Court of Appeals Opinions

Format: 05/18/2018
Format: 05/18/2018
Wayne Goodwyn v. Board of Zoning Appeals of the Metropolitan Government of Nashville & Davidson County, TN
M2017-00192-COA-R3-CV
Authoring Judge: Judge Arnold B.Goldin
Trial Court Judge: Judge Joseph P. Binkley, Jr.

After the Metropolitan Board of Zoning Appeals granted a special exception permit for a nearby property, Appellant filed a petition for writ of certiorari in the Davidson County Circuit Court. The trial court ultimately concluded that the permit was properly issued. Having reviewed the record transmitted to us on appeal, we affirm the decision of the trial court.

Davidson County Court of Appeals 04/26/18
Howard L. Greenlee v. Sevier County, Tennessee
E2017-00942-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge O. Duane Slone

This action involves a claim for compensatory damages for personal injury caused by a police dog. The defendant sought summary judgment, arguing that the victim, an officer acting in the course and scope of his employment, was a participant in the act or conduct that prompted the need for the dog’s services, thereby removing liability pursuant to Tennessee Code Annotated section 44-8-413(b)(1). The court agreed and granted summary judgment. We reverse and remand for further proceedings.

Sevier County Court of Appeals 04/26/18
Elgain Ricky Wilson v. Shane Adcock, et al.
W2017-00901-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Tony Childress

This appeal arises from an inmate filing a common law writ of certiorari challenging the actions of a prison grievance committee. The respondents filed a motion to dismiss the petition for failure to state a claim upon which relief can be granted; specifically, that decisions of a prison grievance board are not reviewable under a common law writ of certiorari. The trial court dismissed the petition. Inmate appeals. We affirm.

Lake County Court of Appeals 04/26/18
Madison County, Tennessee, et al. v. Delinquent Taxpayers for 2012, et al.
W2016-02526-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor James F. Butler

This appeal involves the right of redemption after a tax sale. After the tax sale occurred, the original property owners purportedly conveyed their right of redemption to a third party through a contract of sale and quitclaim deed. The third party filed a motion to redeem the property. The trial court denied the motion to redeem, concluding that the third party did not meet the relevant statutory definition of a person entitled to redeem the property. For the following reasons, we affirm and remand for further proceedings.

Madison County Court of Appeals 04/26/18
Khurshid Ismoilov v. Sears Holdings Corporation, Et Al.
M2017-00897-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Thomas W. Brothers

This case presents the issue of a seller’s liability for damages caused by an allegedly defective water heater. The trial court granted judgment on the pleadings in favor of the defendant seller concerning the plaintiff’s claims of products liability, strict liability, breach of implied warranty, negligence, and unfair or deceptive trade practices, finding these claims to be barred by the expiration of the ten-year statute of repose applicable to products liability actions. The trial court subsequently granted summary judgment in favor of the seller regarding the plaintiff’s remaining claim of breach of express warranty. Determining that no material factual disputes existed, the court held that the seller was entitled to judgment as a matter of law because the seller had demonstrated that it had fully complied with the warranty on the water heater at issue. The plaintiff filed a motion to alter or amend, also requesting a more specific order. The trial court denied the motion to alter or amend except that it provided a more definite statement of the basis for its grant of summary judgment in favor of the seller. The plaintiff has appealed. Discerning no reversible error, we affirm.

Davidson County Court of Appeals 04/25/18
Wafa Badawi Hindiyeh v. Waleed Fawzi Abed
M2017-00410-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge J. Mark Rogers

This appeal arises from a divorce. Wafa Badawi Hindiyeh (“Wife”) sued Waleed Fawzi Abed (“Husband”) for divorce in the Chancery Court for Rutherford County (“the Trial Court”). After a trial, the Trial Court, inter alia, granted Wife a divorce, entered a permanent parenting plan with respect to the parties’ minor son (“the Child”) awarding Wife 285 days to Husband’s 80, and awarded Wife a judgment for the value of a Cadillac less $2,500 Wife received on the sale of her original vehicle for a total judgment of $13,400. Husband appeals to this Court, arguing, among other things, that the Trial Court found no statutory factors applicable to justify such a paltry award of parenting time to him and that the Cadillac at issue was not even marital property subject to division. We vacate the Trial Court’s judgment with respect to the residential parenting schedule and remand for the Trial Court to award Husband significantly more time with the Child. Finding that the Cadillac was not marital property, we modify the Trial Court’s award of $13,400 to Wife to $2,000 to account for only the sale of Wife’s original vehicle. We otherwise affirm the Trial Court. We, therefore, affirm as modified, in part, and vacate, in part, the judgment of the Trial Court.

