service employee. The petitioner was employed as a law enforcement officer with the Anderson County Sheriff’s Department (“the Department”) when the Department received notice from the Tennessee Department of Children’s Services (“DCS”) that the petitioner had been “indicated” as a perpetrator of child abuse in a DCS investigation pending in Roane County. The petitioner was placed on voluntary administrative leave. Upon subsequent notification that the DCS indication had been upheld through administrative review, the Department terminated the petitioner’s employment in November 2009. The petitioner appealed the termination to the Civil Service Board of the Anderson County Sheriff’s Department (“the Board”). While the appeal to the Board was pending, the petitioner filed a petition in the Roane County Chancery Court, seeking judicial review of DCS’s administrative decision. Upon review, the Roane County Chancery Court entered a judgment on August 3, 2012, reversing the classification and directing DCS to change the classification from “indicated” to “unfounded.” Through his counsel, the petitioner contacted Anderson County Sheriff Paul White to request reinstatement of his employment, but Sheriff White denied the request. Following a hearing conducted on August 6, 2013, the Board affirmed the Department’s termination decision and denied the petitioner’s motion for reinstatement filed during the hearing. The petitioner filed a petition for certiorari and review of the Board’s decision with the Anderson County Chancery Court (“trial court”) on September 4, 2013, naming the Board and Sheriff White as respondents (collectively, “Respondents”). The petitioner then filed a motion for partial summary judgment, averring that he had not been provided constitutionally sufficient notice of misconduct justifying termination. Following a hearing, the trial court, with Chancellor William E. Lantrip presiding, granted partial summary judgment in favor of the petitioner in an order entered February 27, 2014. The Respondents filed a “motion to revise order,” pursuant to Tennessee Rules of Civil Procedure 54 and 59. Following a hearing, the trial court, with Chancellor M. Nicole Cantrell now presiding, vacated the prior order granting partial summary judgment and affirmed the Board's decision. The petitioner has appealed to this Court. We affirm the portion of the trial court’s judgment affirming the Board’s decision to uphold the initial termination. However, having determined that the Board’s decision to uphold the denial of reinstatement was not supported by substantial and material evidence and yielded an arbitrary and capricious result, we reverse the trial court’s affirmance of the Board’s decision to uphold Sheriff White’s denial of the employee’s September 2012 request and the Board’s denial of the petitioner’s motion for reinstatement. We remand for entry of an order to reinstate the petitioner to his employment and a determination of back pay and other damages to be calculated from the point of his September 2012 request for reinstatement.

Anderson County Court of Appeals 05/01/17
Carolyn Ann Talley v. Clinton Eugene Talley
E2016-01457-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge L. Marie Williams

In this divorce action, the trial court valued and allocated the parties’ marital assets. The court also awarded the wife alimony in futuro in the amount of $1,800 per month while awarding the wife attorney’s fees as alimony in solido in the amount of $35,710. The husband has appealed. Discerning no error in the trial court’s marital property division, we affirm that distribution. Furthermore, we affirm the award of alimony in futuro and attendant life insurance requirement. We modify the trial court’s award of attorney’s fees to the wife to the amount of $29,060. The trial court’s judgment is affirmed in all other respects.

Hamilton County Court of Appeals 05/01/17
Jade C. Nunnally v. Adam Nunnally
E2016-01414-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge L. Marie Williams

In this divorce action, Wife appeals the trial court’s designation of Husband as the primary residential parent for their daughter. For his part, Husband contends the trial court erred by awarding Wife unsupervised visitation. He also contends the child support award is based on an erroneous determination of the parties’ gross monthly income. Finding no error, we affirm.

Hamilton County Court of Appeals 04/28/17
Ola Halim v. Tarek G. El-Alayli
M2016-00500-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Deanna B. Johnson

This is a post-divorce child support modification case. Ola Halim filed a petition against her former husband, Tarek G. El-Alayli, seeking an increase in child support based upon a material change in circumstances. The parties’ final divorce decree had incorporated a permanent parenting plan setting child support at $3,000 per month. The day before the hearing on the petition, mother filed a request for relief seeking an upward deviation in child support for the specific needs of one of the children; a special needs trust for that child; and an educational trust for another one of the parties’ children. Following the hearing, the trial court entered an order setting monthly child support at $4,009 and denying mother’s other requests. Mother appeals. We affirm.   

