Court of Appeals Opinions

Format: 05/05/2016
Format: 05/05/2016
James Mason Yates v. Sally Jo Seitz Yates
M2015-00667-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Royce Taylor

Husband and Wife were married for a little over three years and had one child together when Husband filed a complaint for divorce. Wife wanted a prenuptial agreement, and Husband prepared and signed an agreement that he presented to Wife before the parties were married. Wife testified she signed the document Husband presented to her before the parties’ marriage ceremony. Following a pretrial hearing, the trial court determined the prenuptial agreement was not valid. The trial court reversed its ruling after a full trial, however, finding that Wife would not have married Husband without a prenuptial agreement. Based on the provisions of the prenuptial agreement, the trial court determined which property was separate, which property was marital, and then distributed the marital property. The parties agreed to split their parenting time equally. The trial court calculated the parties’ incomes and determined that based on each party’s ability to earn approximately $16,000 per month and the parties’ equal parenting time, no child support order was necessary. Husband appealed from the trial court’s final order. We affirm the trial court’s judgment in all respects but one. We reverse the trial court’s decision to deduct six percent from the value of the marital home to account for closing costs because there was no evidence that the parties planned to sell the house as part of the divorce.

Rutherford County Court of Appeals 02/24/16
In re Destiny H., et al.
W2015-00649-COA-R3-PT
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Chancellor Walter L. Evans

This appeal involves a petition to terminate a mother’s parental rights on the grounds of abandonment by willful failure to support and willful failure to visit. We affirm the trial court’s finding that grounds for termination do not exist as to either ground. Accordingly, we affirm the trial court’s decision not to terminate the parental rights of the mother.

Shelby County Court of Appeals 02/24/16
In re A'Leah M. et al.
E2015-01234-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Timothy E. Irwin

Tanisha M. (“Mother”) appeals the order of the Juvenile Court for Knox County (“Juvenile Court”) terminating her parental rights to the minor children A'Leah M. (“the Older Child”) and Sh Myah M. (“the Younger Child” or collectively “the Children”) for abandonment by willful failure to pay child support pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(i), for failure to comply with a permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2), and for persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). We find and hold that the evidence does not preponderate against the findings of the Juvenile Court made by clear and convincing evidence that grounds were proven to terminate Mother's parental rights to the Children and that it was in the Children's best interest for Mother's parental rights to be terminated. We, therefore, affirm.

Knox County Court of Appeals 02/23/16
Tri-Cities Holdings, LLC v. Tennessee Health Services and Development Agency
M2015-00058-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Carol L. McCoy

An attorney from Georgia, who had been admitted to practice pro hac vice in a contested case hearing before the Tennessee Health Services and Development Agency, had his privilege to practice revoked by the Administrative Judge based upon representations he made as to the status of related federal litigation. On review by the Chancery Court, the revocation was affirmed. Discerning no error, we affirm the judgment of the Chancellor.

Davidson County Court of Appeals 02/22/16
Homer McCaig, et al. v. Roy L. Whitmore
W2015-00646-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Donald E. Parish

This is a premises liability case. Appellant Homer McCaig sustained multiple injuries while operating an all-terrain vehicle (ATV) on Appellee Roy Whitmore‘s property. The trial court determined that Mr. Whitmore owed no duty to the McCaigs based on the Tennessee Recreational Use Statute (―TRUS‖), Tennessee Code Annotated Sections 70-7-101 et seq. The trial court granted summary judgment in favor of the Appellee based on its determination that no exceptions to the statute were applicable. Discerning no error, we affirm and remand.

