Court of Appeals Opinions

Format: 09/27/2016
Format: 09/27/2016
Unitta Sue Newman v. Guardian Healthcare Providers, Inc., et al
M2015-01315-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Amanda J. McClendon

On August 4, 2013, Kevin Beazley, a resident at Middle Tennessee Mental Health Institute (MTMHI), attacked Billy Joe Newman, another patient and resident, causing injuries that resulted in Newman’s death. His widow, Unitta Sue Newman (plaintiff), brought this action against several corporations (defendants) that provided nursing and medical staff to MTMHI. The trial court dismissed the complaint with prejudice, on the grounds that it was governed by the Tennessee Health Care Liability Act (THCLA), and plaintiff did not comply with either the pre-suit notice requirement of Tenn. Code Ann. § 29-26-121 (Supp. 2015), or the certificate of good faith requirement of § 29-26-122 (2012). Plaintiff argues that the allegations of her complaint fall under the “common knowledge” exception to the general rule requiring expert testimony to establish medical negligence, and, thus, she was not required to file a certificate of good faith. She asserts that the trial court should have dismissed her complaint without prejudice. Because plaintiff’s negligence claims involve matters of professsional medical knowledge, judgment, and treatment not within the common knowledge of ordinary lay persons, we affirm.

Davidson County Court of Appeals 07/27/16
Matthew Jordan, Sr. v. City of Memphis
W2015-01994-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Kenny W. Armstrong

At its scheduled meeting, the City of Memphis Pension Board denied by voice vote a Memphis police officer's request for benefits. At some point in time, which is unclear from the record, the Board approved minutes from its meeting, which reflected the denial of the police officer's request. The police officer filed a petition for writ of certiorari, seeking judicial review of the Board's decision. The police officer supported his petition with an oath but failed to include a recitation indicating that the petition was his first application for the writ. The City of Memphis moved to dismiss the petition for lack of subject matter jurisdiction on the basis of the missing recitation. The trial court granted the motion. On appeal, the police officer argues that the missing recitation did not deprive the trial court of subject matter jurisdiction. In addition to the missing recitation, the City argues that the trial court also lacked subject matter jurisdiction because the petition was not filed within sixty days from the Board‟s decision on the request for benefits. We vacate the judgment of dismissal and remand for further proceedings.

Shelby County Court of Appeals 07/27/16
In Re Daymien T.
E2015-02527-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Daniel G. Boyd

The trial court terminated Father’s parental rights on grounds of substantial noncompliance with a permanency plan and persistent conditions. The trial court also found that termination was in the child’s best interest. Discerning no error, we affirm.

Hawkins County Court of Appeals 07/27/16
In Re Selena L. et al.
E2015-02059-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge J. Michael Sharp

This is a termination of parental rights case regarding the parental rights of the mother, Brandy L. (“Mother”) to her minor children, Selena L. and Isabella H., ages five and two respectively when the termination action was filed (collectively, “the Children”). Mother voluntarily placed Selena L. in the custody of a relative in 2009, shortly after the child’s birth. On April 13, 2012, the Hamilton County Juvenile Court (“juvenile court”) placed the Children into the custody of the maternal great-grandmother, Vickie R. (“Petitioner”), upon Petitioner’s filing an action for custody. On August 25, 2014, Petitioner filed petitions in the Bradley County Circuit Court (“trial court”) seeking to terminate the parental rights of Mother and to adopt the Children. Following a bench trial, the court terminated Mother’s parental rights to the Children after determining by clear and convincing evidence that Mother had abandoned the Children by: (1) willfully failing to visit them, (2) willfully failing to financially support them, and (3) exhibiting a wanton disregard toward their welfare. The trial court further found by clear and convincing evidence that terminating Mother’s parental rights was in the best interest of the Children. Mother has appealed. We reverse the trial court’s finding that Mother abandoned the Children by willfully failing to support them during the determinative four-month period. We affirm the trial court’s judgment in all other respects, including the termination of Mother’s parental rights to the Children.

