Court of Appeals Opinions

Format: 07/01/2015
Format: 07/01/2015
In Re E.G.H. et al.
E2014-01146-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Michael W. Moyers

S.J. (Mother) challenges the order terminating her parental rights to her minor children, E.G.H. and E.W.H. (collectively, the Children). The Children were removed from Mother’s custody as a result of (1) Mother’s drug use during pregnancy as well as (2) domestic violence in the home. In 2009, a year after the Children came into state custody, they were placed in the custody of an uncle, V.E.E. (Uncle), and his wife, J.G.E. (Aunt) (collectively, Petitioners). In 2012, Petitioners filed a petition seeking termination of the biological parents’ rights and the adoption of the Children. Following a trial, the court found, by clear and convincing evidence, that Mother abandoned the Children by willfully failing to visit them. By the same evidentiary standard, the court determined that termination is in the Children’s best interest. On this appeal, Mother challenges the sufficiency of the evidence proffered to establish a ground for termination and the trial court’s best interest decision. We affirm.

Knox County Court of Appeals 04/14/15
Johnny L. Smith, et al. v. Metropolitan Government of Nashville and Davidson County
M2014-01325-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Thomas W. Brothers

The plaintiffs sued the Metropolitan Government, claiming that prior citations that had  been issued to them and paid by them were issued without authority and handled by the general sessions court without jurisdiction.  The trial court granted summary judgment in favor of the government.  The plaintiffs appealed, and we affirm. 

Davidson County Court of Appeals 04/13/15
Fairy Berry v. City of Memphis
W2014-01236-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Karen R. Williams

This appeal arises from the trial court’s award of damages stemming from an automobile accident. In 2003, plaintiff was injured when her vehicle was struck by a Memphis Police Department officer’s car in an intersection. After a non-jury trial, the trial court awarded plaintiff damages for pain and suffering and loss of enjoyment of life. The City of Memphis appeals these damages, arguing (1) plaintiff’s expert non-treating physician was not qualified to opine as to emergency room treatment or costs; (2) plaintiff should not recover for her failure to mitigate her damages by exacerbating her injury; and (3) plaintiff’s testimony wherein she explains her ongoing pain did not warrant the amount of damages she was awarded. Discerning no error, we affirm.

Shelby County Court of Appeals 04/13/15
In Re Jarett M.
W2014-01995-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Tony A. Childress

This is a parental termination case. Father appeals the trial court’s termination of his parental rights with regard to the minor child at issue. The trial court terminated Father’s parental rights based on its finding, by clear and convincing evidence, that Father abandoned the child by willful failure to visit and willful failure to support the child. The trial court further found, by clear and convincing evidence, that termination was in the best interests of the child. We affirm.

Dyer County Court of Appeals 04/13/15
In Re Jordin M.
M2013-02275-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Donna Scott Davenport

In this juvenile court case, Father filed a petition to modify the parenting plan to make him the primary residential parent. At the beginning of the hearing, the parties stipulated that there had been a material change of circumstances. We have concluded that the evidence does not preponderate against the trial court’s determination that it was in the child’s best interest for Mother to be the primary residential parent.

Rutherford County Court of Appeals 04/09/15
Kenneth Marino v. Board of Administration City of Memphis Retirement System
W2015-00069-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Oscar C. Carr, III

The order appealed is not a final judgment. Consequently, we must dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 04/09/15
John Holmes Peacher-Ryan, et al. v. Heirs At Law of Ruth James Gaylor, et al.
W2013-02801-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kathleen N. Gomes

This is an appeal of the trial court’s adoption of a special master’s report. The trial court referred the case to the special master for determination of the proper heirs of a residuary trust. Because the procedure in the trial court failed to comply with the requirements of Tennessee Rule of Civil Procedure 53, we vacate and remand.

Shelby County Court of Appeals 04/09/15
In Re: Destin R.
M2013-02156-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge John T. Gwin

In this grandparent visitation case the mother of the child appeals the grant of the petition to establish grandparent visitation privileges. We vacate the judgment and remand the case for entry of an order in compliance with Tenn. Rule Civ. P. 52.01.

