Court of Appeals Opinions

Format: 12/05/2016
Format: 12/05/2016
Rogers Group, Inc. v. Phillip E. Gilbert
M2015-01044-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Russell T. Perkins

Judgment debtor appeals the entry of a charging order which subjected the debtor’s interest in a limited liability company to satisfaction of the judgment debt.  Finding that the charging order is not a final judgment for purposes of appeal, we dismiss the appeal and remand the case for further proceedings.

Davidson County Court of Appeals 05/03/16
Angela Michelle Newberry v. Jeremy Mack Newberry
E2015-01801-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge W. Neil Thomas, III

Father filed a petition to modify the parties’ permanent parenting plan to make him the primary residential parent. The trial court granted Father’s petition, finding that there had been a material change of circumstances and that a change of primary residential parent was in the best interest of the two younger children. Because the trial court applied an erroneous legal standard in making its determination of a material change of circumstances, we vacate and remand.

Hamilton County Court of Appeals 05/02/16
In re Tristan B.
E2015-01993-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Kurt Andrew Benson

Father appeals the trial court's determination that termination of his parental rights is in the child's best interest. The trial court found clear and convincing evidence to terminate Father's parental rights on grounds of abandonment by wanton disregard, persistent conditions, and substantial non-compliance with a permanency plan. The trial court thereafter determined that termination is in the child's best interest. Discerning no error, we affirm both the trial court's rulings regarding grounds and its determination that termination is in the child's best interest.

Bradley County Court of Appeals 05/02/16
Douglas Brent Walker v. G.UB.MK Constructors
E2015-00346-SC-R3-WC
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge William T. Ailor

In 2003, an employee sustained injuries to his spine, pelvis, and shoulder while working for his employer. In 2007, the trial court determined that the employee was permanently and totally disabled as a result of the work-related injury and that his employer was responsible for authorized future medical treatment directly related to the work-related injury. In 2013, the employee filed a motion to compel medical benefits, asserting that his employer had refused to pay for medical treatment determined to be reasonable and necessary by his authorized treating physician. The trial court denied the motion, and the employee appealed. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the trial court’s judgment.

Knox County Court of Appeals 05/02/16
Tambra Jo Swonger v. James Henry Swonger
E2015-01130-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Gregory S. McMillan

This appeal arises from a default judgment entered in a divorce action, wherein the wife was granted, inter alia, a permanent order of protection against the husband. The husband sought to have the permanent order of protection provision contained in the parties' divorce decree set aside, asserting that the statutory scheme pertaining to orders of protection did not provide authority for entry of a permanent, open-ended order of protection. The trial court entered an order denying relief to the husband and affirming its entry of a permanent order of protection. Husband timely appealed. Determining that the trial court was without statutory authority to enter a permanent order of protection with no time limitation, we vacate that portion of the trial court's order.

Knox County Court of Appeals 04/28/16
Estate of George Lambert v. John Arnold Fitzgerald
E2015-00905-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge W. Jeffrey Hollingsworth

George Lambert ("Lambert") sued John Arnold Fitzgerald ("Fitzgerald") in connection with money that Lambert gave to Fitzgerald to invest alleging claims for, among other things, fraud, intentional misrepresentation, violation of the Tennessee Securities Act of 1980, and unjust enrichment. After trial and a hearing on a motion to amend, the Chancery Court for Rhea County ("the Trial Court") entered its order awarding Lambert a judgment against Fitzgerald for $33,840.28 in principal, pre-judgment interest, and attorney‘s fees pursuant to a promissory note, and dismissing Lambert‘s remaining claims. Lambert appeals to this Court raising issues with regard to the dismissal of his claims for fraud, intentional misrepresentation, violation of the Tennessee Securities Act of 1980, and unjust enrichment.

Rhea County Court of Appeals 04/28/16
Sven Hadjopoulos et al. v. Alexandra Sponcia et al.
E2015-00793-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Douglas T. Jenkins

This is a grandparent visitation case. Sven Hadjopoulos (“Grandfather”) and Mary Lou Hadjopoulos (“Grandmother”) (“Grandparents,” collectively) filed a petition seeking visitation with their minor granddaughter (“the Child”). Alexandra Sponcia (“Mother”) and Christopher Sponcia (“Father”) (“Parents,” collectively) opposed the petition and the requested visitation. After a trial, the Chancery Court for Greene County (“the Trial Court”) found that substantial harm likely would come to the Child should visitation with Grandparents cease. The Trial Court, therefore, ordered grandparent visitation. Parents filed an appeal to this Court. We hold that the Trial Court’s final judgment is insufficient in a number of ways detailed herein, including its lack of a required best interest determination. We vacate the judgment of the Trial Court and remand for the Trial Court to enter a new, clarified final judgment in this case consistent with this Opinion.

