Court of Appeals Opinions

Format: 09/25/2018
Format: 09/25/2018
In Re: Jarrett P. Et Al.
E2017-00373-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Terry Stevens

In this action, the trial court terminated the appellant mother’s parental rights to her three children upon the court’s finding that clear and convincing evidence existed to establish the statutory grounds of (1) abandonment by willful failure to visit, (2) abandonment by willful failure to financially support, and (3) severe child abuse. The court also determined by clear and convincing evidence that termination was in the best interest of the children. The mother has timely appealed. Discerning no reversible error, we affirm

Roane County Court of Appeals 06/29/18
Amy Wiseman Bowen v. William S. Wiseman, II
M2017-00411-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Louis W. Oliver

This case involves a post-divorce modification of a parenting plan. Father petitioned the court seeking equal parenting time and major decision-making authority with respect to decisions involving the child’s education, non-emergency healthcare, and extracurricular activities. Mother filed a counter-petition seeking additional parenting time and exclusive major decision-making authority. Mother also asked the trial court to clarify the meaning of several terms in the parties’ parenting plan. The parties’ disagreement concerning the meaning of several terms had prompted ongoing conflict. The trial court found that there had been a material change in circumstances and that modification of the parties’ parenting plan was in the child’s best interest. The trial court modified the parties’ parenting plan, awarding Mother additional parenting time. However, the trial court ordered that major-decision making authority in the areas of non-emergency healthcare, extracurricular activities, and religious upbringing remain joint. The trial court also awarded Mother a portion of her attorney’s fees. Father timely appealed. We affirm the judgment of the trial court and award Mother her attorney’s fees on appeal.

Sumner County Court of Appeals 06/29/18
Tina Gregg, Et Al. v. Shawn Smoot
E2017-00451-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge William T. Ailor

Defendant in wrongful death action appeals the judgment entered against him in favor of the mother and personal representative of the decedent’s estate. Over the course of the litigation, the defendant failed to comply with multiple orders to compel discovery, and as a result, the court entered a judgment by default in accordance with Tennessee Rule of Civil Procedure Rule 37.02. Finding no error, we affirm the judgment.

Knox County Court of Appeals 06/29/18
Cindy Terry v. Jackson-Madison County General Hospital District
W2017-00984-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Kyle Atkins

A medical product sales representative brought suit against her former employer, a hospital, claiming retaliation in violation of the Tennessee Human Rights Act. After a bench trial, the trial court judge entered a verdict in favor of the hospital, having concluded that the employee failed to carry her burden of proof. In spite of dismissing the employee’s case, the trial court awarded the employee a portion of her attorney’s fees as “sanctions” against the hospital for making an allegedly late-filed motion to strike the employee’s demand for a jury trial, which the trial court granted. We affirm the trial court’s dismissal of the employee’s retaliation claim, and we reverse the trial court’s order granting the employee attorney’s fees.

Madison County Court of Appeals 06/28/18
Shawn L. Keck, et al. v. E.G. Meek, Sr. et al.
E2017-01465-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Elizabeth C. Asbury

