Court of Appeals Opinions

Format: 08/28/2015
Format: 08/28/2015
In re Kalob S., et al.
E2014-02016-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Robert D. Philyaw

This case involves the termination of the parental rights of a biological father to his seven children. Appellant contends that the trial court erred in terminating his parental rights. Because the grounds for termination are met by clear and convincing evidence, and there is also clear and convincing evidence that termination is in the best interest of the minor children at issue, we affirm the judgment of the trial court.

Hamilton County Court of Appeals 06/12/15
Richard Lee Hibbens v. Ashley Elizabeth Rue
E2014-00829-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Jerri S. Bryant

This appeal involves an award of retroactive child support. The child‘s father is in the military and was deployed overseas during part of the relevant time period. The trial court initially set the child support obligation based on the number of days the father would have had with the child pursuant to the parties‘ mediated agreement, regardless of the fact that he did not exercise all of that time due to his deployment. After considering a post-trial motion filed by the mother, the trial court altered the award to set the child support obligation based on the number of days the father actually spent with the child, not the number of days he was provided under the mediated agreement. The father appeals, challenging substantive and procedural aspects of the court‘s decision. We affirm.

Bradley County Court of Appeals 06/12/15
Fredrico A. Dixon, III v. Patricia Grissom
E2014-00947-COA-R9-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Michael W. Moyers

The dispute central to this interlocutory appeal involves a failed real estate transaction and alleged breach of a real estate agent‘s fiduciary duty to her client. The plaintiff buyer entered into an agreement to purchase improved real property from the seller but failed to obtain financing to complete the purchase. In a previous action brought by the seller against the buyer, the trial court found that the buyer‘s attempted termination of the contract was ineffective and that he therefore breached the contract. On appeal, this Court affirmed that judgment in favor of the seller. The buyer subsequently brought the instant action against the defendant real estate agent, alleging breach of fiduciary duty based on the agent‘s failure to confirm delivery of the buyer‘s credit declination letter to the seller. The agent filed a motion for summary judgment, averring that the buyer had filed this action outside the time parameters of the applicable statute of limitations. Following a hearing, the trial court applied the discovery rule to find that knowledge of the agent‘s alleged failure to terminate the contract could not be imputed to the buyer before April 22, 2010, when the seller‘s counsel had raised the issue during trial in the original action.

Knox County Court of Appeals 06/12/15
In re: William B.
M2014-01762-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge John P. Hudson

In this termination of parental rights case, the father appeals the trial court’s termination of his parental rights to his son on the grounds of wanton disregard for the welfare of the child prior to father’s incarceration. The father also asserts the court erred in finding that termination was in the child’s best interest. We find that clear and convincing evidence supports the decision of the trial court and affirm the judgment in all respects.

Putnam County Court of Appeals 06/11/15
In re Bridgestone/Firestone, et al
M2013-02849-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Thomas W. Brothers

Appellants appeal the dismissal of their products liability cases.  The trial court concluded that the doctrine of collateral estoppel applied to a prior forum non conveniens dismissal.  The trial court reasoned that, at the time of the prior forum non conveniens dismissal, Appellant should have foreseen that the foreign forum would be unavailable to them and that issue should have been raised in previous proceedings.  Because we conclude that an alternative exception to the application of collateral estoppel may apply, we reverse.

Davidson County Court of Appeals 06/10/15
Southern Trust Insurance Company v. Matthew Phillips
E2014-01581-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donald R. Elledge

This appeal involves the interpretation of an insurance policy in order to determine whether the policy provided coverage for damage caused by arson. The insurer and the insured filed cross-motions for partial summary judgment on this issue. The trial court found the policy ambiguous and construed it in favor of coverage, holding that arson was covered under the policy. Accordingly, the trial court granted the motion for partial summary judgment filed by the insured and denied the motion for partial summary judgment filed by the insurer. The insurer appeals. We affirm.

Anderson County Court of Appeals 06/10/15
In re Anthony R.
M2014-01753-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Sophia Brown Crawford

The trial court terminated Father’s parental rights on the statutory ground of wanton disregard for the welfare of the child. Father appealed. We reverse because when Father engaged in the conduct at issue, in fact, Father did not know of his parentage. A father cannot exercise wanton disregard for the welfare of a child if he does not know the child exists.