Greene County Court of Appeals 04/28/16
Anthony Hodges v. District Attorney General - 20th Judicial District
M2014-02247-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

Inmate brought petition under Tennessee Public Records Act seeking review of the District Attorney General’s handling of his request that he be furnished copies of records relating to his prosecution. The trial court held that the Attorney General did not deny the request but, rather, that the petitioner failed to advance the costs of copying the records and, accordingly, was not entitled to relief. Finding no error, we affirm the judgment of the trial court.

Davidson County Court of Appeals 04/27/16
Jane Elliot Watt v. William James Watt
M2014-02565-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amanda McClendon

In this divorce action, Husband contends the trial court erred by granting Wife a divorce on the grounds of Husband’s inappropriate marital conduct despite the fact he was found guilty of, inter alia, three counts of rape of a child while the divorce was pending. Husband also takes issue with the classification of property, the division of marital property, and the award of alimony to Wife. We affirm the trial court in all respects.

Davidson County Court of Appeals 04/27/16
In re Ava B.
M2014-02408-COA-R10-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Franklin L. Russell

We granted an extraordinary appeal to consider a trial court’s refusal to dismiss a petition to terminate parental rights. Following their divorce, the child’s father filed a petition to terminate the parental rights of the mother. The mother moved to dismiss for lack of standing. In response, the father amended his petition to add his mother, the child’s grandmother, as an additional petitioner. The mother renewed her motion to dismiss. We reverse the trial court’s denial of the motion to dismiss because both the father and his mother lack standing. 

Lincoln County Court of Appeals 04/27/16
Lori Kay Jones Trigg v.Richard Darrell Trigg
E2016-00695-COA-T10B-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge R. Jerry Beck

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, from the denial of a motion for recusal filed by Richard Darrell Trigg ("Former Husband") in the parties' post-dissolution proceedings. Having reviewed the petition for recusal appeal filed by Former Husband, and finding no error in Trial Court's ruling, we affirm.

Hawkins County Court of Appeals 04/27/16
Tim Adams Et Al. v. CMH Homes, Inc.
E2015-01526-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jerri S. Bryant

The issue on this appeal is the enforceability of an arbitration agreement. Tim and Pamela Adams (Plaintiffs) bought a mobile home from CMH Homes, Inc. (Defendant). As part of the transaction, Plaintiffs signed an arbitration agreement after they were told by Defendant’s sales manager that they “had to sign the papers in order to get the home moving.” This statement was false, although the manager testified that he was unaware of its falsity at that time. Plaintiffs alleged fraudulent inducement with respect to the arbitration agreement. After a hearing, the trial court ruled that Plaintiffs established their fraudulent inducement claim. As a consequence, the court set aside the arbitration agreement. Defendant appeals. We affirm.

McMinn County Court of Appeals 04/27/16
Regions Bank v. Thomas D. Thomas, et al.
W2015-00798-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert L. Childers

Following a borrower’s default on a loan agreement, Regions Bank (“Regions”) accelerated the loan and filed this lawsuit against the loan’s guarantors to collect the amounts due. After Regions sold the collateral securing the loan, it sought a judgment for the remaining deficiency. This is the second appeal of this case to this Court. Although the trial court awarded Regions a deficiency judgment prior to the first appeal, we vacated that award upon concluding that Regions had failed to provide sufficient notice to the guarantors prior to its disposition of the collateral. We observed that under Tennessee Code Annotated section 47-9-626, a secured party that has not complied with the commercial code’s collection, enforcement, disposition, and acceptance requirements can only recover a deficiency if it proves that compliance with the relevant provisions would have yielded a smaller amount than the secured obligation, together with expenses and attorney’s fees. Because the trial court did not make any findings on this issue, we remanded the case for further proceedings to determine the amount of the deficiency, if any, under Tennessee Code Annotated section 47-9-626. On remand, the trial court entered a deficiency judgment against the guarantors in the amount of $1,210,511.51. Both sides now appeal from this judgment, asserting various issues. Because Regions did not present any evidence that it would have received less than the total amounts due to it had it provided proper notice, we reverse the trial court’s determination that Regions is entitled to a deficiency. We further reject the guarantors’ assertions that they are entitled to a surplus.