This case involves a contract dispute concerning four simultaneously executed agreements that, if completed, would have essentially constituted a trade of two parcels of improved real property. The plaintiff buyers entered into the four agreements with the defendant sellers on October 1, 2013, giving the buyers a lease on the sellers’ property, located on Walnut Breeze Lane in Knoxville, Tennessee (the “Walnut Breeze Property”), with an option to purchase that property in the unspecified future. The buyers agreed to trade equity in their own property, located on First Street in Corryton, Tennessee (“First Street Property”), as partial payment for the Walnut Breeze Property if they chose to exercise the option. On January 6, 2014, the parties met for a “closing,” and the buyers conveyed title to the First Street Property to the sellers. However, the “REAL ESTATE SALES CONTRACT” related to the Walnut Breeze Property stipulated that the transfer of title to the Walnut Breeze Property was subject to the existing mortgagee’s approval, which neither party had obtained. The buyers continued to reside at the Walnut Breeze Property, making monthly payments to the sellers until a year later when the buyers vacated the Walnut Breeze Property and stopped making payments. The sellers sent the buyers a notice to vacate three months later. In November 2016, the buyers filed a complaint in the Union County Chancery Court (“trial court”), claiming breach of contract, unjust enrichment, and fraud. The buyers requested $75,000 in compensatory damages, $150,000 in punitive damages, return of the First Street Property, and reasonable attorney’s fees. The sellers filed an answer and subsequent amended answer, denying all substantive allegations and raising affirmative defenses. The sellers concomitantly filed a counterclaim, asserting, inter alia, that the buyers had breached the lease agreement and requesting an award of unpaid rent and reasonable attorney’s fees. Following a bench trial, the trial court found that the buyers breached the terms of the lease agreement by withholding payments on the Walnut Breeze Property for three months. The trial court also found that the buyers had exercised their option to purchase the Walnut Breeze Property by signing over title to the First Street Property but that the sellers knew at that time that the buyers could not satisfy the financing condition of the sale. The trial court awarded to the buyers the equity value of the First Street Property as stipulated in the sales agreement concerning that property, minus the value of three months’ unpaid rent, which the trial court awarded to the sellers. The trial court denied the parties’ respective requests for attorney’s fees. The sellers have appealed. Having determined that each party is entitled to some award of attorney’s fees under the overarching contract, we reverse the trial court’s denial of attorney’s fees and remand for a determination of the respective attorney’s fee awards. We affirm the trial court’s judgment in all other respects.

Union County Court of Appeals 06/28/18
Glenn R. Burkey, Et Al. v. Geoff Post, Et Al.
M2016-02411-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Jeffrey F.Stewart

In this case, the plaintiffs sued the defendants for constructing a gate that interfered with their use of an existing gravel road located on the defendants’ farm. According to the plaintiffs, access to their property required use of the gravel road. The gravel road in question crosses two separate tracts owned by the defendants and runs southwest to northeast from a state highway through the defendants’ farm and then east to west through another tract. Although the plaintiffs claimed that the easement was fifty-feet in width along its entire length, the court found that the section of the road running through the defendants’ farm was a public road with a width of only twelve feet. The court also denied the plaintiffs’ request for discretionary costs. The plaintiffs appeal the court’s finding concerning the width of the public road and the denial of discretionary costs. Discerning no error, we affirm.

Marion County Court of Appeals 06/28/18
LaSonya Robertson v. Clarksville-Montgomery County School System - Dissent
M2017-02492-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: M2017-02492-COA-R3-CV

I must respectfully dissent from the majority’s opinion in this case.

The evidence presented at trial indicates that the school system’s “mopping policy” was actually part of a larger “Departmental Safety Program” directed toward all Clarksville-Montgomery County School System employees. For the “Custodial Department,” the program provided, “[w]hen mopping floors, cleaning up spills, or anytime the floor becomes wet for whatever reason, always put the wet floor signs out until the area is completely dry.” For “Professional Staff,” the program provided, “[a]lways pay close attention to wet floor signs or wet floor conditions to avoid slips and falls.”

Montgomery County Court of Appeals 06/28/18
LaSonya Robertson v. Clarksville-Montgomery County School System
M2017-02492-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Ross H. Hicks

This is a slip-and-fall case. A middle school teacher injured herself when she fell in the hallway outside her classroom on a wet floor. A custodian had been mopping the hallway prior to her fall, and the teacher alleged that the custodians had negligently and misleadingly placed wet-floor signs on the opposite side of the hallway, which did not warn her of the wet floor on her side of the hallway. Thereafter, the teacher brought suit against the school district pursuant to the Tennessee Governmental Tort Liability Act. Following a bench trial, the trial court found the custodians guilty of negligence and assigned seventy-five percent of the fault to the school district and twenty-five percent of the fault to the teacher. A judgment was entered against the school district in the amount of $180,000.00, after reduction for the teacher’s comparative fault. The school district appeals, contending (1) that it is immune from suit; (2) that it was not negligent; and (3) that any negligence it may have committed is outweighed by that of the teacher’s comparative fault. The teacher argues that the trial court erred in assigning any of the fault to her. We affirm in part and reverse in part

