Court of Appeals Opinions

Format: 04/21/2015
Format: 04/21/2015
Pamela Barkley, et al. v. Shelby County Board of Education
W2014-00417-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Robert Samual Weiss

Action under the Tennessee Governmental Tort Liability Act to recover for injuries sustained in a slip and fall at a school operated by the Shelby County Board of Education. In a bench trial, the court held the school board 60% liable and plaintiff 40% liable and awarded plaintiffs damages totaling $29,400. The Board of Education appeals the holdings that it was negligent, that its immunity was removed, and that the plaintiff was less than 50% at fault for her injury. While the evidence does not preponderate against the finding that plaintiff fell on water in the school hallway, there is no evidence that the Board had notice of the water; consequently, we reverse the judgment of the trial court and dismiss the case.

Shelby County Court of Appeals 03/18/15
In Re Agustine R. et al.
E2014-01091-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jeffrey D. Rader
This is a termination of parental rights appeal brought by the father. The trial court found clear and convincing evidence to support termination of the father’s parental rights on the statutory grounds of abandonment for failure to remit child support and failure to comply with the permanency plans. The court also found that termination of the father’s parental rights was in the best interest of the children. The father appeals. We affirm. 
Sevier County Court of Appeals 03/17/15
Terrence Moore Robinson, Jr. v. Susan Kathleen Robinson
M2014-00431-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge James G. Martin, III

In this post-divorce action, Mother appealed from the trial court’s decision to change the designation of primary residential parent to Father. After an evidentiary hearing, the trial court found that a material change in circumstances had occurred based on the child’s recent athletic development and its impact on his social development. The trial court also found that making Father the primary residential parent was in the best interests of the child. In making the best interests determination, the trial court made particular note that the parties’ fifteen-year-old son preferred to live with Father. Mother appealed, arguing that there was no material change in circumstances and that the trial court erred by failing to consider the importance of continuity and by allowing the preference of the child to control the outcome of the best interests determination. Because we find that the evidence does not preponderate against the trial court’s findings and that there is no error in the trial court’s conclusions, we affirm.

Williamson County Court of Appeals 03/16/15
Melissa L. Taylor Et al. v. James T. George, II et al.
E2014-00608-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor John F. Weaver
The plaintiff filed this action seeking to enforce a judgment for child support and alimony entered in South Carolina and subsequently domesticated in Tennessee. One defendant serves as the trustee of a testamentary trust while the other defendant is a trust beneficiary and the judgment debtor. Before this action proceeded to trial, the trustee distributed all of the respective trust assets to the beneficiary/debtor. As the trial court determined that there was insufficient evidence of a fraudulent conveyance or civil conspiracy, it dismissed the plaintiff’s claims against the trustee. The trial court upheld the plaintiff’s judgment against the beneficiary/debtor and awarded pre- and post-judgment interest thereon. The plaintiff appealed. Discerning no error, we affirm the trial court’s judgment. 
Knox County Court of Appeals 03/16/15
Richard Malone, et al v. Mathew Lasater, et al
M2014-00777-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

The parties executed an arbitration agreement to submit disputes arising from their franchise agreement to binding arbitration. The trial court held that, under the arbitration agreement, the individual Defendants were liable, in their personal and corporate capacities, for amounts awarded to Plaintiffs by the arbitrators. Additionally, the trial court denied Defendants‟ motion to dismiss for failure to state a claim, in which Defendants contended that the arbitrators‟ decision was invalid as a matter of law. We affirm and remand.

Montgomery County Court of Appeals 03/12/15
In Re: Clarice R.
M2014-01018-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Lee Bussart

Father appeals the trial court’s determination that it was in the best interest of the child to terminate father’s parental rights. We find that clear and convincing evidence supports the decision of the trial court.

Marshall County Court of Appeals 03/12/15
In Re Noah B.B.
E2014-01676-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor W. Frank Brown, III

This appeal involves the termination of a Mother's parental rights on the grounds of abandonment by willful failure to visit and willful failure to support. We affirm the trial court's finding that grounds for termination exist due to abandonment by willful failure to visit, and we also affirm the trial court's finding that termination is in the best interest of the child. We vacate the trial court‟s finding of abandonment by willful failure to support but otherwise affirm the order terminating Mother‟s parental rights as modified.