Wilson County Court of Appeals 04/08/15
In Re Tennessee Walking Horse Forfeiture Litigation
W2013-02804-COA-R3-CV
Authoring Judge: Special Judge Robert L. Childers
Trial Court Judge: Judge J. Weber McCraw

This case arises out of an appeal by the State of Tennessee, from an Order dismissing a Complaint for Judicial Forfeiture. The trial court granted Appellees’, the purported owners of two Tennessee Walking Horses, motion to dismiss for failure to comply with Tennessee Code Annotated Sections 39-14-210(f) and 39-11-707(c). We vacate and remand.

Fayette County Court of Appeals 04/08/15
Town of Collierville, et al. v. Town of Collierville Board of Zoning, et al.
W2013-02752-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Walter L. Evans

The Town of Collierville, Tennessee, passed an ordinance prohibiting the construction of new billboards. The Town, through its Development Department, asserted that two billboards erected prior to the passage of the ordinance were illegal and ordered that they be removed. The owner of the billboards appealed the removal order to the Board of Zoning Appeals, which did not affirm the order. The Town and the Development Department petitioned for writ of certiorari, seeking judicial review of the decision of the Board of Zoning Appeals. The Shelby County Chancery Court dismissed the petition for lack of standing. We conclude that the Town and the Development Department have standing. Therefore, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion.

Shelby County Court of Appeals 04/07/15
Michael Morgan v. Superior Catering Services, et al.
E2014-00005-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancelor W. Frank Brown

The underlying claim in this appeal concerns age discrimination. The action was filed initially against a single defendant. Three additional defendants were later added, but the plaintiff served process for them on the attorney for the initial defendant, instead of the individual defendants, a fact about which the added defendants learned only a few days prior to the trial. The trial ensued after the court refused to grant a continuance. A jury found all the defendants liable. The trial court awarded the plaintiff $70,000. The defendants collectively filed a motion for a new trial and raised the issues of insufficient service and the inadmissibility of direct evidence. In its first order, the trial court granted the defendants' motion for a new trial. The plaintiff thereafter filed a motion to alter or amend, after which the court reversed its prior ruling granting the new trial and reinstated the jury verdict. The defendants appeal. We reverse.

Hamilton County Court of Appeals 04/07/15
Charles Walker v. Bank of America, N. A. et al
M2014-00672-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joseph P. Binkley, Jr.


Plaintiff submitted the winning bid for the purchase of improved real property from Defendant Bank at auction. Plaintiff and Bank executed a purchase agreement and Plaintiff paid earnest money. Before the scheduled closing date, Bank informed Plaintiff that it did not own part of the real property advertised for auction. It offered to sell Plaintiff the unimproved parcel for the contract amount or to terminate the contract. After Plaintiff informed Bank’s closing agent that he intended to close on the entire parcel as advertised for auction, Bank returned Plaintiff’s earnest money and terminated the contract. Plaintiff filed an action alleging intentional misrepresentation, negligent misrepresentation, and violation of the Tennessee Consumer Protection Act against Bank and the auction company. The trial court granted Bank’s motion to dismiss and granted the auction company’s motion for a judgment on the pleadings. We affirm the decision of the trial court and remand.

Davidson County Court of Appeals 04/06/15
Jay Daniel, et al. v. Allstate Insurance Company
W2014-01965-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Joe H. Walker, III

This is an appeal from the trial court’s grant of summary judgment in an action on a homeowner’s insurance policy that contained a one-year contractual limitations period on actions arising under the policy. The home of the insured parties was damaged by a fire on December 15, 2011. The insured parties submitted a claim with the insurer pursuant to their homeowner’s insurance policy. The insurer submitted an estimate and tendered a settlement check to the insured parties on April 2, 2012. Over a year later, on October 3, 2013, the insured parties filed suit alleging they were owed an additional $75,000 for personal use and construction improvements on a new home. The trial court granted summary judgment in favor of the insurer, finding that the insured parties’ claims were barred by the one-year contractual limitations period. After reviewing the record, we find no error in the trial court’s decision and affirm its grant of summary judgment.

