Court of Appeals Opinions

Format: 03/26/2019
Format: 03/26/2019
Jonathan George Carter v. Elizabeth Jo Browne
W2018-00429-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Valerie L. Smith

Following a bench trial, the trial court entered a final decree of divorce in which it determined that Appellant/Wife was not entitled to an award of alimony in futuro, but awarded Wife alimony in solido and transitional alimony. The trial court further determined that the parties’ marital residence was Wife’s separate property. On appeal, Wife argues that the trial court erred in denying her alimony in futuro, while Appellee/Husband appeals the classification of the parties’ home as Wife’s separate property. With respect to the trial court’s decision that alimony in futuro is inappropriate in this case, we affirm. However, because we conclude that the trial court erred in classifying the parties’ home as Wife’s separate property, we reverse in part and remand for further proceedings

Shelby County Court of Appeals 02/04/19
In Re: Estate Of Mary Ruth Davis Hudson
E2018-00583-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

In this estate proceeding, the appellants, three of the five adult children of the decedent, appeal the probate court’s interpretation of the decedent’s last will and testament as demonstrating the decedent’s intent to have her real property administered as part of her estate by her personal representative. Having determined that the probate court’s order was premature due to ongoing proceedings in the decedent’s conservatorship case, we vacate the probate court’s order interpreting the last will and testament. We remand for further proceedings consistent with this opinion.

Knox County Court of Appeals 02/04/19
Wells Fargo Bank, N.A. v. William S. Lockett, Jr., ET Al.
E2018-00129-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: E2018-00129-COA-R3-CV

The mortgagors sought to rescind the foreclosure sale of their property, claiming that the sale was invalid because it had been conducted improperly. A jury found the sale process was properly followed and the verdict was approved by the trial court. The mortgagors appeal. We affirm

Knox County Court of Appeals 02/04/19
Richard Alan Ellis v. Donica Ann Woods Ellis
W2017-02287-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge James F. Russell

This is an appeal from a final decree of divorce. The trial court ordered Husband to pay Wife alimony in futuro in the amount of $9,000 per month. In addition, the trial court awarded Wife her attorney’s fees as alimony in solido in the amount of $121,873.81. We vacate the trial court’s award of alimony in futuro and, for the reasons stated herein, remand the issue of Wife’s alimony for reconsideration. Additionally, we vacate the trial court’s award of Wife’s attorney’s fees and remand for the trial court to reconsider whether or not to award Wife her attorney’s fees and, if so, to award a reasonable attorney’s fee and state the basis for its decision. We also vacate the trial court’s order denying Wife’s motion for discretionary costs, and remand the issue to the trial court for a reconsideration of Wife’s motion on its merits.

Shelby County Court of Appeals 01/31/19
In Re J'Khari F.
M2018-00708-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge William M. Locke

This is a termination of parental rights case involving the parental rights of the mother, Alexis F. (“Mother”), to her minor child, J’Khari F. (“the Child”), who was five years old at the time of trial. On April 10, 2015, the Warren County Juvenile Court (“trial court”) entered an order removing the Child from Mother’s custody and placing the Child into the temporary legal custody of the Tennessee Department of Children’s Services (“DCS”), effective April 9, 2015. The Child was immediately placed in foster care, where he remained at the time of trial. The trial court subsequently entered an order on September 24, 2015, finding that the Child was dependent and neglected due to Mother’s insufficient housing, Mother’s insufficient means to support the Child, and the Child’s positive drug test result for methamphetamine. On April 18, 2017, DCS filed a petition to terminate the parental rights of Mother. Following a bench trial, the trial court terminated Mother’s parental rights to the Child upon determining by clear and convincing evidence that (1) Mother had abandoned the Child by willfully failing to support him, (2) Mother had abandoned the Child by willfully failing to visit him, (3) Mother had abandoned the Child by engaging in conduct prior to her incarceration that exhibited wanton disregard for the Child’s welfare, (4) Mother had not substantially complied with the reasonable requirements of the permanency plans, (5) the conditions leading to the Child’s removal from Mother’s custody persisted, and (6) Mother had failed to manifest an ability and willingness to personally assume custody of or financial responsibility for the Child. The trial court further found by clear and convincing evidence that termination of Mother’s parental rights was in the best interest of the Child. Mother has appealed. Upon a determination that the evidence presented at trial did not support a finding by clear and convincing evidence that Mother had abandoned the Child by willfully failing to support him during the four months prior to her incarceration, we reverse as to that statutory ground. We affirm the trial court’s judgment in all other respects.

