Court of Appeals Opinions

Format: 01/16/2018
Format: 01/16/2018
Fredrick Sledge v. Tennessee Department of Correction, et al.
M2016-01664-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Ellen H. Lyle

Appellant, an inmate in the custody of Appellee Tennessee Department of Correction, appeals the trial court’s dismissal of his petition for declaratory judgment. Specifically, Appellant challenges the Tennessee Department of Correction’s calculation of his jail credit on his criminal sentence. We conclude that the calculation of Appellant’s jail credit comports with the judgment of the criminal court. Affirmed and remanded.

Davidson County Court of Appeals 09/28/17
In Re L.M.H., et al.
E2017-00604-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Timothy E. Irwin

In this termination of parental rights case, the Department of Children’s Services filed a petition to terminate the parental rights of J.M.F. (father) with respect to L.M.H. and K.K.F. (the children). DCS alleged the following grounds for termination: (1) persistence of conditions; and (2) substantial noncompliance with the permanency plan. DCS also sought to terminate father’s rights with respect to L.M.H. on the ground of severe child abuse. The trial court entered an order finding clear and convincing evidence supporting each ground for termination. By the same quantum of proof, the trial court found that termination of father’s rights is in the best interest of the children. Father appeals. We affirm.

Knox County Court of Appeals 09/28/17
Shayla Nicole Purifoy v. Devine Mafa
W2015-00102-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donna M. Fields

After a lengthy hearing, the trial court granted an order of protection to the appellee based upon its finding that the appellant was stalking and harassing her. The trial court denied the appellant’s counter-petition for an order of protection. The appellant raises ten issues on appeal. For the following reasons, we affirm and remand for further proceedings.

Shelby County Court of Appeals 09/28/17
In Re Grace N.
M2016-00453-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Sheila Calloway

This appeal stems from a juvenile court proceeding in Davidson County. Mother challenges the entered parenting schedule and raises a number of issues pertaining to the trial court’s child support calculations. For the reasons expressed herein, we affirm in part, reverse in part, vacate in part and remand for further proceedings consistent with this Opinion.

Davidson County Court of Appeals 09/27/17
In Re Estate of James Keith Owen
M2017-00656-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Tolbert Gilley

In this case challenging the trial court’s interpretation of the notice requirements of Tenn. Code Ann. § 30-2-306(d), we find the notice issue moot because the trial court found that the petitioner’s claim was without merit.

Rutherford County Court of Appeals 09/27/17
In Re Preston L.
M2016-02338-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joe Thompson

Mother and stepfather filed a parental termination action against the father of a minor child, and the trial court terminated the father’s parental rights on the following grounds: (1) incarceration under a sentence of ten years or more and the child was under the age of eight when the sentence was entered; (2) willful failure to support during the four months prior to incarceration; and (3) wanton disregard. We reverse the trial court’s determination that the petitioners presented clear and convincing evidence to support grounds of willful failure to support and wanton disregard. We affirm as to the ground of incarceration under a sentence of ten years or more and as to the trial court’s best interest determination.

Sumner County Court of Appeals 09/27/17
Yuletide Office Supply, Inc. v. Justin Miller, et al.
W2017-01210-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Jim Kyle

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

Shelby County Court of Appeals 09/26/17
Oliver Wood et al. v. Jefferson County Economic Development Oversight Committee, Inc.
E2016-01452-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Don R. Ash

In 2009 and 2010, the legislative bodies of Jefferson County, Jefferson City, and Dandridge enacted resolutions requesting that the Jefferson County Chamber of Commerce create a non-profit corporation to be called the Jefferson County Economic Development Oversight Committee (EDOC). Its purpose was to promote economic development in the county. In 2013, a group of citizens filed this action seeking a declaration that EDOC is subject to the provisions of the Tennessee Public Records Act, Tenn. Code Ann. § 10-7-503 (2012), and the Open Meetings Act, Tenn. Code Ann. § 8- 44-101 et seq. (2016). After a bench trial, the court denied the plaintiffs’ requested relief. They appealed. We find and hold that the undisputed facts establish that EDOC performs a governmental function, recieves a substantial amount of taxpayer funding, and is significantly involved with and regulated by the governing city and county legislative bodies. In light of our duty to broadly construe and interpret the Public Records and Open Meetings Acts in favor of governmental transparency and accountability, we hold that the EDOC is subject to these acts. The judgment of the trial court is reversed.

