Court of Appeals Opinions

Format: 09/04/2015
Format: 09/04/2015
Christie Crews v. Gary Jack
W2014-01964-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Nathan B. Pride

Plaintiff filed suit against defendant in general sessions court. After the general sessions court entered judgment in favor of defendant, plaintiff appealed to the circuit court. The circuit court conducted a trial de novo, but the defendant failed to appear and defend. The circuit court entered a default judgment in favor of plaintiff after she presented her proof. Defendant filed a motion to set aside the default judgment alleging that he never received notice of the trial date in circuit court. The circuit court denied defendant's motion to set aside the default judgment. We reverse the circuit court's ruling and remand for further proceedings.

Madison County Court of Appeals 05/29/15
Elizabeth Sanders, by and through her next of kin, Tonita Minter v. Harbor View Nursing and Rehabilitation Center, Inc., et al.
W2014-01407-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert L. Childers

This is an appeal from the denial of a motion to compel arbitration in a healthcare liability case. The Decedent executed a power of attorney in favor of her daughter, the Appellee, granting Appellee broad powers, but exempting healthcare decisions. The Decedent was subsequently admitted to the Appellant nursing facility. The Appellee signed the Decedent's admission contract and a separate, voluntary arbitration agreement. After the Appellee filed this action against the nursing facility and its managing companies, the Appellants filed motions to compel arbitration pursuant to the arbitration agreement signed at the time of the Decedent's admission. The trial court denied the motions. We affirm.

Shelby County Court of Appeals 05/29/15
Mark A. White, et al v. Turnberry Homes, LLC, et al.
M2014-01858-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge James G. Martin, III

Homeowners sued the builder and others for defects in their home. The builder sought to compel arbitration pursuant to the arbitration clause in the purchase agreement. The trial court granted the motion to compel arbitration except as to the fraudulent inducement claim. The builder appealed. We affirm.

Williamson County Court of Appeals 05/28/15
John Milton Arledge v. Brenda Pauletter Cripps Arledge, et al.
M2014-01344-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge William M. Locke

This case concerns the applicability of Tennessee Code Annotated Section 20-12-119(c). When the trial court grants a motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12 for failure to state a claim upon which relief may be granted, Section 20-12-119(c) requires the trial court to award the dismissed party his or her reasonable attorney’s fees. In this case, Appellant was dismissed from the lawsuit, but the trial court denied an award of attorney’s fees. Because the trial court’s orders do not specify on what grounds it dismissed Appellant, we cannot determine whether Section 20-12-119(c) was triggered in this case. Accordingly, we vacate and remand for entry of an order specifying the grounds for dismissal. 

Warren County Court of Appeals 05/28/15
Abdelrahman Amrokbeer v. Richard Roberts, et al.
M2013-02639-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Claudia Bonnyman

A corporate officer responsible for paying over the sales taxes collected by a corporation pled guilty to attempted tax evasion under Tennessee Code Annotated § 67-1-1440. As part of his plea agreement, the criminal court ordered the corporate officer to pay restitution in the amount of $17,500. After completing probation, the Department of Revenue notified the corporate officer of an individual sales tax assessment of $137,493.76 arising from the corporation’s operations. The corporate officer filed a complaint in the Davidson County Chancery Court challenging the assessment. The corporate officer argued that the amount of the criminal restitution, which he had already paid, was the full amount of his individual liability to the Department. The Department filed a motion to dismiss, which the trial court granted. Concluding that criminal restitution and civil tax liability are separate and distinct, we affirm the dismissal.

Davidson County Court of Appeals 05/28/15
In re Conservatorship of Timothy Beasley
M2014-02263-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Howard W. Wilson

A man was injured in an accident, and his relatives initiated conservatorship proceedings in the probate court of Rutherford County.  The conservators were dissatisfied with the probate court’s handling of the case and moved to have the case removed to the chancery court.  The probate court granted the motion to remove, but the chancery court determined the removal was improper and sent the case back to the probate court.  The conservators appealed the chancery court’s decision to review the probate court’s order granting the removal.  On appeal, we note that the probate court and the chancery court in Rutherford County have concurrent jurisdiction over conservatorship proceedings.  Neither court is inferior to the other, and an appeal from either court is to the Court of Appeals.  The chancery court lacked subject matter jurisdiction to determine any issues in the conservatorship once the case was filed in the probate court.  We vacate the judgment by the chancery court and remand the case to the probate court for further proceedings.

