Court of Appeals Opinions

Format: 09/02/2015
Format: 09/02/2015
Susan Lee Phillips, Executrix and Surviving Spouse of Robert Wayne Phillips, Deceased v. Gary Q. Casey, M.D., et al.
E2014-01563-COA-R9-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge E. G. Moody

This is a health care liability action. The plaintiff's late husband died following a bilateral tonsillectomy surgery. An autopsy determined that the cause of death was angioedema. The plaintiff filed suit against the defendants exactly one year after her husband's death. The complaint did not comply with the pre-suit notice requirements for health care liability suits. The plaintiff voluntarily dismissed the suit without prejudice and re-filed suit. The defendants moved to dismiss, claiming that the re-filed suit was barred. The trial court denied the motion to dismiss and a subsequent motion to reconsider but granted permission to file an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. We granted permission to appeal and now affirm the decision of the trial court.

Sullivan County Court of Appeals 07/21/15
Jeffery G. Douglas v. Jackson Police Department
W2014-02076-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Nathan B. Pride

Plaintiff/Appellant appeals the trial court’s order dismissing his claim under the Equal Protection Clause. Appeal dismissed for failure to comply with Rule 27 of the Rules of Appellate Procedure.

Madison County Court of Appeals 07/20/15
Heather Anne Gulish Gladwell v. Tony Neil Gladwell, Jr. PARTIAL DISSENT
W2014-01095-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Donald P. Harris

J. STEVEN STAFFORD, Dissenting in Part.
I concur in the majority opinion with regard to all issues save one—the reversal of the attorney fee award to Husband. On this point, I must respectfully file this partial dissent.

Henry County Court of Appeals 07/20/15
Heather Anne Gulish Gladwell v. Tony Neil Gladwell, Jr.
W2014-01095-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donald P. Harris

Husband appeals the trial court's division of property, award of rehabilitative alimony, and allocation of the federal tax deduction applicable to the parties' children in this divorce action. Wife also appeals the trial court's property division and additionally appeals its award of attorney's fees as alimony in solido to Husband. We affirm the trial court's property division, award of rehabilitative alimony to Husband, and allocation of the federal tax deduction to Wife. We reverse the award of alimony in solido to Husband. This matter is remanded to the trial court for entry of an order setting Wife's child support obligation in a definite amount as required by Tennessee Code Annotated § 36-5-101(a)(2).

Henry County Court of Appeals 07/20/15
In re Mason M.
M2014-02569-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Stella L. Hargrove

Mother appeals the termination of her parental rights; Father surrendered his parental rights prior to trial. The trial court found that four grounds for termination of Mother’s parental rights had been established. Mother does not challenge any of the grounds for her termination; instead, she contends that the termination was not in the child’s best interests. Finding no error, we affirm.

Lawrence County Court of Appeals 07/17/15
Iris Teresa Bowling Chambers v. Faye Bowling Devore, et al.
W2013-02827-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

This is an appeal from the denial of Appellant’s Tennessee Rule of Civil Procedure 60.02 motion. Appellee, Appellant’s law firm, filed an attorney’s lien against real property that was awarded to Appellant by partition in the underlying case. The trial court set the amount of the lien based on the commissioners’ valuation of the real property. Appellant disputed the amount of attorney’s fees by filing a motion to compel arbitration, in which she specifically argued that, under their contract, the parties were required to arbitrate any dispute concerning the amount of attorney’s fees. The trial court did not specifically rule on Appellant’s motion to compel arbitration, but inferentially denied the motion when it granted Appellee’s motion to sell the property to satisfy the previously granted attorney’s lien. Appellant then filed a Rule 60.02 motion for relief from the order enforcing the attorney’s lien. Her motion was denied, and she appeals. Although the attorney’s lien is valid, we conclude that the trial court erred in enforcing the lien as a judgment when there was a dispute concerning the enforceability of the parties’ contract, the amount of attorney’s fees, and the proper means of calculating those fees. Accordingly, we vacate the order enforcing the attorney’s lien in the amount awarded and remand the case for an evidentiary hearing to resolve the questions concerning the parties’ contract and to determine the proper amount of attorney’s fees, which may then be enforced against the lien. Vacated and remanded.

Fayette County Court of Appeals 07/17/15
In re Sonya M.
M2015-00064-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert E. Burch

The issue in this case is whether former foster parents have standing to bring an action for termination of parental rights and adoption of children formerly in their care. We hold, as did the trial court, that former foster parents do not have standing to do so.

