Court of Appeals Opinions

Format: 12/14/2018
Format: 12/14/2018
In Re: Hayden L.
E2018-00147-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jeffrey D. Rader

This is a termination of parental rights case. Mother/Appellant appeals the trial court’s termination of her parental rights to the minor child on the grounds of: (1) abandonment by an incarcerated parent by willful failure to visit, willful failure to support, and wanton disregard, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(iv); (2) severe child abuse, Tenn. Code Ann. § 36-1-113(g)(4); and (3) incarceration under a sentence of ten years or more imposed when the child was less than eight years old, Tenn. Code Ann. § 36-1-113(g)(6). Mother also appeals the trial court’s determination that termination of her parental rights is in the child’s best interest. On appeal, Appellee does not defend the ground of abandonment by willful failure to support. Because there is insufficient evidence concerning Mother/Appellant’s employment and earning potential, we reverse the trial court’s termination of Mother/Appellant’s parental rights on the ground of abandonment by willful failure to support. The order is otherwise affirmed.

Sevier County Court of Appeals 08/31/18
In Re Briana H., Et Al.
M2017-02296-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Amy Cook

Mother appeals from the trial court’s order terminating her parental rights. Discerning no error, we affirm. 

Hickman County Court of Appeals 08/31/18
In Re Romeo T. Et Al.
M2018-00269-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donna Scott Davenport

This is a termination of parental rights case. Mother/Appellant appeals the termination of her parental rights to two minor children on the grounds of: (1) abandonment by willful failure to visit; Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(i); (2) substantial noncompliance with the requirements of the permanency plan, Tenn. Code Ann. § 36-1-113(g)(2); and (3) persistence of the conditions that led to the children’s removal from Mother’s home, Tenn. Code Ann. § 36-1-113(g)(3). The trial court also found that termination of Mother’s parental rights is in the children’s best interest. On appeal, Appellee, the Tennessee Department of Children’s Services, concedes that the persistence of conditions ground is not applicable to Appellant because the record does not contain a final adjudicatory order of dependency and neglect. We agree; accordingly, we reverse the trial court’s termination of Appellant’s parental right on that ground. The order is otherwise affirmed.

Rutherford County Court of Appeals 08/31/18
Safronia Rufsholm v. Jerry Rufsholm
M2016-02404-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ross H. Hicks

This is a divorce action in which the wife appeals the trial court’s classification of property and the type and amount of alimony awarded. We affirm.  

Montgomery County Court of Appeals 08/30/18
Amy Elizabeth Luker v. Terry Eugene Luker
M2018-00138-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Senior Judge Robert E. Lee Davies

Amy Elizabeth Luker (“Petitioner”), asserting she was raped, obtained an ex parte order of protection against her husband Terry Eugene Luker (“Respondent”) in the Chancery Court for Williamson County (“the Trial Court”). Respondent asked for time to conduct discovery before the hearing on whether to extend the order of protection. The Trial Court permitted Respondent to subpoena certain records but otherwise ruled he had no right to conduct discovery under the Tennessee Rules of Civil Procedure. After a hearing, the Trial Court ruled in favor of Petitioner and extended the order of protection. Respondent appeals, arguing principally that the Trial Court erred in blocking discovery and in excluding Respondent’s proposed witnesses. We affirm the Trial Court in its decision regarding the witnesses. However, we hold that the Trial Court erred in determining categorically that Respondent had no right to conduct discovery. We vacate and remand for a new hearing. On remand, the parties shall state specifically what discovery if any they want and the Trial Court is to exercise its discretion in deciding what limited discovery to allow and the time frame. The ex parte order of protection shall remain in effect in the interim. We affirm, in part, and vacate, in part, the judgment of the Trial Court.   

Williamson County Court of Appeals 08/30/18
In Re Brian G., Et Al.
M2017-01586-COA-R3-JV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge G. Andrew Brigham

Father appeals from an order of the juvenile court awarding permanent guardianship following an adjudication of dependency and neglect. Father filed his notice of appeal to this Court twenty-eight days following the trial court’s order. Because Father’s appeal was to circuit court and his notice of appeal was not filed within ten days of the trial court’s order, we dismiss this appeal.

