Court of Appeals Opinions

Format: 08/28/2014
Format: 08/28/2014
Nashville Metro Government v. New Orleans Manor, Inc., et al.
M2013-00706-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Claudia Bonnyman

Metropolitan Government filed suit for recovery of delinquent real property taxes on property leased by the Metropolitan Nashville Airport Authority. Taxpayers filed a motion to dismiss the proceeding, asserting that its obligation to pay taxes arose from its lease obligation and was extinguished when the Airport Authority released taxpayers from all obligations under the lease. Metropolitan Government moved for summary judgment on the ground, inter alia, that the taxpayers did not have standing to challenge the taxes because they had failed to pay the tax under protest as required by Tenn. Code Ann. § 67–1-901; the trial court granted the motion. We affirm the judgment.

Davidson County Court of Appeals 07/16/14
Michael O'Neil v. Clinically Home, LLC
M2013-01789-COA-R3-CV
Authoring Judge: Special Judge Laurence M. Mcmillan, Jr.
Trial Court Judge: Chancellor Ellen Hobbs Lyle

The Chief Executive Officer of a Company and the Company executed an Employment Agreement that covered, among other issues, consequences of termination with or without cause, either by the Officer or by the Company. A year or so later, the Officer called a meeting and issued an ultimatum to the board of directors threatening to resign if certain changes were not made. The Company later wrote a letter to the Officer accepting his resignation without “Good Reason” as defined in the Employment Agreement. The Officer asserted the Company terminated him “without cause” and that he did not resign. The Company responded that it did not terminate the Officer,but simply accepted his resignation. The Officer filed a complaint seeking severance pay and other benefits he claimed he was entitled to pursuant to the Employment Agreement.  The trial court agreed with the Officer and granted his motion for summary judgment.  The Company appealed, and we affirm the trial court’s judgment.

Davidson County Court of Appeals 07/16/14
In Re: The Adoption of Male Child A.F.C. By: C.M.C. and D.F.C., and J.L.B.
M2013-00583-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Robert E. Corlew, III

Parents of a child born of a surrogate mother with an anonymously donated egg and the father’s sperm and Tennessee Department of Health appeal order entered in consolidated parentage and adoption proceedings which required the live birth certificate issued for the child to list the mother as “unknown.” Having determined that the definition of “mother” for the purpose of completing the birth certificate is the same as that used in preparing the standard birth certificate promulgated bythe National Center for Health Statistics,we reverse the trial court’s decision and hold that the gestational carrier should be listed as the mother.

Rutherford County Court of Appeals 07/16/14
Scott Ostendorf, Et Al. v. R. Stephen Fox, et al.
E2013-01978-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Andrew R. Tillman

Scott Ostendorf, et al. (“Plaintiffs”) sued R. Stephen Fox, Mark S. 1 Dessauer (“Attorney Dessauer”), and Hunter, Smith & Davis, LLP (“the Firm”) with regard to a transaction involving the sale of substantially all of the assets of Mothwing Camo Technologies, Inc. The defendants filed motions to dismiss. After a hearing, the Chancery Court for Scott County (“the Trial Court”) granted the motions to dismiss. Plaintiffs appeal to this Court. We find no error in the Trial Court’s finding and holding that Plaintiffs’ claims against Attorney Dessauer and the Firm are barred by the statute of limitations. We, however, find error in the sua sponte dismissal of Plaintiffs’ claims against Mr. Fox for improper venue. We affirm the dismissal of the claims against Attorney Dessauer and the Firm, vacate the dismissal of Plaintiffs’ claims against Mr. Fox, and remand this case for further proceedings.

Scott County Court of Appeals 07/16/14
Tracy W. Hamilton v. Pemberton Truck Lines, Inc., et al.
E2013-01329-WC-R3-WC
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Larry H. Puckett

The employee sustained a work-related injury to his cervical spine. The trial court found permanent and total disability as a result of the injury. The employer has appealed, contending that the evidence preponderates against the trial court’s finding. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.

Monroe County Court of Appeals 07/16/14
In Re: Conservatorship of Robert E. L. Hathaway, Ward
W2013-01474-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert Benham

This is a conservatorship proceeding. The ward’s wife filed a petition to appoint a conservator in which she asked to be appointed as conservator for the ward. After a trial, the trial court held that the ward was disabled and in need of a conservator but appointed a public conservator instead of the wife. The trial court also set aside a transfer of real property, purportedly made by the ward prior to the filing of the conservatorship action. The wife now appeals, arguing that the trial court erred in setting aside the transfer of real property and in rejecting her request to be appointed conservator. Discerning no error, we affirm.

Shelby County Court of Appeals 07/16/14
Markeesha L. Rucker v. Frederick E. Harris
M2013-01240-COA-R3-JV
Authoring Judge: Special Judge Larry B. Stanley, Jr.
Trial Court Judge: Judge Walter C. Kurtz

The trial court fashioned a parenting plan that designated the mother of five year old twins as their primary residential parent and gave the father 91 days of visitation each year. The father argues on appeal that the trial court should have divided parenting time equally between the parties, or, in the alternative, simply granted him additional parenting time. He relies on language in the child custody statute,Tenn.Code Ann.§ 36-6-106(a),which directs the court to “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child . . .” For her part, the mother argues that the parenting plan adopted by the trial court is in the best interest of the children. We affirm, but we remand this case to the trial court for correction of a clerical error.

