Court of Appeals Opinions

Format: 02/19/2018
Format: 02/19/2018
Mark W. Urlaub, as Next of Kin and Executor of the Estate of Bertha Worley Urlaub v. Select Specialty Hospital-Memphis, Inc., et al.
W2010-00732-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Robert L. Childers

Plaintiff filed this medical battery suit on behalf of his deceased mother and named as defendants the nephrologist who ordered an allegedly unauthorized hemodialysis procedure, another treating physician, and the hospital where she was treated. The trial court granted summary judgment to the treating physician who did not order the procedure and to the hospital. Plaintiff appeals. We find that both of these defendants were entitled to summary judgment and therefore affirm the trial court’s decision.

Shelby County Court of Appeals 01/20/11
Judith Anne Shaw v. Jason Patrick Shaw
E2010-01070-COA-R10-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jacqueline E. Bolton

In this divorce case, we granted the request of Jason Patrick Shaw (“Father”) for a Tenn. R. App. P. 10 extraordinary appeal on three issues: (1) whether the Trial Court erred when it refused to grant his request for access to his older daughter’s counseling records with a licensed clinical social worker; (2) whether the Trial Court properly prohibited Father from taking this daughter’s deposition, and (3) whether the Trial Court erred when it refused Father visitation with any of the parties’ three children. As to the first issue, we remand this case to the Trial Court for a determination of whether furnishing the social worker’s records would be against the daughter’s best interest, as discussed more fully in this Opinion. We vacate the Trial Court’s refusal to allow Father to depose the daughter. Finally, we vacate the Trial Court’s refusal to allow Father any meaningful visitation and remand for the Trial Court to determine an appropriate supervised visitation schedule.

Hamilton County Court of Appeals 01/20/11
Floyd E. Bell v. Eller Media Company, a Tennessee Corporation
W2010-01241-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Walter L. Evans

Pursuant to a lease agreement, Defendant was allowed to place a billboard on Plaintiff’s building. After the billboard allegedly caused damage to Plaintiff’s building, Plaintiff notified Defendant. Defendant then sent a letter to Plaintiff terminating the lease, but Plaintiff claims Defendant later agreed to remove the billboard and make repairs to his building. When such repair and complete removal were not made, Plaintiff filed suit alleging breach of contract and promissory estoppel. Defendant moved for summary judgment, which the trial court granted, and we affirm.

Shelby County Court of Appeals 01/20/11
Clayton Ward v. Illinois Central Railroad Company
W2010-00950-COA-R9-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Jerry Stokes

Plaintiff, a railroad employee, filed this lawsuit pursuant to the Federal Employers’ Liability Act, alleging that his left ankle injury was caused by his working conditions. The railroad filed a motion for summary judgment based upon the three-year statute of limitations. The trial court denied the motion for summary judgment but subsequently granted the railroad’s motion for permission to seek an interlocutory appeal. We granted the railroad’s application for an interlocutory appeal and now affirm the trial court’s decision to deny the motion for summary judgment.

Shelby County Court of Appeals 01/20/11
In Re: Spencer E.
M2009-02572-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jane C. Franks

Father filed a petition to relocate with the parties’ minor child, and the trial court denied his petition. On appeal, Father argues that the trial court made evidentiary and procedural errors necessitating vacating its decision, that the trial court’s decision denying his petition to relocate was erroneous, and that the trial court erred in declining to award him his attorney fees in defending against  Mother’s petition for dependency and neglect. We affirm the decision of the trial court in all respects.

Williamson County Court of Appeals 01/20/11
Dan Kenneth Kelly v. Sonya Frances Kelly
M2010-00332-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ross H. Hicks

In this post-divorce dispute, the trial court denied the petitions of both parents to modify the parenting time but granted the mother’s petition to modify child support. We affirm the trial court’s decision with respect to parenting time but reverse and remand for a proper determination regarding modification of child support.

Robertson County Court of Appeals 01/20/11
Robert D. Gray v. Andy B. Roten, II and Gary B. Roten
W2010-00614-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Kay S. Robilio

This case involves an accident between a bicycle and a pick-up truck. Appellant was struck by Appellee’s truck when Appellant failed to obey a stop sign and rode his bicycle into traffic. The trial court found that Appellant was sixty percent at fault for the accident, and, pursuant to a comparative fault analysis, entered judgment for Appellee. On appeal, we find that the trial court erred in applying a pedestrian statute to a bicyclist, but that this error was harmless in light of our finding that Appellant was negligent per se in failing to obey the stop sign, and/or in failing to yield to oncoming traffic. We conclude that the evidence preponderates in favor of the trial court’s finding that Appellant was at least sixty percent at fault so as to foreclose any recovery under a  comparative fault analysis. Affirmed for the reasons discussed herein.

