Court of Appeals Opinions

Format: 05/26/2015
Format: 05/26/2015
Town of Collierville, et al. v. Town of Collierville Board of Zoning, et al.
W2013-02752-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Walter L. Evans

The Town of Collierville, Tennessee, passed an ordinance prohibiting the construction of new billboards. The Town, through its Development Department, asserted that two billboards erected prior to the passage of the ordinance were illegal and ordered that they be removed. The owner of the billboards appealed the removal order to the Board of Zoning Appeals, which did not affirm the order. The Town and the Development Department petitioned for writ of certiorari, seeking judicial review of the decision of the Board of Zoning Appeals. The Shelby County Chancery Court dismissed the petition for lack of standing. We conclude that the Town and the Development Department have standing. Therefore, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion.

Shelby County Court of Appeals 04/07/15
Michael Morgan v. Superior Catering Services, et al.
E2014-00005-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancelor W. Frank Brown

The underlying claim in this appeal concerns age discrimination. The action was filed initially against a single defendant. Three additional defendants were later added, but the plaintiff served process for them on the attorney for the initial defendant, instead of the individual defendants, a fact about which the added defendants learned only a few days prior to the trial. The trial ensued after the court refused to grant a continuance. A jury found all the defendants liable. The trial court awarded the plaintiff $70,000. The defendants collectively filed a motion for a new trial and raised the issues of insufficient service and the inadmissibility of direct evidence. In its first order, the trial court granted the defendants' motion for a new trial. The plaintiff thereafter filed a motion to alter or amend, after which the court reversed its prior ruling granting the new trial and reinstated the jury verdict. The defendants appeal. We reverse.

Hamilton County Court of Appeals 04/07/15
Charles Walker v. Bank of America, N. A. et al
M2014-00672-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joseph P. Binkley, Jr.


Plaintiff submitted the winning bid for the purchase of improved real property from Defendant Bank at auction. Plaintiff and Bank executed a purchase agreement and Plaintiff paid earnest money. Before the scheduled closing date, Bank informed Plaintiff that it did not own part of the real property advertised for auction. It offered to sell Plaintiff the unimproved parcel for the contract amount or to terminate the contract. After Plaintiff informed Bank’s closing agent that he intended to close on the entire parcel as advertised for auction, Bank returned Plaintiff’s earnest money and terminated the contract. Plaintiff filed an action alleging intentional misrepresentation, negligent misrepresentation, and violation of the Tennessee Consumer Protection Act against Bank and the auction company. The trial court granted Bank’s motion to dismiss and granted the auction company’s motion for a judgment on the pleadings. We affirm the decision of the trial court and remand.

Davidson County Court of Appeals 04/06/15
Jay Daniel, et al. v. Allstate Insurance Company
W2014-01965-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Joe H. Walker, III

This is an appeal from the trial court’s grant of summary judgment in an action on a homeowner’s insurance policy that contained a one-year contractual limitations period on actions arising under the policy. The home of the insured parties was damaged by a fire on December 15, 2011. The insured parties submitted a claim with the insurer pursuant to their homeowner’s insurance policy. The insurer submitted an estimate and tendered a settlement check to the insured parties on April 2, 2012. Over a year later, on October 3, 2013, the insured parties filed suit alleging they were owed an additional $75,000 for personal use and construction improvements on a new home. The trial court granted summary judgment in favor of the insurer, finding that the insured parties’ claims were barred by the one-year contractual limitations period. After reviewing the record, we find no error in the trial court’s decision and affirm its grant of summary judgment.

Tipton County Court of Appeals 04/06/15
In Re Neveah W.
W2014-01531-COA-R10-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Kenny W. Armstrong

This extraordinary appeal arises from the trial court’s placement of a minor child while the minor child remains in the legal custody of the Tennessee Department of Children’s Services (“DCS”). The minor child was removed by DCS from the home of her Foster Parents, who had cared for her almost since birth, after allegations that the Foster Parents had abused one of their other children. The minor child’s guardian ad litem filed an emergency petition seeking the return of the child to the Foster Parents’ home, or alternatively, for an award of legal custody to the Foster Parents. After a hearing wherein DCS, the Foster Parents, and the GAL presented evidence, the trial court ordered that the child be returned to the Foster Parents’ home, but declined to remove the child from DCS’s legal custody. On appeal, we hold that a trial court may not direct placement of a child in the legal custody of DCS. We reverse the ruling of the trial court and remand for further proceedings.

