Court of Appeals Opinions

Format: 07/25/2017
Format: 07/25/2017
In Re C.J.B., et al
M2016-01585-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Thomas C. Farls

This is a termination of parental rights case. The Department of Children’s Services filed a petition to terminate the parental rights of C.F.B. (mother) and J.W.B (father) with respect to their two children, C.J.B. and C.C.B. As to mother, the trial court found clear and convincing evidence of four grounds supporting termination. By the same quantum of proof, the trial court found that termination of mother’s rights is in the best interest of the children. As to father, the trial court found clear and convincing evidence of three grounds supporting termination. By the same standard of evidence, the trial court found that termination of father’s rights is in the best interest of the children. Mother and father appeal. As modified, we affirm.

Franklin County Court of Appeals 06/28/17
Erie Family Life Insurance Company v. Tiffany Dawn Sampson, et al
M2016-00541-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Ross H. Hicks

Insurer brought a declaratory judgment action asking the court to determine the proper beneficiary of the proceeds of a life insurance policy rider insuring the life of the named insured’s child; the named insured had designated her mother as the beneficiary of the policy and rider. Upon the child’s death, the named insured was prevented by law from receiving the proceeds, and the insurer asked for a declaration of whether the named insured’s disqualification also prevented the named beneficiary from receiving the proceeds or whether the estate of the child would receive the proceeds, in accordance with the designation of beneficiary in the policy. The trial court determined that the policy’s designation was inequitable and awarded the proceeds to the estate of the child.  We have determined that the disqualification of the named insured from receiving the proceeds of the policy does not invalidate the designation of beneficiary and, accordingly, reverse the decision of the trial court.

Robertson County Court of Appeals 06/28/17
Tony E. Hancock v. State of Tennessee
M2016-01501-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Robert N. Hibbett, Commissioner, TN Claims Commission

Appellant was injured in an automobile collision with a State Trooper. After a trial, the Claims Commissioner found in favor of the State and dismissed the claim. Discerning no error, we affirm. 

Court of Appeals 06/28/17
In re Rylan G., et al.
E2016-02523-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert M. Estep

This is a termination of parental rights case. The trial court terminated Appellant/Mother’s parental rights on the grounds of: (1) abandonment by failure to provide a suitable home; (2) substantial non-compliance with the permanency plan; and (3) severe child abuse. Because Appellee, Tennessee Department of Children’s Services, did not meet its burden to show that it exercised reasonable efforts to assist Mother in obtaining suitable housing, we reverse the trial court’s finding as to the ground of abandonment by failure to establish a suitable home. The other grounds for termination of Mother’s parental rights are met by clear and convincing evidence, and there is also clear and convincing evidence that termination of Mother’s parental rights is in the best interests of the children. Affirmed in part, reversed in part, and remanded.

Claiborne County Court of Appeals 06/28/17
Lisa Schnur v. James William Sherrell, III
E2016-01338-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge W. Neil Thomas, III

This appeal involves a post-divorce order of protection. Mother obtained an ex-parte order of protection on behalf of the parties’ thirteen-year-old son alleging that Father had punched the child in the mouth while drunk on a family vacation. After an evidentiary hearing, the trial court dismissed Mother’s petition for order of protection finding that she had not met her burden of proof. Mother appealed. Discerning no error, we affirm.

Hamilton County Court of Appeals 06/27/17
Lorese Douglas Jones, et al. v. Stephen W. Behrman, et al.
W2016-00643-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert Samuel Weiss

This is a medical malpractice action in which the trial court granted summary judgment for failure to file suit within the applicable statute of limitations. We affirm.

Shelby County Court of Appeals 06/27/17
Kimberly K. Carr v. Floyd K. Sutton
M2015-01568-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Barry R. Brown

The State of Tennessee filed a petition in 2013 on behalf of the mother of a child who was born in 1996 to legitimate the child and to require the father to provide health insurance for the child; the requested relief was granted.  In 2014, the mother filed a petition to set child support and, following a hearing before a juvenile court magistrate, the father was ordered to pay child support; the magistrate determined that child support should not be made retroactive to the birth of the child but, rather, to the date that the petition to have the child legitimated was filed.  Mother appealed the decision to the juvenile judge; after a de novo hearing, the juvenile judge adopted the findings of the magistrate and ordered Father to pay support of $549.00 per month from the date the petition to legitimate was filed.  Mother appeals the ruling, contending that the obligation to pay support should be retroactive to the date of the child’s birth.  Concluding that the trial court did not abuse its discretion, we affirm the judgment.  