Rutherford County Court of Appeals 05/28/15
In re Ariana S., et al
M2014-02031-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Betty K. Adams Green

This case arises from the termination of parental rights of the father of two children, Ariana S., born April 2002, and Luis S., born February 2003. Father left his children and moved to Puerto Rico in 2007; he has been incarcerated since 2012. Father’s parental rights were terminated on the grounds of abandonment by willful failure to visit or support and persistence of conditions; he appeals. We reverse the termination on the grounds of abandonment by willful failure to support and persistence of conditions and affirm the termination of Father’s rights on the ground of abandonment by willful failure to visit. 

Davidson County Court of Appeals 05/28/15
Ophelia Carney v. Santander Consumer USA
W2015-00853-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kyle Atkins

This appeal involves the trial court's denial of a recusal motion. We affirm the trial court's decision to deny the motion to recuse, but vacate the order entered by the trial court while the recusal motion was pending.

Madison County Court of Appeals 05/28/15
Phyllis Smith v. Shelby County
W2014-01557-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge John R. McCarroll

In this premises liability action, Appellant Phyllis Smith (“Ms. Smith”) appeals the trial court’s finding that Shelby County (“the County”) is immune from suit under the Tennessee Governmental Tort Liability Act. Because we conclude that the order appealed from is not a final judgment, we dismiss the appeal.

Shelby County Court of Appeals 05/28/15
Jimmy Dill v. City of Clarksville
M2014-01392-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Michael R. Jones

Plaintiff was terminated from his employment as a City of Clarksville police officer in August 2010. The trial court affirmed, and Plaintiff appealed. We determined that the City had failed to follow its disciplinary procedures when it terminated Plaintiff’s employment, vacated the termination, and remanded the matter. Upon remand, the City upheld termination of Plaintiff, and the trial court again affirmed. We affirm.

Montgomery County Court of Appeals 05/27/15
Erastus James Mummery v. Mark Lucko, et al.
M2013-00336-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Ross H. Hicks

This is an appeal from the trial court’s dismissal of Appellant’s complaint in a negligence case. After Appellant’s case was dismissed, he filed a notice of appeal pro se. Significant procedural shortcomings in Appellant’s brief on appeal prevent this Court from reaching any substantive issues. We therefore affirm.

Montgomery County Court of Appeals 05/27/15
In re: Tanasia A.
M2014-01696-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Barry R. Brown

This case involves a petition for grandparent visitation filed by the paternal grandparents of the child at issue. The trial court granted the petition for visitation pursuant to Tennessee Code Annotated section 36-6-306. Because the trial court did not make appropriate written findings in accordance with Tennessee Rule of Civil Procedure 52.01, we do not reach the merits of this appeal. We vacate and remand for appropriate findings of fact and conclusions of law.

Sumner County Court of Appeals 05/27/15
Teneccia Brown v. Memphis Housing Authority
W2014-01902-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Walter L. Evans

Appellee commenced a lawsuit in the Shelby County Chancery Court seeking to invalidate a writ of possession that previously had been filed pursuant to an order of the Shelby County Circuit Court. After conducting a hearing on the matter, the Chancery Court entered an order granting Appellee her request for relief. Because we conclude that Appellee’s lawsuit constituted a collateral attack of the Circuit Court judgment, and there is nothing in the record indicating that the Circuit Court was without jurisdiction, the Chancery Court’s order is hereby vacated. We remand the case to the trial court for the entry of an order dismissing Appellee’s case for lack of subject matter jurisdiction.

Shelby County Court of Appeals 05/27/15
Susan Marie Joyce v. Bruce Cade Ellard
M2014-01550-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert E. Corlew, III

Wife appeals the trial court’s division of property and award of transitional alimony in this divorce action. We affirm in part, vacate in part, and remand for further findings and proceedings, consistent with this Opinion.

Rutherford County Court of Appeals 05/26/15
Goodyear Tire & Rubber Company, et al. v. Karla Davis, et al.
M2014-00475-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Russell T. Perkins

An employee of Goodyear Tire & Rubber Co. (“Goodyear”) fell while at work and suffered injuries; pursuant to the Workers’ Compensation Law, Tenn. Code Ann. § 50-6-101, et seq., she began receiving medical treatment. She subsequently relocated to Minnesota and made a request to Goodyear that she be provided a second panel of physicians in order to continue her treatment; Goodyear denied the request. At the employee’s request a workers’ compensation specialist from the Tennessee Department of Labor and Workforce Development ordered Goodyear to provide a second panel of physicians. Goodyear requested and received an administrative review of the specialist’s order; the Department affirmed the order. Thereafter, Goodyear filed a petition for writ of certiorari in Chancery Court pursuant to Tenn. Code Ann. § 27-8-101 asserting that the Department exceeded its authority by ordering Goodyear to provide a second panel of physicians and a physician outside of Tennessee. The Department moved to dismiss the petition for lack of subject matter jurisdiction; the court denied the motion and considered the merits of the petition. The court held that the Department did not exceed its authority in ordering the panel of physicians; Goodyear appeals. The Department of Labor also appeals the holding that the court had subject matter jurisdiction to review its decision. Concluding that the trial court lacked subject matter jurisdiction, we reverse the judgment of the court and dismiss the petition.  