Shelby County Court of Appeals 04/02/15
Clifford Swearengen v. DMC-Memphis, Inc., et al.
W2014-00724-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John R. McCarroll

This is an appeal from the trial court’s grant of a motion to dismiss Appellant’s medical malpractice action against defendants named in Appellant’s amended complaint filed more than one year after the cause of action accrued. The trial court found that Appellant’s claims against the additional parties were time barred because the amended complaint adding these parties was not filed within ninety days of the original answer asserting comparative fault against non-parties. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 04/02/15
Michael Adler v. Double Eagle Properties Holdings, LLC, et al.
W2014-01080-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Arnold B. Goldin

This case concerns the proper interpretation of a contract governing an interest in real property. The trial court concluded that the contract unambiguously granted a lease to one party, rather than an easement. Affirmed and remanded.

Shelby County Court of Appeals 04/02/15
Brooks Monypeny, et al. v. Chamroeun Kheiv
W2014-00656-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jerry Stokes

This is an appeal from a judgment entered on a jury verdict. The case arises from a motor vehicle accident. Appellant State Farm defended the case as the original plaintiffs’ uninsured motorist carrier. The original plaintiffs subsequently died, one as a direct result of injuries sustained in the accident, the other some two years after the accident. The plaintiffs’ children were substituted as plaintiffs/appellees. State Farm appeals the judgment on the jury verdict on numerous grounds, including: (1) denial of its motion for directed verdict; (2) scope of cross-examination; (3) denial of its motion for mistrial based upon inappropriate closing argument; (4) exclusion of notations on medical records; (5) various acts of alleged wrongdoing on the part of Appellees’ attorneys; (6) jury instructions; (7) admission of medical bills for original plaintiff’s long term assisted living expenses; (8) excessive verdict; (9) incorrect application of statutory cap on non-economic damages; (10) denial of credit for medical and death payments made by State Farm under the insurance policy; and (11) award of discretionary costs. Because there is material evidence to support the jury’s verdict, and because the trial court did not abuse its discretion, we affirm and remand.

Shelby County Court of Appeals 04/01/15
In Re Miracle F.H.
E2014-01508-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kurt Andrew Benson
This is a termination of parental rights appeal brought by the mother. The trial court found clear and convincing evidence to support termination of the mother’s parental rights on the statutory grounds of abandonment for failure to visit, abandonment for failure to remit child support, and that mother substantially failed to comply with the requirements of the permanency plans. The court also found that termination of the mother’s parental rights was in the best interest of the child. The mother appeals. We affirm the decision of the trial court.
 
Bradley County Court of Appeals 04/01/15
In Re Estate of Wanda Joyce Watkins
E2014-02323-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Rex A. Dale
This is an appeal from an order in a will-construction suit regarding whether certain heirs to the Estate of Wanda Joyce Watkins (“Heirs”), appellants in this appeal, are entitled to inherit under the residuary clause of the Decedent’s will. Because the order appealed from does not resolve the issue of the amount of attorney’s fees awarded to the Executrix, Kimberly B. Jenkins (“Executrix”), in connection with the filing of the petition for construction of the will, we lack jurisdiction to consider this appeal.
 
Loudon County Court of Appeals 04/01/15
Latony Baugh, et al. v. United Parcel Service, Inc., et al.
M2014-00353-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Thomas W. Brothers

In this wrongful death appeal, the main issue is whether, under Tenn. Code Ann. § 20-5-106(c)(1), a surviving spouse must have abandoned the decedent for a period of two years to have waived his or her right to institute an action or collect proceeds under that section. We have concluded that the two-year period in Tenn. Code Ann. § 20-5-106(c)(1) applies only to “willful withdrawal.”

Davidson County Court of Appeals 03/31/15
Al M. Williams v. Corrections Corporation of America, et al.
W2015-00212-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge J. Weber McCraw

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

Hardeman County Court of Appeals 03/31/15
James McMillin et al. v. Paul Lindsey McMillin et al.
E2014-00497-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Daryl R. Fansler

The plaintiffs are siblings and two of the four adult children of the decedent. The defendants include a third adult child and his wife. In the months preceding her death, the decedent changed her bank accounts, originally titled solely in her name, to become joint accounts with the defendant son with right of survivorship. The plaintiffs asserted that the defendant sibling exerted undue influence over the decedent in these transactions. They sought the return of all monies withdrawn from those bank accounts to the decedent's estate. Following a two-day trial, the jury rendered a verdict for the plaintiffs in the amount of $284,800. The defendants have appealed. Discerning no error, we affirm.

