Court of Appeals Opinions

Format: 05/23/2017
Format: 05/23/2017
Gerald Rush, et al. v. Jackson Surgical Associates PA, et al.
W2016-01289-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kyle Atkins

This is a healthcare liability action. After sustaining injuries as a result of alleged surgical error, Appellant filed this action against the surgeon and his medical group. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121(a)(2)(E). The trial court granted the motion to dismiss, and Appellant appeals. Discerning no error, we affirm and remand.

Madison County Court of Appeals 02/13/17
Elizabeth Madeline Shelton Bewick v. Robert Kent Bewick
M2015-02009-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Senior Judge Jon Kerry Blackwood

This appeal stems from a divorce proceeding where the wife was awarded a divorce on the ground of adultery. The husband appeals and raises several issues related to the trial court’s division of the marital estate. He also challenges the trial court’s award of alimony in solido to the wife. Having reviewed the record transmitted to us on appeal, we affirm the trial court’s division of the marital estate but vacate the award of alimony and remand for further proceedings consistent with this Opinion.

Warren County Court of Appeals 02/13/17
Phyllis Arrington, Et Al. v. B.J. Broyles, Et Al.
E2016-00363-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Douglas T. Jenkins

This appeal involves the plaintiffs’ complaint for breach of common law and statutory warranties, violations of the Tennessee Consumer Protection Act, and promissory estoppel regarding the purchase of drywall that was later found defective . The plaintiffs voluntarily dismissed their claim for breach of common law and statutory warranties, while the seller sought summary judgment. Following a hearing, the trial judge recused himself before ruling on the motion for summary judgment. Thereafter, he entered an order granting partial summary judgment. The new judge then entered a final order of dismissal, confirming the grant of summary judgment and dismissing the case in its entirety. The plaintiffs appeal , claiming that remand is appropriate because not all issues were resolved by the grant of summary judgment . We agree and reverse.

Greene County Court of Appeals 02/10/17
City of Chattanooga, et al. v. Tax Year 2011 City Delinquent Real Estate Taxpayers
E2016-00025-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Pamela A. Fleenor

This appeal was filed by a purchaser who bought a parcel of real property in Hamilton County, Tennessee, at a delinquent tax sale. After the sale, the person who had owned the property at the time of the sale conveyed it to a married couple. The title agency, who assisted with the closing, the original owner, and the couple moved to redeem the property upon learning of the tax sale. The trial court granted their request, divested title from the tax sale purchaser, and vested it in the original owner. The tax sale purchaser appeals. We affirm as modified.

Hamilton County Court of Appeals 02/10/17
Rhonda Sue Watkins v. Kenneth Danny Watkins
M2016-00165-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael Binkley

This is the second appeal of this case. In the first appeal, this Court affirmed the trial court’s grant of appellee’s petition to modify child custody and child support but vacated the trial court’s judgment with respect to appellant’s petition to modify alimony for lack of findings. On remand, the trial court found that appellant failed to establish a material change in circumstances justifying an increase in the alimony award that she was already receiving. Appellant appeals. Because appellant’s brief failed to comply with the applicable rules, we dismiss her appeal in its entirety. In addition, we deny appellee’s request for attorney’s fees. 

Williamson County Court of Appeals 02/10/17
Mark George v. Shelby County Board of Education
W2016-01191-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James R. Newsom

This is a teacher tenure case. Appellant, a tenured teacher employed by Appellee Shelby County Board of Education, was fired for insubordination and conduct unbecoming. Appellant appealed the Shelby County School Board’s decision to the Chancery Court for Shelby County. In a post-trial motion, Appellee petitioned the court to consider an email notification of the board’s decision that was sent to Appellant’s attorney. Specifically, Appellee argued that the email constituted statutory notice to the Appellant so as to start the thirty-day time period for filing an appeal of the board’s decision in the trial court. Tenn. Code Ann. 49-5-513(b). The trial court denied the motion as newly discovered evidence. We conclude that the email goes directly to the question of whether the Appellant’s petition was timely so as to confer subject-matter jurisdiction on the trial court. Accordingly, the trial court erred in treating the motion as one for permission to file “newly discovered evidence.” Because the trial court applied an incorrect legal standard in ruling on the admissibility of the email evidence and did not address the question of its subject-matter jurisdiction, we vacate the trial court’s order and remand for further proceedings.