Davidson County Court of Appeals 05/26/15
In re Dontavis K.W.
E2014-01285-COA-R3-JV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Don W. Poole

Dontavis K.W. (“Defendant”) appeals the order of the Criminal Court for Hamilton County (“the Criminal Court”) committing him to the custody of the Department of Children’s Services (“DCS”) for an indefinite term based upon findings of delinquency and violation of probation. We find and hold that pursuant to Tenn. R. Juv. P. 35 and Tenn. Code Ann. §§ 37-1-131(a)(4) and 37-1-137(a)(1)(A) the Criminal Court did not err in the probation revocation proceeding when it ordered a disposition which would have been permissible in the original delinquency proceeding. We, therefore, affirm.

Hamilton County Court of Appeals 05/26/15
Sharon Tagg v. James Tagg
W2014-01767-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Gina C. Higgins

This is a post-divorce case concerning the enforcement of a marital dissolution agreement, which the trial court incorporated into the divorce decree. The marital dissolution agreement required Appellant to pay Appellee’s monthly rent. Appellant made two or three payments, then stopped. The Appellee filed several petitions and complaints seeking to enforce the marital dissolution agreement. Because the trial court did not make sufficient findings of fact and conclusions of law as required by Tennessee Rule of Civil Procedure rule 52.01, we vacate the judgment of the trial court and remand the case with instructions to conduct an evidentiary hearing and to issue sufficient findings of fact and conclusions of law.

Shelby County Court of Appeals 05/26/15
Borla Performance Industries, Inc. v. Universal Tool and Engineering, Inc.
E2014-00192-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Thomas J. Seeley

Borla Performance Industries, Inc. (Borla) entered into two contracts with Universal Tool and Engineering, Inc. (UTE), by the terms of which UTE was to repair and refurbish six of Borla's pipe bending machines, which machines are used in Borla's business of designing and manufacturing automobile exhaust systems. Borla later sued UTE for breach of contract, negligent misrepresentation, and violation of the Tennessee Consumer Protection Act (TCPA). Borla alleged that as a result of UTE's failure to timely repair and deliver the machines, which are also known as “benders,” Borla incurred lost profits in the amount of $486,166. After a four-day bench trial, the court dismissed Borla's negligent misrepresentation and TCPA claims; the court did grant Borla a judgment for $11,839.98 on its breach of contract claim. The trial court held that Borla failed to prove that it incurred lost profits as a result of a breach of contract by UTE. Borla appeals the trial court's judgment denying its claims for lost profits. Borla also appeals the court's judgment dismissing the TCPA claim. UTE appeals the judgment against it for breach of contract. We affirm.

Washington County Court of Appeals 05/26/15
In re T.L.G.
E2014-01752-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Sharon M. Green

In this termination of parental rights case, J.L.B., Jr. (Father), appeals the order terminating his rights to his minor daughter, T.L.G. (the Child). The Department of Children's Services (DCS) removed the Child from the home of her mother, G.M.G. (Mother) after Mother was arrested for domestic violence. DCS took temporary custody and placed the Child in foster care. The Child was subsequently adjudicated dependent and neglected. Some eight months later, DCS filed a petition to terminate each of the parents' rights. After a trial, the court granted the petition.1 The court found, by clear and convincing evidence, that (1) multiple grounds for termination exist, and (2) termination is in the Child's best interest. Father challenges the finding of grounds for termination, but does not question the court's decision that termination is in the Child's best interest. We affirm.

Washington County Court of Appeals 05/26/15
Glenna Randolph Inman v. Robert Allan Inman, Jr.
E2014-01163-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge L. Marie Williams

In this divorce case, Robert Allan Inman, Jr. (Husband) appeals the trial court's decision awarding Glenna Randolph Inman (Wife) alimony in futuro of $1,900 per month. We hold that the court's decision is supported by a number of relevant statutory factors, including the twenty-nine year duration of the marriage, Wife's age, sixty-three at the time of trial, her poor physical condition, Husband's good physical condition, his higher earning capacity, Wife's demonstrated need, and Husband's ability to pay. We affirm the judgment of the trial court.