Knox County Court of Appeals 03/31/15
Linda Dennis et al. v. Dr. Robert G. Smith et al.
E2014-00636-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Deborah C. Stevens
Linda Dennis and Creed Dennis (“Plaintiffs”) filed a healthcare liability action against Dr. Robert G. Smith (“Defendant”) and others. Defendant filed a motion to dismiss. After a hearing, the Circuit Court for Knox County (“the Trial Court”) dismissed Plaintiffs’ claims after finding and holding, inter alia, that Plaintiffs had failed to comply with Tenn. Code Ann. §§ 29-26-121 and 29-26-122. Plaintiffs appeal the dismissal of their claims to this Court. We find and hold that because Plaintiffs failed to comply with Tenn. Code Ann. § 29- 26-122, their action was subject to dismissal with prejudice upon motion. We, therefore, affirm the Trial Court’s dismissal of Plaintiffs’ claims.
 
Knox County Court of Appeals 03/31/15
In Re Jesslyn C.
E2014-01385-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge David W. Tipton

This parenting dispute arose upon the parents' competing motions for modification of the existing permanent parenting plan as to the parties' minor child. The trial court previously had entered a permanent parenting plan order on May 11, 2010, designating the mother as the primary residential parent and awarding equal residential co-parenting time to both parents in an alternating weekly schedule. Following a hearing, the trial court found that a material change in circumstance warranting modification of the residential co-parenting schedule had occurred since entry of the permanent parenting plan. The trial court further found that reducing the father's co-parenting time to alternate weekends during the academic year, while reversing this co-parenting schedule during the summer break, was in the child's best interest. The father has appealed. Discerning no reversible error, we affirm.

Sullivan County Court of Appeals 03/31/15
Amresco Independence Funding, LLC et al. v. Renegade Mountain Golf Club, LLC et al.
E2014-01160-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Ronald Thurman

This appeal presents the issue of whether service of process was properly effected upon a nonresident defendant. The defendant filed a limited appearance and motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02, asserting that he had never been properly served with process. The trial court granted the defendant’s motion, finding that service of process was never properly completed pursuant to Tennessee Rule of Civil Procedure 4. The plaintiff has appealed. Discerning no error, we affirm

Cumberland County Court of Appeals 03/31/15
In Re: Jaceton B.
M2014-01580-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge A. Andrew Jackson

Department of Children’s Services filed a petition to terminate father’s parental rights to his minor child. The trial court found the Department proved the ground for termination pursuant to Tenn. Code Ann. § 36-1-113(g)(6) because the father was sentenced to a prison term of ten or more years when the child was under eight years of age. The trial court also found that terminating the father’s parental rights was in the best interests of the child. Father appeals. The evidence clearly and convincingly supports the determination that father was sentenced to incarceration for ten or more years when the child was less than eight years old. The evidence also clearly and convincingly supports the determination that terminating father’s parental rights is in the child’s best interest because father did not have any meaningful relationship with the child and that the child had a strong relationship with his foster family, who had cared for his medical needs and wanted to adopt him. Therefore, we affirm the termination of father’s parental rights.

Dickson County Court of Appeals 03/30/15
Theresa Malone v. Tennessee Department of Safety, et al
M2014-00190-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

This  appeal  arises out  of an  administrative proceeding initiated  by a  former  driver’s license examiner.  After the examiner was injured on the job, she was absent  from work for nearly thirteen months.  For some of those months, she was on various  forms of approved leave.  Eventually, the examiner was terminated for job abandonment. She exhausted the Department of Safety’s grievance process, and both the Commissioner of the Department and the Tennessee Civil Service Commission affirmed her termination. The examiner then appealed to the chancery court, which also affirmed the Commission’s decision.  The examiner appealed.  Because we find the Commission’s decision was not supported  by substantial  and  material  evidence  and  was  arbitrary or  capricious,  we reverse and remand. 

Davidson County Court of Appeals 03/30/15
Kathyrne Kennedy v. Karl E. Childs
M2014-00093-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Raymond Grimes

This appeal involves Father’s petition for child support modification and his petition for rehearing regarding a magistrate’s finding of criminal contempt. At issue are the juvenile court’s findings that Father failed to demonstrate a significant variance necessary for the modification of child support; the confirmation of the magistrate’s order finding Father guilty of criminal contempt for willful failure to pay child support; and the court’s decision to only excuse three months of Father’s child support arrearages. We conclude that the trial court erred in calculating Father’s and Mother’s monthly gross incomes on the child support worksheet but that the record is otherwise insufficient to address the issues raised by Father. Therefore, we affirm in part, vacate in part, and remand.

