Court of Appeals Opinions

Format: 01/31/2015
Format: 01/31/2015
David Michael Williams, et al v. Timothy Wayne Smith
M2013-02606-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amy V. Hollars

This appeal arises from an underinsured motorist coverage claim that hinges on the validity of a choice of law provision in the insurance policy. Plaintiffs were involved in a car wreck in Tennessee while driving a vehicle they borrowed from North Carolina residents.Although the borrowed vehicle was owned by North Carolina residents, the car owners had elected an insurance policy with a Missouri choice of law provision because their daughter principally used the car in Missouri where she attended college. At issue in this appeal is whether the law of Missouri or North Carolina controls.If Missouri law controls,there is no underinsured motorist coverage; if North Carolina law controls, there is coverage. The trial court found that the Missouri choice of law provision was valid and enforceable because the choice of law provision was not contrary to a fundamental policy of North Carolina. We affirm.

Putnam County Court of Appeals 11/06/14
Gregory Lee Boggs Et Al v. Dinah K. Rhea
E2013-02859-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Thomas J. Wright

Gregory Lee Boggs and Lisa Danielle (Pickens) Boggs (“Plaintiffs”) sued Dinah K. Rhea (“Defendant”) with regard to a motor vehicle accident that occurred in May of 2010 in Washington County, Tennessee. Defendant admitted responsibility for the accident and the case was tried before a jury solely on the issue of damages. After trial the Circuit Court for Greene County (“the Trial Court”) entered judgment on the jury’s verdict finding and holding that Plaintiffs were not entitled to any damages. Plaintiffs appeal to this Court raising issues concerning the jury’s verdict, denial of their motion for additur or a new trial, and claimed improper statements by defense counsel in his closing argument. Defendant raises an issue on appeal with regard to the Trial Court’s denial of her motion for discretionary costs. We find and hold that the record on appeal contains material evidence to support the jury’s verdict and that there are no other reversible errors related to Plaintiffs’ issues. We further find and hold that Defendant is entitled to an award of discretionary costs, and we remand to the Trial Court for a determination of the appropriate amount of discretionary costs. We affirm as modified.

Greene County Court of Appeals 11/06/14
Gabrielle Howell, et al v. Metropolitan Sexually Oriented Business Licensing Board
M2013-02369-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Ellen H. Lyle

Owner of a sexually oriented nightclub filed a writ of certiorari challenging the Respondent Board’s decision to sanction the nightclub for the inappropriate behavior of an entertainer. The trial court affirmed the decision of the Board. The nightclub raises several errors on appeal. Discerning no error, we affirm.

Davidson County Court of Appeals 11/05/14
Lisa Howe, et al. v. Bill Haslam - Concur
M2013-01790-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Ellen H. Lyle

In concur in the majority’s decision to affirm the trial court’s dismissal of the claims arising from HB600’s reordering of the political process. I also join Judge McBrayer in his determination that the claim of the Gay Straight Alliance of Hume Fogg Academic Magnet High School survives dismissal on standing grounds, as the State’s Answer to the original Complaint is insufficient to determine the applicability of HB600.

Davidson County Court of Appeals 11/04/14
Lisa Howe, et al. v. Bill Haslam - Concur in Part
M2013-01790-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Carol L. McCoy

I agree with Judge Farmer’s conclusion that the claims arising from HB600’s
reordering of the political process, which strips Appellants of the ability to seek antidiscrimination
protections at the local level, should be dismissed. However, because I find
the United States Supreme Court precedent in Romer v. Evans, 517 U.S. 620 (1996), difficult
to distinguish by reference to the structural barrier it imposes, I write separately. I would
instead distinguish Romer because, unlike the amendment at issue there, the burden HB600
imposes applies equally to any group seeking protected status. Therefore, Appellants have
not suffered a particularized injury sufficient to confer standing.

Davidson County Court of Appeals 11/04/14
Lisa Howe, et al. v. Bill Haslam
M2013-01790-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Carol L. McCoy

Plaintiffs allege that a 2011 act of the General Assembly adding a definition of “sex” to the
Tennessee Human Rights Act and creating the Equal Access to Intrastate Commerce Act,
now codified at Tennessee Code Annotated § 7-51-1801(1) & (2), violates the Equal
Protection guarantees of the United States and Tennessee Constitutions. The trial court
dismissed the action for lack of standing. We dismiss the claims of Plaintiffs Wesley Roberts
and the Gay/Straight Alliance of Hume-Fogg Academic Magnet High School as moot where
the Defendant Governor concedes that the Equal Access to Intrastate Commerce Act does
not apply to Local Education Agencies or Tennessee schools. We affirm dismissal of the
remaining Plaintiffs for lack of standing where they have failed to allege a discrete, palpable,
cognizable injury in fact.

