Court of Appeals Opinions

Format: 02/25/2017
Format: 02/25/2017
Brittany Noel Nelson, et al v. Charles W. Myres, et al.
M2015-01857-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Joe Thompson

A woman died in a multi-vehicle accident. Two wrongful death actions were filed, one by the woman’s daughter, the other by the woman’s husband. The daughter’s suit named the husband and others as defendants. The husband’s suit named one of the other drivers as the only defendant. The trial court dismissed the daughter’s complaint, holding that Tennessee’s wrongful death statute creates only one cause of action and that the husband, as the surviving spouse, was granted priority to prosecute the action under the statute. The daughter appeals the dismissal of her complaint. Because the husband is unable to name himself as a defendant in the suit he has filed, he is not able to prosecute the wrongful death action in a manner consistent with the right of the decedent to sue all wrongdoers whose actions are alleged to have led to her death; accordingly, we reverse the judgment of the trial court dismissing the daughter’s complaint, reinstate the complaint, and remand the case for further proceedings.

Sumner County Court of Appeals 01/18/17
Kelly D. Bush, et al v. Commerce Union Bank D/B/A Reliant Bank
M2016-00100-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor James G. Martin

Kelly D. Bush and Byron V. Bush, DDS (“the Bushes”) appeal the December 7, 2015 order of the Chancery Court for Williamson County (“the Trial Court”) dismissing their suit against Commerce Union Bank d/b/a Reliant Bank (“Reliant”). We find and hold that the doctrine of prior suit pending applies to this case, and therefore, the Trial Court correctly dismissed this suit. We affirm.

Williamson County Court of Appeals 01/18/17
In Re: Maddox P.
M2016-00569-COA-R3-JV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Barry R. Brown

This appeal arises from a dispute over a residential parenting schedule. Joshua Parker (“Father”) filed a petition against Anna Marsh (“Mother”) in the Juvenile Court for Sumner County (“the Juvenile Court”) seeking to modify the parenting plan regarding their minor child, Maddox (“the Child”). Mother filed a counter-petition. After a hearing, the Juvenile Court made certain modifications to the existing parenting plan but otherwise left it in place. Mother appeals to this Court, arguing in part that the Juvenile Court should have established specific days each month that Father may exercise visitation with the Child. Father, an airline pilot, has a shifting work schedule. We hold that Mother’s requested schedule would have the practical effect of unduly limiting the Child’s time with Father and that the Juvenile Court did not abuse its discretion in denying Mother’s requested modification. We affirm the judgment of the Juvenile Court in its entirety.

Sumner County Court of Appeals 01/17/17
David W. Anderson v. Edward Poltorak, et al
M2015-02512-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This appeal arises from a civil action in which the jury returned a verdict in favor of Plaintiff for injuries sustained in a motor vehicle accident. Defendants appeal contending the trial court committed reversible error by limiting their impeachment of Plaintiff regarding three felony convictions. After applying the balancing test under Tennessee Rule of Evidence 403 to determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, the trial court allowed Defendants “to question the plaintiff about whether he has been convicted of three felonies” but barred any questions about “the details regarding the nature of the convictions, types of convictions or the facts and circumstances surrounding the convictions.” The dispositive issue is whether a party to a civil action has an absolute right under Tennessee Rule of Evidence 609 to impeach a witness with evidence of prior felony convictions including the details regarding the nature of his convictions, the types of convictions, or the facts and circumstances surrounding the convictions. Defendants contend the evidence was admissible as a matter of right under Tennessee Rule of Evidence 609; therefore, the trial court did not have the discretion to conduct a balancing test under Tennessee Rule of Evidence 403. Having determined that the trial judge had the discretion to conduct a balancing test under Tennessee Rule of Evidence 403 and that the court did not abuse its discretion in limiting the scope of Defendants’ impeachment of Plaintiff, we affirm. 

Davidson County Court of Appeals 01/17/17
Jerry Holmes v. City of Memphis Civil Service Commission
W2016-00590-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Walter L. Evans

An employee of the Memphis Fire Department was terminated following his involvement in a physical altercation in which he struck a business associate in the face with a hammer. The City of Memphis Civil Service Commission upheld the termination, and the employee filed a petition for judicial review. The chancery court reversed the termination, holding that the Civil Service Commission erred in not allowing the employee the benefit of Tennessee’s self-defense statute, in excluding certain evidence of disparate treatment, and in entering a decision not supported by substantial and material evidence. Having reviewed the record, we reverse the judgment of the chancery court in all respects and remand the case for such further proceedings as are necessary and consistent with this opinion.

