Court of Appeals Opinions

Format: 01/23/2019
Format: 01/23/2019
Laxmi Hospitality Group, LLC v. Rajesh Narayan
M2018-00450-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Claudia Bonnyman

A company that loaned $100,000 to two individuals filed a complaint to collect the amount due. One defendant filed for bankruptcy, and his debt to the company was discharged. The other defendant asserted that the complaint was barred by the statute of limitations. The company argued that the remaining defendant was equitably estopped from relying on the statute of limitations because he had misled the company to delay filing suit by promising to pay the debt without the need for litigation. The trial court agreed with the company and ruled that the statute of limitations did not bar the company’s claim. We affirm the trial court’s judgment on appeal. 

Davidson County Court of Appeals 12/18/18
In Re: Lesley A.
E2018-00594-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Terry Stevens

Mother appeals the trial court’s determination that her parental rights to her daughter should be terminated on the grounds of substantial noncompliance with the permanency plans, abandonment by failure to provide a suitable home, and persistence of conditions. Having concluded that clear and convincing evidence supports the trial court’s decisions regarding grounds as well as its determination that termination is in the best interest of the child, we affirm the trial court’s judgment.

Roane County Court of Appeals 12/18/18
Lawrence Benjamin Davenport v. Denise Michelle Davenport
W2017-01376-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert S. Weiss

In this divorce action, the mother appeals the trial court’s permanent parenting plan order, which designated the father as primary residential parent of the parties’ child and awarded him 280 days of annual residential co-parenting time. Having determined that the order appealed from does not adjudicate all of the claims between the parties and is therefore not a final order, we dismiss this appeal for lack of subject matter jurisdiction.

Shelby County Court of Appeals 12/17/18
Brian M. Haslett, Et Al. v. Barry Gregory, Et Al.
M2018-01952-COA-T10B-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Claudia Bonnyman

The defendants moved to disqualify the chancellor after the denial of their motion for summary judgment. As grounds for disqualification, the defendants submitted that the chancellor had violated the Code of Judicial Conduct in denying their motion for summary judgment and in not promptly entering an order on a motion to compel. After the chancellor’s denial of the motion to disqualify, this accelerated interlocutory appeal followed. Because the motion identified no justifiable basis for the chancellor’s disqualification, we affirm.

Davidson County Court of Appeals 12/17/18
Samantha Audrey Haak v. Christopher Rodney Haak
W2018-00048-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Daniel L. Smith

Mother appeals the trial court’s decision to change custody to Father. Here, the trial court’s findings of fact and the evidence in the record support the trial court’s determination that naming Father the primary residential parent of the children is in their best interests. As such, we affirm.

Hardin County Court of Appeals 12/17/18
Andrew Galloway v. Nashid Madyun
W2017-01438-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Mary L. Wagner

This is a breach of contract case. The trial court entered judgment against Appellant for breach of contract, and Appellant appeals. Because there is no transcript or statement of the evidence, we cannot review the trial court’s holdings. Affirmed and remanded.

Shelby County Court of Appeals 12/17/18
Lisa A. Boyd v. BNSF Railway Company
W2017-02189-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Felicia Corbin Johnson

This is an FELA case arising out of an accident that occurred at the railroad’s intermodal facility in which a railroad employee was crushed by a container box being lifted off of a holster truck. The jury entered a verdict in favor of the employee, determining she was zero percent at fault for the accident, despite allegations that she had failed to set the holster truck brakes. The railroad moved for a new trial, raising several evidentiary issues and asserting that the jury’s failure to find the employee contributorily negligent was against the clear weight of the evidence. The trial court denied the motion. We affirm the trial court’s order on jury verdict, as remitted.

Shelby County Court of Appeals 12/17/18
John Doe By His Next Friend Jane Doe, Et Al. v. Brentwood Academy Inc., Et Al.
M2018-02059-COA-R9-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Deanna B. Johnson

This Tenn. R. App. P. 9 application for permission to appeal concerns whether portions of a trial court order and a transcript, both of which reference Plaintiff Jane Doe’s medical history, should be placed under seal. Pursuant to an October 2, 2018 order of remand from this court in Appeal No. M2018-01611-COA-R10-CV1, the trial court determined that portions of the documents should be redacted but that certain portions of the transcript and order which include references to Jane Doe’s medical history should not be placed under seal. The trial court subsequently granted Jane Doe and John Doe permission to appeal under Tenn. R. App. P. 9. We concur with the trial court that this is an appropriate case for an interlocutory appeal. Furthermore, because the application and answer fully set forth the parties’ positions and the material facts, we dispense with further briefing and oral argument and proceed to the merits of the appeal in order to save the parties additional time and expense.

