Court of Appeals Opinions

Format: 03/23/2017
Format: 03/23/2017
Margaret Cruce v. Memmex Inc. d/b/a Salsa Cocina Mexicana Restaurant
W2016-01167-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

In this premises liability case, the plaintiff appeals the trial court’s grant of summary judgment to the defendant property owner. Discerning no error, we affirm.

Shelby County Court of Appeals 02/07/17
Tiffine Wendalyn Gail Runions, et al. v. Jackson-Madison County General Hospital District, et al., Concur in part and Dissent in part
W2016-00901-COA-R9-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donald H. Allen

I concur in the majority opinion’s denial of West Tennessee Health Network and West Tennessee Healthcare, Inc.’s Motion to Dismiss and/or for Summary Judgment. Like the majority, I express no opinion whatsoever on whether dismissal of these two parties might be appropriate under other theories. However, I must respectfully dissent from the majority opinion’s holding that pre-suit notice was provided to the District and that amendment of Ms. Runions’ complaint was proper. The majority opinion states: “we cannot ignore the unmistakable acknowledgement from Ms. Zamata’s letter that Ms. Runions did, in fact, provide written notice of a potential claim against the District.” Herein lies my disagreement with the majority opinion.

Madison County Court of Appeals 02/07/17
Tiffine Wendalyn Gail Runions, et al. v. Jackson-Madison County General Hospital District, et al.
W2016-00901-COA-R9-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donald H. Allen

This is an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. In this health care liability action, we must determine whether the plaintiff properly complied with the pre-suit notice requirement found in Tennessee Code Annotated section 29-26-121(a)(1). The original defendants in this matter all filed a motion to dismiss and/or for summary judgment alleging that they did not provide medical treatment to the plaintiff/appellee. Subsequently, the plaintiff filed a response to the defendants' motion acknowledging that she had mistakenly identified a proper defendant in this suit. The plaintiff also filed a motion to amend her complaint attempting to remedy that mistake by substituting in the proper defendant. After both motions were heard, the trial court denied the original defendants' motion to dismiss and/or for summary judgment and granted the plaintiff/appellee's motion to amend her complaint. For the following reasons, we affirm the decision of the trial court and remand for further proceedings.

Madison County Court of Appeals 02/07/17
In Re Braylin D.
M2015-02491-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Sheila Calloway

Mother, who had been designated as the primary residential parent of her eight-year-old child, appeals an order changing the designation to the child’s Father, contending that the material change of circumstances since the entry of the original parenting plan, as found by the trial court, was not sufficient to justify the modification of custody. We have determined that the evidence does not show that the child’s well-being has been adversely affected by the difficulties the parents have encountered in complying with the parenting plan or that the modification is in the child’s best interest; accordingly, we reverse the order changing the designation of the primary residential parent. We reverse the order denying Mother’s request for attorney’s fees for services incurred in securing a judgment for back child support and remand for a determination of the amount of the award.

Davidson County Court of Appeals 02/07/17
In re Colton R.
E2016-00807-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Tammy M. Harrington

This is a termination of parental rights case. Mother and Stepfather filed a petition to terminate the parental rights of Father to the child. The trial court found that the grounds of (1) abandonment for willful failure to visit as defined by Tennessee Code Annotated section 36-1-102(1)(A)(i), (2) abandonment for willful failure to visit by an incarcerated parent as defined by Tennessee Code Annotated section 36-1-102(1)(A)(iv), and (3) abandonment based on conduct demonstrating a wanton disregard for the welfare of the child had been proven by clear and convincing evidence. The trial court also found that termination was in the best interest of the child. Father appeals. We reverse the trial court’s finding of abandonment by willful failure to visit as defined by Tennessee Code Annotated section 36-1-102(1)(A)(i) but affirm the trial court in all other respects.

Blount County Court of Appeals 02/07/17
Samuel C. Clemmons, et al v. Johnny Nesmith
M2016-01971-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael Binkley

In this accelerated interlocutory appeal, Appellants appeal from separate orders denying two motions for recusal filed in this case. After thoroughly reviewing the record on appeal, we affirm the decision of the trial court to deny the recusal motions. 

Williamson County Court of Appeals 02/06/17
Bull Market, Inc. v. Adel Elrafei
W2016-01767-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph H. Walker, III

A purchaser of property entered into an installment contract and signed a promissory note specifying the day on which monthly payments were to be made. The purchaser began making payments on different days of the months and the seller accepted these payments over a course of years. Over seven years after the contract was executed, the seller sought to declare the contract null and void because the purchaser failed to tender his payment on the day specified in the note. The trial court awarded the seller relief and granted it possession of the property. The purchaser appealed, and we reverse the trial court’s judgment. We conclude the parties modified the terms of the promissory note through their course of conduct and that the purchaser did not breach the contract.