Rutherford County Court of Appeals 04/25/18
In Re: Kyle F.
E2017-01821-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Raymond C. Conkin

This is a termination of parental rights case involving a two-year-old child, Kyle F. (“the Child”). In January 2016, the Sullivan County Juvenile Court (“trial court”) granted temporary legal custody of the Child to the Tennessee Department of Children’s Services (“DCS”). The Child was immediately placed in foster care, where he has remained since that date. DCS subsequently filed a petition to terminate the parental rights of the Child’s mother, Debra F. (“Mother”), on September 19, 2016.1 Following a bench trial, the trial court determined that DCS had failed to prove by clear and convincing evidence that Mother had abandoned the Child through conduct exhibiting a wanton disregard for the welfare of the Child prior to her incarceration. Determining that no statutory ground existed for termination of Mother’s parental rights, the trial court declined to address the best interest of the Child. The guardian ad litem timely filed a notice of appeal. Discerning no reversible error, we affirm

Sullivan County Court of Appeals 04/25/18
Carl Lester Byrd, Jr. v. Appalachian Electric Cooperative
E2017-01345-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Deborah C. Stevens

The trial court dismissed the plaintiff’s claim of outrageous conduct/intentional infliction of emotional distress filed against his employer because the plaintiff had previously filed a workers’ compensation claim against the employer, seeking compensation for injuries arising out of the same incident. The plaintiff has appealed the dismissal of his claim. Discerning no reversible error, we affirm the trial court’s judgment of dismissal. We decline Appalachian’s request for an award of attorney’s fees, determining that Mr. Byrd’s appeal was not frivolous or taken solely for delay.

Jefferson County Court of Appeals 04/25/18
In Re: Ravyn R., Et Al.
E2017-01001-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Alex E. Pearson

This is an appeal from an adjudicatory order of the circuit court in a dependency and neglect appeal. Because the order appealed is not a final, appealable judgment, we dismiss the appeal and remand for further proceedings.

Greene County Court of Appeals 04/25/18
Michael Smith v. Shelby County Sheriff's Department
W2016-01536-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jerry Stokes

This appeal involves an incarcerated inmate’s filing of a petition for writ of certiorari. The respondent filed a motion to dismiss, claiming that the time for filing such a petition had passed. The trial court dismissed the petition as untimely. We affirm.

Shelby County Court of Appeals 04/25/18
Kisha Dean Trezevant v. Stanley H. Trezevant, III
W2017-00715-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donna M. Fields

This is a divorce case between parties who amassed a great amount of wealth and lived an extravagant lifestyle for many years. There are no minor children involved, and this appeal is limited to the trial court’s identification, classification, valuation, and division of marital property, the trial court’s awards of alimony to Wife, and Husband’s convictions for several counts of criminal contempt. One of the most salient issues raised by Husband on appeal relates to the trial court’s decision to use a financial statement prepared by Husband in 2012 to value several properties in the marital estate rather than the certified appraisals that were prepared in the course of litigation for the purpose of valuing the marital estate. According to Husband, this resulted in the court grossly overvaluing the marital estate. For the reasons stated herein, we affirm the trial court’s identification and classification of marital property as well as the trial court’s findings and sentencing related to Husband’s criminal contempt. We vacate the trial court’s valuation and distribution of the parties’ marital property and awards of alimony. We remand the case to the trial court for further proceedings consistent with this Opinion.

Shelby County Court of Appeals 04/25/18
Fisher Dezevallos v. Terry Burns Insurance Agency, LLC
M2017-02030-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Appellee brought a claim against Appellant insurance agency for “unlawfully and fraudulently” withdrawing funds from Appellee’s bank account and accepting premium payments on two insurance policies after Appellee allegedly cancelled his policies. Although not asserted as a claim in its general sessions summons, the circuit court, on appeal, awarded Appellee a judgment for unjust enrichment in the amount of $397.00. Because the preponderance of the evidence does not support the judgment, we reverse and remand.  

