Court of Appeals Opinions

Format: 12/03/2016
Format: 12/03/2016
The Metropolitan Government of Nashville And Davidson County v. Wood Ridge Development, Inc., et al
M2015-01556-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Claudia Bonnyman

The developer of a Nashville subdivision and its surety entered into three performance agreements by which they bound themselves to complete the infrastructure in the subdivision. The Metropolitan Government brought an action to enforce the agreements against both parties when the developer failed to complete the infrastructure. The surety filed an answer as well as a cross claim against the developer and a third-party complaint against a group of investors who had executed a separate agreement to indemnify the surety for any amounts the surety might pay or be held liable. After settling with the Metropolitan Government, the surety sought summary judgment against the developer and investors; the cross and third-party defendants also sought summary judgment asserting that, since the surety did not issue a separate bond, they had no obligation to indemnify the surety. The court granted summary judgment to the surety upon holding that the performance agreement operated as a bond and entitled the surety to indemnification. The developer and investors appeal the grant of the surety’s motion and the denial of their motion. We hold that the surety’s execution of the performance agreements operated as an “undertaking[] or other writing[] obligatory in nature of a bond” as contemplated by the indemnity agreement and, accordingly, affirm the judgment of the trial court.

Davidson County Court of Appeals 11/04/16
Samuel C. Clemmons, et al v. Johnny Nesmith
M2016-01971-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael Binkley

In this accelerated interlocutory appeal, Appellants appeal from separate orders denying two motions for recusal filed in this case. As to denial of the first motion for recusal, we hold that Appellants failed to file a timely appeal pursuant to Rule 10B of Rules of the Supreme Court of Tennessee. As to the denial of the second recusal motion, we hold that the recusal motion was ineffective because it was not signed by local counsel as required by Rule 19 of the Rules of the Supreme Court of Tennessee. In the absence of a timely filed appeal from an effective recusal motion, we dismiss this appeal.

Williamson County Court of Appeals 11/04/16
Paul Thomas Jackson v. Susan Denise Jackson
W2016-00007-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor George R. Ellis

In this divorce action, the trial court granted the wife a divorce, divided the marital assets, and awarded her alimony in solido but denied her request for alimony in futuro. The wife appeals. We reverse and grant a divorce without fault to either party. We also modify the judgment to reflect an award of alimony in futuro in the amount of $2,000 per month.

Crockett County Court of Appeals 11/04/16
In Re: Knox C.
E2016-00768-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Dennis "Will" Roach, II

Shane L.B. (“Father”) appeals the judgment of the Juvenile Court for Jefferson County (“the Juvenile Court”) terminating his parental rights to the minor child, Knox C. (“the Child”), after finding and holding that grounds for terminating Father's parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(6) were proven by clear and convincing evidence and that it was in the Child's best interest for Father's parental rights to be terminated. We find and hold that the evidence in the record on appeal does not preponderate against the Trial Court's findings made by clear and convincing evidence that grounds were proven to terminate Father's parental rights to the Child and that the termination was in the Child's best interest. We, therefore, affirm.

Jefferson County Court of Appeals 11/03/16
In Re: Estate of J. Don Brock
E2016-00637-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Jeffrey M. Atherton

This is an appeal of an order dismissing a will contest for lack of standing. The Contestants sought to challenge the testator's will, alleging that it was the product of fraud and/or undue influence. The Estate introduced multiple prior wills that appeared to be facially valid and properly executed in which all or some of the Contestants were disinherited. The chancery court found that the Contestants would not benefit if the testator's will was set aside and dismissed the contest for lack of standing. We affirm.

