Court of Appeals Opinions

Format: 08/05/2015
Format: 08/05/2015
Keith Gillis v. Covenant Health, et al.
E2014-01409-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Donald R. Elledge

This appeal arises from a construction negligence case. Keith Gillis (“Plaintiff”), sued Covenant Health, Rentenbach Engineering Company, and TEG Architects, LLC, (“Defendants,” collectively) in the Circuit Court for Anderson County (“the Trial Court”). Plaintiff alleged that the absence of shielding in a portion of the radiology facilities in the new emergency department at Methodist Hospital caused Plaintiff to suffer damages from excessive radiation exposure. Defendants filed motions for summary judgment asserting the statute of repose, Tenn. Code Ann. § 28-3-202 (2000), as a complete defense. The Trial Court granted Defendants' motions for summary judgment. Plaintiff appeals to this Court arguing, in part, that the statute of repose did not run because the absence of the required shielding in the radiology facilities meant the project was not substantially completed on the date as found by the Trial Court. We hold, inter alia, that the radiology facilities, while perhaps defective, were used for their intended purpose and were substantially complete as found by the Trial Court. The construction statute of repose expired and serves to defeat Plaintiff's claims. We affirm the Trial Court.

Anderson County Court of Appeals 06/09/15
Michael Phillips v. Covenant Health, et al.
E2014-01405-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Donald R. Elledge

This appeal arises from a construction negligence case. Michael Phillips (“Plaintiff”), sued Covenant Health, Rentenbach Engineering Company, and TEG Architects, LLC, (“Defendants,” collectively) in the Circuit Court for Anderson County (“the Trial Court”). Plaintiff alleged that the absence of shielding in a portion of the radiology facilities in the new emergency department at Methodist Hospital caused Plaintiff to suffer damages from excessive radiation exposure. Defendants filed motions for summary judgment asserting the statute of repose, Tenn. Code Ann. § 28-3-202 (2000), as a complete defense. The Trial Court granted Defendants' motions for summary judgment. Plaintiff appeals to this Court arguing, in part, that the statute of repose did not run because the absence of the required shielding in the radiology facilities meant the project was not substantially completed on the date as found by the Trial Court. We hold, inter alia, that the radiology facilities, while perhaps defective, were used for their intended purpose and were substantially complete as found by the Trial Court. The construction statute of repose expired and serves to defeat Plaintiff's claims. We affirm the Trial Court.

Anderson County Court of Appeals 06/09/15
Mary Ridenour, et al v. Covenant Health, et al.
E2014-01408-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Donald R. Elledge

This appeal arises from a construction negligence case. Mary Ridenour, individually, and, Jacob Ross Ridenour, a minor by Mary Ridenour (“Plaintiffs”), sued Covenant Health, Rentenbach Engineering Company, and TEG Architects, LLC, (“Defendants,” collectively) in the Circuit Court for Anderson County (“the Trial Court”). Plaintiffs alleged that the absence of shielding in a portion of the radiology facilities in the new emergency department at Methodist Hospital caused Plaintiffs to suffer damages from excessive radiation exposure. Defendants filed motions for summary judgment asserting the statute of repose, Tenn. Code Ann. § 28-3-202 (2000), as a complete defense. The Trial Court granted Defendants' motions for summary judgment. Plaintiffs appeal to this Court arguing, in part, that the statute of repose did not run because the absence of the required shielding in the radiology facilities meant the project was not substantially completed on the date as found by the Trial Court. We hold, inter alia, that the radiology facilities, while perhaps defective, were used for their intended purpose and were substantially complete as found by the Trial Court. The construction statute of repose expired and serves to defeat Plaintiffs' claims. We affirm the Trial Court.

Anderson County Court of Appeals 06/09/15
Robert T. Hughes, et al. v. Henry County Medical Center d/b/a Lake Haven Behavioral Center
W2014-01973-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Donald E. Parish

This is a healthcare liability action, arising from alleged injuries to Appellant, Melba Hughes. Mrs. Hughes' husband, Robert Hughes, filed this action against Appellee, Henry County Medical Center (“HCMC”), and Dr. Donald Gold, who is not a party to this appeal. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121. Specifically, Appellee challenged whether the medical authorization provided with the pre-suit notice letter was compliant with Tennessee Code Annotated 29-26-121(a)(2)(E). An error in the medical authorization form provided to HCMC did not permit HCMC to obtain medical records from Dr. Gold. However, Dr. Gold saw the patient only at HCMC, and he had no records independent of the hospital's records. Following a hearing on the motion, the trial court dismissed the action without prejudice. Mr. and Mrs. Hughes timely filed their appeal. We reverse and remand the matter to the trial court.