Davidson County Court of Appeals 04/24/18
Jennie Roles-Walter, Et Al. v. Robert W. Kidd, Et Al.
M2017-01417-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Franklin L. Russell

This is a property damage case. Appellants assert that their property is being damaged by the defective gutter systems of adjacent buildings, which are owned by Appellees. The trial court granted Appellees’ Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss Appellants’ complaint, finding that Appellants’ claim was barred by the three-year statute of limitations applicable to claims for property damage. Tenn. Code Ann. §28-3-105. Appellants contend that their complaint sounds in nuisance, specifically temporary nuisance, and not in negligence. Accordingly, Appellants argue that the statute of limitations renews with each rain. While we agree with the trial court that Appellants’ claim is one for negligence and not for nuisance, we conclude that the trial court erred in dismissing the complaint as time-barred. Applying the discovery rule and giving Appellants all reasonable inferences based on the averments in their complaint, we conclude that Appellants have pled facts sufficient to survive the motions to dismiss.  

Lincoln County Court of Appeals 04/24/18
In Re Estate of James Donald Meadows
M2017-01062-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael Meise

Appellants, an estate and its co-executors, appeal from the trial court’s order disqualifying their counsel due to a purported conflict of interest. Because the appellants have appealed from a non-final order, we dismiss this appeal for lack of jurisdiction. 

Dickson County Court of Appeals 04/24/18
In Re Estate of Francis J. Kowalski
M2017-00533-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Randy Kennedy

Thomas Kowalski, Michael Kowalski, John J. Kowalski, and Margaret Kowalski (“Plaintiffs”) appeal the February 2, 2017 judgment of the Circuit Court for Davidson County (“the Trial Court”) finding and holding, inter alia, that the holographic Last Will and Testament of Francis J. Kowalski (“the Will”) contained a residuary clause such that Francis J. Kowalski (“Deceased”) did not die partially intestate and that the Will granted a conditional life estate in real property located at 2820 Azalea Place (“Azalea Place”) in Nashville to Trevor Walker for as long as Walker operates Thrill Building Music, LLC. We find and hold that the Will does not contain a residuary clause and that Deceased died partially intestate. We further find and hold that the Will granted a fee determinable estate in Azalea Place to Trevor Walker for as long as Walker operates Thrill Building Music, LLC. Given all this, we reverse the Trial Court’s judgment as to whether the Will contained a residuary clause and modify the judgment to reflect that the Will granted a fee determinable estate in Azalea Place to Trevor Walker for as long as Walker operates Thrill Building Music, LLC.

Davidson County Court of Appeals 04/23/18
Toniann Whitaker v. James B. Devereaux
E2017-01812-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin, Jr.
Trial Court Judge: Judge Ben W. Hooper, II

After Appellant’s son violated an order of protection entered against him, Appellant sought relief from the trial court. Although the trial court ruled on some of the issues raised by Appellant, not all of her claims were adjudicated. We therefore dismiss the appeal due to the absence of a final judgment.

Jefferson County Court of Appeals 04/23/18
Eddison Williams v. State of Tennessee
E2017-00626-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: William O. Shults, Commissioner

This appeal involves the jurisdiction of the Tennessee Claims Commission to hear an action brought by a former medical student, Eddison Williams (claimant), against the Quillen College of Medicine at East Tennessee State University. Claimant alleged that the State, acting through medical school officials, “negligently breached its contractual duties regarding following policies before dismissing [him] on disciplinary grounds.” He argued his action stated a claim for “negligent care, custody and control of persons,” a category of claims the Commission has jurisdiction to hear under Tenn. Code Ann. § 9-8- 307(a)(1)(E) (Supp.2017). The Commission concluded it had no subject matter jurisdiction. We affirm.

Davidson County Court of Appeals 04/23/18
Thomas Nathan Loftis, Sr. v. Randy Rayburn
M2017-01502-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kelvin D. Jones

The former director of a culinary program filed a complaint alleging defamation by implication or innuendo and false light invasion of privacy against an individual he claimed was the source of statements made in a newspaper article. The defendant moved to dismiss the complaint on the basis that the statements were not actionable as a matter of law. The trial court dismissed the complaint, and the former director appealed. We affirm the trial court’s judgment dismissing the complaint and remand the issue of attorney’s fees to the trial court.

