Court of Appeals Opinions

Format: 12/08/2019
Format: 12/08/2019
James Moses, Et Al. v. Rebecca Elrod, Et Al.
E2019-00117-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge Frank V. Williams, III

The plaintiffs appeal the trial court’s decision concerning the ownership of real property. We affirm.

Meigs County Court of Appeals 09/19/19
Rachel Maddox v. Olshan Foundation Repair And Waterproofing Co. Of Nashville, L.P., Et Al.
M2018-00892-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Claudia Bonnyman

This appeal involves a homeowner’s fraud claim against a foundation repair company. The trial court rejected the foundation repair company’s argument that the fraud claim was barred by the statute of limitations and the statute of repose. After a three-day bench trial, the trial court found that the foundation repair company had engaged in fraud. Specifically, the trial court found that the foundation repair company sold its systems to the homeowner representing that they would stabilize her house from further movement when in reality it did not have the knowledge or understanding to design an effective solution for the house and “simply did not really care” whether the systems would be effective in any way. The trial court further found that the company fraudulently misrepresented whether an engineer would be involved in the process and whether it would obtain a permit for the work. The home had been condemned by the time of trial, and the trial court awarded the homeowner $187,000 for the loss of the value of the structure. Based on the reckless and fraudulent conduct of the foundation repair company, the trial court also awarded $15,000 in punitive damages to the homeowner. The foundation repair company appeals. We affirm as modified.

Davidson County Court of Appeals 09/18/19
Douglas A. Messerli, E. AL. v. Vickie Sue Williams, Et Al.
E2018-1807-COA-E3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge Michael W. Moyers

This action was filed by two brothers, after the death of their father, contesting the validity of an amendment to their father’s trust agreement. The brothers alleged that their siblings coerced their infirmed father to amend his trust in such a manner that was favorable to the siblings’ pecuniary interests and that two sisters had a confidential relationship with their father. The trial court directed a verdict in favor of the defendants. The plaintiffs appealed. We affirm the decision.

Knox County Court of Appeals 09/18/19
Clarissa Bidwell, Deceased, By Next Friend and Husband, James Bidwell, Et Al v. Timothy A. Strait, M.D., Et Al
E2018-02211-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Kyle E. Hedrick

Plaintiff, James Bidwell, took his wife, Clarissa Bidwell, to Starr Regional Medical Center for treatment. She was transferred to Chattanooga-Hamilton County Hospital Authority dba Erlanger Health System, a governmental hospital authority, where she was treated, but later died. Plaintiff provided statutorily compliant pre-suit notice of his intent to file a health care liability action against each health care provider that was named as a defendant in the complaint. See Tenn. Code Ann. § 29-26-121(a). Plaintiff did not provide pre-suit notice to Erlanger. Tenn. Code Ann. § 29-26-121(a)(5) requires a recipient of pre-suit notice to give written notice to a claimant of any other person, entity, or health care provider who may be properly named a defendant within thirty days of receiving pre-suit notice. However, Dr. Jeffery Colburn and Dr. Timothy A. Strait failed to identify Erlanger as their employer, i.e. a known and necessary party to the suit. Plaintiff timely filed his complaint within the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121. Defendants answered plaintiff’s complaint, each raising the affirmative defense of comparative fault. Dr. Colburn and Dr. Strait then moved for summary judgment arguing that, pursuant to the Governmental Tort Liability Act, without Erlanger as a party defendant no judgment could be rendered against them. See Tenn. Code Ann. § 29-20-310(b). In response, plaintiff filed two motions to amend his complaint to add Erlanger as a defendant, in reliance upon the extension to the statute of limitations provided in Tenn. Code Ann. § 20-1-119(a). After a hearing, the trial court held that plaintiff’s failure to provide pre-suit notice to Erlanger prevents him from adding them to his complaint. It granted Dr. Colburn and Dr. Strait’s motions for summary judgment. Plaintiff appeals. We hold that Tenn. Code Ann. § 2926-121(a)(5) required Dr. Colburn and Dr. Strait to identify Erlanger as a known and necessary party within thirty days after receiving pre-suit notice; they failed to comply with § 29-26-121(a)(5). We hold that, pursuant to Tenn. Code Ann.
§ 20-1-119, their subsequent declaration of the necessity of the nonparty to the suit, after the complaint was filed, granted plaintiff an additional ninety days following the filing of the first answer to amend his complaint in order to add the nonparty as a defendant. See Tenn.Code Ann. § 20-1-119; see also Tenn. Code Ann. § 20-1-119(g) (stating that this section applies to suits involving governmental entities). In addition, we hold that, pursuant to Tenn. Code Ann. § 29-26-121(c), plaintiff’s addition of the nonparty is not barred for failure to provide pre-suit notice. See Tenn. Code Ann. § 29-26-121(c). Therefore, we vacate the trial court’s award of summary judgment to defendants Dr. Colburn and Dr. Strait. We remand this matter for further proceedings, pursuant to applicable law, and consistent with this opinion.

