Court of Appeals Opinions

Format: 05/31/2016
Format: 05/31/2016
John Jason Davis v. Johnstone Group, Inc. v. Appraisal Services Group, Inc.
W2015-01884-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor James F. Butler

Appellant appeals the trial cour's grant of Appelle's complaint for declaratory judgment and the trial court's denial of Appellant's counter-complaint for injunctive relief. After Appellee filed notice with Appellant of his intent to leave Appellant's employ and join a competing appraisal firm, Appellant sought to enforce the non-competition provision of the parties' agreement. Appellee then filed for a declaratory judgment that the non-competition provision was unenforceable. The trial court determined that there were no special facts present over and above ordinary competition or any legitimate protectable business interests to warrant enforcement of the non-competition agreement. Appellant appeals. Discerning no error, we affirm and remand.

Madison County Court of Appeals 03/09/16
David Bryan Hawk v. Crystal Goan Hawk
E2015-01333-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor E.G. Moody

This post-divorce appeal concerns the mother’s petition to modify the residential schedule in an agreed parenting plan. Following a hearing, the trial court found that a material change in circumstances had occurred that necessitated a change in the plan. The court modified the plan by order and further required the parties to attend parenting classes and mediation before seeking further relief from the court. The mother appeals. We affirm the court’s modification of the plan. We reverse the requirement imposed upon the parties to attend parenting classes before seeking further relief from the court. We remand for entry of a permanent parenting plan and child support worksheet.

Greene County Court of Appeals 03/09/16
Kathryn E. Mitchell et al v. Charles Wesley Morris et al. - Concurring
E2015-01353-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jean A. Stanley

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 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.

Washington County Court of Appeals 03/09/16
Kathryn E. Mitchell Et Al. v. Charles Wesley Morris Et Al.
E2015-01353-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jean A. Stanley

This action concerns the decedent’s purchase of several investment products from the defendants. Following the decedent’s death, his daughter filed suit, alleging violations of the Tennessee Consumer Protection Act, codified at 47-18-101, et. seq., breach of contract, promissory fraud, negligent misrepresentation, and breach of fiduciary duty. The defendants sought summary judgment. The court granted summary judgment, finding that the Tennessee Consumer Protection Act claims were untimely and that the evidence was insufficient to establish the other claims without consideration of parol evidence and inadmissible hearsay testimony. The daughter appeals. We affirm.

Washington County Court of Appeals 03/09/16
In re Landon T.G. et al.
E2015-01281-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Douglas T. Jenkins

This appeal concerns a mother’s petition to set aside an order terminating her parental rights and permitting the adoption of her minor children. The mother alleged that the order is void for lack of personal jurisdiction because service of process was ineffective. The trial court denied the petition. The mother appeals. We hold that the order is void for lack of personal jurisdiction. We reverse the judgment of the trial court and remand this case for further hearing to determine whether exceptional circumstances justify the denial of relief in accordance with Turner v. Turner, 473 S.W.3d 257 (Tenn. 2015).

Hamblen County Court of Appeals 03/09/16
Circle C. Construction, LLC v. D. Sean Nilsen, et al. - Concurring in Part and Dissenting in Part
M2013-02330-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

I must respectfully dissent from the majority’s conclusion in this case that the lawsuit refiled by Plaintiff Circle C Construction is timely under the savings statute, Tennessee Code Annotated § 28-1-105(a).

Davidson County Court of Appeals 03/07/16
John Hamer v. Southeast Resource Group, Inc., et al.
M2015-00643-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor James G. Martin, III

Plaintiff, a member of a Limited Liability Company that sells insurance products to credit union members, filed this declaratory judgment action seeking a determination that the LLC’s operating agreement does not require him to make a “telemedicine counseling” business opportunity available to the LLC. The operating agreement requires members to “disclose and make available to [the LLC] each and every business opportunity that is within the scope and purpose of [the LLC] . . . .” However, “no such disclosure or offer shall be required with respect to business opportunities that are not within the scope and purpose of [the LLC].” The trial court granted Plaintiff summary judgment, finding that the undisputed facts demonstrated that the “scope” of the LLC’s business was selling insurance and that the telemedicine opportunity was not an insurance product. We have determined that the parties intended “scope” to have its ordinary meaning and that the undisputed facts show that the scope of the LLC’s business at the relevant time was the sale of insurance products and the telemedicine counseling business opportunity is not an insurance product. Consequently, we affirm.

