Court of Appeals Opinions

Format: 06/28/2016
Format: 06/28/2016
Mitchell L. Bowers v. Tennessee Department of Corrections, et al
M2015-01937-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amanda Jane McClendon

Plaintiff contends the trial court erred by dismissing this action for failure to prosecute. The trial court dismissed the action because the case had been pending for more than one year but no summons had been issued. We affirm.

Davidson County Court of Appeals 04/19/16
Elizabeth Mesmer Cocke v. Thomas Lawrence Hunt Cocke
M2015-01440-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Philip E. Smith

This is an appeal of an order granting a reduction in child support. Mother appeals the trial court’s finding that she is voluntarily underemployed and alleges that the trial court improperly modified the parties’ parenting plan sua sponte. We conclude that the trial court did not modify the parenting plan in this case and affirm the order of the trial court.

Davidson County Court of Appeals 04/19/16
Jana Hill v. Michael Gannon, et al.
M2015-00528-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jonathan L. Young

This is a wrongful termination case. Appellant appeals the trial court’s grant of summary judgment on her claims of intentional interference with at-will employment and civil conspiracy on the part of Appellees. Because Appellant has not averred facts sufficient to make out a claim for intentional interference with at-will employment, we affirm the trial court’s grant of summary judgment on that claim. In the absence of an underlying tort, we also affirm the trial court’s dismissal of Appellant’s claim for civil conspiracy. Affirmed and remanded.

Putnam County Court of Appeals 04/18/16
Lindsay Meghan Crutchfield v. State of Tennessee
M2015-01199-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Commissioner Robert N. Hibbett

A hearing-impaired student attending a state university was required to live in a dormitory on campus. The university installed a bed shaker and strobe light in the student’s room that would be triggered by the presence of smoke or by a doorbell installed outside the room. The student’s room also had a speaker above the door that was wired into the building’s fire alarm system that sounded an alarm if the dormitory’s fire alarm was activated. On a morning in September 2011, the speaker in the student’s room that was located above the door was activated in response to a false alarm in the dormitory. Believing the sound caused her to suffer further hearing loss, the student sued the State, arguing the State was negligent by subjecting her to the loud alarm. The case was tried by the Tennessee Claims Commission, which found the State liable for the student’s further hearing impairment. The State appealed, and we reverse, holding the student failed to prove proximate cause.

Court of Appeals 04/18/16
Kenneth R. Vaught v. Green Bankshares, Inc., et al.
E2015-01259-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

This appeal arises from an effort by a former bank employee to collect certain deferred compensation payments. Kenneth R. Vaught ("Vaught") filed a complaint against his former employer, Green Bankshares, Inc., and its wholly owned subsidiary, Greenbank ("Greenbank"), in the Chancery Court for Knox County ("the Trial Court"). Both sides agree Vaught is entitled to certain deferred compensation. The issue is the amount. According to Greenbank, Federal Deposit Insurance Corporation ("FDIC") and Troubled Asset Relief Program ("TARP") regulations prevent payment of the total amount requested by Vaught as it would constitute a prohibited "golden parachute." After a trial, the Trial Court found in favor of Vaught, awarding him the full amount. Greenbank appeals. On appeal, FDIC, amicus curiae, argues that the additional deferred compensation payment to Vaught constitutes a prohibited golden parachute. We hold that the Trial Court‘s judgment places Greenbank in the untenable position of having to either disobey the Trial Court‘s judgment or flout federal regulations and FDIC. We vacate the judgment of the Trial Court, remand this case to the Trial Court, and order a 60 day stay, during which time Vaught may pursue, should he elect to do so, other avenues of relief, including via the Administrative Procedure Act ("the APA") to challenge FDIC‘s determination.

Knox County Court of Appeals 04/18/16
Deborah C. Russell v. HSBC Mortgage Services, Inc., et al
M2015-00197-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Thomas W. Brothers

A homeowner alleges that a mortgage company promised her favorable terms to induce her to refinance her mortgage but the actual loan did not contain the terms discussed. She further alleges that company representatives led her to believe, after she received copies of some of the loan documents, that the discrepancy in the loan terms was a “mistake” that would be corrected. The homeowner filed this case against several entities, including the mortgage company. In the order at issue in this appeal, the trial court granted the defendants summary judgment on all of the homeowner’s causes of action and on their counterclaim. We have concluded that the trial court properly granted summary judgment on the claim for violation of the Truth in Lending Act. With regard to the homeowner’s claims for intentional and negligent misrepresentation, we find that there remain genuine issues of material fact and that the trial court therefore erred in granting summary judgment.     