Davidson County Court of Appeals 06/09/15
Micah Noelle Lewellen, et al v. Covenant Health, et al.
E2014-01410-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Donald R. Elledge

This appeal arises from a construction negligence case. Micah Noelle Lewellen, individually, and, Cale Ryan Lewellen, a minor by Micah Noelle Lewellen (“Plaintiffs”), sued Covenant Health, Rentenbach Engineering Company, and TEG Architects, LLC, (“Defendants,” collectively) in the Circuit Court for Anderson County (“the Trial Court”). Plaintiffs alleged that the absence of shielding in a portion of the radiology facilities in the new emergency department at Methodist Hospital caused Plaintiffs to suffer damages from excessive radiation exposure. Defendants filed motions for summary judgment asserting the statute of repose, Tenn. Code Ann. § 28-3-202 (2000), as a complete defense. The Trial Court granted Defendants' motions for summary judgment. Plaintiffs appeal to this Court arguing, in part, that the statute of repose did not run because the absence of the required shielding in the radiology facilities meant the project was not substantially completed on the date as found by the Trial Court. We hold, inter alia, that the radiology facilities, while perhaps defective, were used for their intended purpose and were substantially complete as found by the Trial Court. The construction statute of repose expired and serves to defeat Plaintiffs' claims. We affirm the Trial Court.

Anderson County Court of Appeals 06/09/15
Connie Raby v. Covenant Health, et al.
E2014-01399-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Donald R. Elledge

This appeal arises from a construction negligence case. Connie Raby (“Plaintiff”), sued Covenant Health, Rentenbach Engineering Company, and TEG Architects, LLC, (“Defendants,” collectively) in the Circuit Court for Anderson County (“the Trial Court”). Plaintiff alleged that the absence of shielding in a portion of the radiology facilities in the new emergency department at Methodist Hospital caused Plaintiff to suffer damages from excessive radiation exposure. Defendants filed motions for summary judgment asserting the statute of repose, Tenn. Code Ann. § 28-3-202 (2000), as a complete defense. The Trial Court granted Defendants' motions for summary judgment. Plaintiff appeals to this Court arguing, in part, that the statute of repose did not run because the absence of the required shielding in the radiology facilities meant the project was not substantially completed on the date as found by the Trial Court. We hold, inter alia, that the radiology facilities, while perhaps defective, were used for their intended purpose and were substantially complete as found by the Trial Court. The construction statute of repose expired and serves to defeat Plaintiff's claims. We affirm the Trial Court.

Anderson County Court of Appeals 06/09/15
Keith Gillis v. Covenant Health, et al.
E2014-01409-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Donald R. Elledge

This appeal arises from a construction negligence case. Keith Gillis (“Plaintiff”), sued Covenant Health, Rentenbach Engineering Company, and TEG Architects, LLC, (“Defendants,” collectively) in the Circuit Court for Anderson County (“the Trial Court”). Plaintiff alleged that the absence of shielding in a portion of the radiology facilities in the new emergency department at Methodist Hospital caused Plaintiff to suffer damages from excessive radiation exposure. Defendants filed motions for summary judgment asserting the statute of repose, Tenn. Code Ann. § 28-3-202 (2000), as a complete defense. The Trial Court granted Defendants' motions for summary judgment. Plaintiff appeals to this Court arguing, in part, that the statute of repose did not run because the absence of the required shielding in the radiology facilities meant the project was not substantially completed on the date as found by the Trial Court. We hold, inter alia, that the radiology facilities, while perhaps defective, were used for their intended purpose and were substantially complete as found by the Trial Court. The construction statute of repose expired and serves to defeat Plaintiff's claims. We affirm the Trial Court.

