Court of Appeals Opinions

Format: 09/30/2014
Format: 09/30/2014
Arthur B. Roberts et al. v. Robert Bailey et al.
E2013-01950-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Frank V. Williams, III

This is the second appeal to this Court involving the instant real property dispute. At issue is a 58-acre portion (“Disputed Property”) of what was an approximately 100-acre tract acquired by N.B. Bailey and his wife, Pearl Bailey, by warranty deed in 1918. The original plaintiffs, Arthur B. and Tia Roberts, were neighboring landowners who 1 brought a boundary dispute action in March 2009 against the original defendants, Robert W. Bailey, Richard Neal Bailey, and Lisa Bailey Dishner (“the Baileys”). During the course of the boundary dispute, N.B. and Pearl Bailey’s descendants and successors in title became aware that their ownership interest in the Disputed Property could be affected by the possibility that N.B. and Pearl Bailey owned the original 100 acres as tenants in common rather than tenants by the entirety. The first appeal arose when the Baileys, proceeding as third-party plaintiffs, filed a motion to quiet title to the Disputed Property against the third-party defendants, Dale Littleton, Alice Littleton, Kimber Littleton, Mark Lee Littleton, and Charlotte Dutton (“The Littletons and Ms. Dutton”). On March 30, 2010, the trial court granted partial summary judgment in favor of the Littletons and Ms. Dutton, and the court certified its order as a final judgment pursuant to Tennessee Rule of Civil Procedure 54.02. On appeal, this Court questioned the finality of that March 2010 order but allowed the appeal to proceed on an interlocutory basis. Roberts v. Bailey, 338 S.W.3d 540, 541 n.1 (Tenn. Ct. App. 2010), perm. denied (Tenn. Mar. 9, 2011) (“Roberts I”).

Loudon County Court of Appeals 07/31/14
Warren Tywon Fowler v. Joy R. McCroskey, In Her Official Capacity As Clerk Of The Criminal Court Of Knox County
E2013-02365-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Deborah C. Stevens

The plaintiff, a state prison inmate, appeals the trial court’s grant of summary judgment in favor of the defendant criminal court clerk. The plaintiff alleges that the court clerk induced a breach of contract by assessing him with court costs he asserts the State agreed to waive in return for his pleading guilty to felony charges. The trial court found that the plaintiff could not use his affidavit to raise a genuine issue of material fact regarding an alleged oral promise made by the prosecutor when the criminal judgments and written plea agreement, taken together, unambiguously assessed court costs to the plaintiff. The court therefore found that the plaintiff was unable to prove an essential element of his claim. Discerning no error, we affirm.

Knox County Court of Appeals 07/31/14
Eric Johnson et al. v. Parkwest Medical Center
E2013-01228-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Deborah C. Stevens

Eric Johnson, acting individually and as next of kin of the decedent, Jana Lanell Johnson, and the Estate of Jana Lanelle Johnson (“Plaintiffs”), filed the instant action on April 27, 2010, regarding Ms. Johnson’s death. The action alleged health care liability claims pursuant to Tennessee Code Annotated § 29-26-115, as well as other claims, including ordinary negligence and intentional infliction of emotional distress. An agreed order granting partial summary judgment to Parkwest Medical Center (“Parkwest”) was entered with regard to Plaintiffs’ non-medical claims. Parkwest subsequently filed a motion to dismiss, alleging that Plaintiffs failed to comply with all of the requirements of Tennessee Code Annotated § 29-26-121 regarding the health care liability claim. Upon hearing, the trial court granted the motion. Plaintiffs filed additional motions regarding newly discovered evidence, including a motion seeking to set aside the prior order granting partial summary judgment or to amend the complaint, a motion to amend the certificate of good faith, and a motion seeking sanctions. The trial court denied Plaintiffs’ motion seeking to set aside the prior order granting partial summary judgment or to amend the complaint, as well as Plaintiffs’ motion to amend the certificate of good faith. The trial court failed to rule on Plaintiffs’ motion seeking sanctions. Plaintiffs have appealed to this Court. We affirm the trial court’s dismissal of Plaintiffs’ health care liability claim based on Plaintiffs’ failure to substantially comply with the requirements of Tennessee Code Annotated § 29-26-121. We vacate the trial court’s rulings with regard to Plaintiffs’ motions to amend and motion to set aside the partial summary judgment order. We remand for further proceedings consistent with this opinion.

