Court of Appeals Opinions

Format: 12/10/2018
Format: 12/10/2018
Christine Song Et Al. v Jane C. Chung Et Al.
E2018-00114-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Telford E. Forgerty, Jr.

This case involves a claim of unjust enrichment following the execution and partial performance of a contract for the sale of a laundry and dry cleaning business. On December 21, 2012, the parties executed a contract, selling the business in exchange for $100,000.00. The buyers tendered $50,000.00 at the time of the contract’s execution and simultaneously tendered a promissory note to the seller for the remaining $50,000.00 with a pre-arranged payment plan. The contract contained a provision stating that it was conditioned on the buyers’ ability to obtain a satisfactory commercial lease from the owner of the building where the business was located. The buyers took possession of the business and began making payments pursuant to the promissory note. However, the buyers were unable to enter into a written or long-term lease with the building owner. The buyers ceased making payments on the promissory note after nine months. In November 2013, the buyers began contacting the seller, requesting a return of the down payment and money paid on the promissory note in exchange for the business. In June 2014, the buyers filed a complaint seeking, inter alia, a declaration that the contract of sale was void due to an unsatisfied condition. The seller filed an answer and countercomplaint requesting enforcement of the contract and promissory note, including the enforcement of a vendor’s lien held on the business equipment. On December 19, 2017, the trial court entered an order dismissing the buyers’ complaint and granting the seller’s requested relief pursuant to the contract and promissory note. The buyers have appealed. Discerning no reversible error, we affirm.

Blount County Court of Appeals 10/30/18
Robin Lynn Bolt v. Michael David Bolt
E2017-02357-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge J. Michael Sharp

This appeal arose from a divorce action filed by the wife. Prior to the onset of the litigation, the parties had been married for eighteen years with one minor child born during the marriage. On November 2, 2017, the trial court granted the divorce; divided the marital property according to the wife’s proposed property distribution; awarded to the wife alimony in futuro in the amount of $1,100 per month; awarded to the wife half of her attorney’s fees as alimony in solido; and adopted the husband’s proposed permanent parenting plan. Although the husband’s permanent parenting plan contained a child support calculation based on monthly income estimates, the court ordered the child support payments to be calculated using the average of the parties’ respective incomes from the previous three years. The husband has appealed. Because it is unclear whether the trial court classified the real property upon which the marital home is located as marital property or the wife’s separate property prior to awarding her its value and because we determine that the order appealed from contains an internal inconsistency with respect to the amount of child support awarded, we vacate the trial court’s distribution of marital property and its awards of alimony and child support. We remand for the trial court to clarify its property classification and resolve the inconsistency concerning child support prior to rendering judgment regarding an award of alimony. The trial court’s judgment granting the divorce is otherwise affirmed.

Monroe County Court of Appeals 10/30/18
Courtney Partin v. Tennessee Department of Correction
W2018-00933-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Tony Childress

Following adverse disciplinary proceedings against him while in prison, Appellant filed a petition for common law writ of certiorari in Chancery Court. The Chancery Court later dismissed the case upon determining that the petition for certiorari was not timely filed. Because Appellant was released from prison during the pendency of this appeal, we vacate the trial court’s order and remand the case for the entry of an order dismissing the petition due to mootness.

Lake County Court of Appeals 10/30/18
Ivan Michael Kanski v. Kelly Jean Kanski
M2017-01913-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Joseph Woodruff

This case involves a contentious divorce between parties who share one minor child. After a two-day bench trial, the trial court granted the wife a divorce on the ground of inappropriate marital conduct. The husband appealed raising numerous issues related to property classification, valuation, and division. He also challenges the alimony awards and child support determination. After our review of the record, we determine that the trial court erroneously set the husband’s income for the purpose of child support, and we therefore remand the case for a new determination of the husband’s income and calculation of his child support obligation. We affirm the trial court’s decision in all other respects.