Montgomery County Court of Appeals 03/30/15
Barbara Jean Blake v. Russell Alan Blake
M2014-01016-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This case requires us to consider whether the trial court had jurisdiction to hear a petition for contempt. Mother and the parties’ child reside in Nevada, and Nevada had exercised jurisdiction over the child pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). Mother filed a petition seeking to hold Father in contempt for his alleged failure to abide by portions of an amended parenting plan and for his failure to pay certain marital debt. Mother also requested to have child support recalculated. Father filed a counter-petition for contempt alleging interference with his visitation. Mother asserted the Nevada court had jurisdiction over Father’s counter-petition. The trial court, sua sponte, dismissed both petitions for contempt, holding that Nevada had jurisdiction. We affirm the trial court’s dismissal of Father’s counter-petition, but we reverse the court’s dismissal of Mother’s petition, which addresses marital debt, child support, and other issues unrelated to the custody of the children. 

Montgomery County Court of Appeals 03/30/15
Janice Bunch v. Tiffany Jones
W2014-01161-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Donna M. Fields

This is an appeal from an award of attorney’s fees following settlement of the underlying lawsuit. Appellees, law firm and attorney, represented Appellant in a lawsuit arising from an automobile accident. After protracted mediation, Appellee orally agreed to lower its contingency fee from 33 1/3% to 10% in consideration of Appellant’s agreement to settle her case against the tort defendants for $52,000. Appellant agreed to accept this offer and signed the settlement agreement at the conclusion of the mediation. Thereafter, Appellant allegedly refused to sign the releases drafted by the tort defendants. The trial court, upon the tort defendants’ motion, enforced the settlement agreement reached by the parties at mediation. Appellees assert that Appellant’s refusal to sign the releases drafted by the tort defendants constitutes a breach of the modified fee agreement and now seek to enforce an attorney’s fee lien for the full one-third of the recovery. The trial court granted Appellees’ motion to enforce its lien for the full amount, and Appellant appeals. We conclude that the terms of the modified fee agreement between Appellees and Appellant only required Appellant to settle her case with the tort defendants for $52,000, which she did. Accordingly, the trial court erred in not enforcing the modified fee agreement. Reversed in part, affirmed in part, and remanded.

Shelby County Court of Appeals 03/30/15
James R. Cotham v. Judy P. Cotham
W2015-00521-COA-T10B-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Carma Dennis McGee

This is a Rule 10B appeal of the denial of a petition for recusal. Appellant supported the Chancellor’s opponent in the August 2014 election and contends that her support of the opponent provides cause for the Chancellor’s recusal. The trial court denied Appellant’s motion to recuse, and Appellant filed this accelerated interlocutory appeal pursuant to Rule 10B of the Rules of the Tennessee Supreme Court. We affirm.

Decatur County Court of Appeals 03/30/15
Sarah Kee, et al. v. City of Jackson, Tennessee
W2013-02754-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Nathan B. Pride

Action under the Tennessee Governmental Tort Liability Act against the City of Jackson to recover for injuries sustained in a fall suffered by one plaintiff while she and her husband were walking across a bridge from a parking lot to the fairgrounds operated by the City. Following a bench trial, the court held that the bridge was in a defective and dangerous condition and that the City was not immune from suit; the court determined that the City was 60% negligent and the plaintiff 40% negligent. The court assessed damages at $62,817.35 for plaintiff wife and $8,400.00 for plaintiff husband; applying the comparative fault percentage, the court awarded plaintiff wife $37,690.41 and plaintiff husband $5,040.00. We modify the award of damages to plaintiffs; in all other respects we affirm the judgment of the trial court.

Madison County Court of Appeals 03/30/15
In Re Conservatorship of Dessa L. McQuinn
E2013-02790-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor W. Frank Brown, III

Jacqueline D. Cameron filed a petition seeking to be named as conservator of her mother, Dessa L. McQuinn. After a hearing, the trial court declined to appoint Cameron conservator, finding that such an appointment was against McQuinn's wishes and best interest. Exercising the discretion provided it by Tenn. Code Ann. § 34-1-114 (Supp. 2013), the trial court ordered Cameron to pay the fees and expenses of McQuinn's appointed guardian ad litem. The court also ordered Cameron to return all of McQuinn's personal property to her house, which property Cameron had earlier removed from McQuinn's house without authorization. Cameron appeals. We affirm.

Hamilton County Court of Appeals 03/30/15
Thomas D. McClure, Sr. v. Linda Bentley McClure
E2014-00412-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Douglas T. Jenkins

The issue presented in this divorce appeal is whether the trial court erred in refusing to appoint a guardian ad litem for Thomas D. McClure, Sr. (Husband), and proceeding to trial in Husband's absence after he was duly notified of the trial date. Finding no abuse of discretion, we affirm the judgment of the trial court.

Hawkins County Court of Appeals 03/30/15