Court of Appeals Opinions

Format: 10/19/2017
Format: 10/19/2017
Bruce Thurman v. Tennessee Department of Safety and Homeland Security
M2016-02215-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Russell T. Perkins

The owner of a truck was charged with driving on a revoked license, and the Tennessee Department of Safety and Homeland Security initiated a proceeding to forfeit the truck. An administrative hearing was held, which resulted in an order that the truck be forfeited. The owner sought review of the forfeiture in Chancery Court pursuant to the Administrative Procedures Act, and the court affirmed the forfeiture.  Finding that the seizure of the truck constituted an excessive fine in violation of the United States and Tennessee Constitutions, we reverse the judgment.  

Davidson County Court of Appeals 07/07/17
In Re: Tanya G.
E2016-02451-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Timothy E. Irwin

A mother’s parental rights to her child were terminated on the ground of mental incompetence and upon the finding that termination was in the child’s best interest. Mother appeals, contending that the ground is not supported by the evidence and that termination of her parental rights is not in the best interest of the child. Finding no error, we affirm the judgment of the trial court.

Knox County Court of Appeals 07/07/17
In Re: Zane W.
E2016-02224-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Timothy E. Irwin

Mother appeals the termination of her parental rights based on the following grounds: (1) abandonment by wanton disregard for the welfare of the child; (2) persistence of conditions; and (3) substantial noncompliance with the permanency plans. We reverse the grounds of persistence of conditions and substantial noncompliance. We, however, affirm the remaining ground of abandonment by wanton disregard for the welfare of the child and the trial court’s determination that termination of Mother’s parental rights is in the best interest of the child. Reversed in part, affirmed in part, and remanded.

Knox County Court of Appeals 07/06/17
Betty C. Thomas v. Bank of America, N.A., et al.
M2015-01849-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Michael Binkley

Plaintiff appeals the trial court’s decision to grant summary judgment to Defendants related to the foreclosure of Plaintiff’s home. She contends the trial court erred in summarily dismissing her complaint. She also contends the trial court abused its discretion in denying Plaintiff’s motion to alter or amend. Defendants insist the trial court should be affirmed in all respects. They also contend the appeal should be dismissed due to Plaintiff’s failure to comply with Rule 27 of the Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Tennessee Court of Appeals. As Defendants contend, Plaintiff’s brief fails to comply with our appellate rules of advocacy and for this reason alone we would be justified in affirming the trial court. Nevertheless, we reviewed the record and the trial court’s actions and affirm the trial court in all respects. Accordingly, the trial court’s judgment is affirmed.

Williamson County Court of Appeals 07/05/17
In Re Kenya H.
E2017-00130-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Robert D. Philyaw

This appeal concerns the termination of a father’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Hamilton County (“the Juvenile Court”) seeking to terminate the parental rights of George C. (“Father”) to his minor child Kenya H. (“the Child”). After a trial, the Juvenile Court entered an order terminating Father’s parental rights. Father appealed. We reverse the grounds of substantial noncompliance with the permanency plan and willful failure to visit, but affirm the ground of wanton disregard. We further affirm that termination of Father’s parental rights is in the Child’s best interest. The judgment of the Juvenile Court is affirmed, in part, and reversed, in part.

Hamilton County Court of Appeals 07/05/17
In Re: Braxton M. Et Al.
E2016-02172-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Beth Boniface

