Court of Appeals Opinions

Format: 12/25/2014
Format: 12/25/2014
In Re: Estate of Edward Stephen McRedmond
M2013-02582-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Russell T. Perkins

This appeal involves a longstanding dispute among ten siblings with respect to a family business. Afteryears of litigation,the parties agreed to dissolve the corporation that operated the family business and sell its assets. A receiver was appointed and authorized to sell the assets. The three defendant-siblings in this case placed the highest bid for the assets, and the trial court approved the sale to those three siblings. Prior to the closing of the sale, the three siblings formed a new corporation and assigned their right to purchase the assets to the newly formed corporation. Accordingly, at closing, the receiver conveyed the assets directly to the new corporation. The new corporation began conducting business just as the family business had done in the past. One of the plaintiff siblings formed another corporation and went into direct competition with the corporation that purchased the assets of the family business. The three individual siblings filed a counterclaim against the competing sibling, alleging intentional interference with business relations, breach of fiduciary duty, and that they lost the benefit of their bargain. Theyalso sought injunctive relief against the competing sibling. Neither of the newly formed corporations was made a party to the proceedings. Following a three-day bench trial, the trial court awarded compensatory damages to each of the three siblings and entered a permanent injunction against the competing sibling. The competing sibling appeals the trial court’s order on numerous grounds. For the following reasons, we reverse the trial court’s order, vacate the injunction, and dismiss the counterclaim.

Davidson County Court of Appeals 11/14/14
The Estate Of Cheryl Lynn Quinn, By Personal Representative, William Paul Quinn v. Thomas Henderson Et Al.
E2013-02398-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge David R. Duggan

This is an appeal from a grant of summary judgment to the defendant governmental entities. The decedent, Cheryl Lynn Quinn, died from smoke inhalation following a house fire allegedly set by her ex-boyfriend. Her estate filed a wrongful death action against the exboyfriend as well as the Blount County Sheriff’s Department (“Sheriff’s Department”), the Blount County 911 Communication Center (“911”), and the Blount County 1 Fire Protection District (“Fire Department”). The claims against the alleged arsonist and the Sheriff’s Department were nonsuited, and the trial court granted summary judgment to 911 and the Fire Department. Plaintiff has appealed. Discerning no reversible error, we affirm.

Blount County Court of Appeals 11/13/14
In Re Abigail M., Et Al.
E2014-01825-COA-R3-JV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Robert D. Philyaw

This appeal is from a custody order entered in a dependency and neglect proceeding in the Juvenile Court for Hamilton County (“Juvenile Court.”). Because we have no jurisdiction to hear an appeal from a custody order entered in a dependency and neglect case, this appeal is dismissed.

Hamilton County Court of Appeals 11/13/14
In Re Alexus F.
E2014-00723-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert D. Philyaw

This is a termination of parental rights case filed by the Tennessee Department of Children’s Services. The trial court found that clear and convincing evidence existed to terminate Father/Appellant’s parental rights on the grounds of abandonment and substantial noncompliance with the requirements outlined in the permanency plans. The trial court also found, by clear and convincing evidence, that termination of the Father’s parental rights was in the child’s best interest. Father appeals. We affirm the termination of Father’s parental rights on the sole ground of substantial noncompliance with the permanency plan. Affirmed and remanded.

Hamilton County Court of Appeals 11/13/14
Metro Government of Nashville & Davidson County v. Tennessee Department of Labor & Workforce Development, et al
M2013-01551-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Claudia Bonnyman

A substitute teacher filed a claim for unemployment benefits with the Tennessee Department of Labor and Workforce Development; utilizing the partial unemployment regulation to determine the claimant’s eligibility for benefits, the Department approved the claim and awarded benefits. The Board of Education filed a petition for review, contending that the teacher was not entitled to benefits because she was still employed and because she had refused work assignments which she had been offered; the trial court utilized the regulation applicable to part total unemployment and affirmed the Department’s decision. We affirm the holding that the part total regulation was the proper regulation to be used in determining the claimant’s eligibility; because the Department did not make findings as to certain statutory factors in determining claimant’s eligibility for benefits, we vacate the decision and remand the case for further proceedings.

