Court of Appeals Opinions

Format: 07/22/2014
Format: 07/22/2014
In Re Estate of Jane Kathryn Ross et al.
M2013-02218-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Randy Kennedy

This is the second appeal of an action to recover, under either the theoryof unjust enrichment or a resulting trust, the value of improvements paid by the plaintiff for a house constructed on her son’s property. The plaintiff paid the construction costs to build a new home on her son’s land for both of them to reside. This action was commenced when the son refused to put his mother’s name on the deed after the house was constructed. Following the first trial, the trial court found that the plaintiff never intended to convey an inter vivos gift to her son, and, after considering the plaintiff’s alternative claims for relief, the court established a resulting trust in favor of the plaintiff in the amount of $417,000. In the first appeal, we ruled that a resulting trust was not an available remedy and remanded for further proceedings. On remand, the trial court awarded the estate a judgment against the son based on unjust enrichment. The son appeals again, this time contending the estate waived its unjust enrichment claim in the first appeal and that the estate did not prove the value of the improvements. We affirm.

Davidson County Court of Appeals 06/30/14
National Door & Hardware Installers, Inc. v. Hassan Mirsaidi et al.
M2013-00386-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen Hobbs Lyle

A subcontractor filed this breach of contract action to recover damages against a general contractor for two types of damages: work performed but unpaid and damages resulting from delays caused bythe general contractor.The plaintiff alleged the general contractor breached the contract by failing to make the appropriate progress payments and otherwise withholding payments without cause. It further alleged that the general contractor failed to properly supervise the project and failed to maintain proper working conditions on the job site which caused the construction to drag on for nine months beyond the agreed-upon completion date. While suit was pending, the general contractor was terminated by the owner and a different contractor was hired to complete the project; the new contractor hired the plaintiff to complete the job. The plaintiff completed its work for which it was paid more than the balance owing on the subcontract.Following a bench trial,the courtfound the former general contractor had breached the subcontract but the plaintiff had failed to prove damages flowing from these breaches. The trial court specifically determined that the subcontractor recouped its damages for work performed but unpaid through the completion subcontract, and that it did not prove damages flowing from the delay of construction. The plaintiff appeals. Having determined that the evidence does not preponderate against the trial court’s findings, we affirm the trial court in all respects.

Davidson County Court of Appeals 06/30/14
Jeannie McFarland v. Brandon Bass
M2013-00768-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Jim T. Hamilton

Mother of two children appeals the denial of her petition to modify the parenting plan, the increase of her child support obligation, and the award of attorney fees to the Father. We reverse the increase in Mother’s child support obligation; we affirm the judgment in all other respects.

Giles County Court of Appeals 06/30/14
David N. Halbrooks v. Jacobus Marinus Durieux
M2013-00958-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jeff Bivins

Holder of easement (dominant estate) brought suit against owner of land (servient estate) alleging interference with his use of the easement by the servient estate’s construction of a building on the easement. The trial court found that the servient estate’s actions did not constitute unreasonable interference with the dominant estate’s use of the easement for ingress and egress. Because the evidence does not preponderate against the trial court’s findings, we affirm.

Hickman County Court of Appeals 06/30/14
Mike Locke and Cvan Avian v. The Estate of Thomas W. Schlater, et al. - Dissenting in Part and Concurring in Part
M2012-02504-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge David Randall Kennedy

I respectfully dissent from the majority’s conclusion that the plaintiffs are not time barred to establish that they have standing to contest David Rose’s 2006 Trust Agreement. I fully concur with the affirmance of the dismissal of the other underlying cases.