Stewart County, Sullivan County Court of Appeals 08/30/18
In Re: Gabriel C.
E2017-02398-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Robert D. Philyaw

A mother appeals the termination of her parental rights to her son, who tested positive for illegal drugs at birth. In due course, the child was placed in the custody of the Department of Children’s Services and adjudicated dependent and neglected; Mother was later sentenced to a ten-year prison term. The Department thereafter filed a petition to terminate Mother’s parental rights and, following a trial, Mother’s rights were terminated on the grounds that Mother had been found guilty of severe child abuse of the child’s half-sister in another proceeding and abandonment by incarcerated parent and upon the finding that termination was in the child’s best interest. Mother appeals; upon a thorough review of the record, we affirm the judgment.

Hamilton County Court of Appeals 08/30/18
Shawn R. Bough v. Tennessee Department Of Correction Et Al.
E2017-02350-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jeffrey F. Stewart

Shawn Bough filed a petition for common law writ of certiorari seeking review of his prison disciplinary conviction. The petition named as respondents the Tennessee Department of Correction and various individuals involved in petitioner’s conviction. The trial court dismissed the petition on the ground that petitioner failed to timely comply with the court’s order to submit a partial payment of the filing fee as required by Tenn. Code Ann. § 41-21-807 (2014). Petitioner subsequently filed a “motion to reconsider,” which the trial court denied. This appeal follows. We affirm.

Bledsoe County Court of Appeals 08/30/18
Frederick Jerome Brown, Jr. v. Roxana Isabel Brown
E2017-01348-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge L. Marie Williams

In this divorce case, the trial court designated father, Frederick Jerome Brown, Jr., as the primary residential parent of the parties’ only child. Mother, Roxana Isabel Brown, appeals. She argues that the trial court abused its discretion when it (1) designated father as the primary residential parent and (2) when it established a parenting plan that was not in the best interest of the child. We reverse the trial court’s designation of father as the primary residential parent and remand the case for further proceedings.

Hamilton County Court of Appeals 08/30/18
In Re Ella P.
W2017-02219-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor James F. Butler

This action involves a termination petition filed by the mother and stepfather against the father of a minor child. Following a bench trial, the court found that the statutory grounds alleged, abandonment for failure to visit and to support, were not supported by clear and convincing evidence. The petitioners appeal the denial of the petition and the assessment of costs accrued below. We affirm.

Madison County Court of Appeals 08/30/18
Vallaree Goodwin v. Kebede G. Hanebis
M2017-01689-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This is an appeal from a judgment entered on a jury verdict. The case arises from a motor vehicle accident. The jury returned a verdict in favor of Appellee, and the trial court entered a final judgment for $68,995.02. Because the trial court erred in excluding relevant medical records, we reverse the judgment and remand for a new jury trial.  

Davidson County Court of Appeals 08/29/18
Rufus S. Johnson, III v. Elaina Irene Johnson
M2016-02418-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ross H. Hicks

In this divorce case, the trial court denied wife’s request for a continuance of the trial and then, during the trial, excluded an exhibit proffered by wife. Wife contends that the trial court erred in both respects. Because we conclude the trial court did not abuse its discretion in either decision, we affirm.    

Montgomery County Court of Appeals 08/29/18
Gary Haiser Et Al. v. Michael McClung Et Al.
E2017-00741-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ronald Thurman

This case involves two consolidated actions brought by opposing boards of directors of a residential development community club, with each board claiming legitimacy. The plaintiffs to the original action were owners of real property in the development who held a special meeting in September 2011 in order to elect a new board of directors for the community club. The previous board of directors and defendants to the original action contested the validity of the election, claiming that none of the counted votes were cast by members in good standing. The defendants subsequently met in November 2011 and again in March 2012 to ratify their positions on the community club board of directors. In December 2011, the “new” board of directors, purportedly elected in September 2011, filed a declaratory judgment action against the original board of directors in the Cumberland County Chancery Court, requesting that the court declare which board of directors was legally in control. The complaint also requested that the court declare whether the purported developer properly possessed developer’s rights and that the court award damages to the new board for breach of fiduciary duties by the original board. In April 2012, the original board filed a separate declaratory judgment action against the new board in the Cumberland County Chancery Court, making similar allegations and requesting a declaratory judgment, an injunction preventing the new board from acting on behalf of the community club, and damages for conversion. The trial court consolidated the two actions in July 2012 and conducted a bench trial on the matter over the course of seven non-consecutive days in 2015 and 2016. At the conclusion of trial, the court determined that the new board was prevented from challenging the developer’s status due to a statute of limitations. The trial court further determined that neither board was legitimately in control and appointed a special master to conduct an accounting of dues and a supervised election. The trial court also directed each side to pay its own attorney’s fees, ordering the boards to repay to the community club any funds used to pay attorney’s fees. The original board was re-elected during the supervised election, and the special master determined that both sides had paid attorney’s fees from their respective annual assessments collected. The trial court conducted a hearing on the parties’ objections to 08/29/2018 2 the special master’s report before adopting the master’s findings in total. The trial court thereby affirmed the original directors as current directors; ordered those directors to repay $54,157.41 to the community club funds; and ordered the plaintiffs to repay $143,513.55 to the community club funds. The plaintiffs have appealed. Determining that the trial court improperly relied upon a statute of limitations that is inapplicable to the plaintiffs’ action, we reverse the trial court’s judgment and remand for further proceedings consistent with this opinion. We further reverse the trial court’s alternative rulings for lack of evidentiary basis.