Jefferson County Court of Appeals 09/26/17
Erika Louise Dewald v. Baya Paul Dewald
M2016-01598-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge John Thomas Gwin
This is a divorce case involving numerous pleadings. Because the order appealed is not final in that it fails to adjudicate husband’s petition for contempt and motion for sanctions, this Court lacks subject-matter jurisdiction over the appeal. Tenn. R. App. P. 3(a). Accordingly, the appeal is dismissed.
 
Wilson County Court of Appeals 09/22/17
Ferryl Theresita McClain v. Richard Perry McClain
E2016-01843-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jean A. Stanley

This is a post-divorce child custody action involving two children, who were sixteen and seventeen years of age at the time of the most recent trial. The parties were divorced by order of the Sullivan County Law Court (“divorce court”) in July 2001. Concomitant with the divorce decree, the divorce court entered a permanent parenting plan designating the father as the primary residential parent. Although the permanent parenting plan was modified in 2003 and 2007, the divorce court had most recently modified the permanent parenting plan in February 2009 (“2009 PPP”) upon the parties’ stipulation that a material change in circumstance had occurred. The divorce court maintained the father’s designation as the primary residential parent and awarded to the father 268 days of annual residential co-parenting time as compared to Mother’s 97 days. At some point following entry of the 2009 PPP, the mother relocated to Texas, and the father and the children relocated to Washington County, Tennessee. Upon the mother’s request, the case was transferred to the Washington County Circuit Court (“trial court”) in April 2014. On March 20, 2015, the mother filed a motion in the trial court to modify custody and child support, as well as a motion for civil and criminal contempt against the father, alleging various violations of the 2009 PPP. Following a hearing regarding the contempt allegations, the trial court entered an order on June 30, 2015, finding the father in “technical contempt” and directing him to pay an expert witness fee as a sanction. Following participation in mediation, the parties announced an agreement, which the trial court ratified in a permanent parenting plan order entered on June 30, 2015 (“2015 PPP”). The 2015 PPP maintained the father’s designation as the primary residential parent and provided the mother with 85 days of residential co-parenting time, a great part of which was to be exercised at her residence in Texas. On October 2, 2015, the mother filed an “emergency motion” for modification of the 2015 PPP, as well as for criminal and civil contempt against the father, averring violations of the 2015 PPP. The parties subsequently filed competing “emergency” motions concerning physical custody of the younger child, who under one temporary order entered by the trial court in October 2015, was to reside primarily with the mother. Following a two-day bench trial in October 2015, the trial court maintained the prior designation of Father as the primary residentialparent for both children pending further order, but the court took the custody matter under advisement pending receipt of a court-ordered assessment of the parties and the children by a forensic psychologist. Upon receipt of the psychologist’s report, the trial court conducted a second two-day bench trial in June 2016, ultimately finding that this was a case of severe parental alienation in which the father had actively supported the children’s alienation from the mother without reasonable cause. The court awarded exclusive custody of the children to the mother and directed that the children participate with the mother in a workshop in California that had been recommended by the forensic psychologist as a therapeutic methodology for parental alienation at an estimated cost of approximately $28,000.00. The court directed that the workshop costs, including a mandatory post-workshop vacation for the mother and the children, would be substantially paid by the father. The court further found, inter alia, that the father was in contempt of court for failing to follow certain provisions of the 2015 PPP and sentenced the father to eight days in jail, with the sentence suspended provided no further violations occurred. Also finding that the mother was entitled to attorney’s fees, the court reduced the $38,594.99 fee amount requested by the mother to an award of $20,000.00 to offset the amount paid by the father toward the workshop. The father has appealed. Having determined that the father was not provided with sufficient notice of criminal contempt charges pursuant to Tennessee Rule of Criminal Procedure 42(b), we vacate the trial court’s order finding the father in contempt. We remand for a determination of whether the amount of attorney’s fees awarded to the mother was appropriate given our vacation of the contempt finding against the father. We affirm the trial court’s judgment in all other respects. The mother’s request for attorney’s fees on appeal is denied.