Davidson County Court of Appeals 06/30/14
Mike Locke and Cvan Avian v. The Estate of Thomas W. Schlater, et al.
M2012-02504-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge David Randall Kennedy

After the death of David Rose, his two putative non-marital sons became involved in three separate lawsuits related to the proper distribution of his property. When Mr. Rose’s Executrix filed to probate his Will in solemn form, the putative sons, who were named residuary beneficiaries, objected, but later withdrew their objection. They then filed suit to set aside a 2006 Trust Agreement in order to reinstate prior trusts, the assets of which were to be distributed to Mr. Rose’s issue at his death. They also filed a separate lawsuit to establish Mr. Rose as their biological father. Their attempts to obtain some of their father’s assets were all unsuccessful. In all three cases, the trial court held that they were barred from establishing a father-son relationship because their attempts were time barred. We affirm the trial court’s dismissal of the sons’ petition to establish paternity filed in the probate case two years after the order admitting the will to probate. However, we reverse the trial court’s dismissal of the petitioners’ complaint challenging the validity of the 2006 Trust Agreement because they have standing to attempt to establish that they are “issue” of Mr. Rose. The deadline imposed by the trial court applied only “for purposes of intestate succession,” and the trust case did not involve inheritance through the statute regarding heirs of a person dying without a will. Mr. Rose had a will, which was probated. Any assets to be distributed to Mr. Locke and Mr. Avian from the preexisting trust(s) would be pursuant to the terms of the trust document(s), not pursuant to intestate succession. For the purpose of establishing their interest in the prior trust(s), the purported children were entitled to present proof that they were the children of Mr. Rose and were not time barred.

Davidson County Court of Appeals 06/30/14
Mike Locke and Cvan Avian v. The Estate of David Rose - Dissenting in Part and Concurring in Part
M2012-01314-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge David Randall Kennedy

I respectfully dissent from the majority’s conclusion that the plaintiffs are not time barred to establish that they have standing to contest David Rose’s 2006 Trust Agreement. I fully concur with the affirmance of the dismissal of the other underlying cases.

Davidson County Court of Appeals 06/30/14
Mike Locke and Cvan Avian v. The Estate of David Rose
M2012-01314-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge David Randall Kennedy

After the death of David Rose, his two putative non-marital sons became involved in three separate lawsuits related to the proper distribution of his property. When Mr. Rose’s Executrix filed to probate his Will in solemn form, the putative sons, who were named residuary beneficiaries, objected, but later withdrew their objection. They then filed suit to set aside a 2006 Trust Agreement in order to reinstate prior trusts, the assets of which were to be distributed to Mr. Rose’s issue at his death. They also filed a separate lawsuit to establish Mr. Rose as their biological father. Their attempts to obtain some of their father’s assets were all unsuccessful. In all three cases, the trial court held that they were barred from establishing a father-son relationship because their attempts were time barred. We affirm the trial court’s dismissal of the sons’ petition to establish paternity filed in the probate case two years after the order admitting the will to probate. However, we reverse the trial court’s dismissal of the petitioners’ complaint challenging the validity of the 2006 Trust Agreement because they have standing to attempt to establish that they are “issue” of Mr. Rose. The deadline imposed by the trial court applied only “for purposes of intestate succession,” and the trust case did not involve inheritance through the statute regarding heirs of a person dying without a will. Mr. Rose had a will, which was probated. Any assets to be distributed to Mr. Locke and Mr. Avian from the preexisting trust(s) would be pursuant to the terms of the trust document(s), not pursuant to intestate succession. For the purpose of establishing their interest in the prior trust(s), the purported children were entitled to present proof that they were the children of Mr. Rose and were not time barred.

Davidson County Court of Appeals 06/30/14
Mike Locke and Cvan Avian v. The Estate of David Rose - Dissenting in Part and Concurring in Part
M2012-02508-COA-R3-CV
Authoring Judge: Judge Frank G. Clement , Jr.
Trial Court Judge: Judge David Randall Kennedy

I respectfully dissent from the majority’s conclusion that the plaintiffs are not time barred to establish that they have standing to contest David Rose’s 2006 Trust Agreement. I fully concur with the affirmance of the dismissal of the other underlying cases.