Williamson County Court of Appeals 04/28/17
In Re: Courtney R.
M2015-01024-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge J. Russell Parkes

This case concerns the applicability of the Interstate Compact on the Placement of Children (“ICPC”). After the mother abandoned her child, the juvenile court found the child to be dependent and neglected and placed the child in state custody. The State sought provisional placement of the child with her father, who was unaware of the child’s existence until the dependency and neglect proceedings. Because the father lived in another state, the State made a request under the ICPC to the father’s state of residence for a home evaluation. The response to the request recommended against the placement. In light of the response, the juvenile court held a hearing on disposition in which it ordered the child to remain in State custody. After the father appealed, the circuit court awarded custody to the father and relieved the State of any further responsibility for the child. On appeal to this court, among other things, the mother argues that the ICPC precluded awarding custody to the father. Because we conclude the ICPC did not apply, we affirm the decision of the circuit court.

Lawrence County Court of Appeals 04/28/17
Paul Koczera, et al v. Christi Lenay Fields Steele, et al.
E2015-02508-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge John D. McAfee

Plaintiffs brought suit asserting that defendants’ negligence prevented the proper defendant from being served with process in a healthcare liability action, as a result of which that defendant was dismissed from the suit. Contemporaneously with answering the complaint, Defendants moved for summary judgment on various grounds. Plaintiffs responded to the motion, disputing certain material facts and asking for additional time to conduct discovery. After settlement was reached in the healthcare liability suit, Plaintiffs filed a motion to dismiss their suit on the ground of mootness. The trial court denied plaintiffs’ motions for additional time for discovery and to dismiss their suit and granted Defendants’ motion for summary judgment. Plaintiffs thereafter filed a motion for default judgment against one defendant, which the trial court denied. Plaintiffs appeal the various rulings of the court. Upon our review, we affirm the denial of Plaintiffs’ motions for default judgment, to dismiss their complaint, and for additional time to conduct discovery in order to respond to the motion for summary judgment; we vacate the order granting summary judgment and remand the case for further proceedings.

Anderson County Court of Appeals 04/28/17
In Re: River C.
E2016-02407-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Robert D. Philyaw

Justin C. (“Father”) appeals the order of the Juvenile Court for Hamilton County (“the Juvenile Court”) terminating his parental rights to the minor child River C. (“the Child”) on the ground of abandonment by wanton disregard pursuant to Tenn. Code Ann. §§ 36- 1-113(g)(1) and 36-1-102(1)(A)(iv) and the ground of substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2). We find and hold that clear and convincing evidence was proven that grounds existed to terminate Father’s parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36- 1-113(g)(2) and that it was proven by clear and convincing evidence that the termination was in the Child’s best interest. We, therefore, affirm the judgment of the Juvenile Court terminating Father’s parental rights to the Child.

Hamilton County Court of Appeals 04/28/17
Jennifer Suzanne Gillett v. Jason Steven Molthan
M2016-01628-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Philip E. Smith

A man who pled guilty to charges of aggravated stalking and harassment was ordered to stay away from the woman he was stalking and harassing. When the initial term of the order of protection was nearly over, the woman filed a motion seeking to have the order of protection extended for another year. The trial court granted the motion, and the man appealed. The man does not deny engaging in the acts that formed the basis for the order of protection; the issues he raises on appeal are procedural and tangential to the reasons for the order. Concluding that none of the issues raised entitle the appellant to any relief, we affirm the trial court’s judgment extending the order of protection.

Davidson County Court of Appeals 04/27/17
Craig Dillon v. Tennessee Farmers Mutual Insurance Company
E2016-01080-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge J. Michael Sharp

A policyholder brought suit to recover under personal fire and extended coverage policy for damage caused when burglars broke into his property and removed copper wiring, causing considerable damage. The trial court determined that the majority of the loss was excluded from coverage because it was caused by theft and awarded policyholder the amount previously tendered under the vandalism coverage, less his deductible. Policyholder appeals, contending that the plain language of the policy provides coverage for the damage caused by burglars. Holding that the damages covered under the policy are not limited to damages caused by vandalism, we reverse the judgment and remand the case for reconsideration of the amount of damages due the policyholder.

