Court of Appeals Opinions

Format: 07/28/2015
Format: 07/28/2015
In Re: Eve C.
M2014-01420-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Donna Scott Davenport

Mother, whose daughter was placed in custody of the Department of Children’s Services at birth, appeals the termination of her parental rights on grounds of substantial non-compliance with the permanency plans and persistence of conditions. Finding no error, we affirm the termination of Mother’s rights.
   

Rutherford County Court of Appeals 04/29/15
Jennifer Broadrick v. Troy Broadrick
M2013-02628-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Timothy L. Easter

Father and Mother were divorced in Kentucky. As part of the divorce, they entered into an agreed custodial arrangement that granted them equal time with their child. Both parties subsequently relocated to Tennessee and now live within sixty miles of each other. Mother filed a petition to register the Kentucky plan and modify residential parenting time. Following a trial, the Tennessee court concluded that a material change in circumstance had occurred and modification of the parenting schedule was in the child’s best interest. In a new parenting plan, the court allocated Mother 246 days and Father 119 days of parenting time. Father appeals. We affirm.

Williamson County Court of Appeals 04/29/15
Rogelynn Emory v. Memphis City Schools Board of Education, now known as Shelby County Board of Education
W2014-01293-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Walter L. Evans

This is an appeal by a tenured teacher seeking relief for the school board’s failure to comply with the procedures set forth in the Tennessee Teacher Tenure Act for her termination. After receiving notice of charges pending against her, the teacher demanded a hearing before the school board. Pursuant to the Tenure Act, the school board was required to conduct a hearing on the charges within thirty days of the teacher’s demand. The school board failed to do so. The trial court held that because the delay did not affect the outcome of the hearing, the school board’s failure to comply with the Tenure Act was harmless and the teacher was not entitled to relief. On appeal, we conclude that Ms. Emory is entitled to an award of back pay for the number of days over thirty that she was suspended without pay and without a hearing following her demand for a hearing. We therefore reverse the judgment of the trial court and remand the case for a calculation of the proper amount of damages to which the teacher is entitled.

Shelby County Court of Appeals 04/29/15
Legacy Auto Sales, LLC, et al. v. Bank of New York Mellon, et al.
W2014-00637-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Arnold B. Goldin

This appeal arises from a suit by a borrower against a bank and its servicing agent. In its amended complaint, the borrower sought to enjoin a foreclosure sale and set aside the assignment of the deed of trust. Additionally, the borrower sought damages for several statutory violations, including alleged violations of the Tennessee Consumer Protection Act (“TCPA”). Though the trial court granted summary judgment in favor of the defendants on most of the claims, there is no final judgment with regard to the borrower’s TCPA claim. Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction and remand the case to the trial court for further proceedings.

Shelby County Court of Appeals 04/29/15
Connie L. Watson v. Ruby Anne Pike
E2014-02057-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Jerri S. Bryant
This is an appeal from an order granting a new trial in a Will contest proceeding initiated by the appellant, Connie Louise Watson (“Watson”), seeking to invalidate the Last Will and Testament executed by her father, Noah Richard Earls, Sr. (“Decedent”), in which the appellee, Ruby Anne Pike (“Pike”), was appointed the Decedent’s Personal Representative and Executrix of his estate. Because the order on appeal contemplates further proceedings in the Trial Court, it is not a final order and we have no jurisdiction to consider this appeal.
 
Bradley County Court of Appeals 04/29/15
Heather Walker Sellers v. Billy Joe Walker
E2014-00717-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jerri S. Bryant

This action involves the modification of a child support award. The trial court determined the self-employed obligor's income to be consistent with amounts deposited in his personal bank account, rather than the income reported on his federal tax returns, and calculated his child support obligation accordingly. The obligor has appealed the trial court's determination regarding his income and resultant child support obligation. We determine that the trial court properly based the obligor's income on the combined amount of his annual deposits. We also determine that the trial court properly set the obligee's income based on her testimony. We reverse the trial court's calculation regarding the amount of child support to be paid, however, due to a mathematical error in the trial court's income calculation and its failure to consider the obligor's self-employment taxes. We remand the case for a recalculation of child support utilizing the proper monthly income for the obligor and taking into consideration the amount of self-employment tax paid by him.

Bradley County Court of Appeals 04/29/15
Kerrie Janel Wade v. Vernon Franklin Wade, Jr., concurring in part, dissenting in part
W2014-01098-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Paul G. Summers

BRANDON O. GIBSON, J., concurring in part, and dissenting in part.

Benton County Court of Appeals 04/28/15
Kerrie Janel Wade v. Vernon Franklin Wade, Jr.
W2014-01098-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Paul G. Summers

This is a divorce action. The trial court designated Father primary residential parent of the parties’ minor children and denied Mother’s request for alimony. We affirm designation of Father as primary residential parent, reverse the trial court’s denial of Mother’s request for alimony, and remand this matter to the trial court to fashion an award of transitional alimony consistent with this Opinion.

