Court of Appeals Opinions

Format: 12/09/2016
Format: 12/09/2016
John C. Hoynacki et al. v. Jerome Hoynacki
E2015-02084-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jean A. Stanley

Plaintiff John C. Hoynacki was helping his father, defendant Jerome Hoynacki, wax defendant‟s recreational vehicle (RV). He worked on a ladder in reaching the high places on the RV. The ladder fell with plaintiff on it, causing him injury. He brought this negligence action, alleging that defendant breached his duty to exercise reasonable care in securing and stabilizing the ladder. The trial court granted defendant summary judgment, holding that defendant had no legal duty to hold the ladder at the time the plaintiff attempted to “climb down prior to his accident.” We hold that there are genuine issues of material fact regarding whether defendant was negligent under the circumstances. We vacate the trial court's grant of summary judgment and remand for further proceedings.

Washington County Court of Appeals 10/31/16
Barbara T. Collins v. HCA Health Services Of Tennessee, Inc., et al.
M2016-00524-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Appellant was injured while attempting to leave the defendant hospital against medical advice. Appellant appeals the trial court’s decision to grant summary judgment in favor of the defendant hospital, concluding that the hospital owed no duty to prevent Appellant from leaving the hospital. Discerning no error, we affirm.  

Davidson County Court of Appeals 10/28/16
In Re: Carolina M.
M2014-02133-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joseph A. Woodruff

This case began as a petition for dependency and neglect filed in juvenile court by the Tennessee Department of Children’s Services (“DCS”). The juvenile court found the child to be dependent and neglected, and Mother and Father appealed to the circuit court. A discovery dispute arose when their attorney requested records from a court appointed special advocate volunteer. In connection with the dispute, the parents’ attorney filed a petition for civil contempt and a petition for criminal contempt against the volunteer. The circuit court did not grant either petition, and in response, the non-profit organization with which the volunteer was affiliated filed motions for sanctions against the attorney under Rule 11 of the Tennessee Rules of Civil Procedure. The circuit court granted the non-profit’s motions finding, among other reasons, that both petitions were filed for improper purposes. Mother and Father appeal the circuit court’s dismissal of their criminal contempt petition and the court’s decision to impose sanctions against their attorney. Because we conclude that the circuit court did not abuse its discretion in dismissing the criminal contempt petition or in imposing sanctions against the attorney, we affirm. 

Williamson County Court of Appeals 10/28/16
Connie Reguli, et al v. Sharon Guffee, et al.
M2015-00188-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Joseph W. Woodruff

An attorney, representing herself, filed suit against a juvenile court judge and clerk after she was prevented from accessing recordings of juvenile court proceedings to which she claimed she was entitled under state law. She sought a writ of mandamus and a judgment declaring the juvenile court local rule, under which the judge denied her requests, invalid. The attorney amended her complaint, joining four clients that she had previously represented before the juvenile court. The judge and clerk then filed a motion to dismiss, which the chancery court granted. We conclude, as did the chancery court, that two of the plaintiffs lacked standing and that state law does not entitle plaintiffs to the recordings. Therefore, we affirm the chancery court’s dismissal of the amended complaint. 

Williamson County Court of Appeals 10/28/16
In Re: Jackson H.
M2014-01810-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Robbie T. Beal

This appeal involves a challenge to fees awarded to a guardian ad litem. The juvenile court ordered the child’s parents to each pay half of the fees awarded. After the juvenile court made its fee award, Mother appealed to the circuit court. The circuit court conducted a de novo hearing and found the fees awarded reasonable. On appeal to this Court, Mother raises several issues with respect to the award, including a lack of notice that fees would be assessed to the parents, improper limits on discovery, unauthorized and unnecessary actions by the guardian ad litem, and violations of Supreme Court Rules. The guardian ad litem argues Mother’s appeal to the circuit court was untimely and requests that we vacate the decision of the circuit court and remand with instructions to dismiss the appeal. We do not find the appeal to the circuit court to be untimely, but we do find the award of fees to the guardian ad litem appropriate. Therefore, we affirm the judgment of the circuit court. 