Williamson County Court of Appeals 03/03/16
Brett R. Carter v. Larry B. Martin, et al
M2015-00666-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Carol L. McCoy

Plaintiff filed a public records request for tax study documents. The request was denied, and Plaintiff filed a lawsuit for access to the records. The trial court denied access to the records, and Plaintiff appealed. This Court has determined that the plain language of Tenn. Code Ann. § 67-1-1701(6)’s definition of “tax administration” encompasses the documents in question and that Tenn. Code Ann. § 67-1-1702(a) makes “tax administration information” confidential. The trial court is affirmed.
 

Davidson County Court of Appeals 03/03/16
Andrea Kay Honeycutt Ex Rel. Minor Child, Alexander H. v. Jonathan Honeycutt
M2015-00645-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This case is an appeal from the grant of an order of protection under Tennessee Code Annotated § 36-3-605. While a divorce proceeding was pending in another court, wife filed a petition for an order of protection from her husband, alleging domestic abuse. The wife obtained ex parte relief, and after a hearing, the trial court granted an order of protection for forty-five days. Husband appealed, arguing the preponderance of the evidence did not support the grant of an order of protection. Because the order has expired by its own terms, we conclude this appeal is moot. We dismiss this appeal and grant wife her attorneys’ fees incurred on appeal.

Davidson County Court of Appeals 03/02/16
Shemeka Ibrahim v. Mark Williams, et al.
M2015-01091-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Thomas W. Brothers

Plaintiff filed a health care liability action against multiple healthcare providers but did not comply with the statutes governing healthcare liability actions. Defendants filed motions to dismiss and for summary judgment. The trial court granted the motions. Plaintiff appeals, and finding no error, we affirm.

Davidson County Court of Appeals 02/29/16
William L. Jenkins v. Tennessee Department of Corrections, et al.
M2014-02210-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Robert L. Jones

Certiorari proceeding in which an inmate seeks review of a disciplinary proceeding finding him guilty of assault on another inmate. Petitioner asserts that the disciplinary board violated various Tennessee Department of Correction regulations in the conduct of the hearing and that the trial court erred in dismissing the petition. Finding no error, we affirm the decision of the trial court.

Wayne County Court of Appeals 02/29/16
Richard W. Gibbs, et al v. Clint Gilleland, et al.
M2015-00911-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Senior Judge Ben H. Cantrell

Buyers of unimproved real property seek rescission of a Lot/Land Purchase and Sale Agreement on the ground of mutual mistake. Buyers purchased the property for the purpose of constructing a house. It is undisputed that at the time of contracting, Buyers and Sellers believed the property was suitable for that purpose. One week after obtaining the necessary building permits and commencement of construction, Buyers were informed by the county that the property was substantially below the required Base Flood Elevation (“BFE”) and that construction must cease immediately. Buyers halted construction and hired a professional engineer to address the issue. Based on unique drainage and flooding concerns, the engineer concluded that the property was not suitable for construction of a residential building and it had not been suitable for such purpose since the land was subdivided in 1999. After Buyers sued for rescission of the contract, both parties filed motions for summary judgment. The trial court found that when the contract was entered into the property was suitable for construction of a house and it only became unsuitable due to the subsequent action of the county in setting the BFE. Therefore, the court concluded there was no mutual mistake of fact. Based on this finding the court granted Sellers’s motion for summary judgment and summarily dismissed the complaint. Buyers appeal. We conclude that, at the time of contracting, the parties were operating under a mutual mistake as to a contemporaneously verifiable fact; nevertheless, the contract assigned the risk of mistake to Buyers. Therefore, rescission on the ground of mutual mistake is not available. Accordingly, we affirm.

Rutherford County Court of Appeals 02/29/16
Cathy Turnbo Franks v. Ronald Franks
W2015-01525-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge James Y. Ross

This is the second appeal of this case involving various financial issues relative to a divorce. Husband appeals the trial court‘s determination of several factual findings relative to alimony, including Wife‘s ability to secure employment, Husband‘s ability to earn in the future, the award of attorney‘s fees to wife, and the value of several marital assets divided in the property division, including the value of an LLC jointly owned by the parties. We now vacate the order of the trial court and remand for further proceedings.

Hardin County Court of Appeals 02/29/16
Justin R. Rogers v. Blount Memorial Hospital, Inc. et al. - Concurring
E2015-00136-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge David R. Duggan

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 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.

