Court of Appeals Opinions

Format: 05/26/2018
Format: 05/26/2018
Doris Annette Christenberry v. Ocwen Loan Servicing, LLC, Et Al.
E2017-01026-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge David R. Duggan

Doris Annette Christenberry (“Plaintiff”), pro se, appeals the April 19, 2017 judgment of the Circuit Court for Blount County (“the Trial Court”) granting summary judgment to Ocwen Loan Servicing, LLC and Wells Fargo Bank, N.A., among other things. Plaintiff’s brief on appeal fails to comply in any meaningful way with Tenn. R. App. P. 27. We, therefore, find that Plaintiff has waived her issues on appeal.

Blount County Court of Appeals 03/14/18
Buster Chandler v. Maria M. Salas
M2017-01233-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Joseph P. Binkley, jr.

Plaintiff, an inmate at the Kentucky State Reformatory, who brought an action against the Clerk and Master of the Davidson County, Tennessee, Chancery Court, appeals the dismissal of his suit for failure to comply with statutory provisions applicable to suits brought in Tennessee by inmates incarcerated in Tennessee facilities and for failing to pay the filing fee. Plaintiff contends that the trial court abused its discretion in not ordering that the filing fee be paid from his inmate trust account. Upon a review of the record, we determine that neither the statutes relied upon by the court in dismissing the suit nor those relied upon by the plaintiff in contesting the dismissal apply to the case at bar; we have further determined that the dismissal was proper for Plaintiff’s failure to pay the fees required by Tennessee Code Annotated section 8-21-401 or secure such relief from the requirement as may be available to him. Consequently, we affirm the dismissal of this action.      

Davidson County Court of Appeals 03/13/18
Valenen Collins v. Sams East, Inc.
W2017-00711-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

Appellant appeals the dismissal of this action on the ground of res judicata. We hold that an essential element of res judicata—that the underlying judgment was rendered by a court of competent jurisdiction—is not met in this case. Here, the court that rendered the judgment relied upon lacked subject matter jurisdiction due to the doctrine of prior suit pending. The trial court’s judgment of dismissal is therefore reversed.

Shelby County Court of Appeals 03/13/18
Patrick Durkin v. MTown Construction, LLC
W2017-01269-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Rhynette N. Hurd

This appeal involves a homeowner’s lawsuit against a construction company for breach of contract and negligence. After a bench trial, the trial court entered judgment for the homeowner for $135,383.93 and denied a counterclaim filed by the construction company for the balance of the contract price. The construction company appeals, arguing that the trial court erred in its calculation of damages and in denying the counterclaim. We affirm in part, reverse in part, and remand for further proceedings.

Shelby County Court of Appeals 03/13/18
In Re: Riley W.
E2017-01853-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Robert D. Philyaw

Lindsey W. (“Mother”) appeals the September 25, 2017 order of the Juvenile Court for Hamilton County (“the Juvenile Court”) terminating her parental rights to the minor child Riley W. (“the Child”) upon the grounds of substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2) and persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). We find and hold that grounds for terminating Mother’s parental rights to the Child pursuant to Tenn. Code Ann. §§ 36-1- 113(g)(2) and (g)(3) were proven by clear and convincing evidence and that it was proven by clear and convincing evidence that the termianation was in the Child’s best interests. We, therefore, affirm the September 25, 2017 order of the Juvenile Court terminating Mother’s parental rights to the Child.

Hamilton County Court of Appeals 03/12/18
In Re Homer D., Et Al.
M2017-00298-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Daryl A. Colson

This is a termination of parental rights case. The trial court terminated Appellant’s parental rights on the grounds of: (1) abandonment by willful failure to support; (2) persistence of the conditions that led to the children’s removal; and (3) substantial noncompliance with the requirements of the permanency plans. The trial court also found that termination of Appellant’s parental rights was in the children’s best interest. On appeal, the Tennessee Department of Children’s Services concedes that the persistence of conditions ground is not applicable to Appellant. We agree and accordingly reverse the trial court’s reliance on that ground for termination. Although we also reverse the trial court’s finding of abandonment, because it is only necessary that one ground for termination be established, the trial court’s termination order is otherwise affirmed. 

