Court of Appeals Opinions

Format: 08/16/2018
Format: 08/16/2018
Harold R. Gunn v. First Baptist Church, et al.
W2017-02382-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Senior Judge William B. Acree

Appellant, a member of First Baptist Church of Humboldt, appeals the trial court’s grant of summary judgment in favor of Appellees, the church, its pastor, and chairman of the deacons. Appellant challenged the vote to change the name of the church to “The Church at Sugar Creek.” Finding that the ecclesiastical abstention doctrine acted as a jurisdictional bar, the trial court granted summary judgment. Discerning no error, we affirm and remand.

Gibson County Court of Appeals 06/07/18
Lorna Gibson v. Charles Bikas
E2018-00911-COA-T10B-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Pamela A. Fleenor

Appellant sought disqualification of the trial court judge pursuant to Tennessee Supreme Court Rule 10B. Finding no error, we affirm.

Hamilton County Court of Appeals 06/04/18
Ovalla Jobe v. Goodwill Industries Of Middle Tennessee, Inc., Et Al.
M2017-02299-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Kelvin D. Jones

This appeal involves a premises liability suit filed by a customer of a Goodwill store after the customer sat on an item of furniture that was for sale and it collapsed. The trial court granted summary judgment to Goodwill, finding no genuine issue of material fact and concluding that Goodwill did not create or have actual or constructive knowledge of any alleged defect. The plaintiff appeals. We affirm.     

Davidson County Court of Appeals 06/04/18
In Re Avery B.
W2016-02542-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge William A. Peeler

This appeal arises from a modification of a permanent parenting plan established in 2010 in which Mother was designated as the primary residential parent. In December of 2012, Father filed a petition to modify the parenting plan alleging that Mother’s mental health impeded her ability to properly care for their child. He also alleged that Mother alienated the child from Father due to numerous false allegations that Father abused the child, which resulted in temporary but substantial decreases in his parenting time. Although no evidence was produced indicating that Father abused the child, Mother continued to accuse Father of abuse and to take the child for repeated evaluations and physical exams. Following a three-day trial, the trial court designated Father as the primary residential parent, established a temporary parenting plan, and ordered Mother to attend counseling until the court was satisfied with her mental health so that it could issue a permanent parenting plan. Mother appealed that order; however, we dismissed the appeal for lack of subject matter jurisdiction because the order appealed from was not a final judgment. On remand, following an assessment of Mother’s compliance with the court-ordered intensive therapy, the trial court entered a final judgment that included a permanent parenting plan from which Mother appeals. Mother contends the trial court erred in holding, inter alia, that there was a substantial and material change in circumstances requiring a modification of the parties’ permanent parenting plan. She also contends the court erred in holding that it was in the child’s best interest to change the primary residential parent to Father due, in part, to the fact the court failed to consider factors added to Tenn. Code Ann. § 36-6-106 pursuant to the 2014 amendment that became law on July 1, 2014. Finding no error, we affirm.

Tipton County Court of Appeals 06/04/18
Stephanie Keller, et al v. Estate of Edward Stephen McRedmond, et al
M2013-02582-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

Sibling shareholders, unable to agree on the management of the family business, brought their dispute to court. Eventually, the brothers and sisters agreed that the business should be dissolved and, under the court’s supervision, sold as a going concern. After soliciting bids from the siblings, the court approved the sale of the business’s assets to one brother and two of his sisters. Pending the closing, the court ordered the siblings to continue to operate the business as usual and to preserve the goodwill of the business, including the relationships with employees, suppliers, and customers. The day after the closing, the brother who was not part of the winning bidder group opened a competing business. The winning bidders sought damages from the competing sibling, claiming that he willfully violated court orders, breached his fiduciary duty, and intentionally interfered with business relations. After a bench trial, the court awarded the winning bidders compensatory damages in an aggregate amount for all claims. In the first appeal, this Court reversed, holding that the winning bidders’ claims were derivative, not direct, and thus they lacked standing. In Keller v. Estate of McRedmond, 495 S.W.3d 852, 877 (Tenn. 2016), our supreme court adopted a new standard for determining whether a shareholder claim is direct or derivative and, applying that standard, held that the winning bidders had standing to pursue their claim that the competing sibling violated the court’s orders. So our supreme court affirmed in part, reversed in part, and remanded the case to this Court to review the remaining issues that were properly raised but not addressed in the first appeal. Id. at 882-83. We affirm the trial court’s decision to hold the competing sibling in contempt, but we vacate the aggregate award of compensatory damages.  

