Court of Appeals Opinions

Format: 05/22/2015
Format: 05/22/2015
In Re Kinsley H.
W2014-00276-COA-R3-JV
Authoring Judge: Per Curiam
Trial Court Judge: Judge William A. Peeler

The order appealed is not a final judgment and therefore, the Court lacks jurisdiction to hear this matter. Consequently, this appeal is hereby dismissed.

Tipton County Court of Appeals 03/04/15
In Re S.C.M. Et Al.
E2014-01379-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Douglas T. Jenkins

This is a termination of parental rights case regarding S.C.M. and T.O.J.M. (collectively, the Children), the minor children of H.C. (Mother) and B.M. (Father). After both parents were arrested, the Children’s maternal grandparents, R.R. and T.R. (collectively, the Grandparents) obtained temporary, emergency custody. Nearly three years later, the Grandparents filed a petition seeking to (1) terminate both parents’ rights and (2) adopt the Children. Following a trial, the court terminated both parents’ rights. Father appeals. We affirm.

Hawkins County Court of Appeals 03/02/15
S.W., by Heather Warren and Thomas C. Warren, as his natural parents and next friends v. Baptist Memorial Hospital, et al.
W2014-00621-COA-R10-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert L. Childers

 

This is a healthcare liability action.  The trial court granted Defendants’ motion for a qualified protective order pursuant to Tennessee Code Annotated  § 29-26-121(f)(1), but set forth several conditions, including: 1) a court reporter must be present at the ex parte interviews with Plaintiff’s treating healthcare providers and record all questions and answers; 2) all answers during the interviews must be under oath; 3) the interview transcripts shall be filed under seal and with permission of the trial court, and after showing of good cause, Plaintiff may access the transcripts for the purpose of determining whether a violation of privacy under HIPAA occurred during the interviews; and 4) Defendants should not attempt to elicit or discuss protected health information which is not relevant to the issues in this lawsuit.  The order also provided “[t]his does not restrict the Defendants or their attorneys from discussing non-substantive matters unrelated to the patient’s protected health information.”  The trial court denied Defendants’ joint motion for interlocutory appeal of the order and Defendants filed an application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure.  We granted the appeal for the sole purpose of determining whether, under section 29-26-121(f), the trial court erred by adding the four conditions noted above to its order.  We reverse in part, affirm in part, and remand for further proceedings.


 

Shelby County Court of Appeals 02/27/15
Michael David Olson v. Jennifer Carlin Beck
M2013-02560-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Philip E. Smith

In this divorce appeal, Husband argues that the trial court erred in not allowing him to repudiate the parties’ marital dissolution agreement. Husband also asserts that the trial court erred in its determination regarding the parenting plan, in failing to consider split parenting time, and in awarding Wife her attorney fees. We find no merit in Husband’s arguments and affirm the trial court’s decision.

Davidson County Court of Appeals 02/27/15
Sherrie L. Durham v. Tennessee Department of Labor And Workforce Development, et al
M2014-00428-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Senior Jude Donald P. Harris

The trial court denied Plaintiff’s motion to recuse and granted Defendants’ motion to dismiss for failure to prosecute. We reverse in part, affirm in part, and remand for further proceedings consistent with this Opinion.

Court of Appeals 02/27/15
Cody S. Thomas v. Jenna R. (Thomas) Miller
M2013-01485-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge J. B. Cox

In this post-divorce case, Father filed a petition to modify the permanent parenting plan to make him the primary residential parent and to hold Mother in contempt for failure to abide by the joint decision-making provision of the plan.  The trial court found a material change of circumstances existed warranting a change in the primary residential parent and held Mother in contempt, awarding Father $675.00 in attorney’s fees as a sanction. Mother appeals. We find no error in the trial court’s decision to change the primary residential parent;however,we vacate the trial court’s finding of contempt because Father’s petition did not comply with the mandates of Tenn. R. Crim. P. 42(b).

Moore County Court of Appeals 02/27/15
Directv, Inc., et al v. Richard H. Roberts, Commissioner of Revenue, State of Tennessee
M2013-01673-COA-r3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell M. Perkins

Plaintiffs contend that the sales tax law unconstitutionally discriminates against satellite television providers. The law taxes the entire subscription fee billed to satellite customers while the first $15 of the subscription fee billed to cable customers is exempt. On cross motions for summary judgment,the trial court found the sales tax law violated the Commerce Clause of the United States Constitution. The Commissioner of Revenue appeals. Because we find that satellite providers and cable providers are not similarly situated for purposes of the Commerce Clause, we reverse.
 

