Court of Appeals Opinions

Format: 12/17/2017
Format: 12/17/2017
Marvin D. Kinsey v. Jacob P. Schwarz, et al
M2016-02028-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley, Jr.

A prison inmate filed a health care liability action against two physicians and a medical center without providing the defendants with pre-suit notice, as required by Tenn. Code Ann. § 29-26-121(a), and without attaching a certificate of good faith to the complaint, as required by Tenn. Code Ann. § 29-26-122. The defendants filed motions to dismiss, which the trial court granted. The inmate appealed, and we affirm the trial court’s judgment.

Davidson County Court of Appeals 08/18/17
Holly Rader, Et Al. v. Ruby Tuesday, Inc.
E2016-01677-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Kristi M. Davis

Holly Rader (“Plaintiff”) appeals the August 4, 2016 order of the Circuit Court for Knox County (“the Trial Court”) granting summary judgment to Ruby Tuesday, Inc. (“Ruby Tuesday”) in this slip and fall action after finding that Ruby Tuesday did not have superior, actual, or constructive knowledge of the condition that caused Plaintiff’s slip and fall. We find and hold that Ruby Tuesday did have superior, actual, or constructive knowledge of the condition that caused the slip and fall and owed a duty to Plaintiff. We, therefore, vacate the grant of summary judgment and remand this case for further proceedings.

Knox County Court of Appeals 08/18/17
Edward Keith Morelock v. Ruth Ellen Mick Morelock
E2016-00543-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John C. Rambo

In this divorce case, Edward Keith Morelock (Husband) appeals the trial court’s decisions regarding (1) co-parenting time with the parties’ child; (2) division of marital property, (3) valuation of one of the marital assets, and (4) refusal of the court to award him spousal support. Husband argues that the trial court should have designated him primary residential parent and granted him more residential time with the child. He also asserts that the trial court overvalued the business owned by the parties, and that the court should have equally divided the assets and liabilities of that business rather than awarding and assigning all of them to him. Finally, he argues that the trial court should have ordered Ruth Ellen Mick Morelock (Wife) to pay him alimony. Finding no abuse of discretion, we affirm the trial court’s judgment.

Washington County Court of Appeals 08/18/17
Mardoche Olivier v. City of Clarksville, et al.
M2016-02473-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ross H. Hicks

This action arises out of an alleged violation of the plaintiff’s civil rights by the City of Clarksville (“the City”) and a group of police officers employed by the City (“the Officers”) (collectively, “Defendants”). The plaintiff was arrested on June 1, 2015, for driving on a revoked or suspended license, see Tenn. Code Ann. § 55-50-504 (2012), and making a 911 telephone call in a nonemergency situation, see Tenn. Code Ann. § 7-86-316 (2015). The plaintiff filed a complaint on August 11, 2016, alleging that as a result of his arrest, the Officers caused him to suffer damages from false imprisonment, malicious prosecution, malicious harassment, outrageous conduct, intentional infliction of emotional distress, conversion, and inverse condemnation. The plaintiff also alleged violations of his civil rights pursuant to 42 U.S.C. § 1983. Defendants filed a motion to dismiss on October 5, 2016, asserting, inter alia, that the plaintiff’s claims were statutorily barred due to the immunity granted to Defendants by the Tennessee Governmental Tort Liability Act (“GTLA”). See Tenn. Code Ann. § 29-20-205 (2012). The trial court entered a final order regarding Defendants’ motion to dismiss on November 17, 2016, granting the motion and dismissing all claims. The plaintiff has appealed. Discerning no error, we affirm the trial court’s dismissal of the plaintiff’s claims.

Montgomery County Court of Appeals 08/17/17
Sonja Broyles Williams v. Stewart Ashley Williams
W2016-01602-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Larry McKenzie

This is an appeal from a divorce case dissolving a long-term marriage with two minor children. Following a four and one-half day trial, the court awarded Wife a divorce, designated Husband as the primary residential parent of the parties’ children, distributed the marital property, awarded Wife rehabilitative alimony, and denied Wife’s request for attorney’s fees. Wife appeals the designation of Husband as primary residential parent, the value and division of certain items within the marital estate, the court’s decision to award her rehabilitative alimony rather than alimony in futuro, and the denial of her request for attorney’s fees. We vacate the trial court’s order regarding retroactive child support and remand the issue for further proceedings consistent with this opinion. We affirm the remainder of the judgment of the trial court. We deny Wife’s request for attorney’s fees incurred on appeal.

