Court of Appeals Opinions

Format: 09/24/2020
Format: 09/24/2020
Teal Properties, Inc. v. C&H Commercial Contractors, Inc.
M2018-02086-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge L. Craig Johnson

Relief under Tennessee Rule of Civil Procedure 60.02(5) is reserved for extraordinary circumstances.  Outcomes, specifically judgments, occasioned by a party’s own inaction or lack of attention are not extraordinary.  And a court does not abuse its discretion in denying a Rule 60.02(5) motion when a judgment results from such circumstances.  So we affirm.

Coffee County Court of Appeals 08/20/20
Laurel Martin Griffin v. Kevin Michael Griffin
M2019-01113-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor James G. Martin, III

After seventeen years of marriage, a wife filed a complaint for divorce. The husband answered and filed a counter-complaint for divorce. The trial court granted the wife a divorce, named her primary residential parent of the parties’ minor children, classified and divided the marital estate, ordered the husband to pay the wife $1,941 per month in child support, and awarded the wife alimony in futuro in the amount of $6,000 per month. The husband appealed. We affirm the trial court’s designation of Wife as the primary residential parent and the division of the marital estate as modified. We vacate the award of child support and the amount of alimony and remand for recalculation.

Williamson County Court of Appeals 08/19/20
Jim Daniel Story, Jr. v. Heidi Rebekah Nussbaumer-Story
M2019-01705-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ted A. Crozier

A husband challenges the trial court’s award of alimony in solido to his wife for a period of eight years. Having examined the record and the trial court’s analysis of the statutory factors, we find no abuse of discretion and affirm the trial court’s decision. We further award the wife her reasonable attorney fees on appeal

Montgomery County Court of Appeals 08/19/20
Blount Memorial Hospital v. Eric Glasgow
E2019-00776-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This appeal arises from a hospital’s action against a patient to recover payment for medical services. After a bench trial, the court determined there was not an enforceable contract between the parties, but the hospital was entitled to recover the value of its services under a quantum meruit theory and ruled that the charges billed to the patient represented the actual value of the hospital’s services. The court based its determination on the testimony of the hospital’s witness that, because the rates that a hospital could charge were set by Medicare, the amount charged to the patient was comparable to what other hospitals would charge for the same or similar services. The patient appeals and asks this court to consider whether the hospital proved by a preponderance of the evidence that the amount it charged for medical services represented the actual value of those services. We affirm the trial court’s decision.

Sevier County Court of Appeals 08/18/20
Michael Surber v. Mountain States Health Alliance d/b/a Johnson City Medical Center - Concurring
E2019-01494-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge J. Eddie Lauderback

I concur in the decision to affirm the judgment of the Circuit Court for Washington County. I write separately to explain what I think is an additional crucial difference in this case from Barkes v. River Park Hosp., Inc., 328 S.W.3d 829 (Tenn. 2010). In addition to what is stated in this Court’s Opinion, I believe what distinguishes this case from Barkes is the respective plaintiff’s proof as to the defendant hospital’s duty of reasonable care to its patients and the applicable standard of care relative to that hospital’s duty.

Washington County Court of Appeals 08/18/20
Michael Surber v. Mountain States Health Alliance d/b/a Johnson City Medical Center
E-01494-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge J. Eddie Lauderback

This is a medical malpractice action1 in which the plaintiff filed suit against the hospital for treatment he received following an eye injury, raising claims of direct and vicarious liability. The case proceeded to a jury trial, at which the court granted a directed verdict on the claim of direct liability at the close of the plaintiff’s proof. The plaintiff filed this appeal, claiming the trial court erred in limiting his expert witness testimony. We affirm.

Washington County Court of Appeals 08/18/20
Christina Knapp v. Jason Boykins
W2019-02154-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Valerie L. Smith

This appeal involves the issuance of an order of protection based on allegations of stalking. We affirm.

Shelby County Court of Appeals 08/18/20
Jose Sifuentes, D/B/A Jose's Electric v. D.E.C., LLC
M2018-02183-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle

A general contractor hired a subcontractor to install wiring and machinery for a bowling alley.  The subcontractor completed the work, but the general contractor failed to pay the subcontractor’s last five invoices.  The subcontractor sued the general contractor for breach of contract, quantum meruit, promissory estoppel, and promissory fraud.  The general contractor moved to dismiss, asserting that the subcontractor was unlicensed.  The trial court granted the motion based on the subcontractor’s failure to comply with Tennessee Code Annotated § 62-6-103(b) (2019).  Applying the standard of review applicable to a motion for summary judgment, we conclude that the trial court erred in dismissing the quantum meruit claim based upon the statute.  We affirm in all other respects.