Shelby County Court of Appeals 01/13/17
In re Cameron H.
E2016-01002-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge J. Michael Sharp

The Final Order of Parentage and Adoption in this case reserved the issue of attorney’s fees for further hearing. As such, it is clear that the order appealed from does not resolve all of the issues raised in the proceedings below. As a result, we lack jurisdiction to consider this appeal. 

Polk County Court of Appeals 01/13/17
Hobbs Purnell Oil Company, Inc., et al v. Thomas Butler, et al
M2016-00289-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge David L. Allen

This contract action was initiated by the plaintiff oil company, Hobbs Purnell Oil Company, Inc. (“Hobbs Purnell”), alleging that the defendants, Gedith Butler and Thomas Butler, individually and d/b/a GG’s Market (collectively, “the Butlers”), breached their contract with Hobbs Purnell by failing to pay three invoices for fuel, which had been provided to the Butlers on a consignment basis. The Butlers filed a counterclaim against Hobbs Purnell and a third-party complaint against the president of the oil company, Tommy Porter. Prior to trial, the trial court granted Hobbs Purnell’s motion in limine and excluded all invoices that were not listed in the Butlers’ discovery response. At trial, the Butlers chose to proceed in the action pro se following the trial court’s grant of their previous counsel’s motion for withdrawal. During a bench trial, the trial court excluded the testimony of the Butlers’ expert witness upon finding that they had failed to qualify him as an expert. Ultimately, the trial court entered a judgment in favor of Hobbs Purnell and against the Butlers in the amount of $46,135.93, which included $27,059.10 for the three unpaid invoices plus prejudgment interest in the amount of $19,076.83. The trial court dismissed the Butlers’ counterclaim and third-party complaint. The Butlers thereafter filed two pleadings that were treated collectively by the trial court as a motion for new trial, alleging that the trial judge had violated the Code of Judicial Conduct. The trial court denied the motion for new trial. The Butlers have appealed. Discerning no reversible error, we affirm.

Lawrence County Court of Appeals 01/12/17
Josephine Phelps, et al v. Vern Benke, Jr.
M2015-02212-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Claudia Bonnyman

The appellants Josephine Phelps and Roy Smith (the “Appellants”) filed suit to assert rights to a tract of real property by adverse possession. On appeal, they claim that the trial court erred in concluding that they have no possessory rights to the land at issue. In part, they argue that the appellee’s counterclaim for ejectment was untimely because it was not filed within seven years of the beginning of their adverse possession. We disagree and conclude that the trial court was correct in ordering the Appellants to vacate the disputed property. The Appellants’ petition for adverse possession was filed before they had adversely possessed the property for a total of seven years. Moreover, pursuant to Tennessee Code Annotated section 28-1-114, the appellee’s counterclaim for ejectment related back to the filing of the Appellants’ original petition. We accordingly affirm the judgment of the trial court and remand for further proceedings consistent with this Opinion.

Davidson County Court of Appeals 01/11/17
In re A.B. et al.
E2016-00504-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Larry M. Warner

This is a termination of parental rights case. On December 17, 2014, the Department of Children’s Services filed a petition to terminate the parental rights of M.L.F. (Mother) and H.W.B. (Father) with respect to their two children, A.M.B. (Child 1) and O.R.F. (Child 2) (collectively the Children). As to Mother, the trial court found clear and convincing evidence of three grounds supporting termination – abandonment by failure to establish a suitable home, substantial noncompliance with permanency plans, and persistence of conditions. By the same quantum of proof, the trial court found that termination of Mother’s rights is in the best interest of the Children. As to Father, the trial court held that DCS had failed to prove, by clear and convincing evidence, the alleged grounds of abandonment by wanton disregard, substantial noncompliance with permanency plans, and grounds applicable to a putative father. Consequently, the court declined to terminate Father’s parental rights. Mother and DCS appeal. We reverse the trial court’s holding as to Father and affirm the court’s termination of Mother’s rights.