Anderson County Court of Appeals 06/09/15
Michael Phillips v. Covenant Health, et al.
E2014-01405-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Donald R. Elledge

This appeal arises from a construction negligence case. Michael Phillips (“Plaintiff”), sued Covenant Health, Rentenbach Engineering Company, and TEG Architects, LLC, (“Defendants,” collectively) in the Circuit Court for Anderson County (“the Trial Court”). Plaintiff alleged that the absence of shielding in a portion of the radiology facilities in the new emergency department at Methodist Hospital caused Plaintiff to suffer damages from excessive radiation exposure. Defendants filed motions for summary judgment asserting the statute of repose, Tenn. Code Ann. § 28-3-202 (2000), as a complete defense. The Trial Court granted Defendants' motions for summary judgment. Plaintiff appeals to this Court arguing, in part, that the statute of repose did not run because the absence of the required shielding in the radiology facilities meant the project was not substantially completed on the date as found by the Trial Court. We hold, inter alia, that the radiology facilities, while perhaps defective, were used for their intended purpose and were substantially complete as found by the Trial Court. The construction statute of repose expired and serves to defeat Plaintiff's claims. We affirm the Trial Court.

Anderson County Court of Appeals 06/09/15
Mary Ridenour, et al v. Covenant Health, et al.
E2014-01408-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Donald R. Elledge

This appeal arises from a construction negligence case. Mary Ridenour, individually, and, Jacob Ross Ridenour, a minor by Mary Ridenour (“Plaintiffs”), sued Covenant Health, Rentenbach Engineering Company, and TEG Architects, LLC, (“Defendants,” collectively) in the Circuit Court for Anderson County (“the Trial Court”). Plaintiffs alleged that the absence of shielding in a portion of the radiology facilities in the new emergency department at Methodist Hospital caused Plaintiffs to suffer damages from excessive radiation exposure. Defendants filed motions for summary judgment asserting the statute of repose, Tenn. Code Ann. § 28-3-202 (2000), as a complete defense. The Trial Court granted Defendants' motions for summary judgment. Plaintiffs appeal to this Court arguing, in part, that the statute of repose did not run because the absence of the required shielding in the radiology facilities meant the project was not substantially completed on the date as found by the Trial Court. We hold, inter alia, that the radiology facilities, while perhaps defective, were used for their intended purpose and were substantially complete as found by the Trial Court. The construction statute of repose expired and serves to defeat Plaintiffs' claims. We affirm the Trial Court.

Anderson County Court of Appeals 06/09/15
Robert T. Hughes, et al. v. Henry County Medical Center d/b/a Lake Haven Behavioral Center
W2014-01973-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Donald E. Parish

This is a healthcare liability action, arising from alleged injuries to Appellant, Melba Hughes. Mrs. Hughes' husband, Robert Hughes, filed this action against Appellee, Henry County Medical Center (“HCMC”), and Dr. Donald Gold, who is not a party to this appeal. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121. Specifically, Appellee challenged whether the medical authorization provided with the pre-suit notice letter was compliant with Tennessee Code Annotated 29-26-121(a)(2)(E). An error in the medical authorization form provided to HCMC did not permit HCMC to obtain medical records from Dr. Gold. However, Dr. Gold saw the patient only at HCMC, and he had no records independent of the hospital's records. Following a hearing on the motion, the trial court dismissed the action without prejudice. Mr. and Mrs. Hughes timely filed their appeal. We reverse and remand the matter to the trial court.

Henry County Court of Appeals 06/09/15
Doris Jean Kerr, individually, and on behalf of Willie M. Kerr v. Tommy C. Thompson, M.D.
W2014-00628-COA-R9-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge John R. McCarroll

The trial court denied the defendant doctor’s motion to dismiss this medical malpractice action on the ground that the plaintiff had substantially complied with Tennessee Code Annotated Section 29-26-122, despite the fact that her certificate of good faith did not contain a statement that the executing party had no prior violations of the good faith certificate requirement. This Court granted an interlocutory appeal. While this appeal was pending, the Tennessee Supreme Court issued its Opinion in Davis v. Ibach, No. W2013-02514-SC-R11-CV, --- S.W.3d ---, 2015 WL 3451613 (Tenn. May 29, 2015), ruling that Tennessee Code Annotated Section 29-26-122 does not require a party executing a certificate of good faith to note the absence of any prior violations of the good faith certificate requirement. Based on Davis, we conclude that plaintiff’s certificate of good faith was fully compliant with Tennessee Code Annotated Section 29-26-122. Accordingly, although we rely on different grounds, we affirm the trial court’s ruling denying the defendant doctor’s motion to dismiss.