Hamilton County Court of Appeals 03/12/15
Stephanie J. Solima v. David J. Solima
M2013-01074-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Timothy L. Easter

This appeal arises out of Mother’s and Father’s opposing motions to modify a parenting plan. Both of the parties and the court agreed that there had been a material change in circumstance warranting a modification of the plan. After a hearing, the court largely adopted Mother’s proposed parenting plan and reduced Father’s residential parenting time. The court also denied Mother’s request for attorneys’ fees. Shortly after the new parenting plan was entered, Mother filed a motion for a one-time modification of the plan to allow the child to attend a school trip that coincided with both parties’ parenting time. After a hearing, the court granted Mother’s motion. Father appealed the new parenting plan and the one-time modification. We find the modification issue moot and, therefore, dismiss that portion of Father’s appeal. We affirm the trial court’s judgment in all other respects. 

Williamson County Court of Appeals 03/11/15
Starlink Logistics, Inc. v. Acc, LLC, et al
M2014-00362-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Carol L. McCoy

This appeal stems from an environmental dispute involving the Appellant, StarLink Logistics Inc. (“StarLink”), the Tennessee Department of Environment and Conservation (“TDEC”), and Appellee ACC, LLC (“ACC”). StarLink appeals the trial court’s affirmance of an order of the Tennessee Solid Waste Disposal Control Board (“Board”), which had adopted a consent order entered into between TDEC and ACC. We affirm in part, and remand the case to the trial court for further remand to the Board for further proceedings consistent with this Opinion. 

Davidson County Court of Appeals 03/11/15
Jim Ferguson v. Middle Tennessee State of University
M2012-00890-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John D. Wootten, Jr.

This case is before us on remand from the Tennessee Supreme Court. Appellee/Employee filed suit against Appellant/Employer for discrimination. Appellee later filed a separate suit for retaliation and malicious harassment. The two lawsuits were consolidated in the trial court. The case was tried to a jury, which returned a verdict in favor of Appellant on the retaliation claim. The jury awarded Appellant $3,000,000 in compensatory damages. In Ferguson v. Middle Tennessee State University, No. M2012-00890-COA-R3-CV, 2013 WL 1304490 (Tenn. Ct. App. March 28, 2013), we reversed the jury verdict, finding that Appellant had failed to prove the knowledge element of his retaliation claim. In Ferguson v. Middle Tennessee State University, ___S.W.3d ___, No. M2012-00890-SC-R11-CV, 2014 WL 5463941 (Tenn. Oct. 29, 2014), the Supreme Court reversed this Court and remanded the case to us for the sole purpose of reviewing the award of damages. Because there is material evidence on which a reasonable jury could conclude that Appellant was entitled to $3,000,000 in compensatory damages, we affirm and remand.

Rutherford County Court of Appeals 03/11/15
Frank Manning, et al v. Amy Emmitt Manning
M2014-01149-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Jim T. Hamilton

In this grandparent visitation case, the trial court awarded grandparents visitation with the child at issue, finding that there was “some deprivation” of visitation by the child’s mother. We vacate the judgment of the trial court and remand for further proceedings to determine whether the child’s mother opposed visitation, as that phrase is defined in Huls v. Alford, No. M2008-00408-COA-R3-CV, 2008 WL 4682219 (Tenn. Ct. App. Oct. 22, 2008).

Maury County Court of Appeals 03/10/15
Edwin P. Osborne v. Tennessee State Board of Accountancy
M2014-01050-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Claudia C. Bonnyman

An accountant appeals the dismissal of his petition for judicial review of an order of the Tennessee State Board of Accountancy. The trial court dismissed the petition for review for lack of subject matter jurisdiction. Because we find the petition for review was not timely filed, we affirm.