Shelby County Court of Appeals 02/08/17
Shameka Rushing v. AMISUB (SFH), Inc., et al.
W2016-01897-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert Samual Weiss

This is a premises liability case. Appellant slipped and fell in a clear liquid on the floor of the St. Francis Hospital emergency room and filed suit against the hospital. In its answer, the hospital denied liability and alleged comparative fault on the part of Appellant and its housekeeping management service, Crothall Healthcare, Inc. Appellant amended her complaint to name Crothall as a defendant. Appellees filed motions for summary judgment. The trial court granted both motions, finding that Appellant had failed to show that Appellees had actual or constructive notice of a dangerous condition. Appellant appeals. Discerning no error, we affirm the trial court’s grant of summary judgment.

Shelby County Court of Appeals 02/08/17
Nancy Lynn Hopper v. Anthony Angelo Debboli
M2016-00861-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Howard W. Wilson

Former Husband and Wife owned a business together while they were married. In a post-divorce order, the trial court decreed that the business was to be wrapped up and sold. Former Husband failed to comply with the order and Former Wife filed a motion for a temporary restraining order (“TRO”) and a petition for civil contempt. The court granted Former Wife a TRO but did not rule on the petition for contempt. Former Wife filed a motion to set a hearing on her petition for contempt two years later, and the trial court dismissed the motion as moot. Former Wife appealed, and we reverse the trial court’s judgment. We conclude that this Court lacks subject matter jurisdiction over this appeal because the trial court failed to resolve all outstanding issues in the case.

Rutherford County Court of Appeals 02/08/17
Margaret Cruce v. Memmex Inc. d/b/a Salsa Cocina Mexicana Restaurant
W2016-01167-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

In this premises liability case, the plaintiff appeals the trial court’s grant of summary judgment to the defendant property owner. Discerning no error, we affirm.

Shelby County Court of Appeals 02/07/17
Tiffine Wendalyn Gail Runions, et al. v. Jackson-Madison County General Hospital District, et al., Concur in part and Dissent in part
W2016-00901-COA-R9-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donald H. Allen

I concur in the majority opinion’s denial of West Tennessee Health Network and West Tennessee Healthcare, Inc.’s Motion to Dismiss and/or for Summary Judgment. Like the majority, I express no opinion whatsoever on whether dismissal of these two parties might be appropriate under other theories. However, I must respectfully dissent from the majority opinion’s holding that pre-suit notice was provided to the District and that amendment of Ms. Runions’ complaint was proper. The majority opinion states: “we cannot ignore the unmistakable acknowledgement from Ms. Zamata’s letter that Ms. Runions did, in fact, provide written notice of a potential claim against the District.” Herein lies my disagreement with the majority opinion.

Madison County Court of Appeals 02/07/17
Tiffine Wendalyn Gail Runions, et al. v. Jackson-Madison County General Hospital District, et al.
W2016-00901-COA-R9-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donald H. Allen

This is an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. In this health care liability action, we must determine whether the plaintiff properly complied with the pre-suit notice requirement found in Tennessee Code Annotated section 29-26-121(a)(1). The original defendants in this matter all filed a motion to dismiss and/or for summary judgment alleging that they did not provide medical treatment to the plaintiff/appellee. Subsequently, the plaintiff filed a response to the defendants' motion acknowledging that she had mistakenly identified a proper defendant in this suit. The plaintiff also filed a motion to amend her complaint attempting to remedy that mistake by substituting in the proper defendant. After both motions were heard, the trial court denied the original defendants' motion to dismiss and/or for summary judgment and granted the plaintiff/appellee's motion to amend her complaint. For the following reasons, we affirm the decision of the trial court and remand for further proceedings.

Madison County Court of Appeals 02/07/17
In Re Braylin D.
M2015-02491-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Sheila Calloway

Mother, who had been designated as the primary residential parent of her eight-year-old child, appeals an order changing the designation to the child’s Father, contending that the material change of circumstances since the entry of the original parenting plan, as found by the trial court, was not sufficient to justify the modification of custody. We have determined that the evidence does not show that the child’s well-being has been adversely affected by the difficulties the parents have encountered in complying with the parenting plan or that the modification is in the child’s best interest; accordingly, we reverse the order changing the designation of the primary residential parent. We reverse the order denying Mother’s request for attorney’s fees for services incurred in securing a judgment for back child support and remand for a determination of the amount of the award.

Davidson County Court of Appeals 02/07/17
In re Colton R.
E2016-00807-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Tammy M. Harrington

This is a termination of parental rights case. Mother and Stepfather filed a petition to terminate the parental rights of Father to the child. The trial court found that the grounds of (1) abandonment for willful failure to visit as defined by Tennessee Code Annotated section 36-1-102(1)(A)(i), (2) abandonment for willful failure to visit by an incarcerated parent as defined by Tennessee Code Annotated section 36-1-102(1)(A)(iv), and (3) abandonment based on conduct demonstrating a wanton disregard for the welfare of the child had been proven by clear and convincing evidence. The trial court also found that termination was in the best interest of the child. Father appeals. We reverse the trial court’s finding of abandonment by willful failure to visit as defined by Tennessee Code Annotated section 36-1-102(1)(A)(i) but affirm the trial court in all other respects.