McMinn County Court of Appeals 04/27/17
Roger L. Holt v. Jimmy Cantrell, et al.
E2016-01929-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jerri S. Bryant

This appeal concerns access to real property (“the lake property”) owned by Roger L. Holt (“Holt”). Holt sued Jimmy Cantrell,1 Shirley Carroll and Tommy Cantrell (“Defendants”) in the Chancery Court for Bradley County (“the Trial Court”) alleging that he was entitled to access his property by means of a road bed (“the Disputed Road Bed”) on Defendants’ property (“the Cantrell property”). Holt advanced three alternative theories: that he was entitled to a prescriptive easement; that he was entitled to an easement by necessity; and that the Disputed Road Bed is a public road by implication. After a hearing, the Trial Court rejected all three of Holt’s theories and dismissed his complaint. Holt appealed to this Court. We affirm the judgment of the Trial Court.

Bradley County Court of Appeals 04/27/17
Robert L. McCullough, Jr. et al. v. Carla Vaughn, et al.
M2016-01458-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Kelvin D. Jones

This action arises out of a two-car accident. Prior to the commencement of this action, the driver of the vehicle who is the defendant in this action filed a petition in bankruptcy court. Shortly thereafter, and being unaware of the bankruptcy proceeding, Plaintiffs commenced this action naming the driver of the other vehicle as the only named defendant. Summons was issued for the defendant driver as well as Plaintiffs’ uninsured motorist insurance carrier. Summons was served on the carrier; however, summons for Defendant was returned unserved, and more than a year passed before Plaintiffs requested issuance of an alias summons. Upon motions of the defendant and the uninsured motorist carrier, the trial court dismissed all claims as time barred upon the finding that Plaintiffs failed to comply with Tenn. R. Civ. P. 3 by obtaining the issuance of a new summons for service of process on the defendant within one year of the issuance of the previous summons that was not served. Plaintiffs appeal contending their claims are not time barred because the defendant filed her bankruptcy petition prior to the commencement of this action and Tenn. Code Ann. § 28-1-109 expressly states, “When the commencement of an action is stayed by injunction, the time of the continuance of the injunction is not to be counted.” We agree. The bankruptcy court’s automatic stay not only enjoined the commencement of this action but the issuance of process, and Tenn. Code Ann. § 28-1-109 expressly states that the time of the continuance of an injunction is not to be counted in calculating the statute of limitations. The bankruptcy injunction remained in effect for 202 days; therefore, that period is not to be counted. With the addition of 202 days to the period within which Plaintiffs could obtain the issuance of an alias summons under Tenn. R. Civ. P. 3, the issuance of the alias summons was timely. As a consequence, the trial court’s order dismissing this case is vacated, and this matter is remanded with instructions to reinstate the complaint as to the defendant driver and the uninsured motorist carrier for further proceedings consistent with this opinion.

Davidson County Court of Appeals 04/27/17
Sinan Gider v. Lydia Hubbell
M2016-00838-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Sheila Calloway

On the petition of a father, a juvenile court held the mother of father’s child in civil contempt. The court found 19 separate instances of mother violating three orders enjoining her from making certain derogatory comments, both in person and on social media. Our review of the record leads us to conclude that the mother violated only two of the orders cited by the father. We also conclude that the court erred in holding the mother in contempt for two of the counts alleged by the father. Even so, the juvenile court properly found the mother in contempt for 17 violations of court orders, and we find the sanctions imposed by the court to be appropriate. Therefore, we affirm in part and reverse in part. 

Davidson County Court of Appeals 04/27/17
Delta Gypsum, LLC v. Michael Felgemacher
E2016-01447-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge E.G. Moody

A supplier of drywall was a creditor of a company that installed drywall. The owner of the indebted company signed a promissory note in the amount of $370,615 payable to the supplier and paid a small portion of the note before selling the business to his son for $12,000. The supplier filed suit to obtain a judgment for the balance owed on the promissory note after the transfer of the business to the son. The supplier obtained a judgment against the former owner, but not against the company, for the amount owed on the note. The supplier then filed this action against the son in an effort to have the sale set aside on the basis that it was a fraudulent conveyance. The trial court found the supplier was unable to satisfy the elements of either the actual fraud statute, Tenn. Code Ann. § 66-3-305(a)(1), or the constructive fraud statute, Tenn. Code Ann. § 66-3-306(a). We agree and affirm the trial court’s judgment.

Sullivan County Court of Appeals 04/26/17
James Swanger v. Carrie Lowery
M2016-00600-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Phillip R. Robinson

In this appeal of the extension of an order of protection for five years, the appellant contends that the appellee did not prove an allegation of domestic abuse, stalking, or sexual assault by a preponderance of the evidence. Upon our review, we conclude that the evidence supports the finding that the initial order of protection was violated and that the court had the authority to extend the order; accordingly, we affirm the judgment of the trial court.   