Hamilton County Court of Appeals 11/03/16
J.A.C., by and through her next friend and mother, Lesha Carter v. Methodist Healthcare Memphis Hospitals, et al.
W2016-00024-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Rhynette N. Hurd

In this health care liability action, Defendants moved to dismiss based on the Plaintiffs‘ failure to provide the Health Insurance Portability and Accountability Act ("HIPAA") medical authorization required by Tennessee Code Annotated section 29-26-121(a)(2)(E). Based on its determination that the Plaintiffs failed to substantially comply with the foregoing statute, the trial court held that the Plaintiffs were not entitled to an extension of the applicable statutes of limitations and repose under Tennessee Code Annotated section 29-26-121(c) and accordingly concluded that the Plaintiffs‘ claims were time-barred. The trial court also concluded that the Plaintiffs‘ constitutional challenges to the viability of Tennessee Code Annotated section 29-26-121 were without merit. We affirm and remand for further proceedings consistent with this Opinion.

Shelby County Court of Appeals 11/02/16
Steven Kempson, et al. v. Pamela Casey, et al., - DISSENTING
E2015-02184-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Neil Thomas, III

I cannot concur in the majority’s decision. The issue of whether the collision of the vehicles “caused damage to the Plaintiffs” was fairly presented to the jury. The jury rejected the Plaintiffs’ theory that Mr. Kempson was injured in the accident. I would affirm the jury’s verdict in toto. Accordingly, I respectfully dissent from the majority’s decision to remand for a new trial on damages.

Hamilton County Court of Appeals 11/02/16
Steven Kempson, et al. v. Pamela Casey, et al.
E2015-02184-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Neil Thomas, III

Pickup truck driver sued to recover for injuries he allegedly sustained when his truck was rear-ended while he was stopped for traffic on the interstate. His wife asserted that she had suffered from the loss of consortium with and services of her husband. The defendant driver acknowledged responsibility for the collision but disputed that the plaintiffs had proven, by a preponderance of the evidence, that the accident in question caused any injury. The jury found that the collision caused no damage to the plaintiffs. On the jury’s verdict, the trial court entered judgment, awarding the plaintiffs no damages and denying the motion for a new trial. The plaintiffs appeal. We vacate the trial court’s judgment and remand for a new trial on damages alone.

Hamilton County Court of Appeals 11/02/16
Arianna A. George et al. v. Tessa G. Dunn
E2015-02312-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John F. Weaver

This case involves a trustee's disbursement of funds from two trusts, without authorization of the trusts' respective beneficiaries, in order to pay legal expenses incurred in defending against a prior action filed against the trustee on behalf of the beneficiaries. The trial court had dismissed the prior action with prejudice in an agreed order entered on August 31, 2012, which further provided that the funds at issue would be disbursed by the trustee for the benefit of the beneficiaries. On April 13, 2015, the beneficiaries filed a complaint, alleging that the trustee had violated the terms of the August 2012 order and her fiduciary duty by writing checks against the trust funds in an amount totaling $30,563.16. The trustee filed an answer, asserting that pursuant to Maryland law governing the establishment of the trust accounts, she was entitled to be reimbursed from the trust accounts for legal fees incurred in defense of the prior lawsuit filed on behalf of the beneficiaries and ultimately dismissed. The beneficiaries filed a motion for summary judgment. Following a hearing, the trial court granted summary judgment in favor of the beneficiaries, awarding each beneficiary, respectively, $15,281.58 plus prejudgment interest and attorney's fees. The trustee appeals. Discerning no reversible error, we affirm. Having determined that the trial court did not abuse its discretion by awarding attorney's fees upon the finding that the trustee breached her fiduciary duty, we further determine an award to the beneficiaries of attorney's fees on appeal to be appropriate. We remand for the trial court to determine the amount of reasonable attorney's fees incurred by the beneficiaries during the appellate process.

Knox County Court of Appeals 11/02/16
In Re: Jeramyah H., et al
M2016-00141-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Magistrate Adam T. Dodd

Father appeals the termination of his parental rights to his two children. The juvenile court terminated his parental rights on three grounds: abandonment by willful failure to support, failure to provide a suitable home, and persistence of conditions preventing reunification. The court also found clear and convincing evidence that termination of parental rights was in the children’s best interests. After reviewing the record, we conclude that DCS did not meet its burden of proving, by clear and convincing evidence, the grounds of failure to provide a suitable home or persistence of conditions. But, we conclude that there was clear and convincing evidence of willful failure to support and that termination was in the best interests of the children. Therefore, we affirm the termination of parental rights.  

