Court of Appeals Opinions

Format: 06/20/2018
Format: 06/20/2018
Cathy Gwen Agee Swafford v. Danny Earl Swafford, Sr.
E2017-00095-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jeffrey F. Stewart

This is a divorce action involving the classification of the parties’ separate and marital property and equitable division of the marital assets. Because we are unable to discern whether the trial court classified the wife’s retirement accounts as marital or separate property prior to its division of the marital estate and because the trial court failed to make sufficient findings of fact regarding several items of property prior to the distribution, we hereby vacate the trial court’s distribution of marital property. We remand this matter to the trial court for entry of sufficient findings of fact and conclusions of law regarding the classification, valuation, and ultimate distribution of the parties’ marital property.

Bledsoe County Court of Appeals 03/21/18
In Re: Estate of John J. Burnette
E2016-02452-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jeffrey M. Atherton

This appeal involves a successor estate administrator’s attempt to collect his attorney’s fees from a prior administrator. John G. McDougal, the prior administrator, gave his coadministrator, John D. Burnette (Burnette), a check representing the proceeds from the sale of the decedent’s real estate. Instead of depositing the check in a Tennessee bank as instructed, Burnette took the check to Florida and deposited it in a bank account there. Afterward, Burnette refused to communicate or cooperate with McDougal. The trial court held that McDougal breached his fiduciary duty to the estate and beneficiaries, and awarded the successor administrator a judgment of $5,523.28. We hold that the undisputed facts establish no negligence or malfeasance on McDougal’s part that warrant an award of attorney’s fees. Accordingly, we reverse the judgment of the trial court.

Hamilton County Court of Appeals 03/21/18
Luther Smith, Jr., individually and as legal guardian of Luther Smith, III v. ChildLife, Inc., et al.
W2017-01943-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Gina C. Higgins

Father appealed the trial court’s order denying encroachment of minor child’s funds held by the Shelby County Circuit Court Clerk. We affirm.

Shelby County Court of Appeals 03/21/18
Advanced Security Services Evaluation And Training, LLC v. OHR Partners LTD., Et Al.
M2017-00249-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

The dispositive issue in this case is whether Tennessee may exercise specific personal jurisdiction over the defendants. The plaintiff, a Tennessee company, filed this action against the defendants in Davidson County Chancery Court for breach of contract and unjust enrichment arising from security services it provided to facilitate the transfer of gold worth millions of dollars from Africa to Hong Kong. The defendants filed a motion to dismiss for, inter alia, lack of personal jurisdiction, contending a Tennessee court could not exercise personal jurisdiction over them because their contacts with the forum were too attenuated. The trial court granted the motion and dismissed the case. The plaintiff appealed, arguing the defendants’ apparent agent had numerous and substantial contacts with the forum sufficient to establish specific personal jurisdiction in Tennessee. The defendants assert the individual with whom the plaintiff entered into a contract was an independent contractor, not an agent of the defendants, and that the defendants have not had sufficient contacts with Tennessee to subject them to the jurisdiction of a Tennessee court. The defendants also raise a separate issue, contending the trial court erred in denying their motion to dismiss the complaint for failure to state a claim. We have determined that the individual with whom the plaintiff principally communicated regarding the contract and services rendered by the plaintiff was an apparent agent of the defendants. Having applied the two-step analysis enunciated in State v. NV Sumatra Tobacco Trading Co., 403 S.W.3d 726 (Tenn. 2013), we have also determined that the nature and quality of the apparent agent’s contacts, along with those of an officer of the defendant entities, were purposeful and of sufficient quantity with Tennessee to satisfy the minimum contacts requirement. Furthermore, the defendants failed to establish that it would be unreasonable or unfair for Tennessee to exercise specific personal jurisdiction over them as it pertains to issues deriving from or connected with the controversy that established jurisdiction. Accordingly, we reverse the trial court’s ruling that Tennessee does not have specific personal jurisdiction over the defendants. We affirm the trial court in its denial of the defendants’ motion to dismiss for failure to state a claim for breach of contract. Accordingly, we reverse in part, affirm in part and remand for further proceedings consistent with this opinion. 