Tipton County Court of Appeals 02/03/17
In Re: Neveah W.
W2016-00932-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Walter L. Evans

This is the second appeal in this case involving a long-running battle between foster parents and the Tennessee Department of Children’s Services (“DCS”). In 2014, DCS removed the three-year-old child at issue from her foster home of three years. In the context of this already pending termination and adoption proceeding, the chancery court held an evidentiary hearing and determined that there was insufficient evidence to justify removal and that DCS had taken steps adverse to the child’s best interest. The chancery court ordered DCS to return the child to her foster home. On extraordinary appeal, this Court determined that a trial court cannot direct the placement of a foster child within DCS legal custody, but we recognized that the trial court could remove legal custody from DCS and place custody directly with the foster parents if warranted. One week prior to the hearing on remand, DCS participated in a surrender proceeding under a separate docket number and contemporaneously obtained an order of full guardianship over the child. DCS then moved to dismiss as moot the termination, adoption, and custody petitions pending in this case because DCS, as guardian, refused to consent to an adoption by the child’s former foster parents. The child’s current foster mother attempted to intervene. After a two-day trial, the trial court dismissed the former foster parents’ petitions as moot and granted the adoption to the current foster mother, as DCS in its role as guardian would only consent to an adoption by her. The child’s guardian ad litem appeals. The former foster parents and DCS raise additional issues. We affirm in part, vacate in part, reverse in part, and remand for further proceedings.

Shelby County Court of Appeals 02/03/17
Joseph Skernivitz v. State of Tennessee Department of Safety and Homeland Security
M2016-00586-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Claudia C. Bonnyman

In this drug forfeiture case, we have concluded that the trial court lacked subject matter jurisdiction because the property owner failed to filed a petition for judicial review within the sixty-day time period required under Tenn. Code Ann. § 4-5-322(b).  We, therefore, vacate the trial court’s decision.

Davidson County Court of Appeals 02/03/17
240 Poplar Avenue General Partnership v. Cheryl Gray
W2016-00697-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Felicia Corbin-Johnson

This is a breach of contract action in which the lessor filed suit against the lessee for non-payment of rent, utilities, and repairs pursuant to the terms of a lease agreement for two units in a commercial building. Following a hearing, the trial court entered a judgment in favor of lessor. The lessee appeals. We affirm.

Shelby County Court of Appeals 02/02/17
Siminder Kaur v. Vaneet Singh
W2016-02058-COA-R10-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert L. Childers

This is an interlocutory appeal limited to the issue of whether the orders of an Indian court regarding matters pending in India is entitled to full faith and credit, such that this state’s trial court lacks jurisdiction over custody of the minor child pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act. The mother, an Indian citizen but permanent resident of the United States, filed an action in India seeking the return of her minor son. She contends that her son, a citizen of the United States, is being detained illegally in India by her husband and his family. The Indian court ruled that the child should remain with the paternal grandparents in India at this time. The mother, thereafter, filed an action for divorce in Shelby County. After a hearing, the state trial court ordered, inter alia, that the father, also an Indian citizen but permanent resident of the United States, return the child to Tennessee within seven days. Upon the trial court’s denial of the father’s request for an interlocutory appeal pursuant to Rule 9, the father sought a Rule 10 extraordinary appeal of the trial court’s ruling. We find that the appeal was improvidently granted. Accordingly, we decline to address the issue presented and dismiss the appeal.

Shelby County Court of Appeals 02/02/17
Danny Hale v. State of Tennessee
E2016-00249-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: William O. Shults, Commissioner

This appeal involves a suit filed in the Tennessee Claims Commission against the State of Tennessee for the wrongful death of Tammy Hale. The claimant, Ms. Hale’s father, titled his cause of action as one for “negligent care, custody, and control of persons” pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(E). The claimant alleged that the State was responsible for the actions of an inmate whose release was not conditioned upon participation in community supervision for life as required by section 39-13-524. The State sought dismissal, alleging that the claim was really one for “negligent deprivation of statutory rights” based upon the failure to adhere to section 39-13-524, which does not confer a private right of action. Following a hearing, the Claims Commission, William O. Shults, Commissioner, agreed and dismissed the claim. The claimant appeals. We affirm.

Cocke County Court of Appeals 02/02/17
James R. Haynes, III, et al. v. Leslie E. Lunsford, et al.
E2015-01686-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Richard R. Vance

Purchasers of real estate brought suit against the seller as well as the real estate agent and agency that assisted the buyers, alleging, inter alia, fraudulent misrepresentation, breach of duty to disclose adverse facts related to the purchased property, and violations of the Tennessee Consumer Protection Act. The buyers argued that the defendants misrepresented the age and history of the home and did not disclose that it had a mold problem. Upon motion for summary judgment, the agent and the agency were dismissed as defendants. The trial court subsequently denied the buyers' motion to reconsider the summary judgment order. The buyers appeal. Finding no error, we affirm.