Knox County Court of Appeals 07/31/14
In Re Colby W., et al
M2013-01060-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Robert L. Jones

Tennessee Department of Children’s Services filed a petition for temporary custody of child, alleging that he was dependent and neglected. On de novo review from the Juvenile Court, the Circuit Court, Maury County, adjudicated child dependent and neglected and found that child suffered severe abuse while in the care of his parents. Mother appealed. We affirm.

Maury County Court of Appeals 07/30/14
Charles M. Murphy, Jr. v. Kathy J. Cole, Et Al.
M2013-02225-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor J. B. Cox

The Tennessee Department of Human Services appeals an order of the trial court reversing the Department’s holding that an applicant was not eligible for food stamp benefits or to apply for certain medicare coverage due to excessive income. Upon consideration of the record, we reverse the judgment of the trial court, affirm the decision of the Department and dismiss the petition for review.
 

Marshall County Court of Appeals 07/30/14
Alfred E. Emrick, Jr. v. Gregory Moseley, Et Al.
M2013-01829-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ross H. Hicks

The General Sessions Court of Montgomery County entered a final judgment against the garnishees for the full amount of the judgment debtor’s debt, even though the garnishees had filed an answer and informed the court of the amount of their payments made to the judgment debtor. On appeal, the Circuit Court affirmed this final judgment, and the garnishees timely appealed to this Court. We vacate the final judgment for the full amount of the debt because (1) no conditional judgment was entered, (2) the garnishees were not provided with notice of a conditional judgment, and (3) the garnishees answered and properly informed the court regarding the amount of their payments made to the judgment debtor. We remand this action to the trial court for further proceedings consistent with this opinion.

Montgomery County Court of Appeals 07/30/14
Joshua Wayne Taylor v. Mary Katherine Taylor
E2013-01734-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jacqueline S. Bolton

This is a post-divorce case stemming from the parties’ competing pleadings, both of which sought a modification of their earlier-filed agreed permanent parenting plan as well as other relief. Within a few months of their divorce, Mary Katherine Taylor (“Mother”) had filed a petition to modify the residential parenting schedule. Joshua Wayne Taylor (“Father”) filed a counterclaim also seeking a modified residential schedule and, furthermore, a change in the custody designation. Following a bench trial, the court found that there was no material change in circumstances warranting a change in the identity of the primary residential parent, but that there was a material change supporting a modification  of the residential schedule. The court ordered a new schedule that substantially increased Mother’s parenting time and provided Father with only standard visitation. The court dismissed each party’s attempt to find the other in contempt. Father appeals. We affirm.

Hamilton County Court of Appeals 07/30/14
Phillip Dean Patrick v. Nelson Global Products, Inc.
E2013-02444-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Donald R. Elledge

This is a retaliatory discharge action filed by Phillip Dean Patrick (“Plaintiff”), a former employee of Nelson Global Products, Inc. (“the Employer”). Plaintiff alleged that, on a day during his employment, he was standing nearby when a co-worker sustained a work-related injury. Plaintiff alleged that he was unlawfully terminated after the injured co-worker filed a claim for workers’ compensation benefits. According to Plaintiff, the co-worker’s filing was a “substantial factor” in the Employer’s decision to discharge him. The trial court granted the Employer’s Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted. Plaintiff appeals. We affirm.

Anderson County Court of Appeals 07/30/14
David M. Dulaney, Et Al. v. Don Walker Construction, Et Al.
E2013-00805-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge W. Neil Thomas, III

David M. Dulaney and Traci L. Dulaney (“Plaintiffs”) sued Don Walker Construction (“Walker Construction”) and Rhonda P. Walker (collectively “Defendants”) with regard to real property and a house constructed and sold by Defendants to Plaintiffs. After a trial, the Circuit Court for Hamilton County (“the Trial Court”) entered its judgment finding and holding, inter alia, that Plaintiffs had failed to prove negligent construction and had failed to prove misrepresentation and violations of the Tennessee Consumer Protection Act. Plaintiffs appeal. We find and hold that the evidence does not preponderate against the Trial Court’s findings, and we affirm.

Hamilton County Court of Appeals 07/30/14
Donald E. Price v. Oxford Graduate School, Inc.
E2013-02467-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jeffrey F. Stewart

This is a breach of contract case in which an administrator filed suit against a school for unpaid severance pay. The school claimed that the administrator did not provide the requisite 30-day notice for severance pay pursuant to the terms of his contract. The trial court found that the administrator satisfied the notice requirement under the term of his contract and awarded him damages. The school appeals. We affirm the decision of the trial court.