Davidson County Court of Appeals 03/09/18
State of Tennessee, on Relation of V. Calvin Howell, et al. v. Jimmy Farris, et al.
W2017-00438-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Martha Brasfield

This case arose as a result of a local building inspector’s refusal to issue building permits to the owner/developer of three commercial properties because the owner/developer did not have a licensed general contractor overseeing construction. Subsequently, without submitting completed applications for the building permits or paying the required permit fees, the owner/developer appeared before the Bolivar city council to appeal the denials of the building permits. Relying on the recommendation of the city attorney, the city council determined that because the owner/developer had not filed written building permit applications or paid building permit fees, an appeal was not appropriate and refused to take any action. The owner/developer then filed a complaint for a writ of certiorari and other relief in the Chancery Court. Following the filing of the lawsuit, the owner completed the applications, paid the permit fees, and the building permits were issued. The owner/developer was later granted permission to amend his complaint to allege an inverse condemnation claim based on a regulatory taking. The defendants subsequently moved for summary judgment. The Chancery Court ultimately granted defendants summary judgment on all of the owner/developer’s initial claims. The defendants later filed a motion to dismiss as to the owner/developer’s claim for inverse condemnation. The motion to dismiss was also granted by the Chancery Court. The owner/developer appeals. For the reasons stated herein, the decision of the Chancery Court is affirmed.

Hardeman County Court of Appeals 03/09/18
Charles Joseph Tooley v. Pamela M. Howey Tooley
M2017-00610-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joe Thompson

In this divorce, the husband appeals the trial court’s award of alimony in futuro, the amount of alimony awarded, and the allocation of marital debt. Concluding that the evidence does not preponderate against the trial court’s findings and that the trial court did not abuse its discretion in applying relevant legal principles, we affirm.    

Sumner County Court of Appeals 03/08/18
State of Tennessee v. Roscoe Dixon
W2017-01051-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

Former state senator convicted of bribery appeals the trial court’s denial of the restoration of his voting rights based on Tennessee Code Annotated section 40-29-204. Discerning no reversible error, we affirm.

Shelby County Court of Appeals 03/06/18
In Re Estate of Eloise J. Storey
W2017-00689-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kathleen N. Gomes

Following eleven years of litigation, Appellant appeals the trial court’s award of both attorney’s fees, executor’s fees, and expenses charged to the estate. Discerning no error, we affirm.

Shelby County Court of Appeals 03/05/18
Melody Crunk Telfer v.George Curtiss Telfer
M2017-00420-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor James G. Martin, III

This appeal arises from a divorce case that was appealed and remanded and now once again is back before us. Melody Crunk Telfer (“Wife”) filed for divorce from husband George Curtiss Telfer (“Husband”) in 2010. A final decree of divorce was entered in 2012. Husband appealed the finding that he lacked a marital interest in two of Wife’s business entities. This Court found that the appreciation in value of the entities at issue was marital property subject to equitable division. On remand, the Chancery Court for Williamson County (“the Remand Court”) valued the appreciation, divided the marital estate, and awarded Husband attorney’s fees. Husband appeals to this Court. We find, inter alia, that the approximately 84/16 division of the marital estate in favor of Wife rendered by the Remand Court is inequitable in light of the evidence and the relevant statutory factors. We vacate that portion of the Remand Court’s order and remand for a fresh division of the marital estate on a 65/35 basis in favor of Wife. We otherwise affirm the Remand Court.   

Williamson County Court of Appeals 03/05/18
Dawn W. Kinard, et al. v. NationStar Mortgage, LLC, et al.
W2017-01131-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Walter L. Evans

This appeal involves various issues related to a mortgage loan transaction and loan modification efforts. The plaintiffs’ complaint, which was filed just a few days before a scheduled foreclosure, asserted multiple claims for relief, including breach of contract, breach of the covenant of good faith and fair dealing, and violation of the Truth-in- Lending Act. The trial court ultimately dismissed all claims at summary judgment in the defendants’ favor. For the reasons stated herein, we affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion

Shelby County Court of Appeals 03/02/18
Barbara Jarnigan Et Al. v. Claude Moyers
E2017-02398-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Douglas T. Jenkins

This case involves allegations of fraud and undue influence with respect to the estate of Brenda Vargo (the deceased). Following the deceased’s death, four surviving family members discovered that they were no longer designated as “payable-on-death” beneficiaries on several of the deceased’s bank accounts. These family members filed suit against Claude Moyers (Mr. Moyers), alleging that Mr. Moyers’s wife, Wanda Moyers (Mrs. Moyers), persuaded the deceased, “through fraud or undue influence,” to close some of her bank accounts and to name Mr. Moyers as the sole payable-on-death beneficiary on the remaining accounts. Following a bench trial, the court determined that Mrs. Moyers had a confidential relationship with the deceased; hence, creating a rebuttable presumption of undue influence. The trial court imputed the undue influence of Mrs. Moyers to Mr. Moyers. Ultimately, the trial court determined that Mr. Moyers failed to rebut the presumption of undue influence by clear and convincing evidence. Consequently, the court divested Mr. Moyers of his interest in the disputed funds. Mr. Moyers appeals. We reverse and remand for further proceedings.