Davidson County Court of Appeals 02/27/15
Cynthia McKenzie v. Jason McKenzie
M2013-02003-COA-R3-CV
Authoring Judge: Presiding Frank G. Clement, Jr.
Trial Court Judge: Judge Philip E. Smith

An attorney, who was representing herself in her divorce action, appeals the trial court’s  finding  that  she  was  in  direct  contempt  of court.  She  insists  her  conduct  was  not  contemptuous and it did not disrupt the orderly progress of the hearing. She also challenges  the procedure bywhich the trial court conducted the summary contempt hearing, asserting it was erroneously held hours after the successful completion of the hearing in which she was  allegedly in contempt of court. She also challenges the sufficiency of the evidence and  contends the trial court erred by basing its finding of contempt on extraneous evidence  instead of relying solely on knowledge the judge obtained through his own senses, his sight  and hearing. A trial court has the authority to punish direct contempt summarily but only in  exceptional circumstances when necessary to“act swiftly and firmly to prevent contumacious conduct from disrupting the orderly progress” of a court proceeding. Danielsv.Grimac,342 S.W.3d 511, 517 (Tenn. Ct. App. 2010); State v. Turner, 914 S.W.2d 951, 956-57 (Tenn.  Crim. App. 1995); Robinson v. Air Draulics Eng’g Co., 377 S.W.2d 908, 911-12 (Tenn.  1964). The transcript of thehearingrevealsnoexceptionalcircumstances and no conduct that  obstructed the administration of justice. To the contrary, all issues at the hearing during  which  the  alleged  contemptuous  conduct  occurred  were  ruled  upon, and  the  hearing  concluded hours before the commencement of the summary contempt hearing. Based on  these facts, Plaintiff was entitled to a hearing upon proper notice pursuant to the procedures  of Tenn. R. Crim. P. 42(b). See Grimac, 342 S.W.3d at 517-18 (citing Turner,914S.W.2dat 959 n. 11). Therefore, the court erred by conducting a deferred summary contempt hearing.  Furthermore, the trial court found the attorney in contempt, “in willful misbehavior in her  official  transactions  by appearing  in  Court  intoxicated,” based  on  extrinsic  evidence,  urinalysis results, obtained after the hearing in question,not on conduct the court observed in the courtroom. Tennessee Rule of Criminal Procedure42(a),which governs the procedure by which a judge may summarily punish a person for criminal contempt,limits the evidence that may be considered to conduct the judge “saw or heard” in the courtroom. See Wilson v.  Wilson, No. 03A01-9104-CH-00126, 1992 WL 200971, at *4 (Tenn. Ct. App. Aug. 21,  1992). Because the finding of intoxication was based on extrinsic evidence, the criminal  contempt judgment must be reversed. The record also reveals the extrinsic evidence, thetest results the court relied upon, was unreliable, for it was only designed to test the“presence”of  any alcohol for persons in recovery, not whether a person was “intoxicated.” Therefore, the  judgment of criminal contempt is reversed and the case is dismissed.

Davidson County Court of Appeals 02/27/15
In Re: J.A.G. et al.
M2014-01469-COA-R3-PT
Authoring Judge: Chief Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John P. Hudson

This is a parental termination case concerning the four minor children (collectively, the Children) of L.Y.N.G. (Mother) and K.B.G. (Father). The Department of Children’s Services (DCS) was already involved with the family when it took emergency custody of the children following an incident of domestic violence between the parents. The children were placed together in fostercare with relatives. They were adjudicated dependent and neglected. Fifteen months later, DCS filed a petition to terminate the parental rights of both parents. The court granted the petition based on its finding, byclear and convincing evidence, (1) that multiple grounds for termination existed and (2) that termination was in the children’s best interest.  Mother and Father appeal. They challenge the trial court’s finding of grounds for termination, but do not raise an issue as to the trial court’s determination regarding the Children’s best interest. We affirm.