This is a termination of parental rights case, focusing on Braxton M. and Briley N., the minor children (“the Children”) of Kevin M. (“Father”) and Heather N. (“Mother”). On March 21, 2011, the Washington County Juvenile Court (“juvenile court”) entered an order removing the Children from the parents’ custody and placing them in the physical custody of Mother’s father and stepmother, William N. and Donna N. (“Maternal Grandparents”) in response to a dependency and neglect action initiated by the Tennessee Department of Children’s Services (“DCS”) due to Briley’s drug-exposed condition at birth.1 In September 2011, the juvenile court entered an order maintaining physical custody of the Children with Maternal Grandparents and directing that the parents would retain the option of petitioning for return of custody at a later date. On April 15, 2015, Maternal Grandparents filed a petition in the Greene County Circuit Court (“trial court”) to terminate the parental rights of the parents and adopt the Children. Mother subsequently surrendered her parental rights to the Children and is not a party to this appeal. Following a bench trial, the trial court found that statutory grounds existed to terminate the parental rights of Father upon its finding by clear and convincing evidence that Father had abandoned the Children by willfully failing to financially support and visit them. See Tenn. Code Ann. § 36-1-113(g)(1). Finding Father to be a putative father, the trial court also applied the statutory grounds provided in Tennessee Code Annotated § 36-1-113(g)(9)(A)(iv)-(v) to find clear and convincing evidence that Father had failed to manifest an ability and willingness to assume legal and physical custody of the Children and that placing the Children in Father’s legal and physical custody would pose a risk of substantial harm to their physical or psychological welfare. The court further found by clear and convincing evidence that termination of Father’s parental rights was in the Children’s best interest. Father has appealed. Having determined that the trial court erred in applying an amended version of Tennessee Code Annotated § 36- 1-113(g)(9)(A) not controlling in this action, we further determine the statutory grounds provided in subsection -113(g)(9)(A)(iv)-(v) to be inapplicable to Father under the controlling version of the statute. We affirm the trial court’s judgment in all other respects, including the termination of Father’s parental rights to the Children.

Greene County Court of Appeals 07/05/17
Michael Fisher v. State of Tennessee
W2016-01409-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Jerry Stokes

An individual previously convicted of a felony drug offense petitioned for restoration of his citizenship rights. The trial court restored all his citizenship rights except the right to bear arms. In doing so, the court concluded that Tennessee Code Annotated § 39-17- 1307(b), which makes it an offense for certain persons to possess a firearm, prohibited the court from restoring the right to bear arms. We affirm.

Shelby County Court of Appeals 07/03/17
Global Mall Partnership v. Shelmar Retail Partners, LLC, et al
M2016-01383-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

The landlord of a shopping mall commenced this action against a commercial tenant for breach of a lease. The tenant claimed it had an enforceable oral agreement to terminate the lease with the former landlord. The landlord contended that the original lease contained a “no oral modification” clause; thus, the oral agreement to terminate the lease was unenforceable. After the landlord presented its proof at trial, the court dismissed the case pursuant to Tenn. R. Civ. P. 41.02(2), ruling that the oral termination agreement between the tenant and the former landlord was enforceable despite the “no oral modification” clause in the lease. This appeal followed. When a defendant files a Tenn. R. Civ. P. 41.02(2) motion for involuntary dismissal at the conclusion of the plaintiff’s proof at trial, the only evidence the trial court may consider in determining whether the proof was sufficient to demonstrate a right to the relief is “the plaintiff’s proof” at trial. Tenn. R. Civ. P. 41.02(2). We have determined that the trial court erroneously considered facts and documents not found in the plaintiff’s proof. Excluding the extraneous facts and documents, the evidence presented at trial preponderates against the trial court’s factual findings and its conclusion that the landlord’s predecessor in interest and the tenant entered into a binding lease termination agreement. Accordingly, we reverse and remand for further proceedings.

Davidson County Court of Appeals 07/03/17
State of Tennessee v. Arzell A. Harmon
E2016-00551-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge G. Scott Green

Arzell A. Harmon (“the Defendant”) pleaded guilty to attempted second degree murder and was sentenced pursuant to a plea agreement to ten years at thirty percent release eligibility with the manner of service to be determined by the trial court. At the sentencing hearing, the trial court ordered the Defendant to serve his ten-year sentence in confinement. The Defendant then filed a motion for reduction of sentence pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure, which the trial court summarily denied. On appeal, the Defendant asserts that the trial court abused its discretion by denying his Rule 35 motion. Alternatively, the Defendant contends that the trial court should have converted his Rule 35 motion into a petition for post-conviction relief. Upon review, we affirm the judgment of the Knox County Criminal Court.

Knox County Court of Appeals 07/03/17
In Re: Yvonne R.
E2016-02246-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Jonathan L. Young

A circuit court adjudicated a child dependent and neglected because her mother’s mental incapacity rendered the Mother unfit to properly care for the child. Upon review, we conclude that the circuit court’s decision is supported by clear and convincing evidence, and thus, we affirm.