Hamblen County Court of Appeals 03/02/18
James William Sherrell, Jr. v. Lisa Daniela Schnur
E2017-00744-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge W. Neil Thomas, III

The Trial Court in this custody proceeding attempted to certify as a final judgment, pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure, the order entered on March 31, 2017, which resolved all issues in the proceedings below except those related to the payment of child support for the benefit of the parties’ minor child. Because the order fails to expressly determine in accordance with the rule that “there is no just reason for delay,” the order is not appealable as a certified final judgment pursuant to Rule 54.02. See Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983). We therefore lack jurisdiction to consider this appeal and it is dismissed without prejudice to the filing of a new appeal once a final judgment or appropriately certified final judgment has been entered.

Hamilton County Court of Appeals 03/01/18
Metropolitan Government of Nashville & Davidson County, TN v. Jeremy Brittenum
M2016-02586-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This is an animal cruelty case. The circuit court entered an order finding Appellant guilty of numerous violations of the city’s animal cruelty, animal hoarding and vaccinations ordinances. Because the trial court did not make sufficient findings of fact as required under Tennessee Rule of Civil Procedure 52.01, we vacate the trial court’s judgment.

Davidson County Court of Appeals 03/01/18
Brent Dewayne Carr v. Kellie Renea Carr
M2017-00556-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Daryl A. Colson

This is an appeal in a divorce proceeding wherein the Mother of the parties’ child appeals the trial court’s designation of Father as primary residential parent and designation of the residential parenting schedule, contending that the trial court failed to properly consider Father’s history of domestic violence and abuse against her. Upon our review we have determined that the findings of fact and conclusions of law entered by the trial court did not include a discussion of the impact of Tennessee Code Annotated section 36-6-406 on the finding of domestic violence; accordingly, we vacate the decision and remand the case for the court to make appropriate findings in that regard.

Overton County Court of Appeals 03/01/18
In Re Estate of Sylvia Marene Tolbert Et Al. v. State ot Tennessee
M2017-00862-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Commissioner Robert N. Hibbett

Claimants asserted monetary claims against the State of Tennessee for personal injuries and property damage resulting from an automobile accident with a state employee. The Tennessee Claims Commission found the State liable and awarded compensatory damages. On appeal, the State argues that the Claims Commission erred in awarding damages for medical expenses based on the claimants’ unadjusted medical bills. Upon review, we conclude that the collateral source rule precludes introduction of evidence of insurance adjustments to claimants’ medical bills. Accordingly, we affirm.

Court of Appeals 02/28/18
Gene Parish v. Smith Utility District, Et Al.
M2016-00815-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge John D. Wootten, Jr.

Plaintiff brought an action against a local utility district for damages allegedly arising from the construction and maintenance of a water line on plaintiff’s property. Plaintiff also sought injunctive relief. The utility company moved to dismiss, asserting that it was immune from suit or, alternatively, that plaintiff’s action was barred by the applicable statute of limitations. The trial court granted the utility company’s motion. The court concluded that plaintiff’s claim for damages were barred by the Governmental Tort Liability Act. The court further concluded that plaintiff’s request for injunctive relief was barred by the GTLA’s one-year statute of limitations. And the court determined that the action would be barred by the one-year statute of limitation applicable to governmental takings. We conclude that the gravamen of plaintiff’s claim was for inverse condemnation, and the action was time barred.  

Smith County Court of Appeals 02/28/18
In Re Allie A. Et Al.
M2018-00326-COA-T10B-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Tim Barnes

This is an accelerated interlocutory appeal as of right from the denial of a motion for recusal. The petition for recusal appeal was filed twenty-four days after entry of the order denying the motion. Because the appeal was untimely, we dismiss. 

Montgomery County Court of Appeals 02/28/18
Angela Stevens, et al. v. State of Tennessee
M2017-01114-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Commissioner Robert N. Hibbett

State of Tennessee appeals the Claims Commission’s award of damages to a mother and daughter who were injured in an automobile accident with a state employee driving a state-owned vehicle. Discerning no error in the award of damages, we affirm the decision.

Court of Appeals 02/28/18
Lorna Mae Gibson v. Charles William Bikas
E2017-00883-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Pamela A. Fleenor

This case involves an order of protection sought by the petitioner against the respondent, who is the petitioner’s brother-in-law, on behalf of the petitioner and her two minor daughters. The petitioner previously had obtained an order of protection that had expired in May 2016. On March 24, 2017, the petitioner filed a petition seeking a one-year, no-contact order of protection, alleging that, inter alia, since entry of the prior order, the respondent had repeatedly attempted to influence her by following through on threats to obtain custody of the petitioner’s two minor daughters. The trial court initially granted an ex parte order of protection as to the petitioner but denied the petition as to the children, questioning whether standing existed because the petitioner did not at that time have physical or legal custody of her daughters. Following a subsequent bench trial, the trial court found that the petitioner had standing to petition for an order of protection on behalf of her children pursuant to Tennessee Code Annotated § 36-3-602(b). Also finding that the respondent posed a danger to the petitioner and her children, the trial court extended the ex parte order into a one-year, no-contact order of protection against the respondent on behalf of the petitioner and modified the order of protection to include the petitioner’s children. The court also awarded to the petitioner reasonable attorney’s fees. The respondent appeals. Discerning no reversible error, we affirm.