Warren County Court of Appeals 01/31/19
Ronna Lyn Ueber v. Anthony James Ueber
M2018-02053-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joseph Woodruff

This is an accelerated interlocutory appeal from the trial court’s denial of Appellant’s motion for recusal. Because the record contains insufficient evidence of bias requiring recusal under Tennessee Supreme Court Rule 10B, we affirm.

Williamson County Court of Appeals 01/31/19
Kimberly J. Smith v. Gregory A. Smith Et Al.
E2017-01295-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Jerri Bryant

Judgment creditor appeals the trial court’s decision to set aside a conditional judgment, to dismiss her claims of bad faith, civil contempt, and conversion against the garnishee, and to deny certain requests for discovery and sanctions. We affirm the trial court’s decision to set aside the conditional judgment, as well as the dismissal of the judgment creditor’s conversion claim. We reverse, however, the trial court’s dismissal of the judgment creditor’s claims of bad faith and civil contempt. We also vacate the trial court’s decisions with regard to sanctions and discovery, except to the extent that the trial court allowed withdrawal of certain requests for admission, which is affirmed.

Bradley County Court of Appeals 01/31/19
Mary Beth Harcrow v. Clyde Harcrow
M2019-00141-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joe Thompson

This is an accelerated interlocutory appeal pursued pursuant to Tennessee Supreme Court Rule 10B. Because Appellant admits that no order has been entered by the trial court with respect to her motion to recuse, we must dismiss this appeal for lack of subject matter jurisdiction.   

Sumner County Court of Appeals 01/31/19
McKayla Taylor v. Miriam's Promise Et Al.
M2017-01908-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amy V. Hollars

This action arises from an agreed-upon adoption that the birth mother revoked within 30 days of the child’s birth. The defendants include three adoption agencies, three social workers, two attorneys, a hospital, and the prospective adoptive parents. Generally stated, the complaint alleges that the defendants acted in concert to abduct the mother’s child by inducing the mother to surrender her parental rights, consent to the adoption, and waive her right of revocation. The articulated claims include conspiracy to commit fraud and tortious civil kidnapping, negligence, professional negligence, healthcare liability, and conversion of her child. All defendants filed motions to dismiss the complaint under Tennessee Rule of Civil Procedure 12.02 for some or all of the following reasons: (1) the adoption documents were valid under Tennessee law and not fraudulent; (2) Tennessee does not recognize the torts of civil kidnapping and conversion of a child; (3) the claims are time-barred; (4) the mother’s first certificate of good faith was non-compliant because it did not disclose a prior violation of Tennessee Code Annotated § 29-26-122; (5) the Tennessee Governmental Tort Liability Act barred the mother’s intentional tort claims against the hospital; and (6) the mother released some of the defendants from liability by signing a release agreement. Additionally, the healthcare providers contended the complaint should be dismissed because the mother failed to comply with the pre-suit notice requirement of the Tennessee Health Care Liability Act. The trial court granted the motions on various grounds and dismissed the complaint with prejudice for all defendants. Having determined that Tennessee does not recognize a tort of conversion of a child or tortious civil kidnapping and that conspiracy to commit fraud is not a standalone claim, we affirm the dismissal of these claims. We also affirm the dismissal of all remaining claims as time-barred. Therefore, the judgment of the trial court is affirmed.

