Court of Appeals Opinions

Format: 06/19/2018
Format: 06/19/2018
In Re Emily J. Et Al.
M2017-01959-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Sharon Guffee

Mother appeals the termination of her parental rights to two children on the grounds of abandonment by failure to support and persistence of conditions. Upon our review, we conclude that the record contains clear and convincing evidence that the conditions which led to the children’s removal from Mother’s home persisted and that termination of her rights is in the children’s best interest; however, the evidence of abandonment by failure to support is not clear and convincing. Accordingly, we reverse the judgment in part and affirm the termination of her rights.  

Williamson County Court of Appeals 05/09/18
Matthew Brock Hance v. Danielle Smith Hance
E2017-01419-COA-R3-CV
Authoring Judge: Judge Frank G. Clement Jr., P.J., M.S.
Trial Court Judge: Judge Douglas T. Jenkins

The issue on appeal is whether the commencement of a dependency and neglect action in the juvenile court deprived the chancery court of subject matter jurisdiction to rule on a pending motion to modify a parenting plan. Shortly after Father filed his petition to modify the parenting plan in the chancery court, the Department of Children’s Services filed a dependency and neglect petition in the juvenile court. After the juvenile court held a preliminary hearing on the dependency and neglect petition and assumed jurisdiction, the chancery court modified the parents’ child support obligations and awarded the father the federal income tax exemption for the child. Months later, the mother filed a motion to vacate the chancery court’s judgment on the basis it was void ab initio for lack of subject matter jurisdiction. The chancery court denied the motion, and this appeal followed. Tenn. Code Ann. § 37-1-103 vests juvenile courts with exclusive original jurisdiction over dependency and neglect proceedings and, once a juvenile court has exercised jurisdiction in a dependency and neglect proceeding, its exclusive jurisdiction continues until the case has been dismissed, the custody determination is transferred to another court exercising domestic relations jurisdiction, or a petition for adoption is filed. Because none of the jurisdiction exceptions had occurred prior to the chancery court modifying the parenting plan, the chancery court’s order was void ab initio for lack of subject matter jurisdiction. Accordingly, the chancery court’s order modifying the parenting plan is hereby vacated.

Hamblen County Court of Appeals 05/08/18
In Re: Isaiah B.
E2017-01699-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Klyne Lauderback

Mother appeals the termination of her parental rights on grounds of (1) abandonment by failure to establish a suitable home; (2) persistence of conditions; (3) substantial noncompliance with permanency plans; and (4) failure to manifest a willingness and ability to assume custody of the child. We reverse the trial court’s ruling with regard to substantial noncompliance with permanency plans, but affirm the remaining grounds, as well as the trial court’s determination that termination is in the child’s best interest. The termination of Mother’s parental rights is therefore affirmed.

Carter County Court of Appeals 05/08/18
Polly Spann Kershaw v. Jeffrey L. Levy
M2017-01129-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge William B. Acree

This is a legal malpractice case. Appellant filed suit against Appellee, who had previously served as Appellant’s attorney in a divorce matter. Appellant alleged that she suffered monetary damages and was convicted of criminal contempt as a result of the negligent legal representation she received from Appellee in her divorce case. Appellee filed a motion for summary judgment claiming that Appellant’s claims were, among other things, barred by the doctrine of judicial estoppel as a result of the sworn statements Appellant made in conjunction with her divorce settlement. The trial court agreed and granted summary judgment in favor of Appellee. We affirm.      

Davidson County Court of Appeals 05/08/18
Sammie L. Brookins, et al. v. Owen B. Tabor, Jr., et al.
W2017-00576-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert L. Childers

A plaintiff filed a health care liability complaint in 2015 against several physicians and entities that he later non-suited in order to comply with the pre-suit notice requirements set forth in Tenn. Code Ann. § 29-26-121(a). The plaintiff then filed a second complaint against the same defendants, relying on the saving statutes of Tenn. Code Ann. § 28-1- 105 and Tenn. Code Ann. § 29-26-121(c) to extend his statute of limitations. The plaintiff’s wife joined him as a plaintiff in the second complaint. The defendants filed motions to dismiss, alleging non-compliance with the pre-suit notice requirements and the statute of limitations. The trial court granted all of the defendants’ motions and dismissed the complaint. The plaintiffs appealed the trial court’s dismissal of the complaint against the physicians. We affirm the trial court’s dismissal of the complaint against all three of the physicians on statute of limitations grounds. We also affirm the trial court’s judgment dismissing the wife’s claims against all of the defendants.

