Court of Appeals Opinions

Format: 06/07/2020
Format: 06/07/2020
Pamela D. Stark v. Joe Edward Stark
W2019-00650-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Robert Samual Weiss

This is an appeal from an order finding the appellant in civil contempt and ordering her incarcerated until she agreed to remove a social media post. The appellant was incarcerated for four hours before she purged herself of contempt by agreeing to remove the post. On appeal, the appellant challenges the civil contempt finding. Because the appellant has purged herself of civil contempt and was released from incarceration, we deem the issue moot and dismiss this appeal.

Shelby County Court of Appeals 01/31/20
In Re Imerald W.
W2019-00490-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Special Judge Harold W. Horne

This is a termination of parental rights case. The trial court found, by clear and convincing evidence, that mother’s parental rights should be terminated on the grounds of abandonment by the willful failure to support the child, substantial noncompliance with the permanency plans, persistence of conditions, severe child abuse, and failure to manifest an ability and willingness to assume custody or financial responsibility of the child. The trial court further found, by clear and convincing evidence, that termination was in the best interests of the child. Having reviewed the record on appeal, we affirm.

Shelby County Court of Appeals 01/31/20
Christopher Maurice Kibbe v. Mary Carolyn Kibbe
E2018-00198-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge James E. Lauderback

This post-divorce appeal concerns the father’s petition to modify his spousal support obligation, to which the mother responded with her own motions concerning the father’s failure to exercise his co-parenting time with their disabled daughter as agreed. Following a hearing, the trial court reduced the father’s spousal support obligation but ordered him to remit payment to the mother for respite care in the event that he failed to exercise his co-parenting time. The father appeals. We affirm.

Washington County Court of Appeals 01/30/20
Jada Sue Cail v. Howard Anthony Meadows
E2019-00689-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Casey Mark Stokes

The appellant in this parenting dispute has appealed the trial court’s order and the incorporated permanent parenting plan, both of which the trial court entered on December 6, 2018. Having determined that the permanent parenting plan at issue is incomplete, we further determine that the order incorporating the parenting plan is not a final order. Therefore, we dismiss this appeal for lack of subject matter jurisdiction.

Meigs County Court of Appeals 01/30/20
The Law Office of Brian T. Boyd v. Daniel Silverman
M2019-00412-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Kelvin D. Jones

Unsatisfied with the judgment it obtained in the general sessions court, the plaintiff appealed to the circuit court.  When the plaintiff failed to file a timely motion to set its appeal for trial, the circuit court adopted the judgment of the general sessions court.  The plaintiff moved to set aside the judgment, claiming excusable neglect.  The court denied the motion.  On appeal, the plaintiff argues that the court abused its discretion in denying the motion to set aside.  We affirm.

Davidson County Court of Appeals 01/29/20
In Re Conservatorship Of Laylon Eugene Perry
M2018-00971-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Howard W. Wilson

In this conservatorship action, the trial court determined that the evidence clearly and convincingly established that the respondent had a disability but did not establish that the respondent needed a conservator. The petitioner appealed. Having reviewed the evidence presented at trial, we affirm the trial court’s decision. 

Cannon County Court of Appeals 01/29/20
Romglobal, Inc. Et Al. v. Steve Miller Et Al.
E2019-00058-COA-R3-Cv
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

The plaintiff corporation filed an action for breach of contract, claiming that the defendants had failed to recognize the plaintiff’s ownership in a limited liability company that was allegedly based on an oral agreement between the plaintiff and defendants. The trial court dismissed the plaintiff’s claims, determining that the plaintiff had failed to present clear and convincing evidence establishing the parties’ agreement that the plaintiff would have an ownership interest in the company. The plaintiff has appealed. Discerning no reversible error, we affirm.

Sevier County Court of Appeals 01/29/20
Freida Louise Climer v. Stephen Franklin Climer
W2018-01910-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor James F. Butler

This is a divorce action. Husband appeals the trial court’s division of marital property and award of alimony to Wife. Discerning no error, we affirm.

Madison County Court of Appeals 01/29/20
Deborah Balzer v. Joseph Balzer
E2019-00576-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Telford E. Forgety, Jr.

Following a divorce, husband and wife agreed that wife was to receive monthly alimony payments from husband for eight and a half years. The last four years of payments were contingent upon husband attaining the rank of airline captain. The type of alimony awarded was never specified. Wife later remarried and cohabitated with her new husband. Husband filed for a modification alleging that the alimony was transitional alimony and therefore statutorily modifiable upon wife’s cohabitation with a third person. See Tenn. Code Ann. § 36–5–121(g)(2)(C) (2019). Wife instead argued that the alimony awarded was alimony in solido and therefore not modifiable except by agreement of the parties. See Tenn. Code Ann. § 36–5–121(h)(2). The trial court held that the expressly conditional nature of the alimony rendered it more properly classifiable as transitional alimony. The court terminated husband’s alimony obligation based upon wife’s remarriage and cohabitation with her new husband. Wife appeals. Discerning no error, we affirm.

