Court of Appeals Opinions

Format: 01/17/2018
Format: 01/17/2018
Natalie Sharp v. Tennessee Department of Commerce And Insurance
M2016-01207-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Thomas W. Brothers

This appeal involves the trial court’s order of disclosure of certain public records over the objection of the Tennessee Department of Commerce and Insurance and the corresponding denial of attorney fees for failure to disclose the said records. We affirm.  

Davidson County Court of Appeals 11/09/17
Adnan A. Alattiyat v. Faiza A. Qasqas
W2016-00855-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert Samual Weiss

This is a divorce case. Appellant/Husband appeals the trial court’s denial of his motion for summary judgment, his motion to vacate the pendente lite award, the division of marital property, and the award of alimony. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 11/09/17
Jason Donaldson v. Susan Donaldson
E2017-01806-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge M. Nicole Cantrell

This is an appeal from an order granting a motion filed pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. The order on appeal vacated and set aside the Final Decree of Divorce, Permanent Parenting Plan and Marital Dissolution Agreement previously entered by the Trial Court in the proceedings below. The appellee has filed a motion to dismiss this appeal arguing that the lack of a final judgment deprives this Court of jurisdiction. We agree and grant the motion to dismiss.

Anderson County Court of Appeals 11/09/17
Linda Beard v. James William Branson, et al
M2014-01770-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robert E. Burch

This appeal is before the court on remand from the Supreme Court for our consideration of two issues that were not resolved by the Supreme Court in Beard v. Branson, No. M2014-01770-SC-R11-CV, __ S.W.3d __, 2017 WL 3725519 (Tenn. Aug. 30, 2017). This is a medical malpractice, wrongful death action in which Plaintiff seeks to hold Trinity Hospital, LLC (“Trinity”) and James William Branson, M.D. (“Dr. Branson”), liable for the wrongful death of Ruth Hartley on September 29, 2004. Plaintiff alleged that Mrs. Hartley died because of delay in treatment of a bowel perforation she developed as a complication of colon surgery performed by Dr. Branson. In a partial summary judgment ruling, the trial court determined that a non-party, Stanley Anderson, M.D. (“Dr. Anderson”), the radiologist with whom Trinity contracted to provide services to its patients, was an apparent agent of Trinity and that Trinity was vicariously liable for any negligent acts or omissions of Dr. Anderson. Following a trial, the jury found in favor of Plaintiff and awarded damages in the amount of $750,000.00, allocating 50% of the fault for Mrs. Hartley’s death to Trinity, 10% to Dr. Anderson, and 40% to Dr. Branson. The two issues we must consider are: (1) whether the trial court erred in granting partial summary judgment to Plaintiff by finding that Dr. Anderson was the apparent agent of Trinity; and (2) whether the trial court erred in assessing discretionary costs in the amount of $68,945.85 against Trinity. Finding no error, we affirm.

Houston County Court of Appeals 11/08/17
ADP, LLC v. Eric Manchir
M2016-02541-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal concerns an employment-related restrictive covenant. Eric Manchir (“Manchir”) worked as a sales manager for ADP, LLC (“ADP”), a company that deals in human resources and business outsourcing matters. As a prerequisite to obtaining restricted stock options from ADP, Manchir consented to a restrictive covenant agreement (“the Agreement”). The Agreement contained, among other things, a non-competition clause extending to twelve months after Manchir left ADP. New Jersey law governs the Agreement. Manchir later resigned from ADP and went to work for an ADP competitor, Paycor, Inc. (“Paycor”). ADP sued Manchir in the Chancery Court for Davidson County (“the Trial Court”) for breach of contract and sought specific enforcement of the Agreement. ADP filed a motion for summary judgment, which the Trial Court granted. The Trial Court also awarded ADP, pursuant to a provision in the Agreement, attorney’s fees and costs. Manchir appeals. We hold, inter alia, that the Agreement is reasonable and enforceable under New Jersey law, that Manchir breached the Agreement, and that specific performance is an appropriate remedy. We affirm the judgment of the Trial Court.

Davidson County Court of Appeals 11/08/17
In Re Brooklyn S., Et Al
M2017-00390-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Justin C. Angel

This is a dependent and neglect action in which the mother of three minor children appeals the circuit court’s finding that her children were subjected to severe abuse and that she “either committed the severe abuse herself, or knowingly failed to protect her four month old infant from the severe abuse that led to his death.” Mother contends the circuit court erred by allowing three grandparents who intervened in the juvenile court proceedings to fully participate as parties in the circuit court proceedings. She further contends the circuit court failed to conduct a true de novo hearing following her appeal from the juvenile court, and that the circuit court erred by admitting the transcripts from the juvenile court hearings into evidence. We affirm the trial court in all respects but one. We find the evidence insufficient to clearly and convincingly establish that Mother committed the severe abuse herself; however, we affirm the circuit court’s ruling that Mother committed severe child abuse by knowingly failing to protect Hunter from the severe abuse that led to his death.

