Court of Appeals Opinions

Format: 02/09/2016
Format: 02/09/2016
Janice Gail Mory v. Daniel Keith Mory
W2015-00423-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Carma Dennis McGee

This appeal arises out of a divorce case. The husband asserts that the trial court erred in classifying, valuing, and distributing the parties’ marital property. Because the husband failed to comply with Rule 7 of the Rules of the Court of Appeals of Tennessee, we deem his issues regarding the marital property division to be waived. The trial court’s decision is accordingly affirmed.

Henry County Court of Appeals 01/07/16
Richard Kolasinski v. Tennessee Department of Safety And Homeland Security, et al.
M2014-02487-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Claudia Bonnyman

Police seized a vehicle and commenced forfeiture proceedings. The Tennessee Department of Safety and Homeland Security mailed notices of the forfeiture proceedings to the driver and the owner of the vehicle, but the postal service returned the notices undelivered. When no petition was filed asserting a claim to the vehicle, the Department entered an order of forfeiture. After learning of the order of forfeiture, the owner of the vehicle filed a petition for judicial review, but because the petition was filed sixty-one days after the entry of the order of forfeiture, the trial court dismissed the petition for lack of subject matter jurisdiction. We affirm.
 

Davidson County Court of Appeals 12/30/15
In re Martavious B. et al.
M2015-01144-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Timothy R. Barnes

This appeal arises from the termination of Father’s parental rights on two grounds, severe child abuse and persistence of conditions, and the finding that termination of his parental rights was in the best interests of his children. Father appeals the trial court’s findings of persistence of conditions and that it was in the best interests of the children to terminate his parental rights; however, Father does not appeal the trial court’s finding of severe child abuse. Because Father did not appeal the ground of severe child abuse, the trial court’s finding on that ground is final. Only one statutory ground need be found for termination; therefore, the dispositive issue on appeal is whether the trial court erred in finding that it was in the best interests of the children to terminate Father’s parental rights. The evidence in the record clearly and convincingly established that it was in the best interests of the children to terminate Father’s parental rights. Accordingly, we affirm the termination of Father’s parental rights.
 

Montgomery County Court of Appeals 12/30/15
Lakeilia Johnson v. New Wave, LLC et al.
M2014-02447-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

Homeowner filed suit against Defendants alleging intentional misrepresentation as to contractor licensure, construction skills, and code compliance, breach of implied duty of good faith and fair dealing, and violation of Tenn. Code Ann. § 62-6-136 for misrepresentation of licensure in connection with a $27,500 contractor agreement for home improvements. The trial court concluded that Defendants committed intentional misrepresentation, breached the duty of good faith and fair dealing, and violated Tenn. Code Ann. § 62-6-136. The trial court awarded Homeowner $18,100 in compensatory damages, $36,200 in punitive damages, and prejudgment interest at the rate of 5% per annum from the date the lawsuit was filed. Due to the lack of a transcript or a proper statement of the evidence, we must affirm. We also find this appeal is devoid of merit and so lacking in justiciable issues that it constitutes a frivolous appeal within the meaning of Tenn. Code Ann. § 27-1-122. Accordingly, on remand the trial court shall award just damages for the expenses Homeowner incurred as a result of this appeal.
 

Davidson County Court of Appeals 12/30/15
Carrie M. Thompson v. Stephen Matthew Thompson
M2014-02124-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Robert E. Corlew, III

