Court of Appeals Opinions

Format: 12/15/2017
Format: 12/15/2017
In Re Brantley B.
M2016-02547-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ronald Thurman

Mother appeals the termination of her parental rights to her son resulting from a petition for termination and adoption filed by her son’s Father and Stepmother. The trial court terminated Mother’s rights on the grounds of abandonment by failure to support and persistence of conditions, and on a finding that termination was in the child’s best interest. Upon a thorough review of the record, we reverse the termination of Mother’s rights on the ground of persistence of conditions; we affirm the termination of her rights on the ground of abandonment by failure to support and the holding that termination is in the child’s best interest.

DeKalb County Court of Appeals 10/30/17
Cindy Phillips, Et Al. v. Rural Metro Of Tennessee, L.P., Et Al.
E2016-02440-COA-R9-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Michael S. Pemberton

We granted an interlocutory appeal pursuant to Tenn. R. App. P. 9 in this case to consider whether the allegations set forth in the Complaint make this a ‘health care liability action’ as defined by Tenn. Code Ann. § 29-26-101 et seq. (“the Tennessee Health Care Liability Act”) such that the pre-suit notice and certification requirements set forth in Tenn. Code Ann. §§ 29-26-121 and – 122 are applicable. We find and hold that the allegations set forth in the Complaint filed in this case do not make this suit a health care liability action as defined by the Tennessee Health Care Liability Act. We affirm that portion of the judgment of the Circuit Court for Loudon County (“the Trial Court”) finding and holding that the allegations set forth in the Complaint filed in this case do not make this suit a health care liability action as defined by the Tennessee Health Care Liability Act.1

Loudon County Court of Appeals 10/30/17
Voya Retirement Insurance And Annuity Company v. Mary Beth Johnson, Et Al.
M2016-00435-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Carol L. McCoy

A plan administrator filed an interpleader action asking the court to determine the proper beneficiary of death benefits in a retirement plan. After the plan participant died, both his former wife and his estate demanded payment from the plan administrator. Although the former wife was listed as the designated beneficiary in the plan, the estate claimed that the beneficiary designation had been revoked in the couple’s marital dissolution agreement. The former wife filed a motion for judgment on the pleadings and a counterclaim alleging breach of the implied covenant of good faith and fair dealing in the administration of the plan. The trial court denied the former wife’s motion, awarded the disputed proceeds to the estate, and dismissed the counterclaim. The former wife appealed. Upon review, we conclude that the marital dissolution agreement did not revoke the previous beneficiary designation. We also conclude that the trial court erred in dismissing the counterclaim. Thus, we reverse in part, vacate in part, and remand this case for further proceedings consistent with this opinion.

Davidson County Court of Appeals 10/27/17
Joanna Marie Vlach v. Gregory Alan Vlach
M2015-01569-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ross H. Hicks

The primary issue in this appeal is whether the former spouse of a military retiree is entitled to a share of his military retirement.  The military retiree submits that, because of his service-connected disability rating of 100%, his former spouse is not entitled to a share of his military retirement.  Based on its interpretation of the parties’ marital dissolution agreement, the trial court ruled in favor of the former spouse and awarded her a percentage of the retiree’s “total military retired pay,” including disability benefits.  Upon our de novo review, we conclude that the trial court erred in awarding the former spouse a percentage of the retiree’s disability benefits.  But the trial court correctly determined that the military retiree’s disability rating did not deprive his former spouse of an interest in his military retirement.

Montgomery County Court of Appeals 10/27/17
In Re: Estate of Joe Marce Abbott
W2017-02086-COA-T10B-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor George R. Ellis

This is a Rule 10B appeal of the denial of a petition for recusal. The trial court denied Appellant’s motion to recuse, and Appellant filed this accelerated interlocutory appeal pursuant to Rule 10B of the Rules of the Tennessee Supreme Court. We affirm in part, modifying the trial court’s order to deny the motion to recuse and vacate its order regarding the validity of the will. We remand for further hearing regarding the validity of the will at issue.

Gibson County Court of Appeals 10/27/17
Robert Weidlich v. Lisa Rung
M2017-00045-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Justin C. Angel

This appeal concerns a defamation claim. Lisa Rung (“Rung”) put up a Facebook post featuring a photograph of the back of Robert Weidlich (“Weidlich”)’s vehicle. Weidlich’s vehicle had a number of bumper stickers on it, some of which incorporated
the Confederate Battle Flag. Along with the photograph, Rung asserted in her Facebook post that the Weidlichs were “white supremacist[s].” Weidlich sued Rung for defamation in a case eventually tried before the Circuit Court for Franklin County (“the Trial Court”). After trial, the Trial Court entered judgment in favor of Weidlich and awarded him damages. Rung appeals. We hold that Rung’s Facebook post, viewed in its entire context, constitutes non-actionable commentary upon disclosed facts. We reverse the judgment of the Trial Court.