Franklin County Court of Appeals 11/08/17
In Re Ashton B.
W2017-00372-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Walter L. Evans

The partial guardian of the child appeals the trial court’s order assessing the totality of the guardian ad litem’s fees to it following the denial of the partial guardian’s termination of parental rights petition. Because guardian ad litem’s fees may be assessed against parties pursuant to Rules 17.03 and 54.04 of the Tennessee Rules of Civil Procedure in parental termination proceedings, we affirm the decision of the trial court.

Shelby County Court of Appeals 11/07/17
B&W Pipeline, LLC v. Tennessee Regulatory Authority Et Al.
M2016-02013-COA-R12-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge:

B&W Pipeline, LLC (“B&W”), a public utility that owns a gas pipeline in three Tennessee counties, filed a petition with the Tennessee Regulatory Authority (“the Authority”) seeking a rate increase. As part of the rate increase request, B&W sought to include in the rate base $2.6 million in acquisition costs that it had incurred when it purchased the pipeline and several oil and gas wells in 2010. A contested case hearing took place on September 14, 2015. Following deliberation, the Authority denied B&W’s proposed acquisition adjustment and instead utilized a 2008 federal income tax return filed by the pipeline’s previous owner to establish the pipeline’s value for the purpose of determining the rate base. The Authority issued its final order on March 10, 2016. B&W timely filed a motion for reconsideration. The Authority denied the motion for reconsideration with respect to the value of the pipeline while granting the motion for reconsideration with respect to certain due diligence and other costs B&W incurred in the acquisition. After the submission of briefs, the Authority affirmed its decision to exclude the additional acquisition costs. The Authority issued a final order concerning reconsideration on August 4, 2016. B&W filed a timely petition for review with this Court on October 3, 2016. Discerning no error, we affirm the Authority’s decision.

Court of Appeals 11/06/17
Christine Greenwood v. City of Memphis, et al.
W2016-00897-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge James F. Russell

This is a case about an unleashed German shepherd. The dog belonged to Appellant’s neighbor, who allowed the dog to remain unleashed in his yard. Appellant reported this to several employees of the City of Memphis, who ultimately determined that the dog was appropriately restrained in the neighbor’s yard by an invisible electric fence. Appellant was unsatisfied with this determination and filed suit against the City and its employees for tort claims and violations of her constitutional rights. The trial court dismissed Appellant’s suit for failure to state a claim upon which relief could be granted. We affirm.

Shelby County Court of Appeals 11/06/17
Ray W. Buck v. Accurate C & Services, Inc., ET Al.
E2017-00231-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Donald Elledge

Ray W. Buck (“Plaintiff”) appeals the January 4, 2017 order of the Circuit Court for Anderson County (“the Trial Court”) granting summary judgment to Accurate C & S Services, Inc. (“Accurate”) and R&R Properties of Tennessee, LLC (“R&R”) in this suit for premises liability. We find and hold that the defendants made properly supported motions for summary judgment and that Plaintiff failed to respond with genuine disputed issues of material fact showing that a rational trier of fact could find in his favor. We, therefore, affirm the grant of summary judgment.

Anderson County Court of Appeals 11/06/17
In Re: Conservatorship of Glen Travis Campbell
M2016-02563-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge David Randall Kennedy

This appeal involves attorney’s fees awarded during the course of a conservatorship. Upon a petition filed by the ward’s eldest two children, a response filed by the ward’s spouse, the report of a court-appointed guardian ad litem, and a mediated agreement, the probate court entered an order establishing a conservatorship for the ward and appointing the ward’s spouse as conservator on May 11, 2015. During the course of the conservatorship, the trial court found in three instances at issue that the conservator was entitled to attorney’s fees in disputes involving various requests to release information concerning the ward in a public forum. The trial court subsequently denied a motion to set aside, vacate, and stay enforcement filed by the original petitioners, who have appealed to this Court. Having determined that the original petitioners were given insufficient notice of two of the three hearings resulting in the assessment of attorney’s fees and costs against them, we vacate the trial court’s respective orders awarding attorney’s fees and costs in those two instances. We affirm the trial court’s judgment in all other respects at issue on appeal.

