Court of Appeals Opinions

Format: 05/03/2016
Format: 05/03/2016
Mark T. Harthun v. Joan M. Edens
W2015-00647-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Walter L. Evans

This appeal arises from a contract to purchase real estate. Appellee contracted to sell Appellant the property at issue, subject to the property appraising at a certain value and the Appellant obtaining financing. Upon discovering that the property was subject to an easement held by the Tennessee Valley Authority, Appellant refused to purchase the property, contending that Appellee could not convey good and marketable title. Appellee filed suit for specific performance and also sought injunctive relief to prevent Appellant from purchasing other real property. In response, Appellant first filed a motion for summary judgment. Later, Appellant filed an answer and countercomplaint, seeking damages for breach of contract. Appellant then filed a motion for voluntary nonsuit of her countercomplaint and, on the same day, filed an amended motion for summary judgment. Appellee then filed a motion for leave to take a voluntary nonsuit. After Appellee filed his motion for nonsuit, Appellant filed a motion for attorney's fees, costs, and the return of earnest money. The trial court granted Appellee's motion for nonsuit, notwithstanding the Appellant's pending motion for summary judgment. The trial court denied Appellant's motion for attorney's fees and costs, but granted the motion for return of earnest money. Appellant appeals.

Shelby County Court of Appeals 03/17/16
Donald Yount v. Fedex Express
W2015-00389-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Walter L. Evans

This is an age discrimination case. The 50-year-old plaintiff worked for the defendant company as a manager. In 2007, an internal investigation revealed that the plaintiff had violated two of the company’s policies. The plaintiff was ultimately terminated for violating the policies. The plaintiff filed this lawsuit alleging age discrimination. The company filed a motion for summary judgment arguing that the plaintiff could not establish a prima facie claim for discrimination or that the company’s explanation for terminating him was a pretext for discrimination. The trial court granted summary judgment in favor of the company. The plaintiff now appeals. We affirm.

Shelby County Court of Appeals 03/17/16
In re Gabrielle R., et al. - Dissent
W2015-00388-COA-R3-JV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Dan H. Michael

The majority holds that because a reconsideration of child support is necessarily “[i]ncident to” the reconfiguration of a parenting plan, the trial court’s failure to rule on the child support modification action implicit in all successful modification of parenting time proceedings deprives this Court of jurisdiction to consider this appeal. Because I cannot accept that an agreed upon change in a parenting plan automatically necessitates an unrequested reconsideration of the parties’ child support obligations, I must respectfully dissent.

Shelby County Court of Appeals 03/17/16
In re Gabrielle R., et al.
W2015-00388-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Dan H. Michael

Following an announcement in open court that the parties agreed to the terms of a permanent parenting plan, the trial court entered an order purporting to adopt the agreed-upon plan. Father appeals from this order, arguing that certain terms of the plan entered by the trial court do not match the announced agreement. Having reviewed the record, we observe that there is neither an attached child support worksheet reflecting what Father's child support would be based on the modified parenting schedule, nor any ruling on child support by the trial court. Accordingly, we conclude that the order appealed is not a final judgment so as to confer jurisdiction on this Court. Tenn. R. App. P. 3. Accordingly, we dismiss this appeal and remand the case for further proceedings consistent with this Opinion.

Shelby County Court of Appeals 03/17/16
In re Jasmine G.
M2015-01125-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Sheila Calloway

At issue is whether the juvenile court abused its discretion by denying Mother’s request for attorney’s fees. Mother filed a petition to modify child support. Father filed an answer denying the petition and a counter-petition requesting, inter alia, that he be awarded primary custody of their child. The case was initially tried before the magistrate who denied Father’s petition and granted Mother’s petition to increase child support; however, the magistrate did not rule on Mother’s request for attorney’s fee. Both parties filed motions asking the juvenile court judge to conduct a de novo review. The juvenile court judge affirmed the magistrate’s recommendations; the judge also denied Mother’s request for attorney’s fees without explanation. On appeal, Mother contends the juvenile court abused its discretion by refusing to award any of her attorney’s fees. Given the significant disparity in the parties’ income and realizing that Mother prevailed on the issues of child support and custody, we have determined that Mother is entitled to recover the attorney’s fees she reasonably incurred that relate to the issues of child support and custody and that she is entitled to recover attorney’s fees incurred on appeal. Accordingly, we reverse and remand with instructions for the juvenile court to award the reasonable and necessary attorney’s fees Mother incurred relating to her petition for modification of child support and Father’s petition for custody. We also remand for the juvenile court to award Mother her reasonable and necessary attorney’s fees incurred in this appeal.