Shelby County Court of Appeals 05/08/18
Renee Ann Bradley v. Richard Bradley
E2017-01626-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Michael A. Davis

A husband and wife were divorced in 2016, and the divorce decree permitted the husband to purchase the parties’ real property, which was in the wife’s name. The parenting plan provided the parties the opportunity to travel domestically or abroad with their minor son. The husband filed a contempt petition against the wife based on her refusal (1) to provide information to his lender that was necessary for him to close on the purchase of the property and (2) to cooperate with him to renew their child’s passport when the husband wanted to travel with the child to Europe. The trial court found the wife in contempt on both grounds and awarded the husband damages. The wife appealed, arguing that she was not willful in refusing to cooperate with the husband’s lender. The evidence showed that the wife believed the husband was trying to refinance her loan and add his name to her deed rather than purchase the property outright. We hold that the trial court erred in finding the wife willfully disobeyed the court’s order that she cooperate with the husband’s lender. We affirm the trial court’s order holding the wife in contempt for failing to cooperate with the husband in renewing the child’s passport.

Morgan County Court of Appeals 05/07/18
John A. Gardner Et Al. v. R & J Express, LLC
E2017-00823-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Beth Boniface

In this negligence action that arose from a tractor-trailer accident, the trial court dismissed the plaintiffs’ claims following the court’s determination that a critical piece of evidence had been destroyed by the plaintiffs, resulting in severe prejudice to the defendant. The court further determined that dismissal was the only equitable remedy for the plaintiffs’ spoliation of evidence. The plaintiffs timely appealed the dismissal of their claims. Discerning no reversible error, we affirm.

Hamblen County Court of Appeals 05/07/18
Randall E. Pearson, MD, Et Al. v. Paul Koczera, Et Al.
E2017-00258-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John D. McAfee

This appeal follows prior appeals in this litigation that has spanned a decade. In this latest appeal, the trial court determined that the motions filed by the administrator ad litem for the estate of the third-party plaintiff should be denied. We affirm.

Anderson County Court of Appeals 05/07/18
In Re Justice H., Et Al.
M2017-01870-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge G. Andrew Brigham

This appeal concerns the termination of two parents’ parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Stewart County (“the Juvenile Court”) seeking to terminate the parental rights of Joshua H. (“Father”) and Amie H. (“Mother”) to their minor children Justice and Alijah (“the Children,” collectively). After a trial, the Juvenile Court found the ground of severe abuse with respect to both parents. The Juvenile Court also found that termination of Mother’s and Father’s parental rights is in the Children’s best interest. Mother and Father appeal to this Court. Neither parent contests grounds for termination, but both parents challenge the Juvenile Court’s finding that termination of their parental rights is in the Children’s best interest. We find by clear and convincing evidence, as did the Juvenile Court, that termination of Mother’s and Father’s parental rights is in the Children’s best interest. We affirm the judgment of the Juvenile Court.

Stewart County Court of Appeals 05/04/18
In Re: Jury Venire for the Week of July 24, 2017
M2017-02113-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joseph P. Binkley, Jr.

The trial court ordered the Appellant to pay its employee for the full twelve hours of a work shift excused due to the employee’s jury service. For the reasons stated herein, we vacate the trial court’s judgment and order that the case be dismissed.

Davidson County Court of Appeals 05/03/18
Anne Shacklett v. Anthony A. Rose, Et Al.
M2017-01650-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joseph Woodruff

This is a slip-and-fall case. An employee of a catering company fell, injuring herself when leaving a private residence after dark as she attempted to traverse an outside staircase. The employee brought suit against the homeowners, and the homeowners filed a motion for summary judgment. The trial court granted the homeowners’ motion, concluding that the homeowners did not owe the employee a duty of care. Our review of the record has revealed that material, disputed facts remain which render this case inappropriate for summary judgment. Accordingly, we reverse and remand. 

Williamson County Court of Appeals 05/02/18
Terra Joy Marie Westfall v. Eric James Westfall
E2017-01819-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ben W. Hooper, II

This case involves an order of protection sought by the petitioner against the respondent, who is the petitioner’s husband, on behalf of the petitioner and her three minor children. The trial court initially granted an ex parte order of protection and scheduled the matter for hearing. Following a subsequent bench trial, the trial court extended the ex parte order of protection for a period of one year, but it made no findings of fact or conclusions of law regarding the allegations in the petition or whether the petitioner had met her burden of proof. The petitioner timely appealed. Because the trial court failed to make adequate findings of fact and conclusions of law, we hereby vacate the trial court’s order and remand for entry of sufficient findings of fact and conclusions of law regarding whether the ex parte order of protection should be dissolved or an order of protection, not to exceed one year, be entered pursuant to Tennessee Code Annotated § 36-3-605 (2017).