Davidson County Court of Appeals 11/03/17
Anthony Holder, et al. v. Shelby County, Tennessee
W2017-00609-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Valerie L. Smith

This is the second appeal of this governmental tort liability action. After his son committed suicide while in custody at the Shelby County Jail, Appellee filed suit against the Appellant Shelby County for negligence under a theory of vicarious liability. On remand from this Court, the trial court held a bench trial and determined that Appellant’s employee’s failure to perform wellness checks was negligent conduct but not intentional. Accordingly, the trial court held that Appellant was not immune from suit under the Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-205, and entered judgment in favor of Appellee. Shelby County appeals. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 11/03/17
In Re Conservatorship of Otto Tillman Stiefel
W2016-02598-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kathleen N. Gomes

This is a conservatorship dispute. The trial court found that there was clear and convincing evidence that Appellant was in need of a conservator. We conclude that the evidence presented at trial was not clear and convincing as to whether Appellant was in need of a conservator. Because there is some question in the record, however, as to whether the parties reached an agreement to allow the appointment of a conservator, we vacate and remand this case to determine this issue. Reversed in part, vacated in part, and remanded.

Shelby County Court of Appeals 11/03/17
In Re Briley R.
M2016-01968-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ray Grimes

This appeal arises from the adoption of a permanent parenting plan and the determination of a father’s child support obligation. The father argues that the juvenile court erred in both its fashioning of the parenting plan and its calculation of his child support obligation. Because the court made insufficient findings of fact and conclusions of law, we vacate and remand. 

Montgomery County Court of Appeals 10/31/17
Kimberly Van Floyd Et Al. v. Lisa A. Shirley Akins Et Al.
E2015-01737-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jerri Bryant

This case concerns a dispute involving Lisa Akins, Kimberly Floyd, and Donna Helms, the three daughters of Eldon Shirley (the deceased). The initial dispute regards a deed from the deceased to Akins, reserving a life estate. Prior to the execution of the deed, the deceased executed a power of attorney appointing Akins as his attorney-in-fact. Thereafter, Floyd filed this action to set aside the deed on the ground of undue influence. She also alleged that Akins converted other assets of the deceased. Helms later filed an intervening complaint adopting the allegations in Floyd’s complaint. Helms prayed that the real property deeded to Akins be declared a resulting and/or constructive trust. Akins filed a counterclaim alleging that Helms was indebted to her. Akins asked the court to compel Helms to file an accounting of the funds in dispute. The trial court bifurcated the trial. It first heard the undue influence claim. The court held that the deed was procured by the undue influence of Akins. The second stage of the trial involved the status of other assets and accounts. The court determined that specific payments to Helms were loans. The court found that other payments to and charges made by Helms involved no promise to repay and were gifts or payments for the care of the deceased. Akins appeals. We affirm.

Monroe County Court of Appeals 10/31/17
In Re Brantley B.
M2016-02547-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ronald Thurman

Mother appeals the termination of her parental rights to her son resulting from a petition for termination and adoption filed by her son’s Father and Stepmother. The trial court terminated Mother’s rights on the grounds of abandonment by failure to support and persistence of conditions, and on a finding that termination was in the child’s best interest. Upon a thorough review of the record, we reverse the termination of Mother’s rights on the ground of persistence of conditions; we affirm the termination of her rights on the ground of abandonment by failure to support and the holding that termination is in the child’s best interest.

DeKalb County Court of Appeals 10/30/17
Cindy Phillips, Et Al. v. Rural Metro Of Tennessee, L.P., Et Al.
E2016-02440-COA-R9-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Michael S. Pemberton

We granted an interlocutory appeal pursuant to Tenn. R. App. P. 9 in this case to consider whether the allegations set forth in the Complaint make this a ‘health care liability action’ as defined by Tenn. Code Ann. § 29-26-101 et seq. (“the Tennessee Health Care Liability Act”) such that the pre-suit notice and certification requirements set forth in Tenn. Code Ann. §§ 29-26-121 and – 122 are applicable. We find and hold that the allegations set forth in the Complaint filed in this case do not make this suit a health care liability action as defined by the Tennessee Health Care Liability Act. We affirm that portion of the judgment of the Circuit Court for Loudon County (“the Trial Court”) finding and holding that the allegations set forth in the Complaint filed in this case do not make this suit a health care liability action as defined by the Tennessee Health Care Liability Act.1

Loudon County Court of Appeals 10/30/17
Voya Retirement Insurance And Annuity Company v. Mary Beth Johnson, Et Al.
M2016-00435-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Carol L. McCoy

A plan administrator filed an interpleader action asking the court to determine the proper beneficiary of death benefits in a retirement plan. After the plan participant died, both his former wife and his estate demanded payment from the plan administrator. Although the former wife was listed as the designated beneficiary in the plan, the estate claimed that the beneficiary designation had been revoked in the couple’s marital dissolution agreement. The former wife filed a motion for judgment on the pleadings and a counterclaim alleging breach of the implied covenant of good faith and fair dealing in the administration of the plan. The trial court denied the former wife’s motion, awarded the disputed proceeds to the estate, and dismissed the counterclaim. The former wife appealed. Upon review, we conclude that the marital dissolution agreement did not revoke the previous beneficiary designation. We also conclude that the trial court erred in dismissing the counterclaim. Thus, we reverse in part, vacate in part, and remand this case for further proceedings consistent with this opinion.