Williamson County Court of Appeals 10/29/18
In Re Colton B.
M2018-01053-COA-R3-PT
Authoring Judge: Judge Brandon o. Gibson
Trial Court Judge: Judge Diana F. Monroe

This is a parental termination case. The trial court terminated the parental rights of a mother based on the statutory grounds of severe child abuse, substantial noncompliance with a permanency plan, and failure to manifest an ability and willingness to assume custody or financial responsibility of the child. The mother appeals. We reverse in part, with respect to one ground for termination, but otherwise affirm the trial court’s order terminating parental rights and remand for further proceedings.

Overton County Court of Appeals 10/29/18
Grady Cunningham, Et Al. v. Bedford County, Tennessee, Et Al.
M2017-00519-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor J. B. Cox

A landowner filed a declaratory judgment action alleging that the Bedford County Board of Commissioners’ denial of his request to rezone his property was arbitrary and capricious, violated his due process rights under 42 U.S.C. section 1983, constituted a regulatory taking, and that the Commission violated the Tennessee Open Meetings Act when it met with its counsel prior to taking the vote. The landowner requested compensatory damages for the manner in which his application to rezone his property was handled and compensation for the taking of his property. After a bench trial, the trial court held that the Commission’s decision was arbitrary and capricious and violated the landowner’s due process rights; the court ordered the property rezoned from residential to commercial and awarded the landowner damages. The court held that there had been no regulatory taking and no violation of the Open Meetings Act. Both parties appeal. Upon review, we have determined that the court erred in holding that the Commission’s decision to deny the application for rezoning was arbitrary and capricious and in ordering the property rezoned; in holding that the landowner’s due process rights were violated and in awarding damages and attorney fees to the landowner; we affirm the decision in all other respects.  

Bedford County Court of Appeals 10/29/18
Patricia Frias v. Felipe Frias, Et Al.
M2017-02391-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ronald Thurman

Ex-husband appeals the entry in a Tennessee Chancery Court of an order authenticating a judgment entered against him in his California divorce proceeding; the judgment also imposed a constructive trust on real property he purchased in Tennessee in violation of orders of the California court. We discern no error in the judgment of the Chancery Court and accordingly, affirm.

White County Court of Appeals 10/29/18
Charles Edward Poole v. Dealers Warehouse Corporation, Et Al.
E2017-02051-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Deborah C. Stevens

This appeal concerns punitive damages. Skyco Staffing Services, Inc. (“Skyco”) provided Derrick Gilbert (“Gilbert”) to Dealers Warehouse Corporation (“Dealers”) for temporary work. On February 14, 2014, Gilbert was driving a Dealers truck when he collided with a truck driven by Charles Edward Poole (“Poole”). Poole1 sued Gilbert, Dealers, and later Skyco for damages in the Circuit Court for Knox County (“the Trial Court”).2 Dealers filed a third-party claim against one-time Skyco affiliate People 2.0 Global, LLC (“People 2.0”), as well. Skyco and People 2.0 filed motions for summary judgment, which were granted. The jury returned a verdict for Poole against Dealers and Gilbert for compensatory damages of $431,508.71. In a second phase, the Trial Court directed a verdict in favor of Dealers regarding punitive damages. Finally, the jury returned a verdict for Poole against Gilbert in the amount of $250,000 in punitive damages. Poole appeals, arguing he is entitled to joint and several judgment against Dealers for the punitive damages assessed against Gilbert. Dealers, for its part, argues both that the Trial Court was correct and that a genuine issue of material fact exists as to whether it exercised supervision of Gilbert. We hold, inter alia, that Dealers is not jointly and severally liable for punitive damages assessed separately against Gilbert. We hold further that Dealers’ exclusive supervisory responsibility for Gilbert was laid out in unambiguous contractual terms. We affirm the judgment of the Trial Court.

