Court of Appeals Opinions

Format: 01/17/2017
Format: 01/17/2017
Steven Kempson, et al. v. Pamela Casey, et al.
E2015-02184-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Neil Thomas, III

Pickup truck driver sued to recover for injuries he allegedly sustained when his truck was rear-ended while he was stopped for traffic on the interstate. His wife asserted that she had suffered from the loss of consortium with and services of her husband. The defendant driver acknowledged responsibility for the collision but disputed that the plaintiffs had proven, by a preponderance of the evidence, that the accident in question caused any injury. The jury found that the collision caused no damage to the plaintiffs. On the jury’s verdict, the trial court entered judgment, awarding the plaintiffs no damages and denying the motion for a new trial. The plaintiffs appeal. We vacate the trial court’s judgment and remand for a new trial on damages alone.

Hamilton County Court of Appeals 11/02/16
Arianna A. George et al. v. Tessa G. Dunn
E2015-02312-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John F. Weaver

This case involves a trustee's disbursement of funds from two trusts, without authorization of the trusts' respective beneficiaries, in order to pay legal expenses incurred in defending against a prior action filed against the trustee on behalf of the beneficiaries. The trial court had dismissed the prior action with prejudice in an agreed order entered on August 31, 2012, which further provided that the funds at issue would be disbursed by the trustee for the benefit of the beneficiaries. On April 13, 2015, the beneficiaries filed a complaint, alleging that the trustee had violated the terms of the August 2012 order and her fiduciary duty by writing checks against the trust funds in an amount totaling $30,563.16. The trustee filed an answer, asserting that pursuant to Maryland law governing the establishment of the trust accounts, she was entitled to be reimbursed from the trust accounts for legal fees incurred in defense of the prior lawsuit filed on behalf of the beneficiaries and ultimately dismissed. The beneficiaries filed a motion for summary judgment. Following a hearing, the trial court granted summary judgment in favor of the beneficiaries, awarding each beneficiary, respectively, $15,281.58 plus prejudgment interest and attorney's fees. The trustee appeals. Discerning no reversible error, we affirm. Having determined that the trial court did not abuse its discretion by awarding attorney's fees upon the finding that the trustee breached her fiduciary duty, we further determine an award to the beneficiaries of attorney's fees on appeal to be appropriate. We remand for the trial court to determine the amount of reasonable attorney's fees incurred by the beneficiaries during the appellate process.

Knox County Court of Appeals 11/02/16
In Re: Jeramyah H., et al
M2016-00141-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Magistrate Adam T. Dodd

Father appeals the termination of his parental rights to his two children. The juvenile court terminated his parental rights on three grounds: abandonment by willful failure to support, failure to provide a suitable home, and persistence of conditions preventing reunification. The court also found clear and convincing evidence that termination of parental rights was in the children’s best interests. After reviewing the record, we conclude that DCS did not meet its burden of proving, by clear and convincing evidence, the grounds of failure to provide a suitable home or persistence of conditions. But, we conclude that there was clear and convincing evidence of willful failure to support and that termination was in the best interests of the children. Therefore, we affirm the termination of parental rights.  

Rutherford County Court of Appeals 10/31/16
American Honda Motor Co., Inc. v. The Tennessee Motor Vehicle Commission, et al
M2016-00406-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Carol L. McCoy

American Honda wanted to establish a new motorcycle dealership in Kingsport, Tennessee and notified the current dealerships of this intent. Jim’s Motorcycle, located in Johnson City, filed a notice of protest with the Tennessee Motor Vehicle Commission, and a hearing was held in accordance with Tenn. Code Ann. § 55-17-114(c)(20). The Commission determined that the Kingsport area was within the relevant market area of Jim’s Motorcycle and ruled that American Honda was not authorized to establish a new dealership in Kingsport. American Honda appealed, and we affirm the Commission’s ruling.