Franklin County Court of Appeals 10/26/17
Regina Edwards v. Allenbrooke Nursing and Rehabilitation Center, LLC
W2016-02553-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge James F. Russell

This appeal involves an arbitration agreement executed in connection with a nursing home admission. The trial court found no evidence that the individual who signed the arbitration agreement on behalf of the resident had authority to do so, and that, in any event, the form itself was not properly completed. Accordingly, the trial court denied the nursing home’s motion to compel arbitration. The nursing home appeals and argues that the trial court erred in deciding these issues because they should have been resolved by an arbitrator. We affirm and remand for further proceedings.

Shelby County Court of Appeals 10/26/17
Ana Tania Gomez, Et Al. v. Sable-Imagination On Sand, Et Al.
E2017-00107-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Telford E. Forgerty, Jr.

This is an appeal from a bench trial. Due to the deficiencies in the appellants’ brief on appeal, we find that they waived consideration of any issues on appeal and hereby dismiss the appeal.

Sevier County Court of Appeals 10/26/17
Christen Nicole Pankratz v. Dion Pankratz
M2017-00098-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Larry J. Wallace

This case involves a post-divorce modification of a parenting plan. The trial court found that there had been a material change in circumstances since the entry of the parties’ existing parenting plan. Mother appeals the trial court’s modification of the parenting plan insofar as the trial court did not adopt, in toto, her proposed plan. Father appeals the trial court’s finding that a material change in circumstances occurred since entry of the parties’ existing parenting plan but argues, in the alternative, that the trial court should be affirmed. Discerning no error, we affirm and remand.

Cheatham County Court of Appeals 10/25/17
Neighbors of Old Hickory, Et Al. v. Metropolitan Government Of Nashville And Davidson County, Tennessee, Et Al.
M2016-01815-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Senior Judge Robert E. Lee Davies

This is a declaratory judgment action in which the plaintiff property owners sought a finding that the defendant’s right to operate a rock quarry had not vested prior to the adoption of BL2015-13, which prohibits such activity on the property in question. All parties then moved for summary judgment as relevant to their respective positions. The trial court granted summary judgment in the defendant’s favor, finding that the quarry qualified as a pre-existing nonconforming use. We affirm.  

Davidson County Court of Appeals 10/25/17
In Re: Eric G.
E2017-00188-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Dwight E. Stokes

In this termination of parental rights case, a mother appeals the termination of her rights to her son on the grounds of abandonment by failure to establish a suitable home, persistence of conditions, and mental incompetence and upon the finding that termination was in the child’s best interest. Upon our review, we discern no error and affirm the judgment of the juvenile court.

Sevier County Court of Appeals 10/25/17
Commercial Bank & Trust Company, Et. Al. v. Children's Anesthesiologists, P.C., Et Al.
E2016-01747-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Deborah C. Stevens

Commercial Bank & Trust Company, Legal Guardian of the Estate of Albert P. Mjekiqi, a Disabled Minor; Omer Mjekiqi and Gabriela Mjekiqi, Individually and as Legal Guardians of the Person of Albert P. Mjekiqi; and Volunteer State Health Plan, Inc. (collectively “Plaintiffs”) sued Children’s Anesthesiologists, P.C.; Heather D. Phillips, D.O.; Kari L. Clinton; Neurosurgical Associates, P.C.; Lewis W. Harris, M.D.; and East Tennessee Children’s Hospital Association, Inc. d/b/a East Tennessee Children’s Hospital alleging health care liability in connection with surgery performed on Albert P. Mjekiqi (“Albert”) in May of 2011. After a trial, the Circuit Court for Knox County (“the Trial Court”) entered judgment on the jury’s verdict finding no liability on the part of the defendants. Plaintiffs appeal to this Court raising issues with regard to admission of evidence and jury instructions. We discern no error, and we affirm

Knox County Court of Appeals 10/25/17
Alice Marie Cherqui v. Moshe Laor
W2016-02502-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor James F. Butler