Davidson County Court of Appeals 04/15/16
Richard Jeronimus v. Zoila Maria Jeronimus
M2014-02207-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Robbie T. Beal

Divorce proceeding in which Husband contends that the trial court erred in dividing the marital assets and debts, in setting parenting time, and determining that Wife is the economically disadvantaged spouse. Wife contends that the court erred in not ordering Husband to formulate and sign the letter of instruction transferring assets from his IRA account; in not awarding a higher amount in transitional alimony; in failing to designate a party to be responsible for processing the qualified domestic relation orders for two retirement accounts; and in granting the divorce based on Husband’s Amended Complaint for divorce. Wife asks this court to impose restrictions on Husband’s ability to initiate future litigation. Finding no error, we affirm the trial court.  

Williamson County Court of Appeals 04/15/16
Tennessee Department of Correction v. David Pressley
M2015-00902-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

Employee of the Tennessee Department of Correction filed an administrative appeal challenging the termination of his employment. The board of appeals reduced the termination to a fourteen-day suspension. On appeal to the trial court, the chancery court ruled that the burden of proof was improperly allocated to the Tennessee Department of Correction in the hearing before the board of appeals. We reverse the decision of the chancery court and conclude that the board of appeals properly allocated the burden to the Tennessee Department of Correction. We further conclude that no substantial and material evidence in the record exists to support the board of appeals’ finding that the employee committed negligence in the performance of his duties. We also reverse the board of appeals’ decision denying the employee’s request for attorney’s fees in the prosecution of his appeal to the board of appeals and remand to the board of appeals for a determination of those fees. 

Davidson County Court of Appeals 04/14/16
Covenant Health v. Tennessee Health Services And Development Agency, et al.
M2014-02538-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal arises out of the Tennessee Health Services and Development Agency’s decision to grant a certificate of need to a company to acquire and operate a linear accelerator; the decision was opposed by another company that operated a linear accelerator. After a contested case hearing, an administrative law judge issued an initial order holding that the certificate of need should not have been granted. On the applicant’s appeal, the agency reviewed the initial order and reversed it. The company which contested the application filed a petition for review in chancery court, where the Chancellor reversed the agency’s decision, finding that it was not based on substantial and material evidence. On appeal to this court, we conclude that substantial and material evidence existed to support the agency’s decision to issue the certificate of need. We therefore reverse the order of the chancery court and remand the case for entry of an order affirming the agency’s decision.  

Davidson County Court of Appeals 04/14/16
Dustin Scott Roberts v. William R. Ray
E2015-01522-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kristi M. Davis

This is a legal malpractice action in which the plaintiff alleged that the defendant attorney failed to conform to the applicable standard of care in drafting a prenuptial agreement. The trial court granted the defendant attorney's motion for summary judgment. The plaintiff appeals. We reverse and remand for further proceedings.

Knox County Court of Appeals 04/13/16
In Re: F.N.M.- Dissenting
M2015-00519-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor James G. Martin, III

I agree with the majority that the prospective adoptive parents, S.L.D. and B.W.D., failed to prove by clear and convincing evidence that W.C.G. (“Father”) acted with wanton disregard for the child’s welfare within the meaning of Tennessee Code Annotated § 36-1-102(1)(A)(iv) (2015).  I also agree with the majority’s interpretation of Tennessee Code Annotated § 36-1-113(g)(9)(A) (2015).  However, in my view, our Supreme Court has interpreted Tennessee Code Annotated § 36-1-113(g)(9)(A) differently, and therefore, I am constrained by that interpretation to respectfully dissent.          

Williamson County Court of Appeals 04/11/16
In Re: F.N.M.
M2015-00519-COA-R3-PT
Authoring Judge: Chief Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor James G. Martin, III

This is a termination of parental rights case. F.N.M. (the child) was born out of wedlock while her biological father, W.C.G. (father), was incarcerated. Shortly after the child’s birth, A.M.M. (mother) gave the child’s physical custody to individuals, who would later choose to be the prospective adoptive parents. Soon thereafter, mother surrendered her parental rights to the child. The prospective adoptive parents filed a petition for adoption and termination of father’s parental rights. Father opposed the adoption and filed a petition to establish paternity. After a hearing, the trial court found father to be the child’s biological parent; but it also found that there is clear and convincing evidence supporting termination of his parental rights. Furthermore, the court found, by clear and convincing evidence, that termination is in the child’s best interest. Father appeals. We modify the trial court’s judgment. As modified, the judgment terminating father’s rights is affirmed. 

