Court of Appeals Opinions

Format: 05/25/2015
Format: 05/25/2015
Emma Harris et al v. Amanda B. Aldmon et al.
E2014-00203-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Michael W. Moyers

In this appeal, the Court is asked to determine whether certain provisions of restrictive covenants recorded in 1917 are still in effect and enforceable against certain parcels of subdivision property that lay contiguous to North Broadway in Knoxville. Emma Harris filed a declaratory judgment action seeking the judgment of the trial court that a “used for residential purposes only” restriction is unenforceable as to her property due to changed conditions in the area and the abandonment of the restriction by waiver and/or acquiesence in other violations of the subject restriction. A defendant, Robert A. Whaley, a neighbor to the Harris property, filed a cross-claim seeking the same relief. The trial court, while finding that “it may well be that especially in [the] Harris[ ] case a just and equitable remedy would be the removal of the burden from her,” nevertheless went on to enforce the covenant. We affirm the trial court's judgment as to the property of cross-claimant Whaley, which property is improved with a relatively-large house inhabited by Whaley as his residence since 2001. The Harris property, on the other hand, consists of two contiguous unimproved lots that have never been built on since the subdivision was created in 1917. Considering the totality of the circumstances and equities, it is the judgment of the Court that, with respect to the Harris lots, the “residential purposes only” restriction is cancelled and unenforceable, but this decree is made subject to a restriction that no curb cut will be constructed to allow vehicular access from the Harris property to Gibbs Drive, a thoroughfare leading into the subdivision from North Broadway. Our decree is also subject to the Truan/plaintiffs agreement as reflected in Exhibit 33.

Knox County Court of Appeals 03/30/15
Joseph Igou, et al v. Vanderbilt University
M2013-02837-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Thomas W. Brothers

This appeal asks whether a wife’s loss of consortium claim, brought pursuant to her husband’s underlying health care liability action, is itself a health care liability action subject to the pre-suit notice provision of the Tennessee Health Care Liability Act. The trial court granted the hospital’s motion to dismiss, finding that the wife’s claim was a health care liability action under the Act and that she had failed to comply with the pre-suit notice provision. As an alternative ground for dismissal, the court also found that the wife had failed to file suit within the statute of limitation. We vacate the trial court’s order of dismissal with prejudice and remand.

Davidson County Court of Appeals 03/27/15
In Re Kailee M.G.
E2014-01602-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Daniel G. Boyd
The State of Tennessee Department of Children’s Services (“DCS”) filed a petition in November of 2013 (“the Petition”) seeking to terminate the parental rights of Kristen M.C. (“Mother”) to the minor child Kailee M.G. (“the Child”). After a trial the Juvenile Court for Sullivan County (“the Juvenile Court”) terminated Mother’s parental rights to the Child after finding that clear and convincing evidence had been proven of grounds to terminate for persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3) and that clear and convincing evidence had been proven that it was in the Child’s best interest for Mother’s parental rights to be terminated. Mother appeals the termination of her parental rights to the Child to this Court. We find and hold that clear and convincing evidence was proven of grounds for termination pursuant to Tenn. Code Ann. § 36-1-113(g)(3) and that clear and convincing evidence was proven that it was in the Child’s best interest for Mother’s parental rights to be terminated, and we affirm.
 
Sullivan County Court of Appeals 03/27/15
Garrett Rittenberry, et al. v. Kevin Pennell, et al.
M2013-02106-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Tom E. Gray

This appeal concerns a contentious boundary dispute involving multiple parties. Plaintiffs Garrett and Alma Rittenberry (“the Rittenberrys”) initially filed suit seeking to have an easement set aside for their benefit through the property of Kevin and Lana Pennell (“the Pennells”) pursuant to Tennessee Code Annotated § 54-14-101 et seq. Later, the Rittenberrys filed an amended complaint that alternatively sought relief by way of an easement across the property of Appellants Chris Burke and Lesa Hall (“Burke/Hall”). The Pennells moved for summary judgment arguing that the Rittenberrys did not need to resort to the statutory remedy of an easement by necessity. Upon finding that the Rittenberrys’ property was not, in fact, landlocked, but that it abutted a public road, the trial court granted the Pennells’ motion and dismissed the Rittenberrys’ cause of action. We affirm the trial court’s judgment