Henry County Court of Appeals 06/09/15
Doris Jean Kerr, individually, and on behalf of Willie M. Kerr v. Tommy C. Thompson, M.D.
W2014-00628-COA-R9-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge John R. McCarroll

The trial court denied the defendant doctor’s motion to dismiss this medical malpractice action on the ground that the plaintiff had substantially complied with Tennessee Code Annotated Section 29-26-122, despite the fact that her certificate of good faith did not contain a statement that the executing party had no prior violations of the good faith certificate requirement. This Court granted an interlocutory appeal. While this appeal was pending, the Tennessee Supreme Court issued its Opinion in Davis v. Ibach, No. W2013-02514-SC-R11-CV, --- S.W.3d ---, 2015 WL 3451613 (Tenn. May 29, 2015), ruling that Tennessee Code Annotated Section 29-26-122 does not require a party executing a certificate of good faith to note the absence of any prior violations of the good faith certificate requirement. Based on Davis, we conclude that plaintiff’s certificate of good faith was fully compliant with Tennessee Code Annotated Section 29-26-122. Accordingly, although we rely on different grounds, we affirm the trial court’s ruling denying the defendant doctor’s motion to dismiss.

Shelby County Court of Appeals 06/09/15
Wubalem Gebremedhin v. New Day Auto Sales, Inc.
M2014-01803-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Amanda Jane McClendon

Plaintiff who purchased a used automobile sued the dealership for damages asserting various statutory and common law causes of action arising out of the sale, financing, repossession and subsequent resale of the automobile. Following a trial in which the jury found in Plaintiff’s favor on a claim under the Tennessee Consumer Protection Act and on several common law claims, Plaintiff moved the court for an award of attorney’s fees; the court awarded $10,000.00 of the requested $72,909.00 sought. Plaintiff appeals. Because the trial court did not state the factual or legal basis for the award of fees, this court cannot properly perform its review function; accordingly, we vacate the judgment of the trial court and remand the case for reconsideration and entry of an order setting forth the factual and legal basis of the award.

Davidson County Court of Appeals 06/08/15
Basil J. Marceaux, Sr. v. City of Chattanooga
E2014-00106-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jacqueline S. Bolton

This matter concerns the circuit court’s resolution of the appellant’s appeal from Chattanooga’s City Court of two violations of the municipal code. We affirm the trial court’s dismissal decision.

Hamilton County Court of Appeals 06/08/15
Nan E. Scott, et al v. The City of Knoxville, et al.
E2014-01589-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Michael W. Moyers

This is an appeal from a judgment in a certiorari review action where the trial court upheld the Knoxville City Council's ruling in favor of the respondents. The Knoxville City Council found that a proposed expansion project involving the construction of a crematory for incinerating human bodies was permitted as an accessory use for the existing funeral home. The trial court found that the Knoxville City Council had not exceeded its jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or fraudulently, or acted without material evidence to support its decision. The petitioners appeal. We affirm.

Knox County Court of Appeals 06/08/15
Tamar v. William B. Batte, et al.
W2014-01975-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Walter L. Evans

This is an appeal from the trial court’s dismissal of Appellant’s petition for a temporary restraining order and injunctive relief. Although Appellant was represented by counsel at oral argument, she filed her initial appellate brief and reply brief to this Court pro se. Significant procedural shortcomings in Appellant’s brief prevent this Court from reaching the merits of the appeal. We, therefore, dismiss the appeal.

Shelby County Court of Appeals 06/08/15
Michael Lee Yarlett v. Roxanne Deette Yarlett
M2014-01036-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Phillip R. Robinson

Mother appeals the trial court’s modification of the parties’ parenting plan and designation of Father as the Primary Residential Parent. We affirm. 