Williamson County Court of Appeals 04/11/16
Damien C. Darden v. Tennessee Department of Correction
W2015-01595-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Tony Childress

This appeal involves an inmate's petition for writ of certiorari, in which he challenged a decision of the prison disciplinary board finding him guilty of drug possession. After reviewing the record of the disciplinary hearing, the trial court dismissed the inmate's petition. We affirm.

Lake County Court of Appeals 04/11/16
Felix Luis Torres, et al. v. Bridgestone/Firestone North American Tire, LLC., et al.
M2013-00660-COA-R9-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Thomas W. Brothers

Mexican car crash victims filed this lawsuit in Tennessee against the manufacturer of the subject vehicle and the manufacturer of its tires. The original lawsuit was dismissed by this Court in 2003 under the doctrine of forum non conveniens. A separate lawsuit was filed in Mexico but ultimately dismissed. The plaintiffs then filed this action in Tennessee. As the case progressed, the parties disputed whether Tennessee law or Mexican law applies to the substantive issues in this case. The trial court ruled that Mexican law applies. The plaintiffs were granted an interlocutory appeal to this Court pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. On appeal, the plaintiffs argue that Tennessee law should apply to the substantive issues in this case because it has the most significant relationship to the litigation. The defendants argue that the choice-of-law issue was resolved in our 2003 opinion and should not be reconsidered due to the doctrine of collateral estoppel. Alternatively, they argue that Mexico has the most significant relationship to the litigation, and therefore, its law should apply. For the following reasons, we conclude that this Court’s determination in our 2003 decision regarding the applicable choice-of-law is entitled to preclusive effect. Accordingly, as we concluded in 2003, Mexican law will govern the substantive issues in this case. The trial court’s order is affirmed as modified and remanded for further proceedings.      

Davidson County Court of Appeals 04/07/16
In re Dayton R., et al.
W2015-01848-COA-R3-JV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Larry J. Logan

Appellants petitioned for grandparent visitation pursuant to Tennessee Code Annotated Section 36-6-306. After a trial, Appellants were awarded visitation consisting of one weekday per month, the entire day of December 26, and four hours on each of the two children's birthdays. Appellants appeal from the trial court's order, arguing that the trial court abused its discretion by not awarding them more visitation. Discerning no error, we affirm.

Henderson County Court of Appeals 04/07/16
Elvis Bogle Ex Rel. Minnie Lucille Bogle v. Nighthawk Radiology Services, LLC et al.
M2014-01933-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Plaintiff appeals from a defense verdict in a medical malpractice action. Plaintiff alleged that the one of the defendants, a general radiologist, deviated from the standard of care by failing to diagnose and report that a pacemaker lead had perforated the decedent’s heart. The dispositive issue in this appeal is whether the trial court erred by denying Plaintiff’s motion to strike the testimony of the defendants’ expert witness who testified that the defendant radiologist complied with the standard of care. Plaintiff insists that the expert did not know the applicable standard of care; therefore, his testimony should have been stricken. The defendants insist the expert witness was qualified to provide standard of care opinions for a general radiologist and that the trial court correctly instructed the jury to weigh his testimony along with that of other expert witnesses who testified. Finding no error with the trial court denying Plaintiff’s motion to strike, we affirm.

Davidson County Court of Appeals 04/06/16
The Metropolitan Government of Nashville And Davidson County v. Owners of Property With Delinquent Demolition Liens Filed With The Register of Deed's Office In Davidson County, Tennessee, et al - Dissenting
M2015-00318-COA-R3-CV
Authoring Judge: W. Neal McBrayer
Trial Court Judge: Chancellor Carol L. McCoy

Because I conclude that Tennessee Code Annotated § 13-21-103(6) (2011) does not permit assessments of costs or actions for costs against a mortgagee, I respectfully dissent from the reversal. Relying on the definition of the word “owner” found in the Slum Clearance and Redevelopment Act (the “Act”), see Tenn. Code Ann. § 13-21-101(4) (2011), the majority concludes that a mortgagee may be assessed the cost of removal or demolition of a structure unfit for human occupation or use. As required when called on to construe a statute, the majority begins by looking to the words of the Act. See Waldschmidt v. Reassure Am. Life Ins. Co., 271 S.W.3d 173, 176 (Tenn. 2008). In my view, however, the majority then fails “to construe the[] words in the context in which they appear in the statute and in light of the statute’s general purpose.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010).