Hardin County Court of Appeals 08/17/17
In Re David P. Et Al.
E2017-00245-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Robert M. Estep

This is an appeal from an order terminating the parental rights of the appellant to his minor children. The only Notice of Appeal filed by the appellant within the time provided in Rule 4(a) of the Tennessee Rules of Appellate Procedure for the filing of a notice of appeal, did not comply with Tennessee Code Annotated section 36-1-124(d), which states: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” Because this Notice of Appeal was insufficient to invoke the jurisdiction of this Court, this appeal is dismissed.

Claiborne County Court of Appeals 08/17/17
Latisia Upshaw v. Sunrise Community Of Tennessee, Inc.
E2016-01005-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Deborah C. Stevens

This appeal concerns a claim of retaliatory discharge. After a trial before a jury, judgment was entered against the defendant employer. The plaintiff was awarded $225,000 in compensatory damages and $200,000 in punitive damages. The employer appeals. We affirm.

Knox County Court of Appeals 08/16/17
In Re Estate of Charles Edward Fant, III
W2016-02498-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Karen D. Webster

This is a will contest. The affidavit attached to the purported will was signed, in the presence of the testator, by two witnesses. At the hearing on the will contest, both witnesses and the notary public testified as to the validity of signatures on the purported will. The trial court held that the will and accompanying affidavit were not in strict compliance with the statute and denied admission of the will to probate. On appeal, the proponent of the purported will argues that the will satisfied the recent statutory requirements of Tennessee Code Annotated Section 32-1-104(b) such that the signatures of both witnesses were integrated into the will. Concluding that the witnesses’ signatures were integrated into the will pursuant to Tennessee Code Annotated Section 32-1-104(b), and that the other statutory requirements were met, we reverse the trial court’s ruling.

Shelby County Court of Appeals 08/15/17
Sue Ann Templeton v. Jackson-Madison County General Hospital District
W2016-02419-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Roy B. Morgan, Jr.

This is an appeal from the grant of summary judgment in a Tennessee Governmental Tort Liability Act (“GTLA”) premises liability case. Appellant was exiting Jackson-Madison County General Hospital/Appellee when she was hit by an automatic door, fell, and sustained a broken femur. Appellee moved for summary judgment on the ground that it was immune from suit under the GTLA. Appellant argued that Appellee failed to make a reasonable inspection of the automatic door, so as to discover the alleged dangerous or defective condition. The trial court granted summary judgment in favor of Appellee, finding that the condition was not dangerous or defective, the condition was latent, and Appellee had no actual or constructive notice of the condition. Discerning no error, we affirm.

Madison County Court of Appeals 08/15/17
In Re Nevaeh B. - Dissent
W2016-01769-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Van McMahan

The majority opinion dismisses this appeal due to the failure of the appellant, Makayla B., the child’s mother, to sign the notice of appeal as required by Tenn. Code Ann. § 36-1-124(d). The majority has concluded, “[i]n the absence of full compliance with the statutory requirements, this Court does not have subject-matter jurisdiction over the appeal.” I recognize that the majority opinion is based on a prior Court of Appeals decision, but I respectfully disagree with the decision and the notion that Tenn. Code Ann. § 36-1-124(d) is jurisdictional or that the statute compels this court to dismiss appeals in parental termination cases when the parent fails to sign the notice of appeal without affording the parent the opportunity to cure the defect.

Chester County Court of Appeals 08/14/17
In Re Nevaeh B.
W2016-01769-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Van McMahan

This is a termination of parental rights case. The trial court terminated Appellant’s parental rights to the minor child by order of July 15, 2016. Appellant filed a timely notice of appeal. However, Appellant failed to comply with Tennessee Code Annotated § 36-1-124(d) (Supp. 2016) in that she failed to sign the notice of appeal. Because this Court lacks subject-matter jurisdiction, we dismiss the appeal.

Chester County Court of Appeals 08/14/17
In Re Audrina E. et al.
E2017-01178-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge J. Klyne Lauderback, Jr.

This is an appeal from an order terminating the parental rights of the appellant to his minor children. The only notice of appeal filed by the appellant within the time provided in Rule 4(a) of the Tennessee Rules of Appellate Procedure for the filing of a notice of appeal did not comply with Tennessee Code Annotated § 36-1-124(d), which states: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” Because this notice of appeal was insufficient to invoke the jurisdiction of this Court, this appeal is dismissed.