Sevier County Court of Appeals 02/02/17
Joseph Martin Colley v. Alisha Dale McBee
M2014-02296-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge J. Curtis Smith

This case concerns modification of a parenting plan. Following her divorce in Tennessee, Mother moved with her child to Maryland. Father initially opposed the move, but an agreed order entered after the move adopted an amended permanent parenting plan, which named Mother the primary residential parent. The amended permanent parenting plan granted Father parenting time over the summer, during certain holidays, and when either Father traveled to Maryland or Mother traveled to Tennessee. After experiencing difficulties exercising parenting time and growing concern over Mother’s care of the child, Father filed a petition requesting to be named primary residential parent. The trial court denied the request. Although it found a material change in circumstances based on the child’s serious mental health issues, the court determined that it was in the best interest of the child to remain with Mother. Father appeals arguing that the trial court erred in: (1) finding it was in the child’s best interest for Mother to remain the primary residential parent; (2) not finding Mother in contempt; and (3) awarding attorney’s fees to Mother. We affirm the decision of the trial court.  

Marion County Court of Appeals 02/02/17
Anthony D. Herron, Jr. v. Tennessee Department of Human Services
W2016-01416-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor James R. Newsom

This is an administrative appeal in which Petitioner challenges the decision of the Tennessee Department of Human Services to suspend services he received pursuant to the state’s vocational rehabilitation program. The Division of Appeals and Hearings upheld the Department’s decision to suspend Petitioner’s services and this decision was affirmed by the Department’s commissioner. Thereafter, Petitioner filed a petition for judicial review with the Shelby County Chancery Court. The court upheld the Department’s actions and dismissed the petition. Petitioner appealed; we affirm.

Shelby County Court of Appeals 02/01/17
In re Kayla B., et al.
E2016-01192-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Larry M. Warner

This appeal involves the termination of a mother’s parental rights to six children and a father’s parental rights to three of those children. The juvenile court found clear and convincing evidence of five grounds for termination of parental rights and that termination of parental rights was in the children’s best interest. We conclude that DCS did not prove abandonment by an incarcerated parent by clear and convincing evidence. Because the record contains clear and convincing evidence to support four grounds for termination, namely, abandonment by failure to provide a suitable home, substantial noncompliance with the requirements of the permanency plan, persistence of conditions, and severe child abuse, and that termination is in the best interest of the children, we affirm.

Cumberland County Court of Appeals 02/01/17
Trevor Howell v. Kennedy Smithwick
E2016-00628-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge M. Nicole Cantrell

Mother has appealed the trial court’s decisions regarding parenting time, criminal contempt, child support, and the child’s surname. We have determined that the trial court erred in finding Mother in criminal contempt as to one of the three incidents at issue, in setting temporary child support, in failing to order Father to pay child support by wage assignment, and in ordering the child’s surname to be changed to Father’s surname. In all other respects, we affirm the decision of the trial court.

Anderson County Court of Appeals 02/01/17
In Re Anna B. et al
M2016-00964-CCA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge J. Mark Rogers

This is a termination of parental rights case. Father appeals the termination of his parental rights, to two minor children, on the grounds of: (1) severe child abuse, Tenn. Code Ann. §§ 36-1-113(g)(4) and 37-1-102(22)(C); and (2) abandonment by willful failure to support and willful failure to visit, Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i).  Father also appeals the trial court’s finding that termination of his parental rights is in the children’s best interests.  Because Appellees did not meet their burden to show that Father willfully failed to provide support for the children, we reverse the trial court’s finding as to the ground of abandonment by willful failure to support.  The trial court’s order is otherwise affirmed.

Rutherford County Court of Appeals 02/01/17
Heather Lewis v. Michael James Parmerter
M2015-01335-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ronald Thurman

Father appeals the order entered on the motion of the Mother of four children awarding her sole decision-making authority regarding the children’s religious upbringing and designating that the children attend her church, contending, among other things, that the mandate that the children attend Mother’s church violates his and the children’s freedom of religious expression, as protected by the Federal and Tennessee Constitutions. We hold that the court did not abuse its discretion in granting Mother sole authority regarding the children’s religious upbringing and modify the order to remove that portion specifying the church that the children are to attend.   