Washington County Court of Appeals 09/21/17
Mardoche Olivier v. City of Clarksville, et al
M2017-00054-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ross H. Hicks

The trial court dismissed this action as a matter of law for failure to state a claim upon which relief can be granted pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. We affirm.

Montgomery County Court of Appeals 09/20/17
Eric S. Stone v. Tennessee Board of Parole
M2016-01730-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Senior Judge Robert E. Lee Davies

Petition for writ of certiorari; inmate appeals the trial court’s order affirming the Tennessee Board of Parole’s decision to rescind its earlier grant of parole and deny parole. We affirm the judgment of the trial court.   

Davidson County Court of Appeals 09/20/17
In Re Halley M.
M2016-01596-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Joe H. Thompson

Jerome V. and Teresa V. (“Petitioners”) appeal the May 26, 2015 order of the Circuit Court for Sumner County (“the Trial Court”) dismissing their Petition for Adoption and Termination of Parental Rights (“the Petition”) based upon Tenn. Code Ann. § 36-1-119. We find and hold that Petitioners have shown good cause why the Petition should not be dismissed, and we vacate the Trial Court’s May 26, 2015 order, reinstate the Petition, and remand this case for further proceedings.

Sumner County Court of Appeals 09/19/17
Jerry Alan Thigpen v. Trousdale County Highway Department, et al.
M2016-02556-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge John D. Wootten, Jr.

Jerry Thigpen sued the Trousdale County Highway Department and two individuals, alleging damage to his home caused by roadway resurfacing. The trial court dismissed the lawsuit, concluding that the claims were barred by the Tennessee Governmental Tort Liability Act (“GTLA”). We affirm.

Trousdale County Court of Appeals 09/19/17
Kevin J. Mamon v. Geico Indemnity Insurance Company, et al.
M2016-01145-COA-R3-CV
Authoring Judge: Judge Frank G. Clement
Trial Court Judge: Judge Hamilton V. Gayden, Jr.
Plaintiff appeals the dismissal of his claims against all three defendants and the award of $400 to defendant Master Muffler on its counterclaim following a bench trial. We affirm the trial court in all respects.
 
Davidson County Court of Appeals 09/19/17
Martin E. Hughes v. Tennessee Department of Corrections, et al.
M2016-02212-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Russell T. Perkins

The plaintiff, an inmate proceeding self-represented, filed a “Petition for Declaratory Judgment” (“Petition”) on June 24, 2016, alleging that the Hardeman County Correctional Facility (“HCCF”) staff had failed to follow numerous policies established by the Tennessee Department of Correction (“TDOC”).  In conjunction with the Petition, the plaintiff filed a motion seeking a temporary restraining order and a preliminary injunction.  The plaintiff subsequently filed a document entitled, “Complaint.”  On September 12, 2016, the defendants filed a motion to dismiss, asserting, inter alia, that the plaintiff’s action was statutorily barred.  The trial court entered two orders on October 7, 2016, respectively denying the plaintiff’s request for a temporary restraining order and preliminary injunction and granting the defendants’ motion to dismiss.  The plaintiff filed a notice of appeal.  Determining that the trial court did not err in dismissing the plaintiff’s claims, we affirm.

Davidson County Court of Appeals 09/18/17
Shay Simpson, et al. v. National Fitness Center, Inc., et al.
E2017-00018-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Deborah C. Stevens