Carroll County Court of Appeals 02/22/16
Felisha Robinson v. University of Tennessee Health Science Center
W2015-01695-COA-R9-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Jim Kyle

This is a Tennessee Rule of Appellate Procedure 9 interlocutory appeal. Appellant The University of Tennessee appeals the trial court's denial of its Tennessee Rule of Civil Procedure 12.02(1) motion to dismiss Appellee's Tennessee Human Rights Act (“THRA”) claim for discrimination. Appellee, a student enrolled in The University of Tennessee Health Science Center's College of Nursing, was dismissed from the program after receiving a failing grade in the clinical portion of her studies. She filed suit in the Chancery Court of Shelby County for racial discrimination under the THRA and for alleged violation of the equal protection and due process protection provisions of the Tennessee Constitution. The trial court dismissed Appellee's equal protection and due process claims, but determined that Tennessee Code Annotated Section 4-21-311(a) evinced a legislative intent to waive the State's sovereign immunity for Appellee's THRA claims. Section 4-21-311(a) governs THRA claims for employment discrimination. However, Appellee's THRA claim is for alleged discrimination by a funded program. As such, Appellee's claim is governed by Part 9 of the THRA (specifically, Tennessee Code Annotated Section 4-21-905). Part 9 contemplates only administrative remedies for such violations, and we cannot find a clear legislative intent to waive sovereign immunity so as to allow Appellee to file her initial lawsuit in the chancery or circuit court. Accordingly, we reverse the trial court's order and remand for entry of an order of dismissal as to Appellee's THRA claim.

Shelby County Court of Appeals 02/22/16
In re Alleyanna S.
M2015-00544-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Michael W. Collins


This appeal arises from the termination of a mother’s and a father’s parental rights. On a petition for dependency and neglect, the juvenile court on an emergency basis removed the child from the parents. The parents later stipulated that the child was dependent and neglected, and the court made a finding that the child was a victim of severe child abuse at the hands of both parents. More than seven months later, the Tennessee Department of Children’s Services filed a petition to terminate parental rights based on the previous finding of severe child abuse by both parents and on the ground of willful abandonment for failure to support by the father. The trial court found clear and convincing evidence for both grounds and that it was in the best interest of the child to terminate parental rights. Both parents appeal. We affirm the termination of parental rights.

Smith County Court of Appeals 02/19/16
John E. Carter v. Herbert H. Slatery III, In His Official Capacity As Attorney General And Reporter
M2015-00554-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Carol L. McCoy

Father filed a petition to reduce child support. Mother sought to have their almost eighteen-year-old daughter testify that she did not intend to exercise visitation with Father to the extent previously ordered by the court after she turned eighteen. The court refused to let her testify. The trial court used the number of days of parenting time previously ordered in calculating child support instead of zero. The trial court also ordered Mother to pay a portion of Father’s attorney’s fees. Mother appeals these issues. We affirm the trial court as to the testimony of the child and the calculation of child support. We reverse the trial court’s award of attorney’s fees.    

Davidson County Court of Appeals 02/19/16
In re Phillip I.P., Jr. et al.
E2015-01058-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Sharon M. Green

This appeal concerns the termination of a mother’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition seeking to terminate the parental rights of Michelle P. (“Mother”) to her children Phillip and Emily (“the Children”). After a trial, the Juvenile Court found that clear and convincing evidence established the grounds of substantial noncompliance with the permanency plan and persistent conditions, and that termination of Mother’s parental rights was in the Children’s best interest. Mother appeals to this Court. We affirm the judgment of the Juvenile Court.

Washington County Court of Appeals 02/19/16
H & J Ditching & Excavating, Inc. v. Cornerstone Community Bank
E2015-01060-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jon Kerry Blackwood

Plaintiff H & J Ditching & Excavating, Inc. (Contractor) was hired by JRSF, LLC (Developer) to perform excavating and grading work on a subdivision construction project (the project) in West Knox County. Defendant Cornerstone Community Bank (Lender) provided financing for the project with a $2,512,500 construction loan. Complications arose, including the bankruptcy of one of Developer's primary members. Developer defaulted on the construction loan. Lender foreclosed and took possession by bidding on the property at the foreclosure sale.