Jefferson County Court of Appeals 05/02/18
R.C. Ex Rel. Adam Elrod v. State of Tennessee
E2017-01529-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: William A. Young, Commissioner

This action involves a claim filed against the State of Tennessee with the Tennessee Claims Commission. The Commissioner ultimately dismissed the claim with prejudice for failure to advance the case to disposition. The claimant filed a motion for relief from the judgment pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure.1 The claimant then filed a notice of appeal before the Commissioner ruled upon the motion. We dismiss the appeal for lack of subject matter jurisdiction and remand for further proceedings consistent with this opinion.

Cocke County Court of Appeals 05/02/18
Candace McAllister v. Law Office of Stephen R. Leffler, PC, et al.
W2016-00853-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jerry Stokes

This appeal involves a breach of contract action in which the trial court granted summary judgment in favor of the defendant and later dismissed a motion to alter or amend its judgment. The plaintiff appeals the denial of her motion to alter or amend the judgment. We dismiss the appeal for lack of subject matter jurisdiction.

Shelby County Court of Appeals 05/01/18
In Re Kah'nyia J., Et Al.
M2017-00712-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge:

A Mother and Father appeal the termination of their parental rights to their son on the grounds of abandonment by failure to support, substantial noncompliance with a permanency plan, and persistence of conditions. Father also appeals the termination of his rights on the ground of failure to provide prenatal support, and Mother also appeals the termination of her rights to her daughter on the grounds of abandonment by failure to support, substantial noncompliance with a permanency plan, and persistence of conditions. Upon a thorough review of the record, we reverse the termination of both parents’ rights on the ground of persistence of conditions, and the Father’s rights on the ground of failure to provide prenatal support; we affirm the trial court in all other respects.

Robertson County Court of Appeals 04/30/18
Candes Prewitt v. Kamal Brown
M2017-01420-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge:

This is a personal injury action in which the plaintiff seeks to recover damages incurred in an automobile accident. Although several issues are raised, the principal issues on appeal are whether the trial court erred by ordering the plaintiff to submit to an independent medical examination, and whether the court erred by sanctioning the plaintiff for refusing to submit to the examination by prohibiting her from offering any evidence at trial regarding medical bills or medical records related to future pain and suffering, future loss of enjoyment of life, and/or permanent impairment. The case was tried before a jury with the sanctions in place, and the plaintiff was awarded damages in the amount of $500.00 for her past pain and suffering. This appeal followed. Finding no reversible error, we affirm.

Davidson County Court of Appeals 04/30/18
City of Lebanon Ex Rel. Philip Craighead v. Derek M. Dodson
M2016-01745-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor C. K. Smith

This appeal concerns the Tennessee Violence in the Workplace Act. After a citizen was disruptive at several city council meetings, the city filed a petition under the Act, seeking to enjoin the citizen from attending city council meetings and from contacting city officials. The trial court granted an ex parte temporary restraining order and, following an evidentiary hearing, granted an injunction for three years. On its own motion, the court also issued a three-year injunction “separate and apart” from the Act. Because the city failed to meet its burden of proof under the Act and there was no other basis on which to grant injunctive relief, we reverse. 

Wilson County Court of Appeals 04/30/18
In Re Emma S.
M2017-01243-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Howard W. Wilson

A mother’s parental rights were terminated on the ground of abandonment by willfully failing to visit her daughter. Mother appeals, arguing that the petition initiating the proceeding did not include the notice required by Rule 9A of the Tennessee Rules of Civil Procedure; that the record did not contain clear and convincing evidence that she abandoned her child; and that termination was not in the child’s best interest. Upon our review, we conclude that the proof does not clearly and convincingly establish the ground of abandonment by failure to visit. We reverse the judgment of the trial court and dismiss the petition.

Rutherford County Court of Appeals 04/30/18
Geoffrey Cale Vermilyea v. Jessica Lynn Vermilyea
M2017-01318-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Suzanne M. Lockert-Mash

Geoffrey Cale Vermilyea (“Husband”) sued Jessica Lynn Vermilyea (“Wife”) for divorce. After trial, the Chancery Court for Dickson County (“Trial Court”) entered its Final Decree of Divorce on June 13, 2017 (“Final Decree”) declaring the parties divorced, distributing the marital assets, denying Wife’s request to relocate to Canada with the parties’ minor child (“Cale”), denying Wife alimony, and entering a Permanent Parenting Plan with regard to Cale. Wife appeals the Final Decree raising issues regarding the Trial Court’s order denying Wife’s request to relocate to Canada with Cale and denying her an award of alimony. We find and hold that the Trial Court did not err in finding that it was not in Cale’s best interest to relocate to Canada and, therefore, denying Wife’s request to relocate. We further find and hold that the Trial Court did not abuse its discretion in denying Wife alimony. We, therefore, affirm the Final Decree.