Davidson County Court of Appeals 11/04/14
Andrew J. Braden, III v. Tennessee Board of Probation, et al. - Dissent
M2013-02036-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Carol L. McCoy

I write separately to emphasize two troubling procedural issues with the majority Opinion. First, I am troubled by this Court’s analysis with regard to the timeliness of the filing of Mr. Braden’s petition for a writ of certiorari. Second, I disagree that this case is appropriate for summary disposition. For these reasons, I respectfully dissent.

Davidson County Court of Appeals 11/04/14
Andrew J. Braden, III v. Tennessee Board of Probation, et al.
M2013-02036-COA-R3-CV
Authoring Judge: Judge Kenny W. Armstrong
Trial Court Judge: Chancellor Carol L. McCoy

This is a pro se appeal from a denial of parole. Inmate/Appellant avers several problems
surrounding his parole hearing that he claims violate his due process and equal protection
rights, and violate the ex post facto constitutional prohibition. Because a prisoner has no
liberty interest in release on parole before the expiration of his sentence, due process
protections do not attach to parole determinations. Because, at the time of Appellant’s crime
and conviction, the law regarding parole gave total discretion to the Board and authorized
denial if the Board found that parole would depreciate the seriousness of the crime
committed, application of this ground for denial of parole does not violate ex post facto
prohibitions. Because Appellant has failed to prove that race was an issue in the Board’s
decision to deny him parole, no equal protection violation was shown. Consequently, we
affirm the trial court’s dismissal of the petition upon grant of summary judgment. Affirmed
and Remanded.

Davidson County Court of Appeals 11/04/14
Tammy Gipson v. State Farm Fire and Casualty Company, et al.
W2013-02872-COA-R3-CV
Authoring Judge:
Trial Court Judge:

I fully concur with the majority that the trial court’s grant of summary judgment should be reversed in light of the factual dispute over ownership of the automobile operated by Ms. Gipson at the time of the accident.

Shelby County Court of Appeals 11/04/14
Tammy Gipson v. State Farm Fire and Casualty Company, et al.
W2013-02872-COA-R3-CV
Authoring Judge: Judge Kenny W. Armstrong
Trial Court Judge: Judge Donna M. Fields

Following Appellant’s involvement in an automobile accident and the subsequent denial of coverage by her insurance company (the Appellee herein), Appellant brought the instant action against Appellee, alleging breach of contract, bad faith refusal to pay, violation of the Tennessee Consumer Protection Act, and intentional misconduct. The trial court granted summary judgment in favor of the Appellee. Appellant appeals. We conclude that there is a dispute of material fact as to the ownership of the subject vehicle; this dispute of material fact precludes summary judgment. Accordingly, we reverse the trial court’s order and remand for a hearing on the merits. Reversed and Remanded.

Stewart County Court of Appeals 11/04/14
Sherry Harper v. Bradley County, Tennessee
E2014-00107-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Lawrence H. Puckett

The issue presented on this appeal is whether a plaintiff who brings a health care liability action against a governmental entity under the Governmental Tort Liability Act (“the GTLA”) is entitled to the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c)(Supp. 2014) under the current version of the Health Care Liability Act (“the HCLA”). This inquiry focuses on the effect of the 2011 amendment to the HCLA that expressly includes “claims against the state or a political subdivision thereof” within the definition of “health care liability action.” Applying the principles set forth by the Supreme Court in Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), we hold that the 2011 amendment demonstrates a clear intent on the part of the General Assembly to allow the GTLA’s one-year statute of limitations to be extended by 120 days in cases where a plaintiff satisfies the requirements of the HCLA. We affirm the judgment of the trial court denying defendant Bradley County’s motion to dismiss.

Bradley County Court of Appeals 11/03/14
In Re: Kadean T.
M2013-02684-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robert E. Burch

The father and step-mother of the child at issue commenced this action to terminate the parental rights of the child’s mother and for step-parent adoption. The trial court terminated Mother’s parental rights on the grounds of abandonment by willful failure to support and by willful failure to visit the child, pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i), and upon the determination that termination of Mother’s rights was in the best interest of the child, pursuant to Tenn. Code Ann. §§ 36-1-113(c)(2) and (i). The trial court further determined that step-parent adoption was in the best interest of the child. Mother appeals. We affirm the determination that Mother abandoned her child pursuant to Tenn. Code Ann. § 36-1113(g)(1) by willfully failing to visit her child and by willfully failing to support her child during the four-month period preceding the filing of this petition. However, because the trial court failed to provide written findings of fact as mandated by Tenn. Code Ann. § 36-1-113(k), we reverse the trial court’s determination that termination of Mother’s parental rights was in the best interest of the child. Accordingly, we remand the issue of the child’s best interest to the trial court with instructions to provide written findings of fact on the issue of the child’s best interest and to enter judgment consistent with its findings.