Davidson County Court of Appeals 05/31/18
In Re Ayden S., Et Al.
M2017-01185-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ken Witcher

Parents appeal the termination of parental rights to their three children. The juvenile court found three statutory grounds for termination: substantial noncompliance with the requirements of the permanency plans, persistence of conditions, and failure to manifest an ability and willingness to assume custody or financial responsibility of the children. The court also found that termination of the parents’ parental rights was in the children’s best interest. We conclude the evidence of the statutory grounds for termination was less than clear and convincing. Thus, we reverse the termination of the parents’ parental rights.

Macon County Court of Appeals 05/31/18
In Re Ethan W., Et Al.
M2016-02313-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Stella L. Hargrove

The Department of Children Services initiated a proceeding to declare the three minor children of Mother and Father dependent and neglected following the discovery of a sexual relationship between two of the children. The Juvenile Court adjudicated the children dependent and neglected, as did the circuit court in a de novo hearing on appeal. Upon our review, we conclude the record contains clear and convincing evidence that the children were dependent and neglected; accordingly, we affirm the judgment.  

Wayne County Court of Appeals 05/31/18
Ray Brown v. Robert L. Bushnell
M2017-01124-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Franklin L. Russell

This is a malicious prosecution case. The trial court found that the Appellant committed the torts of malicious prosecution and abuse of process. Appellant argues that there was no material evidence to support the trial court’s inference of malice. Appellant also questions the trial court’s failure to address the mandatory element of probable cause. Discerning no error, we affirm.

Bedford County Court of Appeals 05/31/18
Deborah Lacy v. Vanderbilt University Medical Center, Et Al.
M2018-00832-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas W. Brothers

This is an appeal from an order granting summary judgment to one of several defendants. Because the order does not dispose of the plaintiff’s claims against all of the defendants, we dismiss the appeal for lack of a final judgment.

Davidson County Court of Appeals 05/31/18
Jason C. Blosser v. Cyrus Johnson, IV d/b/a The River City Rides
W2017-00858-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor JoeDae L. Jenkins

This appeal deals only with the trial court’s award of treble damages pursuant to the Tennessee Consumer Protection Act. Finding no error, we affirm.

Shelby County Court of Appeals 05/31/18
In Re Ethan B.
M2017-00967-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ronald Thurman

A mother appeals the termination of parental rights to her son on the grounds of abandonment by willful failure to visit and willful failure to support. Mother appeals, arguing that the termination of her rights is not supported by the record. After a thorough review, we conclude that the proof does not clearly and convincingly establish that Mother willfully failed to visit or support the child. We reverse the judgment of the trial court and dismiss the petition for termination. 

White County Court of Appeals 05/30/18
Sumner County, Tennessee v. Susan Small-Hammer
M2017-02328-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joe Thompson

The defendant appeals the imposition of a security interest in her home. The defendant’s home, which was destroyed by floods in May of 2010, was demolished and reconstructed with funds the defendant applied for through the HOME Program administered by Sumner County. In applying for the financing, the defendant agreed to “comply with the HOME Program rules and regulations if assistance is approved,” one of which was that she must sign a note and deed of trust to secure the repayment obligation. After the defendant repeatedly refused to sign a note and deed of trust, Sumner County filed this action. Sumner County subsequently filed a motion for summary judgment that was properly supported by a statement of undisputed facts pursuant to Tenn. R. Civ. P. 56. Because the defendant did not file a response to the motion or the statement of undisputed facts, and the undisputed facts established that Sumner County was entitled to judgment as a matter of law, the trial court granted Sumner County’s motion for summary judgment. This appeal followed. We affirm.

