Court of Appeals Opinions

Format: 02/21/2017
Format: 02/21/2017
Vernon Lockhart v. Commissioner of The Tennessee Department of Safety
M2016-00083-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Senior Judge Ben H. Cantrell

This appeal arises from a civil forfeiture. Vernon Lockhart (“Lockhart”) was charged and later convicted on a number of criminal counts related to the distribution of large amounts of marijuana. The Tennessee Department of Safety and Homeland Security (“the Department”) declared as forfeited certain of Lockhart’s properties alleged to be derived from illegal drug transactions. An Administrative Law Judge (“the ALJ”) found in favor of the Department by a preponderance of the evidence, a decision which was affirmed on appeal by the Chancery Court for Davidson County (“the Trial Court”). Lockhart appeals to this Court, arguing, in large part, that the evidence used against him should have been suppressed and that the ALJ and Trial Court erred by failing to conduct an analysis of his suppression issue independent of the resolution of that issue in the criminal court proceedings. We hold, inter alia, that the ALJ’s order of forfeiture was supported by a preponderance of the evidence and that the doctrine of collateral estoppel bars Lockhart from re-litigating whether the evidence should have been suppressed as that issue has been resolved finally on appeal in his criminal proceedings. We affirm the judgment of the Trial Court upholding the ALJ’s order declaring Lockhart’s designated properties forfeited to the state.

Davidson County Court of Appeals 12/21/16
Tennessee Farmers Mutual Insurance Company v. Estate of Richard M. Archie and Jessica Cossitt
W2016-01287-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Rhynette N. Hurd

This appeal involves a dispute regarding a household exclusion clause in an automobile insurance policy. Following a motorcycle accident in which the defendant was injured while riding as a passenger of the insured, the insurance company filed suit seeking a declaratory judgment that the exclusion relieved it of liability for the defendant’s claims because the defendant was residing in the insured’s household at the time of the accident. Following a bench trial, the trial court found that the defendant was not residing in the insured’s household at the time of the accident for purposes of determining liability coverage and denied the insurance company’s request for declaratory relief. The insurance company appealed. We affirm.

Shelby County Court of Appeals 12/21/16
Moufak Sakaan v. FedEx Corporation, Inc., et al.
W2016-00648-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Rhynette N. Hurd

The Plaintiff filed suit against a number of corporate and individual Defendants alleging claims for intentional and negligent misrepresentation. After filing answers to the complaint, the Defendants moved for judgment on the pleadings on the basis that the asserted claims were time-barred. The trial court granted the motion and dismissed the Plaintiff’s case with prejudice. Discerning no error in this decision, we affirm.

Shelby County Court of Appeals 12/21/16
Erin Alford Fuller v. Roger Darnell Fuller
E2016-00243-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jerri S. Bryant

This appeal stems from a divorce action involving, inter alia, issues of proper valuation of a marital asset, child support, and alimony. The trial court found that the “trail” income from the father's financial planning business was a divisible marital asset, valuing it according to the evidence presented. The trial court set child support and alimony based on its determination of the father's income as an average of the prior two years' gross revenues from his business. The father has appealed. We determine that the trial court properly classified and valued the father's trail income from his business. We also determine, however, that the trial court erred by including in the father's income, for child support and alimony purposes, the amount of the trail income distributed as a marital asset. We vacate the trial court's determination regarding the amount of child support and alimony to be paid by the father. We remand this matter for a proper determination regarding the father's income, as well as an appropriate calculation of child support and determination of alimony in favor of the mother resulting therefrom. We determine the father's issue regarding the allocation of days in the permanent parenting plan to be moot. We affirm the trial court's judgment in all other respects. We decline to award attorney's fees on appeal to either party

Bradley County Court of Appeals 12/21/16
In re Linette B.
E2016-01316-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin, Jr.
Trial Court Judge: Judge Timothy E. Irwin
This is a termination of parental rights case. Mother/Appellant appeals the termination of her parental rights on the grounds of: (1) failure to substantially comply with the requirements of the permanency plan; and (2) persistence of the conditions that led to the child’s removal from Appellant’s custody. The trial court also found, by clear and convincing evidence, that termination of Appellant’s parental rights is in the child’s best interest. Discerning no error, we affirm.
 
