Court of Appeals Opinions

Format: 08/04/2020
Format: 08/04/2020
Anthony D. Herron v. State of Tennessee
W2020-00776-COA-T10B-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Commissioner James A. Hamilton, II

This is an accelerated interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B, from the trial court’s denial of a motion for recusal. Having reviewed the petition for recusal appeal, pursuant to the de novo standard as required under Rule 10B,
§ 2.01, we affirm the claims commissioner’s decision to deny the motion for recusal.

Court of Appeals 06/25/20
In re Shyanne H. et al.
M2019-02127-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Sharon Guffee

This is a termination of parental rights case brought by the Tennessee Department of Children’s Services. The juvenile court terminated the parental rights of the mother and the father on the grounds of persistence of conditions and severe child abuse, pursuant to Tennessee Code Annotated sections 36-1-113(g)(3) and 36-1-113(g)(4), respectively. The juvenile court also terminated the father’s parental rights on the additional ground of severe child abuse pursuant to Tennessee Code Annotated section 36-1-113(g)(5). The Mother appealed the grounds for termination as well as the juvenile court’s finding that termination was in the children’s best interests, while the father only appealed the juvenile court’s best interests finding. Discerning no reversible error, we affirm.

Williamson County Court of Appeals 06/25/20
In Re Estate of Doris Marie Sublett Dorning
M2020-00787-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Michael E. Spitzer

A Tennessee Supreme Court Rule 10B petition for recusal appeal was filed in this Court following the trial court’s denial of a motion for recusal. For the reasons stated herein, we affirm the trial court’s denial of the motion.

Lewis County Court of Appeals 06/25/20
James V. Holleman v. Barbara J. Holleman
E2019-02163-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

This is the second appeal of this case. In Holleman v. Holleman, No. E2018-00451- COA-R3-CV, 2019 WL 2308066 (Tenn. Ct. App. May 30, 2019), this Court remanded the case to the trial court for the sole purpose of determining the amount of Husband’s reasonable attorney’s fees and expenses under the parties’ Marital Dissolution Agreement. On remand, Appellee/Husband provided an attorney affidavit and timesheets to support his request for $11,260.00 in fees. Appellant/Wife provided no evidence to dispute the amount, and the trial court entered judgment for Husband for the full amount. Wife contends that she did not receive proper notice of the hearing on Husband’s motion and further contends that the trial court erred in awarding Husband his attorney’s fees and expenses. Discerning no error, we affirm.

Knox County Court of Appeals 06/25/20
Janet Tidwell v. Holston Methodist Federal Credit Union, et al.
E2019-01111-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kristi M. Davis

Former CEO brought an action for libel, false light invasion of privacy, and retaliatory discharge pursuant to the Tennessee Public Protection Act. In this appeal from the trial court’s dismissal of the amended complaint pursuant to Tennessee Rule of Civil Procedure 12.02(6), we affirm the trial court.

Knox County Court of Appeals 06/25/20
Thomas Robert Blakemore v. Lynn Ann Blakemore
W2018-01391-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Carma Dennis McGee

This divorce action concerns the trial court’s division of the marital estate, calculation of child support, and its denial of alimony and attorney fees. We affirm in part, vacate in part, and remand for proceedings consistent with this opinion.

Henry County Court of Appeals 06/25/20
In Re Conservatorship of John Martin Muldoon
E2019-01621-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Larry Michael Warner

This appeal arises from a petition to appoint a conservator under Tennessee Code Annotated section 34-1-121. The petitioner/wife was originally appointed as conservator of respondent/husband in October 2018. Thereafter, the parties could not agree on an appropriate Statement of Evidence. The trial court ordered a new hearing so a court reporter could be present to provide a Transcript of Evidence. The respondent filed an appeal to this Court, which was dismissed for lack of appellate jurisdiction due to the non-final order. A new hearing took place in July 2019. The trial court found petitioner met her burden under Tennessee Code Annotated sections 34-1-101(7) and 34-1-126 and appointed the petitioner as conservator over the respondent’s person and property. The respondent appealed.