Davidson County Court of Appeals 03/20/18
Victor Cole v. Joe Caruso
W2017-00487-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Gina C. Higgins

In this unjust enrichment claim, Plaintiff/Appellee Victor Cole filed a lawsuit alleging, inter alia, a claim for unjust enrichment against Defendant/Appellant Joe Caruso. A jury determined that Mr. Cole had been unjustly enriched. Upon our review, we conclude that Mr. Cole failed to provide any evidence that Mr. Caruso was unjustly enriched, thereby failing to establish a prima facie claim. Because Mr. Cole failed to provide any evidence regarding one of the elements of unjust enrichment, the trial court erred in denying Mr. Caruso’s motion for directed verdict.

Shelby County Court of Appeals 03/20/18
HSBC Bank, N.A. v. Verrina Shields
W2016-01625-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Jerry Stokes

This is an appeal of a routine detainer action. Nevertheless, in her reply brief, the appellant states this case “is a ‘Tax Event’ and a ‘Pre-Paid’ account exempt from levy defendants are in commercial dishonor for non-acceptance and payment under section 3- 505, 510 of Uniform Commercial Code subject to forfeiture & collection under GAP. Verrina Shields Bey herein ‘Responds To Defendants Brief’ against Counsel for this ‘Tax Event’ to have the court rule in her favor and stop, terminate a attempted illegal, unlawful foreclosure.” Contrary to the appellant’s contentions, the real property at issue was sold at foreclosure, and this is merely a detainer action in which the purchaser of the property, the appellee, is seeking possession of the property. Both the general sessions court and the circuit court of Shelby County ruled in favor of the appellee and entered judgment awarding a writ of possession to the appellee. Due to profound deficiencies in the appellant’s brief and reply brief, we dismiss the appeal.

Shelby County Court of Appeals 03/19/18
Wendy Ann Burton v. Robert M. Mooneyham, Deceased, et al.
M2017-01110-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Russell T. Perkins

This is an action by the ex-wife of the decedent to establish a constructive trust to the proceeds of a life insurance policy that are payable as a consequence of the death of the plaintiff’s ex-husband. In the 2011 Final Decree, the ex-husband was ordered to maintain a specified life insurance policy in the amount of $500,000 with the plaintiff to be designated as the sole beneficiary. Following the divorce, the ex-husband allowed the specified policy to lapse; however, he maintained a second life insurance policy that had a death benefit of $250,000 with seventy percent of the death benefits payable to the plaintiff and thirty percent to the decedent’s mother. Following the ex-husband’s death, the plaintiff commenced this action against the decedent’s mother and the insurance company. The decedent’s mother filed an answer in which she claimed the plaintiff had no legal rights to the insurance policy at issue. The decedent’s mother also claimed she had a vested right to her share of the death benefits based on an oral contract. The insurance company deposited the insurance proceeds into court and was dismissed from the case. Thereafter, the parties filed cross-motions for summary judgment. The trial court granted summary judgment in favor of the plaintiff, relying principally on the holding in Holt v. Holt, 995 S.W.2d 68 (Tenn. 1999). We affirm, finding the decedent’s mother had no vested interest in the policy.

Davidson County Court of Appeals 03/19/18
Jill St. John-Parker v. Virgil Duane Parker
E2016-02297-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Lawrence Howard Puckett

In a prior appeal, this Court remanded to the trial court for reconsideration of its marital property division. The trial court affirmed its previous award and awarded an additional sum to former wife as her equitable portion of the parties’ marital property. The trial court, however, declined to calculate post-judgment interest on the additional award as of the effective date of the divorce, pursuant to this Court’s holding in Watson v. Watson, 309 S.W.3d 483 (Tenn. Ct. App. 2009). On appeal, former wife argues that Watson did not deprive the trial court of discretion to calculate post-judgment interest as of the earlier date. We affirm.

Bradley County Court of Appeals 03/19/18
Charles Michael Vance, II v. Angela Michelle Taylor Vance
M2017-00622-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Phillip R. Robinson `

The issues on appeal involve the proper number of days upon which to base the calculation of child support, the propriety of the award of extraordinary educational expenses under the parties’ permanent parenting plan, and attorney’s fees. Having determined that the trial court erred in its determination of child support and extraordinary educational expenses, we affirm in part, and vacate and remand in part.  