Davidson County Court of Appeals 04/06/16
The Metropolitan Government of Nashville And Davidson County v. Owners of Property With Delinquent Demolition Liens Filed With The Register of Deed's Office In Davidson County, Tennessee, et al
M2015-00318-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Carol L. McCoy

This appeal arises from a dispute over the meaning of the term “owner” as it relates to Tenn. Code Ann. § 13-21-103, part of the Slum Clearance and Redevelopment Act (“the Act”). The Metropolitan Government of Nashville and Davidson County (“Metro”) sued various defendants in the Chancery Court for Davidson County (“the Trial Court”) to recover costs associated with the demolition of certain property in Nashville. Regions Bank (“Regions”), the mortgagee of record and a defendant in the case, argues that while it is an owner under other sections of Tenn. Code Ann. § 13-21-103, it is not an owner under the statute as relates to demolition costs and thus is not liable for Metro’s demolition costs. The Trial Court granted Regions’ motion for judgment on the pleadings, thereby dismissing Metro’s lawsuit. Metro appeals to this Court. We hold that under Tenn. Code Ann. § 13-21-101, “owner” is defined explicitly to include mortgagees of record, that the language is unambiguous, and that the Trial Court erred in dismissing Metro’s lawsuit. We reverse the judgment of the Trial Court and remand this case to the Trial Court for further proceedings consistent with this Opinion.

Davidson County Court of Appeals 04/06/16
Randall Charles Harrell v. Chassity Necole Harrell
M2014-02363-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge John Thomas Gwin

This appeal concerns a post-divorce modification of child custody. Randall Charles Harrell (“Father”) filed a petition against his ex-wife Chassity Necole Harrell (“Mother”) in the General Sessions Court for Wilson County (“the Trial Court”) to modify the permanent parenting plan concerning the parties’ two minor children. Father sought to be designated primary residential parent based, in part, upon Mother’s alleged drug abuse and instability. After a hearing, the Trial Court found a material change in circumstances, designated Father the primary residential parent, and entered a new parenting plan accordingly. Mother appeals to this Court, arguing, among other things, that the Trial Court erred in finding a material change of circumstances and in considering the unsworn testimony of the children. Finding no reversible error, we affirm the judgment of the Trial Court in its entirety.

Wilson County Court of Appeals 04/04/16
Sherrie L. Durham v. Bill Haslam, et al
M2014-02404-COA-R3-CV
Authoring Judge: Special Judge Patricia J. Cottrell
Trial Court Judge: Judge Walter C. Kurtz

Plaintiff filed a complaint against the Governor, all state appellate court judges, the Tennessee Republican Party, and the Tennessee Democratic Party in which she alleges, inter alia, that the Tennessee Plan and statutes providing for the appointment of special and senior judges violate her state and federal constitutional rights. The defendants filed motions to dismiss, arguing that Plaintiff lacked standing and failed to state a claim for which relief can be granted. The trial court granted the motions to dismiss, and Plaintiff appeals. We affirm the trial court’s judgment dismissing Plaintiff’s complaint.  

Davidson County Court of Appeals 04/01/16
SecurAmerica Business Credit v. Southland Transportation Co., LLC, et al.
W2015-00391-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donna M. Fields

This is the third appeal involving liability on personal guaranties securing the debt of a transportation company. On remand after our second opinion, the trial court found that the transportation company and the lender, through the actions of its president, entered into a conspiracy to violate the Tennessee Consumer Protection Act (“TCPA”) and violated the duty of good faith and fair dealing, thereby relieving the guarantors of their liability under the continuing guaranties. Specifically, the trial court found that the guarantors were “consumers” under the TCPA, that the guarantors suffered an ascertainable loss due to the transportation company's deceptive acts, and that a violation of the TCPA can be a predicate tort for a civil conspiracy claim. Now, we reverse the trial court's finding that the transportation company's acts affected trade or commerce within the meaning of the TCPA. Accordingly, we also reverse the trial court's determination that the guarantors should be released from their guaranties.