Putnam County Court of Appeals 01/31/19
Sherry Smith Ex Rel Lauren Taylor Agee v. Hannah Nicole Palmer - Concurring
M2017-01822-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Jonathan L. Young

I concur in the reversal of the grant of summary judgment. But, because the basis of the reversal is Hannah Nicole Palmer’s failure to “satisfy her initial burden to produce evidence showing there was not a genuine issue of fact for trial,” I conclude it is unnecessary to reach the merits of the rulings on the motions in limine. I would vacate those rulings without further comment as, in my view, they were premised on the mistaken assumption that Ms. Palmer had shifted the burden to Sherry Smith.

DeKalb County Court of Appeals 01/30/19
Sherry Smith Ex Rel Lauren Taylor Agee v. Hannah Nicole Palmer
M2017-01822-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Jonathan L. Young

The mother of a woman whose body was discovered in Center Hill Lake, where she had been camping with several friends, brought this wrongful death action against those friends, alleging that they caused her daughter’s death and conspired to cover it up. One of the defendants asserted her Fifth Amendment privilege against self-incrimination in her answer to the complaint and in response to discovery requests; in due course, the defendant moved for summary judgment. The mother filed several affidavits and declarations in response, as to which the defendant filed motions in limine and motions to strike in total or in part. The defendant also asserted her Fifth Amendment privilege as to additional statements of disputed facts filed by the mother in response to the summary judgment motion. The trial court granted or denied, in whole or in part, each motion in limine and to strike; held that the mother was not entitled to an adverse inference as to the defendant’s invocation of the privilege in response to discovery and mother’s statement of disputed facts in opposition to the summary judgment motion; and granted summary judgment to the defendant. Mother appeals. Upon a thorough review of the record, we reverse the grant of summary judgment, vacate the rulings on the motions in limine that are at issue in this appeal, vacate the holdings relative to defendant’s invocation of her Fifth Amendment privilege, and remand the case for further proceedings consistent with this opinion. 

DeKalb County Court of Appeals 01/30/19
State of Tennessee Ex Rel. Roger D. Moore v. Kimberly N. Wright Oden
M2018-00779-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Philip E. Smith

This appeal involves the trial court’s entry of a 2005 child support order nunc pro tunc. After it became apparent that a certain decade-old child support order, which was the basis for several subsequent support orders, was missing from the record, the mother filed a motion requesting that the trial court enter the order nunc pro tunc. The trial court granted the motion, finding that the missing order was not included in the record by mistake of the court or clerk. Finding no error, we affirm. 

Davidson County Court of Appeals 01/30/19
Home Builders Association Of Middle Tennessee v. Metropolitan Government Of Nashville And Davidson County
M2018-00834-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor William E. Young

Plaintiff challenged a zoning ordinance on the grounds that it violated the Federal and State Constitutions, that it was preempted by a state law, and that it was ultra vires and thus void. The trial court dismissed this challenge on the grounds of ripeness, lack of standing, and because no private right of action was conferred by the statute that Plaintiff contended preempted the ordinance at issue. While the appeal was pending, the Tennessee Legislature enacted Public Chapter 685, which Defendant contended made the case moot and accordingly moved to dismiss the appeal. After a thorough consideration of the arguments, we grant the motion and dismiss the appeal as moot; we vacate the judgment of the trial court and dismiss the case.  

Davidson County Court of Appeals 01/30/19
Steven L. McCullough v. Dan Rawls D/B/A Cleveland Performance Center
E2018-00016-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jerri S. Bryant

In this breach of contract action, the trial court entered a judgment against the individual defendant for the plaintiff’s damages and attorney’s fees. The defendant subsequently filed a motion to alter or amend the judgment, asserting that he could not be held personally liable for damages because the work he had performed for the plaintiff was conducted through his business, which was a limited liability company. The trial court denied the motion to alter or amend, determining that there were no facts presented at trial to support the defendant’s contention that he was operating his business as a limited liability company. The defendant timely appealed. Discerning no reversible error, we affirm.

