Court of Appeals Opinions

Format: 12/06/2016
Format: 12/06/2016
Jeff Lowe v. John Smith, et al.
M2015-02472-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Vanessa Jackson

Plaintiff seller filed suit against defendant buyers after buyers stopped paying interest on a line of credit under the terms of a contract for the sale of a convenience store. The trial court concluded that both sides breached the contract. As a result, the trial court ordered that buyers were required to pay the seller the contracted amount, less $16,000.00 resulting from buyer’s breach. Buyers appealed. Discerning no error, we affirm. 

Coffee County Court of Appeals 09/19/16
Sharper Impressions Painting Co., et al v. Dan Yoder
M2015-00841-COA-R9-CV
Authoring Judge: Judge S. Neal McBrayer
Trial Court Judge: Judge Hamilton V. Gayden, JR.

This interlocutory appeal involves the failure of an Ohio corporation to obtain authorization to transact business in Tennessee prior to filing suit. The Ohio corporation filed this action against a former employee, seeking monetary damages and injunctive relief for breach of contract, unjust enrichment, and misappropriation of trade secrets. The former employee moved for partial summary judgment on the ground that the Ohio corporation had not obtained a certificate of authority from the Tennessee Secretary of State, as required by law, and thus was barred from maintaining an action in Tennessee court. The trial court granted the motion but allowed the Ohio corporation thirty days to obtain the certificate. After obtaining the certificate, the Ohio corporation filed a motion to reinstate its claims against the former employee. The trial court denied the motion, ruling that the certificate of authority only allowed the Ohio corporation to maintain an action on claims that arose after the date the certificate of authority was issued. We granted the Ohio corporation’s application for an interlocutory appeal. We conclude, based on the plain language of Tennessee Code Annotated § 48-25-102, that a foreign corporation who has filed an action in a Tennessee court without a certificate of authority may obtain a certificate during the pendency of the case and then prosecute the action. Therefore, we reverse the decision of the trial court and remand for further proceedings.

Davidson County Court of Appeals 09/19/16
In Re Mickia J.
E2016-00046-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Brian J. Hunt

This is a termination of parental rights case. Appellant/Father appeals the termination of his parental rights on the sole ground of persistence of the conditions that led to the child’s removal. Tenn. Code Ann. §36-1-113(g)(3). As a threshold requirement, in order for the persistence of conditions ground to apply in termination of parental rights proceedings, there must be a prior order adjudicating the child to be dependent and neglected. No such order is included in the appellate record. Furthermore, it is undisputed that Appellant was incarcerated at the time the child was removed from the home. Removal of the child from the parent’s home is a threshold requirement for applicability of the persistence of conditions ground. Because there is no order on dependency and neglect and because the child was not removed from Appellant’s custody or home, we conclude that the threshold requirements for applicability of the persistence of conditions ground are not met in this case. Reversed and remanded.

Anderson County Court of Appeals 09/19/16
In Re: Samuel D., et al.
E2015-01449-COA-R3-JV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Gregory S. McMillan

This appeal arises from a finding of dependency and neglect. Ashley D. (“Mother”) and Matthew M. (“Father”) are the parents of Samuel D. and Uriah D. The Tennessee Department of Children’s Services (“DCS”) sought a finding of dependency and neglect regarding Samuel and Uriah stemming from the alleged sexual abuse by Father of their older half-siblings, Gage and Gracie, with Mother’s knowledge. The Circuit Court for Knox County, Fourth Circuit (“the Trial Court”) adjudicated Samuel and Uriah dependent and neglected. Mother and Father appeal. DCS concedes one of Father’s issues, which we reverse. Otherwise, we affirm the judgment of the Trial Court finding Samuel and Uriah dependent and neglected.

Knox County Court of Appeals 09/19/16
Charles Groves, et al v. Ernst-Western Corporation
M2016-01529-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joe Thompson

This is an accelerated interlocutory appeal from the trial court’s denial of a recusal motion. Having reviewed the trial court’s ruling on the motion pursuant to the de novo standard of review required by Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial court.  

Sumner County Court of Appeals 09/16/16
Stratford Hall Home Owners' Association v. Roger G. Haley
M2015-01948-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Mitchell Keith Siskin

Homeowners’ association brought suit against homeowner who refused to paint his home as requested. After a bench trial, the court determined that the board of the homeowners’ association had properly exercised its discretion and ordered homeowner to paint his house. Homeowner appeals, contending that the appearance of his home was consistent with the appearance of homes and the common areas of the subdivision. Upon our de novo review, we have determined that the board had authority under the bylaws governing the association and the subdivision’s covenants to require the homeowner to paint his home, and that the board’s action was appropriate. Accordingly, we affirm the judgment.  