Williamson County Court of Appeals 10/28/16
Vicki Matherne, et al. v. Jerry West, et al.
E2015-02061-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Rex Henry Ogle

This appeal concerns premises liability in a slip and fall case. Vicki Matherne and Rodney Matherne ("Plaintiffs") sued Jerry West and Carolyn West ("the Wests"), owners of a vacation cabin rented by the Mathernes, and American Patriot Getaways ("APG"), which managed the cabin, (collectively, "Defendants") after Mrs. Matherne injured herself falling off an elevated parking level at the cabin. Defendants filed a motion for summary judgment. The Circuit Court for Sevier County ("the Trial Court") granted Defendants‘ motion, finding that any hazardous condition was open and obvious and that Mrs. Matherne was at least 50% at fault. Plaintiffs appeal to this Court. We hold that there are genuine disputed issues of material fact regarding what Defendants could or should have done to prevent the risk of a fall from the elevated parking level and whether Mrs. Matherne was at least 50% at fault. Therefore, the Trial Court erred in granting Defendants‘ motion for summary judgment. We reverse the judgment of the Trial Court and remand this case for further proceedings.

Court of Appeals 10/28/16
Richard Hamilton, et al v. Randy Holderman, et al.
M2015-02302-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John D. McAfee

This is an appeal from a judgment entered on a jury verdict for conversion of property. The property owners, Appellees, received a judgment of $24,999.99 in general sessions court, and Appellants filed an appeal to the circuit court. At the jury trial, jurors awarded Appellees a verdict of $40,000.00. Appellants appeal. Discerning no error, we affirm.

Fentress County Court of Appeals 10/27/16
Austin Davis, et al v. Dale Lewelling, et al.
M2016-00730-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kelvin D. Jones

Plaintiffs appeal the trial court’s ruling: (1) dismissing their claims against a church; (2) dismissing the plaintiff-daughter’s claim against the remaining individual defendant for failure to state a claim upon which relief can be granted; and (3) granting the remaining individual defendant’s motion for summary judgment as to the plaintiff-father’s claim of assault. With regard to the dismissal of the claims against the church, we conclude that Appellants’ notice of appeal was untimely, and we therefore dismiss their appeal concerning the claims against the church for lack of subject matter jurisdiction. We dismiss the remainder of Appellants’ appeal because of profound deficiencies in Appellants’ brief to this Court.

Davidson County Court of Appeals 10/27/16
Jeffrey Donald Landis, Sr. v. Regina Marie Landis
M2015-02520-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Suzanne Lockert Mash

In this post-divorce proceeding, ex-husband filed a petition for civil contempt to compel ex-wife to allow him to retrieve certain items of personal property awarded to him in the parties’ marital dissolution agreement. The trial court entered an order holding ex-wife in civil contempt for her failure to turn over certain items. We have reviewed the record and have determined that the trial court erred in finding ex-husband was entitled to a boat trailer that was not enumerated in the property list; however, we affirm the trial court’s finding of civil contempt.     

Cheatham County Court of Appeals 10/27/16
In re Alfonzo E., et al.
M2016-00867-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Sheila Calloway

The mother of three sons appeals the termination of her parental rights. A juvenile court magistrate determined that one son was the victim of severe abuse and that the other two sons were dependent and neglected. The magistrate also found that the mother was the perpetrator of this abuse, dependency, and neglect. The magistrate’s order was not appealed. All three sons were placed with the same foster mother. They remained with her for around two years during which time they had some visitation with their biological mother. Subsequently, the Department of Children’s Services filed a petition to terminate the mother’s parental rights alleging severe abuse and persistence of conditions as grounds for termination. See Tenn. Code Ann. § 36-1-113(g)(3)-(4). The mother opposed the petition, and the children’s maternal grandmother and uncle each filed separate petitions for custody. After two hearings, the trial court found that DCS had proven both alleged grounds for termination by clear and convincing evidence and that terminating the mother’s parental rights was in the best interests of the children. The court also dismissed the petitions for custody filed by the grandmother and the uncle. The mother appealed, arguing that termination was not in the best interests of the children and that the trial court erred by failing to place the children with their grandmother as a less drastic alternative to foster care. Mother also argues that DCS failed to make a diligent search for the children’s fathers. The evidence does not preponderate against the trial court’s best-interest findings, and the mother cannot appeal the dismissal of the grandmother’s petition or the termination of the fathers’ parental rights. Additionally, by the time a court considers whether to terminate parental rights, it is too late to bring a less drastic alternative before the court. Accordingly, we affirm.