Hamilton County Court of Appeals 02/28/18
Dr. Norman C. Loggins v. Continental Apartments, et al.
W2017-00955-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jerry Stokes

This complaint is a forcible entry and detainer action. Appellant appeals the trial court’s denial of his motion for default judgment. The order appealed is not a final judgment so as to confer subject matter jurisdiction on this Court pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. Accordingly, we dismiss the appeal. Because the trial court entered its order dismissing Appellant’s complaint while the appeal was pending in this Court, we vacate the order of dismissal.

Shelby County Court of Appeals 02/27/18
SecurAmerica Business Credit v. Southland Transportation Co., LLC, et al.
W2016-02505-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Donna M. Fields

This is the fourth appeal in a case primarily concerned with whether two individual defendants are liable on loan guaranties. Following the third appeal, we remanded the case to the trial court to determine: (1) whether one of the defendants is liable under a Guaranty of Validity of Collateral (“GVC”); (2) whether prejudgment interest should be awarded to the lender on personal guaranties both defendants signed; and (3) whether the lender is entitled to recover additional attorney’s fees incurred in enforcing the guaranties since the previous appeal. On remand following the third appeal, the trial court found that the defendant was not liable on the GVC. The trial court also found that the lender was not entitled to prejudgment interest because the lender committed fraud, and it declined to award the lender any additional attorney’s fees. Although the defendants prevailed on all three issues, they appeal, seeking reconsideration of this court’s determination in an earlier appeal that the defendants failed to prove their claim of fraud, which would relieve them of any liability. The lender counters, insisting that this court’s previous decision, wherein we affirmed the trial court’s determination that the defendants failed to prove fraud, is the law of the case. The lender also raises its own issues for our consideration, including whether the trial court’s findings of fact and conclusions of law concerning fraud, as stated in the final order drafted by counsel for the defendants, reflects the trial court’s independent judgment. A careful review of the trial court’s oral ruling from the bench and the written order, as well as previous findings of fact made by the trial court, leads us to conclude that some of the findings of fact stated in the final order do not reflect the trial court’s independent judgment. Therefore, the presumption under Tenn. R. App. P. 13(d) that a trial court’s specific findings of fact are supported by the evidence shall be limited to those findings that appear to reflect the independent judgment of the trial court. We have also determined that the law of the case doctrine precludes us from reconsidering the defendants’ claim of fraud. We affirm the trial court’s determination that one of the defendants is not liable on the GVC, albeit, on different grounds. We reverse the trial court’s decision not to award the lender prejudgment interest and additional attorney’s fees, finding that the lender has a statutory right to prejudgment interest and a contractual right to recover reasonable and necessary attorney’s fees that the lender incurred to enforce the guaranties. Therefore, we remand for further proceedings consistent with this opinion.

Shelby County Court of Appeals 02/27/18
In Re Victoria H.
M2017-01162-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Ronnie J. T. Blevins, II

This is a termination of parental rights case. Appellant/Father appeals the trial court’s termination of his parental rights on the grounds of: (1) failure to establish/exercise paternity; (2) abandonment by willful failure to support; and (3) abandonment by an incarcerated parent for wanton disregard. Appellant also appeals the trial court’s finding that termination of his parental rights is in the child’s best interest. Because Appellee Tennessee Department of Children’s Services did not meet its burden to show that Father has the ability to pay support, we reverse the trial court’s termination of Father’s parental rights on the ground of abandonment by willful failure to support. The trial court’s order is otherwise affirmed.

Marion County Court of Appeals 02/27/18
Regina Montanna Marie Mullins v. Amy Paige Hernandez
E2017-00356-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Alex E. Pearson

Regina Mullins (petitioner) sought an order of protection against Amy Hernandez (respondent), the grandmother of one of petitioner’s children. The parties were living together in an apartment when respondent allegedly threatened petitioner and her mother with a handgun. After a hearing, the trial court found that respondent did threaten petitioner, and that “there was a gun involved,” but held that these facts did not constitute “legally sufficient proof for an order of protection to be issued.” We hold that the facts found by the trial court provide a legal basis for the issuance of an order of protection under the statutes governing such orders, Tenn. Code Ann. § 36-3-601 et seq. (2017). Consequently, we reverse the judgment of the trial court and remand for the issuance of a protective order.

Hawkins County Court of Appeals 02/27/18