Court of Appeals Opinions

Format: 12/14/2018
Format: 12/14/2018
Angie Renee Larsen v. George Giannakoulias
M2017-00428-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Deanna B. Johnson

This is a divorce case. Husband/Appellant appeals the trial court’s decision regarding: (1) the parenting plan for the minor children; (2) the enforcement of the parties’ prenuptial agreement in its denial of Husband’s request for alimony and a portion of Wife’s retirement accounts; and (3) the designation and division of property. Under the doctrine of lex loci contractus, we vacate the trial court’s order enforcing the waiver of spousal support provision of the parties’ prenuptial agreement. The trial court’s order is otherwise affirmed, and the case is remanded for determination of whether alimony is warranted in this case and, if so, the amount thereof.  

Williamson County Court of Appeals 10/26/18
Marcella Ann Brecker v. Steven Charles Brecker
M2018-00120-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Special Judge Walter C. Kurtz

Husband appeals the trial court’s award of alimony to Wife, as well as the trial court’s division of the parties’ 2017 tax refund. The trial court determined that Wife’s need was in the range of $17,500.00 per month and awarded Wife $15,000.00 per month in alimony in futuro, as well as $3,500.00 per month in rehabilitative alimony. We affirm the trial court’s finding that Wife’s need is in the range of $17,500.00 per month. We also affirm the trial court’s award of $15,000.00 per month in alimony in futuro. We vacate, however, the award of rehabilitative alimony and the division of the parties’ 2017 tax refund and remand for reconsideration in accordance with this opinion.

Williamson County Court of Appeals 10/26/18
In Re: Jonathan M.
E2018-00484-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Timothy E. Irwin

Father appeals the termination of his parental rights to one child. The juvenile court found three statutory grounds for termination: (1) abandonment for failure to visit by an incarcerated parent; (2) abandonment by wanton disregard for the welfare of a child by an incarcerated parent; and (3) failure to manifest an ability and willingness to personally assume legal and physical custody or financial responsibility for the child. The court also found that termination of the father’s parental rights was in the child’s best interest. We affirm the termination of the father’s parental rights.

Knox County Court of Appeals 10/26/18
Tracy Langston Ford-Lincoln-Mer v. Corey Lea
M2018-01006-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Ross H. Hicks

This is a parental termination case. The juvenile court declined to terminate father’s parental rights, but it found that clear and convincing evidence existed to terminate mother’s on the grounds of abandonment by failure to provide a suitable home, persistence of conditions, substantial noncompliance with the permanency plan, and abandonment by willful failure to support. The juvenile court further found that termination was in the best interests of the children. We reverse as to the former two grounds, but affirm as to the latter two and further find that termination of mother’s parental rights is in the best interests of the children.

Robertson County Court of Appeals 10/25/18
In Re Francis R. Et Al.
M2018-00613-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Tim Barnes

This is a parental termination case. The juvenile court declined to terminate father’s parental rights, but it found that clear and convincing evidence existed to terminate mother’s on the grounds of abandonment by failure to provide a suitable home, persistence of conditions, substantial noncompliance with the permanency plan, and abandonment by willful failure to support. The juvenile court further found that termination was in the best interests of the children. We reverse as to the former two grounds, but affirm as to the latter two and further find that termination of mother’s parental rights is in the best interests of the children.

Montgomery County Court of Appeals 10/25/18
Kathryn Nicole Brown v. Tyler Matthew Brown
E2017-01629-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Pamela A. Fleenor

In this divorce action, the wife was shown to be economically disadvantaged compared to the husband, and the trial court awarded to the wife a slightly greater share of the marital estate in addition to rehabilitative alimony in the amount of $4,000.00 per month for a period of four years. The husband has appealed. Although we conclude that the trial court’s judgment should be affirmed, we also modify that judgment to include an indemnification clause in the husband’s favor regarding the mortgage on the marital residence. We further grant the wife’s request for an award of attorney’s fees incurred in defending this appeal.

Hamilton County Court of Appeals 10/25/18
Ronald Dana Harper v. Annette Carrol Harper
W2017-02193-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

This is a divorce case. Husband appeals the trial court’s classification of three tracts of land as Wife’s separate property and its valuation of Husband’s bank account. Discerning no error, we affirm and remand.

