Court of Appeals Opinions

Format: 10/15/2018
Format: 10/15/2018
Alan C. Cartwright v. Alice Cartwright Garner, et al.
W2016-01424-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor James R. Newsom, III

A trust beneficiary sued co-trustees for breach of their fiduciary duties and for procuring the creation of two trusts through undue influence. The trustees moved to dismiss for failure to state a claim upon which relief can be granted. Following the hearing on the motion to dismiss, the trust beneficiary moved to amend his complaint. Prior to ruling on the motion to amend, the trial court granted the motion to dismiss based on the expiration of the statute of limitations and the grounds of res judicata and collateral estoppel. Subsequently, the trial court denied the motion to amend. On appeal, the trust beneficiary asserts the trial court abused its discretion by not granting his post-hearing motion to amend. The trust beneficiary also argues that the court erred in dismissing his complaint. We conclude the court did not err in denying his motion to amend. We further conclude that the trial court properly dismissed the complaint on the ground of res judicata.

Shelby County Court of Appeals 09/19/18
Village East Association, Inc. v. Daniel Lamb, Et Al.
E2017-02275-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Telford E. Forgerty, Jr.

After the wildfires in Gatlinburg destroyed the Village East Condominiums, the unit owners decided unanimously not to rebuild. The Village East Association filed an interpleader petition in the Chancery Court for Sevier County, requesting that the court determine the appropriate distribution of the insurance proceeds among the unit owners. The trial court interpreted the Master Deed as requiring a proportionate distribution of the insurance proceeds based on the insurance coverage for each unit. The owners who desired equal distribution of the insurance proceeds appeal. We affirm.

Sevier County Court of Appeals 09/19/18
In Re Nakayia S. Et Al.
M2017-01694-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Tiffany Gipson

Father appeals the juvenile court’s judgment terminating his parental rights to two of his children. We conclude that DCS did not provide Father with a reasonable amount of time to comply with the permanency plan requirements and the record does not contain clear and convincing evidence to terminate his rights on this ground. Further, we conclude that the juvenile court’s order fails to comply with Tennessee Code Annotated section 36-1-113(k)’s requirement that the court make specific factual findings, which precludes our review of the remaining grounds and the best-interests determination. Therefore, we vacate the judgment of the juvenile court and remand for entry of an order that complies with subsection 113(k).

Jackson County Court of Appeals 09/18/18
In Re Jaylan W.
M2018-00628-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Joseph A. Woodruff

A father appeals the termination of his parental rights to his son on the grounds of abandonment by failure to visit and failure to support. Upon our review, we reverse the court’s holding of abandonment by failure to visit; in all other respects, the judgment is affirmed.

Williamson County Court of Appeals 09/18/18
Melinda Keeling v. Coffee County, Tennessee, Et Al.
M2017-01809-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge J. Curtis Smith

After a jury awarded a terminated employee compensatory damages for a county’s violation of the Public Employee Political Freedom Act (“PEPFA”), the trial court awarded equitable damages. On appeal, the county argues that the trial court erred in excluding the findings of a neutral committee appointed by the mayor. We find no abuse of discretion in the trial court’s decision to exclude the findings as hearsay. As to the county’s assertion that the trial court erred in awarding damages related to the employee’s termination because the verdict form did not ask the jury to make a finding that her termination resulted from the PEPFA violation, we conclude that the county waived this issue by failing to raise it before the jury returned its verdict. We reject the county’s challenges to the amount of back pay awarded to the employee. Furthermore, we find that the trial court did not err in awarding front pay, or in declining to include benefits in the front pay award. The employee asserts that the trial court erred in concluding that she failed to mitigate her damages, and we agree that the county failed to meet its burden of proof on the issue of mitigation of damages. On the sole issue of mitigation of damages, we reverse the trial court’s decision. 