Sevier County Court of Appeals 01/28/20
In Re: Kelsea L.
E2019-00762-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Thomas J. Wright

This appeal involves the termination of a father’s parental rights based on the ground of abandonment by willful failure to visit and willful failure to support. The father appeals. We reverse the trial court’s finding of willful failure to support but affirm the trial court’s finding of willful failure to visit and its determination that termination of parental rights is in the best interest of the child. Accordingly, we affirm termination of the father’s parental rights.

Hawkins County Court of Appeals 01/27/20
Brent G. Pitchford v. Loves Truck Stop
M2019-02262-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This appeal arises out of an inmate’s lawsuit alleging that an employee of Loves Truck Stop filed a false police report. The trial court dismissed the suit on September 4, 2019, for failure to file an affidavit of indigency and failure to comply with Tenn. Code Ann. § 41-21-407. The inmate, Brent G. Pitchford, filed a notice of appeal with the clerk of this court on December 16, 2019. 

Davidson County Court of Appeals 01/24/20
Joel David Cormier v. Pat Hankins Et Al.
E2018-00396-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Beth Boniface

A prisoner filed suit against a fellow inmate and several county defendants. The county defendants filed a motion to dismiss for failure to state a claim. The trial court granted the motion to dismiss and dismissed the prisoner’s cause of action as to the county defendants. The prisoner appealed. Because the order appealed does not dispose of all of the prisoner’s claims against all defendants, we dismiss the appeal for lack of a final judgment.

Greene County Court of Appeals 01/24/20
Pamela Cotham v. Nicholas Jay Yeager Et Al.
E2019-00423-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert E. Lee Davies

The plaintiff filed this action seeking to recover damages on behalf of Anderson County based upon the plaintiff’s allegations that the defendants had submitted false claims for payment by the county. The trial court dismissed the action, determining that the plaintiff’s amended complaint had failed to state a claim upon which relief could be granted. The plaintiff has appealed. Discerning no reversible error, we affirm the trial court’s judgment of dismissal.

Anderson County Court of Appeals 01/24/20
Gary Fisher v. Villages At Henley Station, LLC, Et Al.
M2018-01990-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge J. Mark Rogers

This appeal involves a slip and fall premises liability claim filed by a tenant against his landlord.  The trial court granted summary judgment to the landlord because the tenant’s evidence did not show that the allegedly dangerous condition was in existence as of the date of the lease or that the landlord had actual or constructive notice of the allegedly dangerous condition.  The tenant appeals.  Discerning no error, we affirm.

Rutherford County Court of Appeals 01/24/20
In Re Michael W. Et Al.
E2019-00107-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Ronald Thurman

Mother appeals the termination of her parental rights on grounds of abandonment, substantial noncompliance with permanency plans, and persistence of conditions. Because the record on appeal contains no permanency plans that apply to the children at issue in this case, we reverse the substantial noncompliance with permanency plans ground for termination. We affirm the remaining grounds for termination, as well as the trial court’s best interest finding.

Cumberland County Court of Appeals 01/23/20
Bakersouth, LLC v. Green Hills Mall TRG, LLC, Et Al.
M2018-02129-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Claudia Bonnyman

This appeal involves a long-running dispute among neighboring property owners over a parking easement near the Green Hills Mall that was formerly owned by the Metropolitan Government of Nashville and Davidson County in connection with its operation of a public library.  The chancery court declared that the plaintiff now owns fee simple title to its lots in addition to the easement appurtenant over the defendants’ lots for parking purposes.  The defendants appeal.  We affirm and remand for further proceedings. 

Davidson County Court of Appeals 01/23/20
Benigo Cruz v. Sherman Byrd
E2019-00444-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge L. Marie Williams

This is an appeal regarding the breach of a lease agreement between Mr. Cruz, the landlord, and Mr. Byrd, the tenant. Mr. Cruz initiated this action against Mr. Byrd because he did not pay any rent for the term of the lease. Mr. Byrd argued that he was not obligated to pay rent because the lease was rendered void and unenforceable upon discovery of a city ordinance that prohibited the intended use of the Property. We disagree. There was no evidence, and Mr. Byrd did not assert, that Mr. Cruz took any action that would violate the agreement; he was able to exercise his right to occupy the Property for the entire term of the lease. Therefore, the lease was enforceable. Furthermore, the lease provided Mr. Byrd a right to terminate if the designated use of the Property was prohibited by law; he did not invoke this remedy. Thus, Mr. Byrd was obligated to pay the rent owed under the lease. Finding no error in the trial court’s decision, we affirm.