Blount County Court of Appeals 02/07/17
Samuel C. Clemmons, et al v. Johnny Nesmith
M2016-01971-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael Binkley

In this accelerated interlocutory appeal, Appellants appeal from separate orders denying two motions for recusal filed in this case. After thoroughly reviewing the record on appeal, we affirm the decision of the trial court to deny the recusal motions. 

Williamson County Court of Appeals 02/06/17
Bull Market, Inc. v. Adel Elrafei
W2016-01767-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph H. Walker, III

A purchaser of property entered into an installment contract and signed a promissory note specifying the day on which monthly payments were to be made. The purchaser began making payments on different days of the months and the seller accepted these payments over a course of years. Over seven years after the contract was executed, the seller sought to declare the contract null and void because the purchaser failed to tender his payment on the day specified in the note. The trial court awarded the seller relief and granted it possession of the property. The purchaser appealed, and we reverse the trial court’s judgment. We conclude the parties modified the terms of the promissory note through their course of conduct and that the purchaser did not breach the contract.

Tipton County Court of Appeals 02/03/17
In Re: Neveah W.
W2016-00932-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Walter L. Evans

This is the second appeal in this case involving a long-running battle between foster parents and the Tennessee Department of Children’s Services (“DCS”). In 2014, DCS removed the three-year-old child at issue from her foster home of three years. In the context of this already pending termination and adoption proceeding, the chancery court held an evidentiary hearing and determined that there was insufficient evidence to justify removal and that DCS had taken steps adverse to the child’s best interest. The chancery court ordered DCS to return the child to her foster home. On extraordinary appeal, this Court determined that a trial court cannot direct the placement of a foster child within DCS legal custody, but we recognized that the trial court could remove legal custody from DCS and place custody directly with the foster parents if warranted. One week prior to the hearing on remand, DCS participated in a surrender proceeding under a separate docket number and contemporaneously obtained an order of full guardianship over the child. DCS then moved to dismiss as moot the termination, adoption, and custody petitions pending in this case because DCS, as guardian, refused to consent to an adoption by the child’s former foster parents. The child’s current foster mother attempted to intervene. After a two-day trial, the trial court dismissed the former foster parents’ petitions as moot and granted the adoption to the current foster mother, as DCS in its role as guardian would only consent to an adoption by her. The child’s guardian ad litem appeals. The former foster parents and DCS raise additional issues. We affirm in part, vacate in part, reverse in part, and remand for further proceedings.

Shelby County Court of Appeals 02/03/17
Joseph Skernivitz v. State of Tennessee Department of Safety and Homeland Security
M2016-00586-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Claudia C. Bonnyman

In this drug forfeiture case, we have concluded that the trial court lacked subject matter jurisdiction because the property owner failed to filed a petition for judicial review within the sixty-day time period required under Tenn. Code Ann. § 4-5-322(b).  We, therefore, vacate the trial court’s decision.

Davidson County Court of Appeals 02/03/17
240 Poplar Avenue General Partnership v. Cheryl Gray
W2016-00697-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Felicia Corbin-Johnson

This is a breach of contract action in which the lessor filed suit against the lessee for non-payment of rent, utilities, and repairs pursuant to the terms of a lease agreement for two units in a commercial building. Following a hearing, the trial court entered a judgment in favor of lessor. The lessee appeals. We affirm.

Shelby County Court of Appeals 02/02/17
Siminder Kaur v. Vaneet Singh
W2016-02058-COA-R10-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert L. Childers

This is an interlocutory appeal limited to the issue of whether the orders of an Indian court regarding matters pending in India is entitled to full faith and credit, such that this state’s trial court lacks jurisdiction over custody of the minor child pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act. The mother, an Indian citizen but permanent resident of the United States, filed an action in India seeking the return of her minor son. She contends that her son, a citizen of the United States, is being detained illegally in India by her husband and his family. The Indian court ruled that the child should remain with the paternal grandparents in India at this time. The mother, thereafter, filed an action for divorce in Shelby County. After a hearing, the state trial court ordered, inter alia, that the father, also an Indian citizen but permanent resident of the United States, return the child to Tennessee within seven days. Upon the trial court’s denial of the father’s request for an interlocutory appeal pursuant to Rule 9, the father sought a Rule 10 extraordinary appeal of the trial court’s ruling. We find that the appeal was improvidently granted. Accordingly, we decline to address the issue presented and dismiss the appeal.