Cumberland County Court of Appeals 07/03/17
In Re Pacer International, Inc.
M2015-00356-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins


In this class action, stockholders sued to prevent a proposed merger alleging that the company’s board of directors had breached their fiduciary duty. After expedited discovery, the stockholders agreed to settle in consideration for disclosure of additional information that could affect approval of the merger. The court preliminarily approved the proposed settlement and ordered the company to notify all potential class members of the proposal. Only one class member objected to the proposed settlement. After a fairness hearing, the chancery court approved the settlement and denied the objector’s request for access to discovery materials obtained during the litigation. The objector appeals, arguing that the chancery court erred in denying it access to discovery and in approving the proposed settlement. Upon review, we conclude that the chancery court did not abuse its discretion. Accordingly, we affirm.

Davidson County Court of Appeals 06/30/17
In Re Jamie B., et al
M2016-01589-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Charles L. Rich

A mother appeals the termination of her parental rights to two of her children. Shortly after the filing of the petition to terminate parental rights, the juvenile court appointed counsel for the mother, who lacked the funds to afford one. However, on the day of trial, appointed counsel orally moved for leave to withdraw. The court granted the motion, and the trial proceeded with the mother representing herself. Ultimately, the court found clear and convincing evidence of five grounds for termination and that termination of the mother’s parental rights was in the children’s best interest. The mother argues on appeal, among other things, that the trial court erred in permitting her appointed counsel to withdraw. Because we agree, we vacate the judgment to the extent it terminated the mother’s parental rights and remand for further proceedings.  

Bedford County Court of Appeals 06/30/17
In Re Mariah H.
E2016-02091-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Sharon M. Green

This is a termination of parental rights case involving the child, Mariah H. (“the Child”), who was one year of age at the time of trial. On June 26, 2015, the Johnson City Juvenile Court (“trial court”) granted temporary legal custody of the Child to the Tennessee Department of Children’s Services (“DCS”). The Child was immediately placed in foster care, where she has remained since that date. Following separate hearings, the trial court entered two orders adjudicating the Child dependent and neglected in the care of the parents: one on November 25, 2015, as to the mother, Teresa H. (“Mother”), and the second on January 13, 2016, as to the father, Stafford B. (“Father”). On February 2, 2016, DCS filed a petition to terminate the parental rights of Mother and Father.1 Following a bench trial, the trial court terminated Father’s parental rights to the Child after determining by clear and convincing evidence that Father willfully failed to visit the Child during the four months prior to the filing of the termination petition. Furthermore, the trial court dismissed the grounds alleged against Father of failure to establish paternity and persistence of the conditions leading to removal. Also finding clear and convincing evidence that termination of Father’s parental rights was in the best interest of the Child, the trial court terminated Father’s parental rights to the Child. Father has appealed. Discerning no error, we affirm.

Johnson County Court of Appeals 06/30/17
In Re: Estate of James E. Miller
E2016-01047-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Dwaine B. Thomas

This is a probate case. Vickie Miller (Widow), personal representative of the estate of her late husband, James E. Miller (Decedent), petitioned the trial court for letters of administration. Decedent died intestate on July 17, 2010. At issue is the ownership of Jim Miller Excavating Company, Inc. (the corporation), the company operated by the Decedent. Widow argues that she is the owner of all of the 1,000 shares of stock that the corporation issued to “Jim Miller and Vicky [sic] Miller JTROS” shortly after the company’s incorporation on April 3, 1990. She filed a copy of the stock certificate, dated April 30, 1990. Mechelle Miller and Jamie L. Shannon, Decedent’s daughters and heirs of the estate, argue that the stock certificate was invalid and that the corporation’s assets should be part of Decedent’s estate. The daughters filed a copy of the corporation’s bylaws, in which the following language is found: “the Board of Directors shall consist of one individual, to-wit, its sole shareholder, James E. Miller.” The trial court granted Widow’s motion for summary judgment. Only Mechelle Miller appealed. We hold that there is a genuine issue of material fact as to whether the corporation’s directors and incorporators intended that the company would be owned by Decedent and Widow as joint tenants with the right of survivorship. We vacate the trial court’s summary judgment and remand for further proceedings.