Davidson County Court of Appeals 06/05/15
Robert McAllister v. Timothy Rash, et al.
E2014-01283-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Dale C. Workman

Plaintiff filed a complaint for damages against an individual and an insurance company. This appeal arises from the trial court’s denial of a motion to set aside a final judgment of dismissal for failure to prosecute in favor of the individual defendant. Summary judgment was granted to the defendant insurance company, and the order was certified as final. In addition, the trial court denied a motion to amend the complaint to add allegations against a different insurance company. Approximately one year later, a trial occurred against the individual defendant; plaintiff failed to appear. The trial court subsequently granted the individual defendant an involuntary dismissal for failure to prosecute. More than thirty days later, plaintiff filed a motion to set aside the final judgment. The trial court denied the motion, and plaintiff appealed. Because plaintiff’s claims against the defendant insurance companies became final prior to the filing of the notice of appeal, we have no jurisdiction to consider any alleged errors relative to them. Accordingly, plaintiff’s appeal against the insurance companies at issue is dismissed. We affirm the trial court’s ruling denying plaintiff’s motion to set aside the final judgment of dismissal.

Knox County Court of Appeals 06/05/15
Steven A. Holdsworth v. Wendy Alford Holdsworth
W2013-01948-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge James F. Russell

This is an appeal from an extremely contentious divorce. The parties married in 1994 and had one child together during the marriage. Husband filed for divorce in 2011. In July 2013, the trial court entered a final decree of divorce. Among other things, the trial court found that Husband dissipated marital assets by writing checks to his girlfriend totaling $15,633 and ordered Husband to reimburse Wife that amount. The trial court also entered a permanent parenting plan that designated Wife the primary residential parent and provided a residential parenting schedule. As part of its permanent parenting plan and based on its calculation of the parties’ respective incomes, the trial court set Husband’s child support obligation and ordered Husband to pay Wife $34,109 in retroactive child support. Finally, the trial court awarded Wife $4,000 per month as alimony in futuro and $461,586 as alimony in solido to reimburse Wife for her attorney’s fees and expenses. Husband filed a notice of appeal challenging the trial court’s rulings.

Prior to Husband’s appeal of the July 2013 order being heard, however, Husband and his girlfriend were arrested when a sheriff’s deputy discovered a marijuana plant growing in their garage. Shortly thereafter, Wife filed a petition seeking to modify the permanent parenting plan to impose certain restrictions on Husband’s parenting time. Among other things, Wife sought to condition Husband’s parenting time on his girlfriend’s submission to and passing of random drug tests. In March 2014, the trial court ruled that a material change of circumstance occurred following the entry of the July 2013 order and entered a modified permanent parenting plan that incorporated Wife’s proposed restrictions. Husband filed a separate appeal from that order, and the two cases were consolidated for appeal to this Court.

Having thoroughly reviewed issues raised by the parties and the record on appeal, we conclude that while the trial court did not err in finding that Husband dissipated marital assets by writing checks to his girlfriend, Wife is not entitled an award equal to the full amount of the dissipation. We modify the amount of the dissipation award to $7,816.53 to reflect Husband’s one-half interest in the dissipated amounts. We affirm the trial court’s allocation of parenting time. While we also affirm the trial court’s decisions to award Wife child support and retroactive child support, we conclude that the trial court based the amount of those awards on a determination of the parties’ respective incomes that is not supported by a preponderance of the evidence. Accordingly, we vacate the trial court’s ruling as to the amount of those awards and remand this matter for further proceedings consistent with this opinion. Next, we reverse the trial court’s award of alimony in futuro. Given the facts of this case, we conclude that Wife is a candidate for transitional alimony and direct the trial court on remand to determine the appropriate amount and duration of such an award. While we affirm the trial court’s decision to modify the permanent parenting plan, we conclude that because Husband’s girlfriend was not a party to the proceedings, the trial court erred in setting conditions on Husband’s parenting time based on her compliance with provisions of the permanent parenting plan. Finally, we conclude that the trial court did not apply a proper legal standard in awarding Wife her attorney’s fees and expenses and reached an illogical result. We reverse the trial court’s award of attorney’s fees. We decline to award attorney’s fees associated with this appeal to either party.

Shelby County Court of Appeals 06/03/15
Alicia Denise Fair v. Andrew Jacob Parish
E2014-02337-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This is an appeal from an order entered in a post-divorce modification proceeding. Because the order appealed from does not resolve all the claims, rights, and liabilities of the parties, we lack jurisdiction to consider this appeal.

Jefferson County Court of Appeals 06/03/15
Jeffrey Richard Palmer v. Bill Kees
E2014-00239-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Donald R. Elledge

The plaintiff tenant in this action rented an apartment from the defendant landlord. Attached to the apartment were a wooden deck and staircase leading to the ground below. The tenant filed suit against the landlord for injuries the tenant sustained when a board on the stairs collapsed, causing the tenant to fall. The trial court granted summary judgment in favor of the landlord because the tenant could not show that the landlord had knowledge of any dangerous condition on the leased premises. The tenant has appealed. Discerning no error, we affirm.