Shelby County Court of Appeals 04/27/16
West Warren-Viola Utility District v. Jarrell Enterprises, Inc.
M2013-02217-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Vanessa Jackson

Utility district brought action to condemn a parcel of real property which was located outside the district’s boundaries in order to construct a water storage tank, associated piping, and an access road. The trial court denied the petition, and the district appeals. Finding that the district is given the power in the Utility District Law to construct and maintain its system, and that the unrebutted evidence shows that the district was not attempting to expand the boundaries of its service area, we reverse the judgment of the trial court and remand the case for a hearing on the damages due the property owner.

Coffee County Court of Appeals 04/26/16
Darren Dwayne Bracey v. Kimberly Ann Roberts Bracey
M2014-01865-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Ross H. Hicks

In this divorce action, Wife contends the trial court erred in the division of marital property and by declining to award her alimony. Wife also contends the trial court erred by permitting her counsel of record to withdraw, denying her recusal motion, and denying her requests for disability modifications. We affirm the trial court in all respects. We also find Wife’s appeal frivolous and remand for the trial court to award Husband his reasonable and necessary fees and expenses incurred on appeal.

Robertson County Court of Appeals 04/26/16
Linda Beard v. James William Branson, et al - Rehear
M2014-01770-COA-R3-CV
Authoring Judge: Per Curium
Trial Court Judge: Judge Robert E. Burch

In an opinion filed on March 31, 2016, we reversed the judgment of the trial court on the grounds that the wrongful death claims were barred by the statute of limitations because the only complaint filed prior to the running of the limitations period was void. The appellee, Linda Beard (“Plaintiff”), timely filed a petition for rehearing pursuant to Tenn. R. Civ. P. 39 in which she contends the filing of the pro se complaint by the decedent’s surviving spouse, Denver Hartley, tolled the statute of limitations even if his filing constituted the unauthorized practice of law. She also contends the pro se complaint filed by Mr. Hartley was voidable, not void; therefore, the deficiency could be remedied pursuant to Tenn. R. Civ. P. 11. Further, she contends the amended complaint, which was duly signed by a licensed attorney, should relate back to the filing of Mr. Hartley’s pro se complaint pursuant to Tenn. R. Civ. P. 17.01.

Houston County Court of Appeals 04/26/16
Vincente Acosta v. Kity Sonia Acosta
E2015-00215-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge J.B. Bennett

This is a divorce case. On appeal, Vincente Acosta (Husband) argues that the trial court erred in reopening the proof shortly after the conclusion of a nonjury trial. The court did so for the purpose of receiving additional evidence on the subject of spousal support. Husband also argues that the trial court erred in ordering him to pay Kity Sonia Acosta (Wife) alimony in futuro of $1,500 per month. We hold that the trial court did not abuse its discretion in reopening the proof and thereafter awarding Wife spousal support in futuro. Accordingly, we affirm the judgment of the trial court.

Hamilton County Court of Appeals 04/26/16
Amy Wong Chan v. Henry Wah Chan
E2015-00597-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Robert L. Headrick

Amy Chan (Wife) and Henry Chan (Husband) were granted a divorce in 2005, and the division of their marital assets was reserved for a future hearing. Some ten years later, in 2015, the trial court entered an order decreeing a division as outlined in a proposal by Wife. Husband appeals, maintaining that the trial court had previously ruled from the bench that the assets would be divided based upon a proposal filed by him. We affirm.

Blount County Court of Appeals 04/26/16
Healthcare Horizons, Inc. DBA Healthcare Horizons Consulting Group, Inc. v. James Guy Brooks
E2015-00488-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Deborah C. Stevens

James Brooks began working for Healthcare Horizons, Inc. in October 2013. He was required to sign a confidentiality and non-solicitation agreement (CNSA). The CNSA provides that disputes regarding the agreement would be settled by binding arbitration; there were exceptions – claims requesting equitable or injunctive relief were to be resolved by litigation in Knoxville. In March 2014, Healthcare Horizons terminated Brooks. He subsequently accepted a position with a new firm founded by John Graham, the former president of Healthcare Horizons. Graham had also executed a CNSA while working for Healthcare Horizons. His agreement provided that all disputes arising out of that agreement would be settled exclusively by binding arbitration. In November 2014, Healthcare Horizons filed a complaint against Brooks, alleging a breach of his CNSA and misappropriation of trade secrets. Brooks filed a motion to compel arbitration or, in the alternative, to stay the case pending resolution of an ongoing claim of Healthcare Horizons against Graham. The trial court denied Brooks’ motion. He appeals. We affirm.