Knox County Court of Appeals 02/19/16
In re Ava B.
E2015-01413-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Timothy E. Irwin

The petitioner in this parenting dispute appeals the trial court's order entered September 17, 2015. Having determined that the order at issue is not a final order, we dismiss the appeal for lack of subject matter jurisdiction.

Knox County Court of Appeals 02/19/16
National Public Auction Company, LLC v. Camp Out, Inc., et al.
M2015-00291-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Robert E. Corlew, III

An auctioneer filed suit against a recreational vehicle dealer for injunctive relief and damages; the dealer counterclaimed for fraud and other causes of action. A jury returned a verdict in favor of the dealer. Distribution of funds held by the court clerk was held in abeyance. This appeal is a post-judgment dispute as to whether the trial court erred in allowing the purchaser of a recreational vehicle at the auction to intervene after the trial court entered its judgment on the jury verdict to seek the return of money deposited with the court clerk, and whether the trial court erred in dismissing the dealer’s counterclaim against the purchaser and awarding the purchaser the return of his purchase price. We conclude that the trial court did not abuse its discretion in allowing the purchaser to intervene, but that the trial court erred in failing to allow the dealer to conduct discovery to determine whether the purchaser contributed to the loss in value of the vehicle.

Rutherford County Court of Appeals 02/18/16
Marchelle Renee Buman, Executor of the Estate of Kenneth Jenkins v. Alycia D. Gibson, P.A., et al.
W2015-00511-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Charles C. McGinley

This is a health care liability case. The trial court granted summary judgment to the defendant-medical providers after the exclusion of the plaintiff‟s standard-of-care expert due to failure to comply with discovery requests. Discerning no error, we affirm.

Henry County Court of Appeals 02/18/16
Cecil McNatt, et al. v. Jane Vestal (Kanizar); Henderson Villa Inc. v. Cecil McNatt, et al.
W2015-00870-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

This is a construction case. Appellee, Cecil McNatt, contracted to build and obtain the required licensing for an assisted living facility for Appellant Jane Vestal. The facility was constructed and licensed according to the parties' contract. Following completion, Appellant refused to pay the balance of the contract amount, citing the Appellee's lack of a contractor's license and numerous construction defects. Appellee filed suit against Appellant for breach of contract, and Appellant counterclaimed for violations of the Contractors Licensing Act and Tennessee Consumer Protection Act. The trial court concluded that Appellee did not violate the Contractors Licensing Act or the Tennessee Consumer Protection Act, dismissed Appellants' counterclaims, and awarded Appellees a judgment in the amount of $96,280.11. We conclude that trial court erred in concluding that the Appellee did not violate the Contractors Licensing Act, but we affirm the judgment to Appellee, with some modification of the amount awarded.

Chester County Court of Appeals 02/18/16
Aurora Loan Services LLC, et al. v. Linda S. Elam, et al.
W2015-01097-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Martha Brasfield

This is an appeal of a grant of summary judgment. Defendant Linda Elam conveyed property owned by her individually to Defendant Trust. This property was then pledged as collateral to secure a construction loan for the Trust. Defendants Fred and Linda Elam then obtained another loan in their individual capacities. Appellee’s predecessor in interest obtained ownership of the Defendants’ individual loan and brought suit seeking to have the conveyance of the property to the Trust declared void. On the Appellee’s first motion for summary judgment, the trial court found the conveyance of the property to the trust to be valid. On Appellee’s second motion for summary judgment, the trial court found that the property owned by the trust had been pledged as collateral for the second loan made to Defendants Fred and Linda Elam. Appellant, Fred Elam, appealed in his individual capacity. We conclude that Appellant cannot prosecute the appeal, and the appeal is dismissed.