Rutherford County Court of Appeals 09/16/16
In Re: Kenneth G.
M2016-00380-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Amy V. Hollars

This appeal involves the termination of a father’s parental rights to his minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of his rights on the statutory grounds of abandonment for failure to visit and to support the child. The court further found that termination was in the best interest of the child. The father appeals. We affirm.

DeKalb County Court of Appeals 09/15/16
In Re: Stormie M., et al.
M2015-02336-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Ken Witcher

This appeal involves the termination of parental rights with respect to three minor children. The trial court terminated Mother’s parental rights on the grounds of abandonment, substantial noncompliance with the permanency plans, persistent conditions, and severe child abuse. The trial court also terminated the parental rights of the putative father of one of the minor children. On appeal, we conclude that considerations of fundamental due process require us to vacate that portion of the trial court’s final decree terminating the putative father’s parental rights. Concerning Mother’s parental rights, we reverse the trial court’s determination that Mother abandoned the children by willfully failing to support them in the four months preceding the filing of the termination petition. We also reverse the trial court’s finding that clear and convincing evidence established the ground of persistent conditions. However, because clear and evidencing evidence supports at least one ground for termination and that termination is in the children’s best interests, we ultimately affirm the termination of Mother’s parental rights.

Macon County Court of Appeals 09/15/16
Paul D. Kennamer, Sr. Et Al. v. Bethany E. Chaffin et al.
E2016-01417-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This is an appeal from an order dismissing the claims made by the appellant, Paul D. Kennamer, Sr., against the appellees, Bethany E. Chaffin and Maria Kishimoto. Because the claims raised by Dorothy Kennamer in the Amended Complaint remain pending against the appellees, we lack jurisdiction to consider this appeal.

Hamilton County Court of Appeals 09/13/16
Crye-Leike Property Management, et al. v. Nedra Drayton
W2015-02437-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert Samual Weiss

This is a forcible entry and detainer warrant case. The General Sessions Court for Shelby County entered a default judgment against the Appellant/tenant and granted an order for immediate possession in favor of the property manager and the landlord, Appellees. The Appellant filed a notice of appeal to the Circuit Court for Shelby County, using a pauper's oath in lieu of an appeal bond. The Circuit Court for Shelby County dismissed the appeal, finding that Appellant failed to perfect the appeal because she did not post a possession bond although she retained possession of the property. We affirm and remand.

Shelby County Court of Appeals 09/12/16
Christy Gail Bowman v. Mounir Benouttas, et al.
M2015-01723-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Walter C. Kurtz

At issue in this case is whether a defendant, which claims to be merely the broker of a shipment that was being delivered, may be held vicariously liable for the negligence of the delivery driver. This action arises out of a motor vehicle accident involving a tractor-trailer that was owned and operated by Mounir Benouttas. At the time of the accident, Mr. Benouttas was delivering a shipment pursuant to a contractual arrangement with MGR Freight Systems, Inc. In addition to suing Mr. Benouttas and MGR, Plaintiff sued AllStates Trucking, Inc., which had contracted with MGR to deliver the shipment to AllStates’ customer. Plaintiff claimed AllStates was vicariously liable under the doctrines of respondeat superior and joint venture. Plaintiff later amended her complaint to include the additional theory of implied partnership. The trial court summarily dismissed all claims against AllStates because Plaintiff could not establish an agency relationship, joint venture, or implied partnership. Plaintiff appeals contending summary judgment was inappropriate because material facts are at issue. Plaintiff also challenges the trial court’s decision to consider only the legal theories Plaintiff explicitly stated in her complaint, the court’s partial denial of Plaintiff’s motion to amend her complaint, denial of her motion for summary judgment, and its decision to allow AllStates to rely on untimely filings. Finding no error with the trial court’s decisions, we affirm. 

Coffee County Court of Appeals 09/09/16
Angela Slavko v. Scott Slavko
M2015-01267-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Franklin L. Russell

This post-divorce appeal concerns the mother’s notice of intent to relocate to Pennsylvania with the parties’ minor children. The father responded by filing a petition in opposition to the requested relocation. The trial court granted the father’s petition. The mother appeals. We reverse the decision of the trial court.