Shelby County Court of Appeals 06/09/15
Wubalem Gebremedhin v. New Day Auto Sales, Inc.
M2014-01803-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Amanda Jane McClendon

Plaintiff who purchased a used automobile sued the dealership for damages asserting various statutory and common law causes of action arising out of the sale, financing, repossession and subsequent resale of the automobile. Following a trial in which the jury found in Plaintiff’s favor on a claim under the Tennessee Consumer Protection Act and on several common law claims, Plaintiff moved the court for an award of attorney’s fees; the court awarded $10,000.00 of the requested $72,909.00 sought. Plaintiff appeals. Because the trial court did not state the factual or legal basis for the award of fees, this court cannot properly perform its review function; accordingly, we vacate the judgment of the trial court and remand the case for reconsideration and entry of an order setting forth the factual and legal basis of the award.

Davidson County Court of Appeals 06/08/15
Basil J. Marceaux, Sr. v. City of Chattanooga
E2014-00106-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jacqueline S. Bolton

This matter concerns the circuit court’s resolution of the appellant’s appeal from Chattanooga’s City Court of two violations of the municipal code. We affirm the trial court’s dismissal decision.

Hamilton County Court of Appeals 06/08/15
Nan E. Scott, et al v. The City of Knoxville, et al.
E2014-01589-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Michael W. Moyers

This is an appeal from a judgment in a certiorari review action where the trial court upheld the Knoxville City Council's ruling in favor of the respondents. The Knoxville City Council found that a proposed expansion project involving the construction of a crematory for incinerating human bodies was permitted as an accessory use for the existing funeral home. The trial court found that the Knoxville City Council had not exceeded its jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or fraudulently, or acted without material evidence to support its decision. The petitioners appeal. We affirm.

Knox County Court of Appeals 06/08/15
Tamar v. William B. Batte, et al.
W2014-01975-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Walter L. Evans

This is an appeal from the trial court’s dismissal of Appellant’s petition for a temporary restraining order and injunctive relief. Although Appellant was represented by counsel at oral argument, she filed her initial appellate brief and reply brief to this Court pro se. Significant procedural shortcomings in Appellant’s brief prevent this Court from reaching the merits of the appeal. We, therefore, dismiss the appeal.

Shelby County Court of Appeals 06/08/15
Michael Lee Yarlett v. Roxanne Deette Yarlett
M2014-01036-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Phillip R. Robinson

Mother appeals the trial court’s modification of the parties’ parenting plan and designation of Father as the Primary Residential Parent. We affirm. 

Davidson County Court of Appeals 06/05/15
Robert McAllister v. Timothy Rash, et al.
E2014-01283-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Dale C. Workman

Plaintiff filed a complaint for damages against an individual and an insurance company. This appeal arises from the trial court’s denial of a motion to set aside a final judgment of dismissal for failure to prosecute in favor of the individual defendant. Summary judgment was granted to the defendant insurance company, and the order was certified as final. In addition, the trial court denied a motion to amend the complaint to add allegations against a different insurance company. Approximately one year later, a trial occurred against the individual defendant; plaintiff failed to appear. The trial court subsequently granted the individual defendant an involuntary dismissal for failure to prosecute. More than thirty days later, plaintiff filed a motion to set aside the final judgment. The trial court denied the motion, and plaintiff appealed. Because plaintiff’s claims against the defendant insurance companies became final prior to the filing of the notice of appeal, we have no jurisdiction to consider any alleged errors relative to them. Accordingly, plaintiff’s appeal against the insurance companies at issue is dismissed. We affirm the trial court’s ruling denying plaintiff’s motion to set aside the final judgment of dismissal.

Knox County Court of Appeals 06/05/15
Steven A. Holdsworth v. Wendy Alford Holdsworth
W2013-01948-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge James F. Russell

This is an appeal from an extremely contentious divorce. The parties married in 1994 and had one child together during the marriage. Husband filed for divorce in 2011. In July 2013, the trial court entered a final decree of divorce. Among other things, the trial court found that Husband dissipated marital assets by writing checks to his girlfriend totaling $15,633 and ordered Husband to reimburse Wife that amount. The trial court also entered a permanent parenting plan that designated Wife the primary residential parent and provided a residential parenting schedule. As part of its permanent parenting plan and based on its calculation of the parties’ respective incomes, the trial court set Husband’s child support obligation and ordered Husband to pay Wife $34,109 in retroactive child support. Finally, the trial court awarded Wife $4,000 per month as alimony in futuro and $461,586 as alimony in solido to reimburse Wife for her attorney’s fees and expenses. Husband filed a notice of appeal challenging the trial court’s rulings.

