Court of Appeals Opinions

Format: 08/28/2015
Format: 08/28/2015
Josephine Whitthorne Young v. William F. Young, Jr.
W2014-02006-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert Samual Weiss

This post-divorce dispute concerns a divorce decree that required husband to pay one-half of his retirement benefits to wife as alimony in solido. Fourteen years after the divorce, Husband returned to the trial court to terminate the payments on the ground that by the terms of the divorce decree, husband had been substantially overpaying wife. The trial court denied husband’s petition on the alternative grounds of res judicata, and a finding that the divorce decree obligated husband to pay wife one-half of the entire value of the retirement plan. We reverse the trial court’s determination that res judicata bars husband’s petition, but affirm as to the trial court’s interpretation of the divorce decree. Reversed in part, affirmed in part, and remanded.

Shelby County Court of Appeals 02/26/15
Easter Baugh v. Larry Moore
M2013-0224-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Vanessa Jackson

In the first appeal of this action to quiet title to real property, which was the former home of the parties’ common ancestor, Plaintiff was declared the owner of the real estate. Thereafter, the same two parties disputed who owned the personal property in the home. The trial court conducted an evidentiary hearing and determined that Plaintiff owned some of the personal property, and Defendant owned the remaining personal property. Being dissatisfied with that determination, Defendant filed a motion for new trial contending Plaintiff made false statements under oath, which was denied. In this appeal, Defendant contends the evidence preponderates against the trial court’s ruling concerning the ownership of the personal property. He also appeals the denial of his motion for a new trial. Because Defendant has not provided a verbatim transcript of the evidence or a statement of the evidence pursuant to Tenn. R. App. P. 24, we have no evidence to review. Lacking any evidence to review, we presume the evidence presented supports the trial court’s decisions. Defendant’s contention that he is entitled to a new trial must also fail because his motion was not supported by any evidence, and he offered nothing more than bare assertions that Plaintiff made false statements at trial. We find no merit to either contention and affirm the trial court in all respects. We have also determined that this appeal was devoid of merit; thus, it constitutes a frivolous appeal under Tenn. Code Ann. § 27-1-122. Accordingly, Plaintiff is entitled to recover the reasonable and necessary attorney’s fees and expenses she incurred on appeal. For the foregoing reasons, we affirm the trial court in all respects and remand with instructions for the trial court to award Plaintiff her reasonable and necessary attorney’s fees and expenses.

Coffee County Court of Appeals 02/25/15
Cadence Bank, NA v. The Alpha Trust, et al. - Dissent
W2014-01151-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Kenny W. Armstrong

I agree with the result reached by the majority Opinion with regard to whether Cadence was properly authorized to bring this suit. I also concur in the majority’s conclusion that the Appellants cannot survive summary judgment on their claims arising from the parties’ written contract. I must respectfully dissent, however, from the majority’s holding that summary judgment was proper with regard to Appellants’ breach of contract and promissory estoppel claims concerning the alleged oral contract. My disagreement with the majority’s Opinion is two-fold. First, a genuine dispute of fact exists over whether the parties entered into a binding oral contract. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993). Second, contrary to the majority’s conclusion that no contract existed between the parties based on the omission of material terms, Tennessee law will uphold a contract’s formation even though one party has discretion to choose between material terms. Gurley v. King, 183 S.W.3d 30, 41 (Tenn. 2005). Accordingly, I would reverse the trial court’s grant of summary judgment in favor of Cadence Bank on Appellants’ claims under the alleged oral contract.

Shelby County Court of Appeals 02/25/15
Cadence Bank, NA v. The Alpha Trust, et al.
W2014-01151-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Kenny W. Armstrong

In this action to collect on a promissory note, the trial court granted summary judgment to the bank. Appellants appeal the trial court’s decisions regarding whether the bank was properly doing business in the State of Tennessee and whether the Appellants’ two contract-based counter-claims fail as a matter of law. Discerning no error regarding the trial court’s finding that the bank was properly doing business in the State, we affirm the trial court’s ruling in that regard. We also affirm the trial court’s finding that the bank was entitled to summary judgment on the contract-based counterclaims.

Shelby County Court of Appeals 02/25/15
First American Title Insurance Company v. Citizens Bank
E2014-01105-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

First American Title Insurance Company (“First American”) sued Citizens Bank seeking a declaratory judgment holding that First American had no liability to Citizens Bank for two specific transactions involving loan closings on real property located in Sevierville, Tennessee. First American filed a motion for summary judgment. After a hearing, the Chancery Court for Sevier County (“the Trial Court”) granted First American summary judgment and dismissed Citizens Bank’s counterclaim. Citizens Bank appeals to this Court raising issues regarding whether the Trial Court erred in finding that by assigning the mortgages and deeds of trust Citizens Bank also had assigned the two closing protection letters related to these specific transactions, and also that Citizens Bank’s counterclaim was barred because Citizens Bank failed to give First American timely notice of the settlement between Citizens Bank and the assignee of the mortgages.

