Court of Appeals Opinions

Format: 06/21/2018
Format: 06/21/2018
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
Barbara Jarnigan Et Al. v. Claude Moyers
E2017-02398-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Douglas T. Jenkins

This case involves allegations of fraud and undue influence with respect to the estate of Brenda Vargo (the deceased). Following the deceased’s death, four surviving family members discovered that they were no longer designated as “payable-on-death” beneficiaries on several of the deceased’s bank accounts. These family members filed suit against Claude Moyers (Mr. Moyers), alleging that Mr. Moyers’s wife, Wanda Moyers (Mrs. Moyers), persuaded the deceased, “through fraud or undue influence,” to close some of her bank accounts and to name Mr. Moyers as the sole payable-on-death beneficiary on the remaining accounts. Following a bench trial, the court determined that Mrs. Moyers had a confidential relationship with the deceased; hence, creating a rebuttable presumption of undue influence. The trial court imputed the undue influence of Mrs. Moyers to Mr. Moyers. Ultimately, the trial court determined that Mr. Moyers failed to rebut the presumption of undue influence by clear and convincing evidence. Consequently, the court divested Mr. Moyers of his interest in the disputed funds. Mr. Moyers appeals. We reverse and remand for further proceedings.

Hamblen County Court of Appeals 03/02/18
James William Sherrell, Jr. v. Lisa Daniela Schnur
E2017-00744-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge W. Neil Thomas, III

The Trial Court in this custody proceeding attempted to certify as a final judgment, pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure, the order entered on March 31, 2017, which resolved all issues in the proceedings below except those related to the payment of child support for the benefit of the parties’ minor child. Because the order fails to expressly determine in accordance with the rule that “there is no just reason for delay,” the order is not appealable as a certified final judgment pursuant to Rule 54.02. See Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983). We therefore lack jurisdiction to consider this appeal and it is dismissed without prejudice to the filing of a new appeal once a final judgment or appropriately certified final judgment has been entered.

Hamilton County Court of Appeals 03/01/18
Metropolitan Government of Nashville & Davidson County, TN v. Jeremy Brittenum
M2016-02586-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This is an animal cruelty case. The circuit court entered an order finding Appellant guilty of numerous violations of the city’s animal cruelty, animal hoarding and vaccinations ordinances. Because the trial court did not make sufficient findings of fact as required under Tennessee Rule of Civil Procedure 52.01, we vacate the trial court’s judgment.

Davidson County Court of Appeals 03/01/18
Brent Dewayne Carr v. Kellie Renea Carr
M2017-00556-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Daryl A. Colson

This is an appeal in a divorce proceeding wherein the Mother of the parties’ child appeals the trial court’s designation of Father as primary residential parent and designation of the residential parenting schedule, contending that the trial court failed to properly consider Father’s history of domestic violence and abuse against her. Upon our review we have determined that the findings of fact and conclusions of law entered by the trial court did not include a discussion of the impact of Tennessee Code Annotated section 36-6-406 on the finding of domestic violence; accordingly, we vacate the decision and remand the case for the court to make appropriate findings in that regard.

Overton County Court of Appeals 03/01/18
In Re Estate of Sylvia Marene Tolbert Et Al. v. State ot Tennessee
M2017-00862-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Commissioner Robert N. Hibbett

Claimants asserted monetary claims against the State of Tennessee for personal injuries and property damage resulting from an automobile accident with a state employee. The Tennessee Claims Commission found the State liable and awarded compensatory damages. On appeal, the State argues that the Claims Commission erred in awarding damages for medical expenses based on the claimants’ unadjusted medical bills. Upon review, we conclude that the collateral source rule precludes introduction of evidence of insurance adjustments to claimants’ medical bills. Accordingly, we affirm.

Court of Appeals 02/28/18
Gene Parish v. Smith Utility District, Et Al.
M2016-00815-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge John D. Wootten, Jr.