Knox County Court of Appeals 12/21/16
Dement Construction Company, LLC v. Lucas C. Nemeth, et al.
M2015-02204-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge J. Mark Rogers

This case arises from landowners’ counter-suit for damages allegedly resulting from a construction company’s use of the landowners’ property to store excess topsoil from a road construction project. Following a trial, the jury returned a verdict in favor of the construction company, finding that the construction company was not responsible for the alleged damage to the property. The landowners appeal, asserting that the trial court made erroneous evidentiary rulings and failed to properly instruct the jury. Finding no error, we affirm the trial court.

Rutherford County Court of Appeals 12/20/16
In re Estate of Elwood R. Darken
M2016-00711-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor James G. Martin, III

The sons of the decedent challenge the executrix’s administration of the decedent’s estate, contending that she breached her fiduciary duty by, inter alia, refusing to provide them with certain documents and by converting personal property they claim their father intended for them. They also claim that the antenuptial agreement their father entered into with the executrix prior to their marriage established a trust that nullifies the specific bequest in their father’s will that gives his tangible personal property to the executrix. The executrix denied breaching any of her duties or converting any assets. She also disputed the contention that the antenuptial agreement created a trust. The trial court found that the executrix had not breached her fiduciary duties or converted any assets and that the antenuptial agreement did not create a trust. The court also ordered that the estate pay the fees of the attorney who represented the executrix in her fiduciary capacity. The decedent’s sons appeal, challenging each of the foregoing rulings. They also contend that the trial court erred in limiting their cross examination of the executrix at trial. We affirm in all respects.

Williamson County Court of Appeals 12/20/16
Hannah Turner Ex Rel. Liam Turner v. Charles Michael Howe, et al.
M2015-02386-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Justin C. Angel

This appeal involves in personam jurisdiction over the Appellees, Georgia and Alabama corporations. The trial court granted Appellees’ Tennessee Rule of Civil Procedure 12.02(2) motions to dismiss for lack of personal jurisdiction. Appellants appeal. Discerning no error, we affirm and remand.

Marion County Court of Appeals 12/20/16
Kobie Turner v. City of Memphis
W2015-02510-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

Appellee sued the City of Memphis, alleging that he was injured in a car accident caused by a police officer employed by the City. After a bench trial, the trial court ruled in Appellee’s favor, awarding him $90,000.00 in damages. Appellant appeals. On appeal, Appellant argues that the trial court erred when it found that Appellee had proven that Appellant was the proximate cause of Appellee’s injuries and when it awarded Appellee what Appellant deemed to be an excessive amount of damages. We affirm.

Shelby County Court of Appeals 12/20/16
In re Lynx C.
E2016-01568-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Timothy E. Irwin
This appeal involves the termination of a mother’s parental rights. The Tennessee Department of Children’s Services (“DCS”) removed the child at issue from the mother’s home prior to his first birthday. Four months later, DCS filed a petition to terminate the mother’s parental rights. The juvenile court found clear and convincing evidence of two grounds for termination and that termination of the mother’s parental rights was in the child’s best interest. We, however, conclude that DCS did not prove by clear and convincing evidence that the mother abandoned the child by willful failure to support. Because the record contains clear and convincing evidence of the remaining ground— abandonment by willful failure to visit—and that termination was in the best interest of the child, we affirm.
 
Knox County Court of Appeals 12/20/16
Aarene Contracting, LLC v. Krispy Kreme Doughnut
E2016-01155-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Pamela A. Fleenor

A contractor sued an owner for violations of the Prompt Pay Act, Tenn. Code Ann. §§ 66-34-101 et seq., and notified the owner of its violations by Federal Express and e-mail. The owner moved for summary judgment on the ground that the contractor failed to strictly comply with the notice provision requiring notice be sent by registered or certified mail, return receipt requested. The trial court found strict compliance was required and dismissed the contractor's claims under the Act. The contractor appealed, and we reverse the trial court's judgment, holding substantial compliance is sufficient under the facts of this case.

Hamilton County Court of Appeals 12/20/16
In Re Casey C., et al
M2016-01344-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Tim Barnes

This is a termination of parental rights case. Mother/Appellant appeals the termination of her parental rights to three minor children on the grounds of: (1) abandonment by failure to provide a suitable home; (2) abandonment by willful failure to support; and (3) persistence of the conditions that led to the children’s removal from Appellant’s custody. The trial court also found, by clear and convincing evidence, that termination of Appellant’s parental rights is in the children’s best interests. Discerning no error, we affirm.