Davidson County Court of Appeals 10/31/16
Volunteer Princess Cruises, LLC v. Tennessee State Board of Equalization
M2016-00364-COA-R12-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Executive Secretary Kelsie Jones

A water transportation carrier company challenges the assessment of personal property taxes against it by the Board of Equalization for tax years 2008, 2010, and 2011. With respect to tax years 2010 and 2011, we find merit in the carrier’s argument that the record does not establish that the Board provided the carrier with notice sufficient to satisfy due process and, therefore, remand for a determination as to whether the carrier received such notice. As to the Board’s back assessment of the carrier for tax year 2008, we affirm the Board’s assessment.  

Court of Appeals 10/31/16
In Re: Lucius H.
M2016-00534-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John Thomas Gwin

This is a Title IV-D child support and paternity case. Appellant/Father appeals the trial court’s order on paternity and child support. Discerning no error, we affirm.

Wilson County Court of Appeals 10/31/16
George Moore, Jr., et al v. City of Clarksville, TN
M2016-00296-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Ross H. Hicks

Appellant landowners filed a complaint against the City of Clarksville under the theory of implied- in-fact contract, alleging that the City should repair and maintain Appellants’ sewer line and arguing that the broken sewer line is an extension of the City’s public sewer system. Appellants also requested compensatory damages resulting from the back-up of sewage into their home. The City argues that the broken sewer line is a private sewer, for which the City has no responsibility. The City filed a motion for summary judgment. Upon hearing the City’s motion, the trial court found that Appellants’ claim sounded in tort under the Tennessee Governmental Tort Liability Act and that the complaint was time barred. Discerning no error, we affirm.

Montgomery County Court of Appeals 10/31/16
In re Jose L., et al.
E2016-00517-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin, Jr.
Trial Court Judge: Judge J. Shannon Garrison

This is a termination of parental rights case. The trial court terminated Father’s parental rights on the grounds of substantial noncompliance with a permanency plan and abandonment by willful failure to visit. The trial court also found that termination of Father’s parental rights was in the best interest of the children. Having reviewed the record as it relates to the grounds for termination and the best interests of the children, we conclude that the trial court’s findings are supported by clear and convincing evidence. We, therefore, affirm the judgment of the trial court terminating Father’s parental rights.

Rhea County Court of Appeals 10/31/16
John C. Hoynacki et al. v. Jerome Hoynacki
E2015-02084-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jean A. Stanley

Plaintiff John C. Hoynacki was helping his father, defendant Jerome Hoynacki, wax defendant‟s recreational vehicle (RV). He worked on a ladder in reaching the high places on the RV. The ladder fell with plaintiff on it, causing him injury. He brought this negligence action, alleging that defendant breached his duty to exercise reasonable care in securing and stabilizing the ladder. The trial court granted defendant summary judgment, holding that defendant had no legal duty to hold the ladder at the time the plaintiff attempted to “climb down prior to his accident.” We hold that there are genuine issues of material fact regarding whether defendant was negligent under the circumstances. We vacate the trial court's grant of summary judgment and remand for further proceedings.

Washington County Court of Appeals 10/31/16
Barbara T. Collins v. HCA Health Services Of Tennessee, Inc., et al.
M2016-00524-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Appellant was injured while attempting to leave the defendant hospital against medical advice. Appellant appeals the trial court’s decision to grant summary judgment in favor of the defendant hospital, concluding that the hospital owed no duty to prevent Appellant from leaving the hospital. Discerning no error, we affirm.  

Davidson County Court of Appeals 10/28/16
In Re: Carolina M.
M2014-02133-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joseph A. Woodruff

This case began as a petition for dependency and neglect filed in juvenile court by the Tennessee Department of Children’s Services (“DCS”). The juvenile court found the child to be dependent and neglected, and Mother and Father appealed to the circuit court. A discovery dispute arose when their attorney requested records from a court appointed special advocate volunteer. In connection with the dispute, the parents’ attorney filed a petition for civil contempt and a petition for criminal contempt against the volunteer. The circuit court did not grant either petition, and in response, the non-profit organization with which the volunteer was affiliated filed motions for sanctions against the attorney under Rule 11 of the Tennessee Rules of Civil Procedure. The circuit court granted the non-profit’s motions finding, among other reasons, that both petitions were filed for improper purposes. Mother and Father appeal the circuit court’s dismissal of their criminal contempt petition and the court’s decision to impose sanctions against their attorney. Because we conclude that the circuit court did not abuse its discretion in dismissing the criminal contempt petition or in imposing sanctions against the attorney, we affirm. 