Cumberland County Court of Appeals 08/29/18
American Heritage Apartments, Inc. v. Hamilton County Water And Wastewater Treatment Authority, Hamilton County, Tennessee
E2017-01307-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge J.B. Bennett

In this interlocutory appeal, the issue is whether a statutory amendment barring class action lawsuits against the defendant, Tenn. Code Ann. § 68-221-608(e)(4) (Supp. 2017), applies retroactively thereby requiring the denial of the plaintiff’s previously-filed request for class certification under Tenn. R. Civ. P. 23. We hold that the statutory language at issue, providing that, “[t]his part shall not authorize or permit any class action lawsuits against any authority,” is unambiguous, and therefore reference to its legislative history is unnecessary and improper. Because this provision is procedural and remedial in nature, not affecting substantive rights of the plaintiff, we affirm the trial court’s judgment that it applies retroactively to bar plaintiff’s class certification request.

Hamilton County Court of Appeals 08/29/18
In Re: Estate of Michael Denver Shell
E2017-02146-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge M. Nicole Cantrell

In this probate action, the intestate decedent owned real property at the time of his death that was titled solely in his name. The decedent’s spouse subsequently died within 120 hours of the decedent’s death. The trial court ruled that, pursuant to Tennessee Code Annotated § 31-3-120 (2015), the spouse’s heirs possessed no claim to or interest in the real property at issue. The spouse’s heirs have appealed. Discerning no reversible error, we affirm the trial court’s ruling. We decline to award attorney’s fees to the decedent’s estate as damages, determining that this appeal is not frivolous.

Anderson County Court of Appeals 08/29/18
April Doris Schmidt v. Aaron Errol Ankrom
E2017-01909-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Lawrence Howard Puckett

In this appeal, the marital dissolution agreement at issue stated the parties’ intent to enter into a separate farm lease agreement for up to 7 years, upon completion of which the exwife could sell the property subject to the ex-husband’s right of first refusal. However, the parties never entered into the contemplated farm lease. The ex-wife, desiring to sell the property prior to the passing of 7 years, brought a declaratory judgment action seeking a declaration of the rights of the parties under the marital dissolution agreement. The trial court held that the ex-wife would be in breach of the agreement if she sold the property prior to 7 years and awarded attorney’s fees to the ex-husband. The ex-wife appeals. We reverse.

Bradley County Court of Appeals 08/29/18
Barbara Patterson, Individually And As Surviving Spouse Of David Charles Patterson, Deceased v. STHS Heart, LLC
M2018-01419-COA-T10B-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Kelvin D. Jones

Appellant sought disqualification of the trial judge pursuant to Tennessee Supreme Court Rule 10B. The trial judge denied the motion to recuse.  Finding no error, we affirm.

Davidson County Court of Appeals 08/28/18
In Re Alexis C.
M2017-02052-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge George L. Lovell