Sumner County Court of Appeals 03/26/15
Kevin Bloomfield v. The Metropolitan Government of Nashville and Davidson County
M2014-00438-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Plaintiff, a firefighter, who sustained personal injuries while serving in the course and scope of his employment with the Nashville Fire Department, brought this action against the Metropolitan Government of Nashville and Davidson County (“Metro”) asserting that he sustained serious personal injuries due to the negligence of a paramedic who was employed by Metro. The injury occurred while Plaintiff and the paramedic were moving a patient in a wheelchair. Following discovery, Plaintiff filed a motion for partial summary judgment on the issue of liability. After determining that no material facts were in dispute, the trial court granted summary judgment on the issue of liability upon the findings that an established procedure existed for the lifting of patients in a wheelchair, that the paramedic violated the established procedure, that the violation caused Plaintiff’s injuries, and that Plaintiff was not comparatively at fault. Following an evidentiary hearing on the issue of damages, the trial court awarded Plaintiff a judgment of $300,000 in damages. On appeal, Metro contends that there is a genuine dispute of fact regarding the policy for moving patients in wheelchairs, whether the paramedic violated the procedure, and whether Plaintiff is comparatively at fault. We affirm the trial court’s findings that there was an established policy for moving patients in a wheelchair, that the paramedic violated the policy by lifting the foot of the wheelchair without communicating with Plaintiff prior to initiating the lift, and that the paramedic’s violation of the established policy was the sole and proximate cause of Plaintiff’s injuries. Accordingly, we affirm the judgment of the trial court. 

Davidson County Court of Appeals 03/26/15
In Re Kemauri H.
M2014-01357-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Donna Scott Davenport

Mother appeals the termination of her parental rights. The trial court found that six grounds for termination of her parental rights had been established. Mother does not challenge three of the grounds for termination; thus, the trial court’s ruling regarding three of the grounds is final. Because the trial court may terminate parental rights on the basis of only one statutory ground, In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003), we need not examine the other grounds. See In re Alexis L., No. M2013-01814-COA-R3-PT, 2014 WL 1778261, at *1 (Tenn. Ct. App. Apr. 30, 2014). Mother also contends the trial court erred in finding that the requirements of the permanency plan were reasonably related to remedying the conditions that necessitated the child’s removal and that termination was in the child’s best interests. Finding no error, we affirm.

Rutherford County Court of Appeals 03/26/15
Nancy Hart Diehl Harvey, Executrix of The Estate of W. Joseph Diehl, Jr., et al v. Phillips Turner, Jr.
M2014-00368-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ronald Thurman

This is a lawsuit brought for damage to property. After partial summary judgment was denied to the defendant, and after the trial court ruled that the defendant’s request for a jury trial was waived, the parties proceeded to a bench trial. During a hiatus after three days of trial, the parties settled the case and announced the essential terms of the settlement to the court in open court. The parties failed to agree to a written settlement document, and the plaintiffs asked the trial court to enforce the settlement. The trial court found that the settlement was enforceable. The defendant appealed. We affirm.

DeKalb County Court of Appeals 03/26/15
Jessica Catherine Hayes v. Douglas Aaron Hayes
M2014-00237-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge John H. Gasaway, III

This appeal involves various financial issues related to a divorce. Father appeals the trial court’s determination of variable income for Father that he earns as an amateur bowler; the trial court’s award of transitional alimony to Mother; and the trial court’s order that Father pay half of the minor children=s private school tuition. We affirm the trial court’s rulings regarding child support and alimony. However, we vacate the trial court’s ruling on the payment of private school tuition due to the trial court’s failure to comply with the Tennessee Child Support Guidelines.