Davidson County Court of Appeals 08/17/20
In Re Jackson D.
E2019-02097-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jerri S. Bryant

Ricky D. (“Father”) appeals the termination of his parental rights to his minor child, Jackson D. (“the Child”). In July 2018, Heather M. (“Mother”) and her husband, Jason M. (“Stepfather”), filed a petition to terminate Father’s parental rights to the Child in the Bradley County Chancery Court (“Trial Court”). Following a trial, the Trial Court found that Mother and Stepfather had proven by clear and convincing evidence the ground of Father’s ten-year sentence entered when the Child was younger than eight years old and that termination of Father’s parental rights was in the best interest of the Child. Discerning no error, we affirm.

Bradley County Court of Appeals 08/17/20
April Michelle McAdams v. Charles Alan McAdams
E2019-02150-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Gregory S. McMillan

This case involved a petition to modify the parties’ parenting plan to change the primary residential parent. The father sought to be designated as the primary residential parent of his minor child, alleging, among other things, that the child’s sibling was violent, that the mother had moved to a new county and enrolled the child in a new school, that he never received notice from the mother regarding the child’s medical appointments, and that the mother intentionally interfered with his and the child’s relationship. Because mother was not listed in father’s response to mother’s interrogatory—which specifically asked for a list of all potential trial witnesses—the trial court prohibited father’s counsel from calling mother as a witness during father’s case-in-chief. The trial court, however, allowed father to submit mother’s deposition as an exhibit and also allowed father to call mother to testify as to events that had occurred since her deposition had been taken. At the close of father’s proof, mother’s counsel moved for a directed verdict, which the trial court granted, finding that none of the incidents relied upon by father constituted a material change in circumstances. Construing the trial court’s order as if it were an order granting a motion for involuntary dismissal, and concluding that barring father from calling mother as a witness in his case-in-chief was harmless error by the trial court, we affirm.

Knox County Court of Appeals 08/13/20
Vernell Lynn Carpenter Lewis v. William Billy Lewis
W2019-00542-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Valerie L. Smith

The sole issue in this appeal concerns the trial court’s decision to classify residential property as the wife’s separate asset. The trial court made its decision upon finding the wife purchased the property prior to the marriage, titled it in her name only, and paid the mortgage and expenses to maintain the property with money she earned during the marriage and with only occasional assistance from the husband. This appeal followed. The husband contends the property should have been classified as a marital asset because the couple resided there as husband and wife for ten years; the money the wife earned during the marriage was marital property; and he made substantial contributions to maintaining the property and paying expenses. We have determined that the funds the wife used to pay the mortgage and expenses were marital assets because they were earned during the marriage. Moreover, the couple used the property as their marital residence during their ten-year marriage, and the husband provided some, albeit modest, assistance in maintaining the property. Accordingly, we reverse the decision of the trial court and hold that the property shall be classified as a marital asset. Based on this decision, we vacate the division of the marital estate and remand for the trial court to determine the value of the marital assets, equitably divide those assets, and enter judgment accordingly. The husband also contends the trial court’s discovery sanction against the wife was insufficient. Finding no error with this discretionary decision, we affirm the sanction imposed by the trial court.

Shelby County Court of Appeals 08/11/20
Richard Michelhaugh Et Al. v. Consolidated Nuclear Security, LLC
E2019-00361-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Donald R. Elledge

This appeal arises from a dispute over vacation benefits. The plaintiffs allege that their employer deprived them of earned vacation time when it changed its vacation policy. The plaintiffs moved for class certification, and the defendant filed a motion for summary judgment. After hearing both motions, the trial court dismissed the plaintiffs’ complaint with prejudice and denied the motion for class certification. The plaintiffs appeal. We affirm the trial court’s ruling.

Anderson County Court of Appeals 08/11/20
In Re Estate of Gloria Kay Murphy-Wallace
E2020-00464-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Beth Boniface

This is an appeal of a suit contesting the validity of a Last Will and Testament. Because the notice of appeal was not timely filed, this Court lacks jurisdiction to consider this appeal.