Bradley County Court of Appeals 07/27/16
In Re: A.E.T.
M2015-01193-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Timothy R. Brock

DCS filed a petition to terminate the parental rights of T.E.W. (Father) to his child, A.E.T. (the Child), on two grounds. Following a bench trial, the court entered a termination order, finding, by clear and convincing evidence, that Father had been sentenced by a federal court to a term of imprisonment of more than ten years, at a time when the Child was not yet eight years of age. The court also found that termination was in the Child’s best interest. DCS had sought to terminate Father’s parental rights based on abandonment by wanton disregard, but the trial court initially declined to do so. After the trial, DCS realized that the parties had made a mutual mistake, the result of which was to render invalid the sole ground for termination found by the trial court. At the request of DCS, the trial court re-opened the proof. In light of additional evidence, the court entered a new order that terminated Father’s parental rights, this time finding DCS had established the ground of wanton disregard by clear and convincing evidence. The court adopted its earlier holding regarding the Child’s best interest. Father appeals. We affirm the judgment of the trial court as modified.  

Coffee County Court of Appeals 07/26/16
John Michael Thayer v. Jennifer Lynn Thayer
M2015-00194-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Philip E.Smith

This appeal arises from post-divorce efforts to modify child support. The father agreed, in the original parenting plan, to pay the tuition for a program for children with autism in lieu of child support. Subsequently, the parties agreed to enroll their child in a private school for children with learning challenges, and the father voluntarily paid the tuition. Several years later, the mother filed a petition for modification of child support after the father refused to continue paying the tuition. After a hearing, the trial court found a significant variance between the child support obligation in the agreed parenting plan and the presumed amount of child support under the Tennessee Child Support Guidelines. The court calculated a new child support amount after finding that the father was voluntarily underemployed and allocating additional income to him based on his earning potential. The court also ordered an upward deviation for extraordinary educational expenses and awarded the mother a portion of her attorney’s fees. Upon review of the record, the evidence does not preponderate against the trial court’s factual findings, and we find no abuse of discretion in the trial court’s decision. Therefore, we affirm and remand this case for a determination of the amount of the mother’s reasonable attorney’s fees on appeal.

Davidson County Court of Appeals 07/26/16
In Re Jacqueline G. et al.
M2015-02156-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Stella L. Hargrove

The mother and stepfather of two children filed a petition to terminate the parental rights of the children’s father. Father was incarcerated when the petition was filed and had not visited or supported the children during the four months preceding his incarceration. Father was released in February 2015 after serving more than three years in prison on a theft of property charge and admitted at trial that the oldest child “might remember” him but that the youngest child would not. Nevertheless, Father testified that he had been sober for more than four years, had started his own business, had paid child support since his release, and wanted to restore his relationship with his children. While the petition was pending, Mother, who also had a history of drug and alcohol abuse, was arrested for driving under the influence. After a two-day trial, the court found that two grounds for termination had been proved; however, the court found that Mother and Stepfather had failed to prove by clear and convincing evidence that termination of Father’s parental rights was in the best interest of the children. The trial court’s best-interest findings were based in part on findings that Father had “turned his life around” and was addressing his addiction while Mother, who admitted to having a “very serious, addiction to alcohol,” was not realistically dealing with her addiction. Mother and Stepfather appeal contending the trial court erred by considering Mother’s DUI and addiction when it was Father who was the subject of the petition. They also contend the evidence demonstrated that it was in the best interest of the children to terminate Father’s parental rights. We find no error with the trial court’s consideration of Mother’s addiction in its best-interest analysis because Tenn. Code Ann. § 36 1 113(i) expressly authorizes consideration of factors other than the enumerated factors when determining the best interest of a child. Furthermore, the evidence does not preponderate against the trial court’s finding that Mother and Stepfather failed to prove by clear and convincing evidence that it is in the children’s best interest to terminate Father’s parental rights. Therefore, we affirm.

Maury County Court of Appeals 07/26/16
In re S.D.D.
W2015-02300-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge James R. Reid

This case involves an effort to terminate parental rights. The Department of Children’s Services filed a petition to terminate the parental rights of E.D. (Mother) with respect to her child, S.D.D. (the Child). The trial court found clear and convincing evidence of four grounds supporting termination. The court also found, by the same quantum of proof, that termination is in the best interest of the Child. Mother appeals. We affirm.