Hamilton County Court of Appeals 01/23/20
Snake Steel, Inc. v. Holladay Construction Group, LLC
M2019-00322-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ellen H. Lyle

A subcontractor sought statutory penalties against a prime contractor based on the contractor’s failure to comply with the Prompt Pay Act’s requirement that any retainage withheld be deposited into an interest-bearing escrow account as set forth in Tenn. Code Ann. § 66-34-104(a). The prime contractor moved to dismiss the complaint, asserting that the claim was barred by the one-year statute of limitations applicable to statutory penalties, Tenn. Code Ann. § 28-3-104(a)(1)(C). The trial court granted the prime contractor’s motion and dismissed the complaint. On appeal, we hold that the discovery rule applies to this type of claim for statutory penalties under the Prompt Pay Act and remand for further proceedings.

Davidson County Court of Appeals 01/22/20
Nena Proffitt Valentine v. Fred Holt et al.
E2019-00186-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert E. Lee Davies

The original plaintiff filed this action to set aside a quitclaim deed and died while the case was still pending. When no motion for substitution of party was filed within 90 days of the original plaintiff’s death being suggested on the record, the defendants filed a motion to dismiss. The original plaintiff’s son filed a response and requested that he be substituted as the plaintiff. Finding excusable neglect, the trial court denied the motion to dismiss and allowed the original plaintiff’s son to be substituted as the plaintiff. The trial court determined that the quitclaim deed was valid and conveyed to the defendants four tracts of land but did not convey a fifth tract due to an inadequate description of the property. The defendants appealed the trial court’s decision. We affirm the trial court’s denial of the motion to dismiss, but we vacate the trial court’s decision regarding the adequacy of the property description and remand for further proceedings.

Cocke County Court of Appeals 01/22/20
Alexander J. Bynum, et al. v. Mark D. Sampson, et al.
W2019-00188-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor W. Michael Maloan

This appeal concerns an alleged breach of contract. Alexander Bynum and his father, Hal Bynum, (“the Bynums,” collectively) bought a slaughterhouse owned by Mark D. Sampson (“Defendant”) and his then-wife Kimberly Sampson (“the Sampsons,” collectively) and kept it running as Southern Chop Shop, LLC. The contract for sale provided that all plumbing systems would be in working order on the day of closing. A year after closing, the Bynums discovered a pipe on the property that was gushing animal blood straight from the kill floor of the slaughterhouse into a ditch. Defendant knew about but had not disclosed the pipe. The State became involved and demanded a halt to the discharge. When remedial efforts proved economically unfeasible, the Bynums shut down the slaughterhouse. The Bynums and Southern Chop Shop, LLC (“Plaintiffs,” collectively) sued the Sampsons for breach of contract in the Chancery Court for Weakley County (“the Trial Court”). The Trial Court found for Plaintiffs, ordering rescission or, if that is not possible, a monetary judgment against the Sampsons. Defendant appealed and argues that the plumbing system was in working order on the day of closing notwithstanding the blood-gushing pipe. We disagree and find that, contrary to the representations made by Defendant and relied upon by the Bynums, the plumbing system was not in working order on the day of closing. Defendant, therefore, breached the contract. We affirm the judgment of the Trial Court.

Weakley County Court of Appeals 01/21/20
Rose Coleman v. Bryan Olson
M2019-00176-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Ross H. Hicks

