Court of Appeals Opinions

Format: 08/30/2016
Format: 08/30/2016
In re Tianna B. - Concurring In Part and Dissenting In Part
E2015-02189-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Robert D. Philyaw

I concur completely in the majority’s opinion terminating the parental rights of Myron J. T. based upon the provisions of Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(i). I dissent from so much of the majority’s decision as holds that father does not fall within the ambit of Tenn. Code Ann. § 36-1-113(g)(9)(A) and § 36-1-117(c). I would hold that father is within the class of persons covered by these latter two statutes. On this point, I adhere to the majority opinion authored by me in the case of In re F.N.M., No. M2015-00519-COA-R3-PT, 2016 WL 3126077 (Tenn. Ct. App., filed Apr. 11, 2016).

Hamilton County Court of Appeals 07/06/16
In re Tianna B.
E2015-02189-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert D. Philyaw
The Department of Children’s Services sought to terminate the parental rights of a father who had not seen his child in thirteen years and who had taken no steps to legitimate the child until after the petition to terminate was filed. After a trial, the court found that the grounds of abandonment by willful failure to visit and failure to establish or exercise paternity were established and that it was in the child’s best interest to terminate the father’s rights. On appeal, we conclude that the trial court erred in relying on Tenn. Code Ann. § 36-1-113(g)(9)(A) as a basis to terminate the father’s rights, but that the trial court correctly determined that the father abandoned the child by willfully failing to visit as set forth in Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(i). We affirm the trial court’s judgment in part and reverse it in part.
 
Hamilton County Court of Appeals 07/06/16
State of Tennessee Ex Rel. Barbara E. Catalano v. William R. Woodcock
E2015-01877-COA-R9-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Gregory S. McMillan

In this post-divorce child support case, we granted interlocutory appeal to determine whether the Knox County Fourth Circuit Court (“trial court”) erred by finding that the mother was entitled to ongoing and/or retroactive child support from the father for the parties’ adult disabled child. In October 2001, the mother had been granted a default divorce judgment by the Rutherford County Circuit Court (“divorce court”) upon constructive notice by publication to the father. As to child support for the parties’ only child, who was then seventeen years old, the divorce court reserved the issue pending personal service of process upon the father. In March 2014, the State of Tennessee, acting on behalf of the mother, filed a petition to set child support. Prior to the petition’s filing, no child support obligation had been set. Following a hearing, the child support magistrate recommended that the trial court consider the reservation of child support to be a prior child support order and find that it could exercise jurisdiction to set child support.

Knox County Court of Appeals 07/05/16
David Clarence Cook v. Mary Elizabeth Cook
E2016-00042-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor M. Nichole Cantrell

This appeal stems from a final judgment of divorce entered in the Anderson County Chancery Court. Wife appeals several issues, including the propriety of the trial court’s decision to grant a divorce based on irreconcilable differences in the absence of an agreed written marital dissolution agreement. Upon review of the record transmitted to us on appeal, we agree that because there was no written marital dissolution agreement, the trial court erred in granting the divorce between the parties on the basis of irreconcilable differences. Accordingly, we vacate the trial court’s final judgment and remand for such further proceedings as are necessary and consistent with this Opinion.

Anderson County Court of Appeals 07/05/16
Andrea Kay Honeycutt Ex Rel. Minor Child, Alexander H. v. Jonathan Honeycutt
M2015-00645-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

In this case, a wife, on behalf of herself and her children, obtained an ex parte temporary order of protection against her husband as permitted by Tennessee Code Annotated § 36-3-605(a). After a hearing, the circuit court extended the order of protection for forty-five days and assessed costs and attorneys’ fees against the husband. The husband appeals, arguing that the wife failed to prove her allegations of domestic abuse by a preponderance of the evidence. After reviewing the record, we affirm the decision of the circuit court. 

Davidson County Court of Appeals 06/30/16
In re Lukas S.-M
M2015-01367-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Steven D. Qualls

This is an appeal from an order designating a primary residential parent, setting visitation, and requiring the child to be returned to Tennessee. The juvenile court found that Mother failed to comply with Tennessee’s parental relocation statute, and after conducting a best interest analysis, ordered that the child be returned to Tennessee. Mother appealed both the court’s application of the relocation statute and its determination of the child’s best interests. We vacate in part and affirm in part.      