Davidson County Court of Appeals 07/15/14
Tennessee Farmers Mutual Insurance Company v. Judy Pauline Simmons, et al.
E2013-01419-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Thomas J. Seeley, Jr.

This case presents an issue regarding the proper interpretation of a policy of insurance. The insurance company filed a declaratory judgment action against the defendants, seeking a determination from the trial court regarding whether the insurance policy afforded coverage for an accident involving a four-wheeler vehicle owned by one of the defendants. The accident resulted in the death of a minor, Ryan Casey. The child’s father intervened in the declaratory judgment action. Following a hearing, the trial court concluded that the policy did not provide coverage. The intervenor has appealed. Discerning no error, we affirm.

Unicoi County Court of Appeals 07/15/14
Robert Walker and Susan Elder v. Charles Smith v. Clifford Byrne and Wife, Carol Byrne
M2013-01816-COA-R3-CV
Authoring Judge: Judge Holly M. KIrby
Trial Court Judge: Chancellor Jeffrey F. Steward

This appeal involves private condemnation of an easement. The plaintiffs and the defendant both owned property on an island in the Tennessee River. There was a causeway or land bridge across the river, connecting the island to the mainland. The trial court rejected the defendant’s claim for private condemnation of an easement on the plaintiffs’ property to enable the defendant to access the causeway.  It also enjoined the defendant from using the causeway or from entering onto the plaintiffs’ property to get to the causeway. The defendant appeals. We hold that the causeway is accessible by the public and so vacate the injunction. We reverse the trial court’s decision on the defendant’s private condemnation claim and hold that the defendant is entitled to condemnation of an appropriate easement under the facts of this case.

Marion County Court of Appeals 07/11/14
Myrtle Robinson, et al. v. Baptist Memorial Hospital, et al.
W2013-01198-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Gina C. HIggins

This is a medical negligence/wrongful death case. Following their mother’s death, Appellants’ filed the instant lawsuit against several doctors who provided treatment to their mother. During discovery, Appellants allegedly learned that the Appellee physician had amended his original consultation report to correct a mis-diagnosis of the Decedent’s condition. Appellants were granted leave to amend their complaint to add the Appellee and his medical practice as defendants to the lawsuit. The amended complaint naming the Appellees was filed some five years after the filing of the original lawsuit. Appellees moved for summary judgment on the ground that the statutes of limitations and repose barred Appellants’ case. The trial court granted summary judgment, finding that the Appellants had not shown facts sufficient to establish fraudulent concealment on the part of the Appellee physician so as to toll the applicable one-year statute of limitations and three-year statute of repose under Tennessee Code Annotated Section 29-26-116. The trial court also found that Appellants had failed to exercise due diligence in discovering the alleged fraudulent concealment. Appellants appeal. For the reasons stated herein, we affirm and remand.

Shelby County Court of Appeals 07/11/14
Connie Hayes v. State of Tennessee
M2013-01811-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Claudia C. Bonnyman

This appeal involves the termination of a State employee.  The employee was late for work on numerous occasions prior to and throughout 2010. She sustained an at-work injury in October 2010. On January 15, 2011, she was tardy for work and a termination proceeding was commenced shortly thereafter. Prior to her receipt of the letter recommending termination, the employee tendered a request for FMLA leave, which leave was approved after termination was recommended, but before termination was confirmed. The Civil Service Commission affirmed the employee’s termination. The Chancery Court affirmed the employee’s termination and it dismissed her interference with FMLA claim. We affirm.

Davidson County Court of Appeals 07/10/14
Timothy Davis, as surviving spouse and next of kin of Katherine Michelle Davis v. Michael Ibach, M.D., and Martinson Ansah, M.D.
W2013-02514-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge William B. Acree

This is a medical malpractice wrongful death action. After the plaintiff filed this lawsuit, he timely filed a certificate of good faith, as required by the medical malpractice statute. The certificate did not include a statement that the executing party had “zero” violations of the statute. The defendants filed a motion to dismiss based on this omission. The plaintiff in turn filed a notice of voluntary nonsuit without prejudice. The defendants objected to a dismissal without prejudice. The defendants argued that, if the certificate of good faith does not strictly comply with the statutes, the trial court must dismiss the case with prejudice. The trial court granted the voluntary nonsuit without prejudice, and the defendants now appeal that decision. DIscerning no error, we affirm.

Dyer County Court of Appeals 07/09/14
Patricia Mulhaire-Breeden v. Nashville Midnight Oil, LLC et al.
M2014-00480-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Carol Soloman

This is an appeal from an order setting aside a default judgment. Because the order appealed does not resolve all the claims between the parties, we dismiss the appeal for lack of a final judgment.

Davidson County Court of Appeals 07/08/14