Father appeals the parenting schedule that substantially restricts his parenting time. Without making any findings of fact, the trial court restricted Father’s parenting time to 48 hours per month, with no overnight visitation, until the child is three years old. Father contends the severe restrictions on his parenting time are not supported by the evidence. He further contends the trial court erred by severely limiting his parenting time without making any finding that he was guilty of conduct that affected his ability to parent pursuant to Tenn. Code Ann. § 36-6-406(d). In all actions tried upon the facts without a jury, the trial court is required, pursuant to Tenn. R. Civ. P. 52.01, to find the facts specially, state separately its conclusions of law, and enter judgment accordingly. The underlying rationale for this mandate is that it facilitates appellate review by affording a clear understanding of the basis of the trial court’s decision; in the absence of findings of fact and conclusions of law, this court is left to wonder on what basis the court reached its ultimate decision. In this case, the trial court did not identify the legal principles it applied or the factual basis for its decision; therefore, it failed to satisfy the Rule 52.01 mandate. Because the trial judge has retired and both parties wish to avoid the cost of a new trial, the parties have requested that we conduct a de novo review of the record, and we have determined that the transcript of the evidence is sufficient for this court to conduct a de novo review to determine where the preponderance of the evidence lies. See Gooding v. Gooding, __ S.W.3d __, No. M2014-01595-COA-R3-CV, 2015 WL 1947239, at *1 (Tenn. Ct. App. Apr. 29, 2015). We find Father’s inappropriate statements and conduct concerning the child’s genitals are directly adverse to the best interests of the child. See Tenn. Code Ann. § 36-6-406(d). We also find that the evidence preponderates in favor of a finding of neglect and substantial nonperformance of Father’s parenting responsibilities to such a degree as to be adverse to the best interest of the child. See id. Accordingly, we affirm the parenting plan that substantially restricts Father’s parenting time.

Rutherford County Court of Appeals 12/30/15
Deanne G. Roney v. Linda F. Nordhaus
M2014-02496-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Clara W. Byrd

This is an appeal from the entry of a five-year order of protection. The general sessions court entered an ex parte order of protection on behalf of the Appellee against the Appellant. After a hearing, the general sessions court entered a one-year order of protection. Appellant appealed this order to the Circuit Court for Smith County. After a hearing, the trial court concluded that Appellant had violated the previous order of protection and extended the order of protection to five years. Because the trial court did not make sufficient findings of fact to support its conclusion that Appellant violated a previous order of protection, we conclude the trial court did not meet the requirements of Tennessee Rule of Civil Procedure Rule 52.01. Accordingly, we vacate the trial court’s judgment and remand.
 

Smith County Court of Appeals 12/30/15
Emma Jean Anderson v. James Kenneth Lowry, et al
M2014-01107-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Ronald Thurman

This appeal originated from a boundary line dispute between adjacent landowners. In this boundary line dispute, the trial court: (1) determined the boundary line that divides the parties’ properties; (2) awarded treble damages to Appellee for timber that had been removed from the disputed property by the Appellant; (3) set aside the quitclaim deed recorded the day before the trial by Appellant as a fraudulent conveyance; and (4) awarded attorney fees to Appellee for the expenses incurred in prosecuting the petition to set aside the quitclaim deed as a fraudulent conveyance. We affirm in part, reverse in part, and remand for further proceedings in accordance with this opinion.
 

Putnam County Court of Appeals 12/30/15
In re Estate of Sally Layton
E2015-00624-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John C. Rambo

In this case, we are called upon to determine whether an exception to a claim against an estate was timely filed. Sally Layton (the decedent) died intestate. On the day before the one-year anniversary of her death, Blounts Operator, LLC, dba Greystone Healthcare Center, the operator of a nursing home, petitioned the trial court for letters of administration on the decedent's estate. The court granted the petition the same day. Also on the same day, Blounts filed a claim against the estate. Elizabeth Layton, one of the decedent's children, later filed an exception to Blounts's claim. The exception was filed within five months of the first notice to creditors. The trial court held that the exception was timely filed. The court reduced the amount of the claim. Blounts appeals, arguing only that the exception was not timely filed. We affirm the trial court's judgment as to the timeliness of the filing of the exception.

Washington County Court of Appeals 12/30/15
James Anthony Moore v. Michael Gaut
E2015-00340-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Kristi Davis

Plaintiff James Anthony Moore was at Defendant Michael Gaut’s residence to do maintenance on his satellite dish when he was bitten by Defendant’s dog, a Great Dane. The dog was in Defendant’s fenced-in backyard, Plaintiff was on the other side of the fence, and the dog bit Plaintiff on his face. The trial court granted Defendant summary judgment based on its finding that there was no evidence that Plaintiff knew or should have known that the dog had any dangerous propensities. On appeal, Plaintiff argues that the large size of the Great Dane, a breed Plaintiff characterizes as being in a “suspect class,” should be enough, standing alone, to establish a genuine issue of material fact as to whether Plaintiff should have known the dog had dangerous propensities. We disagree and affirm the trial court’s judgment.