Madison County Court of Appeals 10/24/18
Brandon Burks, et al. v. Savannah Industrial Development Corporation of the City of Savannah, Tennessee
W2018-00166-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Carma Dennis McGee

Appellants, owners of property near a proposed industrial park site, appeal the trial court’s grant of Appellee Savannah Industrial Development Corporation’s Tennessee Rule of Civil Procedure 12.02(6) motion. Appellants sought a declaratory judgment precluding the City of Savannah and, specifically, its industrial development corporation, from purchasing land outside the city’s corporate limits for development of an industrial park for the benefit of both the city and Hardin County. The trial court applied the Industrial Development Corporations Act, Tenn. Code Ann. § 7-53-101, et seq. and the Industrial Park Act, Tenn. Code Ann. § 13-16-201, et seq. and found that there was no prohibition against the industrial development corporation’s actions. The trial court, therefore, granted the industrial development corporation’s motion to dismiss and awarded the corporation its attorney’s fees under Tennessee Code Annotated section 20- 12-119(c)(1). Because the industrial development corporation is a “governmental entity,” we hold that the trial court was precluded from awarding attorney’s fees under Tennessee Code Annotated section 20-12-119(c). Accordingly, we reverse the trial court’s award of attorney’s fees. The trial court’s order is otherwise affirmed.

Hardin County Court of Appeals 10/24/18
In Re Christian S.
M2018-00128-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Lee Bussart

At issue in this appeal is the custody of an 8-year-old boy. On one side is his maternal grandmother and her husband, who have raised the child since he was one year old, pursuant to a court order placing him in their custody. On the other side is the child’s father, who was incarcerated at the time the child was placed with his grandparents. When the father was released from incarceration, he filed a petition seeking visitation with the child; over the course of proceedings, he sought custody of the child. The juvenile court awarded custody to the father, holding that the he did not forfeit his superior parental rights and that the grandparents did not prove that the child would suffer substantial harm in the father’s care and custody. The grandparents appeal; finding no error, we affirm the judgment.

Marshall County Court of Appeals 10/24/18
City of Church Hill v. Roger Elliott
E2018-00095-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Alex E. Pearson

Roger Elliott (“Elliott”) appeals the January 23, 2018 order of the Circuit Court for Hawkins County (“the Trial Court”) holding that Elliott had violated Church Hill Municipal Ordinance No. 11-101 and assessing a civil penalty of $25.00 against Elliott for the violation. We find and hold that the evidence in the record on appeal does not preponderate against the Trial Court’s finding that Elliott violated Church Hill Municipal Ordinance No. 11-101. We, therefore, affirm

Hawkins County Court of Appeals 10/24/18
Destine Johnson, Et Al. v. General Motors Corporation, Et Al.
E2017-01642-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John C. Rambo

In this appeal, the plaintiffs alleged that the defendants conspired to prevent new cars sold in Canada from being imported into Tennessee and the rest of the United States in violation of Tennessee’s antitrust and consumer protection laws. The plaintiffs contended that new car prices in Canada are significantly lower than prices for the same cars in the United States and that the effect of the conspiracy was to restrict competition and maintain significantly higher prices. The trial court approved a settlement agreement and dismissed the case with prejudice against certain defendants. The plaintiffs appeal. We affirm.

Washington County Court of Appeals 10/24/18
Bank of America v. Calvin Dee Aycock, et al.
W2017-00758-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Valerie S. Smith

This is a detainer action in which the plaintiff bank was awarded a judgment of possession of the defendant’s property in general sessions court. The defendant refused to vacate the property and appealed to the circuit court. The plaintiff bank sought summary judgment. The circuit court granted the motion for summary judgment and upheld the foreclosure sale. We affirm.

Shelby County Court of Appeals 10/23/18
In Re Natascha B
M2018-00247-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Anthony L. Sanders

A father appeals the termination of parental rights to his daughter. The juvenile court found three statutory grounds for termination: abandonment by willful failure to visit, abandonment by willful failure to support, and substantial noncompliance with the requirements of the permanency plans. The court also found that termination of the father’s parental rights was in the child’s best interest. On appeal, DCS declines to defend the ground of abandonment by willful failure to visit. We conclude that the evidence was less than clear and convincing as to all of the statutory grounds found with respect to the father. Thus, we reverse the termination of the father’s parental rights

Humphreys County Court of Appeals 10/23/18
Lee A. Beaman v. Kelley Speer Beaman
M2018-01651-COA-T10B-CV
Authoring Judge: Chief Justice D. Michael Swiney
Trial Court Judge: Judge Philip E. Smith

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, from the denial of a motion for judicial recusal filed by Kelley Speer Beaman (“Wife”) in the parties’ high profile divorce proceedings. Having reviewed the Petition for Recusal Appeal filed by Wife, together with the supplement to the Petition and the response in opposition to the Petition filed by Lee A. Beaman (“Husband”), we conclude that the Trial Judge should have granted the motion. The Trial Judge in this case conducted an independent investigation into the facts surrounding how and when Wife’s Trial Brief came into the possession of the online media outlet known as Scoop: Nashville, and his comments on the record regarding the results of his investigation create an appearance of prejudice against Wife and her counsel that require the Trial Judge’s recusal.  We therefore reverse the order of the Trial Court and remand the case for reassignment to a different judge. 