Montgomery County Court of Appeals 12/19/16
Monica Chamberlain v. Myra Danielle Brown
E2015-01658-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Douglas Jenkins

Monica Chamberlain (“Grandmother”) sued Myra Danielle Brown (“Mother”) seeking to be awarded grandparent visitation with Mother's child Talan B. (“the Child”) pursuant to Tenn. Code Ann. § 36-6-306. After a trial, the Circuit Court for Greene County (“the Trial Court”) entered its judgment awarding Grandmother visitation with the Child after finding and holding, inter alia, that Grandmother had proven that Mother had denied visitation, that Mother had failed to rebut the presumption that denial of visitation may result in irreparable harm to the Child, that Grandmother and the Child had a significant existing relationship, and that visitation was in the best interest of the Child. Mother appeals to this Court. We find and hold that the evidence does not preponderate against the Trial Court's findings, and we affirm

Greene County Court of Appeals 12/19/16
Jeanie Holsclaw v. Ivy Hall Nursing Home, Inc. - Dissent
E2016-02178-COA-T10B-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jean A. Stanley

I cannot concur in the majority’s conclusion that Judge Stanley’s “personal extrajudicial knowledge” created “an appearance of impropriety . . . under Canon 2.11 of the Code of Judicial Conduct necessitating recusal.” Therefore, I respectfully dissent

Carter County Court of Appeals 12/19/16
Jeanie Holsclaw v. Ivy Hall Nursing Home, Inc. - Concurring
E2016-02178-COA-T10B-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Jean A. Stanley

I concur in the opinion as authored by Judge Stafford and write separately to reiterate the conclusion that nothing in the record leads me to believe that the trial judge is biased or prejudiced for or against any party or that there was any improper motive in the court’s contact with Dr. Mulkey. As gatekeeper of the expert opinion evidence proffered at trial, the court has the responsibility under Tenn. R. Evid. 702 and 703 to determine whether the evidence “will substantially assist the trier of fact to understand the evidence or to determine a fact at issue and whether the facts and data underlying the evidence indicate a lack of trustworthiness.” McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997). The record fully supports the trial court’s statement that the purpose of the call to Dr. Mulkey was to gain basic knowledge of the field of rehabilitation counseling, a discipline taught at the University of Tennessee. My concern, and what leads me to conclude that recusal is appropriate in this case, is the limited and specific nature of the court’s inquiry and how that inquiry could reasonably create the appearance of impropriety

Carter County Court of Appeals 12/19/16
Jeanie Holsclaw v. Ivy Hall Nursing Home, Inc.
E2016-02178-COA-T10B-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Jean A. Stanley

When asked to rule on the defendant‘s motion for physical examination by a certified rehabilitation counselor, the trial judge telephoned the director of a university department for information regarding the program in order to determine whether rehabilitation counselors "are even qualified to testify as experts." The trial judge disclosed the communication on the record and granted the examination. Later, the defendant filed a motion to recuse. The trial judge denied the motion and this accelerated interlocutory appeal followed. Because the trial judge learned information concerning facts in dispute from an extrajudicial source, we conclude that recusal is required by Canon 2.11 of the Tennessee Code of Judicial Conduct

Carter County Court of Appeals 12/19/16
In Re Jakob., et al
M2016-00391-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donna Scott Davenport

Upon petition of the Tennessee Department of Children’s Services (“the Department”), the trial court terminated the parental rights of Mother. We reverse the trial court’s determination that Mother willfully failed to support her children prior to her incarceration and its determination that she failed to substantially comply with the requirements of the family permanency plans created in this case. However, clear and convincing evidence supports the remaining grounds for termination relied upon by the trial court, as well as the trial court’s determination that the termination of Mother’s parental rights is in the children’s best interest. Accordingly, we affirm the termination of Mother’s parental rights.

Rutherford County Court of Appeals 12/15/16
Linda K. Guthrie v. Rutherford County, Tennessee, et al.
M2015-01718-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Howard W. Wilson

Plaintiff, a special education assistant, was injured at work when two middle school students were roughhousing in a school hallway and one was pushed into her, causing her to fall. She sued Rutherford County for negligence, pursuant to the Tennessee Governmental Tort Liability Act, alleging that, inter alia, her injuries were caused by the County’s failure to properly supervise the students, whom she also sued. After a bench trial, the court rendered judgment in favor of the defendants. Plaintiff appeals the judgment with respect to the County, contending that the court erred in holding that the County was immune from suit, that the evidence preponderated against certain findings of the court, and that the court erred in concluding that the County’s agents had not acted negligently. Discerning no error, we affirm the judgment.