Shelby County Court of Appeals 04/01/16
Linda Beard v. James William Branson, et al.
M2014-01770-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robert E. Burch

The dispositive issue in this wrongful death action is whether the pro se complaint filed by the decedent’s surviving spouse tolled the statute of limitations. The defendants, a hospital and a physician, filed a motion for summary judgment, arguing that the complaint was a nullity because the surviving spouse was asserting claims in a representative capacity and the complaint was not signed by a licensed attorney. It is undisputed that the decedent was survived by three heirs, the surviving spouse and two children of the decedent. The trial court denied the motion concluding that, although the pro se complaint could not assert the claims of the children, the surviving spouse could properly assert his own claims. The trial court also held that the initial complaint was sufficient to toll the statute of limitations and the claims of the children were not time barred because a licensed attorney signed and filed an amended complaint that related back to the original filing pursuant to Tenn. R. Civ. P. 15. Following a jury trial, the defendants were found liable and damages were awarded. The hospital appealed. We conclude the claims asserted by the surviving spouse were brought in a representative capacity on behalf of the decedent and were not his individual claims. Filing a complaint on behalf of another constitutes the practice of law and “[p]roceedings in a suit by a person not entitled to practice law are a nullity.” Bivins v. Hosp. Corp. of Am., 910 S.W.2d 441, 447 (Tenn. Ct. App. 1995). Because the complaint filed by the surviving spouse was a nullity, it did not toll the statute of limitations and no other complaint was filed within the statute of limitations. Therefore, the trial court erred in denying the hospital’s motion for summary judgment based on the statute of limitations defense. Accordingly, we reverse and remand with instructions to dismiss all claims and vacate all judgments against the hospital. 

Houston County Court of Appeals 03/31/16
Edgar Michael Galaway v. Patrice Jolene Galaway
M2015-00670-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Phillip R. Robinson

In this post-divorce appeal, Father asserts the trial court erred in failing to find a material change of circumstance had occurred such that he should be designated the child’s primary residential parent. Father also asserts the trial court erred in awarding Mother her attorney’s fees. We affirm the trial court in all respects.   

Davidson County Court of Appeals 03/31/16
In re Joseph F., et. al.
E2015-00733-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John D. McAfee


This is a termination of parental rights case, focusing on the four minor children—Joseph F., Johnathon S., Sarah S., and Larry S. (“the Children”)—of the respondent mother, Elizabeth F. (“Mother”). In January 2011, Mother voluntarily placed all four Children in the custody of Ernest S., the biological father of the younger three children. Ernest S. passed away on June 27, 2011, while Mother was living in Oregon. Upon motion of Ernest S.'s minister and family friend, Betty Shirley, the Grainger County Juvenile Court granted temporary custody of the Children to Ms. Shirley on June 28, 2011. Ms. Shirley gave physical custody of the Children to the petitioners on July 8, 2011. The petitioners filed a petition to terminate the parental rights of Mother and to adopt the Children on that same day. Following a bench trial, the trial court found that statutory grounds existed to terminate the parental rights of Mother upon its finding by clear and convincing evidence that Mother (1) had abandoned the Children by willfully failing to provide financial support, (2) was guilty of severe abuse, and (3) was mentally incompetent to care for the Children. The court further found by clear and convincing evidence that termination of Mother's parental rights was in the Children's best interest. Mother has appealed. We affirm the trial court's judgment terminating Mother's parental rights in all respects.

Grainger County Court of Appeals 03/31/16
Eastman Credit Union v. Thomas A. Bennett
E2015-01339-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jean A. Stanley


This appeal involves the foreclosure sale of improved real property located in Erwin, Tennessee. The plaintiff lender filed a complaint seeking a foreclosure deficiency award in the amount of $53,489.59, plus interest and reasonable attorney's fees, pursuant to the promissory note. The defendant debtor asserted as an affirmative defense that the lender had purchased the property during a foreclosure sale for a sum materially less than the fair market value. Following a bench trial, the trial court found that the fair market value of the property was $158,900.00, an amount the lender had purportedly been offered by an employment relocation company prior to the foreclosure sale. The lender had purchased the home at foreclosure for $95,000.00. Finding the foreclosure sale price to be materially less than the fair market value, the trial court ruled that the debtor had successfully overcome the statutory presumption, pursuant to Tennessee Code Annotated § 35-5-118, that a foreclosure sale price is equal to fair market value. The court entered a deficiency judgment in favor of the lender in the amount of $9,659.62. The lender appeals. Discerning no reversible error concerning the award, we affirm. However, having determined that the promissory note provided for reasonable attorney's fees to the lender in the event of default, we remand for an evidentiary hearing on the amount of reasonable attorney's fees to be awarded for work performed during trial.

Unicoi County Court of Appeals 03/31/16