Knox County Court of Appeals 12/30/15
In re Rainee M.
E2015-00491-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John C. Rambo

In this action, a minor child’s foster parents petitioned to adopt the child and terminate the parental rights of her biological father. A previous action seeking to terminate the father’s parental rights had been filed by the Tennessee Department of Children’s Services (“DCS”) in a different court. The prior case resulted in termination of the father’s parental rights, but the ruling was reversed on appeal. The foster parents filed the instant action during the pendency of the appeal in the first matter. The father filed a motion to dismiss the instant petition, which the trial court denied, proceeding to conduct a trial on the merits. Following the trial, the court took the matter under advisement and subsequently entered an order terminating the father’s parental rights. The father has appealed. Discerning no error, we affirm.

Washington County Court of Appeals 12/30/15
Melinda Kathleen Nichols Long v. Lionel Edson Long
M2015-00592-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Royce Taylor

Appellant filed a petition to modify alimony and child support. During the hearing on the petition, the trial court modified an award of separate property. Because the trial court issued a judgment outside of the relief requested by the parties, we reverse and vacate.     

Rutherford County Court of Appeals 12/29/15
Dale Crafton (Roberts) v. James Frederick Roberts
W2015-00048-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Rhynette N. Hurd

This appeal arises from post-divorce litigation between Dale Crafton Roberts (“Mother”) and James Frederick Roberts (“Father”). Primarily at issue is the validity of the trial court‟s adoption of a modified permanent parenting plan recommended by its divorce referee. For the reasons stated herein, we vacate the modified permanent parenting plan that was adopted and remand for further proceedings that are consistent with this Opinion.

Shelby County Court of Appeals 12/28/15
In Re Estate of Donald Emerson Kysor
E2014-02143-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge O. Duane Slone

This case involves a will contest and alleged resulting trust. The plaintiff and her husband purchased two adjoining parcels of improved real property located in Strawberry Plains, Tennessee, in 1992. The plaintiff‘s husband died on February 23, 2004. On March 1, 2004, the plaintiff executed a quitclaim deed, conveying title to the property to her husband‘s uncle, ultimately the decedent in the instant action. On March 3, 2004, the decedent executed a last will and testament, bequeathing all of his property to the plaintiff. In April 2006, however, the decedent executed a subsequent last will and testament, making no mention of the plaintiff and bequeathing all of his property to a friend, whom he also named as executor of his estate. The decedent died in July 2012, and his 2006 will was admitted to probate. The plaintiff subsequently filed a will contest, alleging that a resulting trust was created shortly before her husband‘s death upon an agreement entered into between her husband and the decedent. According to the plaintiff, her husband sought to protect their real property from potential creditors by conveying title to the decedent with the understanding that the decedent would in turn bequeath the property to the plaintiff. The decedent‘s estate filed a motion for summary judgment. Following a hearing, the trial court granted summary judgment in favor of the estate. The plaintiff appeals. Discerning no reversible error, we affirm.

Sevier County Court of Appeals 12/28/15
Hilda Wilis, Et. Vir. v. McDonald's Restaurants of Tennessee, Inc.
E2015-00615-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Alex Pearson

This is a premises liability case in which the plaintiffs filed suit against the defendant, alleging that Hilda Willis slipped and fell on the floor after entering the defendant’s dining establishment. The defendant filed a motion for summary judgment, asserting that the plaintiffs could not prove the cause of the fall or that its employees had notice of the dangerous condition prior to the fall. The trial court agreed and granted the motion for summary judgment. The plaintiffs appeal. We affirm.

Greene County Court of Appeals 12/23/15
Julie Marie Chumley v. Randall Edward Chumley
M2015-00378-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joe Thompson

Wife and Husband were divorced, and the trial court awarded Wife alimony in futuro as well as alimony in solido. Husband appealed the trial court’s awards, and we affirm. We also award Wife the reasonable attorney’s fees she incurred defending Husband’s appeal pursuant to Tenn. Code Ann. § 36-5-103(c). 

Court of Appeals 12/23/15
Christine (Gomez) Chambers v. Salomon Gomez, Jr.
W2015-00799-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor William C. Cole

Because the order appealed is not a final judgment, this Court lacks subject matter jurisdiction. Therefore, we dismiss this appeal.