Bradley County Court of Appeals 01/30/19
Clyde Jason Stambaugh v. Metropolitan Government of Nashville & Davidson County, Et Al
M2017-02203-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Claudia Bonnyman

The benefit board of a metropolitan government denied injured-on-duty benefits to a police officer with post-traumatic stress disorder. On a petition for writ of certiorari, the trial court upheld the benefit board’s decision. Finding material evidence to support the action of the benefit board, we affirm the decision of the trial court.

Davidson County Court of Appeals 01/29/19
Royalton Woods Homeowner Association, Inc. v. Phillip Soholt, Et Al.
M2018-00596-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Stella L. Hargrove

This appeal arises from a dispute between a residential homeowner association and the owners of a lot in the subdivision. The trial court granted partial summary judgment to the association upon the determination that the subject property was encumbered by the Declaration of Covenants, Conditions and Restrictions (“CCRs”), due in part to the fact that the CCRs were expressly referenced and incorporated into the Special Warranty Deed conveyed to the homeowners. The court also granted summary judgment upon the finding it was undisputed that the challenged improvements made to the property by the homeowners, the parking of commercial vehicles on the street in front of the house, and operating a business out of the home were in violation of the CCRs. Following a hearing on damages and injunctive relief, the trial court issued an injunction ordering the homeowners to remove the unauthorized improvements, stop parking commercial vehicles on the street in front of the home, and cease conducting their business out of the home, and awarded unpaid assessments and attorney’s fees to the association. On appeal, the homeowners argue that their lot is not encumbered by the restrictive covenants, the association did not have standing or authority to enforce the restrictions, and the homeowners did not violate the restrictions. Additionally, the homeowners take issue with the court’s failure to apply the doctrine of laches, its decision to summarily dismiss their slander of title claim against the homeowner association, and the award of attorney’s fees. We have determined there is a genuine dispute of fact concerning whether the homeowners were conducting their business out of the home in violation of the CCRs which precludes summary judgment; therefore, we reverse the grant of summary judgment on that claim. We affirm the trial court’s rulings in all other respects.

Maury County Court of Appeals 01/29/19
Vanessa Berlanga, Et Al. v. Tennessee Department of Safety and Homeland Security
M2017-00745-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

Claimants to cash seized by the Rutherford County Sheriff’s Office moved to dismiss the related administrative forfeiture proceeding. They also requested an award of attorney’s fees. An administrative law judge granted the motion to dismiss but did not address the request for attorney’s fees. Claimants later filed a separate motion for attorney’s fees, which the ALJ denied. Claimants then filed a petition for judicial review. Claimants filed their petition within sixty days of the denial of the motion for attorney’s fees but over sixty days from the day the order granting the motion to dismiss became final. The chancery court reversed, awarding claimants part of the attorney’s fees requested. Because it lacked subject matter jurisdiction over the petition, we vacate the decision of the chancery court.

Davidson County Court of Appeals 01/29/19
Sima Aryan v. Nicolas Aryan
M2017-02199-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Phillip R. Robinson

In this post-divorce proceeding, the Mother appeals the trial court’s rulings on several motions; finding no reversible error, we affirm the judgment in all respects, except the award of child support, which is not final and is subject to further review by the trial court.

Davidson County Court of Appeals 01/29/19
Martha Renner v. Takoma Regional Hospital, Et Al.
E2018-00853-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Alex E. Pearson

This is a health care liability action in which the defendants filed a motion to dismiss based upon the plaintiff’s failure to file a certificate of good faith with the complaint. The plaintiff then filed the required certificate. The defendants responded with motions for summary judgment with attached affidavits, attesting that a certificate of good faith was not attached to the original complaint. The plaintiff moved for voluntary dismissal. The court granted the plaintiff’s motion and filed an order of voluntary dismissal. The defendants appeal, claiming that Rule 41.01 of the Tennessee Rules of Civil Procedure1 prohibits the taking a voluntary nonsuit when a summary judgment motion is pending. We affirm.