Davidson County Court of Appeals 04/26/17
Suzanne Bishop West v. Epiphany Salon & Day Spa, LLC
E2016-01860-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge L. Marie Williams

This appeal concerns a jury award of damages in a negligence case. Suzanne Bishop West (“West”) sued Epiphany Salon & Day Spa, LLC (“Epiphany”) in the Circuit Court for Hamilton County (“the Trial Court”) for damages resulting from a facial she received that burned her face. Epiphany conceded liability and the matter went before a jury for a determination of damages. The jury awarded West $125,000 in damages. Epiphany filed a motion for remittitur. The Trial Court, finding the award excessive, reduced the award from $125,000 to $47,800. West appeals to this Court, asking that we restore the original jury award of $125,000. Finding no reversible error, we affirm the judgment of the Trial Court.

Hamilton County Court of Appeals 04/25/17
Volodymyr Helyukh, et al. v. Buddy Head Livestock & Trucking, Inc., et al.
W2015-01354-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Roy B. Morgan, Jr.

The plaintiffs appeal the grant of summary judgment in a negligence case. One of the plaintiffs, a truck driver, suffered injuries stemming from a collision with another tractor-trailer owned by the defendant and operated by its employee. The plaintiffs claimed that the employee's negligence proximately caused the accident. The owner of the overturned tractor-trailer moved for summary judgment on the ground that the plaintiffs could not establish that its employee‟s conduct fell below the applicable standard of care. The trial court agreed and granted summary judgment. On appeal, the plaintiffs argue, among other things, that owner of the overturned tractor-trailed failed to meet its burden of production in moving for summary judgment. Because we conclude that the movant failed to demonstrate the absence of material facts that would create genuine issues for trial, we reverse the grant of summary judgment.

Henderson County Court of Appeals 04/24/17
Trina A. Henson v. Chris Robert Henson
M2016-01661-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Ross H. Hicks

This is an appeal from a final decree of divorce. The trial court declared the parties divorced, divided the marital property and marital debt, and ordered Husband to pay rehabilitative alimony of $2,500.00 per month for three years, and an award of $20,000.00 for attorney’s fees, as alimony in solido. On appeal, Husband contends that the trial court erred in: (1) its division of the marital debt; (2) its award of rehabilitative alimony; and (3) its award of attorney’s fees. Wife requests attorney’s fees incurred in defending this appeal. We affirm the trial court’s judgment and remand for determination of Wife’s attorney’s fees on appeal.

Robertson County Court of Appeals 04/24/17
M.H.L. ET AL. v. BOYS AND GIRLS CLUB OF GREATER KINGSPORT, INC., ET AL.
E2017-00024-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John S. McLellan, III

The plaintiffs, Michael Lambert and Pamela Lambert, on behalf of themselves and their minor child, M.H.L. (collectively, “Plaintiffs”), seek to appeal from an order granting summary judgment in favor of the defendant, City of Kingsport, Tennessee (“the City”), on Plaintiffs’ claims against the City in this negligence case arising out of injuries sustained by the minor plaintiff while participating in a youth basketball program. In their complaint, Plaintiffs asserted claims against not only the City, the entity who ran the youth basketball program, but also against the defendant, Boys and Girls Club of Greater Kingsport, Inc. (“the Boys and Girls Club”), which owned and managed the property used by the youth basketball program. The order from which Plaintiffs seek to appeal resolves only the claim against the City, leaving unresolved the claim against the Boys and Girls Club. As a result, we lack jurisdiction to consider this appeal. The appeal is dismissed without prejudice to the filing of a new appeal once a final judgment has been entered

Sullivan County Court of Appeals 04/24/17
David Turner, et al. v. Karl Kendrick, et al. v. Danny Anderson, et al
M2016-00884-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge James G. Martin, III

This appeal arises from the dismissal of a third-party complaint, which was filed two years after the third-party plaintiffs filed its answer to the original complaint. The trial court found that the third-party plaintiffs failed to seek leave of the court to join the third-party defendants as required by Tennessee Rule of Civil Procedure 14.01. The trial court also determined that the third-party plaintiffs failed to state a claim which would support the trial court granting leave to file a third-party complaint, and, accordingly, dismissed the Appellants’ third-party complaint. The third-party plaintiffs appealed. Discerning no error, we affirm.  

Williamson County Court of Appeals 04/21/17