Davidson County Court of Appeals 03/16/18
Matthew Epps v. Mary Sonjia Thompson, et al.
M2017-01818-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kelvin D. Jones

A landowner hired an individual she supervised at work to paint her house outside of work. The landowner provided the painter with material and ladders for the job. While he was using the folding ladder and painting one of the house’s eaves, the painter fell to the ground and injured his wrist. The painter sued the landowner for damages, asserting the landowner was negligent for providing him with old ladders that were unsafe. The landowner moved for summary judgment, which the trial court granted after finding the painter was unable to prove cause in fact or proximate cause. The painter appealed, and we affirm the trial court’s judgment.

Davidson County Court of Appeals 03/15/18
Jefferson County Schools v. Tennessee Risk Management Trust, et al.
E2017-01346-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Ben W. Hooper, II

In this appeal concerning insurance coverage, Jefferson County Schools (“Plaintiff”) sued its insurers, Tennessee Risk Management Trust and Travelers Indemnity Company (“Defendants”), in the Chancery Court for Jefferson County (“the Trial Court”). Building 8 at Jefferson County High School collapsed during a rainstorm. The Tennessee State Fire Marshal’s Office ordered Plaintiff to implement repairs to prevent a future collapse of both the damaged and undamaged portions. Plaintiff asserted that, pursuant to an “ordinance or law” provision in its insurance policy, Defendants were responsible for coverage for additional work in undamaged portions of Building 8 in order to comply with the Fire Marshal’s directive. Defendants argue in response that the additional work was discretionary and went beyond what the insurance policy covered. After a hearing, the Trial Court entered judgment in favor of Defendants. Plaintiff appeals. We hold that the Fire Marshal’s directive, issued under that office’s authority, qualified as an “ordinance or law.” Defendants were, therefore, required to cover the additional work. We reverse the judgment of the Trial Court and remand for determination and entry of a monetary judgment in favor of Plaintiff.

Jefferson County Court of Appeals 03/15/18
Joe W. Brown, et al. v. AmSouth Bank, et al.
W2016-02596-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Walter L. Evans

The dispositive issue in this appeal is whether the trial court erred by dismissing the complaint with prejudice based upon collateral estoppel and res judicata. The record before us reveals that as many as ten other actions have been commenced by the same parties in state and federal courts in which Plaintiffs have repeatedly challenged the validity of Defendants’ efforts to foreclose on property in Eads, Tennessee. To commence this action, Plaintiffs filed a Complaint to Set Aside Foreclosure and Declare Foreclosure a Nullity, for Damages, and for Legal and Equitable Relief. Defendants challenged the complaint by filing a Motion to Dismiss Complaint, contending that Plaintiffs waived their right to contest the foreclosure pursuant to a settlement agreement they entered into following mediation in one of the federal court proceedings. Defendants also contend that the same issues that are raised in this action were litigated in the federal courts, and that the United States Court of Appeals for the Sixth Circuit held the settlement agreement was valid and enforceable. The chancellor granted Defendants’ motion and dismissed this action based on collateral estoppel and res judicata. We affirm.

Shelby County Court of Appeals 03/14/18
In Re: Estate Of Ernest Lester Salmons
E2017-00389-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge M. Nicole Cantrell

This appeal presents the issue of whether a trial court may properly transfer a probate proceeding that was allegedly filed in the wrong county to the county where the decedent was residing when he passed away. The administratrix of the probate estate was appointed by the Campbell County Chancery Court upon the filing of a verified petition alleging that the decedent died in Lake City, Tennessee. A defendant in a wrongful death lawsuit, subsequently filed by the administratrix regarding the death of the decedent, filed a motion in the Campbell County Chancery Court, seeking to have the previously issued letters of administration revoked because the decedent was residing in a nursing facility in Anderson County at the time of his death. Rather than revoking the letters of administration, the Campbell County Chancery Court transferred the probate matter to Anderson County. Subsequently, the Anderson County Chancery Court denied a similar motion, stating that it had no jurisdiction to revoke letters of administration issued by the Campbell County Chancery Court. The movant has appealed. Discerning no error, we affirm the Campbell County Court’s order transferring the probate action to Anderson County.