Coffee County Court of Appeals 09/18/18
Charles Webster v. Steve L. Walker
E2018-00611-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Michael W. Moyers

An easement owner filed a complaint against the dominant estate owner, arguing that the dominant estate owner’s installation of locked gates across the easement unreasonably interfered with his use of the right-of-way. The dominant estate owner moved for summary judgment, arguing that the easement owner was not entitled to an “open” right of- way, without impediments. The trial court granted the summary judgment motion and the easement owner appealed. Upon review of the record, we conclude there is a genuine issue of material fact regarding whether the locked gates are necessary to the dominant estate owner’s use and enjoyment of his property and whether the gates unreasonably interfere with the easement owner’s use of his right-of-way. Accordingly, we reverse the trial court’s judgment and remand for further proceedings.

Knox County Court of Appeals 09/18/18
Samuel Sanders, et al. v. Marvin Jackson, et al.
W2017-01643-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor William C. Cole

This matter involves a dispute between record owners of adjacent lots. Plaintiffs claim ownership of both lots. Defendant claims ownership of one lot and a shed situated on the other lot. Each sought compensation for damages and loss of use of their respective personal and real property during the dispute. The trial court held that each side owned the lot to which it was the record owner and that the shed was on plaintiffs’ lot. It held that both sides failed to meet its burden of proof on the issue of damages. Accordingly, the court declined to award damages. Plaintiffs appeal. We affirm.

McNairy County Court of Appeals 09/18/18
Erika Louise (Brown) Dewald v. Baya Paul Dewald
M2017-02158-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge John Thomas Gwin

A husband appeals the trial court’s division of marital assets and denial of attorney’s fees.  Both parties sought a divorce. Prior to trial, the parties stipulated that the husband was entitled to a divorce based on the wife’s admitted adultery. The parties also stipulated to the value of the husband’s premarital interest in his 401(k) retirement account. As to the division of marital assets, the parties stipulated that the husband would receive the marital home, and the wife would receive another piece of real property. The parties stipulated to the values of all remaining assets and debts but not to their division, and the wife waived any claims to alimony. After a four day bench trial, the trial court granted the husband a divorce and approved a permanent parenting plan which designated him as primary residential parent for the parties’ one child. In addition, the trial court classified the parties’ assets and divided the remaining marital estate, awarding fifty-four percent (54%) of the marital estate to the wife and forty-six percent (46%) to the husband, and declined to award either party attorney’s fees. The husband takes issue on appeal with the manner in which the trial court divided the marital estate and with the trial court’s decision to not award him any attorney’s fees. We affirm the trial court’s division of the parties’ marital estate, as well as the trial court’s decision not to award the husband any attorney’s fees. We also decline to award the wife her attorney’s fees on appeal.

Wilson County Court of Appeals 09/17/18
Wardley Homes, LLC. et al. v. Michael C. Johnson et al.
E2017-01831-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Frank V. Williams, III

This appeal arises from a lawsuit over the construction of a house. Wardley Homes, LLC (“Wardley Homes”), owned by James A. Wardley, II, and Teresa Smith Wardley (“the Wardleys”), contracted with Michael C. Johnson and Deborah A. Johnson (“the Johnsons”) to build the Johnsons’ house. A dispute arose over payment, and Wardley Homes sued the Johnsons in the Chancery Court for Loudon County (“the Trial Court”). The Johnsons, in turn, filed a counterclaim against Wardley Homes. The Johnsons later attempted to bring the Wardleys into the case individually under a theory of piercing the corporate veil. The record contains no order relating to whether the Wardleys were brought into this suit. Despite there being no order in the record bringing them into this suit, the Wardleys filed a motion for partial summary judgment relating to their individual liability. The Trial Court at a hearing apparently orally granted the Wardleys’ motion, although the record contains no order to that effect either. The Johnsons later filed a Tenn. R. Civ. P. 60.02 motion for relief, which the Trial Court denied. Wardley Homes and the Johnsons settled their dispute. The Johnsons appeal to this Court with respect to their effort to bring the Wardleys into the case individually. The absence of key orders precludes our review. We, therefore, vacate the Trial Court’s judgment, to the extent it exists, as it relates to partial summary judgment and remand for the Trial Court to (1) enter an order on the Johnsons’ motion to bring in the Wardleys, and if granted, (2) enter an order on the Wardleys’ motion for partial summary judgment that states the legal grounds and complies with Tenn. R. Civ. P. 56.04. We otherwise affirm the Trial Court.