Anderson County Court of Appeals 06/01/15
Rebecca Burke Pair v. Chris Franklin Pair
M2014-00727-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Timothy L. Easter

In this divorce action, Wife appeals the trial court’s finding that Husband did not dissipate marital funds, the award of alimony, and the division of marital property. Finding that the award of support and division of property is supported by the evidence and consistent with the applicable law, we affirm the judgment.

Williamson County Court of Appeals 05/29/15
Synovus Bank v. David A. Paczko, et al
M2014-00897-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Robbie T. Beal

Bank sued borrowers on a lost or destroyed promissory note. Borrowers, among other defenses, denied that the note was in default and the amount due. Borrowers also claimed that bank had destroyed the note with the intention of discharging the obligation. On cross-motions for summary judgment, the trial court entered judgment in favor of bank. Borrowers appeal, claiming the affidavits filed in support of the bank’s motion for summary judgment were deficient, the existence of disputed material facts, the indebtedness had been discharged, and that further discovery should have been permitted by the trial court. We vacate and remand.  

Williamson County Court of Appeals 05/29/15
David R. Smith v. The Tennessee National Guard
M2014-02375-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas W. Brothers

This is the second appeal from an action filed by Plaintiff against the Tennessee National Guard in which he contends Defendant violated the Uniformed Service Employment and Reemployment Rights Act of 1994 (“USERRA”) by refusing to rehire Plaintiff after he returned from active duty military service. In the first appeal, we affirmed the grant of Defendant’s Tenn. R. Civ. P. 12.02(6) motion to dismiss for lack of subject matter jurisdiction based upon sovereign immunity from USERRA claims, noting that only the Tennessee General Assembly could waive the state’s sovereign immunity. See Smith v. Tennessee Nat. Guard, 387 S.W.3d 570 (Tenn. Ct. App. 2012). Shortly after we issued that opinion, the Tennessee General Assembly enacted Tenn. Code Ann. § 29-20-208, which waives sovereign immunity for USERRA claims that accrue on or after July 1, 2014. Relying on the new statute, Plaintiff filed a Rule 60 motion seeking to have his original lawsuit reinstated. The trial court denied the motion, finding that Plaintiff’s claim was still barred by sovereign immunity because it accrued before July 1, 2014. We affirm.

Court of Appeals 05/29/15
Robert Boykin v. The George P. Morehead Living Trust
M2014-00575-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Thomas W. Brothers

Appellant tripped and fell on a concrete landing in a parking lot. At the time, Appellant was attempting to return to his vehicle, which was located in the parking lot of a separate retail establishment. Appellant suffered injuries from his fall and sued the parking lot owner for negligence. The parking lot owner moved for summary judgment. The trial court granted summary judgment in the owner’s favor, finding that the owner did not owe a duty to Appellant. We affirm.   

Davidson County Court of Appeals 05/29/15
In re Jamie G.
M2014-01310-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Sophia Brown Crawford

In this termination of parental rights case, Mother appeals the trial court’s findings of abandonment by willful failure to support and the persistence of conditions as grounds for termination. Mother also appeals the trial court’s conclusion that termination was in the child’s best interest. Pre-adoptive parents appeal the trial court’s decision declining to find the ground of willful failure to visit. We affirm the trial court’s findings of willful failure to support and persistent conditions. Further, albeit for different reasons, we affirm the trial court’s decision declining to terminate Mother’s parental rights on the ground of willful failure to visit. We also affirm the trial court’s finding that termination is in the child’s best interest, and therefore, affirm the termination of the Mother’s parental rights.

Davidson County Court of Appeals 05/29/15
Kline Preston v. W. Stanford Bralock, et al.
M2014-01739-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Senior Judge Don R. Ash

This is a malicious prosecution case. In the underlying case, plaintiff was sued by defendants for abuse of process. That case was resolved on summary judgment in favor of plaintiff. Thereafter, plaintiff filed this case for malicious prosecution. The trial court granted summary judgment in favor of the defendants. Plaintiff appealed. We affirm.  