Dickson County Court of Appeals 07/16/15
Timothy John McCormick v. Stephanie Renee Crouch McCormick
M2014-00457-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Larry B. Stanley, Jr.

Husband in divorce action appeals trial court’s division of marital property and award of alimony in futuro to Wife. We affirm the trial court’s division of marital property; we vacate the award of alimony in futuro and remand to the trial court for reconsideration.

Warren County Court of Appeals 07/16/15
Michael J. Karel, et al. v. William Steven Cummings, et al.
W2014-01063-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Martha Brasfield

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

Tipton County Court of Appeals 07/16/15
In re Marcell W. Concur
W2014-02120-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert Samual Weiss

I concur in the majority's conclusion that clear and convincing evidence exists to support the trial court's finding that Mother committed severe abuse. I write separately, however, to respond to the relevance of my good friend and colleague's discussion of Mother's waiver of her challenge to the Special Judge's appointment in the juvenile court. The opinion states that because Mother did not raise her objection to the appointment of the Special Judge in the juvenile court, the issue is deemed waived. In support of this position, the opinion relies, in part, on this Court's decision in State Department of Children’s Services v. A.M.H., 198 S.W.3d 757 (Tenn. Ct. App. 2006). In the A.M.H. decision, this Court held that the failure to object to the appointment of a special judge results in a waiver of the issue on appeal. Id. at 764. I believe, to avoid confusion, the relevance of A.M.H. to the facts of this case requires clarification.

Shelby County Court of Appeals 07/16/15
In re Marcell W.
W2014-02120-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert Samual Weiss

This appeal results from a dependency and neglect action initiated in the Shelby County Juvenile Court. The juvenile court found that the child was dependent and neglected. The juvenile court also found that the child's severe injuries constituted severe child abuse perpetrated by the child's mother. On appeal, the circuit court affirmed. Discerning no error, we also affirm.

Shelby County Court of Appeals 07/16/15
Larry Todd Hoover v. Morgan Siera Hoover
E2014-01629-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge William R. Brewer

This post-divorce appeal presents the issue of whether the trial court erred in its modification of the parties' permanent parenting plan. The parties were married on March 28, 2009, with one child subsequently born of the marriage. The parties were divorced by final judgment dated August 25, 2011. The trial court concomitantly entered a permanent parenting plan, naming the mother primary residential parent and granting the father co-parenting time of 105 days per year with the child. Approximately eight months later, the father filed a motion seeking modification of the parties' permanent parenting plan, alleging that he had been exercising and should have been awarded at least fifty-percent co-parenting time with the child. Following a hearing conducted on July 31, 2013, the trial court temporarily modified the co-parenting schedule to award each parent equal time with the child. The court reserved the issue of a permanent residential schedule for further hearing. At a subsequent hearing conducted on June 24, 2014, the trial court considered a modification to the permanent parenting plan due to the child's having reached kindergarten age. Upon hearing proof regarding the child's best interest, the trial court entered an order maintaining the mother's status as primary residential parent and awarding the father 105 days of co-parenting time per year. Father timely appealed. Discerning no error, we affirm.

Blount County Court of Appeals 07/16/15
Randy R. Moss, Jr. v. Dan P. Evans et al.
E2014-02277-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jeffrey M. Atherton

This appeal arises from an election contest. Randy R. Moss, Jr. (“Moss”) ran against Dan P. Evans (“Evans”) for the office of Chief Administrative Officer of the McMinn County Highway Department (“Highway Commissioner”). Evans won. Moss filed an election contest in the Chancery Court for McMinn County (“the Trial Court”) challenging Evans' statutorily required qualifications to hold the office. Moss also sued the McMinn County Election Commission and its officials (“the Election Commission,” collectively) in the same action. Evans and the Election Commission filed motions to dismiss. The Trial Court granted the motions to dismiss, holding that Moss was required to have challenged Evans' certification as a qualified candidate before the Tennessee Highway Officials Certification Board (“the THOCB”) and that Moss could not now challenge Evans' qualifications by an election contest. Moss filed this appeal. We affirm the Trial Court in its dismissing the complaint against the Election Commission, which acted only in a ministerial capacity. We hold, however, that the Trial Court erred in concluding that it had no jurisdiction to hear Moss's challenge to Evans' qualifications. We affirm, in part, and, reverse, in part, the judgment of the Trial Court, and remand this case to proceed against defendant Evans.