Davidson County Court of Appeals 06/30/14
Mike Locke and Cvan Avian v. The Estate of David Rose
M2012-02508-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge David Randall Kennedy

After the death of David Rose, his two putative non-marital sons became involved in three separate lawsuits related to the proper distribution of his property. When Mr. Rose’s Executrix filed to probate his Will in solemn form, the putative sons, who were named residuary beneficiaries, objected, but later withdrew their objection. They then filed suit to set aside a 2006 Trust Agreement in order to reinstate prior trusts, the assets of which were to be distributed to Mr. Rose’s issue at his death. They also filed a separate lawsuit to establish Mr. Rose as their biological father. Their attempts to obtain some of their father’s assets were all unsuccessful. In all three cases, the trial court held that they were barred from establishing a father-son relationship because their attempts were time barred. We affirm the trial court’s dismissal of the sons’ petition to establish paternity filed in the probate case two years after the order admitting the will to probate. However, we reverse the trial court’s dismissal of the petitioners’ complaint challenging the validity of the 2006 Trust Agreement because they have standing to attempt to establish that they are “issue” of Mr. Rose. The deadline imposed by the trial court applied only “for purposes of intestate succession,” and the trust case did not involve inheritance through the statute regarding heirs of a person dying without a will. Mr. Rose had a will, which was probated. Any assets to be distributed to Mr. Locke and Mr. Avian from the preexisting trust(s) would be pursuant to the terms of the trust document(s), not pursuant to intestate succession. For the purpose of establishing their interest in the prior trust(s), the purported children were entitled to present proof that they were the children of Mr. Rose and were not time barred.

Davidson County Court of Appeals 06/30/14
Brittany Evans, by and through her attorney-in-fact, Mary Evans, her natural mother, v. Jennifer Williams, et al.
W2013-02051-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge R. Lee Moore, Jr.

This is a health care liability action appeal. The case was tried before a jury, resulting in a judgment for the defendant physicians. The trial court excluded the testimony of one of the plaintiff’s expert witnesses on the applicable standard of care after finding that he was not qualified under the locality rule. The plaintiff appealed to this Court arguing, among other things, that the trial court erred in its application of the locality rule. We hold that it was error for the trial court to exclude the witness, but find that any error was harmless under the facts of this case. We therefore affirm.

Gibson County Court of Appeals 06/30/14
In re: Kiara C.
E2013-02066-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson
Trial Court Judge: Judge Telford E. Forgety, Jr.

This is a termination of parental rights case, focusing on Kiara C., the minor child (“Child”) of Mark C. (“Father”) and Pamela B. (“Mother”). On April 9, 2012, Mother and Mother’s husband, Richard B. (“Stepfather”), filed a petition for termination of Father’s parental rights and adoption of the Child by Stepfather. Following a bench trial, the trial court granted the petition for termination upon its finding, by clear and convincing evidence, that Father had abandoned the Child by willfully failing to visit her and willfully failing to provide financial support in the four months preceding the filing of the petition. The court further found, by clear and convincing evidence, that termination of Father’s parental rights was in the Child’s best interest. Father has appealed. We affirm.

Blount County Court of Appeals 06/30/14
Capital Bank v. Oscar Brock, et al.
E2013-01140-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jeffrey M. Atherton

Capital Bank filed a complaint seeking a deficiency judgment against Oscar Brock and Frank E. Cowden, III (“Defendants”) after they defaulted on a loan and following the sale at foreclosure of the property securing the debt. After settlement discussions were unsuccessful, Capital Bank moved for summary judgment. It asserted that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. Defendants contested the motion but only as to the amount of the deficiency and the issue of whether Capital Bank is entitled to an award of attorney’s fees. As a defense to the deficiency claim, Defendants stated that the property was sold at foreclosure for an amount “materially less” than its fair market value and that Capital Bank’s knowledge of the alleged less-than- arketvalue sales price amounted to fraud, collusion or misconduct. The trial court granted Capital Bank’s motion. It was awarded a judgment of $168,798.98 which amount includes 70,628.85 in attorney’s fees. Defendants appeal.  We affirm.

Hamilton County Court of Appeals 06/30/14