Court of Appeals Opinions

Format: 05/24/2017
Format: 05/24/2017
Gary Voigt vs. Michael A. Plate, et al.
E2016-00473-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John B. Bennett

In this personal injury and contract reformation case, the plaintiff filed a complaint, seeking damages resulting from a motor vehicle collision and reformation of a release of all claims signed by the plaintiff. As grounds for reformation, the plaintiff claimed that an agent of the defendant company fraudulently induced the plaintiff to sign the release. The defendant filed a motion for summary judgment, asserting that the plaintiff could not establish an essential element of his action because the plaintiff did not act promptly in seeking reformation of the release. The trial court granted summary judgment in favor of the defendant upon finding, as a matter of law, that the plaintiff’s action was not prompt after discovery of the alleged fraud and that the plaintiff therefore was not entitled to reformation of the release. The plaintiff timely appealed. Having determined that the question of whether the plaintiff’s actions were sufficiently prompt in seeking the equitable relief of reformation presents a genuine issue of material fact, we reverse the trial court’s grant of summary judgment in favor of the defendant.

Hamilton County Court of Appeals 02/28/17
In re Karissa V., et al.
E2016-00395-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Frank V. Williams, III

This appeal concerns the termination of parental rights. Glenn V. (“Grandfather”) filed a petition in the Chancery Court for Roane County (“the Trial Court”) seeking to terminate the parental rights of his son, Christopher V. (“Father”), and Makara G. (“Mother”) to their minor children, Karissa and Makilee (“the Children”). After a trial, the Trial Court terminated Father’s and Mother’s parental rights on the grounds of abandonment by failure to support and failure to visit. The Trial Court also granted Grandfather’s motion for adoption. Father and Mother filed appeals to this Court. We, inter alia, reverse the ground of failure to visit with respect to both parents. We also reverse the ground of failure to support with respect to Mother. However, we affirm the ground of failure to support with respect to Father. We find further that termination of Father’s parental rights is in the Children’s best interest. We affirm, in part, and reverse, in part, the judgment of the Trial Court.

Roane County Court of Appeals 02/27/17
Clay Harris Dalton v. Jerry Sandifer, et al.
E2016-00696-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This case involves a dispute over the commission earned from a real estate transaction. The parties disagree as to whether the plaintiff, Clay Harris Dalton, is entitled to a part of the commission on the transaction. Jerry Sandifer is a principal real estate broker licensed in Tennessee. He is the sole proprietor of Tennessee Realty Pros, LLC (TRP), a Tennessee limited liability company. Dalton is an affiliate real estate broker licensed in Tennessee. On September 6, 2013, Dalton registered his real estate license with Sandifer and TRP (collectively the Brokerage). On November 1, 2013, TRP secured a commercial exclusive right to sell listing agreement from a seller. The agreement encompasses the real estate sold in the transaction at issue. Eventually, TRP procured a buyer, and on March 23, 2014, the buyer executed a commercial purchase and sales agreement. That agreement listed Dalton as the Buyer's Designated Agent and selling licensee. It listed Sandifer as the Seller's Designated Agent and listing licensee. On September 30, 2014, the real estate closing took place, resulting in a total broker's commission of $97,400. Because only one brokerage was involved in the transaction, the entire commission was paid to TRP. Dalton claims that he is entitled to a share of the commission. He further asserts that he had an agreement with Sandifer that Dalton would be paid a share of the commission on the buyer's side of the transaction. Because the Brokerage refused to disburse any of the commission to Dalton, he filed a complaint seeking his share of the commission. The trial court found that, based on the customary and contractual commission split at TRP, Dalton is entitled to $34,090 for acting as the buyer's agent. The court also found that Dalton was entitled to $2,000 for his efforts in listing real property for the Brokerage. Accordingly, the trial court awarded Dalton a total judgment of $36,090. The Brokerage appeals. We affirm.