Hamblen County Court of Appeals 08/11/20
Hudson, Holeyfield & Banks, G.P. v. MNR Hospitality, LLC
W2019-00123-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor JoeDae L. Jenkins

This case involves a lease that allowed a restaurant to operate inside a hotel building. During the term of the lease, the original
owner-lessor sold the hotel building to a successor, who then sold the hotel building to the appellant. The appellant tried to “buy out” the tenant and cancel the lease, but the tenant refused. The appellant proceeded with demolition of the interior of the hotel. Thereafter, the tenant experienced a series of problems with the building, including major water leaks, lack of climate control, and other problems, which led the tenant to file this lawsuit. After a three-day bench trial, the trial court concluded that the appellant maintained the premises in an uninhabitable state, amounting to a constructive eviction of the tenant. The trial court found that the appellant repeatedly and intentionally disturbed the tenant’s quiet enjoyment of the premises through its failure to maintain climate control in the hotel, failure to maintain windows and doors in the building, and allowing the building to be closed by Shelby County Code Enforcement for approximately six months. It found that the appellant engaged in extreme, outrageous, and intentional conduct intended to destroy the tenant’s business and drive the tenant to vacate the premises, constituting an unlawful ouster of the tenant and retaliatory eviction. The trial court calculated the tenant’s lost profits for the remaining term of the lease at $595,025. Due to the extremity of the appellant’s actions, the trial court also awarded the tenant punitive damages. On appeal, the appellant does not challenge the trial court’s findings regarding liability on the underlying causes of action. It only challenges the calculation of the award of lost profits and the award of punitive damages. For the following reasons, we affirm the award of lost profits as modified but vacate and remand for further proceedings regarding punitive damages.

Shelby County Court of Appeals 08/07/20
In Re B.M. Et Al.
E2019-02013-COA-R3-JV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge O. Duane Slone

This case involves alleged child abuse by the mother’s paramour. After receiving a referral for potential child abuse, the Department of Children’s Services filed a dependency and neglect petition seeking injunctive relief, an ex parte order, and to transfer temporary legal custody of two minor children. After a hearing on the petition, the juvenile court found that the paramour committed severe child abuse. The paramour appealed to the circuit court. The circuit court also found there was clear and convincing evidence to show the paramour committed severe child abuse and that the abused child was dependent and neglected. We affirm the circuit court’s findings and remand.

Jefferson County Court of Appeals 08/07/20
In Re Adalee H.
M2019-00949-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ronald Thurman

In this parental termination case, the trial court found two statutory grounds for termination of a father’s parental rights: severe child abuse and failure to manifest an ability and willingness to assume custody. The trial court also found that termination of the father’s parental rights was in his child’s best interest. Because the record contains clear and convincing evidence to support the grounds for termination and the best interest determination, we affirm. 

White County Court of Appeals 08/07/20
In Re Nakayia S. Et Al.
M2019-00644-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Tiffany Gentry Gipson

This is the second appeal by a father of the termination of his parental rights to his two minor children. The trial court determined that termination of the father’s rights was in the best interest of the children after finding he failed to manifest an ability and willingness to assume custody of the children and abandoned them by engaging in conduct that exhibited a wanton disregard for their welfare. In the first appeal, we vacated the judgment of the trial court because its findings of fact failed to comply with the mandate in Tenn. Code Ann. § 36-1-113(k) and remanded for the trial court to make additional findings of fact on two grounds—abandonment by wanton disregard and failure to manifest an ability and willingness to assume custody of or financial responsibility for the children—and on whether termination of the father’s parental rights was in the children’s best interests See In re Nakayia S., No. M2017-01694-COA-R3-PT, 2018 WL 4462651, at *5–6 (Tenn. Ct. App. Sept. 18, 2018). In this appeal, the father contends the court improperly based its decision on one child’s out of court allegations of abuse, and he asserts that he manifested ability and willingness to assume custody by complying with the permanency plan requirements. We have determined that the child’s statements were properly admitted under Tennessee Rule of Evidence 803, and the preponderance of the evidence is not against the trial court’s findings, which amount to clear and convincing evidence of the elements necessary to terminate the father’s parental rights. Accordingly, we affirm the termination of the father’s parental rights.

Jackson County Court of Appeals 08/07/20
Nedra R. Hastings v. Larry M. Hastings, Jr.
W2020-00989-COA-T10B-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Magistrate Nancy Percer Kessler

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, filed by Nedra R. Hastings (“Petitioner”), seeking to recuse a special judge in this case involving child support matters. Having reviewed the petition for recusal appeal filed by Petitioner, and finding it fatally deficient, we dismiss the appeal.

Shelby County Court of Appeals 08/06/20
Jenny M. Ruzzene v. Dieontea M. Stewart
E2019-00291-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge John F. Weaver

The Appellant appeals the entry of an order of protection that was entered against him. Because that order of protection has expired, we dismiss the appeal as moot.

Knox County Court of Appeals 08/06/20
Forcum-Lannom, Inc. v. Sake Japanese Steakhouse, Inc.
W2019-02095-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge R. Lee Moore, Jr.