Blount County Court of Appeals 02/29/16
Justin R. Rogers v. Blount Memorial Hospital, Inc. et al.
E2015-00136-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge David R. Duggan

This appeal involves a health care liability action filed by the plaintiff against Blount Memorial Hospital, Inc. (“BMHI”) and the doctor who treated the plaintiff at BMHI from September 8, 2012, to September 13, 2012. The plaintiff filed his complaint on December 13, 2013, alleging that the defendant doctor had misdiagnosed his illness, causing a delay in treatment and resultant permanent injuries. Both defendants filed motions to dismiss, which were converted into motions for summary judgment with the filing of additional affidavits. The trial court granted summary judgment in favor of BMHI based on, inter alia, the applicable statute of limitations and BMHI's immunity as a governmental entity.

Blount County Court of Appeals 02/29/16
S. Carmack Garvin, Jr., et al v. Joy Malone
M2015-00856-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge James G. Martin, III

Plaintiffs and Defendant were involved in a motor vehicle accident. Plaintiffs allege Defendant was negligent in causing her van to run into the rear of their car and that as a result of Defendant’s negligence, Plaintiffs suffered damages. During trial, Defendant introduced photographs of the vehicles taken immediately after the collision, which the trial court permitted, over Plaintiffs’ objection, for the purpose of impeaching Plaintiffs’ testimony. The evidence was heard by a jury, which determined Defendant was not at fault. Plaintiffs filed a motion for a new trial, which the trial court denied. On appeal, Plaintiffs argue the trial court erred by allowing the jury to consider Defendant’s photographic evidence for purposes of impeachment. We conclude the trial court did not err and affirm its judgment.

Williamson County Court of Appeals 02/26/16
James Burton v. Faye Barna
M2015-00132-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Elizabeth C. Asbury

Due to the inadequacies of appellant’s brief and appellant’s failure to provide a transcript or statement of the evidence, we conclude that he has waived consideration of this appeal, and we affirm the judgment of the chancery court.

Fentress County Court of Appeals 02/26/16
Stephanie Nichole Lee v. Christopher Cornell Eskridge
E2014-02555-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Gregory S. McMillan

The trial court, upon finding that Christopher Cornell Eskridge (Respondent) repeatedly violated orders of protection issued to protect Stephanie Nicole Lee (Petitioner), sentenced him to ten days in jail and required him to post a $2,500 bond in accordance with Tenn. Code Ann. § 36-3-610(b)(2) (2014). On appeal, Respondent challenges the constitutionality of this statute. None of the issues raised on appeal, including the constitutional issue presented by Respondent, were raised with the trial court. Furthermore, Respondent did not timely notify the Attorney General of his constitutional challenge, as required by Tenn. Code Ann. § 29-14-107(b) (2000) and Tenn. R. Civ. P. 24.04. We hold that Respondent waived these issues. Accordingly, we affirm the judgment of the trial court.

Knox County Court of Appeals 02/26/16
Daniel W. Mithcell v. Tricia Lurlene Hall
E2014-01919-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Richard R. Vance

This appeal arises from a dispute over modification of child support. Daniel W. Mitchell (“Petitioner”) filed a petition against his ex-wife Tricia Lurlene Hall (“Respondent”) in the Circuit Court for Sevier County (“the Trial Court”) seeking a modification of his child support obligation given the parties’ second oldest child turning 18. The matter was referred to a Special Master. The Trial Court designated the date of the final hearing, March 31, 2014, as the effective date for the modification of child support rather than the date when the child at issue reached age 18, and ordered Petitioner to pay an arrearage accordingly.

Sevier County Court of Appeals 02/26/16
Barry Michael Spencer, II v. Christina Marie Spencer
M2014-01601-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

In this appeal, a mother challenges the trial court’s award of equal parenting time to the child’s father. The mother contends she should be awarded more parenting time because, among other things, she was the child’s primary caregiver during the parties’ marriage. We have reviewed the record and find that the trial court did not abuse its discretion in naming mother the primary residential parent and awarding equal parenting time to the parties.

Montgomery County Court of Appeals 02/25/16
In re Estate of Glenda Joyce Panter Hillis
M2015-00404-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Larry B. Stanley