Montgomery County Court of Appeals 03/26/15
Karen Abrams Malkin v. Reed Lynn Malkin
W2014-00127-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Walter L. Evans

This appeal involves an obligor’s petition to modify or terminate his alimony obligation due to his retirement. The trial court found that the obligor’s income had decreased to approximately one-third of his previous income level, so the trial court reduced the alimony payments by a corresponding percentage, to roughly one-third of the previous obligation. The recipient appeals. We hold that the trial court applied an incorrect legal standard when considering the petition to modify and also erred in its factual findings. Based on our review of the evidence, the obligor failed to demonstrate that modification of his alimony obligation was warranted. Consequently, we reverse the trial court’s decision, reinstate the previous alimony award, dismiss the petition for modification, and remand for further proceedings.

Shelby County Court of Appeals 03/26/15
Hershel Sanders et al v. First Tennessee Bank, N.A. et al.
E2014-00812-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Amy V. Hollars

This appeal concerns a dispute over which statute of limitations applies. Hershel and Alma Sanders (“Plaintiffs”) filed suit against First Tennessee Bank, National Association (“the Bank”) in the Circuit Court for Cumberland County (“the Trial Court”).1 Plaintiffs alleged that the Bank breached its contractual obligations to them by failing to provide long-term financing toward the building of their home as promised. The Bank denied it made any such promise. The Bank filed a motion for summary judgment. After a hearing, the Trial Court granted the Bank’s motion for summary judgment on the basis that the three-year statute of limitations for injury to property or interest in property barred Plaintiffs’ claims. Plaintiffs appeal. We hold that the financial damages alleged by Plaintiffs are in the nature of breach of contract and, therefore, a six-year statute of limitations governs. We reverse the judgment of the Trial Court.

Cumberland County Court of Appeals 03/26/15
Rhonda Potter et al. v. William Dale Perrigan, M.D. et al.
E2013-01442-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Amy V. Hollars
This is a medical malpractice action. Plaintiffs timely filed a complaint after properly sending pre-suit notices to Defendants. After voluntarily dismissing the initial complaint, Plaintiffs filed a second complaint pursuant to the saving statute with an attached certificate of good faith and a copy of the original pre-suit notices. Defendants moved to dismiss the second complaint for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a). The trial court agreed and dismissed the action. Plaintiffs appealed. We reversed the decision of the trial court. Defendants filed an application for permission to appeal. The Tennessee Supreme Court granted the application and remanded the case for reconsideration in light of its opinion in Foster v. Chiles, No. E2012-01780-SC-R11-CV, 2015 WL 343872 (Tenn. Jan. 27, 2015). Upon remand, we affirm the decision of the trial court.
 
Cumberland County Court of Appeals 03/26/15
William C. Kerst, et al. v. Upper Cumberland Rental And Sales, LLC
M2014-00894-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Ronald Thurman

This is a contract case arising from the sale of a business. Appellant orally agreed to sell his fastener business to the Appellee. After Appellant allegedly violated the terms of the sale agreement, Appellee stopped making payments. Appellant filed suit to recover the balance of the purchase price. The parties later agreed to rescission of the sale and to allow the trial court to decide the issue of rescissory damages. The trial court heard evidence regarding such damages and entered an order awarding Appellant $8,601.73 in damages, plus the remaining inventory of unused old fasteners. Appellant appeals. We affirm and remand.

Putnam County Court of Appeals 03/25/15
Sharon M. Smith v. Read Hauck, et al.
M2014-01383-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Amanda Jane McClendon

The trial court granted Defendant/Appellee’s motion to dismiss based upon expiration of the applicable statute of limitations and made its judgment final pursuant to Tennessee Rule of Civil Procedure 54.02. Because we find that the trial court considered matters outside the pleadings in ruling on Defendant/Appellee’s motion to dismiss we converted it to a motion for summary judgment. We reverse the judgment of the trial court and remand for further proceedings.