This is the second time this dispute has been before this court. The appeal arises from a violation of Tenn. Code Ann. § 36-4-106(d)(2), which prohibits a divorcing party from “canceling, modifying, terminating, assigning, or allowing the lapse” of any insurance policy that provides coverage to either spouse or their children without the consent of the other spouse, a court order, or abatement of the action. In this case, the wife modified her life insurance policy by replacing her husband with her mother as the sole beneficiary of the policy during the pendency of a divorce action and without the husband’s consent or a court order. The wife died one week later, which caused an abatement of the divorce action. After the insurance company remitted the proceeds of approximately $393,000 to the wife’s mother, the husband commenced this action to recover the proceeds. Following the first trial, the trial court found the wife intended to remove the husband and substitute their minor child as the insurance beneficiary, and it awarded the proceeds to the child. Both parties appealed. In the first appeal, we reversed the trial court and, after applying an equitable-balancing test, awarded the proceeds to the husband. See Coleman v. Olson, No. M2015-00823-COA-R3-CV, 2016 WL 6135395, at *15 (Tenn. Ct. App. Oct. 20, 2016) [hereinafter Coleman I]. The Tennessee Supreme Court affirmed our use of an equitable-balancing test but determined there was insufficient evidence to decide the merits on appeal. Coleman v. Olson, 551 S.W.3d 686, 697 (Tenn. 2018) [hereinafter Coleman II]. Thus, the Supreme Court remanded the case to the trial court with instructions to hear additional evidence and, after considering the equities of the parties, “remedy the violation of the statutory injunction by awarding all or a portion of the life insurance benefits to either or both parties.” Id. at 688. However, the Court did not identify the equitable factors to consider. Following an evidentiary hearing on remand, the trial court found the equities weighed in favor of the husband receiving the insurance proceeds. The wife’s mother appeals, contending the trial court erred in determining that the equities between the parties weighed in favor of depriving her of the insurance proceeds. We have determined that the trial court’s ruling was based on the erroneous determination that the court was limited to two options, enforcing the policy based on the beneficiary designation when the statutory injunction went into effect or enforcing the policy based on the beneficiary designation when the divorce action abated, instead of having the discretion to award a portion of the proceeds to each party based on the equities. Recognizing that the purpose of the § 106(d)(2) injunction was merely to preserve the status quo, not to make the ultimate determination of the rights of the parties to the proceeds, we have determined that the husband was entitled to an amount necessary to prevent an “unjust result” due to the wife’s inability to assist in caring for the parties’ minor child or to provide financial support to care for and educate the child until he reaches the age of majority. Having considered the financial benefits and burdens resulting from the wife’s death, we modify the judgment to award the husband a lump sum based on a support payment of $500.00 a month calculated from the month of the wife’s death until the minor child turns eighteen. Because the husband has been receiving a monthly payment of $500.00 since the trial court ordered the clerk of the court to remit such monthly payments out of the insurance proceeds on deposit with the clerk, the aggregate sum the husband has received from the clerk shall be deducted from the lump sum awarded to the husband. The wife’s mother shall be awarded the balance of the insurance proceeds on deposit with the clerk. We also vacate the judgment awarded against the wife’s mother and the award of prejudgment interest to the husband. The case is remanded to the trial court for further proceedings consistent with this opinion.

Montgomery County Court of Appeals 01/21/20
In Re C.L. Et Al.
E2018-02032-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Daniel G. Boyd

C.A. (petitioner) filed a petition to terminate the parental rights of H.L. (mother) and R.L. (father) with respect to their two children, C.L. and A.L. (the children). The trial court found clear and convincing evidence to terminate mother and father’s parental rights on two grounds: abandonment by willful failure to support and persistent conditions. The court also found clear and convincing evidence that termination of mother and father’s parental rights is in the best interest of the children. Both parents appeal. We vacate the trial court’s finding that there is clear and convincing evidence to terminate mother and father’s parental rights on the ground of abandonment by willful failure to support. Nevertheless, we affirm the court’s order terminating mother and father’s parental rights because there is clear and convincing evidence that termination is supported by the ground of persistent conditions and is in the best interest of the children.

Hawkins County Court of Appeals 01/21/20
In Re Aubrie W.
E2019-00862-COA-R3-PT
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge John S. McLellan, III

This is an appeal from the termination of the father’s parental rights. The trial court found the petitioners had proved that the father abandoned the child by willfully failing to visit, willfully failing to support the child, and exhibiting conduct showing a wanton disregard for the child’s welfare and that termination of the father’s parental rights, was in the child’s best interest. Following the entry of the order terminating his rights, the father appealed. Finding the record does not clearly and convincingly establish the ground of abandonment by wanton disregard, we reverse the trial court’s determination on that ground; however, the record clearly and convincingly established the other two grounds and that termination of the father’s parental rights is in the child’s best interest. Therefore, we affirm the termination of the father’s parental rights.

Sullivan County Court of Appeals 01/21/20
In Re Ronon G.
M2019-01086-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael E. Spitzer

Mother appeals the termination of her parental rights to her two children on grounds of abandonment by failure to establish a suitable home, substantial noncompliance with permanency plans, and persistence of conditions. We conclude that two grounds were not applicable to Mother’s younger child because she was not removed from Mother’s home. Because at least one ground was supported by the evidence as to each child, and the evidence clearly and convincingly shows that termination is in their best interest, we affirm the overall termination of Mother’s parental rights as modified.

Lewis County Court of Appeals 01/16/20
Jacqueline Graybill McSurley v. Michael Glen McSurley
M2019-02016-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Phillip R. Robinson

This appeal arises out of a Final Decree of Divorce entered on June 19, 2019, and the denial of the husband’s post-judgment motions. Because the husband did not file his notice of appeal within the time required by Tenn. R. App. P. 4, we dismiss the appeal.

Davidson County Court of Appeals 01/16/20