Haywood County Court of Appeals 07/26/16
Theodore Elaster, Jr. et al. v. Hamilton County Department of Education et al.
E2015-02241-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge W. Neil Thomas, III

This appeal arises from an alleged assault of a student by a school employee.  April Elaster (“Mother”) filed a lawsuit against the Hamilton County Department of Education, Dean of Students Edward Rowe (“Rowe”), and part-time school administrator Carol Thomas (“Thomas”) (collectively, “Defendants”) in the Circuit Court for Hamilton County (“the Trial Court”) on behalf of her minor son, Theodore Elaster, Jr. (“the Child”).  Mother alleged that Rowe assaulted the Child, and her various counts arose from that alleged assault.  After a trial, the Trial Court entered judgment in favor of Defendants, finding that any collision between Rowe and the Child was unintentional.  Mother appeals to this Court.  We find that the evidence does not preponderate against the Trial Court’s finding that the alleged assault did not happen, and this finding serves to defeat all of Mother’s claims.  We affirm the judgment of the Trial Court.

Hamilton County Court of Appeals 07/26/16
George Thomas Kirby v. Mable Dean Kirby
M2015-01408-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ross H. Hicks

In this divorce action, the trial court fashioned a division of the parties’ marital property without determining values for several items of personal property and amounts of certain debt and without reference to the statutory factors. The trial court also awarded the wife alimony in futuro in the amount of $1,500 per month and attorney’s fees in the amount of $5,000. The husband has appealed. Due to the lack of factual findings regarding the basis for the trial court’s marital property distribution, we vacate that portion of the judgment and remand the issue to the trial court for entry of appropriate findings of fact and conclusions of law. Because we have vacated the trial court’s distribution of marital property, we must also vacate and remand the issues of alimony and attorney’s fees for reconsideration by the trial court once an equitable distribution of marital property has been fashioned. The wife’s claim seeking attorney’s fees incurred on appeal is denied.

Montgomery County Court of Appeals 07/25/16
In re Estate of Alys Harris Lipscomb
W2015-02277-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Karen D. Webster

Appellants appeal from an order that was not final pursuant to Rule 58 of the Tennessee Rules of Civil Procedure. Accordingly, we dismiss this appeal for lack of subject matter jurisdiction.

Shelby County Court of Appeals 07/25/16
Jack Helmboldt et al v. Michael R. Jugan et al.
E2015-01664-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor John F. Weaver

This appeal concerns certain declarations of covenants and restrictions (i.e., a buffer easement) on a piece of property. The purchasers of the property filed a motion for summary judgment arguing that the foreclosure by the bank on its superior mortgage extinguished by operation of law any covenants and restrictions recorded after the bank’s deed of trust was recorded. The trial court granted summary judgment in favor of the purchasers. The holders of the buffer easement containing the covenants and restrictions appeal. We affirm.

Knox County Court of Appeals 07/25/16
Carla Landrum et al v. Methodist Medical Center et al.
E2015-01733-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Donald Ray Elledge

This is a premises liability action in which the plaintiffs, a husband and wife, filed suit against the defendant hospital for personal injuries and other damages resulting from wife’s slip and fall. The trial court granted the defendant’s motion for summary judgment, holding that the plaintiffs failed to demonstrate defendant’s actual or constructive knowledge of the dangerous condition by failing to proffer material evidence establishing the cause, source, or duration of the dangerous condition. The plaintiffs appeal. We affirm the decision of the trial court.

Anderson County Court of Appeals 07/25/16
Christopher Denton v. Edna Taylor et al.
E2015-01726-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

This case arises out of a head-on automobile accident that resulted in the death of Howard Taylor, the driver of one of the cars, and serious injuries to Christopher Denton (plaintiff), the other driver. Plaintiff brought this negligence action against the decedent’s widow, Edna Taylor, and his estate. There were no witnesses to the accident, and plaintiff has no memory of what happened. Some fifteen months after the complaint was filed, the sole remaining defendant, Edna Taylor, moved for summary judgment, arguing that plaintiff’s evidence was insufficient to establish causation. In support of the motion, defendant filed the affidavit of the officer who investigated the accident, in which he stated that he “wasn’t able to locate any roadway evidence that indicated the point of impact.” After a hearing on defendant’s motion, plaintiff filed a motion asking the trial court to grant him more time to obtain and file an accident reconstruction “report.” The court denied the motion and granted summary judgment on the ground that plaintiff provided no evidence establishing that the decedent’s negligence caused the accident. We affirm.

