Court of Appeals Opinions

Format: 03/30/2015
Format: 03/30/2015
Cedric Jones, Sr. v. State Farm Fire & Casualty
M2014-00208-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Russell T. Perkins

Suit for breach of contract to recover on a homeowners policy for losses sustained when policyholder’s home was allegedly burglarized and was allegedly damaged as a result of a storm. Upon defendant’s motion, the trial court granted summary judgment, holding that the insurance company defendant had demonstrated that policyholder could not meet his burden of proof as to any of his claims.  After a thorough review of the record, we discern no error and affirm the judgment of the trial court.

Davidson County Court of Appeals 12/30/14
In Re: Donald C., et al
M2014-01327-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge A. Andrew Jackson

Mother’s parental rights to her children were terminated on grounds of abandonment by failure to visit, persistence of conditions, and noncompliance with a permanency plan. Mother challenged the ground of abandonment, arguing there was a no contact order in place that prevented her from visiting her children. When the no contact order was put into place, Mother was informed she would be able to visit her children if she passed drug tests and took parenting classes. Mother continued to test positive for illegal drugs and failed to take advantage of services offered by the Department of Children’s Services. We affirm the trial court’s judgment that Mother abandoned her children by failing to visit them and that it is in their best interest to terminate her rights. A petition for custody that may have been pending when Mother’s rights were terminated is part of a different proceeding and does not render the court’s decision to terminate Mother’s rights premature.

Dickson County Court of Appeals 12/30/14
Aimee Lorraine Howell v. Clint Austin Howell
M2013-02260-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Tom E. Gray

In this divorce action, Father appeals the rehabilitative alimony and alimony in solido awarded to Mother, the amount of parenting time he received, the designation of Mother as sole decision-maker and the failure of the trial court to find that Mother was voluntarily underemployed. We affirm the award of rehabilitative alimony and alimony in solido and the designation of Mother as primary residential parent; we vacate and remand for further consideration the residential parenting schedule,the allocation of decision-making authority, and the determination of Mother’s income.

Sumner County Court of Appeals 12/30/14
Dietrich Hill, et al. v. City of Memphis, et al
W2013-02307-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kenny W. Armstrong

This case arises out of an investigation by the Memphis police department of a business suspected of selling illegal inhalants. The business owner was arrested and charged with the criminal sale of inhalants. The police seized bank accounts belonging to the owner and two corporations related to the business and instituted forfeiture proceedings regarding the funds in those accounts. The bank account owner and the two corporations filed suit against the city and multiple police officers seeking damages pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988. The trial court granted the city’s motion to dismiss for failure to state a claim upon which relief could be granted. In denying the plaintiff’s motion to alter or amend, the trial court stated that the amended complaint failed to allege any Fourth or Fifth Amendment violations, the grounds upon which the plaintiffs sought relief. With respect to the only remaining individual defendant, the trial court denied the plaintiffs’ motion to amend the first amended complaint, holding, in part, that the existence of adequate post-deprivation remedies precluded any Fourth or Fifth Amendment claims. We affirm.

Shelby County Court of Appeals 12/30/14
Aurora Loan Services, LLC v. Yvette D. Woody, et al.
W2014-00761-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Donna M. Fields

In this detainer action, the trial court granted summary judgment in favor of the loan servicing company. Discerning no error, we affirm.

Shelby County Court of Appeals 12/30/14
Leon Dickson, Sr. v. Sidney H. Kriger, M.D.
W2013-02830-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge James F. Russell

Patient brought a health care liability action against his eye surgeon, alleging that the surgeon’s negligence in performing a LASIK procedure resulted in several eye injuries. The trial court granted a directed verdict for the surgeon, finding the patient failed to present evidence establishing the standard of care and causation. Because we find the evidence was sufficient to create an issue for the jury, we reverse and remand to the trial court.

Shelby County Court of Appeals 12/30/14
George Ernest Diggs v. David Lingo, et al.
W2014-00525-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donald E. Parish

This is an appeal from an order denying a motion to compel arbitration. The beneficiaries of a trust filed this lawsuit against the trustee alleging trustee self-dealing arising from a transaction in which the trustee and his wife purchased certain real property from the trust as tenants by the entirety. The beneficiaries sought to set aside a portion of the sale. The trustee filed a motion to compel arbitration pursuant to an arbitration clause in the trust agreement. The beneficiaries opposed the motion, arguing that they could not be compelled to arbitrate their claims against the trustee’s wife. The trial court agreed and denied the motion. The court found that the trustee’s wife was a necessary party to the resolution of the dispute, but because she was not a party to the trust agreement, there was no enforceable arbitration agreement between her and the beneficiaries. We affirm the decision of the trial court.