Anderson County Court of Appeals 03/14/18
Doris Annette Christenberry v. Ocwen Loan Servicing, LLC, Et Al.
E2017-01026-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge David R. Duggan

Doris Annette Christenberry (“Plaintiff”), pro se, appeals the April 19, 2017 judgment of the Circuit Court for Blount County (“the Trial Court”) granting summary judgment to Ocwen Loan Servicing, LLC and Wells Fargo Bank, N.A., among other things. Plaintiff’s brief on appeal fails to comply in any meaningful way with Tenn. R. App. P. 27. We, therefore, find that Plaintiff has waived her issues on appeal.

Blount County Court of Appeals 03/14/18
Buster Chandler v. Maria M. Salas
M2017-01233-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Joseph P. Binkley, jr.

Plaintiff, an inmate at the Kentucky State Reformatory, who brought an action against the Clerk and Master of the Davidson County, Tennessee, Chancery Court, appeals the dismissal of his suit for failure to comply with statutory provisions applicable to suits brought in Tennessee by inmates incarcerated in Tennessee facilities and for failing to pay the filing fee. Plaintiff contends that the trial court abused its discretion in not ordering that the filing fee be paid from his inmate trust account. Upon a review of the record, we determine that neither the statutes relied upon by the court in dismissing the suit nor those relied upon by the plaintiff in contesting the dismissal apply to the case at bar; we have further determined that the dismissal was proper for Plaintiff’s failure to pay the fees required by Tennessee Code Annotated section 8-21-401 or secure such relief from the requirement as may be available to him. Consequently, we affirm the dismissal of this action.      

Davidson County Court of Appeals 03/13/18
Valenen Collins v. Sams East, Inc.
W2017-00711-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

Appellant appeals the dismissal of this action on the ground of res judicata. We hold that an essential element of res judicata—that the underlying judgment was rendered by a court of competent jurisdiction—is not met in this case. Here, the court that rendered the judgment relied upon lacked subject matter jurisdiction due to the doctrine of prior suit pending. The trial court’s judgment of dismissal is therefore reversed.

Shelby County Court of Appeals 03/13/18
Patrick Durkin v. MTown Construction, LLC
W2017-01269-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Rhynette N. Hurd

This appeal involves a homeowner’s lawsuit against a construction company for breach of contract and negligence. After a bench trial, the trial court entered judgment for the homeowner for $135,383.93 and denied a counterclaim filed by the construction company for the balance of the contract price. The construction company appeals, arguing that the trial court erred in its calculation of damages and in denying the counterclaim. We affirm in part, reverse in part, and remand for further proceedings.

Shelby County Court of Appeals 03/13/18
In Re: Riley W.
E2017-01853-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Robert D. Philyaw

Lindsey W. (“Mother”) appeals the September 25, 2017 order of the Juvenile Court for Hamilton County (“the Juvenile Court”) terminating her parental rights to the minor child Riley W. (“the Child”) upon the grounds of substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2) and persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). We find and hold that grounds for terminating Mother’s parental rights to the Child pursuant to Tenn. Code Ann. §§ 36-1- 113(g)(2) and (g)(3) were proven by clear and convincing evidence and that it was proven by clear and convincing evidence that the termianation was in the Child’s best interests. We, therefore, affirm the September 25, 2017 order of the Juvenile Court terminating Mother’s parental rights to the Child.

Hamilton County Court of Appeals 03/12/18
In Re Homer D., Et Al.
M2017-00298-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Daryl A. Colson

This is a termination of parental rights case. The trial court terminated Appellant’s parental rights on the grounds of: (1) abandonment by willful failure to support; (2) persistence of the conditions that led to the children’s removal; and (3) substantial noncompliance with the requirements of the permanency plans. The trial court also found that termination of Appellant’s parental rights was in the children’s best interest. On appeal, the Tennessee Department of Children’s Services concedes that the persistence of conditions ground is not applicable to Appellant. We agree and accordingly reverse the trial court’s reliance on that ground for termination. Although we also reverse the trial court’s finding of abandonment, because it is only necessary that one ground for termination be established, the trial court’s termination order is otherwise affirmed. 