Davidson County Court of Appeals 11/12/14
Rafia N. Khan, Individually, And In Her Capacity As Trustee Of The Rafia N. Khan Irrevocable Trust v. Regions Bank
E2010-01837-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Daryl R. Fansler

This appeal arises from a disputed arbitration award. Rafia N. Khan (“Mrs. Khan”), individually, and as Trustee of the Rafia N. Khan Irrevocable Trust (“the Trust”) sued Regions Bank (“the Bank”) in the Chancery Court for Knox County (“the Trial Court”) alleging that the Bank had committed unfair acts under the Tennessee Consumer Protection Act (“the TCPA”) by refusing to release a lien on property owned by the Trust and pledged to secure the Khans’ line of credit with the Bank. Mrs. Khan’s husband previously had withdrawn $40,000 on the joint line of credit, a move Mrs. Khan opposed. Per the loan documents, the parties by an agreed order entered into arbitration. The arbitrator Robert P. Murrian (“the Arbitrator”), in a lengthy and detailed final award, found that the Bank was not liable for any unfair acts under the TCPA, that Mrs. Khan was not personally liable for the $40,000 loan made by the Bank to Mr. Khan, and that Mrs. Khan was not entitled to an order in the arbitration requiring the Bank to release the lien on the property. The Trial Court vacated the arbitration award. The Bank appeals. We hold, inter alia, that the Arbitrator rendered a sound, well-reasoned decision and award, and the Trial Court erred in vacating the award. We reverse the Trial Court.

Knox County Court of Appeals 11/12/14
Ted H. Lowe, III et al. v. Joseph M. Brown et al.
E2013-00421-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Dale C. Workman

This action arose over the unfulfilled terms of a condominium lease entered into between the defendant lessee and the lessor, whose estate initiated this action following the death of the lessor. A judgment in the amount of $16,120.36 was originally entered in favor of the estate by the Knox County General Sessions Court. The lessee appealed to the Knox County Circuit Court for a de novo proceeding, and the decedent’s personal representatives were substituted as parties for the estate. Following a non-jury trial, the circuit court entered a judgment in favor of the personal representatives in the amount of $15,882.28. The lessee appeals. Discerning no reversible error, we affirm.

Knox County Court of Appeals 11/10/14
Greg Willet, As Executor Of The Estate Of Walter Taeubel v. Lucy Adelaine Taeubel
E2014-00364-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge L. Marie Williams

This appeal involves a petition to terminate alimony in futuro. Several years after the parties’ divorce, former husband became completely disabled. Former husband filed a petition to terminate his alimony obligation based on a substantial and material change in circumstances. The trial court granted former husband’s petition. Former wife appeals, contending that the trial court erred in concluding former husband established a substantial and material change in circumstances. Discerning no error, we affirm.

Hamilton County Court of Appeals 11/10/14
State of Tennessee v. Courtney Eugene Dukes
E2014-00154-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Don W. Poole

The Defendant, Courtney Eugene Dukes, appeals the Hamilton County Criminal Court’s revoking his probation and ordering his effective four-year sentence into execution. The Defendant contends that the trial court abused its discretion by revoking his probation. We affirm the judgment of the trial court.

Hamilton County Court of Appeals 11/07/14
David Michael Williams, et al v. Timothy Wayne Smith
M2013-02606-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amy V. Hollars

This appeal arises from an underinsured motorist coverage claim that hinges on the validity of a choice of law provision in the insurance policy. Plaintiffs were involved in a car wreck in Tennessee while driving a vehicle they borrowed from North Carolina residents.Although the borrowed vehicle was owned by North Carolina residents, the car owners had elected an insurance policy with a Missouri choice of law provision because their daughter principally used the car in Missouri where she attended college. At issue in this appeal is whether the law of Missouri or North Carolina controls.If Missouri law controls,there is no underinsured motorist coverage; if North Carolina law controls, there is coverage. The trial court found that the Missouri choice of law provision was valid and enforceable because the choice of law provision was not contrary to a fundamental policy of North Carolina. We affirm.

Putnam County Court of Appeals 11/06/14
Gregory Lee Boggs Et Al v. Dinah K. Rhea
E2013-02859-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Thomas J. Wright

Gregory Lee Boggs and Lisa Danielle (Pickens) Boggs (“Plaintiffs”) sued Dinah K. Rhea (“Defendant”) with regard to a motor vehicle accident that occurred in May of 2010 in Washington County, Tennessee. Defendant admitted responsibility for the accident and the case was tried before a jury solely on the issue of damages. After trial the Circuit Court for Greene County (“the Trial Court”) entered judgment on the jury’s verdict finding and holding that Plaintiffs were not entitled to any damages. Plaintiffs appeal to this Court raising issues concerning the jury’s verdict, denial of their motion for additur or a new trial, and claimed improper statements by defense counsel in his closing argument. Defendant raises an issue on appeal with regard to the Trial Court’s denial of her motion for discretionary costs. We find and hold that the record on appeal contains material evidence to support the jury’s verdict and that there are no other reversible errors related to Plaintiffs’ issues. We further find and hold that Defendant is entitled to an award of discretionary costs, and we remand to the Trial Court for a determination of the appropriate amount of discretionary costs. We affirm as modified.