Hamilton County Court of Appeals 09/18/19
In Re John B.
M2018-01589-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Ken Witcher

This is an appeal in a proceeding to modify a residential parenting plan, established in January 2013. The initial petition to modify the plan was filed by the Father, accompanied by his proposed plan, in October 2016; Mother answered the petition in January 2017 and a hearing was set for two non-consecutive days in July 2018. During the hiatus in the hearing, the Mother filed a counter-petition and a proposed parenting time plan. The hearing resumed solely on Father’s plan and the court entered an order finding a material change of circumstance and reducing Father’s parenting time; Father appeals. Because the court has not yet resolved the claims between the parties, we dismiss the appeal for lack of a final judgment.     

Macon County Court of Appeals 09/17/19
Billy Perdue, Et Al. v. Greg Kneedler, Et Al.
M2018-00722-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Louis W. Oliver

This appeal involves a breach of a lease agreement. At trial, both defendants, operators of a natural foods business, admitted that the lease had been breached. However, because only one of the Defendants had signed the lease, the other argued that he was not a party to and was therefore not responsible for the obligations of the lease. The Defendant who had signed the lease claimed he did so on behalf of and at the direction of the other. Finding that both Defendants had combined their efforts, skills, knowledge, and money for the purpose of operating the business, the trial court concluded on several bases that the Defendants were jointly liable for the obligations of the lease. Only the non-signing Defendant appeals. Because we agree with the trial court that the Defendants had formed a joint venture and, thus, were jointly liable, we affirm. 

Sumner County Court of Appeals 09/17/19
Randy Lynn Simpkins v. Joe Ward, Et Al.
M2018-01327-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Deanna B. Johnson

This appeal involves a boundary dispute. In resolving the dispute, the trial court made specific findings about the location of a
non-party’s border, indicating that it was coterminous with the disputed northern border of Mr. Simpkins, who is a party to this case. Finding this non-party to be a necessary party based on the record, we vacate the trial court’s order and remand for further proceedings consistent with this Opinion. 

Hickman County Court of Appeals 09/17/19
Steven Shao Ex Rel Elizabeth Shao v. HCA Health Services Of Tennessee, Inc., Et Al.
M2018-02040-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Senior Judge Don R. Ash

All claims on the plaintiff’s case in chief in this case have been non-suited. This is an appeal only from three orders for sanctions entered against plaintiff’s attorney. In the first order, the trial court awarded opposing counsel attorney’s fees and prohibited the attorney from making any threatening, insulting, or embarrassing communications regarding opposing counsel. In the second and third orders, the trial court found that the attorney had continued the prohibited conduct, suspending him from the practice of law in the Circuit Courts of Davidson County for a total of 240 days and awarding opposing counsel their attorney’s fees. The attorney appealed the three orders. We affirm.

Davidson County Court of Appeals 09/16/19
Nationwide Investments, LLC v. Pinnacle Bank
M2018-01180-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Thomas W. Brothers

In this case, the plaintiff-appellant, Nationwide Investments, LLC, brought suit against Pinnacle Bank for, among other things, an alleged violation of the state’s Financial Records Privacy Act. The case was dismissed at summary judgment, and sanctions were imposed against the plaintiff and its counsel. Although the plaintiff and its counsel now appeal, raising several issues for our review, for the reasons stated herein, we affirm.  