Benton County Court of Appeals 04/28/15
Christopher Maurice Kibbe v. Mary Carolyn Kibbe
E2014-00970-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jean A. Stanley

In this divorce action, the husband seeks reversal of the allocation of marital debt, the parenting plan, and the grant of alimony in futuro. The wife requests alimony in solido. We affirm the trial court's decision on all issues.

Washington County Court of Appeals 04/28/15
David H. McCord v. HCA Health Services of Tennessee, Inc.
M2014-00142-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Carol Soloman

A hospital instituted a review of an orthopaedic surgeon’s removal of spinal hardware from patients within one year of implantation; the review resulted in a peer review proceeding under the hospital’s bylaws and the eventual revocation of the doctor’s surgical privileges. The doctor filed suit for breach of contract, defamation, common law and statutory disparagement, and intentional interference with business relationships, arising out of the revocation of his surgical privileges. Upon the hospital’s motion to dismiss all claims for failure to state a claim for relief, the court dismissed the breach of contract claims. The hospital subsequently moved to dismiss the remaining claims for lack of subject matter jurisdiction or, in the alternative for summary judgment; the court granted the motion to dismiss and denied summary judgment. Doctor appeals the dismissal of his claims; hospital appeals the denial of its motion for summary judgment. We affirm the dismissal of the breach of contract claims and reverse the dismissal of the tort claims for lack of subject matter jurisdiction; we hold that the hospital is entitled to summary judgment on the remaining claims and dismiss the case.

Davidson County Court of Appeals 04/27/15
In re Roger T., et al.
W2014-02184-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Ricky L. Wood

In this appeal, R.C.B. (“Mother”) contends that the trial court erred in terminating her parental rights. Because the grounds for termination are met by clear and convincing evidence, and there is also clear and convincing evidence that termination is in the best interests of the minor children at issue, we affirm

Decatur County Court of Appeals 04/27/15
Jennifer Walden v. Central Parking System of Tennessee, Inc. et al.
E2014-00939-COA-R3-CV
Authoring Judge: D. Michael Swiney
Trial Court Judge: Judge Dale C. Workman

Jennifer Walden (Plaintiff) sued Central Parking System of Tennessee, Inc. (Central Parking) and Fort Sanders Regional Medical Center (Fort Sanders) for negligence after she allegedly suffered injuries as a result of a fall in a parking garage located in Knoxville, Tennessee. Defendants filed a motion for summary judgment. The Circuit Court for Knox County (the Trial Court) granted defendants summary judgment after finding and holding, inter alia, Athat no alleged fault on the part of the defendants was the cause of plaintiff's accident and injuries, that the same occurred due to her own failure to observe the open and obvious condition of the premises that was there to be seen, and that reasonable minds could not differ on this issue. We find and hold that there is a genuine disputed issue of material fact regarding whether Plaintiff's fault was greater than defendants. We, therefore, reverse the grant of summary judgment and remand this case for further proceedings.

Knox County Court of Appeals 04/27/15
Dorothy Lewis v. Sam Lewis et al.
E2014-00105-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge J.Michael Sharp

Dorothy Lewis and Roscoe Lewis, although not legally married, held themselves out as husband and wife for over 41 years. At an earlier time, Roscoe Lewis had been married. He had three sons by that marriage, one of whom is the defendant Sam Lewis. In 2010, after Roscoe Lewis' health declined, Sam Lewis took care of his father and Dorothy. On April 7, 2011, Sam Lewis took his father to several banks. While there, Roscoe Lewis authorized the banks to add the names of Sam Lewis and Dorothy to multiple accounts that had previously been only in Roscoe Lewis' name.1 On April 26, 2011, Dorothy and Roscoe Lewis each executed an individual power of attorney granting Sam Lewis authority and control over their financial and medical decisions. On that same day, Dorothy and Roscoe Lewis executed a warranty deed conveying a remainder interest in their home and farm to Sam Lewis and his wife Lora Lewis for $40,000, less than one-third of the fair market value as found by the trial court. On March 9, 2012, two days before Roscoe Lewis died, Sam Lewis withdrew funds totaling over $600,000 from the accounts held jointly in the names of Sam, Roscoe, and Dorothy Lewis. He placed the withdrawn funds in accounts held in the names of Sam Lewis and his wife, Lora Lewis. Dorothy Lewis brought this action alleging, among other things, that the real estate and bank account transfers should be rescinded because of Sam Lewis' undue influence on his father and Dorothy. The trial court found and held (1) that Sam Lewis exercised undue influence over them and (2) that he committed conversion and fraud. The court's judgment against Sam Lewis included an award of attorney's fees to Dorothy Lewis. The same fees were also awarded against a constructive trust established by the trial court. On appeal, we hold that the trial court's award of attorney's fees against the constructive trust is not supported by the evidence or by any legal or equitable principle.