The surviving husband of the decedent challenges the validity of their 1992 antenuptial agreement and a 2010 quitclaim deed from the decedent to her son. The decedent, Glenda Joyce Panter Hillis, presented her husband with an antenupital agreement on the day before their wedding. The agreement stated that each party waived “all claims of inheritance, descent and distribution in and to the parties [sic] private and real property . . . which in any way or manner arise or accrue by virtue of said marriage . . . .” However, it did not include any financial or asset disclosures. The husband signed the agreement, and the parties married on December 30, 1992. In March of 2010, Mrs. Hillis executed a will that left her husband a car and a life estate in her real property, including some of the personal property in the marital residence, with the residue of her estate going to her son. Three months later, she executed a quitclaim deed pursuant to which she transferred a life estate in all of her real property to herself and her husband, with the remainder to her son. Mrs. Hillis died in 2012, following which her will was admitted to probate. Soon thereafter, her husband filed a petition for an elective share and a separate civil action in which he sought to invalidate the 2010 quitclaim deed as a fraudulent conveyance. The executor and Mrs. Hillis’s son opposed both petitions. The son demanded a jury trial regarding the validity of the antenuptial agreement, but the trial court concluded there was no way to separate the legal and factual issues without confusing a jury and consolidated both cases for trial. Following a bench trial, the court concluded that the antenuptial agreement was invalid because it did not include the required disclosures about Mrs. Hillis’s assets and because it contained contradictory provisions. As for the 2010 quitclaim deed, the court ruled that the conveyance was not fraudulent and refused to set the deed aside. All parties appeal. The son contends the court erred in denying him a jury trial. The son also contends the court erred by invalidating the antenuptial agreement. The husband contends the trial court erred by denying his petition to invalidate the 2010 quitclaim deed. We find no reversible error with the decision to deny the son’s request for a jury trial. We affirm the trial court’s decision to invalidate the antenuptial agreement because the agreement did not include the requisite financial and asset disclosures. We affirm the decision concerning the 2010 quitclaim deed because the evidence does not preponderate against the trial court’s finding that the 2010 transfer was not fraudulent. 

Warren County Court of Appeals 02/25/16
In re Landon H.
M2014-01608-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Stella L. Hargrove

This case began as a petition for dependency and neglect filed in juvenile court by the child’s grandmother. The child’s father filed his own petition seeking custody. The juvenile court found the child to be dependent and neglected and awarded custody to the father. Upon appeal to circuit court, mother stipulated the child was dependent and neglected as of the date the petition was filed. The circuit court accepted the stipulation and found the child dependent and neglected on the date of the petition. After a five-day hearing on the proper disposition of the child, the circuit court awarded custody jointly to the child’s mother and grandmother, with certain conditions. The father appeals the circuit court’s decision, arguing the court erred in awarding custody to the mother and the grandmother. Because the circuit court failed to determine whether the child was dependent and neglected as of the date of the de novo hearing, we vacate the circuit court’s order and remand for a new hearing.

Maury County Court of Appeals 02/25/16
Lamar Tennessee, LLC DBA Lamar Advertising of Knoxville v. City of Knoxville, Tennessee, Et Al.
E2014-02055-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Daryl R. Fansler

In 2006, Lamar Tennessee, LLC began the conversion of two of its billboards from ―vinyl-faced to ―digital display‖ utilizing light-emitting diode (LED) technology. Before Lamar could complete these conversions, a sign inspector for the City of Knoxville issued a stop-work order on each of the billboards. A zoning inspector for the City, in her own name, subsequently filed a complaint against Lamar, grounded in Tenn. Code Ann. § 13-7-208(a)(2) (Supp. 2005), seeking temporary and permanent injunctive relief prohibiting Lamar from ―repurposing‖ the two vinyl-faced billboards into billboards featuring LED digital displays. In response, Lamar filed a complaint against the City seeking a declaration that the two billboards were not in violation of the zoning regulations and/or that the provisions of the zoning regulations pertaining to billboards with digital displays were unconstitutional. These cases were eventually consolidated. Each party filed a motion for summary judgment. The trial court granted the City‘s motion and permanently enjoined Lamar from converting the billboards at issue from vinyl structures into billboards with LED digital displays. Lamar appeals. We affirm.

Knox County Court of Appeals 02/25/16
In re Lilly C. et al.
E2015-01185-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Larry M. Warner

This appeal involves termination of a father's rights to three children. The trial court found the father, who was incarcerated at the time of the final hearing, had abandoned the children by engaging in such conduct prior to incarceration as to exhibit a wanton disregard for their welfare, in that there was a history of domestic violence between the father and the children's mother. Further, the father had violated his probation by failing a drug screen. The court also found clear and convincing evidence revealed the father had not substantially complied with the provisions of the permanency plans. As a result, the court found termination was in the best interest of the children. The father appeals. We affirm.

Cumberland County Court of Appeals 02/25/16
Larry Steele v. Elizabeth Jones
M2014-01289-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Jane W. Wheatcraft

This appeal arises out of suit brought to recover possession of a dog; the party which brought the suit has appealed to this court. The document filed by the Appellant fails to comply with Rule 27 of the Tennessee Rules of Appellate Procedure and renders this Court unable to review the resolution of the case in the trial court. We therefore affirm the judgment of the circuit court.

Sumner County Court of Appeals 02/24/16