Sevier County Court of Appeals 02/27/17
Stacey J. Cordell v. Cleveland Tennessee Hospital, LLC, et al
M2016-01466-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Michael Binkley

The trial court, pursuant to a motion to dismiss filed by defendants, dismissed the plaintiff’s lawsuit because she did not comply with certain aspects of the Tennessee Healthcare Liability Act incident to the filing of her original complaint. Because we do not construe the allegations in the original complaint as presenting any health care liability claims, we reverse the trial court’s dismissal of this lawsuit and remand for further proceedings consistent with this Opinion.

Williamson County Court of Appeals 02/27/17
Bobby McBee v. CSX Transportation, Inc.
W2015-01253-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert Samual Weiss

This appeal arises from a negligence action filed by the plaintiff employee in June 2010, pursuant to the Federal Employer Liability Act ("FELA"), see 45 U.S.C. §§ 51-60 (2012), against his former employer, the defendant railroad. The employee, who had worked for the railroad for thirty-nine years in a variety of positions, alleged that he suffered bilateral rotator cuff tears as a result of the railroad‘s negligence in failing to provide him with proper equipment while he worked as a foreman flagman from January 2007 through March 2009. In February 2012, the railroad filed a motion for summary judgment based on the three-year statute of limitations provided in 45 U.S.C. § 56. Following a hearing, the trial court denied the motion in April 2012 but stated that it would reconsider if presented with additional evidence. The railroad subsequently filed additional motions for summary judgment in January 2014, reasserting the statute-of-limitations defense and asserting that the employee could not prove his claim due to an alleged lack of expert testimony regarding medical causation and an alleged inability to demonstrate the railroad‘s liability through expert testimony. Following a hearing, the trial court denied the motions for summary judgment as to the statute of limitations and medical causation. The court, however, granted summary judgment in favor of the railroad based on the employee‘s lack of expert testimony regarding liability. The employee has appealed the judgment, and the railroad has raised an issue regarding the statute of limitations. Having determined that under the circumstances of this action, the employee presented evidence that created a material factual dispute as to whether the railroad negligently contributed to his injuries, we reverse the trial court‘s grant of summary judgment. We affirm the trial court‘s judgment in all other respects.

Shelby County Court of Appeals 02/24/17
Michael Holley, et al v. Bethany Holley Ortiz
M2015-01432-COA-R3-CV
Authoring Judge: W. Neal McBrayer
Trial Court Judge: Judge Stella L. Hargrove

This appeal concerns a mother’s petition to modify an agreed order granting custody of her two minor children to their maternal grandparents. The trial court determined that the mother was entitled to invoke the doctrine of superior parental rights because it concluded that the previous order was a temporary custody order. The court then awarded the mother custody of her children. The grandparents seek review of the trial court’s decision, first, to deny the grandparent’s request for a continuance to secure new counsel and, second, to allow the mother a presumption of superior parental rights. While we disagree that the presumption of superior parental rights applied, we conclude that Mother still demonstrated a material change in circumstances and that a change in custody was in the children’s best interests. We also conclude that the trial court did not abuse its discretion in denying the grandparents’ motion to continue. Therefore, we affirm the judgment of the trial court. 

Giles County Court of Appeals 02/24/17
In Re: Estate of Sandra Kay Christian
E2015-02276-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Douglas T. Jenkins

In this case involving the Last Will and Testament of Sandra Kay Christian, we construe a provision in her will in order to determine the interests of the parties with respect to real property owned by her. The deceased passed away on November 15, 2012. Her will contains a residuary clause. That clause devises two-fifths of the residue of her estate to Phyllis Midgett, Ms. Christian's sister. The will contains a separate provision that permits the deceased's nephews, John Reuben Christian, III and Ashley Paul Christian (the Nephews), to purchase her residence. The will provides that, in the event the Nephews elect to purchase the property, they will pay the deceased's niece, Regina Christian Dykes (the Niece), an amount that would make her share of the estate equal to theirs. The Nephews expressed their intent to purchase the residence. Ms. Midgett brought this action seeking a declaration that she has a two-fifths interest in the residence property. The trial court found the will provision at issue to be unambiguous. Consequently, the court held that Midgett has no interest in the residence property. The court directed Nephews to pay one-third of the value of the property to the Niece. Midgett appeals. We affirm