Plaintiff brought an action against a local utility district for damages allegedly arising from the construction and maintenance of a water line on plaintiff’s property. Plaintiff also sought injunctive relief. The utility company moved to dismiss, asserting that it was immune from suit or, alternatively, that plaintiff’s action was barred by the applicable statute of limitations. The trial court granted the utility company’s motion. The court concluded that plaintiff’s claim for damages were barred by the Governmental Tort Liability Act. The court further concluded that plaintiff’s request for injunctive relief was barred by the GTLA’s one-year statute of limitations. And the court determined that the action would be barred by the one-year statute of limitation applicable to governmental takings. We conclude that the gravamen of plaintiff’s claim was for inverse condemnation, and the action was time barred.  

Smith County Court of Appeals 02/28/18
In Re Allie A. Et Al.
M2018-00326-COA-T10B-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Tim Barnes

This is an accelerated interlocutory appeal as of right from the denial of a motion for recusal. The petition for recusal appeal was filed twenty-four days after entry of the order denying the motion. Because the appeal was untimely, we dismiss. 

Montgomery County Court of Appeals 02/28/18
Angela Stevens, et al. v. State of Tennessee
M2017-01114-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Commissioner Robert N. Hibbett

State of Tennessee appeals the Claims Commission’s award of damages to a mother and daughter who were injured in an automobile accident with a state employee driving a state-owned vehicle. Discerning no error in the award of damages, we affirm the decision.

Court of Appeals 02/28/18
Lorna Mae Gibson v. Charles William Bikas
E2017-00883-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Pamela A. Fleenor

This case involves an order of protection sought by the petitioner against the respondent, who is the petitioner’s brother-in-law, on behalf of the petitioner and her two minor daughters. The petitioner previously had obtained an order of protection that had expired in May 2016. On March 24, 2017, the petitioner filed a petition seeking a one-year, no-contact order of protection, alleging that, inter alia, since entry of the prior order, the respondent had repeatedly attempted to influence her by following through on threats to obtain custody of the petitioner’s two minor daughters. The trial court initially granted an ex parte order of protection as to the petitioner but denied the petition as to the children, questioning whether standing existed because the petitioner did not at that time have physical or legal custody of her daughters. Following a subsequent bench trial, the trial court found that the petitioner had standing to petition for an order of protection on behalf of her children pursuant to Tennessee Code Annotated § 36-3-602(b). Also finding that the respondent posed a danger to the petitioner and her children, the trial court extended the ex parte order into a one-year, no-contact order of protection against the respondent on behalf of the petitioner and modified the order of protection to include the petitioner’s children. The court also awarded to the petitioner reasonable attorney’s fees. The respondent appeals. Discerning no reversible error, we affirm.

Hamilton County Court of Appeals 02/28/18
Dr. Norman C. Loggins v. Continental Apartments, et al.
W2017-00955-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jerry Stokes

This complaint is a forcible entry and detainer action. Appellant appeals the trial court’s denial of his motion for default judgment. The order appealed is not a final judgment so as to confer subject matter jurisdiction on this Court pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. Accordingly, we dismiss the appeal. Because the trial court entered its order dismissing Appellant’s complaint while the appeal was pending in this Court, we vacate the order of dismissal.

Shelby County Court of Appeals 02/27/18
SecurAmerica Business Credit v. Southland Transportation Co., LLC, et al.
W2016-02505-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Donna M. Fields

This is the fourth appeal in a case primarily concerned with whether two individual defendants are liable on loan guaranties. Following the third appeal, we remanded the case to the trial court to determine: (1) whether one of the defendants is liable under a Guaranty of Validity of Collateral (“GVC”); (2) whether prejudgment interest should be awarded to the lender on personal guaranties both defendants signed; and (3) whether the lender is entitled to recover additional attorney’s fees incurred in enforcing the guaranties since the previous appeal. On remand following the third appeal, the trial court found that the defendant was not liable on the GVC. The trial court also found that the lender was not entitled to prejudgment interest because the lender committed fraud, and it declined to award the lender any additional attorney’s fees. Although the defendants prevailed on all three issues, they appeal, seeking reconsideration of this court’s determination in an earlier appeal that the defendants failed to prove their claim of fraud, which would relieve them of any liability. The lender counters, insisting that this court’s previous decision, wherein we affirmed the trial court’s determination that the defendants failed to prove fraud, is the law of the case. The lender also raises its own issues for our consideration, including whether the trial court’s findings of fact and conclusions of law concerning fraud, as stated in the final order drafted by counsel for the defendants, reflects the trial court’s independent judgment. A careful review of the trial court’s oral ruling from the bench and the written order, as well as previous findings of fact made by the trial court, leads us to conclude that some of the findings of fact stated in the final order do not reflect the trial court’s independent judgment. Therefore, the presumption under Tenn. R. App. P. 13(d) that a trial court’s specific findings of fact are supported by the evidence shall be limited to those findings that appear to reflect the independent judgment of the trial court. We have also determined that the law of the case doctrine precludes us from reconsidering the defendants’ claim of fraud. We affirm the trial court’s determination that one of the defendants is not liable on the GVC, albeit, on different grounds. We reverse the trial court’s decision not to award the lender prejudgment interest and additional attorney’s fees, finding that the lender has a statutory right to prejudgment interest and a contractual right to recover reasonable and necessary attorney’s fees that the lender incurred to enforce the guaranties. Therefore, we remand for further proceedings consistent with this opinion.