Davidson County Court of Appeals 03/16/16
Elizabeth Ann Morrow Granoff v. Andrew Scott Granoff
E2015-00605-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Richard R. Vance

This second appeal of this post-divorce case concerns the husband's continued occupation of the marital residence. Upon remand, the trial court imposed a rental obligation upon the husband and established a reserve price for the auction sale of the residence. We modify the court's decision to reflect an imposition of rent that conforms to the marital dissolution agreement. We affirm the decision in all other respects.

Jefferson County Court of Appeals 03/16/16
William Wyttenbach v. Board of Tennessee Medical Examiners, et al.
M2014-02024-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen H. Lyle

This is an appeal under the Administrative Procedures Act. After the Tennessee Department of Health mailed notice to a physician of alleged violations of the Tennessee Medical Practice Act, the physician retired his Tennessee medical license. Unsatisfied, the Department of Health filed a notice of charges. After a hearing at which the physician did not appear, the Tennessee Board of Medical Examiners revoked the physician’s medical license and placed conditions on any future application by the physician for a medical license in Tennessee. The physician appealed to the chancery court, which affirmed the decision of the Board of Medical Examiners. On appeal to this Court, the physician challenges whether the Board possessed personal jurisdiction over him and sufficiency of service of the notice of charges. The physician also argues that his due process rights were violated and that the Board of Medical Examiners lacked authority to revoke a retired medical license. We affirm.      

Davidson County Court of Appeals 03/15/16
Diane C. Hanson v. Gary D. Meadows
M2015-00854-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor David M. Bragg

The mother of two minor children filed a petition on May 5, 2014, in the Chancery Court of Rutherford County seeking an order of protection against the children’s father for her benefit and for the benefit of their two minor children. When the petition was filed, the parties were operating under a parenting plan from Wisconsin state courts, and the Chancery Court of Rutherford County exercised only temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, Tenn. Code Ann. §§ 36-6-201 to -243. The chancery court granted the petition pending an evidentiary hearing. Unfortunately, the matter stalled for eleven months due to pending criminal charges against the father arising out of the same incident. Following the evidentiary hearing in April 2015, the trial court extended the order of protection as to the mother but dismissed the petition as to the children on the finding the children were not in any danger. Mother appealed. At oral argument, both parties informed the court that custody modification proceedings were ongoing in Tennessee and that the parenting plan had been temporarily modified pending discovery and a full hearing. The only issues on appeal pertain to the welfare of the parties’ two minor children. The chancery court now has jurisdiction over the order of protection, which was filed two years ago, and exclusive, continuing jurisdiction over the parenting plan; therefore, the chancery court is responsible for ruling on all current issues concerning the welfare of the children. For these reasons, we conclude the limited issues on appeal are moot because we are unable to provide meaningful relief. Our ruling on the order of protection could conflict with recent rulings by the chancery court that are based on current events, as distinguished from the singular incident on appeal that is now two years old. Therefore, the appeal is dismissed. 

Rutherford County Court of Appeals 03/15/16
Henry Holt, Sr., et al v. City of Fayetteville, Tennessee, et al.
M2014-02573-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Franklin L. Russell

Plaintiffs, on behalf of themselves and a deceased family member, sued the City of Fayetteville and others for wrongful death and personal injuries resulting from an automobile accident involving a stolen police car. Plaintiffs alleged a police officer negligently failed to secure a suspect after placing her in the police car. The suspect then stole the police car, drove away at a high rate of speed, and collided with the plaintiffs’ vehicle. The City moved to dismiss on the grounds that it was immune from suit based upon the public interest doctrine, and the trial court granted the motion. We affirm the dismissal.

Lincoln County Court of Appeals 03/15/16
In re Ashton B.
W2015-01864-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Walter L. Evans

Petitioner adoption service filed a petition to terminate Father's parental rights, alleging several grounds under Tennessee Code Annotated Section 36-1-113(g)(9)(A) and abandonment pursuant to Tennessee Code Annotated Section 36-1-113(g)(1). The trial court denied the petition, finding no grounds to support termination. Based upon the Tennessee Supreme Court's holding in In re Bernard T., 319 S.W.3d 586 (Tenn. 2010), that the grounds contained within Section 36-1-113(g)(9)(A) cannot apply to putative biological fathers, we affirm the trial court's denial of termination on those grounds. We also affirm the trial court's finding that Petitioner failed to prove abandonment pursuant to Tennessee Code Annotated Section 36-1-113(g)(1) by clear and convincing evidence.