Appellant filed a detainer action against Appellee, seeking possession of commercial property. The lawsuit was premised on Appellant’s assertion that Appellee breached the commercial lease, under which it purportedly leased Appellant’s property. Appellee, however, is not a party to the lease. As such, the judgment for breach and for back rents entered against Appellee is of no force or effect. Vacated and remanded.

Dyer County Court of Appeals 08/06/20
In Re Conservatorship of Betty A. Winston
W2019-01134-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor James F. Butler

This appeal involves a conservatorship proceeding between two sisters with regard to their mother. The appealing sister argues that the trial court’s order was deficient in several respects and that the trial court abused its discretion in naming the other sister as conservator, rather than a public guardian. Discerning no abuse of discretion, we affirm.

Madison County Court of Appeals 08/06/20
Dorothy Eskridge Et Al. v. NHC Healthcare Farragut, LLC, Et Al.
E2019-01671-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Deborah C. Stevens

This appeal arises from a healthcare liability action. In these proceedings, the plaintiff filed a complaint against the defendants in January 2018. The Trial Court issued summonses the following day, and the plaintiff’s attorney took the summonses to serve through private process instead of through the local sheriff’s department. Service was subsequently completed on the defendants’ registered agent eighty-nine days after issuance of the summonses. The defendants filed an answer raising as an affirmative defense that the defendants had not been properly served with process pursuant to Tennessee Rule of Civil Procedure 4. The returns for the original summonses were not filed with the Trial Court until January 2019. The plaintiff filed a motion to strike the defendants’ affirmative defense alleging that the defendants had not sufficiently pled it pursuant to Tennessee Rule of Civil Procedure 8.03. Thereafter, the defendants filed a motion to dismiss pursuant to Tennessee Rules of Civil Procedure 4.01(3) and 12.02(4)-(5), alleging intentional delay of process, insufficient service of process, and insufficient process. The Trial Court denied the plaintiff’s motion to strike the affirmative defense and granted the defendants’ motion to dismiss. The plaintiff appeals. Upon a review of the record, we affirm the Trial Court’s denial of the plaintiff’s motion to strike but reverse the Trial Court’s grant of the defendants’ motion to dismiss.

Knox County Court of Appeals 08/06/20
Jeffrey Clay Davis v. Vanderbilt University Medical Center
M2019-01860-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Anne C. Martin

A medical center employee sued the medical center under the Tennessee Public Protection Act (“the TPPA”) asserting that his employment was terminated because he refused to remain silent about the medical center’s failure to enact policies to safeguard its employees from workplace violence. The medical center moved to dismiss the employee’s complaint for failure to state a claim, and the trial court granted the motion. We conclude that the employee’s complaint satisfies the TPPA’s “illegal act” requirement because it alleges the violation of the Occupational Safety and Health Act’s general duty clause and describes activities that implicate important public policy concerns. Therefore, we reverse the trial court’s dismissal.

Davidson County Court of Appeals 08/05/20
In Re Justin D. Et Al. - Concurring and Dissenting Opinion
E2019-00589-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge David R. Shults

concur with the majority’s opinion except as to the holding that the ground as to the “failure to manifest an ability and willingness to assume custody” was not satisfied as to Mother. This Court is split on this issue, and I agree with the line of cases that hold that the parent has to be able and willing rather than just either of the two. See In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *12-14 (Tenn. Ct. App. June 20, 2018). I would affirm the Trial Court’s determination “that the Petitioners have proven by clear and convincing evidence that the Mother has demonstrated an unwillingness to assume custody of the minor children.” I agree with the Trial Court that Mother’s “sobriety was only very recently established, and her continued success in her sobriety is questionable . . . .” Mother’s unwillingness to assume custody satisfies this requirement of Tenn. Code Ann. § 36-1-113(g)(14). I concur in all the rest of the majority’s opinion including termination of Father’s and Mother’s parental rights. Given this Court’s recurring clear and irreconcilable split as to this question of statutory interpretation, I request the Tennessee Supreme Court accept and resolve this issue once it has the opportunity to do so.

Unicoi County Court of Appeals 08/04/20
In Re Justin D. Et Al.
E2019-00589-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge David R. Shults

A mother and father’s parental rights to two children were terminated on the grounds of abandonment, persistence of conditions, failure to manifest an ability and willingness to assume custody, and upon a determination that terminating the parents’ rights would be in the best interest of the children. Each parent appeals; we reverse in part as to certain statutory grounds but affirm the termination of the parental rights of each parent.

Unicoi County Court of Appeals 08/04/20