Fayette County Court of Appeals 12/23/15
Melinda Dolman, et al. v. Timothy Donovan MD, et al.
W2015-00392-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Rhynette N. Hurd

This is a healthcare liability action arising from the death of the decedent, Melinda Dolman. Appellants, daughters of the decedent, filed this action against Appellees, Timothy Donovan, M.D., Brixey Shelton, M.D., Memphis Vascular Center, Memphis Radiological, P.C., and Memphis LeBonheur Healthcare. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated section 29-26-121. Specifically, Appellees challenged whether the medical authorization provided with the pre-suit notice letter was compliant with Tennessee Code Annotated section 29-26-121(a)(2)(E). Following a hearing on the motion, the trial court agreed with Appellees and dismissed the action. Appellants timely appealed. We affirm and remand.

Shelby County Court of Appeals 12/23/15
In re Kyah H. et al.
E2015-00806-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Tim Erwin

Marshall H. (“Father”) appeals the judgment of the Juvenile Court for Knox County (“the Trial Court”) terminating his parental rights to the minor children, Kyah H., Marshall C., and Jhazaria T. (collectively “the Children”), on the grounds of abandonment by wanton disregard pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv), and severe child abuse pursuant to Tenn. Code Ann. § 36-1-113(g)(4). We find and hold that the evidence does not preponderate against the Trial Court's findings made by clear and convincing evidence that grounds for termination were proven and that termination was in the best interest of the Children, and we affirm.

Knox County Court of Appeals 12/23/15
Ceola Johnson, individually and on behalf of Willie Johnson, Jr. v. UHS of Lakeside, LLC
W2015-01022-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

Plaintiff filed a health care liability action on behalf of her deceased husband. Plaintiff provided pre-suit notice more than one year after the cause of action accrued and subsequently filed a complaint. Defendant filed a motion to dismiss based on the applicable one-year statute of limitations. Plaintiff argued that her husband had been “adjudicated incompetent” within the meaning of Tennessee Code Annotated Section 28-1-106 and that the statute of limitations was accordingly tolled. The trial court dismissed Plaintiff's case with prejudice finding that the statute unambiguously required a judicial adjudication of incompetency in order to toll the statute of limitations, and Plaintiff's husband had not been judicially adjudicated incompetent within the meaning of the statute at the time the cause of action accrued. Discerning no error, we affirm.

Shelby County Court of Appeals 12/23/15
Wright Brothers Construction Company, Inc. v. State of Tennessee
M2015-00610-COA-R9-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Robert N. Hibbett, Commissioner, TN Claims Commission

Construction company bid on a state project that involved disposing of waste dirt from a construction site. Documents prepared by the Tennessee Department of Transportation (“TDOT”) identified nearby property that had a wet weather conveyance on it. The construction company made arrangements with the property owner to dump waste dirt on the neighboring property, and based on this anticipated cost, the construction company submitted a bid for the project. Before the State accepted the construction company’s bid, the wet weather conveyance was reclassified by the Tennessee Department of Environment & Conservation as a stream. This change in classification meant that the construction company was no longer able to dump waste dirt on the neighboring property. TDOT learned of the reclassification prior to accepting the construction company’s bid, and it changed the project plans after it awarded the project to the construction company. The construction company incurred unexpected costs and delays as a result of the reclassification of the wet weather conveyance, but the State refused to compensate it as the construction company asserts the contract required. The construction company filed a breach of contract complaint against the State with the Tennessee Claims Commission, which the State moved to dismiss on the basis that the Commission lacked subject matter jurisdiction to adjudicate the claim. The construction company then moved to amend its complaint to add a claim for the negligent preparation of plans. The Commission granted the State’s motion to dismiss and denied the motion to amend, and the construction company appeals. We reverse the Commission’s judgment that it lacked subject matter jurisdiction over the breach of contract claim, but we affirm its judgment denying the construction company’s motion to amend.  

Court of Appeals 12/22/15
State of Tennessee Ex Rel. Herbert H. Slatery, III, Attorney General and Reporter v. Seniortrust of Florida, Inc.
M2014-02288-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ellen H. Lyle

The Attorney General brought a judicial dissolution action against two nonprofit public benefit corporations.  The main issue in this appeal is the scope of the Attorney General’s authority to determine the use of the funds remaining after the dissolution of these two nonprofit corporations and the payment of all of their debts.  Finding no abuse of discretion in the trial court’s decision to reject the Attorney General’s proposed plan for the distribution of the nonprofits’ remaining funds, we affirm the trial court’s decision.    

