Court of Appeals Opinions

Format: 04/19/2015
Format: 04/19/2015
Elizabeth F. Holland v. K-VA-T Food Stores, Inc., et al.
E2013-02798-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Richard R. Vance

This is a premises liability action in which Plaintiff filed suit against Defendant for injuries she sustained as a result of a trip and fall accident in a parking lot. Defendant filed a motion for summary judgment, arguing that he owed no duty to Plaintiff and that Plaintiff was more than 50 percent at fault for her injuries. The trial court granted the motion for summary judgment and dismissed the complaint. Plaintiff appeals. We affirm.

Sevier County Court of Appeals 01/13/15
Anita Adkins et al. v. Associates of the Memorial/Mission Outpatient Surgery Center, LLC.
E2014-00790-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge L. Marie Williams

This is a health care liability action in which Defendant sought summary judgment, claiming that Plaintiffs’ expert was not qualified to render an expert opinion because she was not practicing in her field during the year preceding the date of the injury. The trial court agreed and dismissed the action. Plaintiffs appeal. We reverse the decision of the trial court.

Hamilton County Court of Appeals 01/13/15
Donna Ray v. Angela Petro
M2013-02694-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Carol Soloman

This is a breach of contract case arising from a sub-lease between a salon owner and her tenant.After Lessor terminated the Lease Contract,Lessee filed suit in general sessions court for damages. The general sessions court awarded Lessee $15,000 in damages. Lessor appealed to circuit court, which granted competing motions for summary judgment in favor of both Lessor and Lessee.  Lessee appealed. The judgment of the trial court is vacated and remanded, due to Tenn. R. Civ. P. 56.04 deficiencies in the trial court’s order.

Davidson County Court of Appeals 01/09/15
In Re: Kayla E., et al
M2014-01162-COA-R3-PT
Authoring Judge: Judge Richaed H. Dinkins
Trial Court Judge: Chancellor Jim T. Hamilton

Mother appeals the finding that termination of her parental rights to her child was in the child’s best interest. Finding no error, we affirm.

Lawrence County Court of Appeals 01/09/15
Everbank et al. v. Tommy J. Henson et al.
W2013-02489-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Walter L. Evans

EverBank, the assignee and current owner of a promissory note secured by a previously recorded second-priority deed of trust, and Mortgage Electronic Registration Systems, Inc. (“MERS”), which was identified in the second-priority deed of trust as the beneficiary of record and “nominee for Lender and Lender’s successors and assigns,” filed this action to set aside a foreclosure sale and to recover damages from the trustee acting pursuant to the first-priority deed of trust for failure to identify MERS as an interested party in the notice of the foreclosure sale as required by Tenn. Code Ann. § 35-5-104. The trial court summarily dismissed the claims against the trustee holding that the plaintiffs failed to record their interests in the property in order to put creditors or any purchasers on notice. The trial court also refused to set aside the foreclosure sale upon the ground that the plaintiffs lacked standing and that the new owners were bona fide purchasers for value; thus, the trial court found that they acquired the property free and clear of any unrecorded interests. We have determined that MERS’ interest was of record and that the trustee had an affirmative duty to identify MERS as an interested party in the notice of the foreclosure sale pursuant to Tenn. Code Ann. § 35-5-101 et seq., yet the trustee failed to do so. Accordingly, MERS is entitled to seek restitution from the trustee pursuant to Tenn. Code Ann. § 35-5-107, which provides that any person referenced in Tenn. Code Ann. § 35-5-106 who fails to comply with this chapter is “liable to the party injured by the noncompliance, for all damages resulting from the failure.” As for setting aside the foreclosure sale, although MERS has standing to bring the claim, it failed to state a claim upon which to set aside the sale, for the mere failure of a trustee to comply with the provisions of Tenn. Code Ann. § 35-5-101 et seq. is insufficient to set aside a foreclosure sale. We, therefore, affirm the dismissal of the claim to set aside the foreclosure sale, reverse the dismissal of MERS’ claim against the trustee to recover its damages, and remand for further proceedings consistent with this opinion.

Shelby County Court of Appeals 01/09/15
Lasco Inc. v. Inman Construction Corp., et al.
W2014-00802-COA-R3-CV
Authoring Judge: Presiding Judge J. Steve Stafford
Trial Court Judge: Judge Walter L. Evans

The trial court vacated an arbitration award of attorney’s fees in favor of the defendant general contractor and its surety, concluding that such award exceeded the power of the arbitrator. We reverse and remand to the trial court for the entry of an order confirming the arbitration award and a determination of the reasonable attorney’s fees of the general contractor and its surety.