Davidson County Court of Appeals 03/10/15
Leisa Reed v. Randell Thurman et al.
E2014-00769-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Jeffrey F. Stewart

This appeal stems from the trial court’s finding that an implied partnership existed between Plaintiff and one of the Defendants with respect to a cattle-raising venture. Despite finding that the parties had already entered into a complete settlement regarding the partnership checking account and remaining partnership cattle, the trial court found that certain partnership assets had not been settled. The trial court’s final decree directed that Plaintiff be paid one- half of the fair market value of these assets, and stated that if no agreement could be reached concerning their value, the items should be sold and the proceeds divided equally. We affirm in part, reverse in part, and remand the case for further proceedings as are necessary and consistent with this Opinion.

Rhea County Court of Appeals 03/10/15
Dennis Smith v. George Testerman, M.D. et al.
E2014-00956-COA-R9-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor E.G. Moody

This is a case alleging negligence by the defendants which resulted in injury to a patient, Dennis Smith. Following hernia surgery, Mr. Smith was fitted for a wound vacuum because an infection had developed at the surgical site. A sponge was placed to absorb the infection. The defendants removed the wound vacuum when the infection dissipated, but they failed to remove the sponge, which later caused the wound to burst. Mr. Smith filed suit, and the defendants asserted that dismissal was appropriate because Mr. Smith had not complied with the filing requirements of the health care liability statute. Mr. Smith 1 responded that his complaint sounded in ordinary negligence, not health care liability. The trial court agreed and denied the motions but also granted permission for the defendants to pursue an interlocutory appeal. We granted the application for permission to appeal and now reverse the decision of the trial court.

Sullivan County Court of Appeals 03/10/15
Ophelia Carney v. Santander Consumer USA
W2014-02228-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Kyle Atkins

The order appealed is not a final judgment, and therefore, we dismiss this appeal for lack of jurisdiction.

Madison County Court of Appeals 03/09/15
Betsy Stibler v. The Country Club, Inc.
E2014-00743-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Douglas T. Jenkins

Betsy Stibler ("Plaintiff") sued The Country Club, Inc. ("Defendant") alleging, among other things, that Defendant had created a nuisance by planting trees on Defendant's real property adjacent to Plaintiff's real property. Defendant filed a motion for summary judgment. After a hearing the Chancery Court for Hamblen County ("the Trial Court") granted Defendant summary judgment after finding and holding that Plaintiff could not prove that the trees planted by Defendant constituted a nuisance. Plaintiff appeals to this Court. We find and hold that there are no genuine disputed issues of material fact and that Defendant is entitled to judgment as a matter of law, and we affirm.

Hamblen County Court of Appeals 03/09/15
William Hunter Babcock v. Sonnia Elizabeth Babcock
E2014-01670-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

A married couple entered into a business partnership prior to their marriage. This is a consolidated appeal from the parties’ divorce action and their partnership dissolution action. We affirm the trial court’s decision to adjudicate the partnership dissolution action and the divorce action separately, based on Wife’s failure to raise any argument on this issue in the trial court. With regard to the remaining issues, however, we vacate the judgment of the trial court and remand for findings of fact and conclusions of law pursuant to Rule 52.01 of the Tennessee Rules of Civil Procedure.

Hamilton County Court of Appeals 03/09/15
In Re: Kim C., et al
M2014-00215-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Donna Scott Davenport

This is a termination of parental rights case. The trial court terminated Appellants/Parents’ parental rights on the grounds of: (1) abandonment by failure to provide suitable housing; (2) substantial non-compliance with the permanency plans; and (3) persistence of conditions. Because the grounds for termination of Appellants’ parental rights are met by clear and convincing evidence, and there is also clear and convincing evidence that termination of parental rights is in the best interests of the Children, we affirm and remand.

Rutherford County Court of Appeals 03/06/15
Diaz Construction v. The Industrial Development Board of The Metropolitan Government of Nashville And Davidson County, et al.
M2014-00696-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Carol L. McCoy

A subcontractor filed suit to enforce a mechanic’s lien. The subcontractor, which was also a remote contractor, was required by Tenn. Code Ann. § 66-11-145(a) to serve a notice of its claim of nonpayment on the owner of the project as well as on the “prime contractor in contractual privity with the remote contractor.” The subcontractor notified the owner, but it did not notify the prime contractor. The subcontractor asserted it was not required to notify the prime contractor because it had no contractual relationship with the prime contractor. The defendants moved to dismiss the subcontractor’s complaint due to its failure to comply with the statute and notify the proper parties. The trial court granted the motions and dismissed the subcontractor’s lien claims. The subcontractor appealed, and we affirm the trial court’s judgment. The subcontractor is required by statute to notify both the owner and the prime contractor of the project of nonpayment.