Greene County Court of Appeals 01/29/19
In Re: Ethan M.
E2018-00472-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Douglas T. Jenkins

This action involves the termination of a mother’s parental rights to her minor child. Following a bench trial, the court found that clear and convincing evidence existed to support the statutory grounds of abandonment for failure to support and to visit. The court further found that termination was in the best interest of the child. We reverse the trial court on its finding that the mother abandoned the child by failing to visit. We affirm the trial court on all other rulings.

Hamblen County Court of Appeals 01/29/19
Gerald A. Sanford v. Tennessee Department Of Correction Et Al.
M2018-00860-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert L. Jones

An inmate housed in a private prison filed a complaint naming several defendants including the Tennessee Department of Correction, the owner of the prison, and the owner’s employees. The complaint alleged several causes of action, including various violations of his constitutional rights, defamation, and breach of contract. All defendants filed motions to dismiss averring that the inmate failed to state any claims for which relief could be granted, and that the inmate failed to comply with the procedural requirements applicable to inmates bringing civil claims in forma pauperis. We affirm as modified.  

Wayne County Court of Appeals 01/28/19
Robert Eugene Hulan, Et Al. v. Coffee County Bank
M2018-00358-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Vanessa Jackson

A bank extended a line of credit to a husband and wife in 2007 and obtained as security a parcel of undeveloped property. The bank foreclosed on the property in 2009 upon the couple’s default on the loan and filed suit in 2010 to collect a deficiency judgment. The trial court’s award of a deficiency judgment was reversed on appeal. The husband and wife then filed a complaint against the bank in 2014, based on the same line of credit agreement, claiming the bank had engaged in fraud and breach of contract. The trial court granted the bank’s motion for summary judgment and dismissed the 2014 complaint, and the couple appealed. We affirm the trial court’s judgment, finding (1) the couple waived their breach of contract claim by failing to assert it as a compulsory counterclaim in the 2010 litigation and (2) the couple’s fraud claims are barred by the statute of limitations.

Coffee County Court of Appeals 01/28/19
In Re: Savannah M.
M2018-00752-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Tim Barnes

This is a parental termination case. The trial court found that clear and convincing evidence existed to terminate mother and father’s parental rights on the grounds of abandonment by conduct exhibiting wanton disregard and persistence of conditions. The trial court further found that termination was in the best interests of the child. On appeal, however, the Department of Children’s Services did not defend the trial court’s ruling as to the ground of abandonment. Although we accordingly reverse as to that ground, we affirm as to the ground of persistence of conditions and with respect to the trial court’s determination that the termination of mother’s and father’s parental rights was in the child’s best interests.

Montgomery County Court of Appeals 01/28/19
In Re: Estate of William T. Miller
E2018-00751-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Dwaine Thomas

The administrator of an estate appeals the trial court’s grant of a claim against the estate for the payment of funeral expenses. We affirm.

Monroe County Court of Appeals 01/28/19
H Group Construction, LLC v. City of Lafollette
E2018-00478-COA-R9-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John D. McAfee

The unsuccessful bidder for certain municipal construction projects filed this action against the municipality, alleging, inter alia, that the municipality had violated its own competitive bidding ordinances and engaged in unlawful restraint of trade. The trial court granted summary judgment in favor of the municipality with regard to all claims except the bidder’s claim for damages for violation of the municipal ordinances and common law restraint of trade. In this interlocutory appeal, we have been asked to determine whether a cause of action exists against a governmental entity for common law restraint of trade and whether a bidder has a private right of action for damages against the municipality for alleged violations of municipal bidding ordinances. We determine that the municipality maintains sovereign immunity concerning any purported claim of common law restraint of trade. We further determine that because a petition for writ of certiorari would be the sole method of review of the City’s contract award, unsuccessful bidders are not authorized to bring a private cause of action for monetary damages for an alleged violation of the municipality’s competitive bidding ordinances. Accordingly, we reverse the trial court’s denial of the municipality’s motion for summary judgment and remand this matter to the trial court for entry of summary judgment in favor of the municipality.

Campbell County Court of Appeals 01/28/19