Davidson County Court of Appeals 09/16/19
Tamala Teague, As Successor Personal Representative Of The Estate Of Lola Lee Duggan v. Garnett Kidd Et Al. - Dissent
E2019-00330-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Jerri Bryant

As noted in the majority's opinion, the first administrator' of the estate of Lola Lee Duggan sought "to recover funds unlawfully converted through fraud, false dealing and misapplication of trust by Defendant[s]." He requested "that a Lien Lis Pendens be placed against the real property acquired by Garnett and William Kidd ("the Kidds" or "Defendants")2 in this cause to secure any judgment which may be obtain[ed] by the Estate." (Emphasis in original.). Despite praying "[t]hat [p]laintiff have such additional general and equitable relief to which it may be entitled upon the hearing of this cause," the administrator did not specifically seek the entry of an order declaring the existence of a constructive trust. Upon trial, appeal, and remand from this court, an amended final judgment was entered against Mrs. Kidd for $117,679 in damages and $79,052.48 in prejudgment interest, for a total judgment of $196,731.48.3 That judgment was not appealed by the successor administrator ("Plaintiff').

Polk County Court of Appeals 09/12/19
Tamala Teague, As Successor Personal Representative Of The Estate Of Lola Lee Duggan v. Garnett Kidd Et Al.
E2019-00330-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jerri Bryant

This case implicates the doctrine of res judicata. Tamala Teague (plaintiff) is the administrator of the estate of Lola Lee Duggan. Garnette Kidd and William Kidd (defendants) are Ms. Duggan’s daughter and son-in-law. In a previous lawsuit, the trial court determined that defendants wrongfully took more than $100,000 of Ms. Duggan’s assets and used some of that money to purchase 132 acres of real estate. After a bench trial, the court, in that first case, awarded money damages to Ms. Duggan’s estate. A few years later, plaintiff filed a second complaint against the defendants. The complaint alleged the same facts that precipitated the previous lawsuit. This time, however, plaintiff sought a different remedy – the entry of an order declaring the existence of a constructive trust with respect to the 132 acres of real estate. The trial court ruled that the doctrine of res judicata barred plaintiff from pursuing this alternative remedy in a second suit against the same defendants on the same cause of action. Accordingly, the court granted defendants’ motion to dismiss and denied plaintiff’s motion for summary judgment. Plaintiff appeals. We affirm.

Polk County Court of Appeals 09/12/19
Timothy Hopson, Ex Rel Elizabeth Miller v. American Advisors Group
E2018-01698-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge James E. Lauderback

This is a consolidated appeal concerning real property granted to the defendant in a detainer action. We affirm.

Carter County Court of Appeals 09/12/19
Timothy Hopson v. American Advisors Group
E2018-1916-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jean A. Stanley

This is a consolidated appeal concerning real property granted to the defendant in a detainer action. We affirm.

Carter County Court of Appeals 09/12/19
Victoria Bigelow v. John Schumacher
M2019-00806-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Barry R. Tidwell

This is a parentage action in which the putative father challenged the trial court’s jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, Tenn. Code Ann. § 36-6-201, et seq. After the trial court accepted jurisdiction and appointed a special master, the putative father filed a notice of appeal. Because the trial court has not entered a final judgment that resolves all the claims between the parties, we dismiss the appeal. 

Rutherford County Court of Appeals 09/11/19
Deborah Lynn Mathews v. Douglas Clay Mathews
M2018-01886-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Philip E. Smith

This is a post-divorce case involving a husband’s petition to terminate his alimony obligation. Husband argued that the wife cohabited with a paramour, which, pursuant to the parties’ MDA, terminated his alimony obligation. The trial court, however, found that wife and her paramour did not cohabit with one another and denied husband’s petition. Additionally, the trial court denied wife’s request for attorney’s fees, finding that her increased income, combined with the alimony she was receiving from husband, allowed her to afford to pay her attorney’s fees at trial. Wife and Husband raise separate issues on appeal. We affirm.