Sevier County Court of Appeals 02/25/15
City of Knoxville v. Carlos Geovanny Ponce-Carpio
E2014-00316-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Dale C. Workman

In this appeal, the owner of a bar sought review of a citation he received for failure to display a beer permit. We affirm.

Knox County Court of Appeals 02/25/15
Cindy A. Tinnel v. East Tennessee Ear, Nose and Throat Specialists, P.C. et al.
E2014-00906-COA-R3-CV
Authoring Judge: John W. McClarty
Trial Court Judge: Chancellor William Everett Lantrip

This is a medical malpractice action. Plaintiff filed a complaint after sending pre-suit notices to Defendants. After voluntarily dismissing the complaint, Plaintiff filed a second set of pre-suit notices before re-filing the complaint. The pre-suit notices were filed within one year of the voluntary dismissal. Defendants moved for summary judgment, alleging that the re-filed complaint was untimely because it was not filed within one year of the dismissal pursuant to the saving statute. Plaintiff responded that the re-filed complaint was timely because the pre-suit notices entitled her to a 120-day extension of the saving statute pursuant to Tennessee Code Annotated section 29-26-121(c). The trial court dismissed the action. Plaintiff appeals. We reverse the decision of the trial court.

Anderson County Court of Appeals 02/25/15
In Re Blaklyn M.
M2014-00503-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Barry R. Brown

Father who filed petition to establish visitation with his child appeals the award of parenting time, contending that the parenting plan does not maximize his participation in the child’s life. Finding that the evidence preponderates against the parenting schedule ordered by the Court, we reverse the judgment and remand for the adoption of a plan that increases Father’s residential parenting time.

Sumner County Court of Appeals 02/24/15
Alison Fein (Young) Dahl v. Shawn Patrick Young
M2013-02854-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robbie T. Beal

Mother and Father were divorced when their child was not quite two years old. Mother was named the primary residential parent. She remarried when the child was three years old and sought to relocate to Virginia when her husband was required to move there for his job. Father objected and sought to be named the primary residential parent. The evidence was undisputed that Mother’s stepson (the child’s stepbrother) committed an act of sexual abuse on the child when he was four and the stepson was ten. Counselors were retained to work with each child. Both counselors testified the situation was under control and Mother was taking proper precautions to protect the child. The trial court permitted Mother to relocate with the child, but it limited the number of days the stepbrother could spend with the child in Virginia. Mother appealed, claiming the trial court’s ruling was arbitrary. She also appealed the trial court’s ruling requiring her to pay the transportation costs of the child’s flights to Tennessee to visit Father, its credit to Father for childcare expenses on the child support worksheet, and its denial of her request for attorney’s fees. We vacate the court’s $250 childcare credit to Father because no evidence of this expense was offered at trial. We affirm the trial court’s judgment in all other respects.

Williamson County Court of Appeals 02/24/15
Susan Isbell v. William G. Hatchett, et al.- Corrected Opinion
W2014-00633-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge J. Weber McCraw

This appeal involves claims arising from a settlement agreement allegedly entered by two of the parties to settle previous lawsuits. Appellant filed a complaint against Appellees alleging four causes of action: (1) tortious interference with a contractual obligation; (2) abuse of judicial process; (3) breach of the implied covenant of good faith and fair dealing; and (4) conspiracy to deny Appellant her rights under the settlement agreement. Appellees responded by filing a joint motion to dismiss. The trial court found that three of Appellant’s causes of action for tortious interference, breach of good faith, and conspiracy each required the existence of a contract and dismissed those claims based on a finding that the settlement agreement was void and unenforceable. The trial court also dismissed Appellant’s abuse of judicial process claim after finding “no evidence whatsoever that [Appellees] or their counsel of record did anything improper that would support a cause of action for abuse of process.” On appeal, we reverse the trial court’s finding that the settlement agreement was void and therefore reverse the dismissal of Appellant’s claims requiring a contract. Additionally, we hold that because the trial court did not consider any extraneous evidence in dismissing the abuse of judicial process claim, the trial court erred in applying a summary judgment standard with regard to that claim. Because we find that the complaint sufficiently alleged abuse of judicial process, we also reverse the trial court’s dismissal of that claim.

Fayette County Court of Appeals 02/23/15
Lisa Denise Church v. Shannon Wayne Brown
E2014-00942-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge John J. Maddux, Jr.