Davidson County Court of Appeals 10/19/18
Daniel James Finstad v. Jessica Ann Calfee Finstad
E2017-01554-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge M. Nicole Cantrell

In this action for divorce, alimony was the only remaining issue at trial. After the hearing, the trial court entered a final decree of divorce declaring that wife is an economically disadvantaged spouse pursuant to Tenn. Code Ann. § 36-5-121(f) and that husband is able to pay her alimony. The court held that there was no proof that wife was underemployed and no proof she could be rehabilitated; it therefore awarded wife alimony in futuro. We hold that the trial court abused its discretion in awarding wife alimony in futuro. We modify the trial court’s judgment so as to provide wife transitional alimony. As modified, the judgment of the trial court is affirmed. We remand this case to the trial court with instructions.

Anderson County Court of Appeals 10/19/18
In Re: L.U.S.
E2017-01777-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John S. McLellan, III

In this termination of parental rights case, C.J.S. and K.R.S. (petitioners) filed a joint petition for adoption and petition to terminate the rights of C.C.S. (father) and W.J.N.R. (mother) with respect to their only child, L.U.S. Father joined the petition as a copetitioner, consenting to the termination of his rights and to the adoption of the child. The trial court found clear and convincing evidence to terminate mother and father’s parental rights on the grounds of abandonment by failure to support and abandonment by failure to visit. By the same quantum of proof, the court found that termination of parental rights is in the best interest of the child. Mother appeals the trial court’s order terminating her rights. We vacate the court’s findings with respect to the ground of abandonment by failure to support; nevertheless, we affirm the court’s order terminating mother’s rights because there is clear and convincing evidence that termination is supported by the ground of abandonment by failure to visit and is in the best interest of L.U.S.

Sullivan County Court of Appeals 10/19/18
KT Group, LLC v. Robert Lowe Et Al.
E2017-02415-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Elizabeth C. Asbury

This case involves a property dispute regarding a fifty-foot strip of land that was historically used for railroad purposes. KT Group, LLC (plaintiff) filed an action to quiet title, naming Robert Lowe and his wife, Velma Lowe, as defendants. Each side claims to own the strip of land in fee simple absolute. The trial court determined that plaintiff owned the land in fee simple. Defendants appealed. We affirm.

Scott County Court of Appeals 10/19/18
Julie Ann Kendle v. Matthew Davis Kendle, Et Al.
M2017-02434-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Clara W. Byrd

This appeal arises from an Order for Conditional Judgment to enforce a routine garnishment of an obligor’s wages. The dispositive issue is whether an employer of an obligor has an affirmative duty to determine whether the aggregate amount of wages to be garnished from an obligor’s multiple employers exceeds the aggregate disposable earnings limits provided in Tenn. Code Ann. § 26-2-106. An employer of the obligor, Blue Shield EMS (“Blue Shield”), was served with a garnishment while a pre-existing wage assignment of the obligor’s wages from another employer was still in effect. Although none of the obligor’s wages from Blue Shield had been previously garnished, Blue Shield filed an answer to the garnishment stating, “We cannot process any deductions from [the obligor’s] paycheck at this time due to his total income already being garnished greater than 25%.” Upon motion of the obligor’s former wife for a conditional judgment, the trial court found that “Blue Shield did not have a valid legal reason for failing to withhold twenty-five percent (25%) of the employee’s net wages” and ordered Blue Shield to pay into the court the wages that should have been garnished and to honor the garnishment going forward until the judgment was satisfied. Having determined that an employer has no duty to consider the aggregate effect of garnishments served on other employers when answering a garnishment, we affirm.

Wilson County Court of Appeals 10/18/18
Ricky L. Boren, et al. v. Hill Boren, PC, et al.
W2017-02383-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Senior Judge Robert E. Lee Davies

T. Robert Hill (“Hill”) and Hill Boren, P.C. (collectively “Defendants”) appeal the November 6, 2017 order of the Chancery Court for Madison County (“the Trial Court”) finding Defendants in civil contempt. Defendants raise multiple issues regarding whether Defendants received proper notice, whether damages may be awarded absent a finding of willful contempt, whether the Trial Court erred in awarding damages pursuant to Tenn. Code Ann. § 29-9-104, and whether the Trial Court erred in allowing Plaintiffs access to corporate documents. We find and hold that Defendants received sufficient notice, that damages may not be awarded absent a finding of willful contempt, that the Trial Court did not err in awarding damages pursuant to Tenn. Code Ann. § 29-9-104 for the willful failure to turn over a computer server, and that the Trial Court did not err in allowing access to corporate documents. We, therefore, vacate the awards of damages for failure to turn over the copy machine and failure to turn over the Copitraks. We affirm the Trial Court’s holding Defendants in civil contempt with regard to the failure to turn over the server and awarding damages for this contempt. The remainder of the Trial Court’s order is affirmed.