This case involves the interpretation and enforcement of an alimony termination provision in the parties’ marital dissolution agreement. Wife filed a Notice of Termination of Alimony Payments in the Chancery Court of Madison County, alleging that Husband’s non-compliance with the parties’ permanent parenting plan relieved her of any further obligation to pay alimony pursuant to the alimony provision of their marital dissolution agreement. Husband then filed a motion to enforce the marital dissolution agreement and for a temporary injunction. Wife subsequently moved for summary judgment to enforce the alimony provision of the marital dissolution agreement. Husband did not dispute that he failed to comply with the “Passport Provision” of the parties’ permanent parenting plan but argued that his violation of the agreement did not relieve Wife’s obligation to continue to pay alimony in solido. The trial court concluded that the marital dissolution agreement unambiguously provided that Wife would be immediately relieved of her total obligation to pay alimony if Husband failed to comply with his obligations under the parties’ permanent parenting plan and granted Wife’s motion for summary judgment. Husband appeals the trial court’s granting of summary judgment, while Wife seeks an award of her attorney’s fees on appeal. Finding no error, we affirm the trial court’s granting of summary judgment and award the Wife her attorneys’ fees incurred on appeal which the trial court shall calculate upon remand.

Madison County Court of Appeals 10/25/17
Sons of Confederate Veterans Nathan Bedford Forrest Camp #215 v. City of Memphis, ET AL.
W2017-00665-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge JoeDae L. Jenkins

Appellant appeals from the trial court's grant of summary judgment in favor of appellee concerning appellees' authority to rename three city parks by way of resolution.  After a thorough review of the record, we affirm the decision of the trial court.

Shelby County Court of Appeals 10/24/17
Amy Jo Slocum v. Jamie Don Slocum
M2016-01881-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Clara Byrd

This is a divorce case. Jamie Don Slocum appeals the trial court’s division of the marital estate and the trial court’s award of rehabilitative support to his spouse, Amy Jo Slocum. Husband argues that the trial court erred in finding that he dissipated marital assets (1) before the parties’ separation and (2) during the pendency of the divorce. Husband also asserts that wife has an earning capacity higher than the $1,449 per month found by the trial court. Wife posits that the trial court’s findings of fact are correct and supported by the preponderance of the evidence. She argues, however, that her spousal support award of $1,264 per month until May 31, 2025, should be classified as transitional support rather than rehabilitative. We hold that the trial court’s judgment with respect to spousal support should be modified to reflect that her support award is in the nature of transitional spousal support. As modified, the trial court’s judgment is affirmed.

Wilson County Court of Appeals 10/23/17
Craig Robert Nunn v. Tennessee Department of Correction, Et Al.
M2016-01518-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Russell T. Perkins

This case involves a sex offender’s complaint for declaratory relief under state law and 42 U.S.C. § 1983 raising various constitutional and other challenges to the conditions imposed on him in accordance with his sentence to community supervision for life. The trial court found that most of the offender’s constitutional claims were time-barred. The trial court reviewed the substantive merit of the remaining claims and found them meritless. As a result, the trial court granted the motion for summary judgment filed by the defendants, the Tennessee Department of Correction and the Tennessee Attorney General. The offender raises numerous issues on appeal. We affirm in part, reverse in part, and remand for further proceedings.

Davidson County Court of Appeals 10/23/17
Stacey Fair, Et Al. v. Clarksville Montgomery County School System
M2017-00206-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge William R. Goodman, III

This appeal involves a determination by a school system that children were attending the wrong schools based upon their domicile within the county. We grant the school system’s motion to consider post-judgment facts indicating that the children no longer attend any school in the school system and accordingly dismiss this appeal as moot. 

Montgomery County Court of Appeals 10/23/17
Billy Joe Greenwood v. Tennessee Board of Parole
M2016-02059-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This appeal arises from the denial of parole to an inmate by the Tennessee Board of Parole (“the Board”). The inmate was convicted in 1990 of first degree murder and first degree burglary. The Board denied parole on the basis that the inmate’s release at the time of the hearing would depreciate the seriousness of the crime for which he was convicted. The inmate filed a petition for writ of certiorari with the Davidson County Chancery Court (“trial court”), alleging violations of due process and equal protection. The trial court denied relief, determining that no grounds existed to disturb the Board’s decision. Discerning no reversible error, we affirm.