This appeal arises from a claim of fraud in a post-divorce context. Lisa Denise Church (“Plaintiff”) filed a complaint for fraud in the Circuit Court for Cumberland County (“the Trial Court”) against her ex-husband, Shannon Wayne Brown (“Defendant”), alleging that he had misled her during their divorce regarding the valuation of his business interest. This suit followed an earlier, unsuccessful action on the issue of fraud filed by Plaintiff under TRCP 60 in the divorce action which had yielded a final judgment after appeal. The Trial Court granted Defendant’s motion for summary judgment, finding, inter alia, that Plaintiff’s fraud claim was barred by res judicata. Plaintiff appealed to this Court. We hold that Plaintiff’s current lawsuit for fraud is a distinct cause of action, namely, common law fraud, and is not barred by res judicata. However, as the issue of fraud already had been decided in the earlier post-divorce Rule 60 proceedings, the doctrine of collateral estoppel prevents Plaintiff from re-litigating the issue of fraud. We affirm the judgment of the Trial Court as modified.

Cumberland County Court of Appeals 02/23/15
Mark Clayton v. Roy Herron, et al
M2014-01497-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Thomas W. Brothers

The trial court dismissed Plaintiff’s pro se complaint for failure to state a claim. Due to the deficiencies in Plaintiff’s brief on appeal, we find that he waived consideration of any issues on appeal and hereby dismiss the appeal.

Davidson County Court of Appeals 02/20/15
Susan Ellen Calfee Muhonen v. James Lucius Muhonen
E2013-02601-COA-R3-CV
Authoring Judge: Thomas R. Frierson, II
Trial Court Judge: Judge Lawrence Howard Puckett

This post-divorce parenting dispute arose when the father filed a petition to modify the parties’ permanent parenting plan as to their two minor children. Concomitantly with entry of the final judgment for divorce, the trial court had entered a permanent parenting plan order on January 19, 2007, designating the mother as the primary residential parent and granting the father residential co-parenting time on alternating weekends and Wednesday evenings. This parenting plan was later modified by agreement in an order entered June 17, 2008. Nearly five years later on July 27, 2012, the father filed the instant petition to modify the permanent parenting plan. He alleged that a dangerous situation existed at the mother’s home and requested an emergency ex parte order naming him the primary residential parent, which the trial court immediately granted. Upon a hearing, the trial court entered an order, inter alia, confirming the father as the primary residential parent, pending further proceedings, on August 13, 2012. Following a final hearing conducted approximately one year later, the trial court found that a material change in circumstance had occurred since entry of the June 2008 permanent parenting plan and that it was in the children’s best interest for the father to be declared their primary residential parent with sole decision-making authority. The mother has appealed. Discerning no reversible error, we affirm.

Bradley County Court of Appeals 02/20/15
City of Memphis v. Shelby County, Tennessee
W2014-00890-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Arnold B. Goldin

The ultimate issue in this lawsuit is how much of the electric and gas tax equivalent payments made by MLGW to the City of Memphis must be shared with Shelby County. The City claimed that it overpaid Shelby County in electric tax equivalents in recent years, while Shelby County claimed that it was underpaid in gas tax equivalents. The trial court found that the City paid the correct amount of electric tax equivalent payments for the years in question and rejected the City’s claim for damages for alleged overpayment. The trial court found that Shelby County was not entitled to a share of the gas tax equivalent payments for the years in dispute and rejected its claim for alleged underpayment. Accordingly, the trial court denied both parties’ claims for monetary damages. The trial court resolved the parties’ requests for declaratory and injunctive relief by declaring the manner and method of payment of the tax equivalents in the future. Both parties raise issues on appeal. For the following reasons, we affirm and remand for further proceedings.

Shelby County Court of Appeals 02/20/15
In Re Jonathan F.
E2014-01181-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jeff Rader

This is a termination of parental rights case. The court-appointed Guardian ad Litem (“the Guardian”) for the minor child Jonathan F. (“the Child”) filed a petition 1 in the Juvenile Court for Sevier County (“the Juvenile Court”) seeking to terminate the parental rights of Amy F. (“Mother”) and Uriah F. (“Father”) to the Child. The Department of Children’s Services (“DCS”) filed a response joining in the Guardian’s petition. After a trial, the Juvenile Court terminated Mother’s and Father’s parental rights on a host of grounds. We vacate certain of the grounds as relates to Father. Otherwise, we affirm the termination of Mother’s and Father’s parental rights to the Child. We affirm the judgment of the Juvenile Court as modified.