Davidson County Court of Appeals 10/26/16
Nove Kephart, Sr. v. Daniela F. Schwarzer Kephart
M2015-02285-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor L. Craig Johnson

The father of two children opposes the relocation of the children with their mother from middle Tennessee to Harrison, Arkansas. He also contends he is entitled to a child support deviation. At trial, testimony revealed that the mother wants to relocate because her husband accepted a position in Harrison that resulted in an annual salary increase of $20,000, plus a bonus. The mother also testified that she was offered a job in Harrison that pays more than her current position. The trial court granted permission to relocate, finding that the relocation had a reasonable purpose because the mother and her husband would receive a significant increase in annual income and increased opportunities for advancement in Arkansas. The trial court also found that relocating would not result in serious harm to the children and was not intended to defeat the father’s visitation. In addition, the trial court denied the father’s request for a child support deviation. The father appealed, contending that the court’s findings about the relocation are erroneous and that he is entitled to a child support deviation. The evidence supports the trial court’s findings regarding the purpose and nature of the relocation. Additionally, the father is not entitled to a child support deviation under the plain language of the regulations. Accordingly, we affirm.

Coffee County Court of Appeals 10/26/16
Vicki J. Redick v. Saint Thomas Midtown Hospital, et al
M2016-00428-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Amanda McClendon

Vicki J. Redick (“Plaintiff”) appeals the dismissal with prejudice of her health care liability action against Saint Thomas Midtown Hospital (“the Hospital”) and Jane Doe, an employee of the Hospital. We find and hold that Plaintiff, despite application of the common knowledge exception when appropriate, would be unable to prove her claim without expert proof, and therefore, Plaintiff was required to file a certificate of good faith in compliance with Tenn. Code Ann. § 29-26-122. As Plaintiff failed to file the required certificate of good faith, we find no error in the judgment of the Circuit Court for Davidson County (“the Trial Court”) dismissing Plaintiff’s case with prejudice for failure to comply with Tenn. Code Ann. § 29-26-122.

Davidson County Court of Appeals 10/26/16
Anderson Lumber Company, Inc. v. Chris Kinney, et al.
E2016-01640-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge David R. Duggan

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 Disqualification or Recusal filed by the Defendants, William Kinney and Margaret Kinney ("Defendants") in this case that arises out of the indebtedness of Defendants' business, Kinney Custom Interiors, to the Plaintiff, Anderson Lumber Company, Inc. ("Plaintiff"). Having reviewed the petition for recusal appeal filed by Defendants, and finding no error in Trial Court's ruling, we affirm.

Blount County Court of Appeals 10/26/16
Jack Wayne Butler v. Tennessee Board of Nursing
M2016-00113-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Ellen H. Lyle

An applicant for a nursing license filed a petition for a writ of certiorari regarding the decision of the Tennessee Board of Nursing to deny his license. The trial court ruled: (1) that the applicant was not entitled to a contested case prior to the denial of his initial nursing license; (2) that the Tennessee Board of Nursing correctly found that the applicant’s license could be denied due to his “fraud or deceit” in his efforts to procure his license; and (3) that the Tennessee Board of Nursing could not rely on an expunged conviction to establish the statutory ground of “guilty of a crime.” Both parties appeal. Discerning no error, we affirm the decision of the trial court. 

Davidson County Court of Appeals 10/25/16
James Smallwood v. State of Tennessee
M2016-00276-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Commissioner Robert N. Hibbett

An inmate of the Tennessee Department of Correction filed a claim against the State of Tennessee seeking to recover damages for personal injuries he sustained when he was attacked on August 23, 2013, by a fellow inmate. The Claims Commissioner found that the material facts were not disputed and there was no forewarning of the assault. Because the claimant provided no evidence showing that the attack was foreseeable, the Claims Commissioner concluded that the prison did not breach any duty to protect the claimant and summarily dismissed the claim. The claimant appealed. We affirm. 