Williamson County Court of Appeals 10/28/16
Connie Reguli, et al v. Sharon Guffee, et al.
M2015-00188-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Joseph W. Woodruff

An attorney, representing herself, filed suit against a juvenile court judge and clerk after she was prevented from accessing recordings of juvenile court proceedings to which she claimed she was entitled under state law. She sought a writ of mandamus and a judgment declaring the juvenile court local rule, under which the judge denied her requests, invalid. The attorney amended her complaint, joining four clients that she had previously represented before the juvenile court. The judge and clerk then filed a motion to dismiss, which the chancery court granted. We conclude, as did the chancery court, that two of the plaintiffs lacked standing and that state law does not entitle plaintiffs to the recordings. Therefore, we affirm the chancery court’s dismissal of the amended complaint. 

Williamson County Court of Appeals 10/28/16
In Re: Jackson H.
M2014-01810-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Robbie T. Beal

This appeal involves a challenge to fees awarded to a guardian ad litem. The juvenile court ordered the child’s parents to each pay half of the fees awarded. After the juvenile court made its fee award, Mother appealed to the circuit court. The circuit court conducted a de novo hearing and found the fees awarded reasonable. On appeal to this Court, Mother raises several issues with respect to the award, including a lack of notice that fees would be assessed to the parents, improper limits on discovery, unauthorized and unnecessary actions by the guardian ad litem, and violations of Supreme Court Rules. The guardian ad litem argues Mother’s appeal to the circuit court was untimely and requests that we vacate the decision of the circuit court and remand with instructions to dismiss the appeal. We do not find the appeal to the circuit court to be untimely, but we do find the award of fees to the guardian ad litem appropriate. Therefore, we affirm the judgment of the circuit court. 

Williamson County Court of Appeals 10/28/16
Vicki Matherne, et al. v. Jerry West, et al.
E2015-02061-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Rex Henry Ogle

This appeal concerns premises liability in a slip and fall case. Vicki Matherne and Rodney Matherne ("Plaintiffs") sued Jerry West and Carolyn West ("the Wests"), owners of a vacation cabin rented by the Mathernes, and American Patriot Getaways ("APG"), which managed the cabin, (collectively, "Defendants") after Mrs. Matherne injured herself falling off an elevated parking level at the cabin. Defendants filed a motion for summary judgment. The Circuit Court for Sevier County ("the Trial Court") granted Defendants‘ motion, finding that any hazardous condition was open and obvious and that Mrs. Matherne was at least 50% at fault. Plaintiffs appeal to this Court. We hold that there are genuine disputed issues of material fact regarding what Defendants could or should have done to prevent the risk of a fall from the elevated parking level and whether Mrs. Matherne was at least 50% at fault. Therefore, the Trial Court erred in granting Defendants‘ motion for summary judgment. We reverse the judgment of the Trial Court and remand this case for further proceedings.

Court of Appeals 10/28/16
Richard Hamilton, et al v. Randy Holderman, et al.
M2015-02302-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John D. McAfee

This is an appeal from a judgment entered on a jury verdict for conversion of property. The property owners, Appellees, received a judgment of $24,999.99 in general sessions court, and Appellants filed an appeal to the circuit court. At the jury trial, jurors awarded Appellees a verdict of $40,000.00. Appellants appeal. Discerning no error, we affirm.