McMinn County Court of Appeals 07/16/15
Kathryne B.F. v. Michael David B.
W2014-01863-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Karen R. Williams

This appeal arises from post-divorce proceedings. When the parties divorced in 2008, Mother was designated primary residential parent of the parties' one-year-old son. Mother later remarried and sought permission to relocate to Australia with the child. Following a hearing in 2011, the trial court denied Mother's request to relocate and changed the designation of primary residential parent to Father. Mother moved to Australia with her new husband. Mother instituted this proceeding in 2013, alleging that a material change in circumstance has occurred and that it is in the child's best interest to live with her in Australia. The trial court considered testimony over the course of four days and eventually dismissed Mother's petition. In a previous appeal, this Court remanded the matter for specific findings of fact and conclusions of law. The trial court subsequently entered a lengthy written order explaining its decision. Mother filed a second notice of appeal. We affirm in part and reverse in part.

Shelby County Court of Appeals 07/16/15
Anil Construction Inc. v. Patrick D. McCollum, et al.
W2014-01979-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge William B. Acree

This is the second appeal of a case involving the alleged breach of a construction contract. The plaintiff general contractor hired the defendant subcontractor to build and install cabinetry for a movie theater. The subcontract provided that the work should be completed by the date the theater was scheduled to open. However, at the theater‘s opening, several items remained unfinished. The general contractor refused to pay despite the subcontractor‘s demand for payment. The general contractor filed suit alleging breach of contract for failure to complete the project in a timely manner and for defective work. The subcontractor counterclaimed for breach of contract for failure to pay under the contract. After a bench trial, the trial court found in favor of the subcontractor and awarded damages. The general contractor now appeals. Discerning no error, we affirm.

Madison County Court of Appeals 07/15/15
Stacy D. Vise, et al. v. Pearcy Tennessee River Resort Inc., et al.
W2014-00640-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Martha Brasfield

This is a private condemnation action. Appellants own property in Decatur County that does not have access to a public road. Appellants currently access this property by crossing properties owned by the Tennessee Valley Authority and the Appellees. Appellants have verbal permission from both TVA and the Appellees to enter their lands. When TVA would not grant the Appellants an easement to access their property unless the Appellees agreed to grant Appellants a private easement across their property, Appellants filed a private condemnation action against the Appellees pursuant to Tennessee Code Annotated Section 54-14-101 et seq. The trial court found in favor of the Appellees. We affirm.

Decatur County Court of Appeals 07/15/15
In re Estate of Martha B. Schubert
E2014-01754-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor John F. Weaver

This case involves the construction of the Last Will and Testament of Martha B. Schubert (“the Will”). The Chancery Court for Knox County (“the Trial Court”) found and held that Martha B. Schubert (“Deceased”) intended the real property described in the second paragraph of Article IV of the Will to be the two parcels of real property owned by Deceased located on Cherokee Boulevard and that these properties vested immediately in John Schubert upon Deceased's death. John Schubert appeals raising issues regarding whether the Trial Court erred in finding and holding that the second paragraph of Article IV of the Will referred to the two properties on Cherokee Boulevard and that these properties vested in John Schubert immediately upon Deceased's death. We find and hold that the Trial Court did not err in finding and holding that it was Deceased's intent that the second paragraph of Article IV of the Will describe the two Cherokee Boulevard properties. We find and hold, however, that these properties did not vest in John Schubert immediately upon Deceased's death because the Will also contains specific language which, pursuant to Tenn. Code Ann.
§ 31-2-103, directed that the real property be administered as part of Deceased's estate. We, therefore, affirm, in part, and reverse, in part.

Knox County Court of Appeals 07/15/15
Carol A. Molloy v. Michael J. Hrisko, et al
M2014-01351-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert L. Jones

Landowner had a contract to sell two five-acre parcels of her 38.29 acres. Some of her neighbors heard about the sale and discussed it with a lawyer, who sent a letter to the real estate broker whose firm represented the buyers and the seller. The letter informed the broker of a purported restriction on the property whereby there could be only one house per twenty acres. The buyers subsequently pulled out of the contract. The landowner sued three neighbors, the attorney, and his law firm for tortious interference with contract, intentional interference with business relationship, libel of title, and civil conspiracy. The trial court granted the defendants’ motion for summary judgment. We affirm.  