Sullivan County Court of Appeals 08/14/17
Homelift Of Nashville, Inc v. Porta, Inc.
M2016-00894-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge John D. Wootten, Jr.

This appeal involves a claim for attorney’s fees and other litigation expenses incurred by a third-party defendant in a wrongful death action. The third-party plaintiff filed the third-party complaint against the third-party defendant seeking indemnity. A jury found both the third-party plaintiff and third-party defendant at fault for the death in the underlying action, but because the third-party plaintiff was allocated more than 50% of the fault, the jury determined that the third-party plaintiff was not entitled to indemnification. The third-party defendant filed a post-trial motion for attorney’s fees and expenses incurred in defending the third-party action. The trial court denied the motion, concluding that it lacked subject matter jurisdiction. Although we conclude that it did not lack subject matter jurisdiction, we affirm the denial of the third-party defendant’s motion.

Wilson County Court of Appeals 08/11/17
In Re Jayden R., et al. - dissenting
M2016-02336-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge William M. Locke

The majority opinion dismisses this case due to the failure of Mother and Father to sign the notice of appeal pursuant to Tenn. Code Ann. § 36-1-124(d).  I recognize that the majority opinion is based on a prior Court of Appeals decision, but I respectfully disagree with the majority’s conclusion.

Warren County Court of Appeals 08/11/17
In Re Jayden R., et al.
M2016-02336-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge William M. Locke

This appeal concerns termination of parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Warren County (“the Juvenile Court”) seeking to terminate the parental rights of Dara C. (“Mother”) to her minor children Jayden R., Kara C., and Jaxson C. (collectively, “the Children”). DCS also sought to terminate the parental rights of Jonathan C. (“Father”) to Kara C. and Jaxson C. After a trial, the Juvenile Court entered an order terminating Mother’s parental rights to the Children and Father’s parental rights to Kara and Jaxson. Mother and Father appealed. DCS argues that Mother’s and Father’s failure to sign their notices of appeal renders this appeal jurisdictionally deficient. We agree that Mother’s and Father’s failure to sign their notices of appeal as required by Tenn. Code Ann. § 36-1-124(d) renders this appeal jurisdictionally deficient, and it is dismissed on that basis. Even if the appeal were not jurisdictionally deficient, we would, given this record, affirm the Juvenile Court’s judgment terminating Mother’s and Father’s parental rights. We dismiss this appeal for lack of jurisdiction.

Warren County Court of Appeals 08/11/17
In Re: Michael B., Jr., Et Al
E2017-00486-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Sharon M. Green

The trial court found clear and convincing evidence to terminate Mother’s parental rights to her two children on the grounds of abandonment by failure to establish a suitable home, substantial noncompliance with permanency plans, and persistence of conditions. The trial court also found clear and convincing evidence that termination was in the children’s best interest. Discerning no error, we affirm.

Washington County Court of Appeals 08/11/17
Alfonzia Biles, et al. v. Tiffany Roby
W2016-02139-COA-R3-CV
Authoring Judge: Judge Brandon O.Gibson
Trial Court Judge: Judge Gina C. Higgins

This case involves residential property that was purchased after a foreclosure. The purchaser filed this detainer action against the original homeowners, who refused to vacate the property. The general sessions court ruled in favor of the purchaser, and after a de novo trial in circuit court, the circuit court ruled in favor of the purchaser as well. We do the same. The decision of the circuit court is hereby affirmed and remanded for further proceedings.

Shelby County Court of Appeals 08/11/17
State Farm Mutual Automobile Insurance Company v. James T. Jones, et al
M2016-02423-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Deanna B. Johnson

The trial court dismissed plaintiff’s claim for failure to prosecute and for failing to respond to affirmative defenses. The trial court also denied plaintiff’s motion to alter or amend the judgment. Because disposition of litigation on the merits is favored over procedural dismissals, we reverse. 

Hickman County Court of Appeals 08/11/17
Dewayna M. Killen v. Phillips Wrecker Service And Garage
E2016-02306-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Lawrence Howard Puckett

This dispute stems from an agreement for the purchase and installation of a used automobile motor. The parties to the agreement both claim the other breached the agreement. Following a trial, the circuit court determined that the purchaser breached the agreement. Discerning no error, we affirm.