Williamson County Court of Appeals 12/14/18
In Re Billy F.
E2018-01639-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Brad Lewis Davidson

Father appeals the trial court’s finding that termination of his parental rights to his son is in the child’s best interest. Because we conclude that clear and convincing evidence supports both the grounds for termination found by the trial court and the trial court’s best interest finding, we affirm.

Cocke County Court of Appeals 12/14/18
In Re: Mason C. Et Al.
E2018-01378-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Larry M. Warner

This is a termination of parental rights case involving the parental rights of Allison T. (“Mother”) to the children, Mason C. and Nathan C. (“the Children”), and the parental rights of Jeffrey M. (“Father”) to Nathan C. On November 14, 2016, the maternal grandparents, Patricia T. and Robert T. (“Grandparents”), filed a petition to terminate the parental rights of Mother and Father to their respective Children. Following a bench trial, the trial court terminated Mother’s parental rights to the Children and Father’s parental rights to Nathan upon its determination that the parents had abandoned the Children by willfully failing to support them and that termination of their parental rights was in the best interest of the Children. Because the trial court failed to enter sufficient findings of fact and conclusions of law, we vacate the trial court’s judgment and remand for entry of sufficient findings of facts and conclusions of law in compliance with Tennessee Code Annotated § 36-1-113(k) (2017).

Cumberland County Court of Appeals 12/14/18
Travis Daniel Freeman v. Wendy Y. Freeman
E2017-02110-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Casey Mark Stokes

This appeal concerns the proper method of invoking a trial court’s subject matter jurisdiction in a proceeding to modify a permanent parenting plan. About one year after the parties’ divorce, Travis Freeman (father) filed a petition to modify the court-ordered custody arrangement and attached a proposed permanent parenting plan pursuant to Tenn. Code Ann. § 36-6-405(a) (2017). Wendy Freeman (mother) opposed the requested modification. The trial court subsequently entered two orders gradually expanding father’s co-parenting time. Later, father filed another motion seeking greater expansion of his co-parenting time and/or designation as the primary residential parent. Father did not attach a new proposed parenting plan to this motion. Ultimately, the trial court ordered a new permanent parenting plan that retained mother as the primary residential parent but granted father additional co-parenting time. Mother appeals. She argues that father did not properly invoke the trial court’s subject matter jurisdiction because father did not attach a new proposed parenting plan to his most recent motion to modify the custody arrangement. We agree with mother that father was statutorily required to submit a new proposed parenting plan pursuant to Tenn. Code Ann. § 36-6-405(a); nevertheless, we hold that father’s petition to modify the parenting plan was sufficient to invoke the trial court’s jurisdiction. Accordingly, we affirm

Meigs County Court of Appeals 12/14/18
Jermaine Reese v. The Estate of Stanley Cutshaw, Et Al. - concurring
E2017-01923-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Douglas T. Jenkins

I concur in the majority’s discussion and decision regarding the inapplicability of the doctrine of exoneration. I am also of the opinion that if the statute of limitations had been timely raised as an affirmative defense, it would have barred Wife’s cause of action. However, I believe that our Fryer decision and Rules 8.03 and 12.08 of the Rules of Civil Procedure, mandate the conclusion that the trial court erred in ambushing Wife by applying an affirmative defense that was never pled nor tried. To the extent that the majority opinion could be read as holding that the trial court’s error was harmless because the statute of limitations had run, I disagree with that reasoning, because I believe it is circular in nature. The conclusion that the error was harmless can, however be supported by other reasoning of the majority. For example, I agree with the majority that the error was harmless, but I would support this conclusion simply on the trial court’s determination that the release executed by the parties was valid and enforceable and supports the conclusion that the property securing the debt should be deeded back to Wife. I write separately to emphasize my view that Fryer was correctly decided, that it is squarely on point and applicable to this case, and that this opinion should not be read as representing an exception to the general principle stated therein, namely that a trial court commits reversible error by sua sponte applying a statute of limitations defense at the end of trial that was never pled, raised by the parties, or tried by implied consent.

Greene County Court of Appeals 12/14/18
Jermaine Reese v. The Estate of Stanley Cutshaw, Et Al.
E2017-01923-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Douglas T. Jenkins

This appeal concerns a debt owed to the plaintiff by her deceased husband. The trial court awarded the plaintiff certain secured real property that she argues does not provide her the full value of her claim against the decedent. We affirm.