Henry County Court of Appeals 12/30/14
In Re Bryce F.
E2014-01380-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Tim Irwin

The State of Tennessee Department of Children’s Services (“DCS”) filed a petition seeking to terminate the parental rights of Lori D.F.P. (“Mother”) to the minor child Bryce F. (“the Child”). After a trial the Juvenile Court for Knox County (“the Juvenile Court”) terminated Mother’s parental rights to the Child after finding and holding, inter alia, that grounds had been proven by clear and convincing evidence to terminate Mother’s parental rights for abandonment by willful failure to pay child support pursuant to Tenn. Code Ann. § 36-1- 113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(i); for failure to substantially comply with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2); and for severe child abuse pursuant to Tenn. Code Ann. § 36-1-113(g)(4), and that the termination was in the Child’s best interest. Mother appeals to this Court. We find that the evidence does not preponderate against the Juvenile Court’s findings made by clear and convincing evidence, and we affirm.

Knox County Court of Appeals 12/30/14
In Re V.L.J. et al
E2013-02815-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Tammy M. Harrington

This is a parental termination case. It focuses on the three children of a married couple, D.G.B. (Mother) and D.C.B. (Father), and Mother’s child (V.L.J.) from an earlier relationship. The four children came into the custody of the Department of Children’s Services (DCS) in 2009. Nearly four years later, DCS filed a petition to terminate the rights of the parents. Following a trial, the court granted the petition based upon its finding (1) that multiple grounds for termination exist and (2) that termination is in the best interest of the children. Both findings were said by the trial court to be made by clear and convincing evidence. Mother and Father appeal. We affirm.

Blount County Court of Appeals 12/30/14
Dennis Turner et al v. City of Bean Station et al
E2013-02630-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Ben W. Hooper, II

Dennis Turner was injured while playing softball in a charity tournament at Marvin Rich Field in Bean Station. He sued the City of Bean Station, among other defendants, alleging that the City negligently failed to properly maintain the pitcher’s mound, pitcher’s rubber, and the field as a whole, resulting in his injury. The City moved for summary judgment, arguing that its governmental immunity is not removed by the Governmental Tort Liability Act (GTLA), which removes immunity for “any injury caused by the dangerous or defective condition of any public building, structure, dam, reservoir or other public improvement owned and controlled by [a] governmental entity.” Tenn. Code Ann. § 29-20-204(a)(2012) (emphasis added). The City presented proof establishing that it does not own Marvin Rich Field. The trial court denied the motion but granted permission for an interlocutory appeal. We reverse the trial court’s judgment and grant the City’s motion for summary judgment.

Grainger County Court of Appeals 12/30/14
Gregory Eidson v. City of Portland, et al
M2013-02256-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge C. L. Rogers

Plaintiff in suit to recover damages for injuries allegedly suffered in the course of his arrest appeals the grant of the motion to dismiss for failure to state a claim filed on behalf of the City and Police Chief and the grant of summary judgment to the police officers who participated in his arrest. In responding to the motions, plaintiff acknowledged that the claims against City, Police Chief and two of the officers should be dismissed; we affirm the dismissal of those claims and parties. The order granting summary judgment to the remaining officer does not state the legal ground therefor or make findings of fact relative thereto; consequently, we vacate the judgment and remand for further proceedings. We reverse the denial of plaintiff’s motion to amend to substitute one of the officers for the defendant named John Doe.

Sumner County Court of Appeals 12/29/14
C. Eddie Shoffner v. Tenneseee Consolidated Retirement System
M2014-00070-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Carol L. McCoy

An individual employed by Claiborne County as Director of Schools was terminated over two years earlier than the employment term set forth in the parties’ contract. The county and the individual entered into another contract (“modified contract”) whereby the individual agreed to work as Safety Coordinator for five months and be compensated in an amount equal to the amount he would have been paid had the prior contract not been terminated. This resulted in a salary increase of nearly $40,000 per month for each of the five months the individual was employed as Safety Coordinator. The modified contract provided that the employee would be paid whether he performed any work or not, and the employee agreed to waive and release any claims he might have against the county. When the employee applied for retirement benefits,the agencyin charge of calculating the amount of benefits did not treat the nearly $40,000 increase in compensation as “earnable compensation” because the additional compensation was not for “services rendered,” as required by the statute. The employee contested this decision, and the administrative law judge (“ALJ”) ruled in favor of the agency, granting the agency’s motion for summary judgment. The employee filed a petition for judicial review, and the trial court affirmed the ALJ’s decision. The employee appeals the trial court’s judgment to this Court, and we affirm.