Polk County Court of Appeals 04/27/15
James Michael Adler et al. v. City of Johnson City et al.
E2013-01309-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Walter C. Kurtz

James Michael Adler and Kim Kidner Adler filed this action against Johnson City and Purofirst of Tri-Cities, LLC, alleging damage from sewage that backed up and entered their basement. Later, they filed another complaint alleging that their attorneys in the sewage case were guilty of malpractice. In the sewage case, the trial court dismissed the defendant Purofirst with prejudice as a sanction for the Adlers' repeated failure to comply with the court's discovery orders. The Adlers did not attempt to amend their malpractice complaint to include a claim based on Purofirst's dismissal until almost six years after the dismissal of Purofirst. Their motion to amend was filed on July 2, 2012, in violation of the trial court's scheduling order, which provided that “[n]o amendments shall be allowed after May 15, 2012.” The trial court denied the Adlers' motion to amend. The trial court also refused to allow the Adlers to bring Purofirst back into the sewage litigation. It did so despite the fact that another defendant had recently alleged the comparative fault of Purofirst. This latter action of the trial court was taken in an order entered pursuant to Tenn. R. Civ. P. 54.02. We hold that the Adlers did not timely appeal this order. We further hold that the trial court did not abuse its discretion in denying the Adlers' motion to amend their malpractice action. The trial court's judgment is affirmed.

Washington County Court of Appeals 04/27/15
In re J.R.C.
E2014-00830-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Joseph M. Ayers

In this parental termination case, the Department of Children’s Services (DCS) took emergency custody of J.R.C. (the Child) following the arrest of his mother, B.C. (Mother) on charges of (1) promoting the manufacture of methamphetamine and (2) child neglect. The Child was adjudicated dependent, neglected, and severely abused. After a trial, the court terminated Mother’s parental rights after finding, by clear and convincing evidence, that (1) grounds for termination were established, and (2) termination is in the best interest of the Child. Mother appeals and challenges each of these determinations. We affirm.

Campbell County Court of Appeals 04/27/15
Bashar F. Kaddoura v. Chattanooga-Hamilton Hospital Authority d/b/a Erlanger Medical Center
E2013-02573-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jacqueline S. Bolton

The plaintiff appeals the trial court's dismissal of his action against the defendant hospital. The plaintiff averred that he had entered into a contract with the hospital to pay $6,720.00 for a bariatric surgical procedure. Due to complications following surgery, the plaintiff required a second surgery, incurring additional charges. The plaintiff brought this action, alleging negligence, breach of contract, money had and received, and unjust enrichment. The hospital moved to dismiss the action pursuant to Tennessee Rule of Civil Procedure 12.02(6). Following consideration of the pleadings and argument of counsel, the trial court dismissed the action with prejudice, finding that the complaint sounded in medical malpractice and that the plaintiff had failed to comply with the requirements of Tennessee Code Annotated §§ 29-26-121 and -122, as well as the statute of limitations provided by the Governmental Tort Liability Act. See Tenn. Code Ann. 29-20-305(b). The plaintiff concomitantly filed a motion to alter or amend the judgment and a motion seeking permission to amend the complaint. Following a hearing, the trial court denied the plaintiff's motion to alter or amend the judgment but granted the plaintiff's motion to amend the complaint. The plaintiff appeals the trial court's denial of his motion to alter or amend the judgment and the court's dismissal of his action. On appeal, the hospital raises the issue of whether the trial court erred by simultaneously upholding its dismissal of the action while granting the plaintiff's motion to amend the complaint.

Hamilton County Court of Appeals 04/27/15
Sweet Water Sustainability Institute et al v. Urban Centruy Institute et al.
E2014-00823-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Jerri S. Bryant
This is an appeal from an order dismissing only the appellant, Sweet Water Sustainability
Institute, from the proceedings below. Because the order appealed from does not resolve any
of the remaining claims in the case, we lack jurisdiction to consider this appeal.
 
Monroe County Court of Appeals 04/27/15
Victor D. McMiller, Sr. v. State of Tennessee
E2014-01006-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Commissioner William O. Shults

This appeal arises from inmate Victor D. McMiller, Sr.'s (“Claimant”) lawsuit against the State of Tennessee (“the State”) for negligence. According to Claimant, he was injured when he fell off a bunk bed, and, given his medical status, the State never should have required him to use a top bunk as it did. The Tennessee Claims Commission found that the State was predominantly at fault in the incident but that Claimant failed to prove he actually was injured by the fall, thus defeating the negligence claim. Claimant appeals. We affirm the judgment of the Claims Commission.