Knox County Court of Appeals 04/26/16
Kenneth M. Spires et al v. Haley Reece Simpson et al.
E2015-00697-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge J. Michael Sharp

The surviving spouse in this wrongful death action appeals the trial court's dismissal of him as a plaintiff. The decedent and surviving spouse had one child together, who was eighteen months old at the time of the decedent's fatal automobile accident in October 2010. The decedent and surviving spouse were living apart, and the child had been residing solely with the decedent. On November 18, 2010, the surviving spouse, acting on behalf of the decedent, the child, and himself, filed the instant action in the Monroe County Circuit Court (“trial court”) against the seventeen-year-old driver of the other vehicle involved in the accident and her parents, who were the owners of the vehicle. Also in November 2010, the Monroe County Juvenile Court granted custody of the child to the maternal grandmother.

Monroe County Court of Appeals 04/26/16
Cooper Singletary, et al. v. Gatlinburlier, Inc. et al.
E2015-01621-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge O. Duane Slone

This is a premises liability action. A visitor fainted and fell into an antique, glass display case located in a retail store in Gatlinburg, Tennessee. The glass in the case shattered, piercing her chest and causing her death. Her husband sued the retail store and the mall in which it operated for negligence. The defendants filed a motion for summary judgment, which the trial court granted, finding that the injuries were not reasonably foreseeable. We affirm.

Sevier County Court of Appeals 04/25/16
Rodney Bibbs v. Tennessee Board of Parole
M2015-01755-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Carol L. McCoy

Appellant is an inmate in the Tennessee prison system; he is serving a life sentence, with the possibility of parole, for first degree murder. Appellee, the Tennessee Board of Parole, declined to recommend the Appellant for parole, citing as its reason the seriousness of his offense. Appellant filed a common law writ of certiorari in the Davidson County Chancery Court challenging the Board’s decision to deny him parole. The chancery court dismissed the petition. We affirm.

Davidson County Court of Appeals 04/22/16
In re Izzabella B.
M2015-00963-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge John Thomas Gwin

This is an appeal from an order designating a primary residential parent, setting visitation and child support, and changing the child’s last name to that of Father. The juvenile court found that naming Father as primary residential parent was in the child’s best interest and determined that the child’s last name should be changed. Mother appealed both the designation of primary residential parent and the changing of the child’s last name. We affirm.     

Wilson County Court of Appeals 04/22/16
Paul B. Schodowski, D.P.M. et al v. Tellico Village Property Owners Association, Inc. et al.
E2015-01145-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Frank V. Williams, III

This case originated with the filing of a declaratory judgment action by the plaintiffs, Paul B. Schodowski, D.P.M., and Sharon Ann Ziegler (“Plaintiffs”), against the Tellico Village Property Owners' Association and its individual board members, Alan Hart, Ginny Ranck, Tom Lee, Claire Frazer, Joe Marlette, Cap Purvis, and Bob Coates (collectively, “TVPOA”). Plaintiffs alleged that the restrictive covenant regarding payment of annual assessments applicable to their lot in the Tellico Village development should not be enforced. TVPOA filed a motion to dismiss, asserting, inter alia, that Plaintiffs failed to state a claim upon which relief could be granted. The trial court granted the motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6), determining that the restrictions were enforceable as written and that Plaintiffs had notice of the restrictions when they purchased their lot. Plaintiffs have appealed. Discerning no reversible error, we affirm the trial court's dismissal of Plaintiffs' complaint.

Loudon County Court of Appeals 04/22/16
Rodger Lee Moon v. Carolyn O'Day Moon
E2015-01470-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor M. Nichole Cantrell

Husband and Wife were married for approximately three years when Husband filed a complaint seeking a divorce. Wife filed a counter-complaint seeking a divorce as well. The trial court awarded Wife a divorce, classified the parties‟ assets as separate or marital, and divided the marital estate. The trial court also awarded Wife transitional alimony for a period of two years. Husband appealed, arguing the trial court erred in (1) classifying a boat he purchased before the marriage as marital property; (2) dividing the marital estate in an inequitable manner; and (3) awarding Wife transitional alimony. On appeal, we affirm the trial court‟s judgment in all respects and grant Wife‟s request for the attorney‟s fees she incurred in defending Husband‟s appeal.

Anderson County Court of Appeals 04/21/16