Rhea County Court of Appeals 07/30/14
Jamia Rentz v. Michael Rentz
E2013-02414-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge E.G. Moody

This appeal arises from the Parties’ numerous post-divorce issues. As relevant to this appeal, Father filed a petition to correct his child support obligation, alleging that his alimony payments to Mother should have been considered as income in setting his support obligation. Father also sought to modify his support obligation in recognition of the birth of his new son and his payment of health insurance. Following numerous hearings, the trial court declined to consider Father’s alimony payments in setting the support obligation but modified the obligation to reflect the birth of Father’s son and the payment of health insurance. The court awarded Mother attorney fees. Father appeals. We affirm the decision of the trial court.

Sullivan County Court of Appeals 07/30/14
Circle C Construction, LLC v. D. Sean Nilsen, Et Al.
M2013-02330-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

The issue in this case is whether a tolling agreement between the parties precludes the application of the savings statute set forth in Tenn. Code Ann. § 28-1-105(a). We agree with the trial court that the tolling agreement does preclude application of the savings statute and that the plaintiff’s legal malpractice action is barred by the termination date established in the agreement.

Davidson County Court of Appeals 07/29/14
Richard Jeremiah Garrett, Jr. v. Renee Michelle Elmore
M2013-01564-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Wayne C. Shelton

The father of the parties’ four-year-old child appeals the permanent parenting plan established by the juvenile court judge; specifically, he challenges the designation of Mother as the primary residential parent, the parenting schedule, the income imputed to each parent, and child support he is ordered to pay. He also contends Mother waived her right to a de novo rehearing of an earlier “order” by the magistrate, which favored Father, as she did not file a timely request for a de novo hearing; therefore, the juvenile court judge was without authority to conduct a de novo hearing or to enter judgment contrary to the magistrate’s order. We have determined the magistrate’s “order” was not a final judgment because the magistrate never prepared “findings and recommendations in writing,” which are to be provided to the juvenile court judge, as is expressly required by Tenn. Code Ann. § 37-1-107(d). Following the de novo hearing before the juvenile court judge, Mother was named the primary residential parent and she was awarded 218 days of parenting time; Father was awarded 147 days. In calculating child support, the trial court found that Mother was attending college part-time but that she was voluntarily unemployed and imputed income to her based on federal minimum wage. The court found that Father’s evidence concerning his modest income was unreliable and imputed income to Father pursuant to Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(iv). The court additionally afforded Mother a day care credit of $516 per month and set child support pursuant to the guidelines based upon the above findings. Father appeals. Finding no error, we affirm.

Montgomery County Court of Appeals 07/29/14
In Re: Adoption of Joshua M. M. and Zachary M. - Separate Concurrence
M2013-02513-COA-R3-PT
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Ross H. Hicks

In concur fully in the termination of the parents’ parental rights on the ground of persistent conditions. I write separately to state my disagreement with the majority’s conclusion that consideration of the remaining termination grounds–abandonment by willful failure to visit and abandonment by willful failure to support–is somehow rendered unnecessary in light of the parents’ ostensible failure to challenge the finding of persistent conditions.

Montgomery County Court of Appeals 07/28/14
In Re: Adoption of Joshua M. M. and Zachary M.
M2013-02513-COA-R3-PT
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Ross H. Hicks

The appeal involves a petition for termination of parental rights and adoption. The children at issue were removed from their parents’ Wisconsin home in 2005 based on abuse and neglect. Since 2006, the children have been living with the petitioners, the paternal aunt and her husband. The petitioners filed the instant petition in Tennessee to terminate the parental rights of both the mother and the father and to adopt the children. After a trial, the trial court held that the petitioners had established three grounds for termination: (1) abandonment for failure to visit, (2) abandonment for failure to support, and (3) persistent conditions. It also found that termination of parental rights would be in the children’s best interest, and so terminated the parental rights of both biological parents. The parents now appeal. Discerning no error, we affirm.

Montgomery County Court of Appeals 07/28/14
Lisa Doyle v. Town of Oakland
W2013-02078-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge J. Weber McCraw

This is an appeal from a dismissal for improper service of process. The plaintiff filed a complaint against the defendant municipality. The summons and complaint were served on the municipality’s finance director. In its answer, the municipality asserted improper service of process for failure to serve either the municipality’s chief executive or its city attorney. Later, the municipality filed a motion for summary judgment. The motion asserted that, because service of process was insufficient under Tenn. R. Civ. P. 4.04, the complaint was time-barred under the applicable statute of limitations. The trial court granted summary judgment in favor of the municipality. The plaintiff appeals. Discerning no error, we affirm.

Fayette County Court of Appeals 07/28/14