Sevier County Court of Appeals 02/20/15
Francis L. Johnston v. Charles Glen "Chuck" Johnston
E2015-00213-COA-T10B-CV
Authoring Judge: D. Michael Swiney
Trial Court Judge: Chancellor Jerri Bryant

This is an interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B from the Trial Court’s denial of a Motion to Recuse filed during post-judgment proceedings in a case involving a dispute over the validity of a check written against the revocable living trust of the decedent. Having reviewed the petition for recusal appeal filed by the Defendant/Appellant, Charles Glen Johnston (“Defendant”), pursuant to Rule 10B of the Rules of the Tennessee Supreme Court, we affirm the Trial Court.

Bradley County Court of Appeals 02/20/15
Estate of Marcia Hull v. Estate of George A. Culver, et al.
E2014-01213-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Jerri Bryant

This is a declaratory judgment action in which Plaintiff appeals the trial court’s grant of summary judgment regarding the transfer of Marcia Hull’s monetary assets and jointly-held property to the Culver Estate. We affirm the decision of the trial court.

Monroe County Court of Appeals 02/19/15
Romalis Gray v. Tennessee Department of Correction, et al.
E2014-02037-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Russell E. Simmons
This is an appeal from a final order dismissing the negligence action filed by the appellant.The final order was entered on July 10, 2014, and served on the parties by the trial court clerk on July 14, 2014. The Notice of Appeal was filed more than thirty (30) days from the effective date of entry of the final order, even considering the date upon which the pro se incarcerated appellant placed the Notice of Appeal in the mail for filing with the trial court clerk (September 10, 2014). See Tenn. R. App. P. 20(g). Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.
 
Morgan County Court of Appeals 02/13/15
Preston McNees Specialty Woodworking, Inc., et al. v. The Daniel Co. (Danco), Inc.
E2014-01004-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Thomas J. Seeley, Jr.

This case involves the proper interpretation of a contract between a general contractor and a subcontractor. The trial court determined that the subcontractor was entitled to recover additional sums above the original contract price based on the doctrine of equitable estoppel. The general contractor timely appealed. Having determined that the scope of the parties’ contract covered the work in question and that the doctrine of equitable estoppel does not apply in this matter, we vacate the trial court’s judgment.

Washington County Court of Appeals 02/13/15
Frances Rodgers, et al. v. Yarboro A. Sallee
E2013-02067-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Harold Wimberly, Jr.

The plaintiffs sued the defendant, their former attorney, to recover fees the plaintiffs had paid to the defendant, as well as punitive damages for alleged misrepresentations made by the defendant. The trial court granted a default judgment in favor of the plaintiffs. The defendant thereafter filed a motion seeking to set aside the default judgment, alleging that she was not properly served with process. Before the trial court entered a written order regarding the defendant’s motion to set aside the default judgment, the defendant filed a motion seeking recusal of the trial judge. The trial court subsequently entered an order denying the defendant’s motion to set aside the default judgment, as well as an order dismissing various motions for sanctions, while the recusal motion was pending. The court thereafter entered an order granting the defendant’s motion for recusal. The defendant has appealed. We determine that the trial court erred in entering orders regarding contested matters while the motion seeking recusal was pending. We therefore vacate the trial court’s orders and remand the case for further proceedings regarding the defendant’s motion to set aside the default judgment.

Knox County Court of Appeals 02/13/15
In Re Dorothy Elizabeth Sprinkle McSpadden
E2013-02024-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor John Weaver

Lloyde Susanne McSpadden Marcum (“Daughter”) appealed the judgment of the Chancery Court for Knox County (“the Trial Court”) appointing Katie Loftin and Emily McSpadden (“Granddaughters”) as co-conservators of Dorothy Elizabeth Sprinkle McSpadden (“Mother”). Mother died during the pendency of this appeal. We find and hold that Mother’s death rendered this appeal moot. We, therefore, dismiss the appeal, decline to address whether the appeal is frivolous, and decline to award either party attorney’s fees on appeal.

Knox County Court of Appeals 02/12/15
Sharon L. Allen v. Anderson County, Tennessee
E2014-00930-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Senior Judge Jon Kerry Blackwood

This action concerns the sale of three properties Plaintiff purchased at a tax sale held by Anderson County. Plaintiff alleged that Anderson County breached its contract with her by failing to convey marketable title to the properties when the owners of the subject properties had not received proper notice of the tax sale. Anderson County filed a motion to dismiss, asserting, in pertinent part, that the statute of limitations had passed for filing such actions and that it had not breached a contract with Plaintiff. The court dismissed the action, finding that Plaintiff failed to establish that it had entered into a contract with Anderson County, that the statute of limitations for such actions had passed, and that Plaintiff lacked standing to attack the alleged insufficient notice provided to the original property owners. Plaintiff
appeals. We affirm the decision of the trial court.

Anderson County Court of Appeals 02/12/15
In Re Estate of Dorothy Jean McMillin
E2014-01199-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Michael W. Moyers

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

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

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

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

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

Williamson County Court of Appeals 02/10/15