Shelby County Court of Appeals 03/15/16
State Farm Mutual Automobile Insurance Company v. Robert Blondin
M2014-01756-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Robert E. Corlew, III

Automobile insurance company brought action to recover from the defendant payments made under the policy to its insured and her passenger for personal injuries and property damage resulting from an automobile accident between the insured and the uninsured Defendant’s daughter. Judgment was entered in favor of company in the amount of $20,575.00, which was reduced by 20% to $16,460.00 in accordance with the court’s apportionment of 20% fault to the policy holder. Defendant appeals the denial of his motion to dismiss, the award of damages, and the allocation of fault.
 

Rutherford County Court of Appeals 03/14/16
In re Benjamin A.
E2015-00577-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert D. Philyaw

This is a termination of parental rights case, focusing on Benjamin A., the minor child (“the Child”) of Brent H. (“Father”) and Brandice A. (“Mother”). The Child was taken into protective custody by the Tennessee Department of Children's Services (“DCS”) on November 4, 2010, upon investigation of a spiral fracture to his right arm and suspected child abuse. On December 17, 2013, DCS filed a petition to terminate the parental rights of Father. Mother previously had surrendered her parental rights to the Child in June 2013 and is not a party to this appeal. Following a bench trial, the trial court found that statutory grounds existed to terminate the parental rights of Father upon its finding by clear and convincing evidence that Father had (1) abandoned the Child by willfully failing to provide financial support, (2) abandoned the Child by failing to provide a suitable home, and (3) failed to substantially comply with the reasonable responsibilities and requirements of the permanency plans. The court further found by clear and convincing evidence that termination of Father's parental rights was in the Child's best interest. Father has appealed. Having determined that, as DCS concedes, the element of willfulness was not proven by clear and convincing evidence as to Father's failure to support the Child, we reverse the trial court's finding regarding the statutory ground of abandonment through failure to support. We affirm the trial court's judgment in all other respects, including the termination of Father's parental rights to the Child.

Hamilton County Court of Appeals 03/14/16
In re Estate of Terry Paul Davis
E2015-00826-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Michael A. Gallegos

Christinia Davis (“Wife”), Terran Denise Davis (“Terran”), and Taylor Ann Davis (“Taylor”) appeal the April 17, 2015 order of the General Sessions Court for Bount County Probate Division (“Probate Court”) upholding the Last Will and Testament of Terry Paul Davis (“the Will”). Wife, Terran, and Taylor raise an issue regarding whether the Probate Court erred in finding that the presumption of undue influence arising out of the proven confidential relationship between Terry Paul Davis (“Deceased”) and Olive K. Davis (“Davis”) was rebutted by clear and convincing evidence. We find and hold that although a confidential relationship was proven between Deceased and Davis, clear and convincing evidence was proven to rebut the presumption of undue influence. We, therefore, affirm.

Blount County Court of Appeals 03/14/16
In re Candace J., et al.
M2015-01406-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donna Scott Davenport

This is a termination of parental rights case. The Tennessee Department of Children’s Services (“DCS”) filed a petition seeking to terminate the mother’s parental rights with respect to the minor child. The juvenile court found that statutory grounds existed to terminate the mother’s parental rights upon its finding by clear and convincing evidence that the mother (1) abandoned the child by her willful failure to visit, (2) abandoned the child by her willful failure to provide a suitable home, (3) failed to substantially comply with the requirements of the permanency plans, and that (4) the conditions that led to the child’s removal still persisted. The juvenile court further found by clear and convincing evidence that termination of the mother’s parental rights was in the child’s best interests. Having thoroughly reviewed the record and considered the arguments presented on appeal, we affirm the juvenile court’s judgment in all respects.  

Rutherford County Court of Appeals 03/11/16
Melanie Jones, individually and on behalf of Matthew H. v. Shavonna Rachelle Windham, et al. - Dissent
W2015-00973-COA-R10-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Robert Samual Weiss

I must respectfully dissent from the majority's Opinion, and I believe Tennessee should adopt the preemption rule. In my view, once an employer has admitted respondeat superior liability for an employee's negligence, it is improper to allow a plaintiff to proceed against the employer on a negligent hiring or negligent supervision theory of liability.