Cumberland County Court of Appeals 01/11/17
Bettina Luise Lippert Engh v. Daniel James Engh
M2016-00595-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Philip E. Smith

Father appeals the trial court’s designation of Mother as the primary residential parent for their daughter. Applying the factors in Tenn. Code Ann. § 36-6-106(a) to the testimony, the trial court determined, inter alia, that Mother acted as the primary caregiver, formed a stronger emotional bond with the child, and showed a greater willingness to foster a relationship between the child and Father. Following a thorough review of the record, we have determined that the trial court correctly identified and properly applied the relevant legal principles and that the evidence does not preponderate against the trial court’s findings of fact. Accordingly, we affirm the trial court’s decision to make Mother the primary residential parent. 

Davidson County Court of Appeals 01/10/17
Crystal Blackwell, As Next Friend To Jacob Blackwell, A Minor v. Sky High Sports Nashville Operations, LLC.
M2016-00447-COA-R9-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Thomas W. Brothers

In this interlocutory appeal, the defendant trampoline park argues that the trial court erred by refusing to enforce a forum selection clause, a choice of law provision, and a waiver of liability and indemnity clause against the minor plaintiff. Additionally, the minor plaintiff argues that the trial court erred in denying his motion to alter or amend his complaint to allow him to claim pre-majority medical expenses. We reverse the trial court’s denial of the minor plaintiff’s motion to amend only to the extent that the minor plaintiff may be permitted to assert pre-majority medical expenses that were paid by him or that he is legally obligated to pay. We affirm the trial court in all other respects. Affirmed in part, reversed in part, and remanded.

Davidson County Court of Appeals 01/09/17
Matthew Wheeler Mabie, MD v. Carla Jennings Mabie
W2015-01699-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Gina C. Higgins

This case arises out of a divorce action. After fourteen years of marriage, the husband filed a complaint for divorce. Following a brief and unsuccessful attempt at reconciliation, the wife filed a counter-claim for divorce. Throughout the marriage, the husband worked as a medical doctor and was a partner in a highly successful medical practice. The wife's primary role in the family was as a stay-at-home mother. The trial court declared the parties divorced and awarded the wife, among other things, rehabilitative alimony, alimony in futuro, and attorney's fees. The husband appeals the trial court's awards of alimony, the valuation of his interest in his medical practice, the award of attorney's fees to the wife, and the court's decision to not punish the wife for civil contempt of court. The wife seeks attorney's fees for defending this appeal. Discerning no reversible error, we affirm the judgment of the trial court. We deny the wife's request for attorney's fees on appeal.

Shelby County Court of Appeals 01/09/17
In re Yariel S., et al.
E2016-00937-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Timothy E. Irwin

This appeal involves the termination of a mother's parental rights to her four minor children. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of her rights to all four children on the statutory grounds of abandonment for failure to provide a suitable home, the persistence of conditions which led to removal, and substantial noncompliance with the requirements of the permanency plan. The court also found that clear and convincing evidence existed to support the termination of her rights to the youngest child on the statutory ground of severe child abuse. The court further found that termination was in the best interest of the children. The mother appeals. We reverse the trial court on its finding of abandonment for failure to provide a suitable home. On all other findings, we affirm the trial court's rulings.

Knox County Court of Appeals 01/06/17
Robert Emilio Cisneros v. Lindsey Dianna Cisneros
M2016-02426-COA-T10B-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Franklin L. Russell

This is an accelerated interlocutory appeal as of right from the denial of a motion for recusal. Because the petition for recusal appeal fails to comply with Tennessee Supreme Court Rule 10B, we dismiss the appeal.

Lincoln County Court of Appeals 01/06/17
Chazz Alden Hughes, et al. v. R Allen Hughes
E2016-00561-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John C. Rambo

This appeal concerns a dispute over the proceeds of a decedent's federal group life insurance policy. The decedent presumably intended to designate his brother, the appellee in this matter, as the sole beneficiary. The appellants, children of the decedent, allege fraud on the part of the brother and seek to impose a constructive trust upon the funds he received. The trial court granted summary judgment for the brother based on the application of the federal preemption doctrine as well as the Tennessee and federal law of fraud and the Tennessee Rules of Evidence. The appellants appeal. We affirm.