Loudon County Court of Appeals 09/17/18
John M. North v. Westgate Resorts, LTD., L.P. et al.
E2017-01560-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Telford E. Forgety

In this appeal, Westgate Resorts, Ltd., L.P., asserts that the trial court erred in awarding plaintiffs John M. North and Vickie C. North $29,716.19 in attorney’s fees and expenses. Before trial, the Norths accepted Westgate’s offer of judgment pursuant to Tenn. R. Civ. P. 68. It provided that Westgate would pay “an award of reasonable attorney’s fees and expenses, in an amount to be set by the [trial] court.” The Norths argue that because Westgate agreed to this provision under Rule 68 without specifically reserving the right to appeal, it may not appeal the award of attorney’s fees. Westgate argues that the fee amount was unreasonable. We hold that Westgate did not waive its right to appeal the attorney’s fee and expense award. We further hold that the trial court did not abuse its discretion in finding the amount awarded to be reasonable. The judgment of the trial court is affirmed.

Sevier County Court of Appeals 09/17/18
In Re T.R. et al.
E2017-02115-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Terry Stevens

The Department of Children’s Services filed a petition to terminate the parental rights of J.E.R. (mother) and R.A.R. (father) with respect to their three children, T.E.R., M.A.R., and T.Z.R. The trial court determined that clear and convincing evidence supported three grounds for terminating mother and father’s parental rights: (1) abandonment for failure to provide a suitable home; (2) substantial noncompliance with the permanency plan; and (3) persistence of conditions. By the same quantum of proof, the court determined that termination is in the best interest of the children. Mother appeals the trial court’s order terminating her rights. We affirm.

Roane County Court of Appeals 09/17/18
Nashboro Golf Course, LLC v. Townhouses of Nashboro Village, L. P et al.
M2017-00226-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Ellen H. Lyle

This action involves claims relating to the relocation of an approximate ten-foot wide golf cart path located on an easement granted in 1996. The plaintiff owner of the easement sought, inter alia, an injunction and compensatory and punitive damages for the interference with the easement. The case proceeded to a hearing on cross-motions for summary judgment, after which the court granted summary judgment in favor of the defendant owner of the servient property and the defendant construction company that relocated the path. The plaintiff appeals. We affirm.

Court of Appeals 09/14/18
Loring Justice v. Kim Nelson
E2017-02009-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Larry Michael Warner

Father appeals the trial court’s dismissal of his complaint for modification of the court’s order adopting a permanent parenting plan in a previous custody action. Subsequent to Father’s filing of this appeal, he filed a similar or identical petition for modification in the original custody action, and the trial court is scheduled to hear that petition prior to the adjudication of this appeal. We have, therefore, determined that this appeal is moot.

Roane County Court of Appeals 09/14/18
In Re Abagail D.
M2017-02557-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Ronald Thurman

This action involves the termination of a mother’s parental rights to her minor child. Following a bench trial, the court found that clear and convincing evidence existed to support the statutory grounds of abandonment for failure to visit and to support and that termination was in the best interest of the Child. We vacate the order and remand for additional findings of fact. 

White County Court of Appeals 09/13/18
Florence Collier Hall v. Shelby County Retirement Board, Chairperson Mark Luttrell, et al.
W2018-00231-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor JoeDae L. Jenkins

This appeal arises from the dismissal of a complaint filed against the Shelby County Retirement Board and a labor union for breach of contract for an administrative decision by the Shelby County Retirement Board, which denied the plaintiff’s request for a pension benefit as a former employee of the Shelby County Health Department. The retirement board and the union filed separate motions to dismiss for failure to state a claim upon which relief can be granted pursuant to Tennessee Rule of Civil Procedure 12.02(6). The chancery court granted both motions for lack of subject matter jurisdiction, determining that the plaintiff’s complaint was a petition for writ of certiorari, which the plaintiff did not file within the sixty-day statute of limitation. We affirm.