This appeal arises from a lawsuit filed by plaintiffs Shay and Brian Simpson (“the Simpsons,” collectively, or “Ms.” or “Mr. Simpson,” respectively) against defendants National Fitness Center, Inc. and National Fitness Center, LLC (“National Fitness,” collectively). Ms. Simpson and National Fitness orally contracted to allow the Simpsons “a couple of weeks” additional time to consider whether to cancel their club membership. After more than two weeks elapsed, the Simpsons elected to cancel but National Fitness refused to accept the cancellation. This case was tried before the Circuit Court for Knox County (“the Trial Court”). The Trial Court found that National Fitness breached the contract and committed a deceptive act under the Tennessee Consumer Protection Act (“TCPA”). The Trial Court ordered “a return of all monies paid [by the Simpsons] to [National Fitness] . . .” and awarded attorney’s fees to the Simpsons. National Fitness appealed to this Court. We affirm the Trial Court in its determination that the Simpsons effectively exercised their right to cancel and that they were entitled to a refund of any monies paid. However, we reverse the Trial Court in its determination that National Fitness violated the TCPA. We, therefore, reverse the award of attorney’s fees. We affirm, in part, and reverse, in part, the judgment of the Trial Court.

Knox County Court of Appeals 09/18/17
Brittany Nicole Vandyke v. Brooke E. Foulk, M.D., et al.
E2016-00584-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jean A. Stanley

This is a medical malpractice action1 in which the plaintiff filed suit against the hospital and her physicians following the death of her newborn son hours after his delivery. The case proceeded to a jury trial. The jury found in favor of the defendants. Following the denial of post-trial motions, the plaintiff appeals, claiming the trial court erred in excluding testimony and when it gave a jury instruction on the sudden emergency doctrine. We reverse and remand for a new trial.

Washington County Court of Appeals 09/18/17
Shayla Leanne Guy Brantley v. Cordary Quincy Vernard Brantley
M2016-01999-COA-R3-CV
Authoring Judge: Judge Frank G. Clement
Trial Court Judge: Chancellor Louis W. Oliver, III

In this divorce action, Father contends the trial court erred by adding substantive restrictions to the parties’ agreed upon Permanent Parenting Plan that, inter alia, imposed “paramour” and “lifestyle” restrictions on Father that were not imposed on Mother. We have determined that the trial court unilaterally imposed substantive and material restrictions on Father’s activities during his parenting time without affording him an evidentiary hearing. We have also determined that some of the restrictions placed on Father are too vague to be enforceable and that the Statement of the Evidence does not provide a factual basis for the restrictions placed on Father. For these reasons we vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.

Sumner County Court of Appeals 09/15/17
Jimmy Newell v. Richard Montgomery, et al.
M2016-01787-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Ellen H. Lyle
The petitioner sought a writ of certiorari seeking redress for the respondents’ failure to schedule an initial parole hearing prior to his release eligibility date. The trial court dismissed the petition as moot, finding that a parole hearing was conducted following the filing of the petition and that any challenge relating to the parole hearing was untimely. The petitioner appeals. We affirm.
 
Davidson County Court of Appeals 09/15/17
In Re Leyna A.
M2016-02548-COA-R3-JV
Authoring Judge: Judge Frank G. Clement
Trial Court Judge: Judge Deanna B. Johnson

The parents of a minor child filed a petition to change the first and middle names of their child but not the surname. The trial court denied the petition without a hearing on the ground: “The Petition fails to state a valid reason for the name change, especially in light of the fact that Petitioners seek to change someone else’s name.” The parents filed a motion to alter or amend the judgment. They supported their motion with letters written by the sixteen-year-old child, the child’s doctor, the child’s therapist, and one of the child’s teachers, each explaining why the name change was in the child’s best interest. Without ruling on the motion, the trial court set the matter for an evidentiary hearing during which the mother, father, and child testified, and the letters from the doctor, therapist, and teacher were admitted into evidence. Thereafter, the trial court denied the motion to alter or amend because “the controlling law has not changed,” no “previously unavailable evidence became available,” and “Petitioners have not shown that there was a clear error of law or that an injustice occurred.” The trial court also ruled on the merits of the petition and denied and dismissed the petition. This appeal followed. We have determined that the trial court erred by denying the motion to alter or amend the initial order because the petition stated a claim for which relief could be granted. As for the court’s ruling on the merits of the petition following the evidentiary hearing, we have determined that the evidence preponderates against the trial court’s finding that Petitioners failed to show that it was in the child’s best interest to change his first and middle names. We have also determined that the court’s legal conclusions were based on an erroneous assessment of the law. Having determined that (1) Petitioners complied with and satisfied all procedural and legal requirements for a name change, (2) the preponderance of the evidence established that changing the child’s first and middle names was in the child’s best interest, and (3) there is no legal basis upon which to deny the petition, we reverse the judgment of the trial court and remand with instructions to enter judgment approving the petition to change the child’s name as requested in the petition.