White County Court of Appeals 01/31/17
Kathaleen Moriarty King v. Hal David King
2016-01451-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This appeal involves a 1997 divorce judgment that awarded the wife a percentage of the husband’s federal retirement annuity. The parties entered into a settlement agreement, later incorporated into a judgment, which provided that the wife would receive one-half of the marital portion of the husband’s retirement. The 1997 judgment contained no provisions regarding salary adjustments or cost-of-living adjustments applicable to the retirement annuity. In 2008, the husband’s attorney filed and the trial court entered a “Court Order Acceptable for Processing,” which provided for the wife’s fractional share of the husband’s retirement annuity but made no mention of salary adjustments applicable thereto. This order did provide, however, that the wife would be entitled to cost-of-living adjustments. Following his retirement in 2015, the husband filed a motion in 2016 seeking relief from the trial court’s prior final orders pursuant to Tennessee Rule of Civil Procedure 60. The trial court granted the motion, determining that the relief sought merely “clarified” but did not modify the earlier orders. The wife has appealed. We conclude that the trial court impermissibly granted relief to the husband pursuant to Rule 60.01, which had the effect of modifying the parties’ settlement agreement and the court’s prior orders. We therefore vacate the trial court’s order granting Rule 60 relief.

Knox County Court of Appeals 01/31/17
F&M Marketing Services, Inc. v. Christenberry Trucking And Farm, Inc. et al.
E2016-00205-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

The question presented is whether the corporate veil of Christenberry Trucking and Farm, Inc. (CTF), should be pierced and its sole shareholder, Clayton V. Christenberry, Jr., be held personally liable for a debt owed by CTF to F&M Marketing Services, Inc. In 2012, F&M obtained a judgment against CTF for breach of contract. By that time, CTF, a trucking company, had suffered mortal setbacks primarily owing to the great recession. CTF was administratively dissolved that same year. CTF had no assets to satisfy the judgment. F&M brought this action, seeking to hold Mr. Christenberry personally liable for the debt. After a bench trial, the court held that F&M did not meet its burden of proving that CTF’s corporate veil should be pierced. F&M appeals. We affirm the trial court’s judgment.

Knox County Court of Appeals 01/31/17
Jonathan D. Grigsby v. Alexandra Alvis-Crawford
W2016-00393-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge William A. Peeler

This custody dispute involves the child born to Jonathan D. Grigsby (Father) and Alexandra Alvis-Crawford (Mother). In July 2014, the parties were residing together when Mother moved out of the house with the child and refused to let Father see or talk to him. Shortly thereafter, Mother had medical issues and was admitted to the hospital where she remained until September 2014. During this time, the child lived in the home of the maternal grandparents of the child. Because the maternal grandparents refused to allow Father to see or speak with the child, he filed a petition seeking an ex parte order for immediate custody of his minor child. Based on Father’s petition, the trial court entered an order finding that the grandparents were unlawfully keeping the child from Father. The trial court gave Father immediate temporary custody of the child. The trial court did not make a permanent custody determination at that time. In December 2014, Mother filed a petition for custody. In January 2016, the trial court held a hearing on Father’s amended emergency petition and Mother’s petition. The trial court found that it is in the best interest of the child to stay with Father. Accordingly, the court designated Father as the primary residential parent. Mother appeals. We affirm.

Tipton County Court of Appeals 01/31/17
In Re: C.H.
E2016-00702-COA-R9-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Dennis "Will" Roach, II

This is a Tenn. R. App. P. 9 interlocutory appeal. Biological grandparents of a child at issue in a termination of parental rights action sought to intervene in the termination proceeding. The child had lived in the grandparents' home with them and the child's parents. The Department of Children's Services removed the child from that home and later sought to terminate the parental rights of the child's parents. The grandparents filed a motion to intervene. The trial court denied their motion, but granted their request for an interlocutory appeal. Thereafter, we also granted their request for interlocutory review. We affirm the decision of the trial court and now remand this case to the trial court for further proceedings.

Jefferson County Court of Appeals 01/31/17
Michael Sipes, et al. v. Terry Sipes, et al.
W2015-01329-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Tony Childress

This appeal concerns a dispute between a father and his adult son over the transfer of real property. In 1997, the father constructed a house on a portion of his two-acre tract of land for his son. Several years later, the son agreed to purchase the house. Subsequently, a disagreement led the parties to discover identical errors in the legal descriptions in the warranty deed executed by the father transferring the property to the son and the deed of trust securing the son’s purchase money loan. The trial court, upon its finding of mutual mistake, reformed the incorrect legal descriptions in the deeds, but the court also granted the father a right to use a shed and garden on the son’s land. We affirm the trial court’s reformation of the legal descriptions in the deeds. However, because we conclude that the evidence is less than clear and convincing that the parties intended the deeds to include the father’s right of use, we reverse the trial court’s decision to grant the interest.

Dyer County Court of Appeals 01/31/17
Parris Keane, et al v. John P. Campbell, III et al
M2016-00367-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This cause came on to be heard upon the record on appeal from the Davidson County Circuit Court, the briefs of the parties, and the arguments of counsel. Upon consideration of the entire record, this court finds and concludes that the trial court’s judgment should be affirmed.

Davidson County Court of Appeals 01/31/17