Putnam County Court of Appeals 02/27/15
Edward Martin v. Gregory Powers, et al
M2014-00647-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge James G. Martin, III

Holder of an automobile liabilityinsurancepolicybrought suit to recover for injuries sustained after being struck by a driver in a rental vehicle. The policy holder also sought coverage under the uninsured motorist coverage provision of his policy. Insurance carrier filed answer denying coverage and moved for summary judgment, contending that the policyholder was not entitled to coverage because the vehicle involved in the incident was owned by a rental car agency and, consequently, his damages did not arise out of the ownership, maintenance or use of an uninsured motor vehicle as required by the policy. The trial court held that the rental car agency was a self-insurer under Tennessee law and, consequently, the vehicle was not an “uninsured motor vehicle,”and granted the carrier’s motion. Policyholder appeals; finding no error, we affirm the judgment.

Williamson County Court of Appeals 02/27/15
S. W., by Heather Warren and Thomas C. Warren, as his natural parents and next friends v. Baptist Memorial Hospital, et al. - Concur
W2014-00621-COA-R10-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert L. Childers

I concur in the result reached by the majority Opinion that the trial court erred in imposing additional restrictions on Defendants’ counsel with regard to the requested ex parte interviews in this particular case. I write separately, however, to express my concern regarding the implications of this ruling, as fully explained in my separate concurrence in Dean-Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV, 2015 WL 277114 (Tenn. Ct. App. Jan. 20, 2015) (Stafford, J., concurring). Specifically, I agree with the majority’s interpretation of Tennessee Code Annotated 29-26-121(f), and its holding that the statute, as interpreted, does not authorize the trial court to impose the additional restrictions at issue in this case. However, I have genuine concern that the practical effect of the majority’s holding limits the inherent power of the trial court to both enforce its orders and protect litigants from unfair invasions of their privacy. As such, I must respectfully file this separate concurrence, in reliance on and fully incorporating my concurrence in Dean-Hayslett. See 2014 WL 277114, at *14–*17.

Shelby County Court of Appeals 02/27/15
S.W., by Heather Warren and Thomas C. Warren, as his natural parents and next friends v. Baptist Memorial Hospital, et al.- Concur
W2014-00621-COA-R10-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Robert L. Childers

I concur in the result reached by the majority opinion. I reach my conclusion, however, applying the abuse of discretion standard to the court’s action in imposing the specific restrictions and conditions in the protective order.

Shelby County Court of Appeals 02/27/15
In Re K.M.K. et al
E2014-00471-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Daniel R. Swafford

K.M.K. (Father) appeals the trial court’s judgment terminating his parental rights to his son, K.M.K., and his daughter, K.M.K. (collectively, the Children). The petitioner, Department of Children’s Services (DCS), removed the Children from their mother’s home after it found them living in unsafe and unsanitary conditions. They were placed in foster care and subsequently adjudicated dependent and neglected. Nine months later, DCS filed a petition to terminate the parental rights of both parents. The trial court terminated 1 Father’s rights based upon findings of (1) abandonment, (2) substantial noncompliance with a permanency plan, and (3) persistence of conditions. The trial court also determined that termination is in the best interest of the Children. Father appeals. We affirm the judgment of the trial court as modified in this opinion. Those modifications do not affect the trial court’s decision to terminate Father’s parental rights, which ultimate decision we affirm.

Bradley County Court of Appeals 02/27/15
In Re R.S.M.
E2014-00027-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor John C. Rambo

A.E.M. (Mother) surrendered parental rights with respect to her minor daughter, R.S.M. (the Child), to prospective adoptive parents, P.B.G. and D.R.G. (collectively, Respondents). M.S.M. and M.W.M. (Grandparents), the Child’s maternal grandparents, filed a complaint seeking to intervene in the surrender by A.E.M. of her parental rights. At trial, the court found (1) that the burden of proof was on Grandparents to establish, by clear and convincing evidence, that it was in the Child’s best interest to remove her from Respondents, and (2) that they failed to meet their burden. The court dismissed Grandparents’ complaint. They appeal. We affirm.

Washington County Court of Appeals 02/27/15
Delwin L. Huggins et al v. R. Ellsworth McKee et al.
E2014-00726-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jon Kerry Blackwood

This is the second appeal in this action involving a dispute over setoff claims related to a bankruptcy proceeding. The action commenced when the original plaintiff, Delwin L. Huggins, filed a complaint against the defendants, R. Ellsworth McKee and Alternative Fuels, LLC (“AF”), in December 2007. In July 2009, Mr. Huggins filed for Chapter 7 bankruptcy. In that proceeding, John P. Konvalinka purchased Mr. Huggins‟s interest in this action and was subsequently joined as a substitute plaintiff. Following consideration of the defendants‟ motion for judgment on the pleadings, the trial court dismissed Mr. Konvalinka‟s claims. Upon appeal, this Court affirmed the dismissal as to Mr. Konvalinka‟s claims against Mr. McKee but reversed as to the claims against AF. Upon remand, the trial court dismissed Mr. Konvalinka‟s claims against AF as moot. Having determined that the trial court failed to explain its conclusion that no relief would be possible, we vacate the judgment.