Sumner County Court of Appeals 05/30/18
Amy Brasfield Marlow v. Joseph Charles Marlow
E2017-01190-COA-R9-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Gregory S. McMillan

This appeal arises from three post-divorce petitions for criminal contempt against Father in which Mother asserts over 200 separate counts. The principal issues on appeal pertain to the Double Jeopardy Clause of the United States and Tennessee Constitutions. Following a three day trial on the first petition, Father was found to be in criminal contempt of 60 counts. After Mother filed her second petition in which she alleged 133 additional counts of contempt, the parties appeared in court to announce a settlement pursuant to which Father would plead guilty to 10 unspecified counts with the remaining counts to be dismissed. Without advising and questioning Father before accepting a plea as Tenn. R. Crim. P. 11(b) requires, the trial court approved the agreed order, finding Father in criminal contempt of 10 unspecified counts. After Mother filed her third petition for criminal contempt, Father filed a “Motion to Alter or Amend and/or Rule 60.02 Motion to Set Aside Most of the Criminal Contempt Findings and Holdings in this Cause,” contending all but two of the 60 initial convictions were constitutionally flawed. As for the first 58 convictions, Father argued the notice of criminal contempt failed to specifically state essential facts concerning each ground as required by Tenn. R. Crim. P. 42(b). With regard to Father’s guilty plea to 10 additional counts, Father contended the plea and sentence were fatally flawed because the trial court failed to ascertain whether Father’s guilty plea was knowingly and voluntarily entered as Tenn. R. Crim. P. 11(b) requires. The trial court vacated 55 of the 60 initial convictions, finding the notice of criminal contempt failed to state essential facts as required by Tenn. R. Crim. P. 42(b); however, the order that followed held Father in criminal contempt for sending a text to Mother at 10:11 a.m. on June 20 for which Father had been acquitted following trial. The court also set aside Father’s guilty plea to 10 of the 133 additional counts in the second petition because the court failed to advise and question Father before accepting a plea as required by Tenn. R. Crim. P. 11(b). The trial court also ruled, over Father’s objections, that Mother could prosecute Father on all 133 counts in the second petition. In this appeal, Father contends the trial court violated the constitutional prohibitions against double jeopardy by (1) finding Father guilty of a count of criminal contempt for which he had been acquitted following trial, and (2) allowing Mother to prosecute her second 05/29/2018 - 2 - petition. Because double jeopardy prohibits a prosecution after an acquittal on the same count, we vacate Father’s conviction for criminal contempt for sending a text to Mother at 10:11 a.m. on June 20. As for allowing Mother to prosecute all 133 counts in her second petition, the agreed order, in which Father pled guilty to 10 counts, failed to specifically identify any of the counts for which Father pled guilty or any of the counts for which he was acquitted; therefore, jeopardy did not attached to any of the 133 counts. Accordingly, we affirm the trial court’s decision allowing Mother to prosecute the 133 counts in her second petition.

Knox County Court of Appeals 05/29/18
In Re Kendall M.
E2017-01769-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Robert D. Philyaw

Kendall M. was born in January 2016; she tested positive for amphetamines at birth and was placed in the Neonatal Intensive Care Unit where she was diagnosed with Neonatal Abstinence Syndrome and suffered from withdrawal symptoms. Upon her release from the hospital, she was placed with foster parents, in whose care she has remained. A proceeding to have her declared dependent and neglected was initiated by the Department of Children’s Services and permanency plans developed in May and October of 2016. In March of 2017 the Department filed a petition to terminate the parental rights of Kendall’s Mother on the grounds of abandonment by an incarcerated parent and substantial noncompliance with the permanency plans; following a hearing, the court granted the petition and terminated Mother’s rights on both grounds. Mother appeals the termination of her rights on the ground of substantial noncompliance with the permanency plans and the holding that termination of her rights was in the best interest of Kendall. Upon our review, we conclude that there is clear and convincing evidence to support the termination of her rights on both grounds, and the finding that termination of Mother’s rights is in Kendall’s best interest; accordingly, we affirm the judgment of the trial court.

Hamilton County Court of Appeals 05/29/18
Jennifer Lee Miller v. David Mark Miller, II
M2017-01867-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Joseph Woodruff

This appeal involves a parent’s obligation to pay college expenses for her son. After the parties’ divorce proceeding, various orders and parenting plans were entered reflecting the parties’ agreement to share equally their children’s college expenses at the University of Tennessee. The trial court found that the parties subsequently reached an agreement that resulted in the oldest child deferring his enrollment for one semester, but that the agreement did not terminate or excuse the parties’ existing obligation to share college expenses upon enrollment. The trial court found the mother in civil contempt for refusing to pay the college expenses and awarded a monetary judgment to the father for the unpaid expenses. We affirm.     