Fentress County Court of Appeals 10/27/16
Austin Davis, et al v. Dale Lewelling, et al.
M2016-00730-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kelvin D. Jones

Plaintiffs appeal the trial court’s ruling: (1) dismissing their claims against a church; (2) dismissing the plaintiff-daughter’s claim against the remaining individual defendant for failure to state a claim upon which relief can be granted; and (3) granting the remaining individual defendant’s motion for summary judgment as to the plaintiff-father’s claim of assault. With regard to the dismissal of the claims against the church, we conclude that Appellants’ notice of appeal was untimely, and we therefore dismiss their appeal concerning the claims against the church for lack of subject matter jurisdiction. We dismiss the remainder of Appellants’ appeal because of profound deficiencies in Appellants’ brief to this Court.

Davidson County Court of Appeals 10/27/16
Jeffrey Donald Landis, Sr. v. Regina Marie Landis
M2015-02520-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Suzanne Lockert Mash

In this post-divorce proceeding, ex-husband filed a petition for civil contempt to compel ex-wife to allow him to retrieve certain items of personal property awarded to him in the parties’ marital dissolution agreement. The trial court entered an order holding ex-wife in civil contempt for her failure to turn over certain items. We have reviewed the record and have determined that the trial court erred in finding ex-husband was entitled to a boat trailer that was not enumerated in the property list; however, we affirm the trial court’s finding of civil contempt.     

Cheatham County Court of Appeals 10/27/16
In re Alfonzo E., et al.
M2016-00867-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Sheila Calloway

The mother of three sons appeals the termination of her parental rights. A juvenile court magistrate determined that one son was the victim of severe abuse and that the other two sons were dependent and neglected. The magistrate also found that the mother was the perpetrator of this abuse, dependency, and neglect. The magistrate’s order was not appealed. All three sons were placed with the same foster mother. They remained with her for around two years during which time they had some visitation with their biological mother. Subsequently, the Department of Children’s Services filed a petition to terminate the mother’s parental rights alleging severe abuse and persistence of conditions as grounds for termination. See Tenn. Code Ann. § 36-1-113(g)(3)-(4). The mother opposed the petition, and the children’s maternal grandmother and uncle each filed separate petitions for custody. After two hearings, the trial court found that DCS had proven both alleged grounds for termination by clear and convincing evidence and that terminating the mother’s parental rights was in the best interests of the children. The court also dismissed the petitions for custody filed by the grandmother and the uncle. The mother appealed, arguing that termination was not in the best interests of the children and that the trial court erred by failing to place the children with their grandmother as a less drastic alternative to foster care. Mother also argues that DCS failed to make a diligent search for the children’s fathers. The evidence does not preponderate against the trial court’s best-interest findings, and the mother cannot appeal the dismissal of the grandmother’s petition or the termination of the fathers’ parental rights. Additionally, by the time a court considers whether to terminate parental rights, it is too late to bring a less drastic alternative before the court. Accordingly, we affirm.

Davidson County Court of Appeals 10/26/16
Nove Kephart, Sr. v. Daniela F. Schwarzer Kephart
M2015-02285-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor L. Craig Johnson

The father of two children opposes the relocation of the children with their mother from middle Tennessee to Harrison, Arkansas. He also contends he is entitled to a child support deviation. At trial, testimony revealed that the mother wants to relocate because her husband accepted a position in Harrison that resulted in an annual salary increase of $20,000, plus a bonus. The mother also testified that she was offered a job in Harrison that pays more than her current position. The trial court granted permission to relocate, finding that the relocation had a reasonable purpose because the mother and her husband would receive a significant increase in annual income and increased opportunities for advancement in Arkansas. The trial court also found that relocating would not result in serious harm to the children and was not intended to defeat the father’s visitation. In addition, the trial court denied the father’s request for a child support deviation. The father appealed, contending that the court’s findings about the relocation are erroneous and that he is entitled to a child support deviation. The evidence supports the trial court’s findings regarding the purpose and nature of the relocation. Additionally, the father is not entitled to a child support deviation under the plain language of the regulations. Accordingly, we affirm.