Carter County Court of Appeals 01/05/17
Valerie Israel, et al. v. Bryan York, et al.
E2016-02312-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge James Lauderback
The pro se appellants, Bryan York and Anna Eastwood, appeal from a final order entered on October 17, 2016. The Notice of Appeal was not filed until November 18, 2016, more than thirty (30) days from the date of entry of the final order. The appellees, Valerie Israel and Russ Israel, have filed a motion to dismiss this appeal arguing, among other things, that the Notice of Appeal was not timely filed. Because it appears from the attachments to the motion that the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal and grant the motion to dismiss.
 
Washington County Court of Appeals 01/04/17
Greer Craig et al. v. Peoples Community Bank
E2016-00575-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John C. Rambo

The plaintiffs, Greer Craig and Lana Kaye Craig, brought an action against Peoples Community Bank (the Bank). Their cause of action is essentially identical to Mr. Craig’s two prior actions, each of which previously had been dismissed with prejudice and not appealed. In the present action, the trial court applied the doctrines of res judicata and collateral estoppel and granted the Bank summary judgment. We affirm. Furthermore, we find this appeal to be frivolous. Accordingly, we remand this case to the trial court so it can award the Bank its reasonable attorney’s fees and expenses on appeal.

Washington County Court of Appeals 12/30/16
Sonya Mae Stanley v. Colin Richard Stanley
M2015-01964-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Phillip R. Robinson

This appeal arises from a father’s petition to relocate with his minor children.  The father sought to relocate to Oklahoma in order to work on his family’s farm, which he hoped to eventually inherit.  The father, as the parent spending the greater amount of time with the children, sent the children’s mother a notice of intent to move.  The father then filed a petition to relocate with the minor children to Oklahoma.  The trial court concluded that, because he was the petitioner, the father bore the burden of proof on whether the move was for a reasonable purpose.  After both parents presented their proof, the trial court denied the request to relocate.  The court found the father lacked a reasonable purpose for the proposed move.  Because we conclude the burden of proof rested with the mother, we vacate and remand for further proceedings.

Davidson County Court of Appeals 12/30/16
In re Renaldo M. Jr., et al.
M2016-00472-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Tim Barnes

The trial court terminated the parental rights of a Mother to her three children on the grounds of abandonment by engaging in conduct evidencing a wanton disregard for the children’s welfare and persistence of conditions.  Mother appeals, contending that the evidence is insufficient to sustain the termination of her rights.  Concluding that the evidence of Mother’s pre-incarceration conduct does not clearly and convincingly prove a wanton disregard for the children’s welfare, we reverse the trial court’s finding in that regard.  There is clear and convincing evidence supporting holding that the conditions which led to the children’s removal from Mother’s custody persisted and that termination of her rights is in the best interest of the children; accordingly, we affirm the termination of Mother’s rights on that ground.

Montgomery County Court of Appeals 12/30/16
Hyundai Motor America v. Tennessee Motor Vehicle Commission, et al.
M2015-01411-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal arises from a proceeding initiated by two automobile dealers who challenged the location of a proposed dealership in a contested case proceeding before the Tennessee Motor Vehicle Commission (the “Commission”); the manufacturer contended that the dealers were not located in the “relevant market area,” as required by statute and moved to dismiss the proceeding for lack of standing.  The administrative law judge overruled the manufacturer’s motion, and the manufacturer filed a petition in Chancery Court seeking interlocutory review.  The trial court dismissed the petition, holding that the court lacked jurisdiction to review the administrative judge’s ruling on the motion.  The motor vehicle manufacturer appeals the dismissal of its petition for judicial review of the denial of its motion to dismiss the contested case proceeding. Concluding that the manufacturer did not meet the threshold requirement for immediate judicial review as set forth in the Administrative Procedures Act, we affirm the judgment of the trial court.

Davidson County Court of Appeals 12/30/16
In re Cheyanna B.
E2016-01503-COA-R3-PT
Authoring Judge: D. Michael Swiney
Trial Court Judge: Judge Dennis "Will" Roach, II
John B. (“Father”) appeals the order of the Juvenile Court for Jefferson County (“the Juvenile Court”) terminating his parental rights to the minor child Cheyanna B. (“the Child”) after finding and holding that grounds for termination for abandonment by wanton disregard pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(iv) were proven by clear and convincing evidence and that it was proven by clear and convincing evidence that termination was in the Child’s best interest. We find and hold that the evidence does not preponderate against the Juvenile Court’s findings made by clear and convincing evidence, and we affirm.
 