Court of Appeals 10/25/16
John Hamilton v. Metropolitan Government Of Nashville And Davidson County, et al
M2016-00446-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Amanda Jane McClendon

This case involves a challenge to an election commission’s decision not to set a special election to fill a vacancy in the office of district council. Appellant, a Davidson County resident and registered voter, appeals the trial court’s grant of Appellees’, the Metropolitan Government of Nashville & Davidson County and the Davidson County Election Commission, Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss. The trial court granted Appellees’ motion on its finding that Appellant’s petition failed to aver facts sufficient to show a distinct and palpable injury to Appellant so as to establish his standing to challenge the election commission’s decision not to schedule a special election. Discerning no error, we affirm and remand.

Davidson County Court of Appeals 10/25/16
The River Oak, GP, et al v. IOAN Bucse, et al.
M2015-02208-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Joe Thompson

This property dispute involves adjacent commercial property owners. When defendants revealed their intent to erect a fence between the adjoining properties, plaintiffs sued under the theories of adverse possession, prescriptive easement, and implied easement to use a portion of defendants’ property for parking, trash removal, and receiving deliveries. After a bench trial, the trial court found that plaintiffs failed to meet their burden of establishing their asserted rights over the area in dispute. Plaintiffs appeal the trial court’s conclusions as to prescriptive easement and easement by implication only. Discerning no error, we affirm. 

Sumner County Court of Appeals 10/25/16
Michael Angelo Coleman v. Tennessee Board of Parole, et al.
M2016-00410-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Ellen H. Lyle


This appeal involves a multi-count petition filed in chancery court by a prisoner after he was denied parole. The prisoner’s petition set forth five counts alleging various constitutional and civil rights violations in connection with the parole process, and he requested declaratory and injunctive relief related to these five counts. The sixth count in the petition sought review of the decision of the parole board pursuant to the common law writ of certiorari. The chancery court dismissed the five counts for declaratory and injunctive relief and certified its order of partial dismissal as final pursuant to Tennessee Rule of Civil Procedure 54.02, leaving only the certiorari action pending. We conclude that the trial court improvidently certified its order as final and dismiss the appeal.

Davidson County Court of Appeals 10/25/16
Edward Martin v. Gregory Powers, et al. - Dissent
M2014-00647-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge James G. Martin, III

I respectfully dissent from the majority opinion in this case.

The majority concludes that the Policy exclusion for any vehicle “owned or operated by a self-insurer under any applicable motor vehicle law” is ambiguous. I disagree. As explained below, under the plain Policy language, the rental car driven by the Defendant was not an “uninsured motor vehicle” because it was owned by a “self-insurer” under Tennessee’s Financial Responsibility Act. For this reason, I would conclude that the Policy does not provide UM coverage to the Plaintiff in this case.

Williamson County Court of Appeals 10/24/16
Norris Bettis v. Rebecca Bettis
E2016-00156-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Pamela A. Fleenor

This is an appeal of a trial court's award of alimony and valuation of marital assets. Husband appeals the trial court's decision to award a percentage of his bonus income as alimony as well as the trial court's valuation of stock allocated to Husband. Wife appeals the trial court's decision not to award her alimony in futuro. We affirm both the trial court's finding with respect to the value of the stock and its decision to not award alimony in futuro. However, we vacate the trial court's decision to award a percentage of Husband's bonus income as alimony and remand for proceedings consistent with this opinion.

Hamilton County Court of Appeals 10/24/16
State, ex rel., Melody Kay Rogers v. Donnie O'Keith Lewis
W2015-01882-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Dan H. Michael

This appeal involves a mother’s petition to set child support. The father objected to the petition, citing a prior order in which the parties agreed that no child support would be ordered but that he would remit payment for medical insurance or medical expenses as needed. The trial court granted the petition, set a current support obligation, and awarded retroactive child support and attorney fees, finding that the prior order was void as against public policy. The father appeals. We reverse the award of retroactive child support, vacate the attorney’s fees awarded and remand to the trial court for further proceedings consistent with this opinion.