Hawkins County Court of Appeals 02/24/17
Larry D. Patton, et al. v. Shelby County Government, et al.
W2016-00970-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Felicia Corbin Johnson

In 2014, the plaintiffs filed this claim against several defendants pursuant to the Tennessee Governmental Tort Liability Act due to the recording of a forged deed in 2009. The circuit court dismissed the lawsuit based on the GTLA’s one-year statute of limitations. We affirm.

Shelby County Court of Appeals 02/23/17
Davina Ruth Hart v. Gabriel Carse Hart
W2016-01616-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor James F. Butler

In this post-divorce proceeding, father appeals the trial court’s reduction of his parenting time. We reverse the trial court’s reduction of father’s parenting time because the evidence does not support the trial court’s modification of the parenting plan and reinstate the previous parenting plan.

Madison County Court of Appeals 02/23/17
Joseph O'Shields, et al. v. City of Memphis, et al.
W2016-01172-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Walter L. Evans

The issue on appeal in this case is whether the City of Memphis unlawfully assessed a tax on real property located in a newly annexed area of the city in 2012. The plaintiffs are property owners in the annexed area who argue that the city had no authority to assess property taxes in the area for 2012 because its annexation of the area took effect after January 1, 2012. The trial court concluded that the tax was lawful because the City’s annexation of the area took effect before January 1, 2012 and granted summary judgment in favor of the defendants. Discerning no error, we affirm.

Shelby County Court of Appeals 02/23/17
James J. Bogner, II v. Vanderbilt University
M2015-00669-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This is an appeal from a judgment entered on a jury verdict in favor of the defendant in a health care liability action. The plaintiff filed suit against the defendant hospital for medical malpractice, medical battery, and lack of informed consent. The trial court granted a partial directed verdict in favor of the defendant after the plaintiff presented evidence. At the close of all the proof, the trial court denied the plaintiff’s motion for a directed verdict on the remaining issues of medical battery and informed consent. On appeal, the plaintiff claims that the trial court erred in denying the motion for a directed verdict, in refusing to adopt the plaintiff’s special jury instructions, and in using a confusing special verdict form. Discerning no reversible error, we affirm the judgment of the trial court.

Davidson County Court of Appeals 02/23/17
Charles McMahon, et al. v. James Freels
W2015-01557-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor William C. Cole

Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction.

Tipton County Court of Appeals 02/23/17
In Re: Delilah G.
E2016-01107-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Timothy E. Irwin

This is an appeal from an order terminating a mother’s parental rights to her daughter, of whom the Department of Children’s Services acquired custody following a referral of a drug exposed child and two referrals for medical maltreatment and nutritional neglect. The child’s parents were later adjudicated to have committed severe abuse on the child. The Department subsequently petitioned to terminate the parental rights of both parents, and the court granted the petition on the ground of severe child abuse and after holding that termination of the parents’ rights was in the best interest of the child. After a thorough review of the record, we affirm the judgment of the trial court in all respects.

Knox County Court of Appeals 02/22/17
Omar Ahmad v. Ezad Ahmad
W2015-02148-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Christy R. Little

Because the order appealed does not comply with Rule 58 of the Tennessee Rules of Civil Procedure, the order is not a final judgment. Consequently, this Court lacks jurisdiction and this matter must be dismissed.

Madison County Court of Appeals 02/22/17
In Re Estate of Gertrude Bible Link
M2015-02280-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Jeffrey F. Stewart

This is an appeal from a jury trial in a will contest. The jury returned a verdict finding that the contested will was valid. The contestants have appealed, raising numerous issues and arguing that the evidence presented does not support the jury’s verdict. We affirm.    