Montgomery County Court of Appeals 06/28/18
IN RE KEILYN O. ET AL. - concurring
M2017-02386-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Charles L. Rich

I concur fully in the majority’s opinion in this case. I write separately solely to express my opinion that inasmuch as the majority opinion relies on this Court’s decision in In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7 (Tenn. Ct. App. May 31, 2018), for the standard of proof concerning Tennessee Code Annotated § 36-1-113(g)(14) (2017), I believe that this statutory ground allows termination of parental rights if the petitioner proves by clear and convincing evidence that the parent “has failed to meet the requirement of manifesting both a willingness and an ability to assume legal and physical custody of the child or has failed to meet the requirement of manifesting both a willingness and an ability to assume financial responsibility of the child.” See In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *12-15 (Tenn. Ct. App. June 20, 2018); see also In re Neamiah R., No. E2017-02000-COA-R3-PT, 2018 WL 2331868, at *7 (Tenn. Ct. App. May 23, 2018).

Bedford County Court of Appeals 06/28/18
IN RE KEILYN O. ET AL.
M2017-02386-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Charles L. Rich

Mother appeals the termination of her parental rights to two children. The juvenile court found six statutory grounds for termination and that termination of the mother’s parental rights was in the children’s best interest. We conclude that the evidence was less than clear and convincing as to one of the statutory grounds and that two other statutory grounds did not apply in this instance. But the record contains clear and convincing evidence to support three grounds for termination and that termination is in the children’s best interest. So we affirm the termination of the mother’s parental rights.

Bedford County Court of Appeals 06/28/18
Kathryn A. Duke v. Harold W. Duke, III
M2016-01636-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge James G. Martin, III

In this post-divorce matter, the trial court ordered the father, Harold W. Duke, III (“Father”), to deposit $5,729.17 and $5,312.50 per month, respectively, into the educational accounts of the parties’ two daughters. The court determined that the children’s separate trust accounts were not required to be utilized to fund their college expenses. The court also awarded the mother, Kathryn A. Duke (“Mother”), $4,006.00 for attorney’s fees incurred in pursuing a civil contempt petition against Father, as well as $25,000.00 for attorney’s fees and $1,237.50 in discretionary costs related to establishment of the proper amounts to be contributed by Father to the educational accounts. Father has appealed. Discerning no error, we affirm the trial court’s judgment. We decline, however, to award Mother attorney’s fees incurred in this appeal.

Williamson County Court of Appeals 06/27/18
Mardoche Olivier v. Travis Excavating, et al.
M2017-00954-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Ross H. Hicks

Trial court dismissed the plaintiff’s complaint due to its failure to state a claim, pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. Plaintiff appeals. We affirm.

Montgomery County Court of Appeals 06/26/18
M. Latroy Alexandria-Williams v. Mark Goins, et al.
W2018-01024-COA-R10-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Walter L. Evans

This is an extraordinary appeal, filed pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure, seeking review of an injunction entered with respect to the August 2, 2018 Democratic primary ballot for Tennessee’s Ninth Congressional District election. For the reasons stated herein, we conclude that an extraordinary appeal should be granted and that the trial court’s injunction should be vacated.

Shelby County Court of Appeals 06/26/18
Christle Stanley Et Al. v. Fidel Castro Segura Et Al
M2014-02471-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kelvin D. Jones

This is an uninsured motorist case.  Appellee State Farm Insurance Companies denied Appellants’ uninsured motorist coverage after the uninsured motorist, defendant, discharged the claim in bankruptcy.  The trial court granted State Farm’s Tennessee Rule of Civil Procedure 12.02(6) motion, finding that the policy language that State Farm was liable for “bodily injury an insured is legally entitled to collect from the [uninsured motorist],” relieved State Farm from providing coverage after the uninsured motorist discharged the claim in bankruptcy.  Because the order appealed is not final, we dismiss the appeal for lack of subject matter jurisdiction.