Putnam County Court of Appeals 06/30/16
The Metropolitan Government of Nashville and Davidson County v. The Civil Service Commission of The Metropolitan Government of Nashville And Davidson County, Tennessee, et al
M2015-01488-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ellen Hobbs Lyle

An officer with the Davidson County Sheriff’s Department was terminated for dishonesty and related charges after he filed official reports alleging that he had been attacked by another officer and lost consciousness during training exercises. The Department investigated the officer’s claims and found that they were exaggerated and that his dealings with claims representatives and other personnel were hostile and dishonest. After a disciplinary hearing, the Department decided to terminate the officer. An administrative law judge (“ALJ”) determined that the officer should be reinstated with only a ten-day suspension. The Civil Service Commission adopted the ALJ’s initial order as its final order with a few changes. The Metropolitan Government of Nashville and Davidson County (“Metro”) filed a petition for review in chancery court, and the court held that the decision of the Civil Service Commission that the officer had not committed the conduct at issue was not supported by substantial and material evidence. The chancery court reversed the decision of the Commission as to the officer committing the misconduct and remanded to the Commission for a determination of the appropriate disciplinary sanction. We affirm the decision of the chancery court.

Davidson County Court of Appeals 06/30/16
Eric L. Tate Davis v. Kristin A. Hood
M2014-02490-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Senior Judge Don R. Ash

This appeal arises from post-divorce efforts to modify a permanent parenting plan. The father filed a petition to modify child support and subsequently amended his petition to include a request to modify the residential parenting schedule. The mother filed a counter-petition, seeking to limit the father to supervised visitation. After a hearing, the trial court dismissed the father’s petition to modify the residential parenting schedule because the father failed to prove a material change of circumstance. The court, however, found that the mother did prove a material change of circumstance and that modification of the residential parenting schedule to restrict the father to supervised visitation was in the best interest of the child. The trial court also modified child support and awarded the Mother one-half of her attorney’s fees. Both parties appeal the trial court’s decision. The father appeals the trial court’s findings with regard to material changes of circumstance, child support, and the award of attorney’s fees. The father also appeals the trial court’s decision to limit his pretrial discovery. The mother appeals the trial court’s award of only half of her attorney’s fees and decision to divide the costs of supervised visitation between the parties. Upon reviewing the record, we affirm the trial court’s decision and remand this case for a determination of the amount of Mother’s reasonable attorney’s fees on appeal.

Williamson County Court of Appeals 06/30/16
Tennessee Wastewater Systems, Inc. v. Tennessee Regulatory Authority
M2014-01903-COA-R12-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge:

Tenn. R. App. P. 12 petition for review of the decision of the Tennessee Regulatory Authority to revoke Tennessee Wastewater Systems, Inc.’s Certificate of Public Convenience and Necessity. Determining that the revocation of the CCN satisfies the requirements of law, is supported by substantial and material evidence, and is an appropriate and reasonable exercise of the TRA’s authority and discretion, we affirm the decision.

Court of Appeals 06/30/16
Shannon Robert Gregory v. Kelly Ann Gregory
M2015-01781-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Mitchell Keith Siskin

This is an appeal of a post-divorce order reinstating Father’s alimony obligation and denying Father’s petition to terminate child support. Father brought a petition to terminate his alimony and child support obligations after discovering that his ex-wife was living with a third party. Additionally, he argued that his twenty-one year old daughter was not severely disabled and his child support obligation should be terminated. The trial court suspended Father’s alimony obligation for the duration of his ex-wife’s cohabitation but reinstated the alimony obligation as the cohabitation had ceased by the time of trial. The trial court also determined that the child was severely disabled and ordered child support to continue. Father appealed. We affirm.

Rutherford County Court of Appeals 06/30/16
Earl G. Donaldson v. Terri Allison Donaldson - Dissent
M2015-01035-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Joe Thompson

I respectfully dissent from the majority’s opinion in this case. I instead would affirm the judgment of the trial court in its entirety.

Sumner County Court of Appeals 06/30/16
Earl G. Donaldson v. Terri Allison Donaldson
M2015-01035-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Joe Thompson

In this divorce action, the trial court awarded alimony in futuro to Husband in the amount of $1,450.00 per month. Wife appeals, contending that the findings that Husband had a need for alimony and Wife had the ability to pay, as well as the nature, amount, and duration of the award, are not supported by the record. In making the award, the court did not find that rehabilitative, transitional, or short term alimony was inappropriate, and the findings of fact do not otherwise allow for a review of the award. We vacate the award and remand the case for further consideration of the nature, amount, and duration of the award of alimony.  

Sumner County Court of Appeals 06/30/16
The Estate of Blake B. Cunningham, by and through Barbara Cunningham v. Epstein Enterprises, LLC, et al. - CONCUR
W2015-00498-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

I concur in the result reached by the majority Opinion with regard to whether the Epstein Entities owed a duty to Mr. Cunningham, but I write separately to address a concern with how the majority reaches this conclusion. I also concur with the majority Opinion‘s holding that the Service Agreement cannot be relied upon by Ms. Cunningham in this case, albeit for a different reason. Thus, I respectfully file this concurrence and will address each of my concerns in turn.