Davidson County Court of Appeals 12/22/15
Gary Lee Steele, et al. v. Primehealth Medical Center, PC, et al.
W2015-00056-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Rhynette N. Hurd

This is a premises liability case. A delivery person fell on a sidewalk outside the place of business where he was delivering an order. He and his wife sued the business and its owner for negligence, claiming that the condition of the sidewalk was unreasonably dangerous. The trial court granted summary judgment to the defendants, concluding that the plaintiffs presented insufficient evidence to demonstrate that the sidewalk was unreasonably dangerous. For the following reasons, we affirm the decision of the trial court.

Shelby County Court of Appeals 12/22/15
In re: Raven S., et al
M2014-00789-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge W. Scott Rosenberg

Mother and Father appeal the termination of their parental rights to two of their children. Upon a finding of dependency and neglect, the juvenile court placed the children in the custody of Mother’s aunt. Subsequently, the Guardian ad Litem petitioned to terminate parental rights. Following a one-day trial, the juvenile court took the matter under advisement. After the elapse of several months, the parents and the Guardian ad Litem filed a motion requesting a decision from the court on the petition to terminate parental rights. The trial court held a hearing on the motion after which it considered additional evidence, primarily related to contact between the children and parents since the previous hearing. At the conclusion of the evidentiary hearing, the court granted the petition to terminate on the grounds of abandonment by willful failure to support and visit. The court also found termination of Mother’s and Father’s parental rights to be in the children’s best interest. Mother and Father both appeal the statutory grounds for termination and that termination was in the children’s best interest. Mother and Father also assign error to the trial court reopening proof. We affirm.

Davidson County Court of Appeals 12/21/15
Carlene Guye Judd, et al v. Carlton Guye, et al.
M2015-00094-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

This shareholder derivative action involves a closely-held corporation founded by the plaintiff’s parents. In 1995, the parents sold all of the outstanding shares to the plaintiff and her brother on credit. A promissory note and security agreement were executed in conjunction with the sale. After managing the corporation with her brother for several years, the plaintiff filed this derivative action against her brother and parents, seeking to recover corporate funds her brother was allegedly using for personal expenses and to dissolve the corporation. During the litigation, the parents gave the plaintiff notice that they were accelerating the promissory note and exercising their right to recover all of the stock sold to her pursuant to the security agreement. The validity of the parents’ efforts to reclaim the stock went to trial along with the other issues. After a two-day trial, the court determined that the parents’ efforts to reclaim ownership of the shares were ineffective, that the plaintiff owned 50% of the outstanding shares, thus she maintained standing to pursue the relief sought in her complaint, and awarded a judgment to the plaintiff on behalf of the corporation. Pursuant to an agreed order, the trial court appointed a receiver to wind up the corporation’s business. During the pendency of this appeal, but prior to oral argument, all of the corporation’s assets were sold, and its business was wound up. In this appeal, the parents contend the trial court erred by granting the plaintiff any relief because the plaintiff lacked standing to pursue her claims after the parents reclaimed all of the plaintiff’s shares. Because the corporation was dissolved and all its assets sold, there is no meaningful relief this court can grant the parents in this appeal; therefore, the issue raised by the parents is no longer justiciable. Because the parents presented no justiciable issue for this court to consider on appeal, the plaintiff is entitled to recover damages for having to defend a frivolous appeal. Accordingly, we affirm the judgment of the trial court and remand for a calculation of just damages to be awarded to the plaintiff pursuant to Tenn. Code Ann. § 27 1 122.  

Davidson County Court of Appeals 12/21/15
Service Employees International Union Local 205 v. Metropolitan Nashville Board of Public Education, et al.
M2014-02158-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Claudia Bonnyman

After the director of schools notified the union that represents the school district’s service workers that, in accordance with amendments to the law governing the employees of boards of education, he was rescinding the school board’s labor negotiations policy, the union sought a declaratory judgment that the policy was still in effect. The trial court held that the Director did not have authority to rescind the policy and granted summary judgment to the union; the school board appeals. Holding that the amendments negated the policy at issue, we reverse the judgment

Court of Appeals 12/21/15