Shelby County Court of Appeals 01/09/15
Myrtle Robinson, et al. v. Kenneth A. Okpor, MD, et al.
W2014-00030-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Gina C. Higgins

The trial court granted summary judgment to the Appellee medical providers on the basis of Appellant’s failure to comply with the health care liability notice provisions, expiration of the applicable statute of limitations, failure to state a claim upon which relief can be granted, and res judicata. We affirm as to the trial court’s ruling that Appellant’s claims are barred by the doctrine of res judicata.

Shelby County Court of Appeals 01/09/15
Siteworx, LLC v. J & M, Inc. et al.
E2014-00296-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Frank V. Williams, III

This appeal is from an order certified to be a final judgment pursuant to Rule 54.02 of the Rules of Civil Procedure. The order dismissed all of the claims made by the Plaintiff, SITEWORX, LLC (“SITEWORX”), against the Defendants, J & M Incorporated, Henson Construction Services, Inc., Clay Williams & Associates, Inc., Roane County, Tennessee, and Western Surety Company (“Defendants”). The order left unresolved the claims between Third-Party Plaintiff, J & M Incorporated, and Third-Party Defendant, Brian Mullins (“Mullins”). Because only Mullins appealed from the judgment and the judgment is not adverse to him, this appeal is dismissed for lack of jurisdiction.

Roane County Court of Appeals 01/09/15
Bank of New York Mellon v. Frances Hamby et al.
E2014-01952-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

The judgment from which the pro se appellants, Frances Hamby and Stephen Hamby, seek to appeal was entered on February 12, 2013. The Notice of Appeal was filed more than thirty (30) days from the date of entry of the judgment. The appellee, The Bank of New York Mellon, filed a motion to dismiss this appeal based upon the untimely filing of the Notice of Appeal. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal and grant the motion to dismiss.

Blount County Court of Appeals 01/09/15
Shelby County Government, et al. v. City of Memphis, et al.
W2014-02197-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Jim Kyle

In this accelerated interlocutory appeal from the denial of a recusal motion, the newly-elected trial court denied a recusal motion on the basis that he continued to represent one of the parties to the litigation in unrelated matters while winding down his law practice. The opposing parties filed an accelerated interlocutory appeal pursuant to Tennessee Supreme Court Rule 10B. Because this situation creates an appearance of impropriety, we reverse the judgment of the trial court.

Shelby County Court of Appeals 01/08/15
Charles W. Hendricks v. Lori A. Smith
E2014-00893-COA-R3-JV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Robert Philyaw

This appeal arises from a dispute over child custody. Charles W. Hendricks (“Father”) and Lori A. Smith (“Mother”) entered into an agreed permanent parenting plan concerning their two minor children (“the Children”). Less than two weeks after entry of the plan, Father filed a motion for custody of the Children in the Juvenile Court for Hamilton County (“the Juvenile Court”) alleging that the parenting plan had been procured by fraud as Mother had not disclosed that she worked as a licensed prostitute in Nevada. The Magistrate found a material change in circumstances and that it was in the best interest of the Children for Father to have custody. Mother appealed to the Juvenile Court. After a trial, the Juvenile Court found a material change in circumstances based on Mother’s having worked as a prostitute and her having concealed that fact, as well as Mother’s hostility to Father and the Children’s stepmother. The Juvenile Court entered a permanent parenting plan designating Father as primary residential parent of the Children. Mother appealed to this Court. Because the Juvenile Court did not conduct a best interest analysis, we vacate the judgment of the Juvenile Court and remand for further proceedings as necessary.

Hamilton County Court of Appeals 01/08/15
Mark Miller v. Annie Miller
M2014-00281-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Phillip R. Robinson

Plaintiff/Appellee Mark Andrew Miller (“Father”) filed a petition for contempt against Defendant/Appellant Annie Elizabeth Miller(“Mother”). After conducting a hearing, the trial court found Mother guilty of two counts of criminal contempt. Mother appealed asserting that the trial court lacked jurisdiction over the matter or, alternatively, that the evidence did not support a finding that she acted willfully. Although we conclude that the trialcourthad jurisdiction to adjudicate Father’s petition for contempt,we agree with Mother that the contempt convictions should be overturned. We reverse.

Davidson County Court of Appeals 01/07/15
Susan Anne Ogles v. Thomas Wayne Ogles
M2013-02215-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge L. Craig Johnson

This is an appeal from a three-day divorce trial. The trial court classified and valued the parties’ assets and divided the marital estate. The court awarded the wife $2,000 per month in transitional alimony for a period of 14 months, and it denied the parties’ requests for attorney’s fees. The wife appeals, challenging the trial court’s classification and valuation of certain assets, the alimony award, and the trial court’s decision to deny her request for attorney’s fees. Discerning no error, we affirm.