Dickson County Court of Appeals 10/31/14
James Cullum, et al v. Baptist Hospital System, Inc., et al
M2014-01905-COA-T10B-CV
Authoring Judge: Presiding Jduge Frank G. Clement, Jr.
Trial Court Judge: Judge Amanda Jane McClendon

This is an interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B from the trial court’s denial of a motion for recusal. Having reviewed the petition for recusal appeal pursuant to the de novo standard as required under Rule 10B, § 2.06, we affirm the trial court’s decision to deny the motion for recusal.

Davidson County Court of Appeals 10/31/14
Christina June Quinn v. Scott Allen Diehl
M2014-00536-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Don R. Ash

Mother and Father were divorced in 2009 and Mother was named the primary residential parent of their two children. Father later filed a petition to modify the parenting plan, and the court changed the primary residential parent designation to Father. Mother filed one petition to modify in 2012 and another petition in 2014 in an effort to become the primary residential parent again. The court entered orders denying each petition, and Mother appealed both orders. We affirm the trial court’s judgments in all respects.

Wilson County Court of Appeals 10/31/14
Christina June Quinn v. Scott Allen Diehl
M2013-00326-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Clara W. Byrd

Mother and Father were divorced in 2009 and Mother was named the primary residential parent of their two children. Father later filed a petition to modify the parenting plan, and the court changed the primary residential parent designation to Father. Mother filed one petition to modify in 2012 and another petition in 2014 in an effort to become the primary residential parent again. The court entered orders denying each petition, and Mother appealed both orders. We affirm the trial court’s judgments in all respects.

Wilson County Court of Appeals 10/31/14
Adam Ellithorpe, et al v. Janet Weismark
M2014-00279-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Thomas W. Brothers

Parents and minor child brought this action against a licensed clinical social worker, alleging that the social worker provided counseling to the minor child in violation of a court order. The social worker moved to dismiss the complaint for failure to comply with the Tennessee Health Care Liability Act’s procedural requirements. The trial court found that the complaint sounded in health care liability and accordingly dismissed it in its entirety. We conclude that the trialcourtapplied an improper standard in dismissing the complaint,vacate the judgment, and remand for further proceedings.

Davidson County Court of Appeals 10/31/14
Kaitlyn Alexis McGinnis, et al. v. Aubie L. Cox, et al
M2014-00102-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert L. Jones

Plaintiffs presented Defendants with an offer of judgment pursuant to Rule 68 of the Tennessee Rules of Civil Procedure. Prior to Defendants’ acceptance, Plaintiffs attempted to rescind the offer. Defendants nevertheless accepted the offer within the time allowed by Rule 68 and attempted to enforce the offer of judgment. The trial court concluded that Plaintiffs were not entitled to revoke the offer of judgment and entered an order granting the motion to enforce the judgment. We affirm and remand.

Giles County Court of Appeals 10/31/14
Robert Koscinski v. Hamilton County Tennessee, et al
E2014-00097-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jeffrey M. Atherton

This appeal arises from the termination of Robert Koscinski (“Koscinski”) from his employment as a corrections officer with the Hamilton County Sheriff’s Office. Koscinski had been found to be unfit for duty based upon a psychological evaluation. Koscinski appealed his termination to the Hamilton County Sheriff’s Civil Service Board “the Board”). The Board upheld Koscinski’s termination. Koscinski filed an application for writ of certiorari in the Chancery Court for Hamilton County (“the Trial Court”). After hearing arguments, the Trial Court entered an order denying Koscinski’s writ of certiorari. Koscinski timely appealed to this Court. We find and hold that the Board applied the correct legal standard, and that the Board’s factual findings were supported by substantial and material evidence. We affirm the Trial Court.

Hamilton County Court of Appeals 10/31/14
Jackie D. Owens v. Hamilton County Sheriff's Department, et al
E2014-01766-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge W. Neil Thomas, III

The judgment from which the pro se incarcerated appellant, Jackie D. Owens, seeks to appeal was entered on December 17, 2013. The Notice of Appeal was filed more than thirty (30) days from the date of entry of the December 17, 2013 judgment, even considering the date upon which it appears the appellant placed the Notice of Appeal in the mail for filing with the trial court clerk (August 26, 2014). See Tenn. R. App. P. 20(g). The appellee, Chattanooga-Hamilton County Hospital Authority, filed a motion to dismiss this appeal based upon the untimely filing of the Notice of Appeal. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal and grant the motion to dismiss.