Shelby County Court of Appeals 06/30/16
The Estate of Blake B. Cunningham, by and through Barbara Cunningham v. Epstein Enterprises, LLC, et al.
W2015-00498-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Rhynette N. Hurd

In this premises liability case, the plaintiff appeals from the trial court's grant of summary judgment in favor of the defendants, the manager and owner of an apartment complex. The trial court concluded that the defendants owed no duty to a security guard, who was fatally shot while working at the apartment complex. Although a premises owner generally owes a duty to provide independent contractors with a safe workplace, under the facts of this case, we conclude that the defendants owed no duty to protect the security guard from the criminal acts that resulted in the loss of his life. Therefore, we affirm the grant of summary judgment in favor of the defendants. Additionally, we affirm the award of discretionary costs to the defendants.

Shelby County Court of Appeals 06/30/16
John F. Manning, Sr. v. Crystal Joan Manning, et al.
E2015-02082-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Douglas T. Jenkins

This appeal involves the interpretation of a marital dissolution agreement. Pursuant to the agreement, the husband and wife agreed to waive any interest in the other party's retirement account upon the dissolution of the marriage. The husband failed to effectuate the change to his retirement account. Upon his death, the wife refused to sign documentation waiving her right to the benefits. The administrator of the estate filed suit. The parties filed competing motions for summary judgment. The trial court granted summary judgment to the wife. The administrator appeals. We reverse the judgment of the trial court and direct entry of summary judgment in favor of the administrator.

Hamblen County Court of Appeals 06/30/16
In re Addison E., et al.
E2015-00721-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Timothy E. Irwin

This appeal involves the termination of a mother's parental rights to two minor children. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of her rights on the statutory ground of severe child abuse. The court further found that termination was in the best interest of the children. The mother appeals. We affirm.

Knox County Court of Appeals 06/30/16
Chuck's Package Store et al. v. City of Morristown
E2015-01524-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Thomas J. Wright

This case originated when six retail wine and liquor stores filed suit against the City of Morristown seeking a refund of a portion of inspection fees that had been erroneously calculated by the City. The fees were assessed by the City on the purchases at wholesale of alcoholic beverages. The City failed to use the correct percentage mandated by Tenn. Code Ann. § 57-3-501 (2013). It is undisputed that the plaintiffs overpaid the City; since the plaintiffs were understandably unaware of the error, they failed to state that they were paying the fees under protest. The City moved to dismiss the case, citing the plaintiffs' failure to pay “under protest.”

Hamblen County Court of Appeals 06/30/16
Victoria Hope Mashburn v. Tyler David Mashburn
E2015-01173-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Casey Stokes

In this divorce action, Tyler David Mashburn (Father) argues that the trial court erred by including certain provisions in the permanent parenting plan, i.e., (1) a requirement that his residential parenting time with the parties’ son be supervised; (2) a provision prohibiting Father’s girlfriend from staying overnight during Father’s parenting time; (3) a provision that Father shall have no additional residential parenting time for holidays or vacations unless Victoria Hope Mashburn (Mother) agrees; and (4) a provision that all major decisions regarding the child shall be made exclusively by Mother. We modify the plan by deleting all of these provisions. Furthermore, we reverse the trial court’s decision to award Mother attorney’s fees of $5,000.

Meigs County Court of Appeals 06/30/16
Commerce Union Bank Brentwood, Tennessee D/B/A Reliant Bank v. Kelly D. Bush, et al.
M2015-00396-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor James G. Martin, III

This is a post-foreclosure action in which the lender seeks to recover a deficiency judgment, interest, and the costs of collection. In their answer, the borrowers asserted that the loan was a nonrecourse debt; thus, they were not liable for the deficiency. Alternatively, they asserted that the property sold at foreclosure for an amount materially less than its fair market value. Following a bench trial, the trial court concluded that the loan was a full recourse debt as to both borrowers. This determination was based on the finding, inter alia, that all parties intended the borrowers to be personally liable. The trial court also concluded that the lender was entitled to a deficiency judgment, finding that the borrowers failed to overcome the rebuttable presumption that the foreclosure sale price was equal to the fair market value of the property at the time of the foreclosure sale. See Tenn. Code Ann. § 35-5-118. The trial court awarded the lender a judgment of $640,783.41, plus interest and attorney’s fees, against the borrowers jointly and severally. As the foregoing indicates, our review is benefited by the trial court’s Tenn. R. Civ. P. 52.01 findings of facts and conclusions of law, which disclose the reasoned steps by which the trial court reached its ultimate conclusion and enhance the authority of the trial court’s decision. Having reviewed the trial court’s findings of fact in accordance with Tenn. R. App. P. 13(d), we have concluded that the evidence does not preponderate against the trial court’s findings and that the trial court identified and properly applied the applicable legal principles. For these reasons, we affirm.