Greene County Court of Appeals 11/06/14
Gabrielle Howell, et al v. Metropolitan Sexually Oriented Business Licensing Board
M2013-02369-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Ellen H. Lyle

Owner of a sexually oriented nightclub filed a writ of certiorari challenging the Respondent Board’s decision to sanction the nightclub for the inappropriate behavior of an entertainer. The trial court affirmed the decision of the Board. The nightclub raises several errors on appeal. Discerning no error, we affirm.

Davidson County Court of Appeals 11/05/14
Lisa Howe, et al. v. Bill Haslam - Concur
M2013-01790-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Ellen H. Lyle

In concur in the majority’s decision to affirm the trial court’s dismissal of the claims arising from HB600’s reordering of the political process. I also join Judge McBrayer in his determination that the claim of the Gay Straight Alliance of Hume Fogg Academic Magnet High School survives dismissal on standing grounds, as the State’s Answer to the original Complaint is insufficient to determine the applicability of HB600.

Davidson County Court of Appeals 11/04/14
Lisa Howe, et al. v. Bill Haslam - Concur in Part
M2013-01790-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Carol L. McCoy

I agree with Judge Farmer’s conclusion that the claims arising from HB600’s
reordering of the political process, which strips Appellants of the ability to seek antidiscrimination
protections at the local level, should be dismissed. However, because I find
the United States Supreme Court precedent in Romer v. Evans, 517 U.S. 620 (1996), difficult
to distinguish by reference to the structural barrier it imposes, I write separately. I would
instead distinguish Romer because, unlike the amendment at issue there, the burden HB600
imposes applies equally to any group seeking protected status. Therefore, Appellants have
not suffered a particularized injury sufficient to confer standing.

Davidson County Court of Appeals 11/04/14
Lisa Howe, et al. v. Bill Haslam
M2013-01790-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Carol L. McCoy

Plaintiffs allege that a 2011 act of the General Assembly adding a definition of “sex” to the
Tennessee Human Rights Act and creating the Equal Access to Intrastate Commerce Act,
now codified at Tennessee Code Annotated § 7-51-1801(1) & (2), violates the Equal
Protection guarantees of the United States and Tennessee Constitutions. The trial court
dismissed the action for lack of standing. We dismiss the claims of Plaintiffs Wesley Roberts
and the Gay/Straight Alliance of Hume-Fogg Academic Magnet High School as moot where
the Defendant Governor concedes that the Equal Access to Intrastate Commerce Act does
not apply to Local Education Agencies or Tennessee schools. We affirm dismissal of the
remaining Plaintiffs for lack of standing where they have failed to allege a discrete, palpable,
cognizable injury in fact.

Davidson County Court of Appeals 11/04/14
Andrew J. Braden, III v. Tennessee Board of Probation, et al. - Dissent
M2013-02036-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Carol L. McCoy

I write separately to emphasize two troubling procedural issues with the majority Opinion. First, I am troubled by this Court’s analysis with regard to the timeliness of the filing of Mr. Braden’s petition for a writ of certiorari. Second, I disagree that this case is appropriate for summary disposition. For these reasons, I respectfully dissent.

Davidson County Court of Appeals 11/04/14
Andrew J. Braden, III v. Tennessee Board of Probation, et al.
M2013-02036-COA-R3-CV
Authoring Judge: Judge Kenny W. Armstrong
Trial Court Judge: Chancellor Carol L. McCoy

This is a pro se appeal from a denial of parole. Inmate/Appellant avers several problems
surrounding his parole hearing that he claims violate his due process and equal protection
rights, and violate the ex post facto constitutional prohibition. Because a prisoner has no
liberty interest in release on parole before the expiration of his sentence, due process
protections do not attach to parole determinations. Because, at the time of Appellant’s crime
and conviction, the law regarding parole gave total discretion to the Board and authorized
denial if the Board found that parole would depreciate the seriousness of the crime
committed, application of this ground for denial of parole does not violate ex post facto
prohibitions. Because Appellant has failed to prove that race was an issue in the Board’s
decision to deny him parole, no equal protection violation was shown. Consequently, we
affirm the trial court’s dismissal of the petition upon grant of summary judgment. Affirmed
and Remanded.

Davidson County Court of Appeals 11/04/14
Tammy Gipson v. State Farm Fire and Casualty Company, et al.
W2013-02872-COA-R3-CV
Authoring Judge:
Trial Court Judge:

I fully concur with the majority that the trial court’s grant of summary judgment should be reversed in light of the factual dispute over ownership of the automobile operated by Ms. Gipson at the time of the accident.