Shelby County Court of Appeals 09/11/18
Capital Partners Network OT, Inc. v. TNG Contractors, LLC, Et Al.
M2018-00411-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Plaintiff in this action, which recovered a judgment against the Tennessee Defendants in a New York court, sought to enroll and enforce the judgment in accordance with the Uniform Enforcement of Foreign Judgments Act, Tennessee Code Annotated sections 26-6-101 to -108, in Davidson County Circuit Court. Defendants moved to dismiss the proceeding and to deny the New York judgment full faith and credit on the ground, inter alia, that it was void under Tennessee law. The court denied the motion, held that the judgment was entitled to full faith and credit, and enrolled the judgment. Defendants appeal; we reverse and remand the case for further proceedings.

Davidson County Court of Appeals 09/11/18
Thomas Sutherland v. MP & T Hotels, LLC, Et Al.
M2018-00115-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Clara W. Byrd

This appeal arises from a personal injury lawsuit. Thomas Sutherland (“Plaintiff”) sued MP & T Hotels, LLC (“the Hotel”) in the Circuit Court for Wilson County (“the Trial Court”) for personal injuries after encountering noxious fumes in his hotel room. The Hotel raised the affirmative defense of comparative fault against Charles Stewart d/b/a Stewart and Son Termite and Pest Control (“Stewart”), who days before Plaintiff’s stay had sprayed insecticides in several of the Hotel’s rooms in keeping with a contract with the Hotel. Plaintiff thereafter sued Stewart as well. Plaintiff died during this case, and his son (“Substitute Plaintiff”) was substituted.1 For having to defend himself in this action, Stewart contends he is entitled to attorney’s fees and expenses from the Hotel under a theory of implied indemnity. The Trial Court denied the parties’ competing motions for summary judgment. Stewart appeals. Because the order appealed from is not a final judgment, this Court does not have subject matter jurisdiction, and this appeal must be dismissed. We, therefore, dismiss this appeal.

Wilson County Court of Appeals 09/11/18
In Re Estate of Bobby Frank Fletcher
M2017-02112-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Tolbert Gilley

This appeal arises out of a petition to construe a will. The petitioner has appealed from an order requiring him to obtain an attorney within thirty days or else the matter would be dismissed. Because the order does not dismiss the petition or otherwise dispose of all the claims between the parties, we dismiss the appeal for lack of a final judgment.

Rutherford County Court of Appeals 09/11/18
Christopher Creech, et al. v. RMRTN Chatt, LLC
W2017-01541-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Senior Judge William B. Acree

This is a premises liability case. Appellants sued Appellee, building owner, for negligence alleging that his injuries from a fall were due to an unsafe ladder on which he was standing to access Appellee’s HVAC units. Appellee denied all allegations and asserted comparative fault by one of the Appellants, Christopher Creech. After various pre-trial motions, the case proceeded to trial. At the close of trial, the trial court denied both motions for directed verdict. The jury returned a verdict in favor of Appellee. Appellants appeal. Discerning no error, we affirm and remand.

Dyer County Court of Appeals 09/11/18
Xcaliber International LTD., LLC v. Tennessee Department Of Revenue
M2017-01918-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Claudia C. Bonnyman

This case involves an interlocutory appeal to the Davidson County Chancery Court (“trial court”) of an administrative decision denying a motion to compel discovery. The petitioner, Xcaliber International Ltd., LLC (“Xcaliber”), is a tobacco manufacturer. In December 2016, Xcaliber filed a petition for an administrative contested case hearing concerning a decision pending by the Tennessee Department of Revenue (“the Department”) to remove Xcaliber’s two cigarette brand families distributed in Tennessee from the Tennessee Directory of Approved Tobacco Product Manufacturers (“the Directory”). Within this administrative proceeding, Xcaliber filed a motion to compel discovery in May 2017, expressing its dissatisfaction with the Department’s responses to two sets of interrogatories, requests for admissions, and requests for production of documents. Based on the pleadings, the administrative law judge denied Xcaliber’s motion to compel. On June 20, 2017, Xcaliber filed a petition in the trial court, seeking interlocutory review of the administrative order pursuant to Tennessee Code Annotated § 4-5-322(a)(1) (Supp. 2017). The Department subsequently filed a motion to dismiss the petition for judicial review, purportedly asserting both a facial challenge and a factual challenge to the trial court’s subject matter jurisdiction over the interlocutory administrative order. Following a hearing, the trial court entered an order on August 24, 2017, granting the Department’s motion based on what the court treated as a factual challenge to subject matter jurisdiction and dismissing Xcaliber’s petition for judicial review with prejudice. Xcaliber has appealed. Having determined that the trial court has subject matter jurisdiction, we reverse and remand for review on the merits of the administrative order denying Xcaliber’s motion to compel discovery.