Madison County Court of Appeals 10/17/18
Louise Brandon v. Shelby County Tennessee, et al.
W2017-00780-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert L. Childers

Plaintiff/Appellant appeals the dismissal of her negligence action against Shelby County, Tennessee, brought pursuant to the Tennessee Governmental Tort Liability Act. The trial court found that Appellant’s complaint contained a fatal deficiency in that it failed to allege Appellant’s injuries were sustained as a result of a government employee’s negligent act or omission while acting within the scope of his or her employment. Discerning no error, we affirm.

Shelby County Court of Appeals 10/16/18
Leighanne Gordon v. Noah Adrian Gordon
M2017-01275-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Deanna B. Johnson

In this post-divorce action, a mother filed a petition to modify the parenting plan, seeking modification of the residential parenting schedule. The father filed a counter-petition requesting that he be designated the primary residential parent. At the conclusion of the father’s direct examination, the mother moved for an involuntary dismissal of his counter-petition, arguing that he failed to prove a material change of circumstance that warranted a change in the primary residential parent. The trial court dismissed the father’s counter-petition and modified the residential parenting schedule. Because the trial court did not allow the father to complete his proof before granting the motion for involuntary dismissal, we vacate the trial court’s judgment in part, affirm in part, and remand for further proceedings.

Williamson County Court of Appeals 10/16/18
John R. Deberry v. Cumberland Electric Membership Corporation
M2017-02399-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Ross H. Hicks

This is a retaliatory discharge claim brought by an employee against his employer, alleging he was fired in retaliation for claiming workers’ compensation benefits. The trial court ruled in favor of the employee, finding that the employee had made a prima facie showing that his termination was in retaliation for his claim for workers’ compensation benefits. The trial court also found that the employee established the employer’s stated non-discriminatory reason was pretext. Because the record does not reflect that the trial court exercised its own independent judgment, we vacate and remand for proceedings consistent with this opinion.

Montgomery County Court of Appeals 10/15/18
In Re Larry P. Et Al.
M2018-00466-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Charles B. Tatum
The juvenile court terminated the parental rights of the mother on grounds of abandonment by willful failure to support, abandonment by willful failure to visit, and persistence of conditions and found that termination was in the best interest of the two children. On appeal, we find that clear and convincing evidence supports all three grounds as well as the trial court’s best interest determination. We, therefore, affirm the trial court’s decision.
 
Wilson County Court of Appeals 10/15/18
Robert Sawyers, Sr. v. E & R Auto Sales, Inc.
M2018-00495-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Kelvin D. Jones

This appeal arises from a dispute over an automobile purchase. Robert Sawyers, Sr. (“Plaintiff”) filed a claim against E & R Auto Sales, Inc. (“Defendant”) in the General Sessions Court for Davidson County (“the General Sessions Court”) alleging that Defendant sold him a problem-riddled vehicle and seeking $13,000 in damages. The General Sessions Court dismissed Plaintiff’s action. Plaintiff appealed to the Circuit Court for Davidson County (“the Trial Court”). The Trial Court dismissed a counter-claim filed by Defendant and awarded Plaintiff $350.00. Plaintiff appeals pro se, arguing he should have been awarded more money. Plaintiff’s brief fails to comply with Tenn. R. App. P. 27. We, therefore, find that Plaintiff has waived his issue on appeal. Furthermore, the record contains no transcript or statement of the evidence. As such, the record presented to this Court precludes meaningful review of the issue on appeal. Given all this, we affirm the judgment of the Trial Court.

Davidson County Court of Appeals 10/12/18
Stephen P. Geller v. Henry County Board of Education
W2017-01678-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Carma Dennis McGee

A tenured teacher serving as an assistant principal was transferred to teach at an alternative school after the local director of schools learned that the teacher did not hold an administrator’s license. On appeal, the teacher asserts that the transfer was arbitrary and capricious where the director of schools did not comply with the law concerning when assistant principals are required to hold administrator’s licenses. Following a trial, the trial court dismissed the teacher’s complaint, ruling that the director of school’s belief that the teacher was required to hold an administrator’s license was reasonable. We conclude that the director of schools’ actions and beliefs were not reasonable under the circumstances; as such, we reverse and remand for further proceedings.

Henry County Court of Appeals 10/12/18