Davidson County Court of Appeals 12/29/14
Nicole Goeser, et al v. Live Holdings Corporation, et al
M2013-02501-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Defendant in wrongful death action appeals the grant of a default judgment entered against him on the ground that he did not receive a copy of the motion prior to the hearing and, consequently, could not present a defense. Upon consideration of the entire record, we affirm the judgment in all respects.

Davidson County Court of Appeals 12/29/14
In Re: Teven A.
M2013-02519-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Sophia Brown Crawford

This appeal arises from the modification of Father’s parenting time and the juvenile court’s allocation of child support obligations. Father petitioned to modify custody or, alternatively, the residential parenting schedule. The juvenile court found that there had been no material change in circumstance and did not modify the primary residential parent designation. However, the court decreased Father’s parenting time and increased his child support obligation. Father appeals the juvenile court’s finding of no materialchange in circumstance, the modification of his parenting time, and the juvenile court’s failure to apply a credit for transportation costs against his child support obligation. Because we find the juvenile court applied an incorrect legal standard and failed to comply with Rule 52.01 of the Tennessee Rules of Civil Procedure, we vacate the judgment and remand for entry of an order with appropriate findings of fact and conclusions of law.

Davidson County Court of Appeals 12/29/14
Betty Graham v. Crye-Leike Realty Corporation et al.
E2013-01701-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jeffrey M. Atherton

At an earlier time, in 2011, Betty Graham had filed a lawsuit arising out of a failed real estate transaction against (1) her real estate agent, Ginny Hall; (2) Crye-Leike Realty Corporation; (3) S&J Southeast Investments, LLC, the potential buyer of her condominium with whom she had unsuccessfully negotiated a contract; and (4) attorney Ellie Hill, her trial court appointed guardian ad litem. The trial court granted the defendants’ Rule 12.02(6) motions to dismiss the complaint for failure to state a claim upon which relief could be granted. Graham appealed, but later voluntarily dismissed her appeal. Following her dismissal, our mandate, see Tenn. R. App. P. 42, 43, was issued on January 4, 2013. On April 26, 2013, Graham, acting pro se, “refiled” a lawsuit that is functionally identical to her first complaint. In her second suit, she relied upon the saving statute, Tenn. Code Ann. § 28-1-105(a) (2000). The trial court dismissed her second complaint on the ground of res judicata. We affirm that dismissal. Furthermore, we conclude that Graham’s suit is frivolous. Hence, this case is remanded to the trial court for a determination of the defendants’ reasonable fees and expenses associated with this appeal.

Hamilton County Court of Appeals 12/29/14
City of Athens Board Of Education et al v. McMinn County, Tennessee et al.
E2013-02758-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Lawrence H. Puckett

This litigation is a dispute between the boards of education of the cities of Athens and Etowah (“the City School Boards”) on the one hand and McMinn County (“the County”) over the distribution of tax revenues among the various school systems within the county. Tenn. Code Ann. § 49-3-315(a) (2013) mandates that “[a]ll school funds for current operation and maintenance purposes collected by any county . . . shall be apportioned by the county trustee” among the local education agencies in the county based upon average daily school attendance. Over the years spanning from 1996 to 2011, the County apportioned funds in the account designated “general purpose school fund” to the City School Boards, but did not apportion funds from the County’s “educational capital projects fund.” The County argues that funds appropriated for and spent on school capital projects are not “school funds for current operation and maintenance purposes” under the language of the statute. The trial court agreed and granted the County summary judgment. It dismissed the complaint of the City School Boards. We affirm.

McMinn County Court of Appeals 12/29/14
In Re Jaden W.
E2014-00388-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert G. Lincoln

This is a termination of parental rights case brought by the Tennessee Department of Children’s Services. The trial court terminated the parental rights of both parents on the grounds of severe child abuse and wanton disregard for the welfare of the child. Parents appeal. There is clear and convincing evidence to support the grounds of wanton disregard with respect to both parents and severe child abuse with regard to the father. However, we do not find that there is clear and convincing evidence to support the ground of severe child abuse with regard to the mother. There is clear and convincing evidence that termination of both parents’ rights is in the child’s best interest. We reverse in part, affirm in part, and remand.

Washington County Court of Appeals 12/26/14
Thomas Energy Corporation v. Caterpillar Financial Services Corporation
E2014-00226-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Thomas J. Seeley, Jr.