Tipton County Court of Appeals 04/06/15
In Re Neveah W.
W2014-01531-COA-R10-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Kenny W. Armstrong

This extraordinary appeal arises from the trial court’s placement of a minor child while the minor child remains in the legal custody of the Tennessee Department of Children’s Services (“DCS”). The minor child was removed by DCS from the home of her Foster Parents, who had cared for her almost since birth, after allegations that the Foster Parents had abused one of their other children. The minor child’s guardian ad litem filed an emergency petition seeking the return of the child to the Foster Parents’ home, or alternatively, for an award of legal custody to the Foster Parents. After a hearing wherein DCS, the Foster Parents, and the GAL presented evidence, the trial court ordered that the child be returned to the Foster Parents’ home, but declined to remove the child from DCS’s legal custody. On appeal, we hold that a trial court may not direct placement of a child in the legal custody of DCS. We reverse the ruling of the trial court and remand for further proceedings.

Shelby County Court of Appeals 04/02/15
Clifford Swearengen v. DMC-Memphis, Inc., et al.
W2014-00724-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John R. McCarroll

This is an appeal from the trial court’s grant of a motion to dismiss Appellant’s medical malpractice action against defendants named in Appellant’s amended complaint filed more than one year after the cause of action accrued. The trial court found that Appellant’s claims against the additional parties were time barred because the amended complaint adding these parties was not filed within ninety days of the original answer asserting comparative fault against non-parties. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 04/02/15
Michael Adler v. Double Eagle Properties Holdings, LLC, et al.
W2014-01080-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Arnold B. Goldin

This case concerns the proper interpretation of a contract governing an interest in real property. The trial court concluded that the contract unambiguously granted a lease to one party, rather than an easement. Affirmed and remanded.

Shelby County Court of Appeals 04/02/15
Brooks Monypeny, et al. v. Chamroeun Kheiv
W2014-00656-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jerry Stokes

This is an appeal from a judgment entered on a jury verdict. The case arises from a motor vehicle accident. Appellant State Farm defended the case as the original plaintiffs’ uninsured motorist carrier. The original plaintiffs subsequently died, one as a direct result of injuries sustained in the accident, the other some two years after the accident. The plaintiffs’ children were substituted as plaintiffs/appellees. State Farm appeals the judgment on the jury verdict on numerous grounds, including: (1) denial of its motion for directed verdict; (2) scope of cross-examination; (3) denial of its motion for mistrial based upon inappropriate closing argument; (4) exclusion of notations on medical records; (5) various acts of alleged wrongdoing on the part of Appellees’ attorneys; (6) jury instructions; (7) admission of medical bills for original plaintiff’s long term assisted living expenses; (8) excessive verdict; (9) incorrect application of statutory cap on non-economic damages; (10) denial of credit for medical and death payments made by State Farm under the insurance policy; and (11) award of discretionary costs. Because there is material evidence to support the jury’s verdict, and because the trial court did not abuse its discretion, we affirm and remand.

Shelby County Court of Appeals 04/01/15
In Re Miracle F.H.
E2014-01508-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kurt Andrew Benson
This is a termination of parental rights appeal brought by the mother. The trial court found clear and convincing evidence to support termination of the mother’s parental rights on the statutory grounds of abandonment for failure to visit, abandonment for failure to remit child support, and that mother substantially failed to comply with the requirements of the permanency plans. The court also found that termination of the mother’s parental rights was in the best interest of the child. The mother appeals. We affirm the decision of the trial court.
 