Prior to Husband’s appeal of the July 2013 order being heard, however, Husband and his girlfriend were arrested when a sheriff’s deputy discovered a marijuana plant growing in their garage. Shortly thereafter, Wife filed a petition seeking to modify the permanent parenting plan to impose certain restrictions on Husband’s parenting time. Among other things, Wife sought to condition Husband’s parenting time on his girlfriend’s submission to and passing of random drug tests. In March 2014, the trial court ruled that a material change of circumstance occurred following the entry of the July 2013 order and entered a modified permanent parenting plan that incorporated Wife’s proposed restrictions. Husband filed a separate appeal from that order, and the two cases were consolidated for appeal to this Court.

Having thoroughly reviewed issues raised by the parties and the record on appeal, we conclude that while the trial court did not err in finding that Husband dissipated marital assets by writing checks to his girlfriend, Wife is not entitled an award equal to the full amount of the dissipation. We modify the amount of the dissipation award to $7,816.53 to reflect Husband’s one-half interest in the dissipated amounts. We affirm the trial court’s allocation of parenting time. While we also affirm the trial court’s decisions to award Wife child support and retroactive child support, we conclude that the trial court based the amount of those awards on a determination of the parties’ respective incomes that is not supported by a preponderance of the evidence. Accordingly, we vacate the trial court’s ruling as to the amount of those awards and remand this matter for further proceedings consistent with this opinion. Next, we reverse the trial court’s award of alimony in futuro. Given the facts of this case, we conclude that Wife is a candidate for transitional alimony and direct the trial court on remand to determine the appropriate amount and duration of such an award. While we affirm the trial court’s decision to modify the permanent parenting plan, we conclude that because Husband’s girlfriend was not a party to the proceedings, the trial court erred in setting conditions on Husband’s parenting time based on her compliance with provisions of the permanent parenting plan. Finally, we conclude that the trial court did not apply a proper legal standard in awarding Wife her attorney’s fees and expenses and reached an illogical result. We reverse the trial court’s award of attorney’s fees. We decline to award attorney’s fees associated with this appeal to either party.

Shelby County Court of Appeals 06/03/15
Alicia Denise Fair v. Andrew Jacob Parish
E2014-02337-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This is an appeal from an order entered in a post-divorce modification proceeding. Because the order appealed from does not resolve all the claims, rights, and liabilities of the parties, we lack jurisdiction to consider this appeal.

Jefferson County Court of Appeals 06/03/15
Jeffrey Richard Palmer v. Bill Kees
E2014-00239-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Donald R. Elledge

The plaintiff tenant in this action rented an apartment from the defendant landlord. Attached to the apartment were a wooden deck and staircase leading to the ground below. The tenant filed suit against the landlord for injuries the tenant sustained when a board on the stairs collapsed, causing the tenant to fall. The trial court granted summary judgment in favor of the landlord because the tenant could not show that the landlord had knowledge of any dangerous condition on the leased premises. The tenant has appealed. Discerning no error, we affirm.

Anderson County Court of Appeals 06/01/15
Rebecca Burke Pair v. Chris Franklin Pair
M2014-00727-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Timothy L. Easter

In this divorce action, Wife appeals the trial court’s finding that Husband did not dissipate marital funds, the award of alimony, and the division of marital property. Finding that the award of support and division of property is supported by the evidence and consistent with the applicable law, we affirm the judgment.

Williamson County Court of Appeals 05/29/15
Synovus Bank v. David A. Paczko, et al
M2014-00897-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Robbie T. Beal

Bank sued borrowers on a lost or destroyed promissory note. Borrowers, among other defenses, denied that the note was in default and the amount due. Borrowers also claimed that bank had destroyed the note with the intention of discharging the obligation. On cross-motions for summary judgment, the trial court entered judgment in favor of bank. Borrowers appeal, claiming the affidavits filed in support of the bank’s motion for summary judgment were deficient, the existence of disputed material facts, the indebtedness had been discharged, and that further discovery should have been permitted by the trial court. We vacate and remand.  

Williamson County Court of Appeals 05/29/15