Shelby County Court of Appeals 02/27/18
In Re Victoria H.
M2017-01162-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Ronnie J. T. Blevins, II

This is a termination of parental rights case. Appellant/Father appeals the trial court’s termination of his parental rights on the grounds of: (1) failure to establish/exercise paternity; (2) abandonment by willful failure to support; and (3) abandonment by an incarcerated parent for wanton disregard. Appellant also appeals the trial court’s finding that termination of his parental rights is in the child’s best interest. Because Appellee Tennessee Department of Children’s Services did not meet its burden to show that Father has the ability to pay support, we reverse the trial court’s termination of Father’s parental rights on the ground of abandonment by willful failure to support. The trial court’s order is otherwise affirmed.

Marion County Court of Appeals 02/27/18
Regina Montanna Marie Mullins v. Amy Paige Hernandez
E2017-00356-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Alex E. Pearson

Regina Mullins (petitioner) sought an order of protection against Amy Hernandez (respondent), the grandmother of one of petitioner’s children. The parties were living together in an apartment when respondent allegedly threatened petitioner and her mother with a handgun. After a hearing, the trial court found that respondent did threaten petitioner, and that “there was a gun involved,” but held that these facts did not constitute “legally sufficient proof for an order of protection to be issued.” We hold that the facts found by the trial court provide a legal basis for the issuance of an order of protection under the statutes governing such orders, Tenn. Code Ann. § 36-3-601 et seq. (2017). Consequently, we reverse the judgment of the trial court and remand for the issuance of a protective order.

Hawkins County Court of Appeals 02/27/18
Govindaswamy Nagarajan v. Lonnie Sharpe, Et Al.
M2016-01152-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Carol L. McCoy

This is an appeal from the trial court’s dismissal of the pro se plaintiff’s discrimination action against Tennessee State University and certain administrators. The court determined that the plaintiff had requested relief beyond its authority to award and granted the motion to dismiss in favor of the defendants. The plaintiff appeals. We affirm.

Davidson County Court of Appeals 02/27/18
Mark Karsonovich v. Linda Lee Kempe
M2017-01052-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor James G. Martin, III

This case involves the grant of a Tenn. R. Civ. P. 12.02(6) motion to dismiss a complaint for declaratory judgment. Two years after the parties’ final divorce was entered, Mr. Karsonovich lost his job and filed a complaint for declaratory judgment to determine his alimony obligations. Mr. Karsonovich sought a declaration that the alimony provision was void and unenforceable because the provision was ambiguous and against public policy. Ms. Kempe filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss the complaint, arguing that the provision was unambiguous and not void against public policy. The trial court agreed with Ms. Kempe and granted the motion to dismiss. The court also awarded Ms. Kempe her attorney’s fees incurred from defending the suit. We reverse the trial court’s decision to dismiss the complaint because there was an actual controversy for the court to decide. However, the trial court also decided the controversy at issue when it determined that the provision was neither ambiguous nor void against public policy, with which we agree. Thus, we affirm the court’s decision on the merits of the complaint. We reverse the trial court’s decision to award Ms. Kempe her attorney’s fees and remand for the trial court to determine whether attorney’s fees are still appropriate based upon our reversal of the dismissal. 