Greene County Court of Appeals 12/14/18
In Re Estate of Bernice Hill
W2017-02131-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Karen D. Webster

A claim was filed against an estate by the former employer of the decedent. The clerk of court did not send notice to the representative of the estate as required by Tennessee Code Annotated section 30-2-313(a). The estate did not file an exception to the claim until after the time for filing exceptions had run. The trial court accordingly ruled that the exception was time barred. The estate appeals. We reverse the judgment and remand for further proceedings.

Shelby County Court of Appeals 12/14/18
Nedra B. Drayton v. Jacquelyn B. Scruggs
W2017-00760-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Valerie L. Smith

This appeal arises from an Order of Protection initially issued in the General Sessions Court for Shelby County, Tennessee based on the plaintiff’s allegation that the defendant, her mother, assaulted her “by hitting her with her car.” In the appeal to the Circuit Court, that court ordered that all provisions in the order of protection in the General Sessions Court remain in effect until further order of the Circuit Court. Following numerous filings and motions, one of which sought a psychological mental health assessment of the plaintiff, the Circuit Court denied all pending motions and dismissed the order of protection. This appeal followed. Finding no error, we affirm.

Shelby County Court of Appeals 12/14/18
Raleigh Commons, Inc. v. SWH, LLC, et al.
W2017-01792-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Mary L. Wagner

This action, which involves payment of a promissory note, was previously appealed to this Court and subsequently remanded to the trial court due to the existence of a genuine issue of material fact precluding summary judgment. Following remand, the trial court conducted a hearing regarding the disputed issue of the reasonableness of attorney’s fees paid. Determining that the amount of fees paid was reasonable, the trial court entered judgment in favor of Dr. Joseph Weinstein, the note holder and the appellee herein. Dr. Stevan Himmelstein, one of the parties found to be liable on the note, has appealed. Discerning no error, we affirm the trial court’s judgment.

Shelby County Court of Appeals 12/14/18
Deborah Hart v. Memphis Light, Gas, & Water Division
W2018-00254-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Valerie L. Smith

The parties dispute whether, under Tennessee Code Annotated section 16-15-710, the applicable statute of limitations was tolled by service of process when no proof of service was returned to the court as required under Tennessee Code Annotated section 16-15-902(a). Under the holding in Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013), we conclude, as did the trial court, that Appellee’s failure to make return to the court did not, ipso facto, constitute a lack of service of process such that the statute of limitations expired. Affirmed and remanded.

Shelby County Court of Appeals 12/13/18
LaFarge North America v. Warren Mills, et al.
W2017-00431-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Mary L. Wagner

The trial court granted summary judgment in favor of Appellee, finding that the guaranty agreement Appellant executed was enforceable. At the time Appellant executed the guaranty, Choctaw II, LLC (“Choctaw”), a company of which Appellant was a member, owed approximately $275,000.00 to Appellee on an open credit line, which was guaranteed by William Carrier, another owner of Choctaw. Mr. Carrier filed bankruptcy, and Appellee closed the open credit line for lack of guaranty. In an effort to continue to purchase materials from Appellee, Appellant signed a guaranty. After Appellant signed the guaranty, Appellee sold an additional $75,000 worth of goods to Choctaw, and Choctaw paid Appellee approximately $79,000 after Appellant signed the guaranty. Appellee applied these payments to the $275,000 balance and then sought payment for the $75,000 in goods from Appellant. The trial court held that Appellee properly applied the payments to the older debt. We hold that the guaranty agreement is enforceable. However, as to the application of the payments, we hold that Appellee was required to apply the $79,000 to the debt guaranteed by Appellant. Because the payments were sufficient to pay off the $75,000 in goods, Appellant owes nothing to Appellee under the guaranty and is entitled to summary judgment. Reversed and remanded for entry of summary judgment in favor of Appellant.

Shelby County Court of Appeals 12/13/18
Nationwide Mutual Fire Insurance Company v. Memphis Light, Gas, and Water
W2017-02551-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

Plaintiff/Appellant Nationwide appeals the trial court’s grant of Defendant/Appellee’s motion to dismiss for failure to state a claim for which relief can be granted. Defendant’s motion was based on the argument that Plaintiff’s claim was time-barred pursuant to the Tennessee Governmental Tort Liability Act, and that Tennessee Code Annotated section 20-1-119 did not allow Plaintiff to timely add Defendant to the suit. Because we conclude that the trial court incorrectly applied Tennessee’s comparative fault statute, we reverse.