Williamson County Court of Appeals 09/15/17
In Re Estate of Christina Marie Cotten
M2016-02402-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael Binkley

The personal representative, on behalf of the decedent’s estate, brought this negligence action against the defendant based, inter alia, on the defendant’s alleged acts of displaying and failing to properly store and prevent accessibility to the firearm with which the decedent ultimately committed suicide. The trial court granted summary judgment in favor of the defendant, determining that he owed no duty of care to the decedent and that her suicide was an independent, intervening cause that broke the chain of causation. The estate has appealed. Based upon the applicable balancing test, we conclude that the defendant owed a legal duty of care to the decedent and that summary judgment was improperly granted in the defendant’s favor on the basis of lack of duty. We further determine that the estate’s evidence at the summary judgment stage was sufficient to establish the existence of a genuine issue of material fact for trial regarding causation. We therefore vacate the trial court’s grant of summary judgment and remand for further proceedings consistent with this opinion. We affirm, however, the trial court’s determination that no special relationship existed such as to impose liability for nonfeasance.

Williamson County Court of Appeals 09/15/17
Dialysis Clinic, Inc., et al. v. Kevin Medley, et al.
M2016-02266-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Appellant appeals the denial of its Tennessee Rule of Civil Procedure 24 motion to intervene in the underlying lawsuit. Because the order appealed is not final, this Court has no subject-matter jurisdiction to hear the appeal. Tenn. R. App. P. 3(a). Appeal dismissed.

Davidson County Court of Appeals 09/14/17
In Re Seth B., et al.
E2017-00173-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Dwight E. Stokes

This is a termination of parental rights case. Mother/Appellant appeals the termination of her parental rights to the minor children on the grounds of: (1) abandonment by an incarcerated parent by wanton disregard; (2) abandonment by willful failure to provide a suitable home; (3) failure to substantially comply with the reasonable requirements of the permanency plan; and (4) persistence of the conditions that led to the children’s removal from Mother’s home. Mother also appeals the trial court’s finding that termination of her parental rights is in the children’s best interests. Father/Appellant appeals the termination of his parental rights to the minor children on the grounds of: (1) abandonment by willful failure to provide a suitable home; (2) failure to substantially comply with the reasonable requirements of the permanency plan; and (3) persistence of conditions that led to the children’s removal from Father’s home. Father also appeals the trial court’s finding that termination of his parental rights is in the children’s best interests. Because grounds for termination of both Mother’s and Father’s parental rights are met by clear and convincing evidence, and there is also clear and convincing evidence that termination of Mother’s and Father’s parental rights is in the best interests of the children, we affirm.

Sevier County Court of Appeals 09/14/17
In The Matter of Ian B. et al.
M2016-02504-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Howard W. Wilson

This is Father’s second appeal of the termination of his parental rights to the two children he had with his former wife (“Mother”). Father and Mother separated in 2008 when she moved from Alaska to Tennessee with the children, and they were granted a divorce in 2009. Father has not seen nor spoken with the children since 2008, and has not provided any financial support since November 2009. The petition to terminate Father’s parental rights was filed by Mother and her husband in 2012. In Father’s first appeal, we remanded the case in order to obtain a sufficient record for this court to review on appeal. In re Ian B., No. M2015-01079-COA-R3-PT, 2016 WL 2865875 (Tenn. Ct. App. May 11, 2016). On remand, the trial court found that the petitioners had proven grounds of abandonment for failure to visit and support and that termination of Father’s parental rights was in the best interest of the children. This appeal followed. Having determined that the record in this second appeal is sufficient for this court to conduct a proper review, we affirm the judgment of the trial court. 

Rutherford County Court of Appeals 09/13/17