Williamson County Court of Appeals 06/29/16
Jennifer Rebecca Creswell Henegar v. Jason Adam Henegar
M2015-01780-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge John Thomas Gwin

This appeal is from a final decree of divorce. The wife challenges several of the trial court’s rulings regarding the grounds for the divorce, the division of marital property, the parenting plan, the calculation of child support and educational expenses, and attorney’s fees. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.     

Wilson County Court of Appeals 06/29/16
Tonya Halleen Blackwell v. Christopher S. Blackwell
M2015-01624-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

In this post-divorce action, the mother sought modification of the father’s child support obligation due to a material change of circumstances. The trial court increased the father’s child support obligation but declined to order such modification effective as of the date the mother filed her petition to modify. The mother has appealed. Having determined that the trial court erred in failing to modify the father’s child support obligation effective as of the date of the petition’s filing, we reverse the trial court’s judgment in that regard and remand for entry of a modified judgment retroactive to the date the mother filed the petition. We affirm the trial court’s judgment in all other respects.

Montgomery County Court of Appeals 06/29/16
Jody Pendergrass, et al. v. Brandon Ingram
E2015-01990-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge J. Michael Sharp

This case arises from a contract dispute. The parties orally contracted for Appellees to perform grading and other work on Appellant's property for the price of $2,500.00. After Appellees began the work, Appellant requested additional work. The parties did not discuss any additional payment for this work. After the work was complete, Appellees sent Appellant an invoice for $9,073.00. Appellant told Appellees he would not pay that amount and sent them a cashier's check marked “pd in full” for $1,500.00, which was the balance due on the original $2,500.00 price. Appellees marked through the “pd in full” notation on the check, cashed the check, and then notified Appellant that they considered the check to be a credit against the total amount owed.

Bradley County Court of Appeals 06/29/16
Terry K. King, et al v. Stephen S. Kelly
M2015-02376-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kelvin D. Jones

Plaintiffs appeal from the trial court’s order denying their motion to enforce two offers of judgment offered serially by the defendant. Because the trial court improperly certified its judgment as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure, we dismiss this appeal for lack of subject matter jurisdiction.  

Davidson County Court of Appeals 06/28/16
Vanessa Young Colley v. John S. Colley, III
M2014-02495-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Phillip E. Smith

In this post-divorce action, Vanessa Young Colley (“Mother”) filed a petition for modification of the Permanent Parenting Plan (“Parenting Plan”) entered in connection with the parties’ Marital Dissolution Agreement (“MDA”) seeking to change the decision-making authority with regard to educational decisions for the parties’ minor children. After a hearing, the Circuit Court for Davisdon County (“the Trial Court”), inter alia, modified the Parenting Plan to change joint decision-making with regard to education to Mother having sole decision-making authority with regard to education. John S. Colley, III (“Father”) appeals the decision of the Trial Court raising issues with regard to the change in decision-making authority, the denial of Father’s petition for recusal, and the award to Mother of attorney’s fees, among other things. We find and hold that some of Father’s issues seek an advisory opinion, and we refuse to address those issues. With regard to the issue of recusal, we find no error in the Trial Court’s resolution of this issue. We further find and hold that Mother proved a material change in circumstances justifying a change in decision-making authority with regard to education and further proved that it was in the children’s best interest for Mother to have sole decision-making authority with regard to education. We, therefore, affirm.

Davidson County Court of Appeals 06/28/16
In re Estate of Tandy Nathan Dalton
E2014-02204-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

In this probate action, the executrix proposed to distribute the decedent’s real and personal property in a manner that she claimed was in accordance with the decedent’s Last Will and Testament (“Will”). One beneficiary, one of the decedent’s three adult children, objected, claiming that the decedent had granted her an option to purchase one parcel of real property owned by the decedent. The trial court determined that the real property in question was an asset of the probate estate and that the executrix could administer it in accordance with the decedent’s Will. The trial court also determined that a settlement agreement executed by the decedent’s three children precluded the claim of an option to purchase. The beneficiary appealed. Pursuant to Tennessee Code Annotated § 30-2-301, we vacate the trial court’s denial of the beneficiary’s requests for an inventory and accountings and remand for further proceedings. We affirm the trial court’s judgment in all other respects.

Grainger County Court of Appeals 06/28/16