Shelby County Court of Appeals 01/18/11
State of Tennessee for the use and benefit of Williamson County, et al. v. Jesus Christ’s Church @ Liberty Church Road, et al.
M2009-02439-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Timothy L. Easter

Landowner appeals trial court’s grant of summary judgment to county in action to enforce delinquent tax lien. Finding no error, we affirm the judgment of the trial court.

Williamson County Court of Appeals 01/13/11
Betty Rose v. Cookeville Regional Medical Center Authority, et al.
M2010-01438-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Amy T. Hollars

Plaintiff, a lactation consultant formerly employed by Cookeville Regional Medical Center, sued the hospital for common law retaliatory discharge and violation of the Tennessee Public Protection Act; plaintiff also asserted a claim for punitive damages. The case was tried before a jury. At the close of plaintiff’s proof, the court granted the Medical Center’s motion for directed verdict on the Protection Act and punitive damages claims; the common law retaliatory discharge claim was allowed to proceed to the jury. The jury found for the Medical Center. Plaintiff appeals, asserting error in the trial court’s grant of directed verdict and its rulings on evidentiary issues. Finding no error, we affirm.

Putnam County Court of Appeals 01/13/11
In Re: Destiny S.
E2010-00646-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge James L. Cotton, Jr.

Hank P. (“Father”) is the biological father of Destiny S. (“the “Child”). After the Child was removed from Father’s home in 2006, the Department of Children’s Services (“DCS”) eventually filed a petition to terminate his parental rights to the Child. Following a trial, the Juvenile Court found that clear and convincing evidence existed to terminate Father’s parental rights pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and (g)(3). The Juvenile Court also found that the evidence established clearly and convincingly that it was in the best interest of the Child for Father’s parental rights to be terminated. Father appeals challenging these findings as well as an evidentiary ruling and the Juvenile Court Judge’s refusal to recuse himself. We affirm the Juvenile Court’s judgment.

Scott County Court of Appeals 01/13/11
Open Lake Sporting Club v. Lauderdale Haywood Angling Club
W2009-02269-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Allen W. Wallace

This appeal involves a dispute over the location of a boundary line between tracts of land owned by two hunting clubs. After many years of litigation, the parties agreed that a new survey would be conducted by a new surveyor and that they would be bound by his decision. After the new surveyor filed a report and survey, one of the clubs filed a motion to set aside the survey, contending that the new surveyor did not make an independent determination regarding the location of the boundary line, but rather, copied a previous survey that was completed in the past. The trial judge refused to hold a hearing regarding the validity of the survey because the parties had agreed to be bound by the surveyor’s decision. We reverse and remand for further proceedings.ALAN E. HIGHERS, P.J

Lauderdale County Court of Appeals 01/13/11
Teresa J. Allen v. Randy C. Allen
W2010-00920-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Ron E. Harmon

In this divorce case, Plaintiff and her counsel failed to appear in court on the scheduled date of trial. The trial court held the hearing ex parte in their absence. Plaintiff hired new counsel and filed a “Motion to Set Aside Judgment,” which we discern to be a motion pursuant to Tenn. R. Civ. P. 59. The trial court held a hearing on the motion; however, Plaintiff failed to offer any evidence  explaining her failure to appear on the scheduled trial date. The trial court denied Plaintiff’s motion. After reviewing the record, we affirm.

Henry County Court of Appeals 01/12/11
Calvin Wilhite v. Tennessee Board of Parole
M2010-00857-COA-R3-CV
Authoring Judge: Judge Frank G. Clemet, Jr.
Trial Court Judge: Chancellor Russell T. Perkins

Appellant filed this petition for common law writ of certiorari when the Board of Probation and Parole denied him parole. He contends the Board’s decision was illegal, arbitrary, fraudulent, and in excess of its jurisdiction. The trial court dismissed the petition for writ of certiorari. We affirm the trial court.

Davidson County Court of Appeals 01/10/11