Marion County Court of Appeals 02/22/17
Donel Autin, et al. v. William Goetz
W2016-00099-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Gina C. Higgins

The trial court entered a protective order under Rule 26.03 of the Tennessee Rules of Civil Procedure while the case was ongoing. After the plaintiffs filed a notice of voluntary dismissal, the trial court entered an order confirming the dismissal and extending the protective order ―in perpetuity. The defendant did not appeal the final order, but years later filed a motion to modify the protective order. The trial court denied the motion as barred by the doctrine of res judicata. On appeal, the defendant argues that the trial court lacked subject matter jurisdiction to extend the protective order after plaintiffs nonsuited their case. As an issue of first impression, we conclude that the trial court retained jurisdiction to extend and modify its previously entered protective order notwithstanding the voluntary dismissal of the underlying action. We further hold that modification of existing protective orders is authorized by the holding in Ballard v. Herzke, 924 S.W.2d 652, 658 (Tenn. 1996); accordingly, we vacate the trial court‘s denial of defendant‘s motion to modify and remand for reconsideration in light of our supreme court‘s established precedent.

Shelby County Court of Appeals 02/22/17
Linda Jane Parimore v. Gerald David Parimore
W2016-01188-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Martha Brasfield

Husband appeals: (1) the denial of his Rule 60.02 motion on the basis of fraud; and (2) the grant of attorney’s fees to Wife. We affirm the trial court’s denial of Husband’s Rule 60.02 motion but reverse the grant of attorney’s fees to Wife. We also decline the award of damages to Wife on appeal. Affirmed in part, reversed in part, and remanded.

Tipton County Court of Appeals 02/17/17
Pavement Restorations, Inc. v. Thomas E. Ralls, et al.
W2016-01179-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor George R. Ellis

Employee’s employment was terminated for smoking in a company truck in violation of the employer’s rule. Employee’s initial request for unemployment benefits was denied. The Appeals Tribunal affirmed the denial of benefits, but the Commissioner’s Designee later reversed, finding that employee’s conduct was exempt from the definition of misconduct and concluding that the employee was, therefore, not terminated for workrelated misconduct as defined in the unemployment compensation statutes. On appeal to the chancery court, the trial court concluded that evidence in the record supported the Commissioner’s Designee’s decision. Discerning no error, we affirm.

Court of Appeals 02/17/17
City of Church Hill v. Roger Elliott
E2016-01915-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Alex E. Pearson

Because defendant was charged and found guilty of violating a state statute, rather than a municipal ordinance, we conclude that we are without subject matter jurisdiction to consider this appeal. Therefore, we must transfer this case to the Tennessee Court of Criminal Appeals in accordance with Rule 17 of the Tennessee Rules of Appellate Procedure for further adjudication.

Hawkins County Court of Appeals 02/17/17
In Re: John J.
M2016-01136-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Sam E. Benningfield, Jr.

This is an appeal from an order terminating a Mother’s parental rights to her son. The Department of Children’s Services filed a petition to have the child declared dependent and neglected when he was observed with burn marks on his thigh and fingers. He was adjudicated to be dependent and neglected, and custody was given to the Department. A petition to terminate Mother’s parental rights was subsequently filed and, following a trial, the court held that Mother had abandoned the child by failing to visit him and by engaging in behavior which exhibited a wanton disregard for the child’s welfare; the court also determined that termination of Mother’s rights was in the child’s best interest. Mother appeals, contending that the court erred in holding that termination of her rights was in the child’s best interest. After a thorough review of the record, we affirm the judgment of the trial court in all respects.  