Rutherford County Court of Appeals 10/31/16
American Honda Motor Co., Inc. v. The Tennessee Motor Vehicle Commission, et al
M2016-00406-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Carol L. McCoy

American Honda wanted to establish a new motorcycle dealership in Kingsport, Tennessee and notified the current dealerships of this intent. Jim’s Motorcycle, located in Johnson City, filed a notice of protest with the Tennessee Motor Vehicle Commission, and a hearing was held in accordance with Tenn. Code Ann. § 55-17-114(c)(20). The Commission determined that the Kingsport area was within the relevant market area of Jim’s Motorcycle and ruled that American Honda was not authorized to establish a new dealership in Kingsport. American Honda appealed, and we affirm the Commission’s ruling.

Davidson County Court of Appeals 10/31/16
Volunteer Princess Cruises, LLC v. Tennessee State Board of Equalization
M2016-00364-COA-R12-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Executive Secretary Kelsie Jones

A water transportation carrier company challenges the assessment of personal property taxes against it by the Board of Equalization for tax years 2008, 2010, and 2011. With respect to tax years 2010 and 2011, we find merit in the carrier’s argument that the record does not establish that the Board provided the carrier with notice sufficient to satisfy due process and, therefore, remand for a determination as to whether the carrier received such notice. As to the Board’s back assessment of the carrier for tax year 2008, we affirm the Board’s assessment.  

Court of Appeals 10/31/16
In Re: Lucius H.
M2016-00534-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John Thomas Gwin

This is a Title IV-D child support and paternity case. Appellant/Father appeals the trial court’s order on paternity and child support. Discerning no error, we affirm.

Wilson County Court of Appeals 10/31/16
George Moore, Jr., et al v. City of Clarksville, TN
M2016-00296-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Ross H. Hicks

Appellant landowners filed a complaint against the City of Clarksville under the theory of implied- in-fact contract, alleging that the City should repair and maintain Appellants’ sewer line and arguing that the broken sewer line is an extension of the City’s public sewer system. Appellants also requested compensatory damages resulting from the back-up of sewage into their home. The City argues that the broken sewer line is a private sewer, for which the City has no responsibility. The City filed a motion for summary judgment. Upon hearing the City’s motion, the trial court found that Appellants’ claim sounded in tort under the Tennessee Governmental Tort Liability Act and that the complaint was time barred. Discerning no error, we affirm.

Montgomery County Court of Appeals 10/31/16
In re Jose L., et al.
E2016-00517-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin, Jr.
Trial Court Judge: Judge J. Shannon Garrison

This is a termination of parental rights case. The trial court terminated Father’s parental rights on the grounds of substantial noncompliance with a permanency plan and abandonment by willful failure to visit. The trial court also found that termination of Father’s parental rights was in the best interest of the children. Having reviewed the record as it relates to the grounds for termination and the best interests of the children, we conclude that the trial court’s findings are supported by clear and convincing evidence. We, therefore, affirm the judgment of the trial court terminating Father’s parental rights.

Rhea County Court of Appeals 10/31/16
John C. Hoynacki et al. v. Jerome Hoynacki
E2015-02084-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jean A. Stanley

Plaintiff John C. Hoynacki was helping his father, defendant Jerome Hoynacki, wax defendant‟s recreational vehicle (RV). He worked on a ladder in reaching the high places on the RV. The ladder fell with plaintiff on it, causing him injury. He brought this negligence action, alleging that defendant breached his duty to exercise reasonable care in securing and stabilizing the ladder. The trial court granted defendant summary judgment, holding that defendant had no legal duty to hold the ladder at the time the plaintiff attempted to “climb down prior to his accident.” We hold that there are genuine issues of material fact regarding whether defendant was negligent under the circumstances. We vacate the trial court's grant of summary judgment and remand for further proceedings.