Davidson County Court of Appeals 03/06/15
In Re Kinsley H.
W2014-00276-COA-R3-JV
Authoring Judge: Per Curiam
Trial Court Judge: Judge William A. Peeler

The order appealed is not a final judgment and therefore, the Court lacks jurisdiction to hear this matter. Consequently, this appeal is hereby dismissed.

Tipton County Court of Appeals 03/04/15
In Re S.C.M. Et Al.
E2014-01379-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Douglas T. Jenkins

This is a termination of parental rights case regarding S.C.M. and T.O.J.M. (collectively, the Children), the minor children of H.C. (Mother) and B.M. (Father). After both parents were arrested, the Children’s maternal grandparents, R.R. and T.R. (collectively, the Grandparents) obtained temporary, emergency custody. Nearly three years later, the Grandparents filed a petition seeking to (1) terminate both parents’ rights and (2) adopt the Children. Following a trial, the court terminated both parents’ rights. Father appeals. We affirm.

Hawkins County Court of Appeals 03/02/15
S.W., by Heather Warren and Thomas C. Warren, as his natural parents and next friends v. Baptist Memorial Hospital, et al.
W2014-00621-COA-R10-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert L. Childers

 

This is a healthcare liability action.  The trial court granted Defendants’ motion for a qualified protective order pursuant to Tennessee Code Annotated  § 29-26-121(f)(1), but set forth several conditions, including: 1) a court reporter must be present at the ex parte interviews with Plaintiff’s treating healthcare providers and record all questions and answers; 2) all answers during the interviews must be under oath; 3) the interview transcripts shall be filed under seal and with permission of the trial court, and after showing of good cause, Plaintiff may access the transcripts for the purpose of determining whether a violation of privacy under HIPAA occurred during the interviews; and 4) Defendants should not attempt to elicit or discuss protected health information which is not relevant to the issues in this lawsuit.  The order also provided “[t]his does not restrict the Defendants or their attorneys from discussing non-substantive matters unrelated to the patient’s protected health information.”  The trial court denied Defendants’ joint motion for interlocutory appeal of the order and Defendants filed an application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure.  We granted the appeal for the sole purpose of determining whether, under section 29-26-121(f), the trial court erred by adding the four conditions noted above to its order.  We reverse in part, affirm in part, and remand for further proceedings.


 

Shelby County Court of Appeals 02/27/15
Michael David Olson v. Jennifer Carlin Beck
M2013-02560-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Philip E. Smith

In this divorce appeal, Husband argues that the trial court erred in not allowing him to repudiate the parties’ marital dissolution agreement. Husband also asserts that the trial court erred in its determination regarding the parenting plan, in failing to consider split parenting time, and in awarding Wife her attorney fees. We find no merit in Husband’s arguments and affirm the trial court’s decision.

Davidson County Court of Appeals 02/27/15
Sherrie L. Durham v. Tennessee Department of Labor And Workforce Development, et al
M2014-00428-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Senior Jude Donald P. Harris

The trial court denied Plaintiff’s motion to recuse and granted Defendants’ motion to dismiss for failure to prosecute. We reverse in part, affirm in part, and remand for further proceedings consistent with this Opinion.

Court of Appeals 02/27/15
Cody S. Thomas v. Jenna R. (Thomas) Miller
M2013-01485-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge J. B. Cox

In this post-divorce case, Father filed a petition to modify the permanent parenting plan to make him the primary residential parent and to hold Mother in contempt for failure to abide by the joint decision-making provision of the plan.  The trial court found a material change of circumstances existed warranting a change in the primary residential parent and held Mother in contempt, awarding Father $675.00 in attorney’s fees as a sanction. Mother appeals. We find no error in the trial court’s decision to change the primary residential parent;however,we vacate the trial court’s finding of contempt because Father’s petition did not comply with the mandates of Tenn. R. Crim. P. 42(b).

Moore County Court of Appeals 02/27/15