Monroe County Court of Appeals 06/29/17
Nelson E. Bowers, II v. Estate of Katherine N. Mounger
E2016-01724-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael S. Pemberton

The plaintiff initiated this action, claiming, inter alia, a breach of contract. The plaintiff alleged that he was bringing the action as the assignee of a limited liability company, which was an original party to the contract at issue. The trial court granted summary judgment in favor of the defendant estate, also an original party to the contract at issue, determining that the plaintiff lacked standing to file the action. The plaintiff timely appealed. Determining that the plaintiff possessed standing, we reverse the trial court’s grant of summary judgment. We affirm the trial court’s decision to allow the estate to amend its responses to the requests for admission propounded by the plaintiff.

Roane County Court of Appeals 06/29/17
City of Gatlinburg v. Maury R. Greenstein, Et Al.
E2016-01739-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Telford E. Forgety

This appeal involves post-judgment proceedings following a final judgment in favor of the city that the appellants pay $45,175 for unpaid maintenance fees on their commercial real property. The appellants appeal the trial court’s action overruling a motion to pay the judgment by installments under the so-called “slow-pay” statute, Tennessee Code Annotated section 26-2-216. We affirm the decision of the trial court.

Sevier County Court of Appeals 06/29/17
In Re C.J.B., et al
M2016-01585-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Thomas C. Farls

This is a termination of parental rights case. The Department of Children’s Services filed a petition to terminate the parental rights of C.F.B. (mother) and J.W.B (father) with respect to their two children, C.J.B. and C.C.B. As to mother, the trial court found clear and convincing evidence of four grounds supporting termination. By the same quantum of proof, the trial court found that termination of mother’s rights is in the best interest of the children. As to father, the trial court found clear and convincing evidence of three grounds supporting termination. By the same standard of evidence, the trial court found that termination of father’s rights is in the best interest of the children. Mother and father appeal. As modified, we affirm.

Franklin County Court of Appeals 06/28/17
Erie Family Life Insurance Company v. Tiffany Dawn Sampson, et al
M2016-00541-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Ross H. Hicks

Insurer brought a declaratory judgment action asking the court to determine the proper beneficiary of the proceeds of a life insurance policy rider insuring the life of the named insured’s child; the named insured had designated her mother as the beneficiary of the policy and rider. Upon the child’s death, the named insured was prevented by law from receiving the proceeds, and the insurer asked for a declaration of whether the named insured’s disqualification also prevented the named beneficiary from receiving the proceeds or whether the estate of the child would receive the proceeds, in accordance with the designation of beneficiary in the policy. The trial court determined that the policy’s designation was inequitable and awarded the proceeds to the estate of the child.  We have determined that the disqualification of the named insured from receiving the proceeds of the policy does not invalidate the designation of beneficiary and, accordingly, reverse the decision of the trial court.

Robertson County Court of Appeals 06/28/17
Tony E. Hancock v. State of Tennessee
M2016-01501-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Robert N. Hibbett, Commissioner, TN Claims Commission

Appellant was injured in an automobile collision with a State Trooper. After a trial, the Claims Commissioner found in favor of the State and dismissed the claim. Discerning no error, we affirm. 

Court of Appeals 06/28/17
In re Rylan G., et al.
E2016-02523-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert M. Estep

This is a termination of parental rights case. The trial court terminated Appellant/Mother’s parental rights on the grounds of: (1) abandonment by failure to provide a suitable home; (2) substantial non-compliance with the permanency plan; and (3) severe child abuse. Because Appellee, Tennessee Department of Children’s Services, did not meet its burden to show that it exercised reasonable efforts to assist Mother in obtaining suitable housing, we reverse the trial court’s finding as to the ground of abandonment by failure to establish a suitable home. The other grounds for termination of Mother’s parental rights are met by clear and convincing evidence, and there is also clear and convincing evidence that termination of Mother’s parental rights is in the best interests of the children. Affirmed in part, reversed in part, and remanded.

Claiborne County Court of Appeals 06/28/17
Lisa Schnur v. James William Sherrell, III
E2016-01338-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge W. Neil Thomas, III

This appeal involves a post-divorce order of protection. Mother obtained an ex-parte order of protection on behalf of the parties’ thirteen-year-old son alleging that Father had punched the child in the mouth while drunk on a family vacation. After an evidentiary hearing, the trial court dismissed Mother’s petition for order of protection finding that she had not met her burden of proof. Mother appealed. Discerning no error, we affirm.