Washington County Court of Appeals 10/31/16
Barbara T. Collins v. HCA Health Services Of Tennessee, Inc., et al.
M2016-00524-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Appellant was injured while attempting to leave the defendant hospital against medical advice. Appellant appeals the trial court’s decision to grant summary judgment in favor of the defendant hospital, concluding that the hospital owed no duty to prevent Appellant from leaving the hospital. Discerning no error, we affirm.  

Davidson County Court of Appeals 10/28/16
In Re: Carolina M.
M2014-02133-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joseph A. Woodruff

This case began as a petition for dependency and neglect filed in juvenile court by the Tennessee Department of Children’s Services (“DCS”). The juvenile court found the child to be dependent and neglected, and Mother and Father appealed to the circuit court. A discovery dispute arose when their attorney requested records from a court appointed special advocate volunteer. In connection with the dispute, the parents’ attorney filed a petition for civil contempt and a petition for criminal contempt against the volunteer. The circuit court did not grant either petition, and in response, the non-profit organization with which the volunteer was affiliated filed motions for sanctions against the attorney under Rule 11 of the Tennessee Rules of Civil Procedure. The circuit court granted the non-profit’s motions finding, among other reasons, that both petitions were filed for improper purposes. Mother and Father appeal the circuit court’s dismissal of their criminal contempt petition and the court’s decision to impose sanctions against their attorney. Because we conclude that the circuit court did not abuse its discretion in dismissing the criminal contempt petition or in imposing sanctions against the attorney, we affirm. 

Williamson County Court of Appeals 10/28/16
Connie Reguli, et al v. Sharon Guffee, et al.
M2015-00188-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Joseph W. Woodruff

An attorney, representing herself, filed suit against a juvenile court judge and clerk after she was prevented from accessing recordings of juvenile court proceedings to which she claimed she was entitled under state law. She sought a writ of mandamus and a judgment declaring the juvenile court local rule, under which the judge denied her requests, invalid. The attorney amended her complaint, joining four clients that she had previously represented before the juvenile court. The judge and clerk then filed a motion to dismiss, which the chancery court granted. We conclude, as did the chancery court, that two of the plaintiffs lacked standing and that state law does not entitle plaintiffs to the recordings. Therefore, we affirm the chancery court’s dismissal of the amended complaint. 

Williamson County Court of Appeals 10/28/16
In Re: Jackson H.
M2014-01810-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Robbie T. Beal

This appeal involves a challenge to fees awarded to a guardian ad litem. The juvenile court ordered the child’s parents to each pay half of the fees awarded. After the juvenile court made its fee award, Mother appealed to the circuit court. The circuit court conducted a de novo hearing and found the fees awarded reasonable. On appeal to this Court, Mother raises several issues with respect to the award, including a lack of notice that fees would be assessed to the parents, improper limits on discovery, unauthorized and unnecessary actions by the guardian ad litem, and violations of Supreme Court Rules. The guardian ad litem argues Mother’s appeal to the circuit court was untimely and requests that we vacate the decision of the circuit court and remand with instructions to dismiss the appeal. We do not find the appeal to the circuit court to be untimely, but we do find the award of fees to the guardian ad litem appropriate. Therefore, we affirm the judgment of the circuit court. 

Williamson County Court of Appeals 10/28/16
Vicki Matherne, et al. v. Jerry West, et al.
E2015-02061-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Rex Henry Ogle

This appeal concerns premises liability in a slip and fall case. Vicki Matherne and Rodney Matherne ("Plaintiffs") sued Jerry West and Carolyn West ("the Wests"), owners of a vacation cabin rented by the Mathernes, and American Patriot Getaways ("APG"), which managed the cabin, (collectively, "Defendants") after Mrs. Matherne injured herself falling off an elevated parking level at the cabin. Defendants filed a motion for summary judgment. The Circuit Court for Sevier County ("the Trial Court") granted Defendants‘ motion, finding that any hazardous condition was open and obvious and that Mrs. Matherne was at least 50% at fault. Plaintiffs appeal to this Court. We hold that there are genuine disputed issues of material fact regarding what Defendants could or should have done to prevent the risk of a fall from the elevated parking level and whether Mrs. Matherne was at least 50% at fault. Therefore, the Trial Court erred in granting Defendants‘ motion for summary judgment. We reverse the judgment of the Trial Court and remand this case for further proceedings.