Sumner County Court of Appeals 06/26/17
In Re: Francis P
E2016-02493-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Lawrence Howard Puckett

The appellant, Tony P., filed a “Complaint and Petition to Terminate Parental Rights and/or for Adoption” in the Circuit Court for McMinn County (“trial court”) on September 18, 2015. This petition sought to terminate the parental rights of the “unknown father” of a child for whom Tony P. had signed a voluntary acknowledgment of paternity (“VAP”). Jon F. filed a motion to intervene, asserting that he was the biological father of the child. The trial court allowed Jon F. to intervene in the action pursuant to an agreed order. The child’s mother later filed a motion seeking to dismiss Tony P.’s petition for failure to state a claim upon which relief could be granted and lack of subject matter jurisdiction. By oral motion, Jon F. joined with the mother in seeking dismissal. The trial court entered a Memorandum and Order on August 15, 2016, finding that (1) Jon F. was the biological and legal father of the child, (2) Tony P.’s VAP had been rebutted, and (3) any and all parental rights of Tony P. as legal father were “terminated by operation of law under Tenn. Code Ann. § 36-1-102(28)(C).” The trial court entered a subsequent order dismissing the petition filed by Tony P. Tony P. timely appealed. Having determined that the trial court properly found that Jon F. challenged and rebutted the VAP executed by Tony P., we conclude that Tony P. no longer enjoyed any parental rights with regard to the child. Although we determine that the trial court erred by applying Tennessee Code Annotated § 36-1-102(28)(C) retrospectively to this action filed before the statutory subsection’s enactment, we determine this error to be harmless inasmuch as Tony P.’s parental rights were a nullity. We therefore modify the judgment to reflect that Tony P. had no parental rights to be terminated following the court’s rescission of the VAP. We affirm the trial court’s dismissal of Tony P.’s petition seeking termination of Jon F.’s parental rights. We decline to award fees and costs to the mother and Jon F.

McMinn County Court of Appeals 06/26/17
Brenda Ramsey v. Cocke County, Tennessee, Et Al.
E2016-02145-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Richard R. Vance

In this wrongful death action, the decedent’s mother filed suit alleging that the county emergency communications district and the city police department refused to send help when the plaintiff called to report that her daughter was making suicidal threats and that, as a result, her daughter committed suicide later the same night. The trial court granted summary judgment in favor of the defendants on the ground that the decedent’s suicide constituted an intervening, superseding cause. Viewing the evidence in the light most favorable to the plaintiff, we conclude that the decedent’s suicide was foreseeable and that the special duty exception to the public duty doctrine applies. We, therefore, reverse the trial court’s grant of summary judgment and remand for further proceedings.

Cocke County Court of Appeals 06/23/17
Phillip Neal Kennedy v. Jane Kennedy
M2016-01635-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Michael W. Binkley

This post-divorce appeal concerns the father’s petition to modify the residential schedule in an agreed parenting plan. Following a hearing, the trial court found that a material change in circumstances necessitated a change in the schedule. The court modified the plan by awarding the father additional co-parenting time. The court also entered a new child support order and directed the mother to remit payment for retroactive child support and the father’s attorney fees. The mother appeals. We affirm.

Williamson County Court of Appeals 06/23/17
The Metropolitan Government of Nashville And Davidson County v. Delinquent Taxpayers As Shown On The 2006 Real Property Tax Records, et al
M2016-02220-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

Delinquent taxpayer appeals the denial of his Tenn. R. Civ. P. 60.02(3) motion to set aside a 2009 final decree confirming a tax sale of his property as void on due process grounds. Having determined that the doctrine of collateral estoppel precluded the delinquent taxpayer from relitigating the issue of notice, we affirm.

Davidson County Court of Appeals 06/23/17
J.P.Morgan Chase Bank, N.A. v. Gary Eldon Finley, et al
M2016-01178-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor J. B. Cox

A bank filed a complaint to reform a Deed of Trust to correct a scrivener’s error in the legal description of a parcel of property in order to foreclose on the property. While the litigation was pending, the mortgagors conveyed title to the property to a third party, who claimed to be a bona fide purchaser for value without notice. The trial court concluded that the third party did not qualify as a bona fide purchaser because he was aware of the bank’s litigation when he obtained title to the property. We affirm the trial court’s judgment.

Marshall County Court of Appeals 06/22/17
Jerry Faerber, et al. v. Troutman & Troutman, P.C., et al.
E2016-01378-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Don R. Ash

Appellees entered into a contract for the purchase of an undeveloped lot in a planned unit development. Appellants, an attorney and his law firm, prepared closing documents, including a warranty deed and settlement statement. The warranty deed included language that the property was unencumbered, and the settlement statement provided for payoff of the first mortgage and for the purchase of title insurance. Appellees later discovered that Appellants had failed to procure release of the first lien and had also failed to procure title insurance. The property was foreclosed, and Appellees filed suit against Appellants for negligent misrepresentation and violation of the Tennessee Consumer Protection Act. The trial court found Appellees liable on these claims. We concluded that the Tennessee Consumer Protection Act does not apply to Appellants, who were engaged in the practice of law in the preparation of the closing documents. Accordingly, we reverse the trial court’s award of attorney fees and costs pursuant to the Tennessee Consumer Protection Act. The trial court’s order is otherwise affirmed.