Davidson County Court of Appeals 09/10/18
Susan Hembree Schumacher v. Kerry James Schumaucher
M2016-02585-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Philip E. Smith

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

Davidson County Court of Appeals 09/10/18
Darrin M. Dixon, Et Al. v. Alan Wayne Chrisco, Et Al.
M2018-00132-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Jeffrey F. Stewart
Purchasers of real property brought this action against the sellers alleging intentional misrepresentation, a violation under the Tennessee Residential Property Disclosure Act (“TRPDA”), and fraudulent concealment. The alleged misrepresentation and violation of the TRPDA concerned a right-of-way in favor of CSX for a railroad and the amount of purchaser’s property the right-of-way covered. Purchasers further argued that the sellers fraudulently concealed the planned construction of a second track of the railroad. The trial court dismissed the claims for intentional misrepresentation, the violation of the TRPDA, and negligent misrepresentation but granted judgment in favor of the purchaser regarding the fraudulent concealment. We affirm in part, as modified, and reverse in part.
 
Franklin County Court of Appeals 09/07/18
Karen Gaye Thompson Bounds v. Kenneth Newton Bounds
E2017-002366-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Lawrence Puckett

After ten years of marriage, Karen Gaye Thompson Bounds (“Wife”) sued Kenneth Newton Bounds (“Husband”) for divorce. After a trial, the Circuit Court for Bradley County (“the Trial Court”), inter alia, awarded the parties a divorce, divided the marital property and debts, held that the marital residence was Husband’s separate property, awarded Wife alimony in solido, and awarded Wife attorney’s fees. Husband appeals raising issues regarding the award of alimony and the award of attorney’s fees. We find and hold that the Trial Court did not abuse its discretion with regard to the award of alimony or the award of attorney’s fees. We, therefore, affirm.

Bradley County Court of Appeals 09/06/18
Duracap Asphalt Paving Co. Inc. v. City of Oak Ridge et al.
E2017-02414-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge M. Nichole Cantrell

The unsuccessful bidder on a contract for a street resurfacing project brought suit against the City of Oak Ridge, alleging that the city had not followed the competitive bidding process mandated by its municipal code. Plaintiff’s complaint sought declaratory relief, equitable relief and damages, as well as review under a writ of certiorari. The trial court determined that the lawsuit presented a proper case for review under the common law writ of certiorari and dismissed the pleaded original causes of action, finding their joinder to be inappropriate. The certiorari action was later dismissed after the trial court determined that it was not supported by a proper oath or affirmation. On appeal, plaintiff challenges the trial court’s conclusion that this case was proper for certiorari review. We affirm.

Anderson County Court of Appeals 09/06/18
Adedamola Olagoki Oni v. Cassondra Tucker Oni
E2017-01636-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge W. Jeffrey Hollingsworth

An adoptive father appeals the dismissal of his petition to have his Georgia-issued order of adoption enforced and his children placed in his custody, rather than in the care of their biological mother with whom they currently reside. The Hamilton County Court, pursuant to the Uniform Child Custody Jurisdiction Enforcement Act, communicated with the Superior Court for Fulton County, Georgia, where a custody petition filed by the biological mother was pending. The Georgia court, given its history with the parties, found that it was a more convenient forum, and the Hamilton County court dismissed Father’s petition for lack of subject matter jurisdiction. Upon our review, we affirm.

Hamilton County Court of Appeals 09/04/18