Knox County Court of Appeals 10/29/18
Angie Renee Larsen v. George Giannakoulias
M2017-00428-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Deanna B. Johnson

This is a divorce case. Husband/Appellant appeals the trial court’s decision regarding: (1) the parenting plan for the minor children; (2) the enforcement of the parties’ prenuptial agreement in its denial of Husband’s request for alimony and a portion of Wife’s retirement accounts; and (3) the designation and division of property. Under the doctrine of lex loci contractus, we vacate the trial court’s order enforcing the waiver of spousal support provision of the parties’ prenuptial agreement. The trial court’s order is otherwise affirmed, and the case is remanded for determination of whether alimony is warranted in this case and, if so, the amount thereof.  

Williamson County Court of Appeals 10/26/18
Marcella Ann Brecker v. Steven Charles Brecker
M2018-00120-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Special Judge Walter C. Kurtz

Husband appeals the trial court’s award of alimony to Wife, as well as the trial court’s division of the parties’ 2017 tax refund. The trial court determined that Wife’s need was in the range of $17,500.00 per month and awarded Wife $15,000.00 per month in alimony in futuro, as well as $3,500.00 per month in rehabilitative alimony. We affirm the trial court’s finding that Wife’s need is in the range of $17,500.00 per month. We also affirm the trial court’s award of $15,000.00 per month in alimony in futuro. We vacate, however, the award of rehabilitative alimony and the division of the parties’ 2017 tax refund and remand for reconsideration in accordance with this opinion.

Williamson County Court of Appeals 10/26/18
In Re: Jonathan M.
E2018-00484-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Timothy E. Irwin

Father appeals the termination of his parental rights to one child. The juvenile court found three statutory grounds for termination: (1) abandonment for failure to visit by an incarcerated parent; (2) abandonment by wanton disregard for the welfare of a child by an incarcerated parent; and (3) failure to manifest an ability and willingness to personally assume legal and physical custody or financial responsibility for the child. The court also found that termination of the father’s parental rights was in the child’s best interest. We affirm the termination of the father’s parental rights.

Knox County Court of Appeals 10/26/18
Tracy Langston Ford-Lincoln-Mer v. Corey Lea
M2018-01006-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Ross H. Hicks

This is a parental termination case. The juvenile court declined to terminate father’s parental rights, but it found that clear and convincing evidence existed to terminate mother’s on the grounds of abandonment by failure to provide a suitable home, persistence of conditions, substantial noncompliance with the permanency plan, and abandonment by willful failure to support. The juvenile court further found that termination was in the best interests of the children. We reverse as to the former two grounds, but affirm as to the latter two and further find that termination of mother’s parental rights is in the best interests of the children.

Robertson County Court of Appeals 10/25/18
In Re Francis R. Et Al.
M2018-00613-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Tim Barnes

This is a parental termination case. The juvenile court declined to terminate father’s parental rights, but it found that clear and convincing evidence existed to terminate mother’s on the grounds of abandonment by failure to provide a suitable home, persistence of conditions, substantial noncompliance with the permanency plan, and abandonment by willful failure to support. The juvenile court further found that termination was in the best interests of the children. We reverse as to the former two grounds, but affirm as to the latter two and further find that termination of mother’s parental rights is in the best interests of the children.

Montgomery County Court of Appeals 10/25/18
Kathryn Nicole Brown v. Tyler Matthew Brown
E2017-01629-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Pamela A. Fleenor

In this divorce action, the wife was shown to be economically disadvantaged compared to the husband, and the trial court awarded to the wife a slightly greater share of the marital estate in addition to rehabilitative alimony in the amount of $4,000.00 per month for a period of four years. The husband has appealed. Although we conclude that the trial court’s judgment should be affirmed, we also modify that judgment to include an indemnification clause in the husband’s favor regarding the mortgage on the marital residence. We further grant the wife’s request for an award of attorney’s fees incurred in defending this appeal.