Hamilton County Court of Appeals 07/25/16
Denver Napier et al v. Gail Howard et al.
E2015-01222-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

Gail Howard purchased at auction a subdivision lot in Grainger County. The deed to Howard’s lot, as well as the deeds to the other lots in the subdivision, contains a restrictive covenant prohibiting “single wide mobile homes.” Howard converted her lot into a campground with sixteen camper trailer sites for rent. Denver Napier, Sheryl Napier, and Jeffrey Bryant (collectively the plaintiffs), each of whom had purchased a lot in the subdivision, filed a complaint against Howard seeking an injunction enjoining her from using her property as a campground. They based their complaint on the restrictive covenant against “single wide mobile homes.” The trial court held that the restrictive covenant prohibited, in the court’s words, “camping trailers and/or single wide mobile homes” in the subdivision. Accordingly, the trial court permanently enjoined Howard and all other owners of lots from having, again in the court’s words, “camping trailers/single wide mobile homes” on their property. Howard appeals. We affirm.

Grainger County Court of Appeals 07/25/16
Wilma J. White v. James Dale White, Jr.
M2015-02388-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Kristi M. Davis

This is an appeal of an order denying Husband’s motion to alter or amend the trial court’s judgment modifying Husband’s alimony obligation. Husband argues that he was not provided adequate notice that a hearing held on July 6, 2015 was the final hearing in the matter and was therefore deprived of due process. We affirm.

Clay County Court of Appeals 07/22/16
Amanda Parker Jones v. Parker Jones
W2015-01304-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor George R. Ellis

Because the order appealed is not a final judgment, we dismiss the appeal for lack of subject matter jurisdiction. Tenn. R. App. P. 3(a).

Gibson County Court of Appeals 07/22/16
Micah Seamus Reynolds, et al v. Bethany Rich, et al
E2015-01245-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Thomas J. Seeley, Jr.

Micah Seamus Reynolds (“Plaintiff”) and Susan Reynolds sued Ted Rich (“Defendant”) and Bethany Rich for negligence after Plaintiff fell while assisting with the installation of a roof on a house. The defendants filed a motion for summary judgment. After a hearing, the Circuit Court for Carter County (“Trial Court”) granted the defendants summary judgment after finding and holding, inter alia, that “[t]he record fails to show any evidence of a violation of any duty to [Plaintiff] that [defendants] owed to him . . . .” Plaintiffs appeal to this Court. We find and hold that the defendants owed a duty to Plaintiff and that there are genuine disputed issues of material fact regarding whether defendants breached this duty. As such, summary judgment was granted improperly. We, therefore, reverse the grant of summary judgment and remand this case to the Trial Court for further proceedings.

Carter County Court of Appeals 07/22/16
In Re: Estate of Joan Uhl Pierce
E2016-00013-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This appeal arises from a dispute over purported wills. Joan Uhl Pierce (“Decedent”) died and was survived by five living children (“Petitioners”). Another of Decedent’s children, Brock Andrus, predeceased her, and he was survived by two adult children of his own (“Respondents”). The Administrator of Decedent’s estate filed a petition for declaratory judgment in the Chancery Court for Knox County (“the Trial Court”) seeking a determination as to whether Decedent died testate or intestate. Petitioners filed a verified petition seeking to admit a purported holographic will of Decedent’s to probate, under which Respondents did not inherit. Respondents asserted that the document, a completed questionnaire, was not a valid holographic will. After a hearing, the Trial Court entered an order in which it held that the questionnaire was not a holographic will, and instead entered into probate an earlier purported will and codicil of Decedent’s in which Respondents did inherit. Petitioners appeal. We hold that the questionnaire is not a valid holographic will. However, we hold also that the Trial Court erred in admitting the putative will and codicil into probate when there was no verified petition before the Trial Court seeking their admission. We vacate the admission of the putative will and codicil and remand for the Trial Court to address the lack of a verified petition. The judgment of the Trial Court is affirmed, in part, and, vacated, in part, and this cause is remanded for further proceedings consistent with this opinion.

Knox County Court of Appeals 07/22/16
Norman C. Reece, II v. Jennifer Louise Reece
E2015-01915-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Thomas J. Seeley, Jr.

In this post-divorce action, Norman C. Reece, II (“Father”) appeals the June 9, 2015 order of the Circuit Court for Johnson County (“the Trial Court”) which, inter alia dismissed Father's motion for contempt against Jennifer Louise Reece (“Mother”) and adjusted visitation with, and support for, the parties' minor children. Father's brief on appeal severely fails to comply with Tenn. R. App. P. 27. We, therefore, find that Father has waived his issues on appeal. Furthermore, the record on appeal contains no transcript and Father's statement of the evidence contains nothing whatsoever to show what evidence was heard by the Trial Court. As such, the record presented to this Court precludes meaningful review of the issues on appeal. Given all this, we affirm.