This is a breach of contract and promissory estoppel action in which Plaintiff filed suit against Defendant for failure to fulfill an oral modification of leases for several pieces of earthmoving equipment. Defendant denied wrongdoing and filed a motion for summary judgment. The trial court granted the motion, in part, and dismissed the promissory estoppel claim. The case proceeded to a jury trial on the breach of contract claim, but the jury failed to render a verdict. The court declared a mistrial, and Defendant filed a renewed motion for a directed verdict. The court granted the motion and dismissed the case. Plaintiff appeals. We affirm the decision of the trial court.

Washington County Court of Appeals 12/26/14
Elizabeth Eberbach v. Christopher Eberbach
M2013-02852-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Timothy L. Easter

This case involves post-divorce litigation over child support and residential parenting time. In connection with a petition for a decrease in child support, the parties found themselves in a discovery dispute, which resulted in the trial court awarding Mother $10,000 in attorney’s fees.  Later, as a result of his move out of state, Father filed a motion to modify the parties’ permanent parenting plan. When Father decided not to pursue his motion to modify, Mother filed an emergencymotion for relief to set holiday parenting time. The court ordered that the parenting plan remain in effect for the holiday period and required Father to personally pick up and return the children for visitation. Father appeals the award of attorney’s fees to Mother stemming from the discovery dispute and the order requiring him to personally pick up and return his children when exercising holiday parenting time. We affirm the trial court’s order awarding attorney’s fees to Mother. Because we find the issue to be moot, we dismiss Father’s appeal regarding holiday parenting time.

Williamson County Court of Appeals 12/23/14
In Re: Patrick J., et al
M2014-00728-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Wayne C. Shelton

This case involves the termination of Mother’s and Father’s parental rights.  The  trial court found multiple statutory grounds for the termination of Mother’s and Father’s  rights.  The court also found termination of the parents’ rights to be in the children’s best interest.  The sole issue raised on appeal is whether the trial court erred in finding that Mother  and  Father  abandoned their  children  by willfully failing  to  support them. Because the parents appealed fewer than all of the multiple grounds relied upon by the trial  court for  termination,  the trial court’s decision  as  to the  other  grounds  is final.   Because a finding of only one statutory ground is necessary for termination, we affirm  the decision of the trial court.

Montgomery County Court of Appeals 12/23/14
Melvin Barnes v. Larry Salsberry, et al.
W2014-00646-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge John R. McCarroll, Jr.

Defendants appeal a jury award in favor of Plaintiff. Finding material evidence to support the verdict, we affirm.

Shelby County Court of Appeals 12/23/14
Connie Redmond v. WalMart Stores, Inc., et al
M2014-00871-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This is a personal injury case. Appellant slipped and fell in a puddle of water while on Appellee’s premises. Appellant’s attorney filed her complaint one day after the statute of limitations had run on her claim. Appellee filed a motion for summary judgment, arguing that Appellant’s suit was time-barred. The trial court granted summary judgment in favor of Appellee. Appellant appeals, arguing that the discovery rule tolled the statute of limitations because all of appellant’s injuries could not be discovered on the same date as the fall. Alternatively, Appellant argues that the trial court erred when it did not grant an enlargement of the statute of limitations under Tennessee Rule of Civil Procedure 6.02. Discerning no error, we affirm and remand.

Davidson County Court of Appeals 12/22/14
In Re Hannah M., et al.
M2013-02062-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Special Judge Randy Lucas

This is a child custody and support case. The order appealed is not a final judgment so as to confer jurisdiction on this Court under Tennessee Rule of Appellate Procedure 3(a). Accordingly, we dismiss the appeal and remand the case to the trial court.

Sumner County Court of Appeals 12/22/14
Daniel J. Wunder v. Karen Ann Wunder
M2014-00008-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Tom E. Gray

Mother appeals the trial court’s denial of her petition for contempt and for child support arrearages in this post-divorce action. We reverse in part, vacate in part, and remand for further proceedings.

Sumner County Court of Appeals 12/22/14
Terri Dunn v. William M. Dunn, Jr.
E2014-00706-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge L. Marie Williams

This is a divorce action involving issues of marital property valuation and distribution. The parties were married in 1975. The wife, Terri Dunn (“Wife”), filed for divorce from the husband, William M. Dunn, Jr. (“Husband”), on September 12, 2011. Following a somewhat protracted pre-trial history, the trial was conducted over four non- consecutive days in June and July 2013. Thereafter, the trial court issued a memorandum opinion valuing the assets in the marital estate and awarding Wife approximately 60% and Husband approximately 40% of the estate. The trial court also charged against Husband’s share of the marital estate $200,000.00 in dissipated assets. Wife has appealed. Discerning no error, we affirm.

Hamilton County Court of Appeals 12/22/14