Cumberland County Court of Appeals 06/25/20
Anthea Hendrix Toutges v. Jennifer McKaig
E2019-01538-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor M. Nichole Cantrell

The Notice of Appeal filed by the appellant, Anthea Hendrix Toutges, stated that the appellant was appealing the judgment entered on August 19, 2019. As the August 19, 2019 order does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

Anderson County Court of Appeals 06/25/20
Kayla Rawson v. William A. Monroe
M2019-00472-COA-R3-JV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Donna Scott Davenport

This case involves modification of a permanent parenting plan. The father has appealed, arguing that the trial court’s order does not contain a sufficient best interest analysis or the requisite factual findings to support its decision. We have concluded that the order contains sufficient factual findings and the required best interest analysis. The father did not provide a transcript or statement of the evidence presented before the trial court that would enable us to review the evidentiary basis for the trial court’s findings. As such, we must affirm the decision of the juvenile court. We grant Mother’s request for an award of attorney’s fees on appeal.

Rutherford County Court of Appeals 06/24/20
Steven Sudbury v. Sumner County Regional Airport Authority
M2019-01322-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Judge Kathryn Wall Olita

The plaintiff filed this action against his employer for breach of contract by failing to provide the plaintiff with severance pay after the employer terminated the contract without cause. The trial court granted summary judgment to the plaintiff, determining that it was undisputed that the plaintiff was terminated without cause, which entitled him to severance pay pursuant to the employment contract. On appeal, the defendant argues that a genuine issue of material fact exists and that the trial court erred in granting the plaintiff’s motion for summary judgment by failing to conduct an objective inquiry as to whether cause was present to terminate the plaintiff’s employment. We affirm the judgment of the trial court.

Sumner County Court of Appeals 06/24/20
JENNIFER BLAIR DEMATTEO TURK v. MICHAEL JOSEPH TURK, JR.
M2019-00869-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge J. Mark Rogers

This divorce action concerns the trial court’s setting of the residential schedule and calculation of child support. We affirm the trial court’s judgment on both issues and also deny the competing requests for attorney fees on appeal.

Rutherford County Court of Appeals 06/24/20
Geneva Jessica Day v. Beaver Hollow L.P., Et Al.
E2019-01266-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jean A. Stanley

This appeal concerns a jury verdict in a slip and fall case. Geneva Jessica Day (“Plaintiff”), a resident of Beaver Hollow Apartments (“the Apartments”), sued Beaver Hollow L.P. (“BHLP”), which owned the Apartments, as well as Olympia Management, Inc. (“Olympia”) (“Defendants,” collectively), the entity BHLP contracted with to manage the Apartments, in the Circuit Court for Washington County (“the Trial Court”). Plaintiff was injured when she slipped on ice and snow in the Apartments’ parking lot. The jury allocated 49% of the fault to Plaintiff, 50% to Olympia, and 1% to BHLP. Defendants appeal. Defendants argue, among other things, that no material evidence supports the jury’s allocation of fault to BHLP. After a careful review of the record, we find no material evidence to support the jury’s verdict regarding BHLP, which exercised no actual control of the premises whatsoever. The Trial Court erred in denying Defendants’ motion for a directed verdict with respect to BHLP. As we may not reallocate fault, we vacate the judgment of the Trial Court, and remand for a new trial.

Washington County Court of Appeals 06/22/20
Ski Chalet Village Owners Club, Inc. v. Richard Pate Et Al.
E2019-00982-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert E. Lee Davies

Following a jury trial in the underlying contract action and upon a verdict finding misrepresentation/concealment, the trial court entered a monetary judgment in favor of the plaintiff, Ski Chalet Village Owners Club, Inc. (“Ski Chalet”), and against the defendants, Richard Pate and Clint Bowman d/b/a P&B Construction & Remodeling, and J. Ron Dillmon, jointly and severally, in the amount of $166,401.26 for compensatory damages plus $190,000.00 in punitive damages.1 The trial court also awarded to Ski Chalet a $1,000.00 judgment against Mr. Dillmon on a separate claim of defamation. Upon Mr. Dillmon’s subsequent pro se motion, the trial court denied his request for a new trial, finding, inter alia, that Mr. Dillmon had failed to meet his burden of providing a valid excuse for his failure to appear at trial, failed to file any pleadings stating the reason for his failure to appear, and refused to testify under oath when given an opportunity to explain his failure to appear. In addition, the trial court found that an affidavit executed by a physician who had treated Mr. Dillmon, which Mr. Dillmon had filed with his motion for a new trial, did not sufficiently support a valid reason for Mr. Dillmon’s failure to appear. The trial court subsequently denied a motion filed by Mr. Dillmon for production of the trial transcript. Concerning a motion for the trial court judge’s recusal and a motion for contempt against opposing counsel filed by Mr. Dillmon after he had filed a notice of appeal, the trial court entered an order finding that it did not have subject matter jurisdiction to consider either motion. Mr. Dillmon has appealed. Discerning no reversible error, we affirm. Upon an issue raised by Ski Chalet, we decline to find the appeal frivolous and deny Ski Chalet’s request for attorney’s fees and expenses on appeal.