Davidson County Court of Appeals 09/11/19
Jared Effler Et Al. v. Purdue Pharma L.P. Et Al.
E2018-01994-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge John D. McAfee

This appeal concerns the interpretation of the Drug Dealer Liability Act, Tenn. Code Ann. § 29-38-101, -116 (“DDLA”). A number of Tennessee district attorneys (“the District Attorney Plaintiffs”), as well as two minor children through their guardian ad litem (“Plaintiffs,” all together), sued certain drug manufacturers (“Manufacturer Defendants”) and others in the Circuit Court for Campbell County (“the Trial Court”) alleging the diversion of opioids.1 Manufacturer Defendants filed a motion to dismiss. The Trial Court, in granting the motion to dismiss, held that the DDLA does not apply to manufacturers who lawfully produce drugs and that Plaintiffs had failed to state a claim upon which relief can be granted. Plaintiffs appeal, arguing that their complaint contained allegations sufficient to withstand the motion to dismiss. Manufacturer Defendants contend that the DDLA applies to “street dealers,” not regulated entities such as themselves. In addition, Manufacturer Defendants argue that the District Attorney Plaintiffs lack standing. We hold, first, that the DDLA allows district attorneys to pursue DDLA claims on behalf of the political subdivisions within their respective judicial districts. Thus, the District Attorney Plaintiffs have standing. We hold further that, taking as true Plaintiffs’ detailed allegations that Manufacturer Defendants knowingly participated in the diversion of opioids, Plaintiffs have stated claims upon which relief can be granted. We reverse the judgment of the Trial Court and remand for this case to proceed.

Campbell County Court of Appeals 09/11/19
Patricia A. Graham v. Garrett Weaver Et Al.
E2018-00682-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Donald Ray Elledge

Plaintiff appeals the dismissal of her premises liability action for failure to show that Defendant was the owner of the premises or built the deck on which Plaintiff fell. Plaintiff has failed to file a trial transcript or statement of the evidence; consequently, we accord the trial court’s judgment a presumption that the evidence supports the holding and affirm the judgment.

Anderson County Court of Appeals 09/10/19
Sharon A. Loving v. Jonathan E. Loving
E2018-00667-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor M. Nichole Cantrell

Husband appeals from a divorce judgment and the entry of a permanent parenting plan, arguing that the trial court erred in not allowing him to put on any proof at the trial of this matter. For the reasons stated herein, and because we conclude that Husband should have been able to put on proof concerning the child’s best interests, we vacate the permanent parenting plan and remand for further proceedings consistent with this opinion.

Anderson County Court of Appeals 09/10/19
State of Tennessee Ex Rel. Rachel Beth Haynes v. Allan Vincent Daugherty
M2018-01394-COA-R10-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Diana Benson Burns

The issue in this interlocutory appeal is whether the trial court erred in requiring a cash-only appearance bond. Father, who had an arrearage judgment for failing to pay child support, was arrested and incarcerated pursuant to an order of attachment under Tenn. Code Ann. § 36-5-101(f)(2). The trial court set an appearance bond, without an evidentiary hearing, at the full amount of the alleged arrearage, $13,413.45, and restricted the bond to cash. The order also directed that, upon payment of the cash bond, the funds were to be forwarded immediately to the State Disbursement Unit and applied to Father’s arrears. In subsequent hearings, the trial court denied Father the right to post a secured bond, and this Tenn. R. App. P. 10 Extraordinary Appeal followed. First, we hold that the trial court violated Father’s constitutional rights under Article I, section 15 of the Tennessee Constitution and under the equal protection guarantees of both the Tennessee and United States Constitutions by imposing a cash-only appearance bond. Second, we hold that the trial court violated Father’s due process rights under both the state and federal constitutions by imposing a $13,413.45 cash-only bond as a means to collect a civil debt and ordering that the bond be immediately applied in satisfaction of the alleged debt, without an evidentiary hearing. Finally, we hold that the trial court misconstrued the applicable statute, Tenn. Code Ann. § 36-5-101(f)(2), as allowing it to use the appearance bond solely as a means to collect the alleged arrears, rather than as a means to ensure Father’s appearance for legal proceedings. Therefore, because the trial court failed to identify and apply the appropriate legal principles, both statutory and constitutional, and its decision was not supported by an evidentiary foundation, the decision constituted an abuse of discretion. Because the trial court erred in requiring a cash-only appearance bond, the judgment of the trial court is reversed, the amount of bond shall be $1,000, which Father may post with sufficient sureties, and the case is remanded for further proceedings as may be necessary.