Davidson County Court of Appeals 03/09/18
State of Tennessee, on Relation of V. Calvin Howell, et al. v. Jimmy Farris, et al.
W2017-00438-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Martha Brasfield

This case arose as a result of a local building inspector’s refusal to issue building permits to the owner/developer of three commercial properties because the owner/developer did not have a licensed general contractor overseeing construction. Subsequently, without submitting completed applications for the building permits or paying the required permit fees, the owner/developer appeared before the Bolivar city council to appeal the denials of the building permits. Relying on the recommendation of the city attorney, the city council determined that because the owner/developer had not filed written building permit applications or paid building permit fees, an appeal was not appropriate and refused to take any action. The owner/developer then filed a complaint for a writ of certiorari and other relief in the Chancery Court. Following the filing of the lawsuit, the owner completed the applications, paid the permit fees, and the building permits were issued. The owner/developer was later granted permission to amend his complaint to allege an inverse condemnation claim based on a regulatory taking. The defendants subsequently moved for summary judgment. The Chancery Court ultimately granted defendants summary judgment on all of the owner/developer’s initial claims. The defendants later filed a motion to dismiss as to the owner/developer’s claim for inverse condemnation. The motion to dismiss was also granted by the Chancery Court. The owner/developer appeals. For the reasons stated herein, the decision of the Chancery Court is affirmed.

Hardeman County Court of Appeals 03/09/18
Charles Joseph Tooley v. Pamela M. Howey Tooley
M2017-00610-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joe Thompson

In this divorce, the husband appeals the trial court’s award of alimony in futuro, the amount of alimony awarded, and the allocation of marital debt. Concluding that the evidence does not preponderate against the trial court’s findings and that the trial court did not abuse its discretion in applying relevant legal principles, we affirm.    

Sumner County Court of Appeals 03/08/18
State of Tennessee v. Roscoe Dixon
W2017-01051-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

Former state senator convicted of bribery appeals the trial court’s denial of the restoration of his voting rights based on Tennessee Code Annotated section 40-29-204. Discerning no reversible error, we affirm.

Shelby County Court of Appeals 03/06/18
In Re Estate of Eloise J. Storey
W2017-00689-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kathleen N. Gomes

Following eleven years of litigation, Appellant appeals the trial court’s award of both attorney’s fees, executor’s fees, and expenses charged to the estate. Discerning no error, we affirm.

Shelby County Court of Appeals 03/05/18
Melody Crunk Telfer v.George Curtiss Telfer
M2017-00420-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor James G. Martin, III

This appeal arises from a divorce case that was appealed and remanded and now once again is back before us. Melody Crunk Telfer (“Wife”) filed for divorce from husband George Curtiss Telfer (“Husband”) in 2010. A final decree of divorce was entered in 2012. Husband appealed the finding that he lacked a marital interest in two of Wife’s business entities. This Court found that the appreciation in value of the entities at issue was marital property subject to equitable division. On remand, the Chancery Court for Williamson County (“the Remand Court”) valued the appreciation, divided the marital estate, and awarded Husband attorney’s fees. Husband appeals to this Court. We find, inter alia, that the approximately 84/16 division of the marital estate in favor of Wife rendered by the Remand Court is inequitable in light of the evidence and the relevant statutory factors. We vacate that portion of the Remand Court’s order and remand for a fresh division of the marital estate on a 65/35 basis in favor of Wife. We otherwise affirm the Remand Court.   

Williamson County Court of Appeals 03/05/18
Dawn W. Kinard, et al. v. NationStar Mortgage, LLC, et al.
W2017-01131-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Walter L. Evans

This appeal involves various issues related to a mortgage loan transaction and loan modification efforts. The plaintiffs’ complaint, which was filed just a few days before a scheduled foreclosure, asserted multiple claims for relief, including breach of contract, breach of the covenant of good faith and fair dealing, and violation of the Truth-in- Lending Act. The trial court ultimately dismissed all claims at summary judgment in the defendants’ favor. For the reasons stated herein, we affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion

Shelby County Court of Appeals 03/02/18