Sevier County Court of Appeals 06/19/20
Kenneth K. Altom, Jr. Et Al. v. Capital Resorts Group, LLC Et Al.
E2019-00739-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor John F. Weaver

This is an appeal from an order denying the defendants’ motions seeking to compel the parties to participate in mandatory arbitration. The trial court denied the motions to compel arbitration with respect to “the issue of the unconscionability of the precise agreement to arbitrate or delegation to arbitration” and “the issue of cancellation of the purchase agreements,” finding that such issues presented questions for the court rather than an arbitrator. The trial court also determined that the defendants had not waived their right to arbitration. The defendants timely appealed. Discerning no reversible error, we affirm the trial court’s judgment.

Knox County Court of Appeals 06/19/20
In Re Johnathan T. Et Al.
E2019-01398-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Amanda Sammons

Jodie T. (“Mother”) appeals the termination of her parental rights to the minor children, Johnathan T., Jaylynn T., Jayla T., Johnna T., and Jaydan T. (collectively, “the Children”). In January 2019, the Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate Mother’s rights to the Children in the Campbell County Juvenile Court (“Juvenile Court”). Following a hearing in June 2019, the Juvenile Court terminated Mother’s parental rights after finding that DCS had proven the statutory ground of substantial noncompliance with the permanency plans and that termination of Mother’s parental rights was in the Children’s best interest. Mother timely appealed. Discerning no reversible error, we affirm.

Campbell County Court of Appeals 06/18/20
In Re Allyson P. - Concurring and Dissenting
E2019-01606-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Kenlyn Foster

I 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. 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 concur in all the rest of the majority’s opinion including termination of the father’s parental rights. Given this Court’s 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.

Blount County Court of Appeals 06/17/20
In Re Allyson P.
E2019-01606-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Kenlyn Foster

A mother’s parental rights to her daughter were terminated on four grounds and on the trial court’s finding that termination was in the child’s best interest. Upon our review, we conclude that the record does not support the court’s determinations with respect to two of the grounds or the holding that termination of the mother’s rights was in the best interest of the child. While we affirm two of the grounds upon which the court terminated Mother’s rights, our reversal of the holding that termination of the mother’s rights was in the child’s best interest requires that the judgment be reversed and the petition dismissed.

Blount County Court of Appeals 06/17/20
First Century Bank v. Edward Duyos
E2019-01441-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge John D. McAfee

This appeal arises from a writ of garnishment issued by a Tennessee court against a Florida resident, garnishing wages he earned in Florida while working for an Ohio corporation that is registered to do business in Tennessee. The writ of garnishment was served on the employer’s registered agent for service of process in Tennessee, and the employer answered the writ without objection. The debtor timely filed a motion to terminate the garnishment, asserting that Florida law exempted his wages from collection. Following a hearing, the trial court concluded, sua sponte, that it lacked “jurisdiction” to issue a garnishment order because the debtor “lives in Florida and works full time in Florida.” This appeal followed. We have determined that the debtor waived the issue of personal jurisdiction by consenting to the court’s authority. We have also determined that the trial court has the authority to issue the garnishment order against the nonresident debtor’s employer with respect to a debt owed to the nonresident debtor because the employer is authorized to do business in Tennessee and has an agent upon whom process may be served. Therefore, we reverse the judgment of the trial court and remand this matter with instructions for the trial court to determine, inter alia, whether the debtor is entitled to an exemption under Florida or Tennessee law, and if so, to what extent, and to enter judgment accordingly.

Claiborne County Court of Appeals 06/16/20
In Re Estate of Samuel Dattel
W2019-00800-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Karen D. Webster

Decedent died in 2015 and his widow submitted his latest will for probate in March 2016. Children from a prior marriage filed a will contest in August 2016, alleging a will dating from 1984 constituted Decedent’s last will and testament and all later wills were the result of fraud and undue influence. The widow and her children challenged the will contest on various grounds, all of which the probate court rejected. The probate court entered an order directing the court clerk to certify the will submitted to probate in addition to three earlier original wills and a partial codicil to the circuit court for a trial to determine which document(s), if any, constituted Decedent’s last will and testament. We affirm the decision of the probate court.