Campbell County Court of Appeals 06/22/17
Terry Joe McBroom v. Kelly Loretta Folkers McBroom
W2016-01276-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jim Kyle

In this divorce case, Terry Joe McBroom appeals the trial court’s award of alimony in futuro to Kelly Loretta Folkerts McBroom in the amount of $980 per month for three years or until Husband began drawing his retirement pension. The trial court ordered that once Husband began drawing his pension, which the parties agree will happen no later than April of 2019, the amount of spousal support will be reduced to $720. The court further ruled that Husband’s support obligation would cease when Wife began drawing Social Security benefits. Finding no abuse of discretion, we affirm.

Shelby County Court of Appeals 06/21/17
In Re: Skylar P., Et Al.
E2016-02023-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kurt A. Benson

Mother appeals the trial court’s decision to terminate her parental rights to two children on the grounds of: (1) abandonment by failure to provide a suitable home; (2) abandonment by willful failure to provide support; (3) substantial noncompliance with the requirements of the permanency plans; and (4) persistence of conditions that precipitated the children’s removal from Mother’s custody. The trial court found by clear and convincing evidence that termination of Mother’s parental rights was in the best interest of the children. We reverse in part and affirm in part.

Bradley County Court of Appeals 06/21/17
In Re Jase P.
E2016-02519-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Timothy E. Irwin

This appeal arises from the termination of a father’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition against Anthony G. (“Father”) in the Juvenile Court for Knox County (“the Juvenile Court”) seeking to terminate Father’s parental rights to his son, Jase P. (“the Child”). Father had been incarcerated and unable to parent the Child since the Child’s birth. After a trial, the Juvenile Court terminated Father’s parental rights on the grounds of wanton disregard and various grounds coming under the putative father statute at Tenn. Code Ann. § 36-1- 113(g)(9)(A). Father appeals. We affirm all grounds for termination found against Father. We further affirm that termination of Father’s parental rights is in the Child’s best interest. We, therefore, affirm the judgment of the Juvenile Court in its entirety.

Knox County Court of Appeals 06/21/17
Tracy Lynn Hallums v. Bruce Alan Hallums
M2016-00396-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge John Thomas Gwin

In this divorce action, the trial court awarded alimony in futuro and attorney’s fees to Wife; Husband appeals both awards. Concluding that the court did not make adequate findings as to whether rehabilitative or transitional alimony was feasible, we vacate the award of alimony in futuro and remand for further consideration of the nature and duration of the alimony award; we affirm the trial court’s award of attorney’s fees to Wife; and we decline to award attorney’s fees to either party for the appeal.

Wilson County Court of Appeals 06/21/17
John F. Pinkard, M.D. v. HCA Health Services of Tennessee, Inc. D/B/A Summit Medical Center
M2016-01846-COA-R9-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

We granted this interlocutory appeal to determine whether Tenn. Code Ann. § 68-11-272(c)(1) of the Healthcare Quality Improvement Act (“HCQIA”), as applied to the facts of this case, violates the separation of powers provisions in the Tennessee Constitution. Plaintiff, a physician whose medical staff privileges were terminated by Summit Medical Center, sued the hospital, alleging, inter alia, that it acted in bad faith and with malice during the peer review process. Following a lengthy discovery process, the hospital filed a motion for summary judgment asserting, inter alia, that Plaintiff’s anticipated evidence was confidential, privileged, and inadmissible under the HCQIA because it was derived from the activity of a Quality Improvement Committee (“QIC”). At the same time, the hospital filed a motion in limine to exclude all records of quality improvement activity pursuant to the evidentiary privilege under Tenn. Code Ann. § 68-11-272(c)(1). After ascertaining that Plaintiff intended to rely on QIC evidence, the trial court ruled that the peer review privilege could not be waived, and that Tenn. Code Ann. § 68-11-272(c)(1) violated the separation of powers provisions because it deprived the court of its inherent authority to make evidentiary decisions affecting “the heart of this case.” This Tenn. R. App. P. Rule 9 interlocutory appeal followed. We agree with the trial court’s ruling that the privilege cannot be waived. However, we disagree with the trial court’s ruling that Tenn. Code Ann. § 68-11-272(c)(1), as applied to the facts of this case, violates the separation of powers provisions in the Tennessee Constitution. This is because the General Assembly created the evidentiary privilege to effectuate one of its powers, the enactment of legislation that promotes the safety and welfare of our citizens. To that end, the primary concern of the challenged legislation is not to create court rules, but to promote candor within a hospital’s quality improvement process to ensure effective evaluation measures. Furthermore, Tenn. Code Ann. § 68-11-272(c)(2) provides an “original source” exception to the privilege whereby documents not produced specifically for use by a QIC, and are otherwise available from original sources, are both discoverable and admissible into evidence even if the information was presented during a QIC proceeding. Thus, the privilege is reasonable and workable within the framework of - 2 - evidentiary rules already recognized by the judiciary. For these reasons, we reverse and remand for further proceedings.