Davidson County Court of Appeals 10/27/17
Joanna Marie Vlach v. Gregory Alan Vlach
M2015-01569-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ross H. Hicks

The primary issue in this appeal is whether the former spouse of a military retiree is entitled to a share of his military retirement.  The military retiree submits that, because of his service-connected disability rating of 100%, his former spouse is not entitled to a share of his military retirement.  Based on its interpretation of the parties’ marital dissolution agreement, the trial court ruled in favor of the former spouse and awarded her a percentage of the retiree’s “total military retired pay,” including disability benefits.  Upon our de novo review, we conclude that the trial court erred in awarding the former spouse a percentage of the retiree’s disability benefits.  But the trial court correctly determined that the military retiree’s disability rating did not deprive his former spouse of an interest in his military retirement.

Montgomery County Court of Appeals 10/27/17
In Re: Estate of Joe Marce Abbott
W2017-02086-COA-T10B-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor George R. Ellis

This is a Rule 10B appeal of the denial of a petition for 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 in part, modifying the trial court’s order to deny the motion to recuse and vacate its order regarding the validity of the will. We remand for further hearing regarding the validity of the will at issue.

Gibson County Court of Appeals 10/27/17
Robert Weidlich v. Lisa Rung
M2017-00045-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Justin C. Angel

This appeal concerns a defamation claim. Lisa Rung (“Rung”) put up a Facebook post featuring a photograph of the back of Robert Weidlich (“Weidlich”)’s vehicle. Weidlich’s vehicle had a number of bumper stickers on it, some of which incorporated
the Confederate Battle Flag. Along with the photograph, Rung asserted in her Facebook post that the Weidlichs were “white supremacist[s].” Weidlich sued Rung for defamation in a case eventually tried before the Circuit Court for Franklin County (“the Trial Court”). After trial, the Trial Court entered judgment in favor of Weidlich and awarded him damages. Rung appeals. We hold that Rung’s Facebook post, viewed in its entire context, constitutes non-actionable commentary upon disclosed facts. We reverse the judgment of the Trial Court.

Franklin County Court of Appeals 10/26/17
Regina Edwards v. Allenbrooke Nursing and Rehabilitation Center, LLC
W2016-02553-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge James F. Russell

This appeal involves an arbitration agreement executed in connection with a nursing home admission. The trial court found no evidence that the individual who signed the arbitration agreement on behalf of the resident had authority to do so, and that, in any event, the form itself was not properly completed. Accordingly, the trial court denied the nursing home’s motion to compel arbitration. The nursing home appeals and argues that the trial court erred in deciding these issues because they should have been resolved by an arbitrator. We affirm and remand for further proceedings.

Shelby County Court of Appeals 10/26/17
Ana Tania Gomez, Et Al. v. Sable-Imagination On Sand, Et Al.
E2017-00107-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Telford E. Forgerty, Jr.

This is an appeal from a bench trial. Due to the deficiencies in the appellants’ brief on appeal, we find that they waived consideration of any issues on appeal and hereby dismiss the appeal.

Sevier County Court of Appeals 10/26/17
Christen Nicole Pankratz v. Dion Pankratz
M2017-00098-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Larry J. Wallace

This case involves a post-divorce modification of a parenting plan. The trial court found that there had been a material change in circumstances since the entry of the parties’ existing parenting plan. Mother appeals the trial court’s modification of the parenting plan insofar as the trial court did not adopt, in toto, her proposed plan. Father appeals the trial court’s finding that a material change in circumstances occurred since entry of the parties’ existing parenting plan but argues, in the alternative, that the trial court should be affirmed. Discerning no error, we affirm and remand.

Cheatham County Court of Appeals 10/25/17
Neighbors of Old Hickory, Et Al. v. Metropolitan Government Of Nashville And Davidson County, Tennessee, Et Al.
M2016-01815-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Senior Judge Robert E. Lee Davies

This is a declaratory judgment action in which the plaintiff property owners sought a finding that the defendant’s right to operate a rock quarry had not vested prior to the adoption of BL2015-13, which prohibits such activity on the property in question. All parties then moved for summary judgment as relevant to their respective positions. The trial court granted summary judgment in the defendant’s favor, finding that the quarry qualified as a pre-existing nonconforming use. We affirm.  

Davidson County Court of Appeals 10/25/17