Coffee County Court of Appeals 10/26/16
Vicki J. Redick v. Saint Thomas Midtown Hospital, et al
M2016-00428-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Amanda McClendon

Vicki J. Redick (“Plaintiff”) appeals the dismissal with prejudice of her health care liability action against Saint Thomas Midtown Hospital (“the Hospital”) and Jane Doe, an employee of the Hospital. We find and hold that Plaintiff, despite application of the common knowledge exception when appropriate, would be unable to prove her claim without expert proof, and therefore, Plaintiff was required to file a certificate of good faith in compliance with Tenn. Code Ann. § 29-26-122. As Plaintiff failed to file the required certificate of good faith, we find no error in the judgment of the Circuit Court for Davidson County (“the Trial Court”) dismissing Plaintiff’s case with prejudice for failure to comply with Tenn. Code Ann. § 29-26-122.

Davidson County Court of Appeals 10/26/16
Anderson Lumber Company, Inc. v. Chris Kinney, et al.
E2016-01640-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge David R. Duggan

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 Disqualification or Recusal filed by the Defendants, William Kinney and Margaret Kinney ("Defendants") in this case that arises out of the indebtedness of Defendants' business, Kinney Custom Interiors, to the Plaintiff, Anderson Lumber Company, Inc. ("Plaintiff"). Having reviewed the petition for recusal appeal filed by Defendants, and finding no error in Trial Court's ruling, we affirm.

Blount County Court of Appeals 10/26/16
Jack Wayne Butler v. Tennessee Board of Nursing
M2016-00113-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Ellen H. Lyle

An applicant for a nursing license filed a petition for a writ of certiorari regarding the decision of the Tennessee Board of Nursing to deny his license. The trial court ruled: (1) that the applicant was not entitled to a contested case prior to the denial of his initial nursing license; (2) that the Tennessee Board of Nursing correctly found that the applicant’s license could be denied due to his “fraud or deceit” in his efforts to procure his license; and (3) that the Tennessee Board of Nursing could not rely on an expunged conviction to establish the statutory ground of “guilty of a crime.” Both parties appeal. Discerning no error, we affirm the decision of the trial court. 

Davidson County Court of Appeals 10/25/16
James Smallwood v. State of Tennessee
M2016-00276-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Commissioner Robert N. Hibbett

An inmate of the Tennessee Department of Correction filed a claim against the State of Tennessee seeking to recover damages for personal injuries he sustained when he was attacked on August 23, 2013, by a fellow inmate. The Claims Commissioner found that the material facts were not disputed and there was no forewarning of the assault. Because the claimant provided no evidence showing that the attack was foreseeable, the Claims Commissioner concluded that the prison did not breach any duty to protect the claimant and summarily dismissed the claim. The claimant appealed. We affirm. 

Court of Appeals 10/25/16
John Hamilton v. Metropolitan Government Of Nashville And Davidson County, et al
M2016-00446-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Amanda Jane McClendon

This case involves a challenge to an election commission’s decision not to set a special election to fill a vacancy in the office of district council. Appellant, a Davidson County resident and registered voter, appeals the trial court’s grant of Appellees’, the Metropolitan Government of Nashville & Davidson County and the Davidson County Election Commission, Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss. The trial court granted Appellees’ motion on its finding that Appellant’s petition failed to aver facts sufficient to show a distinct and palpable injury to Appellant so as to establish his standing to challenge the election commission’s decision not to schedule a special election. Discerning no error, we affirm and remand.

Davidson County Court of Appeals 10/25/16
The River Oak, GP, et al v. IOAN Bucse, et al.
M2015-02208-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Joe Thompson

This property dispute involves adjacent commercial property owners. When defendants revealed their intent to erect a fence between the adjoining properties, plaintiffs sued under the theories of adverse possession, prescriptive easement, and implied easement to use a portion of defendants’ property for parking, trash removal, and receiving deliveries. After a bench trial, the trial court found that plaintiffs failed to meet their burden of establishing their asserted rights over the area in dispute. Plaintiffs appeal the trial court’s conclusions as to prescriptive easement and easement by implication only. Discerning no error, we affirm. 

Sumner County Court of Appeals 10/25/16