Hamilton County Court of Appeals 02/27/15
Terry Nelson v. Michael D. Ponce & Associates, PLLC
M2014-01079-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Don R. Ash

This is a legal malpractice case that was dismissed on grant of summary judgment in favor of Appellee law firm. The trial court denied Appellant’s motion to continue the hearing on the motion for summary judgment, and also struck Appellant’s filings in opposition to the motion for summary judgment as untimely. Discerning no error, we affirm and remand.

Davidson County Court of Appeals 02/26/15
Josephine Whitthorne Young v. William F. Young, Jr.
W2014-02006-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert Samual Weiss

This post-divorce dispute concerns a divorce decree that required husband to pay one-half of his retirement benefits to wife as alimony in solido. Fourteen years after the divorce, Husband returned to the trial court to terminate the payments on the ground that by the terms of the divorce decree, husband had been substantially overpaying wife. The trial court denied husband’s petition on the alternative grounds of res judicata, and a finding that the divorce decree obligated husband to pay wife one-half of the entire value of the retirement plan. We reverse the trial court’s determination that res judicata bars husband’s petition, but affirm as to the trial court’s interpretation of the divorce decree. Reversed in part, affirmed in part, and remanded.

Shelby County Court of Appeals 02/26/15
Easter Baugh v. Larry Moore
M2013-0224-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Vanessa Jackson

In the first appeal of this action to quiet title to real property, which was the former home of the parties’ common ancestor, Plaintiff was declared the owner of the real estate. Thereafter, the same two parties disputed who owned the personal property in the home. The trial court conducted an evidentiary hearing and determined that Plaintiff owned some of the personal property, and Defendant owned the remaining personal property. Being dissatisfied with that determination, Defendant filed a motion for new trial contending Plaintiff made false statements under oath, which was denied. In this appeal, Defendant contends the evidence preponderates against the trial court’s ruling concerning the ownership of the personal property. He also appeals the denial of his motion for a new trial. Because Defendant has not provided a verbatim transcript of the evidence or a statement of the evidence pursuant to Tenn. R. App. P. 24, we have no evidence to review. Lacking any evidence to review, we presume the evidence presented supports the trial court’s decisions. Defendant’s contention that he is entitled to a new trial must also fail because his motion was not supported by any evidence, and he offered nothing more than bare assertions that Plaintiff made false statements at trial. We find no merit to either contention and affirm the trial court in all respects. We have also determined that this appeal was devoid of merit; thus, it constitutes a frivolous appeal under Tenn. Code Ann. § 27-1-122. Accordingly, Plaintiff is entitled to recover the reasonable and necessary attorney’s fees and expenses she incurred on appeal. For the foregoing reasons, we affirm the trial court in all respects and remand with instructions for the trial court to award Plaintiff her reasonable and necessary attorney’s fees and expenses.

Coffee County Court of Appeals 02/25/15
Cadence Bank, NA v. The Alpha Trust, et al. - Dissent
W2014-01151-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Kenny W. Armstrong

I agree with the result reached by the majority Opinion with regard to whether Cadence was properly authorized to bring this suit. I also concur in the majority’s conclusion that the Appellants cannot survive summary judgment on their claims arising from the parties’ written contract. I must respectfully dissent, however, from the majority’s holding that summary judgment was proper with regard to Appellants’ breach of contract and promissory estoppel claims concerning the alleged oral contract. My disagreement with the majority’s Opinion is two-fold. First, a genuine dispute of fact exists over whether the parties entered into a binding oral contract. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993). Second, contrary to the majority’s conclusion that no contract existed between the parties based on the omission of material terms, Tennessee law will uphold a contract’s formation even though one party has discretion to choose between material terms. Gurley v. King, 183 S.W.3d 30, 41 (Tenn. 2005). Accordingly, I would reverse the trial court’s grant of summary judgment in favor of Cadence Bank on Appellants’ claims under the alleged oral contract.