Fayette County Court of Appeals 02/18/16
Maurice Fitten v. The City Council of The City of Chattanooga
E2015-00191-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Pamela A. Fleenor

The petitioner, an employee of the City of Chattanooga (“the City”), was demoted in his employment position after a city accident investigator found that the petitioner had failed to report an accident involving a city vehicle he was driving while on duty. The petitioner sought to appeal the City's decision through the Administrative Procedures Division. Upon the City's motion to dismiss the appeal, the administrative law judge (“ALJ”) found that the petitioner's appeal had been untimely filed and dismissed it for lack of subject matter jurisdiction. The petitioner subsequently filed a petition for review with the Hamilton County Chancery Court (“trial court”). Following a hearing, the trial court affirmed the dismissal of the petitioner's administrative appeal.

Hamilton County Court of Appeals 02/18/16
In re Estate of John Paul Lewis, Sr.
E2015-00290-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jerri S. Bryant

The plaintiff in this action and the decedent were formerly husband and wife. Before they married, the decedent husband and the plaintiff executed an antenuptial agreement, which provided, inter alia, that the decedent would maintain a $500,000 life insurance policy with the plaintiff as beneficiary until his death. When the parties divorced in 2009, the divorce court determined that their antenuptial agreement was enforceable, including the life insurance provision. Although the decedent appealed certain issues in that action regarding alimony and arrearages, the divorce court's determination regarding enforceability of the antenuptial agreement and the life insurance provision contained therein was not appealed. Furthermore, no relief was sought pursuant to Tennessee Rule of Civil Procedure 60. At the time of the decedent's death in 2014, he had not maintained the required life insurance, and the plaintiff filed a claim against the decedent's estate for $500,000. The personal representative of the estate filed an exception to the claim. The probate court allowed the claim to proceed, concluding that the issue regarding the life insurance provision in the antenuptial agreement had been previously litigated in the divorce action, which judgment had since become final and nonmodifiable. The personal representative has appealed. Discerning no error, we affirm.

Bradley County Court of Appeals 02/18/16
Wayne A. Howes, et al. v. Mark Swanner, et al.
M2015-01389-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Ross H. Hicks

This is an appeal of the denial of Appellants’ Tennessee Rule of Civil Procedure 60.02 motion to set aside the trial court’s order granting summary judgment in favor of Appellees. Because the order appealed is not a final judgment, the appeal is dismissed for lack of jurisdiction.

Montgomery County Court of Appeals 02/17/16
Joseph C. Thomas, et al v. The Standard Fire Insurance Company, et al - Concur
E2015-01224-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jeffrey M. Atherton

I concur fully in the majority’s decision in this case. I write separately only to express my opinion that the appropriate summary judgment standard to be applied by Tennessee courts now is as set forth in Rye v. Women’s Care Center of Memphis, MPLLC, ___ S.W.3d ___, 2015 WL 6457768 (Tenn. 2015), rather than Tenn. Code Ann. § 20-16-101. I believe our Supreme Court intended for the retroactive application of Rye when it stated: “In civil cases, judicial decisions overruling a prior cases generally are applied retrospectively.” Rye, ___ S.W.3d at ___n.9, 2015 WL 6457768 at *35 n.9. While there may be very little, if any, difference between the summary judgment standard as set forth in Rye and as contained in Tenn. Code Ann. § 20-16-101, I believe Rye sets the standard and is controlling on the courts of this State.

Hamilton County Court of Appeals 02/17/16
Joseph C. Thomas, et al v. The Standard Fire Insurance Company, et al
E2015-01224-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Jeffrey M. Atherton

This appeal arises from an insurance claim for storm-related damage to the property of the plaintiffs. The case was resolved on a motion for summary judgment. According to the plaintiffs, the trial court erred by giving effect to the decision of the appraisal panel because the policy's appraisal provision is unenforceable. The plaintiffs contend the policy's appraisal provision constitutes an agreement to arbitrate subject to Tennessee's version of the Uniform Arbitration Act (Tenn. Code Ann.§ 29-5-301, et seq.). The plaintiffs further argue the appraisal provision does not comply with Tennessee Code Annotated section 29-5-302(a) of the Uniform Arbitration Act, which requires agreements to arbitrate over issues relating to property used as residences must be signed or initialed by the contracting parties. We affirm the trial court's findings