Davidson County Court of Appeals 06/26/18
Mark IV Enterprises, Inc., Et Al. v. Bank Of America, N.A., Et Al.
M2017-00965-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Russell T. Perkins

Appellants’ employee embezzled funds from Appellants using the employee’s Bank of America account. The employee wrote checks on Appellants’ accounts to legitimate third party vendors but deposited the checks into her own personal account by way of Bank of America’s ATMs. Appellants filed suit against Bank of America alleging that the bank’s failure to either prevent this activity or alert Appellants thereto constituted causes of action for aiding and abetting conversion, aiding and abetting fraud, civil conspiracy, and negligence. The trial court granted Bank of America’s motion to dismiss Appellants’ claims for aiding and abetting fraud and conversion and for civil conspiracy based on Bank of America’s lack of knowledge of Appellants’ employee’s wrongdoing. The court subsequently granted Bank of America’s motion for summary judgment on the remaining negligence claim finding that the bank owed no duty to Appellants. We affirm.   

Davidson County Court of Appeals 06/26/18
In Re: Kira D., Et Al.
E2017-00545-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Douglas T. Jenkins

This appeal involves the filing of a termination petition by the mother and stepfather against the father of two minor children. The court denied the termination petition but appointed the stepfather as the permanent guardian of the children. The father appeals. We vacate the order of permanent guardianship.

Hawkins County Court of Appeals 06/26/18
In Re Damon B., et al.
W2017-01858-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Clayburn Peeples

Parents appeal the termination of their parental rights to their two minor children. The children came into the custody of the Department of Children’s Services (“DCS”) after receiving a referral of domestic violence and subsequent concerns raised about the parents’ drug abuse and mental health. The children were adjudicated dependent and neglected in juvenile court. Several permanency plans were developed and monitored by DCS, all of which listed goals of good mental health, a safe environment free from domestic violence, and a drug free home. DCS filed a petition in circuit court to terminate the parents’ rights to the children on grounds of (1) abandonment by failure to provide a suitable home as to both parents; (2) abandonment by incarcerated parent as to Father; (3) substantial noncompliance with permanency plan as to both parents; and (4) persistence of conditions as to both parents. A guardian ad litem was appointed to represent the children in both the juvenile court dependency and neglect case and the circuit court termination case. The guardian ad litem filed a motion in juvenile court to modify the parents’ visitation, based in part on her personal observations. Father filed motions to disqualify the guardian ad litem in both juvenile and circuit court, asserting that the guardian ad litem began functioning as a necessary witness. The juvenile court granted the guardian ad litem’s motion to modify the parents’ visitation and denied the father’s motion to disqualify the guardian ad litem, specifically noting in its ruling that the court excluded any personal observations by the guardian ad litem. Thereafter, the circuit court also denied the father’s motion to disqualify the guardian ad litem, holding that the guardian ad litem was not a “necessary witness” as required under Tennessee Supreme Court Rule 8, Rule of Professional Conduct 3.7(a). Following a trial, the circuit court found that DCS had proven the grounds of abandonment for failure to provide a suitable home, substantial noncompliance with the permanency plan, and persistence of conditions, and that termination was in the children’s best interest. Based on these findings, the circuit court terminated both parents’ parental rights. We affirm.

Gibson County Court of Appeals 06/25/18
Jason Keenan v. Jeffery L. Hollifield
E2017-02047-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Kristi Davis

Jason Keenan sued Jeffrey L. Hollifield for damages arising out of a two-vehicle collision on Interstate 40 in Knox County. By way of an order entered August 9, 2017, the plaintiff took a voluntary nonsuit, pursuant to the provisions of Tenn. R. Civ. P. 41.01(1). On the same date, the defendant filed a motion for discretionary costs. Following a hearing on September 8, 2017, the trial court, in an order entered September 15, 2017, denied the defendant’s motion. Defendant appeals, arguing that he is entitled to discretionary costs of $814.66. We reverse the trial court’s judgment and award the defendant discretionary costs of $814.66.