Davidson County Court of Appeals 03/25/15
Billy L. Grooms v. State of Tennessee
E2014-01228-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Ben W. Hooper, II

The petitioner, Billy L. Grooms, appeals the denial of his petition for writ of habeas corpus and/or motion to correct an illegal sentence. He argues that: (1) the indictment is void because it was returned without a juvenile petition for transfer, prior to transfer to the criminal court, and without the criminal court’s acceptance; (2) the indictment is void because it and the endorsements were not part of the record insofar as they were never spread upon the minutes of the trial court to become part of the record; (3) the indictment is void because it alleged only legal conclusions, did not provide adequate protections against double jeopardy, and did not enable the trial court to enter an appropriate judgment; and (4) his sentence is void in light of Miller v. Alabama, 132 S. Ct. 2455 (2012). After a thorough review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the habeas corpus court.

Cocke County Court of Appeals 03/25/15
Deborah Ann Treadway v. Gregory Steven Treadway
M2014-00898-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Jane W. Wheatcraft

The trial court awarded Wife a judgment in the amount of $28,000 for back alimony and ordered Husband to honor his obligations, under the parties’ marital dissolution agreement, with respect to life insurance and disability insurance. Husband appeals. We affirm and remand the case for further proceedings as are necessary and consistent with this Opinion.

Sumner County Court of Appeals 03/24/15
In Re Brookelyn W.
W2014-00850-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Walter L. Evans

In this termination of parental rights case, mother and step-father appeal the trial court’s decision to set aside a decree of adoption entered by default, as well as the trial court’s subsequent finding that they failed to prove grounds for the termination of biological father’s parental rights. We affirm the trial court’s decision to set aside the adoption decree, but reverse the trial court’s determination that mother and step-father failed to prove grounds for termination. Instead, we conclude that clear and convincing evidence exists to show that biological father abandoned the child by willfully failing to visit and support the child. As such, we remand to the trial court for a determination of whether termination is in the child’s best interest.

Shelby County Court of Appeals 03/24/15
Donny O. Locklear v. Stacey L. Locklear
E2014-01465-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor E.G. Moody
This is an appeal from a Final Decree of Divorce. Because a notice of appeal was not timely filed in this case, we have no jurisdiction to consider this appeal.
 
Sullivan County Court of Appeals 03/24/15
David Crump, Sr. v. Sherry Pike
E2014-02074-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Rex H. Ogle
The final order from which the appellant seeks to appeal was entered on October 14, 2014. The only notice of appeal “filed” by the appellant was submitted to the Trial Court Clerk via facsimile transmission in violation of Rule 5A.02(4)(e) of the Rules of Civil Procedure. Because the Notice of Appeal was insufficient to invoke the jurisdiction of this Court, this appeal is dismissed.
 
Cocke County Court of Appeals 03/24/15
In Re Brittany M.C.
E2014-01450-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Raymond C. Conkin, Jr.
This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate Mother’s parental rights to the Child. The trial court found that clear and convincing evidence existed to support the termination of Mother’s parental rights on the statutory grounds of abandonment, substantial noncompliance with the permanency plans, and the persistence of conditions which led to removal. The court further found that termination of her rights was in the Child’s best interest. Mother appeals. We affirm the trial court’s termination of Mother’s parental rights. 
Sullivan County Court of Appeals 03/24/15
In Re Malaki E.
M2014-01182-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Kenneth R. Goble

This appeal arises from the termination of Mother’s parental rights. When the child was four months old, he was placed in the custody of the Tennessee Department of Children’s Services’ for lack of supervision and drug exposure. A permanency plan was created shortly thereafter, but less than one year later, the Department petitioned to terminate Mother’s parental rights. Following a trial, the juvenile court terminated Mother’s parental rights on the grounds of: (1) abandonment for failure to support; (2) abandonment for failure to provide a suitable home; and (3) persistent conditions. Mother appeals the juvenile court’s determination on all three statutory grounds, the court’s finding that termination was in the child’s best interest, and several other court rulings. We affirm.