Hamilton County Court of Appeals 10/31/14
Cesar O. Rodriguez v. Amanda Lily Rodriguez
M2013-02648-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ross H. Hicks

Mother and Father were married for eight years and had two children when they were divorced in 2012. The trial court divided the marital assets, named Father the primary residential parent, and ordered Father to pay child support to Mother. Father appealed the trial court’s judgment, contending the child support worksheet contains incorrect information and that he should not be required to pay child support because he is the primary residential parent. He also argued the trial court erred in awarding Mother a full half of retirement benefits he earned during the parties’ marriage because Mother left him for periods of time during the marriage. Father contends those periods of separation should not be counted as time the parties were “together.” The record contains no transcript of the proceedings or statement of evidence that we can review to determine whether the evidence presented preponderates against the trial court’s findings and judgment. However, we agree with Father that the child support worksheet includes an incorrect figure representing Mother’s average parenting time. We remand the case for the trial court to correct that number and determine whether the correction results in a different child support award. We affirm the trial court’s judgment in all other respects.

Montgomery County Court of Appeals 10/30/14
TWB Architects, Inc. v. The Braxton, LLC, et al.
M2013-02740-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert E. Burch

This appeal arises from a suit to enforce a mechanic’s lien. An architectural firm entered into an agreement with the developer of a condominium project to provide architectural and design services. The agreement stated that the firm would be paid a fee of two percent of construction costs if the condominiums were constructed. Later, the architect signed a contract to receive a penthouse as “consideration of design fees owed” on the first contract. The condominiums were constructed according to the plans drawn by the architectural firm. The developer was unable to deed the penthouse to the architect because it was encumbered by a security interest. The architect was never compensated. The architect filed suit to enforce a mechanic’s lien for the amount he was owed under the first contract. The trial court held the second contract was a novation, completely extinguishing the rights and obligations under the first contract. Finding there was a lack of intent for the second contract to completely extinguish the first contract and any lien rights arising from it, we reverse the trial court. We also find the suit was timely filed under the terms of the contract and remand the case to the trial court for further proceedings

Cheatham County Court of Appeals 10/30/14
Brentwood Chase Community Association v. Triet Truong, et al.
M2014-01294-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal involves an action by a homeowners association to enjoin alleged violations of the association’s declarations. The trial court adjudicated a portion of the alleged violations and directed the entry of a final judgment pursuant to Tenn. R. Civ. P. 54.02. We have determined that the trial court has not disposed of “one or more claims” within the meaning of Tenn.R.Civ.P.54.02,meaning all claims byor against that party,see Bayberry Associates v. Jones, 783 S.W.2d 553, 557 (Tenn 1990); therefore, we reverse the portion of the order directing the entry of a final judgment, dismiss this appeal without prejudice to any party subsequently pursuing an appeal as of right pursuant to Tenn. R. App. P. 3, and remand for further proceedings.

Davidson County Court of Appeals 10/30/14
Bonnie Ellen Pierre v. Edward Joseph Pierre
E2013-01864-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Richard R. Vance

In this post-divorce case, Edward Joseph Pierre (“Husband”) appeals the trial court’s decision refusing to grant him relief under Tenn. R. Civ. P. 60.02. Husband argues that the trial court’s divorce judgment based upon irreconcilable differences should be set aside and the case reopened because the parties’ marital dissolution agreement (“MDA”), which was duly approved by the trial court and incorporated into the judgment, allegedly fails to equitably divide the marital estate. Husband voluntarily signed the MDA before a notary public but declined to read it before he signed it. Finding no grounds for Rule 60.02 relief, we affirm the judgment of the trial court.

Sevier County Court of Appeals 10/30/14
Walter Allen Gault v. Jano Janoyan et al.
E2014-00218-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Michael W. Moyers

This case concerns a boundary line dispute. Walter Allen Gault (“Plaintiff”) sued Jano Janoyan and Pinnacle Bank (“Defendants”) seeking a declaratory judgment 1 that, by way of adverse possession, he is the rightful owner of a triangle-shaped piece of land, 41.59 feet at its base and approximately 302 feet on each of its two sides. The disputed area is within the deed boundaries of the property owned by Janoyan, the Plaintiff’s next door neighbor. (See attached exhibit.) The parties’ properties are in Forest View, a residential subdivision in Knoxville. Defendants filed an answer and a counterclaim for ejectment and quiet title to the property. Both parties moved for summary judgment. After a hearing, the trial court granted summary judgment to the Defendants. Plaintiff appeals. We affirm.

Knox County Court of Appeals 10/30/14
Carol Payne McKinnis v. Sandra Kim Hammons
E2013-02733-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor John C. Rambo

Carol Payne McKinnis (“Seller”) brought suit against Sandra Kim Hammons (“Purchaser”) to enforce an oral contract for the sale of real property. Seller sought a judgment for the amount allegedly due under the parties’ agreement. Purchaser moved for summary judgment based on her contention that the action was barred by the Statute of Frauds as codified at Tenn. Code Ann. § 29-2-101(2012). The trial court granted the motion. We vacate the judgment and remand for further proceedings.

Johnson County Court of Appeals 10/30/14