Davidson County Court of Appeals 06/21/17
Western Farm Products, LLC, Inc. v. Sumner County, TN , et al
M2015-02003-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Joe H. Thompson

A property owner who wished to construct and operate a quarry sought a declaratory judgment that a Sumner County Zoning Resolution, which was alleged to exclude quarrying and mining activities, is unconstitutional and in violation of the Tennessee zoning enabling statutes. A group of adjoining property owners were permitted to intervene in the proceeding, and the court granted summary judgment to the county and adjoining property owners. The property owner now appeals. We find that the evidence relied upon by the property owner does not establish that the ordinance at issue prohibits all quarrying activities and affirm the trial court’s judgment.

Sumner County Court of Appeals 06/19/17
Ronald Stringer v. Alecia Stringer
M2016-01314-COA-R3-CV
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Judge Philip E. Smith

This post-divorce case concerns parental relocation.  Mother, the primary residential parent, sought to relocate to Texas, citing an employment offer.  Father objected to the relocation, arguing that the move had no reasonable purpose and that Mother’s real purpose for relocating is to be closer to her boyfriend. The trial court denied mother’s request to relocate based on mother’s perjury in the trial court’s presence and on the finding that the real purpose of mother’s proposed move is to be closer to her boyfriend. We reverse the trial court’s decision because we determine that father failed to carry his burden of proof.

Davidson County Court of Appeals 06/16/17
Amy Ausenbaugh Sturdivant v. William Eugene Sturdivant
M2016-00976-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

Father appeals the trial court’s denial of his request for equal parenting time with the parties’ children and failure to grant father a fault-based divorce based on mother’s infidelity. Discerning no error, we affirm.

Montgomery County Court of Appeals 06/15/17
Tennessee Firearms Association, et al. v. Metropolitan Government of Nashville and Davidson County, Tennessee
M2016-01782-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Carol L. McCoy

This appeal involves an attempt to challenge the legality of a gun show ban that was adopted for the Tennessee State Fairgrounds. The trial court dismissed the complaint on numerous alternative grounds. We affirm.

Davidson County Court of Appeals 06/15/17
In Re Estate of Bessie Adcock Bingham
M2016-01186-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor James B. Cox

This appeal arises from the probate administration of an estate. The principal issues concern a certificate of deposit and the trial court’s approval of attorney fees paid from the estate to the estate’s first attorney. The trial court awarded the certificate of deposit to the decedent’s son, finding that the certificate of deposit passed to the son as the surviving joint tenant. With respect to attorney fees paid to estate’s first attorney, the trial court approved fees in the amount of $12,400 and disapproved fees in the amount of $7,600. The decedent’s daughter appealed. Finding no error, we affirm.

Bedford County Court of Appeals 06/13/17
Church of The First Born Of Tennessee, Inc. v. Tom Slagle, et al.
M2014-01605-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Charles K. Smith

A dispute among members of a church arose over control of the church. One group of members incorporated and then filed suit against individual members of the church seeking to quite title to certain real property. The parties filed cross-motions for summary judgment. In granting the individual church members’ motion and denying the corporation’s motion, the trial court found the church to be congregationally governed with a clear and established practice for handling real property transactions. We conclude that the corporation lacked standing to bring the action and that the corporation’s case should be dismissed on that basis. Therefore, we reverse.  

Trousdale County Court of Appeals 06/13/17
Sonya C. Franklin Sardon v. Troy Eugene Sardon
M2015-01672-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Phillip R. Robinson

Post-divorce proceeding wherein Mother petitioned the court for a modification of the parenting plan and to increase Father’s child support obligation; following a hearing, the court granted her petition. Father appeals the upward deviation to his basic support obligation to pay a portion of the children’s extracurricular activities, the failure to give Father credit for additional funds he paid Mother each month, and the award of attorney’s fees to Mother. Upon consideration of the record, we discern no error and, accordingly, affirm the judgment of the trial court.  

Davidson County Court of Appeals 06/13/17