Williamson County Court of Appeals 05/29/18
National Parks Resorts Lodge Corporation v. Antonio Perfetto, Et Al.
E2017-01330-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Robert E. Lee Davies, Senior Judge

This appeal arises from a judicial determination of the fair value of dissenters’ shares in a corporation. In 2002, King Solomon’s Palace, Inc., (“KSP”) a corporation created in 1986 for the purpose of establishing a hotel in Pigeon Forge, announced its pending merger into another company, National Parks Resort Lodge Corporation (“Plaintiff”). Johnny Jess Davis (“Davis”) was the majority shareholder of KSP. Dissenters Antonio Perfetto and David L. Donohue (“Defendants”) each held 50 shares of KSP common stock. Plaintiff filed a complaint in the Chancery Court for Sevier County (“the Trial Court”) seeking a judicial determination of the fair value of Defendants’ shares. After a trial, the Trial Court awarded Defendants $186,913 for their shares and $122,876 in attorney’s fees and costs. The Trial Court found, in part, that Davis had manipulated and withheld financial information to Defendants’ detriment. Plaintiff appeals to this Court, arguing, among other things, that the evidence preponderates against the Trial Court’s findings regarding Davis’s conduct. Defendants raise an additional issue arguing that the Trial Court set the value of their shares lower than it should have under the evidence. We affirm the judgment of the Trial Court.

Sevier County Court of Appeals 05/29/18
Graham Clark, et al. v. Timothy Curtis Johnson
E2017-01286-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John S. McLellan, III

In this case involving grandparent visitation, the petitioners, Graham Clark and Marisa Clark (“Grandparents”), filed a petition in the Sullivan County Juvenile Court (“juvenile court”) in November 2016, approximately thirteen months after the death of their daughter, Megan Clark Johnson (“Mother”), who was the mother of the four minor children at issue here. Naming the children’s father, Timothy Curtis Johnson (“Father”) as the respondent, Grandparents averred that the children were dependent and neglected due to the death of Mother in October 2015 and an allegedly severe reduction in Grandparents’ visitation with the children since December 2015. The case was subsequently transferred to the Sullivan County Chancery Court (“trial court”), with Grandparents having given notice to Father that they were seeking relief in the form of grandparent visitation. The trial court thereafter treated the petition as one for grandparent visitation. Following a hearing, the trial court entered a temporary order directing that Grandparents would enjoy unsupervised visitation with the children on alternate weekends. Following a subsequent bench trial, the trial court granted visitation to Grandparents upon finding that, pursuant to Tennessee Code Annotated §§ 36-6-306 and -307 (2017) (collectively, the “Grandparent Visitation Statute”), their visitation and relationship with the children had been severely reduced over several months prior to the petition’s filing and that such reduction posed a risk of substantial emotional harm to the children. Also finding that it was in the best interest of the children to grant Grandparents a set visitation schedule, the trial court ordered overnight visitation one weekend a month and two additional nights monthly, as well as one week’s uninterrupted visitation in the summer and the sharing of major holidays. Father timely appealed. Having determined that the evidence preponderates against a finding that the reduction in Grandparents’ visitation and relationship with the children in the months preceding the petition’s filing met the statutory definition of a severe reduction, we reverse.

Sullivan County Court of Appeals 05/29/18
Lesa C. Williams, Et Al. v. Renard A. Hirsch, Sr.
M2016-00503-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Don A. Ash

This is the third appeal in this declaratory judgment action. The action seeks a determination of whether a discharged attorney is entitled to compensation for his services in connection with a tort action that settled after his discharge. After a bench trial, the trial court determined that the discharged attorney’s right to compensation was governed by a retainer agreement with the client, as modified by a subsequent letter agreement. The retainer agreement entitled the attorney, upon discharge, to compensation calculated at a reasonable hourly rate or one third of any offer made to settle the case, whichever was greater, plus expenses. Because no bona fide settlement offer was made before the attorney was discharged and the attorney provided insufficient evidence of the time he spent on the case, the trial court declared that the discharged attorney was not entitled to compensation. The trial court also awarded sanctions against the attorney for discovery abuse. Upon review, we discern no reversible error. So we affirm.