This is a termination of parental rights case involving the parental rights of the mother, Bethany C. (“Mother”), to her minor child, Alexis C. (“the Child”), who was two years of age at the time of trial. The Child was born in 2014 to Mother and Jeremy C. (“Father”). In August 2015, the Maury County Juvenile Court (“trial court”) entered an order removing the Child from Mother’s custody and placing the Child into the temporary legal custody of the Tennessee Department of Children’s Services (“DCS”). The Child was immediately placed in foster care, where she remained at the time of trial. The trial court subsequently entered an order on October 12, 2015, wherein the trial court found that the Child was dependent and neglected due to Mother’s and Father’s incarceration. On August 23, 2016, DCS filed a petition to terminate the parental rights of Mother and Father. Following a bench trial, the trial court terminated Mother’s parental rights to the Child upon determining by clear and convincing evidence that (1) Mother had abandoned the Child by failing to provide a suitable home, (2) Mother had failed to substantially comply with the requirements of the permanency plans, (3) the conditions leading to removal still persisted and other conditions persisted that would in all probability cause the Child to be subjected to further abuse or neglect, and (4) Mother had failed to manifest an ability and willingness to personally assume custody of and financial responsibility for the Child. The court further found clear and convincing evidence that termination of Mother’s parental rights was in the best interest of the Child. Mother has appealed. Discerning no reversible error, we affirm.

Maury County Court of Appeals 08/28/18
In Re Charles T.
M2017-02545-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Wayne C. Shelton

This appeal arises from the juvenile court’s ruling terminating the father’s parental rights to his son on the grounds of abandonment by failure to visit, failure to support, and wanton disregard; substantial non-compliance with the permanency plan; and failure to manifest an ability and willingness to personally assume responsibility. The court further determined that termination of the father’s parental rights was in the child’s best interest. The father appeals. We affirm as modified.   

Montgomery County Court of Appeals 08/28/18
Nicole Joseph v. William Edge SalonSpa, LLC
M2018-01425-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This is an appeal from a final judgment entered on April 24, 2018. Because the appellant did not file either her motion to alter or amend or her notice of appeal within thirty days after entry of the judgment as required by Tenn. R. App. P. 4(a), we dismiss the appeal.

Davidson County Court of Appeals 08/28/18
Johnny Stephen Francis v. Janet Kimberley Hughes Et Al.
E2017-02139-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jerri S. Bryant

The trial court determined that the defendant, Janet Kimberly Hughes, breached her fiduciary duty to the plaintiff, Johnny Stephen Francis, by utilizing a power of attorney to withdraw funds from Mr. Francis’s bank account for Ms. Hughes’s sole benefit. The trial court ordered Ms. Hughes to repay those funds. Ms. Hughes timely appealed. Because Ms. Hughes has failed to comply with Tennessee Rule of Appellate Procedure 27 and Tennessee Court of Appeals Rule 6, we dismiss this appeal.

Bradley County Court of Appeals 08/28/18
Hampton Crane Service, Inc. v. Burns Phillips, Commissioner Of Tennessee Department of Labor & Workforce Development, Et Al.
M2017-02213-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Louis W. Oliver

Employer appeals from the agency’s decision to award unemployment benefits to an employee. Because the record contains substantial and material evidence to support the agency’s decision, we affirm. 

Sumner County Court of Appeals 08/27/18
Linda Noe v. Solid Waste Board Of Hamblen County/Morristown
E2017-00255-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Beth Boniface

The petitioner in this Tennessee Public Records Act proceeding requested hard copies and electronic copies of records relating to a landfill maintained by the Solid Waste Board of Hamblen County/Morristown and an upcoming meeting of the Board. The trial court held a hearing as required by the TPRA, after which it dismissed the petition, holding that, under the facts presented, the petitioner was given access to the records in compliance with the TPRA. Upon our review, we conclude that, while some of the records sought were not available at the time of petitioner’s request, some records were available and were not produced for petitioner’s review. Accordingly, we reverse the judgment in part and affirm in part; we remand the case for further proceedings.

Hamblen County Court of Appeals 08/27/18
Julia Browning v. Mark D. Browning
E2017-02354-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kristi M. Davis

A creditor obtained a default judgment in general sessions court and the debtor appealed the judgment to circuit court. The debtor was not in the courtroom when the case was called in circuit court, and the court awarded the creditor a default judgment. The debtor appeals the circuit court’s judgment, and we affirm based on the language of Tenn. Code Ann. §§ 27-5-106 and -107.

Knox County Court of Appeals 08/27/18
In Re Atrivium K., Et Al.
M2017-01046-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Tiffany Gentry Gipson

Mother appeals the termination of her parental rights to her two children. Upon our review, we conclude that the order of termination fails to comply with Tennessee Code Annotated section 36-1-113(k)’s requirement that the court make specific factual findings, which precludes our meaningful review. We vacate the order and remand for entry of an order that complies with subsection 113(k).

Jackson County Court of Appeals 08/23/18