Davidson County Court of Appeals 04/27/15
Mary Duffer v. David J. Waynick, et al
M2014-01823-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Clara W. Byrd

This is an appeal from a summary judgment order dismissing the plaintiff's complaint. Because the order does not dispose of the defendants' claim for damages under Tenn. Code Ann. § 47-18-109(e)(2), we dismiss the appeal for lack of a final judgment.   

Wilson County Court of Appeals 04/24/15
Christopher Douglas v. Caruthers & Associates, Inc.
W2013-02676-COA-R3-CV
Authoring Judge: Special Judge Robert L. Childers
Trial Court Judge: Chancellor Arnold B.Goldin

This case involves an employment contract. After the employee’s employment was allegedly constructively terminated, he sued the employer for damages. The parties proceeded to trial, and the trial court ruled that the employer breached its employment contract with the employee and that the employee was entitled to an award of damages. The trial court then ordered that all issues of damages would be referred to a Special Master. After trial, the Special Master issued a report calculating employee’s damages, to which the employee objected. Upon sustaining several of the employee’s objections, the trial court again referred the matter to the Special Master. The trial court subsequently concurred in the revised findings of the Special Master, and the employer appealed, raising several issues. We vacate the ruling of the trial court and remand for further proceedings.

Shelby County Court of Appeals 04/24/15
In re Amadi A., et al.
W2014-01281-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Christy R. Little

This case involves a dispute over legal maternity of twin children born as the result of a surrogacy agreement. The intended parents of the children filed a joint petition, along with the surrogate mother and her husband, asking the juvenile court to declare the intended parents as the legal parents of the children and to require the Tennessee Department of Health to list them as the parents on the children’s birth certificates. The trial court initially granted the requested relief, but upon consideration of a motion to alter or amend filed by the Department of Health, the trial court ruled that the surrogate mother was the legal mother of the children and the party to be listed on the birth certificates. The intended parents, the surrogate, and her husband appeal. We affirm in part, vacate in part, and remand for further proceedings.

Madison County Court of Appeals 04/24/15
Rita McCartt Kordon et al v. Beulah Newport et al.
E2013-01980-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Andrew Tillman
Rita McCartt Kordon and Rose McCartt Young appeal the decision of the Chancery Court for Scott County (“the Trial Court”) dismissing their claims for failure to prosecute pursuant to Tenn. R. Civ. P. 41.02(1). We find no abuse of discretion in the Trial Court’s dismissal of Ms. Kordon’s and Ms. Young’s claims, and we affirm.
 
Scott County Court of Appeals 04/24/15
James G. Clayton et al. v. Davidson Contractors, LLC et al.
E2013-02296-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Jeffrey M. Atherton

In connection with the purchase of a newly constructed home, buyers signed an application for a home warranty, providing for arbitration of warranty disputes. After the buyers experienced several problems with their home, they sued the builders for breach of the implied warranty of habitability and negligent construction, among other things. Over five years after answering the buyers' complaint, the builders moved to stay the litigation and compel arbitration based on the home warranty's arbitration provision. The trial court denied the motion because the arbitration provision did not comply with the Tennessee Uniform Arbitration Act. The trial court also found that the builders' delay in seeking to compel arbitration constituted a waiver of their right to arbitrate. The builders appeal. Because we conclude that the Federal Arbitration Act governs the arbitration provision and consideration of the waiver defense was premature, we vacate and remand.

Hamilton County Court of Appeals 04/24/15
In re Jaiden W., et al
M2014-00953-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Timothy R. Brock

This is the third appeal of this case, involving the issue of child support and arrears. In the second appeal, this Court remanded the case to the trial court for a determination of Appellant Father and Appellee Mother’s respective incomes for the period of August 22, 2008 through September 28, 2009. Based upon Mother’s testimony at the hearing on remand, the trial court set Mother’s income for the relevant period at $300 per month. Father appeals, arguing that, based upon the trial court’s previous finding that Mother was voluntarily unemployed, the trial court should have imputed income to Mother at the statutory rate. Because the law of the case is that the trial court should determine the parties’ actual circumstances, we conclude that the court correctly set Mother’s income as the amount she actually earned. Affirmed and remanded.

Coffee County Court of Appeals 04/23/15
James C. Loden, M.D., P.C. d/b/a Loden Vision Centers, and James C. Loden, M. D., Individually v. Gerald Michael Schmidt
M2014-01284-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Thomas W. Brothers

Doctor filed this lawsuit against a former patient, alleging malicious prosecution, tortious interference, defamation, and intentional infliction of emotional distress. After the patient refused to respond to discovery, the trial court eventually entered an order striking the patient‘s answer and entering a default judgment against the patient. The trial court later awarded the doctor nominal damages and a permanent injunction. Affirmed.

Davidson County Court of Appeals 04/23/15