Marshall County Court of Appeals 09/09/16
In Re: Zachariah G.
M2015-02350-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Donna Scott Davenport

This appeal concerns a termination of parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Rutherford County (“the Juvenile Court”) seeking to terminate the parental rights of Brooke G. (“Mother”) to the minor child Zachariah G. (“the Child”). After a trial, the Juvenile Court entered an order finding the grounds of severe abuse and abandonment by wanton disregard by clear and convincing evidence and finding also that termination of Mother’s parental rights is in the Child’s best interest. Mother appeals to this Court. We affirm the judgment of the Juvenile Court.

Rutherford County Court of Appeals 09/08/16
John Christopher Gibbs v. Lisa Stacy Gibbs
E2015-01362-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge James Cotton

This appeal involves a post-divorce civil contempt petition. Approximately three years after the parties’ divorce, the former wife filed a petition in the trial court seeking to hold the former husband in civil contempt for willfully breaching provisions of their property settlement agreement that was incorporated into the divorce decree that required him to pay certain debts and transfer certain real and personal property to her. The husband did not attend the contempt hearing, and the trial court found that he willfully violated the divorce decree based on the wife’s testimony. The trial court ordered that the husband be incarcerated and fined $50 per day until such time as he came into compliance with the divorce decree. On appeal, the husband argues that the trial court lacked the authority to enforce the property settlement agreement by contempt and that his failure to comply was not willful. We hold that contempt is a proper remedy for the breach of a property settlement agreement that has been incorporated into the divorce decree. Additionally, we hold that the evidence does not preponderate against the trial court’s finding that the husband’s failure to comply with the divorce decree was willful. We therefore affirm the judgment of the trial court as modified in this opinion.

Claiborne County Court of Appeals 09/07/16
In Re: Braxton R.
M2016-00602-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Sammie E. Benningfield, Jr.

This appeal involves the termination of a father’s parental rights to his nearly three-year-old child. In 2014, the child was adjudicated dependent and neglected due to his parents’ substance abuse, including the fact that the child was born with illegal drugs and non-prescribed medication in his system. In 2015, the Tennessee Department of Children’s Services filed a petition seeking to terminate the father’s parental rights on the statutory grounds of abandonment and severe child abuse. The juvenile court found that the grounds of abandonment and severe child abuse were proved by clear and convincing evidence and also found by clear and convincing evidence that termination of father’s rights was in the child’s best interests. The father appeals. We affirm.     

White County Court of Appeals 09/02/16
In Re Efrian F.
W2016-01431-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Dan H. Michael

Because the notice of appeal was not timely filed, we have no jurisdiction to consider this appeal and this matter must be dismissed.

Shelby County Court of Appeals 09/01/16
Anita V. Wadhwani v. Peter L White
M2015-01447-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Phillip E Smith

In this post-divorce matter, the parties have been litigating for several years regarding issues of co-parenting time, child support, and contempt. In 2013, the trial court reduced the father’s child support obligation based upon its finding that a significant variance existed between the prior child support amount and the new amount calculated utilizing the father’s income. The trial court ordered that such modification would begin as of May 2012, when the State of Tennessee filed a petition seeking modification on the father’s behalf. The father attempted to file an appeal of this matter in 2013, but the appeal was dismissed due to lack of a final order. Following remand, the trial court reviewed and adjusted the child support modification based upon demonstration of the father’s income from all sources, including an inheritance he received from a relative. A final order was entered July 27, 2015. The father has appealed the trial court’s judgment. Discerning no reversible error, we affirm.

Davidson County Court of Appeals 08/31/16
Andrea Scott et al v. Carlton J. Ditto et al.
E2014-02390-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This action involves a dispute between the holders of conflicting claims to the ownership of a residential lot in Chattanooga. The City sold the property at a delinquent tax sale. Unbeknownst to those involved in the tax sale, the property had earlier been sold at a foreclosure sale conducted by the holder of a deed of trust on the property. After a dispute arose between Andrea Scott, who had bought the property from a successor to the purchaser at the foreclosure sale, and Carlton J. Ditto, who bought the property at the tax sale, Scott filed this action against Ditto and others to quiet title to the property. Ditto filed a counterclaim. He also filed a cross-claim against several of the defendants. The trial court granted Scott summary judgment based on its determination that she was a bona fide purchaser without notice of the tax sale to Ditto and that she had recorded her deed first. The trial court dismissed Ditto’s cross-claim. We affirm the trial court’s dismissal of the cross-claim against the lender and others, because Ditto does not have standing to challenge the foreclosure sale. With respect to the trial court’s grant of summary judgment to Scott, we hold that the evidence presented by Ditto in opposition to summary judgment establishes a genuine issue of material fact as to whether Scott had notice of Ditto’s interest in the property prior to her purchase of that property. Accordingly, we vacate the trial court’s grant of summary judgment and remand for further proceedings.