Davidson County Court of Appeals 10/23/17
In Re Estate of Veronica Stewart
M2016-02355-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Larry B. Stanley

This appeal arises from a will contest. The contestant insists the purported Last Will and Testament of the decedent, dated June 19, 2015, is invalid because the attesting witnesses, who duly executed the attestation affidavit, failed to affix their signatures to the will as required by the Tennessee Execution of Wills Act at the time the will was executed. The proponent insists the will was validly executed based on a 2016 amendment to Tenn. Code Ann. § 32-1-104, which applies to wills executed prior to July 1, 2016, and states “to the extent necessary for the Will to be validly executed, witness signatures affixed to an affidavit meeting the requirements of § 32-2-110 shall be considered signatures to the Will.” The trial court ruled that the 2016 amendment did not apply because the testator died before it went into effect. Consequently, the 2015 will was invalid because it was not executed in accordance with the law then in effect. We have determined that the 2016 amendment to Tenn. Code Ann. § 32-1-104 applies retrospectively to wills executed prior to July 1, 2016, because that is the clear and unambiguous intent of the legislation. We have also determined that the retrospective application of the law does not impair any vested legal right of the contestant. Therefore, we reverse and remand for further proceedings consistent with this opinion.

Warren County Court of Appeals 10/20/17
Joe David Erwin, et al. v. Great River Road Supercross, LLC, et al.
W2017-00150-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Tony Childress

At oral argument, the parties agreed that the trial court made a finding concerning the reliance element of Appellants’ fraud claim that was not supported by the record. Accordingly, we vacate the trial court’s order and remand the case for further proceedings.

Dyer County Court of Appeals 10/19/17
In Re Elizabeth Beck Hoisington Living Trust
W2016-02527-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Karen D. Webster

Appellant appeals the trial court’s determination that settlor’s holographic notations on her trust agreement did not operate to modify the original trust. Specifically, the trial court held that settlor neither satisfied the requirements for modification of the trust as set out in the trust agreement, nor manifested a clear intent to amend the trust under Tennessee Code Annotated Section 35-15-602(c)(2)(B). Discerning no error, we affirm.

Shelby County Court of Appeals 10/19/17
Mark T. Thomas v. Richard J. Myers, et al.
W2016-02581-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Senior Judge William B. Acree

This is a legal malpractice case. Appellees, who are licensed attorneys, represented Appellant in a trademark infringement and consumer protection lawsuit in federal court that resulted in a judgment against Appellant. On October 21, 2015, more than a year after the federal court judgment, Appellant filed a complaint for misrepresentation and negligence against Appellees. The trial court interpreted Appellant’s claims against Appellees as a legal malpractice action and granted Appellees’ motion for summary judgment on the ground that the one-year statute of limitations had expired prior to commencement of the action. Tenn. Code Ann. § 28-3-104(c)(1). We affirm the trial court’s judgment and remand.

Shelby County Court of Appeals 10/19/17
Corey M. Searcy, et al. v. Walter Axley, et al.
W2017-00374-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Charles C. McGinley

Parents filed suit against dog owners following their son’s injury from a dog bite that occurred at the owners’ home. The trial court granted the dog owners’ motion for summary judgment, concluding that parents failed to show that owners knew or should have known of their dog’s dangerous propensities as required by Tennessee Code Annotated section 44-8-413. Finding no error, we affirm the trial court’s judgment.

Benton County Court of Appeals 10/19/17
Tray Simmons v. John Cheadle, Et Al.
M2017-00494-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Mitchell Keith Siskin

This appeal involves a dispute between a judgment debtor and the attorneys for the judgment creditor. In an effort to collect on a final judgment, attorneys for the judgment creditor served the judgment debtor with a notice of deposition. After some discussion, it became clear that the debtor failed to bring the requested documents with him to the deposition, and the attorneys for the creditor refused to go forward with the deposition that day. The debtor then filed this separate lawsuit, pro se, against the creditor’s attorneys alleging that they had taken an “unlawful deposition” of him. The trial court granted summary judgment in favor of the attorneys for the judgment creditor. We affirm.  

Davidson County Court of Appeals 10/19/17
Dianne Elizabeth Lutzak, Trustee Of The Dianne Elizabeth Lutzak Family Revocable Trust v. Phoenix American Development Partners, L. P. Et Al.
M2015-02117-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor James G. Martin, III

The owner of undeveloped property sought a declaratory judgment that restrictive covenants governing an adjacent subdivision did not apply to its property. The developer of the subdivision and the homeowners’ association of the subdivision filed counterclaims seeking a declaratory judgment that the restrictive covenants applied to the undeveloped property and attorney’s fees and costs. On cross-motions for summary declaratory judgment, the trial court granted summary declaratory judgment to the owner of the undeveloped property. On appeal, the defendants argue that the trial court erred in finding no express restrictive covenants applicable to the undeveloped property and in refusing to enforce negative reciprocal easements by implication from an alleged common development plan. We conclude that the restrictive covenants, by their express terms, do not apply to the undeveloped property. We further conclude that the trial court properly declined to impose negative reciprocal easements on the undeveloped property. Thus, we affirm.

Williamson County Court of Appeals 10/18/17