Davidson County Court of Appeals 05/25/18
Marvin Seibers, ET Al. v. Carol Latimer
E2017-01285-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Elizabeth C. Asbury

This appeal involves a request for visitation by the maternal grandparents. The paternal grandmother had been awarded legal custody when the petition was filed. Before the trial, the children were adopted by the paternal grandmother. The trial court granted visitation pursuant to Tennessee Code Annotated section 36-6-302. We affirm the decision of the trial court.

Campbell County Court of Appeals 05/25/18
Sharon K. Yuhasz v. Joseph D. Yuhasz
M2017-00880-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Deanna B. Johnson

Husband appeals the trial court’s decision regarding wife’s monthly need for spousal support and its division of the parties’ marital assets.  Wife asserts that the trial court erred in failing to hold that husband dissipated marital assets.  We affirm the decision of the trial court and conclude that wife is entitled to an award of her attorney fees on appeal.

Williamson County Court of Appeals 05/24/18
In Re: Emersyn W.
M2017-02074-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Kenneth R. Goble

This is an appeal from an order changing the Child’s surname from that of Mother alone to the double last name of Mother and Father, respectively. The juvenile court determined that the Child’s last name should be changed based on a standardized policy of the court because the parents could not reach an agreement. Mother appeals. We reverse.

Montgomery County Court of Appeals 05/24/18
Dale Robert Scherzer v. Melissa Marie Scherzer - Concurring
M2017-00635-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Michael Binkley

I concur in the result reached by the majority and with its analysis, except in one respect. In my view, Tennessee Code Annotated § 36-5-121 does not authorize an award of attorney fees in these circumstances.

Williamson County Court of Appeals 05/24/18
Dale Robert Scherzer v. Melissa Marie Scherzer
M2017-00635-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael Binkley

In this post-divorce action, the husband filed a petition to terminate or modify $2,000.00 in monthly transitional alimony that had been previously awarded to the wife as part of the marital dissolution agreement incorporated into the divorce decree.  Following a bench trial, the trial court found that the wife was cohabiting with her fiancé and had failed to rebut the statutory presumption, pursuant to Tennessee Code Annotated § 36-5-121(g)(2)(C), that she was either providing support to or receiving support from a third person and no longer needed the amount of alimony previously awarded.  The trial court suspended the husband’s transitional alimony obligation retroactive to October 2015, the month when he had begun to deposit payments into an escrow account at the court’s direction.  The court also awarded to the husband attorney’s fees and expenses in the amount of $19,331.50.  The wife has appealed.  Having determined that the wife failed to rebut the statutory presumption, we affirm the suspension of the husband’s transitional alimony obligation.  However, having also determined that the evidence does not support a finding that the wife had the ability to pay the husband’s attorney’s fees, we reverse the trial court’s award of attorney’s fees to the husband.  We decline to award attorney’s fees incurred on appeal to either party.

Williamson County Court of Appeals 05/24/18
Camilo Sanchez Et Al. v. Robert L. Banton
E2016-01916-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Frank V. Williams, III

This case involves a dispute between owners of adjacent property. Plaintiffs sued Defendant for erecting a gate and steel posts, which they alleged impeded access to a deeded joint roadway. The court ordered Defendant to remove the gate and steel posts and awarded plaintiffs punitive damages. We reverse the award of punitive damages because the court did not find by clear and convincing evidence that Defendant acted with the requisite intent to justify such an award. We affirm the judgment in all other respects.

Loudon County Court of Appeals 05/24/18
In Re: D.T. ET AL.
E2017-00051-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Frank V. Williams, III

In this termination of parental rights case, P.T. and K.T., great aunt and uncle of the child at issue in this case, filed a petition to terminate the rights of N.D. (mother) with respect to her child, D.T. Mother did not appear for trial. She had previously filed a second request for a continuance, which the trial court had denied. At trial, P.T. and K.T. alleged the following grounds for termination: (1) four independent conditions or occurrences constituting severe child abuse; (2) mental incompetence; (3) two separate instances of abandonment by failure to support; (4) two separate instances of abandonment by failure to visit; and (5) failure to assume by act or omission, legal/physical custody or financial responsibility of the child. The court found clear and convincing evidence of all ten grounds. By the same quantum of proof, the court also found that termination is in the child’s best interest. Mother appeals. We affirm.

Loudon County Court of Appeals 05/24/18