Bradley County Court of Appeals 04/01/15
In Re Estate of Wanda Joyce Watkins
E2014-02323-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Rex A. Dale
This is an appeal from an order in a will-construction suit regarding whether certain heirs to the Estate of Wanda Joyce Watkins (“Heirs”), appellants in this appeal, are entitled to inherit under the residuary clause of the Decedent’s will. Because the order appealed from does not resolve the issue of the amount of attorney’s fees awarded to the Executrix, Kimberly B. Jenkins (“Executrix”), in connection with the filing of the petition for construction of the will, we lack jurisdiction to consider this appeal.
 
Loudon County Court of Appeals 04/01/15
Latony Baugh, et al. v. United Parcel Service, Inc., et al.
M2014-00353-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Thomas W. Brothers

In this wrongful death appeal, the main issue is whether, under Tenn. Code Ann. § 20-5-106(c)(1), a surviving spouse must have abandoned the decedent for a period of two years to have waived his or her right to institute an action or collect proceeds under that section. We have concluded that the two-year period in Tenn. Code Ann. § 20-5-106(c)(1) applies only to “willful withdrawal.”

Davidson County Court of Appeals 03/31/15
Al M. Williams v. Corrections Corporation of America, et al.
W2015-00212-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge J. Weber McCraw

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

Hardeman County Court of Appeals 03/31/15
James McMillin et al. v. Paul Lindsey McMillin et al.
E2014-00497-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Daryl R. Fansler

The plaintiffs are siblings and two of the four adult children of the decedent. The defendants include a third adult child and his wife. In the months preceding her death, the decedent changed her bank accounts, originally titled solely in her name, to become joint accounts with the defendant son with right of survivorship. The plaintiffs asserted that the defendant sibling exerted undue influence over the decedent in these transactions. They sought the return of all monies withdrawn from those bank accounts to the decedent's estate. Following a two-day trial, the jury rendered a verdict for the plaintiffs in the amount of $284,800. The defendants have appealed. Discerning no error, we affirm.

Knox County Court of Appeals 03/31/15
Linda Dennis et al. v. Dr. Robert G. Smith et al.
E2014-00636-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Deborah C. Stevens
Linda Dennis and Creed Dennis (“Plaintiffs”) filed a healthcare liability action against Dr. Robert G. Smith (“Defendant”) and others. Defendant filed a motion to dismiss. After a hearing, the Circuit Court for Knox County (“the Trial Court”) dismissed Plaintiffs’ claims after finding and holding, inter alia, that Plaintiffs had failed to comply with Tenn. Code Ann. §§ 29-26-121 and 29-26-122. Plaintiffs appeal the dismissal of their claims to this Court. We find and hold that because Plaintiffs failed to comply with Tenn. Code Ann. § 29- 26-122, their action was subject to dismissal with prejudice upon motion. We, therefore, affirm the Trial Court’s dismissal of Plaintiffs’ claims.
 
Knox County Court of Appeals 03/31/15
In Re Jesslyn C.
E2014-01385-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge David W. Tipton

This parenting dispute arose upon the parents' competing motions for modification of the existing permanent parenting plan as to the parties' minor child. The trial court previously had entered a permanent parenting plan order on May 11, 2010, designating the mother as the primary residential parent and awarding equal residential co-parenting time to both parents in an alternating weekly schedule. Following a hearing, the trial court found that a material change in circumstance warranting modification of the residential co-parenting schedule had occurred since entry of the permanent parenting plan. The trial court further found that reducing the father's co-parenting time to alternate weekends during the academic year, while reversing this co-parenting schedule during the summer break, was in the child's best interest. The father has appealed. Discerning no reversible error, we affirm.

Sullivan County Court of Appeals 03/31/15
Amresco Independence Funding, LLC et al. v. Renegade Mountain Golf Club, LLC et al.
E2014-01160-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Ronald Thurman

This appeal presents the issue of whether service of process was properly effected upon a nonresident defendant. The defendant filed a limited appearance and motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02, asserting that he had never been properly served with process. The trial court granted the defendant’s motion, finding that service of process was never properly completed pursuant to Tennessee Rule of Civil Procedure 4. The plaintiff has appealed. Discerning no error, we affirm

Cumberland County Court of Appeals 03/31/15