Hamilton County Court of Appeals 10/25/18
Ronald Dana Harper v. Annette Carrol Harper
W2017-02193-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

This is a divorce case. Husband appeals the trial court’s classification of three tracts of land as Wife’s separate property and its valuation of Husband’s bank account. Discerning no error, we affirm and remand.

Madison County Court of Appeals 10/24/18
Brandon Burks, et al. v. Savannah Industrial Development Corporation of the City of Savannah, Tennessee
W2018-00166-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Carma Dennis McGee

Appellants, owners of property near a proposed industrial park site, appeal the trial court’s grant of Appellee Savannah Industrial Development Corporation’s Tennessee Rule of Civil Procedure 12.02(6) motion. Appellants sought a declaratory judgment precluding the City of Savannah and, specifically, its industrial development corporation, from purchasing land outside the city’s corporate limits for development of an industrial park for the benefit of both the city and Hardin County. The trial court applied the Industrial Development Corporations Act, Tenn. Code Ann. § 7-53-101, et seq. and the Industrial Park Act, Tenn. Code Ann. § 13-16-201, et seq. and found that there was no prohibition against the industrial development corporation’s actions. The trial court, therefore, granted the industrial development corporation’s motion to dismiss and awarded the corporation its attorney’s fees under Tennessee Code Annotated section 20- 12-119(c)(1). Because the industrial development corporation is a “governmental entity,” we hold that the trial court was precluded from awarding attorney’s fees under Tennessee Code Annotated section 20-12-119(c). Accordingly, we reverse the trial court’s award of attorney’s fees. The trial court’s order is otherwise affirmed.

Hardin County Court of Appeals 10/24/18
In Re Christian S.
M2018-00128-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Lee Bussart

At issue in this appeal is the custody of an 8-year-old boy. On one side is his maternal grandmother and her husband, who have raised the child since he was one year old, pursuant to a court order placing him in their custody. On the other side is the child’s father, who was incarcerated at the time the child was placed with his grandparents. When the father was released from incarceration, he filed a petition seeking visitation with the child; over the course of proceedings, he sought custody of the child. The juvenile court awarded custody to the father, holding that the he did not forfeit his superior parental rights and that the grandparents did not prove that the child would suffer substantial harm in the father’s care and custody. The grandparents appeal; finding no error, we affirm the judgment.

Marshall County Court of Appeals 10/24/18
City of Church Hill v. Roger Elliott
E2018-00095-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Alex E. Pearson

Roger Elliott (“Elliott”) appeals the January 23, 2018 order of the Circuit Court for Hawkins County (“the Trial Court”) holding that Elliott had violated Church Hill Municipal Ordinance No. 11-101 and assessing a civil penalty of $25.00 against Elliott for the violation. We find and hold that the evidence in the record on appeal does not preponderate against the Trial Court’s finding that Elliott violated Church Hill Municipal Ordinance No. 11-101. We, therefore, affirm

Hawkins County Court of Appeals 10/24/18
Destine Johnson, Et Al. v. General Motors Corporation, Et Al.
E2017-01642-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John C. Rambo

In this appeal, the plaintiffs alleged that the defendants conspired to prevent new cars sold in Canada from being imported into Tennessee and the rest of the United States in violation of Tennessee’s antitrust and consumer protection laws. The plaintiffs contended that new car prices in Canada are significantly lower than prices for the same cars in the United States and that the effect of the conspiracy was to restrict competition and maintain significantly higher prices. The trial court approved a settlement agreement and dismissed the case with prejudice against certain defendants. The plaintiffs appeal. We affirm.

Washington County Court of Appeals 10/24/18
Bank of America v. Calvin Dee Aycock, et al.
W2017-00758-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Valerie S. Smith

This is a detainer action in which the plaintiff bank was awarded a judgment of possession of the defendant’s property in general sessions court. The defendant refused to vacate the property and appealed to the circuit court. The plaintiff bank sought summary judgment. The circuit court granted the motion for summary judgment and upheld the foreclosure sale. We affirm.