Davidson County Court of Appeals 05/29/15
Spydell Davidson v. Nader Baydoun, et al.
M2014-01486-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Senior Judge Ben H. Cantrell

This is Plaintiff’s second appeal of the dismissal of his legal malpractice claim. The first appeal arose from the grant of a motion to dismiss under Tenn. R. Civ. P. 12.02(6) wherein the trial court concluded that Plaintiff’s cause of action accrued more than one year before the complaint was filed and was time barred. Based solely on a review of the allegations in the complaint, we concluded that the action was not time barred. See Davidson v. Baydoun, No. M2008-02746-COA-R3-CV, 2009 WL 2365563 (Tenn. Ct. App. July 31, 2009). On remand, the parties engaged in discovery, which revealed that Plaintiff knew he had been injured by Defendants’ alleged negligence more than one year before the commencement of this action. Defendants then filed a Tenn. R. Civ. P. 56.02 motion for summary judgment, which was properly supported by a statement of undisputed facts, contending they were entitled to judgment as a matter of law because Plaintiff’s claim was barred by the statute of limitations. The trial court summarily dismissed the complaint finding it was undisputed that Plaintiff knew he had suffered an injury because of Defendants’ alleged negligence more than one year before the commencement of this action. The trial court also granted Defendants’ motion for discretionary costs. On appeal, Plaintiff argues that the trial court erred by granting Defendants’ motion for summary judgment and by awarding Defendants discretionary costs. We affirm.

Davidson County Court of Appeals 05/29/15
Mark Stephen Keown v. Alyson Savino Keown
M2014-00915-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Robbie T. Beal

The parties were married for less than two years, and they had one child together who was three years old at the time of the divorce. Shortly after the child’s birth, Mother moved with the child to New York to be near her family. The trial court named Mother the primary residential parent, ordered Father to pay $697 a month in child support, awarded Father one weekend a month of visitation, and ordered Mother responsible for the transportation costs of the child to visit Father, including the cost of an additional ticket for a parent or guardian to fly with the three-year-old child. In dividing the parties’ property, the trial court found that a 2006 Range Rover, purchased by Father’s business before the marriage, was not marital property. Mother appeals the trial court’s ruling that she pay all transportation costs to facilitate Father’s parenting time, and the classification of the Range Rover. We have determined that the annual cost to Mother to transport the child to Tennessee to facilitate Father’s parenting time will likely exceed the annual award of child support until the child reaches the required age to fly alone, creating an injustice to Mother; moreover, Father only requested that Mother be responsible for half of the cost of transportation, not all costs. Concluding that the trial court abused its discretion, we modify the trial court’s judgment to require both parties to equally share the costs of transportation concerning Father’s parenting time. We affirm the trial court in all other respects. 

Williamson County Court of Appeals 05/29/15
In re Estate of Leonard Malugin
M2014-01535-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Michael Binkley

This is a will contest case.  The Decedent executed a will in 2006 and a codicil to the will in 2012.  The will specifically disinherited the Appellant, and the codicil removed one of the Decedent’s children as co-executor of the estate.  Appellant contested the will, arguing both that the Decedent lacked the testamentary capacity to execute either the will or the codicil and that the will was executed under undue influence.  The trial court found that the Decedent possessed the testamentary capacity necessary to execute both the will and the codicil and that the Decedent did not execute the will or codicil under undue influence.  On appeal, Appellant only challenges the trial court’s findings regarding the Decedent’s testamentary capacity.  Because the evidence does not preponderate against the trial court’s findings, we affirm.

Hickman County Court of Appeals 05/29/15
In re: Justin H.
M2013-02517-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Franklin L. Russell

This appeal involves a child support order entered after an international adoption. The trial court found that the child's adoptive mother failed to pay child support as previously ordered by the court, and therefore, the mother was adjudged in contempt. On appeal, the mother argues that the trial court lacked subject matter jurisdiction to enter the previous order requiring her to pay child support and also lacked jurisdiction to hold her in contempt of that order. Alternatively, she argues that she did not willfully violate the court's order. Finally, the mother argues that a separate injunction entered by the trial court is also void for lack of subject matter jurisdiction and/or procedural irregularities. We affirm.

Bedford County Court of Appeals 05/29/15
In re Wesley P.
W2014-02246-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor W. Michael Maloan

The trial court terminated the parental rights of both mother and father on the ground of severe abuse. Because there is sufficient evidence to conclude that mother and father were engaged in methamphetamine manufacture in their home, we affirm the finding of severe abuse. However, because no clear and convincing evidence exists in the record that termination is in the child's best interest, we reverse the termination of both mother's and father's parental rights.

Weakley County Court of Appeals 05/29/15