Shelby County Court of Appeals 03/11/16
Melanie Jones, individually and on behalf of Matthew H. v. Shavonna Rachelle Windham, et al.
W2015-00973-COA-R10-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert Samual Weiss

This Rule 10 appeal stems from a vehicular accident involving a minor child who was struck by a van driven by the employee of a children's daycare. The child's mother filed suit alleging negligence against the employee-driver of the vehicle and asserted claims for negligent hiring, negligent retention, and negligence per se against the driver's employers. The mother also averred that she should recover punitive damages based on the conduct of the Defendants. The employers, the individual owners of the daycare, admitted vicarious liability for the negligence of their employee and moved for partial summary judgment on the direct negligence claims asserted against them. They argued that it was improper to proceed against them on an independent theory of negligence when they had already admitted vicarious liability. The employers, along with the employee-driver, also sought summary judgment with respect to the punitive damages claim. Although the trial court granted the employers' motion with respect to the direct negligence claims, it denied the motion with respect to the claim for punitive damages. On appeal, we reverse the trial court's dismissal of the direct negligence claims asserted against the employers and remand the case for further proceedings consistent with this Opinion.

Shelby County Court of Appeals 03/11/16
James R. Sterchi, Jr. v. Louis B. Savard, Jr., As Executor of The Estate Of L. Basil Savard, Sr.-Concurring
E2015-00928-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Senior Judge Don R. Ash

I concur fully in the majority’s decision in this case. I write separately solely to express my opinion that inasmuch as this action was initiated subsequent to July 1, 2011, the standard of review for summary judgment delineated in Tennessee Code Annotated § 20-16-101 (Supp. 2015) applies. See Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 249 (Tenn. 2015) (noting that in contrast to the action in Rye, which was initiated in 2009, Tenn. Code Ann. § 20-16-101 “applies to actions filed on or after July 1, 2011.”) (citing Act of May 20, 2011, ch. 498, 2011 Tenn. Pub. Acts § 3 at 471). The statute provides:

Bradley County Court of Appeals 03/11/16
James R. Sterchi, Jr. v. Louis B. Savard, Jr., As Executor of The Estate Of L. Basil Savard, Sr.
E2015-00928-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Senior Judge Don R. Ash

This appeal concerns a conflict of law choice between Tennessee and Florida law. James R. Sterchi, Jr. (―Mr. Sterchi‖) sued L. Basil Savard (―Mr. Savard‖) in the Circuit Court for Bradley County (―the Trial Court‖) for the wrongful death of Mr. Sterchi’s mother Rosalind Savard (―Mrs. Savard‖) in a car accident in Florida.1 Mr. Savard filed a motion for summary judgment. Florida law prevents Mr. Sterchi from pursuing his claim while Tennessee law does not. All interested parties were domiciled in Tennessee. The Trial Court held that Florida law applies and granted Mr. Savard’s motion for summary judgment. Mr. Sterchi filed an appeal to this Court. We hold that under ―the most significant relationship‖ test as adopted by our Supreme Court in Hataway v. McKinley, 830 S.W.2d 53 (Tenn. 1992), Tennessee has the more significant relationship to the occurrence and parties in this case, and, therefore, Tennessee substantive law applies to Mr. Sterchi’s wrongful death action. We reverse the judgment of the Trial Court.

Bradley County Court of Appeals 03/11/16
Bryan McNeese v. Wendolyn Carol Williams, et al.
M2015-01037-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Louis W. Oliver

This appeal involves a Rule 60 motion to set aside an agreed order on the basis that the petitioner withdrew his consent to the agreement prior to the entry of the agreed order. The trial court denied the Rule 60 motion. We reverse and remand for further proceedings.     

Sumner County Court of Appeals 03/10/16
State of Tennessee v. John Russell Giles, Jr.
E2014-02212-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Leon C. Burns, Jr.