Shelby County Court of Appeals 11/04/14
Tammy Gipson v. State Farm Fire and Casualty Company, et al.
W2013-02872-COA-R3-CV
Authoring Judge: Judge Kenny W. Armstrong
Trial Court Judge: Judge Donna M. Fields

Following Appellant’s involvement in an automobile accident and the subsequent denial of coverage by her insurance company (the Appellee herein), Appellant brought the instant action against Appellee, alleging breach of contract, bad faith refusal to pay, violation of the Tennessee Consumer Protection Act, and intentional misconduct. The trial court granted summary judgment in favor of the Appellee. Appellant appeals. We conclude that there is a dispute of material fact as to the ownership of the subject vehicle; this dispute of material fact precludes summary judgment. Accordingly, we reverse the trial court’s order and remand for a hearing on the merits. Reversed and Remanded.

Stewart County Court of Appeals 11/04/14
Sherry Harper v. Bradley County, Tennessee
E2014-00107-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Lawrence H. Puckett

The issue presented on this appeal is whether a plaintiff who brings a health care liability action against a governmental entity under the Governmental Tort Liability Act (“the GTLA”) is entitled to the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c)(Supp. 2014) under the current version of the Health Care Liability Act (“the HCLA”). This inquiry focuses on the effect of the 2011 amendment to the HCLA that expressly includes “claims against the state or a political subdivision thereof” within the definition of “health care liability action.” Applying the principles set forth by the Supreme Court in Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), we hold that the 2011 amendment demonstrates a clear intent on the part of the General Assembly to allow the GTLA’s one-year statute of limitations to be extended by 120 days in cases where a plaintiff satisfies the requirements of the HCLA. We affirm the judgment of the trial court denying defendant Bradley County’s motion to dismiss.

Bradley County Court of Appeals 11/03/14
In Re: Kadean T.
M2013-02684-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robert E. Burch

The father and step-mother of the child at issue commenced this action to terminate the parental rights of the child’s mother and for step-parent adoption. The trial court terminated Mother’s parental rights on the grounds of abandonment by willful failure to support and by willful failure to visit the child, pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i), and upon the determination that termination of Mother’s rights was in the best interest of the child, pursuant to Tenn. Code Ann. §§ 36-1-113(c)(2) and (i). The trial court further determined that step-parent adoption was in the best interest of the child. Mother appeals. We affirm the determination that Mother abandoned her child pursuant to Tenn. Code Ann. § 36-1113(g)(1) by willfully failing to visit her child and by willfully failing to support her child during the four-month period preceding the filing of this petition. However, because the trial court failed to provide written findings of fact as mandated by Tenn. Code Ann. § 36-1-113(k), we reverse the trial court’s determination that termination of Mother’s parental rights was in the best interest of the child. Accordingly, we remand the issue of the child’s best interest to the trial court with instructions to provide written findings of fact on the issue of the child’s best interest and to enter judgment consistent with its findings.

Dickson County Court of Appeals 10/31/14
James Cullum, et al v. Baptist Hospital System, Inc., et al
M2014-01905-COA-T10B-CV
Authoring Judge: Presiding Jduge Frank G. Clement, Jr.
Trial Court Judge: Judge Amanda Jane McClendon

This is an 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, § 2.06, we affirm the trial court’s decision to deny the motion for recusal.

Davidson County Court of Appeals 10/31/14
Christina June Quinn v. Scott Allen Diehl
M2014-00536-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Don R. Ash

Mother and Father were divorced in 2009 and Mother was named the primary residential parent of their two children. Father later filed a petition to modify the parenting plan, and the court changed the primary residential parent designation to Father. Mother filed one petition to modify in 2012 and another petition in 2014 in an effort to become the primary residential parent again. The court entered orders denying each petition, and Mother appealed both orders. We affirm the trial court’s judgments in all respects.

Wilson County Court of Appeals 10/31/14
Christina June Quinn v. Scott Allen Diehl
M2013-00326-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Clara W. Byrd

Mother and Father were divorced in 2009 and Mother was named the primary residential parent of their two children. Father later filed a petition to modify the parenting plan, and the court changed the primary residential parent designation to Father. Mother filed one petition to modify in 2012 and another petition in 2014 in an effort to become the primary residential parent again. The court entered orders denying each petition, and Mother appealed both orders. We affirm the trial court’s judgments in all respects.

Wilson County Court of Appeals 10/31/14
Adam Ellithorpe, et al v. Janet Weismark
M2014-00279-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Thomas W. Brothers

Parents and minor child brought this action against a licensed clinical social worker, alleging that the social worker provided counseling to the minor child in violation of a court order. The social worker moved to dismiss the complaint for failure to comply with the Tennessee Health Care Liability Act’s procedural requirements. The trial court found that the complaint sounded in health care liability and accordingly dismissed it in its entirety. We conclude that the trialcourtapplied an improper standard in dismissing the complaint,vacate the judgment, and remand for further proceedings.

Davidson County Court of Appeals 10/31/14