Shelby County Court of Appeals 10/23/18
In Re Natascha B
M2018-00247-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Anthony L. Sanders

A father appeals the termination of parental rights to his daughter. The juvenile court found three statutory grounds for termination: abandonment by willful failure to visit, abandonment by willful failure to support, and substantial noncompliance with the requirements of the permanency plans. The court also found that termination of the father’s parental rights was in the child’s best interest. On appeal, DCS declines to defend the ground of abandonment by willful failure to visit. We conclude that the evidence was less than clear and convincing as to all of the statutory grounds found with respect to the father. Thus, we reverse the termination of the father’s parental rights

Humphreys County Court of Appeals 10/23/18
Lee A. Beaman v. Kelley Speer Beaman
M2018-01651-COA-T10B-CV
Authoring Judge: Chief Justice D. Michael Swiney
Trial Court Judge: Judge Philip E. Smith

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, from the denial of a motion for judicial recusal filed by Kelley Speer Beaman (“Wife”) in the parties’ high profile divorce proceedings. Having reviewed the Petition for Recusal Appeal filed by Wife, together with the supplement to the Petition and the response in opposition to the Petition filed by Lee A. Beaman (“Husband”), we conclude that the Trial Judge should have granted the motion. The Trial Judge in this case conducted an independent investigation into the facts surrounding how and when Wife’s Trial Brief came into the possession of the online media outlet known as Scoop: Nashville, and his comments on the record regarding the results of his investigation create an appearance of prejudice against Wife and her counsel that require the Trial Judge’s recusal.  We therefore reverse the order of the Trial Court and remand the case for reassignment to a different judge. 

Davidson County Court of Appeals 10/19/18
Daniel James Finstad v. Jessica Ann Calfee Finstad
E2017-01554-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge M. Nicole Cantrell

In this action for divorce, alimony was the only remaining issue at trial. After the hearing, the trial court entered a final decree of divorce declaring that wife is an economically disadvantaged spouse pursuant to Tenn. Code Ann. § 36-5-121(f) and that husband is able to pay her alimony. The court held that there was no proof that wife was underemployed and no proof she could be rehabilitated; it therefore awarded wife alimony in futuro. We hold that the trial court abused its discretion in awarding wife alimony in futuro. We modify the trial court’s judgment so as to provide wife transitional alimony. As modified, the judgment of the trial court is affirmed. We remand this case to the trial court with instructions.

Anderson County Court of Appeals 10/19/18
In Re: L.U.S.
E2017-01777-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John S. McLellan, III

In this termination of parental rights case, C.J.S. and K.R.S. (petitioners) filed a joint petition for adoption and petition to terminate the rights of C.C.S. (father) and W.J.N.R. (mother) with respect to their only child, L.U.S. Father joined the petition as a copetitioner, consenting to the termination of his rights and to the adoption of the child. The trial court found clear and convincing evidence to terminate mother and father’s parental rights on the grounds of abandonment by failure to support and abandonment by failure to visit. By the same quantum of proof, the court found that termination of parental rights is in the best interest of the child. Mother appeals the trial court’s order terminating her rights. We vacate the court’s findings with respect to the ground of abandonment by failure to support; nevertheless, we affirm the court’s order terminating mother’s rights because there is clear and convincing evidence that termination is supported by the ground of abandonment by failure to visit and is in the best interest of L.U.S.

Sullivan County Court of Appeals 10/19/18
KT Group, LLC v. Robert Lowe Et Al.
E2017-02415-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Elizabeth C. Asbury

This case involves a property dispute regarding a fifty-foot strip of land that was historically used for railroad purposes. KT Group, LLC (plaintiff) filed an action to quiet title, naming Robert Lowe and his wife, Velma Lowe, as defendants. Each side claims to own the strip of land in fee simple absolute. The trial court determined that plaintiff owned the land in fee simple. Defendants appealed. We affirm.

Scott County Court of Appeals 10/19/18