Williamson County Court of Appeals 02/27/18
In Re: Samuel P.
W2016-01665-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Special Judge William A. Peeler

This appeal involves a long-running dispute between unmarried parents over parenting issues concerning their young son. After years of contentious and continuous litigation and eight days of trial, the trial court found the father in criminal contempt and modified the parties’ existing parenting arrangement to reduce the father’s parenting time somewhat and to grant the mother sole decision-making authority for major decisions. The trial court imputed income to the father for purposes of child support and awarded current and retroactive child support. The trial court also awarded the mother a portion of her attorney’s fees. The father appeals, challenging each of these rulings. We vacate the trial court’s imputation of income and child support awards and remand for additional findings regarding Father’s income, but we otherwise affirm the trial court on all other issues.

Shelby County Court of Appeals 02/23/18
Ronald Osborne, Et Al. v. The Metropolitan Government Of Nashville And Davidson County
M2017-01090-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

A patron at a convenience center owned and operated by a metropolitan government fell and injured himself at the center. The trial court found that the metropolitan government breached its duties and was at fault for the patron’s injuries, but that the patron was also at fault in failing to notice the drainage cut that caused his fall. The trial court apportioned eighty percent of the fault to the metropolitan government and twenty percent to the patron. The metropolitan government appeals, arguing that the patron was at least fifty percent at fault. We affirm the decision of the trial court.

Davidson County Court of Appeals 02/22/18
Edward Ronny Arnold v. Burns Phillips, Commissioner Tennessee Department of Labor And Workforce Development
M2017-01103-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Russell T. Perkins

A state employee who lost his job due to a reduction-in-force was placed on administrative leave with pay and received a severance package. The Department of Labor and Workforce Development denied his claim for unemployment benefits for the period in which he received administrative leave with pay. As the employee acknowledges, he subsequently received the maximum unemployment benefits allowable for the applicable one-year period. Therefore, the employee cannot receive benefits for the contested period, which is the relief sought in this case. This case cannot provide relief to the employee, and the appeal is moot.  

Davidson County Court of Appeals 02/22/18
Gameel Mesad v. Joseph Yousef
M2016-01931-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Carol L. McCoy

Plaintiff entered into a contract with Defendant for the purchase of a convenience market, whereby Plaintiff purchased the store’s inventory and assumed the lease and other contractual obligations of the business. Three years after the sale, Plaintiff filed suit, alleging fraud, unjust enrichment, breach of contract, and violations of the Tennessee Trade Mark act of 2000, all in connection with the sale and operation of the business. Following a trial, the trial court dismissed the suit. Plaintiff appeals; we affirm the judgment.

Davidson County Court of Appeals 02/22/18
April Elaster v. Gary Massey, Jr., et al.
E2017-00020-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Don R. Ash

In this legal malpractice case, defendant-attorneys filed a motion for summary judgment alleging that they complied with the applicable standard of care. In response to the summary judgment motion, Appellant failed to offer any expert proof that
defendant-attorneys breached the applicable standard of care. Accordingly, the trial court granted summary judgment on this basis. Discerning no error, we affirm.

Hamilton County Court of Appeals 02/22/18
David Jones v. Mortgage Menders, LLC, Et Al.
M2017-01452-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Thomas W. Brothers

This appeal concerns an effort to re-assert causes of action under the Savings Statute. In July 2006, David Jones (“Plaintiff”) filed an action in the Circuit Court for Davidson County (“the Trial Court”). On February 12, 2016, Plaintiff took a voluntary non-suit. On February 2, 2017, Plaintiff filed a purported complaint (“the February 2 Document”) attempting to re-assert his original claims, which featured his typewritten name rather than his handwritten signature. Victor Hazelwood and Advantage Title & Escrow, Inc. (“Defendants”) filed a motion for summary judgment, which the Trial Court granted. Plaintiff appealed. We hold that Plaintiff’s typewritten name qualified as his signature and that his filing, while quite deficient as a piece of legal writing, was not so deficient as to render it not a complaint in the first place. We reverse the judgment of the Trial Court.

Davidson County Court of Appeals 02/21/18