Giles County Court of Appeals 07/14/15
Catherine Marie Schmalzer Dick v. Douglas Charles Dick
M2013-02461-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robbie T. Beal

This is an appeal from a final decree of divorce. Appellant Husband and Appellee Wife have one minor child. The trial court’s final decree of divorce included a division of marital property previously agreed to in a consent order, which also included an agreement regarding the sale of the marital residence. The trial court also ordered Husband to pay Wife’s COBRA benefits for three months. Concurrently with the entry of the final decree of divorce, the trial court entered a permanent parenting plan naming Wife as primary residential parent of the parties’ minor child. The trial court found Husband guilty of four counts of criminal contempt for failure to comply with an interim parenting order, and ordered him to pay five thousand dollars in attorney’s fees arising from wife’s petition for criminal contempt. In addition, the trial court ordered Husband to pay Wife’s attorney an additional twenty thousand dollars toward her attorney’s fees. We affirm in part, reverse in part, vacate in part, and remand for further proceedings in accordance with this opinion.

Williamson County Court of Appeals 07/14/15
Jeffery G. Douglas v. State of Tennessee, et al.
W2014-00831-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Paul G. Summers

The trial court granted motions to dismiss and for summary judgment in favor of defendants. Plaintiff/Appellant appealed. Due to the deficiencies in Appellant's brief on appeal, we conclude that Appellant waived consideration of any issues on appeal and hereby dismiss the appeal.

Madison County Court of Appeals 07/14/15
Julie T. Hatchett v. William Glenn Hatchett
W2013-00984-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Martha B. Brasfield

The issues presented in this case arise from a dispute over attorney fees between Wife and her former attorney that arose following Wife’s reconciliation with Husband in the underlying divorce. The trial court entered several orders related to the fee dispute and held the attorney in contempt for her failure to comply with those orders. On appeal, we conclude that the trial court erred in retaining jurisdiction over the fee dispute between Wife and her attorney after the Husband and Wife reconciled and expressed their desire that the case be dismissed. We therefore vacate the trial court’s orders related to the fee dispute. We also vacate the trial court’s order holding Wife’s attorney in contempt and dismiss this appeal.

Fayette County Court of Appeals 07/14/15
Dyanna Wilson v. City of Memphis
W2014-01822-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Kenny W. Armstrong

This appeal results from the trial court's order reversing the City of Memphis Civil Service Commission's decision to terminate the employment of one of its employees. We vacate the judgment of the trial court and remand for further proceedings.

Shelby County Court of Appeals 07/13/15
Leonard Rowe v. Hamilton County Board of Education et al.
E2014-01978-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge W. Jeffrey Hollingsworth

In this breach of contract action, the plaintiff appeals the trial court's grant of summary judgment to the defendants on res judicata grounds. The plaintiff in his complaint alleged that the defendant school district and defendant school superintendent breached a contract with him for continuing employment as a certified public school teacher. Upon consideration of competing motions for summary judgment, the trial court found that the plaintiff had no enforceable contract with the defendants and that his claim was identical to that asserted in at least one previous lawsuit decided on the merits. The court therefore concluded that the action was barred by the doctrine of res judicata. Discerning no reversible error, we affirm.

Hamilton County Court of Appeals 07/13/15
In re Jamel H. et al.
E2014-02539-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert D. Philyaw

This is a termination of parental rights case in which the Tennessee Department of Children's Services filed a petition to terminate the parental rights of the mother to her two minor children and of the father to his minor child that he shared with the mother. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of the mother's parental rights on the statutory grounds of abandonment for failure to visit, abandonment for failure to provide a suitable home, and failure to comply with the requirements contained in the permanency plan. The court found that clear and convincing evidence existed to support the termination of the father's parental rights on the statutory grounds of abandonment for failure to provide a suitable home and failure to comply with the requirements contained in the permanency plan. The court also found that termination of each parent's rights was in the best interest of the children. The parents appeal. We affirm the court's termination of the mother's parental rights but reverse the court's termination of the father's parental rights.

Hamilton County Court of Appeals 07/13/15
MLG Enterprises, LLC v. Richard Johnson - Dissenting
M2014-01205-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge:

Because I conclude that the clear intent of the Lease Agreement was to bind Mr. Johnson individually, I respectfully dissent. As the majority states, “[a] cardinal rule of contractual interpretation is to ascertain and give effect to the intent of the parties.” Allmand v. Pavletic, 292 S.W.3d 618, 630 (Tenn. 2009). The parties’ intent is determined through examination of the plain language of the contract as a whole. 84 Lumber Co. v. Smith, 356 S.W.3d 380, 383 (Tenn. 2011). In conducting this analysis, the hidden, subjective intent of the parties is of no value because the unexpressed intent of one party is not binding on another party without notice. Cone Oil Co. v. Green, 669 S.W.2d 662, 664 (Tenn. Ct. App. 1983). Interpretation of the parties’ intent is a matter of law subject to de novo review. 84 Lumber, 356 S.W.3d at 383.

Williamson County Court of Appeals 07/09/15