Rutherford County Court of Appeals 12/15/16
Andrew Hirt, et al. v. Metropolitan Board Of Zoning Appeals Of The Metropolitan Government Of Nashville And Davidson County Tennessee
M2015-02511-COA-R3-cV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal concerns a local zoning board’s denial of a permit to replace an old billboard with a new digital billboard. After the zoning board denied the permit for the new billboard, the applicants who had requested the permit filed a petition for a writ of certiorari in chancery court. The chancery court found no basis to disturb the zoning board’s denial of a permit based upon its review of the administrative record. Although the applicants have appealed from the chancery court’s decision, we conclude that we cannot reach the merits of their appeal. Because the applicants did not file a petition for a writ of certiorari that complied with Tennessee Code Annotated section 27-8-106 within sixty days of the zoning board’s order, we conclude that the chancery court was without subject matter jurisdiction to review the zoning board’s actions. We accordingly vacate the chancery court’s order and dismiss this case.    

Davidson County Court of Appeals 12/15/16
In re La'Trianna W., et al.
E2016-01379-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Timothy E. Irwin

This is a termination of parental rights case. Appellant/Mother appeals the trial court’s termination of her parental rights to two minor children on the ground of mental incompetence and on its finding that termination of Appellant’s parental rights is in the children’s best interests. Discerning no error, we affirm.

Knox County Court of Appeals 12/15/16
K.G.R., by and through his parents, Rachel Riffe and Jeffrey v. Union City School District, et al.
W2016-01056-COA-R9-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jeff Parham

This is a negligence case involving the alleged sexual assault of a 13-year-old special education student by another 13-year-old special education student in a school bathroom. The trial court determined that the Appellant school district was not entitled to summary judgment as a matter of law because there was a question of fact as to whether the incident was foreseeable. We conclude that there is no dispute of material fact and that summary judgment in favor of the school district should be granted. Reversed and remanded.

Obion County Court of Appeals 12/14/16
Charlesan Woodgett, et al v. John R. Vaughan, Jr., et al
M2016-00250-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Robert L. Jones

This appeal arises from a jury trial. The plaintiff filed a premises liability suit against the defendant-homeowners after she allegedly fell and sustained injuries while viewing the defendants’ home as a prospective buyer. After a two-day jury trial, the jury returned a verdict in favor of the defendant-homeowners, finding that they were not at fault for the plaintiff’s injuries. The plaintiff raises numerous issues on appeal. We affirm.      

Maury County Court of Appeals 12/13/16
Tracy Vann Knocke v. James Joseph Knocke
E2016-01347-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Lawrence Howard Puckett

The Final Judgment of Divorce entered in this case reserved the issue of the division of any deficiency indebtedness resulting from the foreclosure of the parties’ marital residence prior to the time of trial.  The Permanent Parenting Plan, incorporated into the Final Judgment, also indicated that the precise amount of child support, as a portion of the total support payment ordered by the trial court, had yet to be determined.  As such, it is clear that the order appealed from does not resolve all issues raised in the proceedings below.   As a result of this jurisdictional defect, we lack jurisdiction to consider this appeal. 

Bradley County Court of Appeals 12/12/16
Jana Maria Deboe Howard Sisco v. Robert Glynn Howard
M2015-01928-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

Jana Maria Deboe Howard Sisco (“Mother”) appeals the March 31, 2015 order of the Circuit Court for Montgomery County (“the Trial Court”) modifying the Permanent Parenting Plan entered when Mother and Robert Glynn Howard (“Father”) divorced. Mother raises issues regarding whether a material change in circumstances justifying a modification had occurred and, if so, whether a modification was in the best interest of the parties’ minor children. We find and hold that the March 31, 2015 order fails to comply with Tenn. R. Civ. P. 52.01. We, therefore, vacate the March 31, 2015 order and remand this case to the Trial Court to make specific findings of fact and conclusions of law in compliance with Tenn. R. Civ. P. 52.01. 

Montgomery County Court of Appeals 12/12/16
John Anthony Gentry v. Katherine Wise Gentry
M2016-01765-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joe Thompson

Appellant seeks review of three appellate judges’ denial of his motion asking them to recuse themselves. We find no bias, and no error, in the matters appellant raises and therefore deny the motion to recuse the judges.

Sumner County Court of Appeals 12/09/16