Coffee County Court of Appeals 01/07/15
Steven Rezba v. Michael Rezba
M2014-00553-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: James G. Martin, III

Father brought suit against Son in general sessions court for repayment of certain alleged debts. After Father’s case was dismissed, he appealed to circuit court, which also dismissed Father’s claims after a trial.  Based on the record on appeal, sufficient facts exist to support the trial court’s determination, and the decision of the trial court is affirmed.

Williamson County Court of Appeals 01/07/15
Jerterrius Marshawn Akridge Et Al. v. Fathom, Inc. et al.
E2014-00711-COA-R9-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jacqueline S. Bolton

This is an interlocutory appeal regarding the trial court’s denial of the defendants’ motions for summary judgment. The plaintiffs filed this lawsuit following a shooting that occurred on December 24, 2011, outside Club Fathom in Chattanooga, a youth outreach ministry operated by two of the defendants. The defendants moved for summary judgment. The trial court denied their motions, and the defendants sought and were granted an interlocutory appeal. We determine that the court erred in failing to grant summary judgment to the defendants regarding the plaintiffs’ negligence claims. We therefore reverse the judgment of the trial court. We remand the case for entry of summary judgment regarding the plaintiffs’ negligence claims and for a determination regarding the remaining lease issue.

Hamilton County Court of Appeals 01/07/15
In Re Brian M et al.
E2014-00941-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Timothy E. Irwin

This is a termination of parental rights appeal brought by the incarcerated father. The trial court found clear and convincing evidence to support termination of the father’s parental rights on the statutory grounds of abandonment and confinement under a sentence of ten years or more. The court further found that termination of the father’s parental rights was in the best interest of the children. The father appeals. We affirm.

Knox County Court of Appeals 01/06/15
Lori Kay Jones Trigg v. Richard Darrell Trigg
E2014-00860-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Thomas J. Wright

This is an irreconcilable differences divorce case. The trial court entered a final judgment of divorce that incorporated the parties’ mediated marital dissolution agreement. Shortly thereafter, Husband filed a motion to set aside or to alter or amend the final judgment, claiming he was under duress when he entered into the marital dissolution agreement and also claiming that the trial court was required to conduct a hearing before entering the final judgment. The trial court disagreed and denied Husband’s motion. We affirm.

Hawkins County Court of Appeals 01/05/15
Cathy Turnbo Franks v. Ronald Franks
W2014-00429-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James Y. Ross

This appeal involves various financial issues relative to a divorce. Husband appeals the trial court’s determination of several factual findings relative to alimony, including Wife’s ability to secure employment, Husband’s ability to earn in the future, the award of attorney’s fees to Wife, and the value of several marital assets divided in the property division, including the value of an LLC jointly owned by the parties. Wife also appeals the trial court’s determination of value and the division of the parties’ joint interest in the LLC, which the trial court awarded to Husband without assigning a value. We vacate the judgment of the trial court and remand for appropriate findings of fact and conclusions of law.

Court of Appeals 01/02/15
Metropolitan Government of Nashville, et al. v. Robert W. Donaldson, Jr.
M2013-02605-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Defendant appeals a judgment holding that he ran a stop sign, contending that the court did not have subjectmatter or in personam jurisdiction over the matter, and that the Metropolitan Government of Nashville and Davidson County lacked standing to bring the action. We affirm the decision of the trial court.

Davidson County Court of Appeals 12/30/14
Bryan Dewayne Clark v. Jennifer Inez Clark
M2013-02632-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Tom E. Gray

This appeal arises from divorced parents’ child custody dispute. After Mother was arrested twice for driving under the influence, Father requested that he be designated as the primary residential parent and that Mother have supervised parenting time only. Without making any specific factual findings, the trial court found that there had been a “substantial and material change in circumstances” since the prior custody order, and the trial court designated Father as the primary residential parent. Mother’s parenting time was decreased by 196 days, her decision-making authoritywas removed, and she was ordered to pay child support to Father. Because the trial court’s order fails to comply with Tennessee Rule of Civil Procedure 52.01, we vacate the trial court’s judgment and remand.

Sumner County Court of Appeals 12/30/14
Susan Sirbaugh v. Vanderbilt University, d/b/a Vanderbilt University Medical Center, et al.
M2014-00153-COA-R9-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

The plaintiff in this interlocutory appeal filed a complaint asserting health care liability claims against the original defendants, at which time she included a certificate of good faith in accordance with Tennessee Code Annotated section 29-26-122. The original defendants asserted comparative fault against non-party health care providers. The plaintiff waived compliance by the original defendants with section 29-26-122(b), which required the defendants to file a certificate of good faith regarding the non-party health care providers. The plaintiff thereafter amended her complaint to add the named non-party health care providers as new defendants but did not file a new certificate of good faith. The new defendants moved to dismiss the amended complaint. The trial court denied the motions and granted this interlocutory appeal. We reverse.

Davidson County Court of Appeals 12/30/14
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