Dickson County Court of Appeals 04/30/18
In Re Zayne P.
W2017-01590-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Carma Dennis McGee

This appeal arises from a Petition to Terminate Parental Rights filed by the foster parents. The Department of Children’s Services removed the child from the mother and father’s custody and placed the child in the custody of the foster parents because, shortly after the child was born, the child tested positive for drugs. On the petition of DCS, the juvenile court adjudicated the child dependent and neglected based on the finding that the parents committed severe child abuse. Thereafter, DCS filed a Petition to Terminate Parental Rights based, in part, on the records provided by the case worker. Subsequently, DCS determined that the case worker had falsely reported that the parents were noncompliant with the permanency plan. Following an inquiry that revealed the parents were in substantial compliance with the permanency plan and that all drug tests were negative, DCS dismissed its petition with court approval. Thereafter, the foster parents commenced a new and independent action to terminate mother and father’s parental rights; the petition also named DCS as a respondent. The foster parents subsequently filed a motion to compel joinder of DCS as a co-petitioner on the ground that Tenn. Code Ann. § 36-1- 113(h)(1)(D) mandated that DCS file a petition to terminate parental rights if a juvenile court has made a finding that the parents committed severe child abuse. DCS opposed the motion on the ground that it had the discretion not to pursue termination of parental rights if a compelling reason existed. The trial court denied the motion, and the case proceeded to trial on the foster parents’ petition. Following trial, the court found that the foster parents proved severe child abuse by clear and convincing evidence; however, the court determined that termination of the parents’ rights was not in the child’s best interests and dismissed the petition. This appeal followed. Having determined that the foster parents failed to prove by clear and convincing evidence that termination of the parents’ rights was in the child’s best interests, we affirm.

Carroll County Court of Appeals 04/30/18
Karesa Rivera Et Al. v. Westgate Resorts, LTD., L.P. Et Al.
E2017-01113-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Telford E. Forgerty, Jr.

The plaintiffs accepted an offer of judgment from the defendant company, which included payment of the plaintiffs’ reasonable attorney’s fees and expenses in an amount to be determined by the trial court. The trial court awarded attorney’s fees and expenses to the plaintiffs in the amount of $56,423.24, expressly determining such amount to be reasonable. The defendant company has appealed. Inasmuch as the trial court failed to consider the factors listed in Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.5 (“RPC 1.5”) when making its determination regarding a reasonable award of attorney’s fees, we vacate the trial court’s fee award and remand this matter for further proceedings concerning this issue. We accordingly decline to award fees to the plaintiffs on appeal.

Sevier County Court of Appeals 04/27/18
In Re: Estate Of James E. Miller
E2018-00658-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Dwaine Thomas

This accelerated interlocutory appeal is taken from the trial court’s denial of Appellant’s motion for recusal. Because we find no evidence of any bias that would require recusal under Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial court.

Monroe County Court of Appeals 04/27/18
Mariel Bentz Rich v. David Tate Rich, Jr.
M2018-00485-COA-T10B-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Philip E. Smith

This is an accelerated interlocutory appeal from the trial court’s denial of the plaintiff’s recusal motion. Following a review of the record and the trial court’s ruling, we apply the de novo standard of review mandated by Supreme Court Rule 10B and affirm the judgment of the trial court.

Davidson County Court of Appeals 04/27/18
In Re Addalyne S.
M2017-00958-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge L. Craig Johnson

In this parental termination case, maternal Grandparents sought termination of both Mother’s and Father’s rights on the grounds of: (1) abandonment by willful failure to support and (2) abandonment by willful failure to visit.  The trial court found no grounds for termination as to Mother and only one ground—failure to support—as to Father. The trial court however found that it was not in the child’s best interest to terminate Father’s rights.  We affirm the trial court’s judgment in all respects. 

Coffee County Court of Appeals 04/26/18
C.D.B. v. A.B.
M2018-00532-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Philip E. Smith

Mother appeals from the denial of her motion to recuse the trial court after the trial court, sua sponte, ordered Mother to undergo a mental examination pursuant to Rule 35.01 of the Tennessee Rules of Civil Procedure. Because the trial court’s actions in this case do not create the appearance of bias, we affirm. 

Davidson County Court of Appeals 04/26/18