Davidson County Court of Appeals 04/20/18
Sugar Creek Carriages v. Hat Creek Carriages, Et Al.
M2017-00963-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This case involves a claim for procurement of breach of contract. The plaintiff and the defendants operate competing businesses that provide carriage rides for hire in Nashville, Tennessee. The plaintiff sued the defendants for violating Tenn. Code Ann. § 47-50-109 by procuring one of its carriage drivers to breach his noncompete agreement with the plaintiff by driving a carriage for the defendants’ business. The trial court granted summary judgment in favor of the defendants upon the determination that the plaintiff could not prove an essential element of a procurement of breach of contract claim, that the underlying contract was enforceable. Agreeing with the determination that the noncompete agreement was not enforceable, we affirm.

Davidson County Court of Appeals 04/19/18
E Solutions For Buildings, LLC v. Knestrick Contractor, Inc., Et Al.
M2017-00732-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Russell T. Perkins

This appeal involves a construction contract dispute among a general contractor, a subcontractor, and the subcontractor’s equipment supplier regarding liability for construction project delays. After a four-day bench trial, the trial court resolved most of the substantive issues among the parties and ultimately determined that the prevailing parties were entitled to awards of attorney’s fees pursuant to various contractual provisions. However, the trial court did not make the awards of attorney’s fees at that time because the parties had not submitted sworn itemizations of services rendered. As a result, the trial court directed the parties to renew their requests for attorney’s fees after any appeals were exhausted. The requests for attorney’s fees were granted in part and denied in part “without prejudice.” Due to the outstanding unresolved issues regarding the attorney’s fee awards, we conclude that the appeal must be dismissed. 

Davidson County Court of Appeals 04/17/18
In Re: T.W. Et Al.
E2017-00317-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jerri Bryant

In this termination of parental rights case, J.B.H. and H.D.H. (prospective parents) filed a petition to terminate the parental rights of M.A.W. (mother) and E.R.W. (father) in order to adopt two of their minor children, T.W. and B.W. (the children). S.A.G. (grandmother) and M.W.G. (grandfather) are the maternal grandparents of the children. They joined the prospective parents as co-petitioners. The trial court found clear and convincing evidence that mother and father abandoned their children by willfully failing to visit and support them during the relevant statutory time frame. By the same quantum of proof, the court also determined that termination is in the best interest of the children. Consequently, the court entered an order terminating the parents’ rights. Mother appeals the trial court’s order terminating her rights. We reverse.

McMinn County Court of Appeals 04/17/18
Kathlene Denise Roberts v. Willie Dino Roberts, Jr.
M2017-00479-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

Husband appeals the trial court’s decision in this post-divorce marital property dispute, arguing that the trial court erred in finding that certain retirement benefits “matured” in 2012. Discerning no reversible error, we affirm. 

Montgomery County Court of Appeals 04/16/18
Shelby County Board of Education, et al. v. Tennessee Secondary School Athletic Association
W2018-00083-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Jim Kyle

Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 04/16/18
Bruce Guy, Jr., et al. v. Tennessee Secondary School Athletic Association
W2018-00082-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Walter L. Evans

Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 04/16/18
Christopher Conrad Fichtel v. Jill Crowell Fichtel
M2017-00409-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Philip E. Smith

This is a post-divorce/parental relocation matter in which the father of two minor children opposed the mother’s intended relocation to Ohio. The father also sought a modification of the parties’ parenting plan regardless of whether the mother was permitted to relocate. The mother filed a cross-petition to modify the parenting plan and child support. After determining that the parties spent substantially equal intervals of time with the child, the court conducted a best-interest analysis to determine whether it was in the children’s best interest to relocate with the mother. The court concluded that it was not in the children’s best interest to relocate and modified child support to reflect the parties’ current incomes. Although the trial court made an explicit finding that the mother had indeed relocated without the children, the trial court never ruled on the parties’ competing claims to modify the original parenting plan or entered a new parenting plan. Having reviewed the record transmitted to us on appeal, we observe that the judgment appealed from is not final. Given the absence of a final judgment, we dismiss the appeal for lack of subject matter jurisdiction.  

Davidson County Court of Appeals 04/13/18