Monroe County Court of Appeals 08/11/17
In Re: Kendall H.
E2017-01034-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Thomas J. Wright

This is an appeal from an order terminating the parental rights of the appellant to her minor child, Kendall H. The only Notice of Appeal filed by the appellant was signed only by her attorney. The appellees have filed a motion to dismiss this appeal arguing that the Notice of Appeal was insufficient to invoke this Court’s jurisdiction because it did not comply with Tennessee Code Annotated section 36-1-124(d), which states: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” The absence of appellant’s signature on the notice of appeal deprives us of jurisdiction in this case. Accordingly, this case is dismissed.

Hamblen County Court of Appeals 08/11/17
Deborah J. Meadows v Ronald E. McCarter Et Al.
E2017-00525-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Telford E. Forgety

The Defendant, Ronald E. McCarter (“Defendant”), seeks to appeal from a ruling of the Trial Court which does not constitute a final judgment. Specifically, the ruling to which the Notice of Appeal is directed in this case did not resolve the amount of attorney’s fees awarded to the Plaintiff, Deborah J. Meadows (“Plaintiff”), nor did it fully resolve Plaintiff’s claims against Tiffany Sharp. As such, it is clear that there is not a final judgment from which an appeal as of right would lie. We therefore lack jurisdiction to consider this appeal

Sevier County Court of Appeals 08/11/17
Timothy Alan Portice v. Roshawnda Lynn Foster Portice
E2016-01682-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John D. McAfee

This case involves a post-divorce motion for contempt. In her motion, Appellant/Wife averred that Appellee/Husband was in violation of the final decree of divorce. The trial court did not find Appellee in contempt, but entered an order enforcing its final decree of divorce regarding sale of the marital residence, Appellant’s access to the marital residence, and division of Appellee’s 401-K. The trial court also declined to award Appellant half of Appellee’s 2015 tax return. Because the trial court’s order, on the motion for contempt, appears to deviate from its previous order regarding division of Appellee’s 401-K, we reverse this portion of the trial court’s order. The order is otherwise affirmed.

Campbell County Court of Appeals 08/10/17
Frederick Copeland v. Healthcare/Methodist Rehabilitation Hospital LP ET AL.
W2016-02499-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Rhynette N. Hurd

This is an appeal from the grant of summary judgment in favor of Appellee. Following Appellant’s knee surgery, Appellee provided Appellant transportation, by wheelchair van, from the rehabilitation hospital to a follow-up appointment with his surgeon. Prior to transport, Appellant signed an exculpatory agreement, releasing Appellee from all claims of ordinary negligence. Appellant was injured when he fell while trying to enter the van and filed suit against Appellee for negligence. The trial court granted summary judgment in favor of Appellee, finding that the exculpatory agreement was enforceable. Discerning no error, we affirm.

Shelby County Court of Appeals 08/10/17
Billy Butler, ET AL., v. Malvin Carvin Pitts, Jr., ET AL.
W2016-01674-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge George R. Ellis

This is the second appeal of this easement case.  Appellants, the servient land owners, appeal the trial court’s award of a monetary judgment in favor of Appellees, the owners of the dominant estate.  On remand, the parties agreed to have the trial court determine the precise location of the easement, but the trial court refused to hear the issue, and also refused to allow Appellants to make an offer of proof.  We vacate the damage award due to the trial court’s failure to make sufficient findings.  We also conclude that the trial court erred by refusing to determine the location of the easement.  Vacated and remanded.

Haywood County Court of Appeals 08/10/17
Betty Graham v. Stacy Lynn Archer, Et Al.
E2016-00743-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This is an invasion of privacy case filed by Betty Graham. It arises out of disclosures made by the defendants in an underlying health care liability action. In the underlying case, the defendants moved to dismiss Graham’s case on the ground that she (1) had failed to file a statutory-mandated pre-suit notice and (2) had failed to file with her complaint a certificate of good faith, all as required by the Health Care Liability Act (the Act). Graham claims that she could not comply with the Act because the defendants failed to provide her with the relevant medical records. To demonstrate that they had complied or attempted to comply with Graham’s requests for records, the defendants filed in the earlier case two affidavits detailing their response to her requests. After the dismissal of her health care liability action, Graham filed this case for invasion of privacy, alleging that the defendants had wrongfully disclosed her personal medical information by filing the affidavits in the underlying case. The trial court granted the defendants’ motions to dismiss. Graham appeals. We affirm

Hamilton County Court of Appeals 08/10/17