Knox County Court of Appeals 06/25/18
Grady Eugene Dutton v. Tennessee Farmers Mutual Insurance Company
E2017-01322-COA-R9-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Alex E. Pearson

We granted the Rule 9 application for an interlocutory appeal filed by Tennessee Farmers Mutual Insurance Company (“TN Farmers”) to consider whether material misrepresentations made on an application for a policy of insurance may become not material by virtue of later changes made to the policy. We find and hold that the misrepresentations made on the policy application increased the risk of loss and voided the policy or prevented its attaching pursuant to Tenn. Code Ann. § 56-7-103 and that subsequent changes to a void policy did not render the misrepresentations not material. We, therefore, reverse the June 22, 2017 order of the Circuit Court for Hawkins County (“the Trial Court”) denying TN Farmers’ motion for summary judgment and remand this case to the Trial Court for entry of an order granting summary judgment to TN Farmers.

Hawkins County Court of Appeals 06/25/18
Melissa Martin, Et Al. v. Rolling Hills Hospital, LLC, Et Al.
M2016-02214-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Michael Binkley

This is an appeal in a health care liability action from the dismissal of the action for Plaintiffs’ failure to comply with Tennessee Code Annotated section 29-26-121(a)(2)(E) when they failed to provide the Defendants with HIPAA compliant authorizations for release of medical records. The trial court held that, as a result of the failure, Plaintiffs were not entitled to an extension of the one-year statute of limitations for bringing suit and the action was barred. Plaintiffs appeal. Upon our review, we find that Plaintiffs substantially complied with the requirements of section 29-26-121 and that the Defendants have not shown that they were prejudiced by the deficiencies in the authorizations; accordingly, we reverse the decision of the trial court and remand the case for further proceedings. 

Williamson County Court of Appeals 06/22/18
In Re Joshua E., Et Al.
N2017-01184-COA-R3-JV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Sheila Calloway

Tabitha B. (“Mother”), represented by counsel, appeals the May 31, 2017 order of the Juvenile Court for Davidson County (“the Trial Court”). Mother’s brief on appeal fails to comply in any meaningful way with Tenn. R. App. P. 27. We, therefore, find that Mother has waived her issues on appeal.

Davidson County Court of Appeals 06/22/18
Jimmy Earl McClure v. Christopher Shawn Cole, Et Al.
M2017-00187-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Larry B. Stanley, Jr.

Personal injury action arising out of accident between a pickup truck and a dump truck hauling materials for a company that paved roadways. The pickup truck driver sued the driver of the dump truck and the paving company to recover for injuries he sustained in the accident. The trial court granted the paving company’s motion for summary judgment, holding that the driver of the dump truck was an independent contractor and that the paving company was not liable for the dump truck driver’s negligence. The injured driver appeals. Upon a thorough review of the record, we affirm the grant of summary judgment.

Warren County Court of Appeals 06/22/18
Charles Montague v. Michael D. Kellum
E2017-02526-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge James E. Lauderback

A man convicted of multiple criminal offenses sued his former criminal defense attorney for legal malpractice, and the trial court granted the defendant’s motion for summary judgment. On appeal, the plaintiff argues that the trial court erred in dismissing his legal malpractice action. Because the plaintiff failed to establish a necessary element of his claim for criminal legal malpractice—namely, exoneration—we affirm the trial court’s decision.

Washington County Court of Appeals 06/22/18
State, ex rel., Sharon Denise Townsend v. Eric Wayne Williamson
W2017-01290-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Special Judge Nancy P. Kessler

Appellant/Father appeals the trial court’s order, charging Appellant with $23,663.54 in child support arrearage. Specifically, Appellant asserts that he is entitled to certain credits against the arrearage. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 06/22/18
In Re: Kylea K.
E2017-02097-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge John C. Rambo

This appeal involves the termination of a father’s parental rights. The trial court found that grounds existed to terminate parental rights based on a prior adjudication of severe child abuse and abandonment by willful failure to visit and support. The trial court also found, by clear and convincing evidence, that termination was in the best interest of the child. The father appeals. We vacate the trial court’s finding regarding one ground for termination but otherwise affirm the order terminating parental rights

Washington County Court of Appeals 06/21/18