Following a jury trial, the Defendant, John Russell Giles, Jr., was convicted of premeditated first degree murder and sentenced to imprisonment for life. See Tenn. Code Ann. § 39-13-202. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his conviction; (2) that the trial court erred “in refusing to fashion a remedy” for alleged discovery violations made by the State; (3) that the trial court admitted in violation of Tennessee Rule of Evidence 404(b) evidence that, the day before the murder, the Defendant had conducted internet searches for and visited pornographic websites depicting women being raped; (4) that one of the State's witnesses “perjured himself,” and the trial court did not allow the witness to be recalled for further cross-examination; and (5) that the State was allowed to argue a time of death that differed from the time of death provided in the bill of particulars. Following our review, we affirm the judgment of the trial court.

Cumberland County Court of Appeals 03/10/16
In re K.F.R.T. et al. - Concurring and Dissenting
E2015-01459-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Janice Hope Snider
D. MICHAEL SWINEY, C.J., concurring and dissenting.
I concur in most of the majority’s opinion. I, however, cannot concur with the majority in its decision to reverse the Juvenile Court’s finding as to wanton disregard. I would affirm the Juvenile Court on this issue as well as on all other issues. As such, I also cannot agree with the majority’s decision concerning best interest as that issue never is reached if there is no ground for termination.
Hamblen County Court of Appeals 03/10/16
In re K.F.R.T. et al.
E2015-01459-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Janice Hope Snider

This is a termination of parental rights case. The case proceeded to trial on the amended petition of the Department of Children's Services seeking to terminate on multiple grounds the parental rights of L.M. to his children, K.F.R.T., L.E.M.R., and B.A.M.R. (collectively the children). The trial court dismissed the petition after a bench trial, finding and holding that DCS “ha[d] failed to prove by clear and convincing evidence any ground sufficient to justify termination of [father's] parental rights.” Whittney N.L. Good, guardian ad litem for the children, appeals. We reverse because we hold that the evidence clearly and convincingly shows that father is guilty of a pattern of criminal conduct “exhibit[ing] a wanton disregard of the child[ren].” Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2014). We find clear and convincing evidence that it is in the best interest of the children to terminate father's parental rights.

Hamblen County Court of Appeals 03/10/16
John Jason Davis v. Johnstone Group, Inc. v. Appraisal Services Group, Inc.
W2015-01884-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor James F. Butler

Appellant appeals the trial cour's grant of Appelle's complaint for declaratory judgment and the trial court's denial of Appellant's counter-complaint for injunctive relief. After Appellee filed notice with Appellant of his intent to leave Appellant's employ and join a competing appraisal firm, Appellant sought to enforce the non-competition provision of the parties' agreement. Appellee then filed for a declaratory judgment that the non-competition provision was unenforceable. The trial court determined that there were no special facts present over and above ordinary competition or any legitimate protectable business interests to warrant enforcement of the non-competition agreement. Appellant appeals. Discerning no error, we affirm and remand.

Madison County Court of Appeals 03/09/16
David Bryan Hawk v. Crystal Goan Hawk
E2015-01333-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor E.G. Moody

This post-divorce appeal concerns the mother’s petition to modify the residential schedule in an agreed parenting plan. Following a hearing, the trial court found that a material change in circumstances had occurred that necessitated a change in the plan. The court modified the plan by order and further required the parties to attend parenting classes and mediation before seeking further relief from the court. The mother appeals. We affirm the court’s modification of the plan. We reverse the requirement imposed upon the parties to attend parenting classes before seeking further relief from the court. We remand for entry of a permanent parenting plan and child support worksheet.

Greene County Court of Appeals 03/09/16
Kathryn E. Mitchell et al v. Charles Wesley Morris et al. - Concurring
E2015-01353-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jean A. Stanley

I concur fully in the majority’s decision in this case. I write separately only to express my opinion that the appropriate summary judgment standard to be applied by Tennessee courts now is as set forth in Rye v. Women’s Care Center of Memphis, MPLLC, ___ S.W.3d ___, 2015 WL 6457768 (Tenn. 2015), rather than Tenn. Code Ann. § 20-16-101. I believe our Supreme Court intended for the retroactive application of Rye when it stated: “In civil cases, judicial decisions overruling prior cases generally are applied retrospectively.” Rye, ___ S.W.3d at ___n.9, 2015 WL 6457768 at *35 n.9. While there may be very little, if any, difference between the summary judgment standard as set forth in Rye and as contained in Tenn. Code Ann. § 20-16-101, I believe Rye sets the standard and is controlling on the courts of this State.

Washington County Court of Appeals 03/09/16