Hamilton County Court of Appeals 02/17/16
In re Estate of John J. Burnette
E2014-02522-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jeffrey M. Atherton

This case grew out of the administration of the estate of John J. Burnette. G. Michael Luhowiak, successor administrator of the estate, filed a motion seeking approval of fees and expenses and asking the trial court to assess those charges against John G. McDougal, the previous administrator. The trial court adopted a master's report granting the successor administrator the requested relief. The court denied the previous administrator's motion to alter or amend. The previous administrator appeals. We vacate the trial court's judgment because the court failed to hold a hearing and failed to independently assess the merits of the master's report. This case is remanded for further proceedings consistent with this opinion.

Hamilton County Court of Appeals 02/16/16
In Re: Riley C.
M2015-00541-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Donna Scott Davenport

This appeal arises from the termination of Father’s parental rights. The minor child was removed from his parents, placed in state custody, and adjudicated dependent and neglected after the Tennessee Department of Children’s Services (“DCS”) received a referral alleging that Father and the child’s mother were using and possibly manufacturing methamphetamines in the home. Thereafter, DCS developed permanency plans with the goal of reuniting the family. The mother died shortly thereafter of a drug overdose. DCS subsequently filed a petition to terminate Father’s parental rights alleging that Father failed to comply with most of the permanency plan’s requirements, that he failed numerous drug screens, failed to provide a suitable home. It also alleged that the abandoned the child by only visiting the child three times and merely providing token support for the child after she was taken into state custody. The trial court terminated Father’s parental rights finding that DCS has proven the grounds of substantial noncompliance with a permanency plan and abandonment, and that termination of his parental rights was in the child’s best interests. Father appeals. We affirm.

Rutherford County Court of Appeals 02/12/16
Auto-Owners Insurance Company v. Vanessa Holland, et al.
M2014-01630-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Buddy D. Perry

An insurance company which issued a commercial general liability policy to the owner of a lawn care business sought a declaratory judgment that the policy did not provide coverage for a claim brought by the parent of a child who was injured by the gate on a trailer which was used to transport lawn care equipment. The company appeals the denial of its motion for summary judgment. Having determined that the insurance policy does not provide coverage for the claim at issue, we reverse the judgment of the trial court and remand with instructions to grant summary judgment in favor of the insurance company.

Franklin County Court of Appeals 02/12/16
Billy Butler, et al. v. Malvin Carvin Pitts, Jr., et al. v. Marilyn James Morris, et al.
W2015-01124-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor George R. Ellis

This is an easement case. Appellants, the servient land owners, appeal the trial court‟s grant of summary judgment in favor of the Appellees, the former owners of both the dominant and servient tracts of land. Based on the fact that the disputed easement was recorded prior to the sale to the Appellants, the trial court determined that there was no dispute as to any material fact and that Appellees were entitled to summary judgment as a matter of law. We affirm in part, reverse in part, and remand for further proceedings in accordance with this opinion.

Haywood County Court of Appeals 02/12/16
Dennis Miracle v. Roger Murray, et al.
E2015-0248-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Frank V. Williams, III

This is an appeal from a Final Order and Judgment in a case arising out of a dispute over real property located in Roane County, Tennessee. There was no court reporter present for the trial. The Chancellor recused himself from the case post-judgment but before the record was prepared and transmitted for this appeal. The Circuit Court Judge accepted the case by interchange for purposes of resolving the parties' dispute regarding a statement of the evidence for inclusion in the record. The Circuit Court Judge concluded that he was unable to resolve the parties' dispute pursuant to Rule 24(f) of the Rules of Appellate Procedure, and granted a new trial. As a result, there is no longer a final judgment in the proceedings below, and this Court no longer has jurisdiction to consider this appeal.

Roane County Court of Appeals 02/12/16