Hamilton County Court of Appeals 08/31/16
In re Savannah F. et al.
E2016-00064-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Timothy E. Irwin

The trial court terminated the parental rights of Mother and Father to their three children on the grounds of persistence of conditions and severe abuse. Because there was no judicial finding of dependency, neglect, or abuse removing the children from the custody of Mother and Father more than six months prior to the termination hearing, as required by Tennessee Code Annotated Section 36-1-113(g)(3), we reverse the trial court’s determination that the ground of persistence of conditions was shown by clear and convincing evidence. Because we affirm the trial court’s determination of severe abuse and its determination that termination is in the children’s best interests, however, we affirm the termination of Mother’s and Father’s parental rights to their three children.

Knox County Court of Appeals 08/31/16
In re Savannah F. et al.
E2015-02529-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Timothy E. Irwin

The trial court terminated the parental rights of Mother and Father to their three children on the grounds of persistence of conditions and severe abuse. Because there was no judicial finding of dependency, neglect, or abuse removing the children from the custody of Mother and Father more than six months prior to the termination hearing, as required by Tennessee Code Annotated Section 36-1-113(g)(3), we reverse the trial court’s determination that the ground of persistence of conditions was shown by clear and convincing evidence. Because we affirm the trial court’s determination of severe abuse and its determination that termination is in the children’s best interests, however, we affirm the termination of Mother’s and Father’s parental rights to their three children.

Knox County Court of Appeals 08/31/16
Eric G. Glasgow v. K-VA-T Food Stores, Inc.
E2015-01653-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge David Reed Duggan

This is an appeal from a jury verdict in a premises liability action in which the plaintiff filed suit against the defendant, alleging that he sustained injury while using the restroom in a grocery store operated by the defendant. The court denied the defendant’s request for a directed verdict and submitted the case to the jury, which awarded $350,000 in compensatory damages. Following the denial of post-trial motions, the court approved the verdict but reduced the award to conform to the amount of damages pled. The defendant appeals, claiming the reduced award is not supported by material evidence. We affirm.

Blount County Court of Appeals 08/31/16
In re Samuel P.
W2016-01592-COA-T10B-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Special Judge William A. Peeler

This accelerated interlocutory appeal arises from the trial court's denial of a motion for recusal filed by a father in a custody proceeding. After carefully reviewing the trial court's ruling pursuant to the de novo standard of review required under Tennessee Supreme Court Rule 10B, we affirm the decision of the trial court denying the motion for recusal.

Shelby County Court of Appeals 08/31/16
Randal L. Arthur v. Pamela Stewart, et al.
M2015-01628-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joe Thompson

A boat repairman sued boat owners in general sessions court for a portion of the cost to repair their boat. The repairman was awarded less than he sought and appealed the case to the circuit court. The circuit court awarded the same amount to the repairman, and the repairman appealed the judgment to this Court. The record contains a statement of evidence, but it contains no transcript of the proceedings or any exhibits. We are unable to conduct a meaningful review based on the record in this case and affirm the trial court’s judgment.

Sumner County Court of Appeals 08/30/16
In re C.D.
M2016-00275-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Tim Barnes

The Department of Children’s Services filed a petition to terminate the parental rights of G.D. (Mother) to her child, C.D. (the Child). The trial court found clear and convincing evidence of one ground supporting termination. The court also found, by the same quantum of proof, that termination is in the best interest of the Child. Mother appeals. We affirm.

Montgomery County Court of Appeals 08/30/16
Grenda Harmer v. Turney Center Disciplinary Board et al.
M2016-00506-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph Woodruff

An inmate of the Tennessee Department of Correction housed at the Turney Center Industrial Complex in Only, Tennessee, filed a petition for common law writ of certiorari seeking review of his prison disciplinary conviction. The trial court dismissed the petition on the grounds that the inmate failed to pay prior court costs, violating Tennessee Code Annotated § 41-21-812, and filed an affidavit of indigency that contained falsities, violating Tennessee Code Annotated § 41-21-804. This appeal followed. We affirm the dismissal of the petition for writ of certiorari on the basis that Petitioner failed to disclose all previously filed lawsuits in violation of Tennessee Code Annotated § 41-21-805 but modify it to the extent that the petition is dismissed without prejudice. 

Hickman County Court of Appeals 08/30/16