Shelby County Court of Appeals 12/13/18
Johnny McClain, Jr. v. Tennessee Board of Parole, Et Al.
M2018-00205-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Russell T. Perkins

This is an appeal from the dismissal of an inmate’s petition for common law writ of certiorari. The Tennessee Board of Parole denied petitioner parole, citing the seriousness of the offense, the substantial risk that petitioner would not conform to the conditions of his release, the adverse effect his release would have on institutional discipline, and his need to complete therapeutic community. Petitioner appealed the Board’s decision by petition for writ of certiorari. The petition was dismissed by the trial court, which found that the petitioner had failed to present any facts that would support a claim that the Board acted illegally, fraudulently, arbitrarily, or in excess of their jurisdiction. This appeal followed. We affirm.

Davidson County Court of Appeals 12/11/18
In Re Gaberiel S. Et Al.
M2018-00522-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Bratten H. Cook II

A father appeals the termination of his parental rights to his four children. The juvenile court found five statutory grounds for termination: (1) abandonment by willful failure to support; (2) abandonment by failure to provide a suitable home; (3) substantial noncompliance with the permanency plans; (4) persistence of conditions; and (5) failure to manifest an ability and willingness to personally assume custody or financial responsibility of the children. The court also found that termination of the father’s parental rights was in the children’s best interest. We affirm.

DeKalb County Court of Appeals 12/11/18
Dwight Mitchell v. State of Tennessee, Department of Health
M2017-02041-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

Plaintiff filed a declaratory judgment action in 2017, seeking to have the chancery court invalidate two final orders entered against him by the Tennessee Department of Health, one entered in 2008, revoking his license to operate a residential home for the aged, and the second entered in 2011, placing him on the Tennessee Abuse Registry. Upon the Department’s motion, the chancellor dismissed the action for lack of subject matter jurisdiction, for failure to timely seek review under the Administrative Procedures Act, and on the basis of res judicata. The plaintiff appeals; on our de novo review, we affirm the dismissal of the petition for failure to comply with the judicial review provisions set forth in Tennessee Code Annotated section 4-5-322.  

Davidson County Court of Appeals 12/11/18
Windell Middleton v. City of Millington, Tennessee
W2018-00338-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Jerry Stokes

The trial court granted summary judgment to defendant city on the basis of the expiration of the statute of limitations. Specifically, the trial court ruled that plaintiff’s complaint was ineffective to toll the statute of limitations where service of process on the city clerk did not comply with Rule 4.04(8) of the Tennessee Rules of Civil Procedure and process was not reissued. Discerning no error, we affirm.

Shelby County Court of Appeals 12/11/18
Mary Reynolds, As Administrator Of The Estate Of Carol Ann Reynolds, v. Gray Medical Investors, LLC., Et Al.
E2017-02403-COA-R9-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Jean A. Stanley

We granted the Tenn. R. App. P. 9 application for interlocutory appeal in this case to consider whether a healthcare provider can use Tenn. Code Ann. § 68-11-272, (“the peer review statute”), to claim privilege and exclude evidence that an employee was threatened with dismissal or retaliation if the employee refused to change their story or alter documents in order to cover up possible negligent conduct. We find and hold that the peer review privilege contained within Tenn. Code Ann. § 68-11-272 never was intended to allow a healthcare provider to attempt without fear of adverse consequences to force an employee to commit perjury. We, therefore, reverse the July 31, 2017 order of the Circuit Court for Washington County (“the Trial Court”) excluding the testimony of defendants’ employee pursuant to the peer review privilege contained in Tenn. Code Ann. § 68-11-272 and remand this case for further proceedings consistent with this Opinion.

Washington County Court of Appeals 12/11/18
In Re Eleanor Chappell Revocable Living Trust
W2017-02541-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Karen D. Webster

Decedent’s son, Appellant, sought to set aside Decedent’s trust, alleging that Decedent lacked capacity at the time she executed the trust and that Appellees, Decedent’s sister and the sister’s husband, exercised undue influence over Decedent in the execution of the trust. Appellees moved for dismissal arguing that Appellant’s lawsuit was barred by res judicata based on Appellant’s previous suit for conservatorship over Decedent. The trial court held that the elements of res judicata were not met but dismissed Appellant’s lawsuit on its finding that same was barred by the six-year statute of limitations for claims for breach of fiduciary duty under Tennessee Code Annotated section 28-3-109(a)(3). We conclude that the trial court’s conclusion as to res judicata was correct. However, because Appellant’s complaint does not state a cause of action for breach of fiduciary duty, the applicable statute of limitations is that set out in Tennessee Code Annotated section 35-15-604(a)(1), and Appellant’s lawsuit was timely filed.

Shelby County Court of Appeals 12/10/18