Hamilton County Court of Appeals 05/26/15
In re: Autumn L.
E2014-01240-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Robert M. Estep

This appeal arises from a termination of parental rights proceeding. The Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate the parental rights of Ashley L. (“Mother”) and Aaron B. (“Father”) to their minor child Autumn L. (“the Child”) in the Juvenile Court for Claiborne County (“the Juvenile Court”). After a trial, the Juvenile Court entered an order terminating Mother’s and Father’s parental rights to the Child on a number of grounds. Mother and Father appeal to this Court. In addition to challenging the termination of their parental rights to the Child, Mother and Father argue that the case should be remanded to the Juvenile Court because the Juvenile Court did not enter an order within 30 days of the hearing as required by statute. We hold, inter alia, that remand is not an appropriate remedy for this noncompliance with statute and would serve no purpose. We affirm the judgment of the Juvenile Court in all respects.

Claiborne County Court of Appeals 05/26/15
Betty Goff C. Cartwright, et al. v. Jackson Capital Partners, Limited Partnership, et al.
W2013-01865-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Arnold B. Goldin

This appeal involves claims asserted by a beneficiary of various trusts against numerous defendants, including the beneficiary’s sister and her husband, who serve as the trustee and co-trustee of some of the trusts. Among other things, the beneficiary alleged that the defendant-trustees breached their fiduciary duties by failing to pay the beneficiary all distributions to which he was entitled. The defendants moved for partial summary judgment, claiming that they had followed the terms of the trusts and paid the beneficiary all distributions to which he was entitled pursuant to the trust documents. In response to the motion for partial summary judgment, the beneficiary asserted that the trust documents were void because he executed them due to undue influence. In a previous appeal, this Court reversed the entry of partial summary judgment on the issue of undue influence, concluding that genuine issues of material fact existed. The parties engaged in additional discovery on remand, and after lengthy proceedings and numerous evidentiary and other rulings, the trial court granted summary judgment to the defendant-trustees and denied a motion for partial summary judgment filed by the beneficiary. The trial court also awarded attorney’s fees and discretionary costs to the defendants. The beneficiary appeals. We affirm and remand for further proceedings.

Shelby County Court of Appeals 05/21/15
Robert Randall Capps, et al. v. Adams Wholesale Co.,Inc., et al.
E2014-01882-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Thomas Wright

This appeal concerns the applicability of an arbitration agreement. The plaintiffs purchased decking product manufactured by the defendant. The product was covered by a limited warranty, which included an arbitration agreement. The limited warranty was never provided to the plaintiffs. Instead, a notice was attached to the product, advising them to retrieve a copy of the limited warranty through the defendant's website. Following installation of the product, the plaintiffs experienced problems with the product. The defendant advised the plaintiffs that the issue was merely cosmetic. The plaintiffs filed suit. The defendant filed a motion to dismiss or to stay the proceedings and compel arbitration. The trial court denied the motion, finding that the parties had not entered into an agreement to arbitrate disputes. The defendant appeals. We affirm.

Greene County Court of Appeals 05/21/15
Irene Kesterson v. Lanny Jones, et al.
E2013-02092-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kindall T. Lawson

This appeal concerns three notes executed by the defendants and made payable to the plaintiff. When the plaintiff filed suit, the defendants filed a motion for summary judgment, arguing that the statute of limitations for recovery on the notes had passed. The trial court denied the motion for the summary judgment. Following a bench trial, the court ruled in favor of the plaintiff, finding that the defendants were estopped from pleading the statute of limitations as a defense and that they had revived the obligation after the limtiations period ran. The defendants appeal. We affirm.

Greene County Court of Appeals 05/21/15
Guler Boyraz v. State of Tennessee
M2013-02796-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Commissioner Robert N. Hibbett

Former Tennessee State University Professor filed a claim for damages, asserting causes of action for breach of contract and negligent deprivation of statutory rights. On the State’s motion to dismiss the claim, the Claims Commission held that it lacked subject matter jurisdiction to hear the breach of contract claim and that the professor failed to state a claim for negligent deprivation of statutory rights; accordingly, the Commission granted the State’s motion. Professor appeals. We reverse the dismissal of the breach of contract claim and remand for further proceedings; in all other respects the judgment is affirmed.

Court of Appeals 05/20/15