Jefferson County Court of Appeals 12/29/16
Demquarter Healthcare Investors, L.P. v. OP Chattanooga, LLC, et al.
E2016-00031-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jeffrey M. Atherton

This case involves the lease of a skilled nursing facility. The lessee assigned the lease, and the assignee then subleased the nursing facility. While the appeal raises multiple issues, we have determined that the lessor prevails and that the judgment of the trial court must be reversed and the case remanded.

Hamilton County Court of Appeals 12/29/16
Ken Buckner, et al. v. Mike Goodman, et al.
E2016-00150-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jerri S. Bryant

This case involves a contract to purchase a home on the sellers‟ condition that the home be removed from the sellers‟ real property at the buyers‟ expense. The sellers and the buyers entered into a written contract on January 25, 2013, at which time the buyers paid a $2,500 deposit toward an agreed price of $5,000 for the home. The contract did not set forth a deadline for the home to be removed from the sellers‟ property, although the sellers were required to demonstrate to the lender financing their new construction loan that the home had been removed. The buyers contacted several potential house movers to transport the home but did not execute a final written contract with any of them. The sellers subsequently entered into a written agreement with movers who had originally been contacted by the buyers, retaining the movers to “take possession” of the home and transport it but providing the original buyers a first option to purchase. After learning of the agreement between the sellers and the movers, the buyers contacted the movers, “firing” them. The sellers then had the home demolished. The buyers filed a complaint against the sellers, alleging breach of a home sales contract. The sellers filed a counter-complaint, alleging that the buyers had materially breached the contract first by failing to timely remove the home. The buyers subsequently filed a second complaint against the movers, alleging intentional interference with contractual relations. The trial court consolidated the two actions. Following presentation of the buyers‟ proof during a bench trial, the trial court found that the buyers had materially breached the contract. The court granted the sellers‟ and the movers‟ respective motions for involuntary dismissal pursuant to Tennessee Rule of Civil Procedure 41.02. Upon hearing the sellers‟ evidence regarding damages, the court entered a judgment in favor of the sellers in the amount of $5,200, comprised of $7,700 in total damages offset by the $2,500 previously paid by the buyers. The buyers timely appealed. Discerning no reversible error, we affirm.

Bradley County Court of Appeals 12/29/16
In re Yariel S., et al.
E2016-00939-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Timothy E. Irwin
This appeal arises from a termination of parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Knox County (“the Juvenile Court”) seeking to terminate the parental rights of Yaron L. (“Father”) to his four minor children Yariel, Yaron, Yariyana, and YariAsia (“the Children”). After a trial, the Juvenile Court terminated Father’s parental rights on the grounds of persistent conditions and substantial noncompliance with the permanency plan. The Juvenile Court also found that termination of Father’s parental rights was in the Children’s best interest. Father appeals to this Court. Father argues that he was not properly notified of the trial, that counsel should have been appointed, and that termination of his parental rights is not in the Children’s best interest. We hold that that the evidence in the record on appeal shows, as found by the Juvenile Court, that Father was notified of trial, that Father failed to appear at trial, and that the Juvenile Court did not err in declining to appoint Father counsel when he failed to appear. We also find and hold that the Juvenile Court’s determinations regarding grounds for termination and the Children’s best interest are supported by clear and convincing evidence. We affirm the judgment of the Juvenile Court.
 
Knox County Court of Appeals 12/29/16
In Re: Neylan H.
E2015-02444-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Douglas T. Jenkins

Terri W.H. (“Mother”) and Justin H. (“Stepfather”) filed a petition seeking to terminate the parental rights of James P. (“Father”) to the minor child Neylan H. (“the Child”) in order to allow Stepfather to adopt the Child. After a trial, the Circuit Court for Greene County (“the Trial Court”) entered its order denying the petition after finding and holding, inter alia, that Mother and Stepfather had failed to prove by clear and convincing evidence that Father had abandoned the Child by willful failure to provide support. Mother appeals to this Court. We find and hold that the evidence does not preponderate against the findings made by the Trial Court, and we affirm.

Greene County Court of Appeals 12/29/16