Shelby County Court of Appeals 02/02/17
Danny Hale v. State of Tennessee
E2016-00249-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: William O. Shults, Commissioner

This appeal involves a suit filed in the Tennessee Claims Commission against the State of Tennessee for the wrongful death of Tammy Hale. The claimant, Ms. Hale’s father, titled his cause of action as one for “negligent care, custody, and control of persons” pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(E). The claimant alleged that the State was responsible for the actions of an inmate whose release was not conditioned upon participation in community supervision for life as required by section 39-13-524. The State sought dismissal, alleging that the claim was really one for “negligent deprivation of statutory rights” based upon the failure to adhere to section 39-13-524, which does not confer a private right of action. Following a hearing, the Claims Commission, William O. Shults, Commissioner, agreed and dismissed the claim. The claimant appeals. We affirm.

Cocke County Court of Appeals 02/02/17
James R. Haynes, III, et al. v. Leslie E. Lunsford, et al.
E2015-01686-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Richard R. Vance

Purchasers of real estate brought suit against the seller as well as the real estate agent and agency that assisted the buyers, alleging, inter alia, fraudulent misrepresentation, breach of duty to disclose adverse facts related to the purchased property, and violations of the Tennessee Consumer Protection Act. The buyers argued that the defendants misrepresented the age and history of the home and did not disclose that it had a mold problem. Upon motion for summary judgment, the agent and the agency were dismissed as defendants. The trial court subsequently denied the buyers' motion to reconsider the summary judgment order. The buyers appeal. Finding no error, we affirm.

Sevier County Court of Appeals 02/02/17
Joseph Martin Colley v. Alisha Dale McBee
M2014-02296-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge J. Curtis Smith

This case concerns modification of a parenting plan. Following her divorce in Tennessee, Mother moved with her child to Maryland. Father initially opposed the move, but an agreed order entered after the move adopted an amended permanent parenting plan, which named Mother the primary residential parent. The amended permanent parenting plan granted Father parenting time over the summer, during certain holidays, and when either Father traveled to Maryland or Mother traveled to Tennessee. After experiencing difficulties exercising parenting time and growing concern over Mother’s care of the child, Father filed a petition requesting to be named primary residential parent. The trial court denied the request. Although it found a material change in circumstances based on the child’s serious mental health issues, the court determined that it was in the best interest of the child to remain with Mother. Father appeals arguing that the trial court erred in: (1) finding it was in the child’s best interest for Mother to remain the primary residential parent; (2) not finding Mother in contempt; and (3) awarding attorney’s fees to Mother. We affirm the decision of the trial court.  

Marion County Court of Appeals 02/02/17
Anthony D. Herron, Jr. v. Tennessee Department of Human Services
W2016-01416-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor James R. Newsom

This is an administrative appeal in which Petitioner challenges the decision of the Tennessee Department of Human Services to suspend services he received pursuant to the state’s vocational rehabilitation program. The Division of Appeals and Hearings upheld the Department’s decision to suspend Petitioner’s services and this decision was affirmed by the Department’s commissioner. Thereafter, Petitioner filed a petition for judicial review with the Shelby County Chancery Court. The court upheld the Department’s actions and dismissed the petition. Petitioner appealed; we affirm.

Shelby County Court of Appeals 02/01/17
In re Kayla B., et al.
E2016-01192-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Larry M. Warner

This appeal involves the termination of a mother’s parental rights to six children and a father’s parental rights to three of those children. The juvenile court found clear and convincing evidence of five grounds for termination of parental rights and that termination of parental rights was in the children’s best interest. We conclude that DCS did not prove abandonment by an incarcerated parent by clear and convincing evidence. Because the record contains clear and convincing evidence to support four grounds for termination, namely, abandonment by failure to provide a suitable home, substantial noncompliance with the requirements of the permanency plan, persistence of conditions, and severe child abuse, and that termination is in the best interest of the children, we affirm.

Cumberland County Court of Appeals 02/01/17
Trevor Howell v. Kennedy Smithwick
E2016-00628-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge M. Nicole Cantrell

Mother has appealed the trial court’s decisions regarding parenting time, criminal contempt, child support, and the child’s surname. We have determined that the trial court erred in finding Mother in criminal contempt as to one of the three incidents at issue, in setting temporary child support, in failing to order Father to pay child support by wage assignment, and in ordering the child’s surname to be changed to Father’s surname. In all other respects, we affirm the decision of the trial court.

Anderson County Court of Appeals 02/01/17