Shelby County Court of Appeals 10/21/16
Rose Coleman v. Bryan Olson
M2015-00823-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Ross H. Hicks

This appeal concerns two disputes between the widowed husband and mother of a deceased woman: (1) the proper party to whom the woman’s life insurance proceeds are owed; and (2) a request for grandparent visitation. We conclude that the trial court erred in failing to return the life insurance beneficiary to the status quo that existed prior to wife’s violation of the automatic injunction pursuant to Tennessee Code Annotated Section 36-4-106(d)(2). The proceeds from the life insurance policy are therefore awarded to husband. We vacate, however, the trial court’s seizure of the grandmother’s Bank of America account and remand for further proceedings to determine if the funds contained therein represent the remainder of the life insurance proceeds improperly paid to the grandmother. We further conclude that the trial court erred in awarding grandparent visitation, where there was no evidence of opposition to visitation prior to the filing of the grandparent visitation petition. Reversed in part, vacated in part, and remanded.  

Montgomery County Court of Appeals 10/20/16
The City of Chattanooga Ex Rel. Don Lepard, Qui Tam, v. Electric Power Board of Chattanooga
E2015-01995-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This is a qui tam action brought by the plaintiff on behalf of himself and the City of Chattanooga (“the City”) against the Electric Power Board of Chattanooga (“EPB”). The plaintiff filed a complaint pursuant to the Tennessee False Claims Act (“TFCA”), see Tenn. Code Ann. §§ 4-18-101 to -108, alleging that EPB had overbilled the City for approximately twenty years by billing for lights not in existence and applying an incorrect energy cost calculation. EPB subsequently filed a motion to dismiss with supporting memorandum and attachments, asserting, inter alia, that EPB and the City were the same entity and that the City could not sue itself. Upon the plaintiff’s motion, the trial court, pursuant to Tennessee Rule of Civil Procedure 12.03, treated EPB’s motion to dismiss as a motion for summary judgment. Following a hearing, the trial court denied EPB’s motion upon finding that the relationship between the City and EPB was an issue of disputed material fact. However, upon EPB’s request for reconsideration and the filing of additional pleadings and attached documents, the trial court found that the issue of EPB’s relationship to the City was a matter of law. Following a second summary judgment hearing, the trial court granted summary judgment in favor of EPB based on a finding that an action brought by the City against EPB would constitute an impermissible case of the City’s suing itself. The plaintiff appeals. Although we determine that the trial court erred by denying the plaintiff’s motion to amend the complaint, we further determine this error to be harmless because the plaintiff’s additional claims would not have been able to survive summary judgment. Discerning no reversible error, we affirm.

Hamilton County Court of Appeals 10/20/16
City of La Vergne v. Randall T. LeQuire
M2016-00028-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Howard W. Wilson

This appeal arises from a traffic citation issued to the appellant by a municipal police officer. The citation charged the appellant with a violation of “SPEEDING 55-8-152,” a reference to Tennessee’s statutory prohibition on speeding codified at Tennessee Code Annotated section 55-8-152 (2012). The appellant was found guilty of speeding in the municipal court and appealed to the circuit court. The circuit court judge entered a judgment against the appellant for a violation of a municipal ordinance rather than for a violation of the state statute charged on the citation. On appeal, the appellant contends that the citation was insufficient to provide him with notice of the charge for which he was convicted. We agree. We, therefore, reverse the judgment of the circuit court and dismiss this case.  

Rutherford County Court of Appeals 10/19/16
Emily Mae Kelly v. Ryan Marshall Kelly
M2015-01779-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Joseph A. Woodruff

This is an appeal of an order denying Father’s petition to modify custody and visitation and for Rule 60.02 relief from a previous judgment of the court. Father appeals the trial court’s finding that no material change in circumstance existed that warranted a change in the parties’ parenting plan. Additionally, Mother appeals the trial court’s finding that Father is not voluntarily underemployed. We affirm. 

Lewis County Court of Appeals 10/19/16