Hamilton County Court of Appeals 06/27/17
Lorese Douglas Jones, et al. v. Stephen W. Behrman, et al.
W2016-00643-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert Samuel Weiss

This is a medical malpractice action in which the trial court granted summary judgment for failure to file suit within the applicable statute of limitations. We affirm.

Shelby County Court of Appeals 06/27/17
Kimberly K. Carr v. Floyd K. Sutton
M2015-01568-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Barry R. Brown

The State of Tennessee filed a petition in 2013 on behalf of the mother of a child who was born in 1996 to legitimate the child and to require the father to provide health insurance for the child; the requested relief was granted.  In 2014, the mother filed a petition to set child support and, following a hearing before a juvenile court magistrate, the father was ordered to pay child support; the magistrate determined that child support should not be made retroactive to the birth of the child but, rather, to the date that the petition to have the child legitimated was filed.  Mother appealed the decision to the juvenile judge; after a de novo hearing, the juvenile judge adopted the findings of the magistrate and ordered Father to pay support of $549.00 per month from the date the petition to legitimate was filed.  Mother appeals the ruling, contending that the obligation to pay support should be retroactive to the date of the child’s birth.  Concluding that the trial court did not abuse its discretion, we affirm the judgment.  

Sumner County Court of Appeals 06/26/17
In Re: Francis P
E2016-02493-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Lawrence Howard Puckett

The appellant, Tony P., filed a “Complaint and Petition to Terminate Parental Rights and/or for Adoption” in the Circuit Court for McMinn County (“trial court”) on September 18, 2015. This petition sought to terminate the parental rights of the “unknown father” of a child for whom Tony P. had signed a voluntary acknowledgment of paternity (“VAP”). Jon F. filed a motion to intervene, asserting that he was the biological father of the child. The trial court allowed Jon F. to intervene in the action pursuant to an agreed order. The child’s mother later filed a motion seeking to dismiss Tony P.’s petition for failure to state a claim upon which relief could be granted and lack of subject matter jurisdiction. By oral motion, Jon F. joined with the mother in seeking dismissal. The trial court entered a Memorandum and Order on August 15, 2016, finding that (1) Jon F. was the biological and legal father of the child, (2) Tony P.’s VAP had been rebutted, and (3) any and all parental rights of Tony P. as legal father were “terminated by operation of law under Tenn. Code Ann. § 36-1-102(28)(C).” The trial court entered a subsequent order dismissing the petition filed by Tony P. Tony P. timely appealed. Having determined that the trial court properly found that Jon F. challenged and rebutted the VAP executed by Tony P., we conclude that Tony P. no longer enjoyed any parental rights with regard to the child. Although we determine that the trial court erred by applying Tennessee Code Annotated § 36-1-102(28)(C) retrospectively to this action filed before the statutory subsection’s enactment, we determine this error to be harmless inasmuch as Tony P.’s parental rights were a nullity. We therefore modify the judgment to reflect that Tony P. had no parental rights to be terminated following the court’s rescission of the VAP. We affirm the trial court’s dismissal of Tony P.’s petition seeking termination of Jon F.’s parental rights. We decline to award fees and costs to the mother and Jon F.

McMinn County Court of Appeals 06/26/17
Brenda Ramsey v. Cocke County, Tennessee, Et Al.
E2016-02145-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Richard R. Vance

In this wrongful death action, the decedent’s mother filed suit alleging that the county emergency communications district and the city police department refused to send help when the plaintiff called to report that her daughter was making suicidal threats and that, as a result, her daughter committed suicide later the same night. The trial court granted summary judgment in favor of the defendants on the ground that the decedent’s suicide constituted an intervening, superseding cause. Viewing the evidence in the light most favorable to the plaintiff, we conclude that the decedent’s suicide was foreseeable and that the special duty exception to the public duty doctrine applies. We, therefore, reverse the trial court’s grant of summary judgment and remand for further proceedings.

Cocke County Court of Appeals 06/23/17