White County Court of Appeals 02/17/17
Reginald Davis v. City of Memphis, et al.
W2016-00967-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Walter L. Evans

This appeal involves the termination of a firefighter’s employment with the City of Memphis. The firefighter appealed his termination to the City of Memphis Civil Service Commission. He also filed a lawsuit in federal district court asserting various causes of action against the City of Memphis and other defendants. After a six-day jury trial in federal court, the jury returned a verdict in favor of the defendants. The City of Memphis then sought dismissal of the firefighter’s appeal before the Civil Service Commission based on the principles of res judicata and/or collateral estoppel. The Civil Service Commission granted the motion and dismissed the appeal. The firefighter then sought review in chancery court, and the chancery court upheld the decision of the Civil Service Commission. We reverse and remand for further proceedings.

Shelby County Court of Appeals 02/16/17
State of Tennessee Ex Rel. Tanikia Yolanda Hurt v. William George Bulls, III
E2015-02078-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Robert D. Philyaw

This case originated when the State, acting on behalf of Tanikia Yolanda Hurt (Mother), filed a petition against William George Bulls, III (Father) seeking to have him held in contempt because of his failure to pay child support. A juvenile court magistrate dismissed the State’s petition, finding that Father had paid all of his arrearage. On the day the court dismissed the petition, Mother filed a new pleading, a motion, again seeking a finding of contempt against Father. She once again alleged unpaid support in addition to other matters. This motion was also dismissed. Mother appeals. We affirm.

Hamilton County Court of Appeals 02/16/17
In Re Estate of Earsie L. Kirkman
W2016-00759-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

This case involves the disposition of several certificates of deposit that were held in joint tenancy, with right of survivorship, by Decedent and her daughter, Appellee. Appellants, beneficiaries of Decedent’s estate, argued that the certificates of deposit were probate assets. The trial court denied the objection and closed the estate, finding that the certificates of deposit passed to Appellee as the surviving joint tenant. Appellants appeal. Affirmed and remanded.

Hardin County Court of Appeals 02/15/17
James S. Schrade v. Cassandra Jean Ament Schrade
E2016-01105-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Larry Michael Warner

This appeal concerns an effort to reduce an alimony obligation. James S. Schrade (“Husband”) filed a petition for reduction of alimony in the Probate and Family Court for Cumberland County (“the Trial Court”) against ex-wife Cassandra Jean Ament Schrade (“Wife”). Husband cited changed economic conditions that rendered him unable to meet his alimony obligation without tapping into his separate property. At trial, Husband also presented proof that a rebuttable presumption arose that Wife did not need the alimony as her adult children lived with her. The Trial Court found no material change in circumstances and also declined to find that the rebuttable presumption applied. Husband appeals. Finding the language of the marital dissolution agreement (“the MDA”) unequivocal and as market fluctuations are foreseeable, we affirm the Trial Court in its finding of no material change in circumstances. However, Husband presented sufficient proof to trigger the statutory rebuttable presumption for cohabitation with third parties, and we remand to the Trial Court for a determination on that issue. We affirm, in part, and, vacate, in part, the judgment of the Trial Court, and remand for further proceedings consistent with this Opinion.

Cumberland County Court of Appeals 02/13/17
State of Tennessee v. Norman Eugene Clark
E2016-01629-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Steven W. Sword

The State of Tennessee (“the State”) attempted to divest Dateline NBC and NBCUniversal News Group of protection provided under Tenn. Code Ann. § 24-1-208, the press shield law. The Criminal Court for Knox County (“the Trial Court”) found and held that the State had failed to meet its burden under Tenn. Code Ann. § 24-1-208 and denied the State’s motion to divest. The State appeals. We find and hold that the State failed to prove by clear and convincing evidence both that “the information sought cannot reasonably be obtained by alternative means,” and that there is “a compelling and overriding public interest of the people of the state of Tennessee in the information.” Tenn. Code Ann. §§ 24-1-208(c)(2)(B) and (c)(2)(C). We affirm the judgment of the Trial Court denying the State’s motion to divest.

Knox County Court of Appeals 02/13/17