Shelby County Court of Appeals 02/25/15
Cadence Bank, NA v. The Alpha Trust, et al.
W2014-01151-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Kenny W. Armstrong

In this action to collect on a promissory note, the trial court granted summary judgment to the bank. Appellants appeal the trial court’s decisions regarding whether the bank was properly doing business in the State of Tennessee and whether the Appellants’ two contract-based counter-claims fail as a matter of law. Discerning no error regarding the trial court’s finding that the bank was properly doing business in the State, we affirm the trial court’s ruling in that regard. We also affirm the trial court’s finding that the bank was entitled to summary judgment on the contract-based counterclaims.

Shelby County Court of Appeals 02/25/15
First American Title Insurance Company v. Citizens Bank
E2014-01105-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

First American Title Insurance Company (“First American”) sued Citizens Bank seeking a declaratory judgment holding that First American had no liability to Citizens Bank for two specific transactions involving loan closings on real property located in Sevierville, Tennessee. First American filed a motion for summary judgment. After a hearing, the Chancery Court for Sevier County (“the Trial Court”) granted First American summary judgment and dismissed Citizens Bank’s counterclaim. Citizens Bank appeals to this Court raising issues regarding whether the Trial Court erred in finding that by assigning the mortgages and deeds of trust Citizens Bank also had assigned the two closing protection letters related to these specific transactions, and also that Citizens Bank’s counterclaim was barred because Citizens Bank failed to give First American timely notice of the settlement between Citizens Bank and the assignee of the mortgages.

Sevier County Court of Appeals 02/25/15
City of Knoxville v. Carlos Geovanny Ponce-Carpio
E2014-00316-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Dale C. Workman

In this appeal, the owner of a bar sought review of a citation he received for failure to display a beer permit. We affirm.

Knox County Court of Appeals 02/25/15
Cindy A. Tinnel v. East Tennessee Ear, Nose and Throat Specialists, P.C. et al.
E2014-00906-COA-R3-CV
Authoring Judge: John W. McClarty
Trial Court Judge: Chancellor William Everett Lantrip

This is a medical malpractice action. Plaintiff filed a complaint after sending pre-suit notices to Defendants. After voluntarily dismissing the complaint, Plaintiff filed a second set of pre-suit notices before re-filing the complaint. The pre-suit notices were filed within one year of the voluntary dismissal. Defendants moved for summary judgment, alleging that the re-filed complaint was untimely because it was not filed within one year of the dismissal pursuant to the saving statute. Plaintiff responded that the re-filed complaint was timely because the pre-suit notices entitled her to a 120-day extension of the saving statute pursuant to Tennessee Code Annotated section 29-26-121(c). The trial court dismissed the action. Plaintiff appeals. We reverse the decision of the trial court.

Anderson County Court of Appeals 02/25/15
In Re Blaklyn M.
M2014-00503-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Barry R. Brown

Father who filed petition to establish visitation with his child appeals the award of parenting time, contending that the parenting plan does not maximize his participation in the child’s life. Finding that the evidence preponderates against the parenting schedule ordered by the Court, we reverse the judgment and remand for the adoption of a plan that increases Father’s residential parenting time.

Sumner County Court of Appeals 02/24/15
Alison Fein (Young) Dahl v. Shawn Patrick Young
M2013-02854-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robbie T. Beal

Mother and Father were divorced when their child was not quite two years old. Mother was named the primary residential parent. She remarried when the child was three years old and sought to relocate to Virginia when her husband was required to move there for his job. Father objected and sought to be named the primary residential parent. The evidence was undisputed that Mother’s stepson (the child’s stepbrother) committed an act of sexual abuse on the child when he was four and the stepson was ten. Counselors were retained to work with each child. Both counselors testified the situation was under control and Mother was taking proper precautions to protect the child. The trial court permitted Mother to relocate with the child, but it limited the number of days the stepbrother could spend with the child in Virginia. Mother appealed, claiming the trial court’s ruling was arbitrary. She also appealed the trial court’s ruling requiring her to pay the transportation costs of the child’s flights to Tennessee to visit Father, its credit to Father for childcare expenses on the child support worksheet, and its denial of her request for attorney’s fees. We vacate the court’s $250 childcare credit to Father because no evidence of this expense was offered at trial. We affirm the trial court’s judgment in all other respects.

Williamson County Court of Appeals 02/24/15