Rutherford County Court of Appeals 09/10/19
State of Tennessee Ex Rel. Rachel Beth Haynes v. Allan Vincent Daugherty - Concurring in part and dissenting in part
M2018-01394-COA-R10-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Diana Benson Burns

When Allan Daugherty fell behind in paying child support for his three children, the State of Tennessee, acting on behalf of the children’s mother, filed a petition for civil contempt. Mr. Daugherty and the State agreed on the amount of the child support arrearage, $10,288.57, and Mr. Daugherty further agreed that an automatic attachment could issue for his arrest if he failed to pay child support for a thirty-day period. The circuit court confirmed an agreed order reflecting both of these agreements. 

Rutherford County Court of Appeals 09/10/19
Arnold Ray Parker v. William H. Clayton
M2017-02556-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Michael Binkley

In this suit for conversion, a truck owner alleges that his friend converted his truck for the friend’s own use and the friend asserts that the owner gave him the truck as a gift. The trial court found the owner was more credible and concluded the friend was liable for conversion. The court awarded the owner damages, including lost earnings to compensate him for the time he was unable to earn a living by driving his truck. The friend appealed, claiming the court erred by awarding the owner more than the dollar amount set forth in the complaint. We affirm the trial court’s judgment in most respects, but we modify the damages award to conform to the requested amount.

Perry County Court of Appeals 09/10/19
In Re Estate of John E. Mayfield - Dissenting
M2018-01977-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Suzanne Lockert-Mash

I respectfully dissent from the majority’s reversal of the Trial Court’s order dismissing Mr. Saltsman’s claim. I instead would affirm the dismissal because Mr. Mayfield informed Mr. Saltsman before Mr. Saltsman ever even saw it that the Commercial Purchase and Sale Agreement (“the Purported Instrument”) was invalid and, as the majority states, “had to be rewritten . . .”, and Mr. Saltsman acknowledged and agreed to that.

Cheatham County Court of Appeals 09/09/19
In Re Estate of John E. Mayfield
M2018-01977-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Suzanne Lockert-Mash

The owner of a storage facility agreed to sell the facility and died shortly after signing the purchase and sale agreement. The buyer filed a claim with the estate, seeking specific performance of the agreement. The estate’s administrator excepted to the claim, arguing that the agreement was unenforceable and that the decedent lacked the mental capacity to understand his actions when he signed the agreement. The trial court concluded that the agreement was not enforceable because there was no mutuality of assent to its terms and dismissed the buyer’s claim. The buyer appealed, and we reverse the trial court’s judgment and remand it for further proceedings.

Cheatham County Court of Appeals 09/09/19
Dianne Hamilton, et al. v. Methodist Healthcare Memphis Hospitals
W2019-01501-COA-T10B-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Mary L. Wagner

This is an accelerated interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B, from the trial court’s denial of a motion for recusal. The plaintiff contends the trial judge should be disqualified because a lawyer with the Lewis Thomason law firm, which represents the defendant in this action, provided a letter of recommendation on behalf of the trial judge in support of the judge’s application for appointment to a vacancy on the Court of Appeals of Tennessee. Plaintiff also contends the trial judge should be disqualified because the judge failed to disclose “the extrajudicial relationship.” Having reviewed the petition for recusal appeal, pursuant to the de novo standard as required under Rule 10B § 2.01, we find that the lawyer who provided the letter of recommendation has no involvement in this case, and that lawyer merely has a de minimis interest in the outcome of this case because the law firm representing the defendant is one of the larger multi-city firms in this state. Based on these facts and the relevant legal principles, we find no basis to conclude that the trial judge’s impartiality might be reasonably questioned. Accordingly, we affirm the trial court’s decision to deny the motion for recusal.

Shelby County Court of Appeals 09/06/19
Deborah Anne Dillon, Et Al. v. Craig Morris, Et Al.
M2019-01181-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Anne C. Martin

The plaintiffs/appellants filed a notice of appeal from the trial court’s order dismissing one of the plaintiffs’ claims as to all of the defendants and all of the claims as to one of the defendants. The defendants/appellees responded to the notice of appeal by filing a motion to dismiss this appeal as premature and not subject to a final appealable order of the trial court. Because the trial court has not yet resolved all the claims between all the parties, we dismiss the appeal for lack of a final judgment.

Davidson County Court of Appeals 09/06/19