Johnson County Court of Appeals 07/22/16
Ram Tool & Supply Company, Inc. v. HD Supply Construction Supply LTD., et al
M2013-02264-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley, Jr.

A construction tools and materials distribution company filed a complaint against one of its former employees for unlawfully recruiting some of the plaintiff company’s other employees to work for a competitor, alleging breach of fiduciary duty/duty of loyalty. The plaintiff company also named as defendants the competing company and one of the competitor’s employees, asserting these defendants aided and abetted its employee’s breach of fiduciary duty/duty of loyalty. The plaintiff company further alleged all the defendants were liable for engaging in a civil conspiracy. All parties moved for summary judgment, and the trial court granted the defendants’ motions on the basis that the plaintiff company’s claims were preempted by the Tennessee Uniform Trade Secrets Act (“TUTSA”). On appeal, we hold that the plaintiff company asserted viable claims against the defendants that do not depend on the company’s trade secrets and are, therefore, not preempted by TUTSA. The trial court’s judgment dismissing the plaintiff company’s claims for breach of fiduciary duty/duty of loyalty, aiding and abetting, and civil conspiracy is reversed, and the case is remanded.

Davidson County Court of Appeals 07/21/16
Central Bank v. Jeff Wilkes, et al.
W2015-02399-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Donald E. Parish

This case arises from a delinquent loan. Appellant is one of the principals of a development company that obtained a loan in the amount of $250,000 from Appellee bank. Appellant was allegedly unaware of this loan. Subsequent to the $250,000 loan, Appellee bank gave the company another loan in the amount of $300,000, which all of the company’s principals, including Appellant, personally guaranteed. The guaranty agreement provided that the principals would personally guarantee all of the company’s debts which “may now or at any time hereafter” be owed to the Appellee bank. One of the company’s other principals paid the $300,000 loan in full. A year later, Appellee bank brought suit against all three principals for the $250,000 loan. The trial court granted summary judgment in favor of the Appellee bank. Appellant appeals. Affirmed and remanded.

Hardin County Court of Appeals 07/21/16
Central Bank v. Jeff Wilkes, et al.
W2015-02079-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Donald E. Parish

This case arises from a delinquent loan. Appellee is one of the principals of a development company that obtained a loan in the amount of $250,000 from Appellant bank. Appellee was allegedly unaware of this loan. Subsequent to the $250,000 loan, Appellant bank gave the company another loan in the amount of $300,000, which all of the company's principals, including Appellee, personally guaranteed. The guaranty agreement provided that the principals would personally guarantee all of the company's debts which “may now or at any time hereafter” be owed to the Appellee bank. Appellee paid the $300,000 loan in full in exchange for Appellant bank releasing a lien on 32 acres of land owned by the development company. A year later, Appellant bank brought suit against all three principals for the $250,000 loan. The trial court granted judgment in favor of the Appellee, finding that the Appellee affected an accord and satisfaction with Appellant bank. Appellant appeals. Affirmed and remanded.

Hardin County Court of Appeals 07/21/16
Melinda K. Fields v. Neil M. Friedman
E2016-00328-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge David W. Tipton

Mother appeals the juvenile court's child support determinations. Because Mother failed to file a brief in compliance with the Tennessee Rules of Appellate Procedure and failed to present arguments to support her contentions, we affirm the decision of the juvenile court.

Sullivan County Court of Appeals 07/21/16
Utopia Place, LLC, et al v. Eastern Properties, Inc.-Bellevue, et al
M2014-02196-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Carol L. McCoy

A commercial landlord filed suit against its tenant seeking a declaratory judgment that the purchase option and right of first refusal in their lease were no longer enforceable and damages for tortious interference with business relations. On a motion for summary judgment, the trial court found that all rights of the tenant to purchase the leased premises were void. The landlord subsequently voluntarily dismissed its tortious interference claim, and the trial court entered an order dismissing the claim without prejudice. The order dismissing the claim disposed of the last claim asserted by the landlord. Several months later, the trial court entered an order dismissing the case with prejudice and taxing costs to the landlord. The tenant filed its notice of appeal within thirty days of the order dismissing the case with prejudice. Because we find the notice of appeal untimely, we dismiss the appeal.        

Davidson County Court of Appeals 07/20/16