Montgomery County Court of Appeals 03/23/15
In Re Jayden C.
M2014-00957-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Ken Witcher

The mother of the parties’ only child contends the trial court erred in changing the designation of the primary residential parent from Mother to Father and in limiting her parenting time to 100 days a year. She also contends the court erred in failing to award her retroactive child support. We affirm the trial court’s designation of Father as the primary residential parent and the parenting schedule. As for Mother’s claim for retroactive child support and reasonable medical expenses for the birth of the child, she asserted these claims in her counter-petition; however, when Father attempted to introduce documentary evidence of support he had provided to Mother and child, Mother’s counsel objected to the relevancy of the evidence, informing the trial judge that Father “made those payments” and that back child support was not an issue. Based on Mother’s representations, the court ruled that evidence of Father’s payments of back child support was not relevant, and no evidence was introduced to show that support had been provided or that any support was owed. While we acknowledge prior cases which stand for the general rule that parents may not waive or circumvent their minor child’s right to support, State ex rel. Dauda v. Harris, No. W2006-01314-COA-R3-JV, 2007 WL 906746 (Tenn. Ct. App. Mar. 26, 2007), we cannot allow a litigant to proceed on a claim she affirmatively abandoned during trial. Moreover, because she deprived the trial court of the opportunity to rule on the issue at trial, we will not permit Mother to raise this issue for the first time on appeal. For the foregoing reasons, we affirm the trial court in all respects.

Trousdale County Court of Appeals 03/23/15
In Re Joseph Brown
W2014-00825-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Curtis S. Person, Jr.

An attorney was summarily punished for direct criminal contempt. The attorney appeals, alleging numerous procedural errors and claiming that his actions did not rise to the level of contemptuous behavior. Discerning no error, we affirm.

Shelby County Court of Appeals 03/23/15
Angela Dawn Gilmore v. Dustin Michael Gilmore
W2015-00234-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Donna M. Fields

The notice of appeal was not timely filed. Therefore, we must dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 03/23/15
In Re Noah J.
W2014-01778-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Special Judge Dan H. Michael

This appeal involves a dispute between unmarried parents regarding a parenting schedule for their young son. Following a hearing before a juvenile court magistrate, an order was entered providing that the parents would have joint custody, with the designation of primary residential parent alternating each year. Mother requested a rehearing before the juvenile court judge. Several months later, the matter was reheard before another magistrate, who was appointed by the juvenile court judge to hear the matter as substitute judge. The magistrate sitting as substitute judge entered an order naming Mother primary residential parent and limiting Father to only supervised visitation. Father was ordered to pay all of Mother‟s attorney's fees. Due to the lack of written findings, we vacate the final order and remand for further proceedings.

Shelby County Court of Appeals 03/23/15
Danny Long Et Al v. Quad Power Products, LLC et al.
E2013-02708-COA-R3-CV
Authoring Judge: Thomas R. Frierson, II
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This is a product liability action arising from a workplace injury to the plaintiff, Danny Long. Mr. Long’s left arm was severely injured on October 30, 2002, when a reducing mechanism attached to a ball valve he was using suddenly broke, causing a release of pressurized air and water onto his left arm and shoulder. Following lengthy medical treatment and multiple surgeries, Mr. Long’s left arm was amputated. On October 30, 2003, Mr. Long and his wife filed a complaint alleging, inter alia, negligence in the design, manufacture, assembly, distribution, and sale of the ball valve, as well as failure to warn of potential danger to users of the ball valve and failure to include with the ball valve adequate safety information relative to its use. The Longs named four companies as defendants allegedly responsible for the design, manufacture, assembly, distribution, and sale of the ball valve. Mr. Long’s employer was subsequently joined as an intervening plaintiff. Through the course of the proceedings, the trial court granted summary judgment in favor of two of the defendant companies on the basis of lack of personal jurisdiction. These defendants are not parties to this appeal. Mr. Long died on December 22, 2006, and Ms. Long thereafter by substitution assumed his interest in this action. In May 2010, the trial court granted Ms. Long and the intervening plaintiff permission to amend the complaint to reassert a strict liability claim against the two remaining defendant companies based upon the sole theory of failure to warn. In May 2013, the two remaining defendants subsequently filed separate motions for summary judgment. Finding that no genuine issue of material fact existed that could establish strict liability based upon failure to warn, the trial court granted summary judgment in favor of both remaining defendants. Ms. Long and the employer appeal. Discerning no error, we affirm.

Hamilton County Court of Appeals 03/20/15