Court of Appeals 10/28/16
Richard Hamilton, et al v. Randy Holderman, et al.
M2015-02302-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John D. McAfee

This is an appeal from a judgment entered on a jury verdict for conversion of property. The property owners, Appellees, received a judgment of $24,999.99 in general sessions court, and Appellants filed an appeal to the circuit court. At the jury trial, jurors awarded Appellees a verdict of $40,000.00. Appellants appeal. Discerning no error, we affirm.

Fentress County Court of Appeals 10/27/16
Austin Davis, et al v. Dale Lewelling, et al.
M2016-00730-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kelvin D. Jones

Plaintiffs appeal the trial court’s ruling: (1) dismissing their claims against a church; (2) dismissing the plaintiff-daughter’s claim against the remaining individual defendant for failure to state a claim upon which relief can be granted; and (3) granting the remaining individual defendant’s motion for summary judgment as to the plaintiff-father’s claim of assault. With regard to the dismissal of the claims against the church, we conclude that Appellants’ notice of appeal was untimely, and we therefore dismiss their appeal concerning the claims against the church for lack of subject matter jurisdiction. We dismiss the remainder of Appellants’ appeal because of profound deficiencies in Appellants’ brief to this Court.

Davidson County Court of Appeals 10/27/16
Jeffrey Donald Landis, Sr. v. Regina Marie Landis
M2015-02520-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Suzanne Lockert Mash

In this post-divorce proceeding, ex-husband filed a petition for civil contempt to compel ex-wife to allow him to retrieve certain items of personal property awarded to him in the parties’ marital dissolution agreement. The trial court entered an order holding ex-wife in civil contempt for her failure to turn over certain items. We have reviewed the record and have determined that the trial court erred in finding ex-husband was entitled to a boat trailer that was not enumerated in the property list; however, we affirm the trial court’s finding of civil contempt.     

Cheatham County Court of Appeals 10/27/16
In re Alfonzo E., et al.
M2016-00867-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Sheila Calloway

The mother of three sons appeals the termination of her parental rights. A juvenile court magistrate determined that one son was the victim of severe abuse and that the other two sons were dependent and neglected. The magistrate also found that the mother was the perpetrator of this abuse, dependency, and neglect. The magistrate’s order was not appealed. All three sons were placed with the same foster mother. They remained with her for around two years during which time they had some visitation with their biological mother. Subsequently, the Department of Children’s Services filed a petition to terminate the mother’s parental rights alleging severe abuse and persistence of conditions as grounds for termination. See Tenn. Code Ann. § 36-1-113(g)(3)-(4). The mother opposed the petition, and the children’s maternal grandmother and uncle each filed separate petitions for custody. After two hearings, the trial court found that DCS had proven both alleged grounds for termination by clear and convincing evidence and that terminating the mother’s parental rights was in the best interests of the children. The court also dismissed the petitions for custody filed by the grandmother and the uncle. The mother appealed, arguing that termination was not in the best interests of the children and that the trial court erred by failing to place the children with their grandmother as a less drastic alternative to foster care. Mother also argues that DCS failed to make a diligent search for the children’s fathers. The evidence does not preponderate against the trial court’s best-interest findings, and the mother cannot appeal the dismissal of the grandmother’s petition or the termination of the fathers’ parental rights. Additionally, by the time a court considers whether to terminate parental rights, it is too late to bring a less drastic alternative before the court. Accordingly, we affirm.

Davidson County Court of Appeals 10/26/16