Shelby County Court of Appeals 06/12/20
John E. Coolidge, Jr. v. Elizabeth M. Keene, Et Al.
E2019-01278-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jeffrey M. Atherton

This appeal concerns whether certain easements were abandoned. John E. Coolidge, Jr. (“Mr. Coolidge”) is a neighbor of Elizabeth M. Keene (“Ms. Keene”) and Christopher P. Keene, II (“Mr. Keene”) (“the Keenes,” collectively). Pursuant to recorded easements, the Keenes may use a driveway to access an old garage encroaching on Mr. Coolidge’s property. However, the garage was damaged by fire many years ago and never repaired or rebuilt by the Keenes’ predecessors. When the Keenes sought to repair or rebuild the garage, Mr. Coolidge sued them in the Chancery Court for Hamilton County (“the Trial Court”). Mr. Coolidge argued that both the driveway and encroachment easements had been abandoned, largely because the garage was in ruins for such a long time. A bench trial was held. The Trial Court found that, notwithstanding the passage of time, the easements had not been abandoned, and the Keenes could proceed with their plans. Mr. Coolidge appeals, and the Keenes raise their own issues as well. Discerning no reversible error, we affirm the judgment of the Trial Court in all respects.

Hamilton County Court of Appeals 06/12/20
In Re Jessica V., et al.
W2019-01700-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Senior Judge William B. Acree

The trial court terminated a father’s parental rights to his children on the grounds of (1) abandonment by willful failure to visit, (2) abandonment by willful failure to support, (3) abandonment by engaging in conduct prior to incarceration that exhibits a wanton disregard for the children’s welfare, and (4) failure to manifest an ability and willingness to personally assume custody of or financial responsibility of the children. The trial court also found that termination of the father’s parental rights was in the best interest of the children. Finding clear and convincing evidence in support of the trial court’s determinations, we affirm.

Hardin County Court of Appeals 06/12/20
Jamie Faucon v. Michael Mgridichian
E2019-01343-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Gregory S. McMillan

This case involves a violation of an ex parte order of protection. The order required the respondent to refrain from contacting the petitioner in any way, including electronic communication. The trial court found the respondent in criminal contempt for violating the order by contacting Petitioner over “amateur radio” on three separate occasions. Respondent appealed, asserting the trial court lacked jurisdiction over the case and that he did not receive sufficient notice of the criminal contempt charges. We affirm the trial court and remand.

Knox County Court of Appeals 06/11/20
Barbara Ann Shelton et al. v. Mary F. Eden
M2019-01295-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Laurence M. McMillan Jr.

The maker of three promissory notes claims that the third promissory note was intended to consolidate and discharge the earlier notes. When the holders of the two earlier notes filed suit to collect, the maker raised discharge as a defense. The trial court granted the maker summary judgment. Because the maker failed to meet her burden to show that she was entitled to judgment as a matter of law, we reverse.

Davidson County Court of Appeals 06/10/20
Jeffrey Scott Widby v. The City of East Ridge, TN, Et Al.
E2019-01282-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Jeffrey Hollingsworth

Pro se appellant appeals the trial court’s dismissal of the complaint pursuant to Tennessee Rule of Civil Procedure 12.02(6). We affirm the trial court.

Hamilton County Court of Appeals 06/09/20
IN RE: KAMBRI P. ET AL.
M2019-01352-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Michael Meise

This is a termination of parental rights case. Appellants, mother and father, appeal the trial court’s termination of their respective parental rights to the two minor children. The court terminated mother’s parental rights on the grounds of: (1) abandonment by failure to provide a suitable home; (2) failure to substantially comply with the requirements of the parenting plans; and (3) persistence of the conditions that led to the children’s removal. The trial court terminated father’s parental rights on the grounds of: (1) abandonment by failure to provide a suitable home; (2) abandonment by an incarcerated parent by wanton disregard; (2) persistence of the conditions that led to the children’s removal; and (3) severe child abuse. The trial court also found that termination of appellants’ parental rights was in the children’s best interest. Discerning no error, we affirm.

Dickson County Court of Appeals 06/04/20