Court of Appeals Opinions

Format: 08/21/2014
Format: 08/21/2014
Vodafone Americas Holdings Inc. & Subsidiaries v. Richard H. Roberts, Commissioner of Revenue, State of Tennessee - Dissent
Authoring Judge: Presiding Judge Frank G. Clement , Jr.
Trial Court Judge: Judge Russell T. Perkins

I respectfully dissent from the majority’s conclusion that the facts of this case empowered the Commissioner of Revenue to issue a variance from the statutorily mandated apportionment methodology by which Plaintiffs mus tcompute their Tennessee franchise and excise tax liability. The Commissioner’s authority under Tenn. Code Ann. § 67-4-2014(a) to issue a variance is limited byRule 1320-6-1-.35(1)(a)(4) to “unusual fact situations,which ordinarily will be unique and nonrecurring,” and no such facts are specifically articulated in the Commissioner’s variance letter and no such facts can be found in this record.

Davidson County Court of Appeals 06/23/14
Vodafone Americas Holdings Inc. & Subsidiaries v. Richard H. Roberts, Commissioner of Revenue, State of Tennessee
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Russell T. Perkins

At issue in this case is the methodology by which multi-state taxpayers are to compute their liability for franchise and excise taxes to Tennessee and, specifically, the authority of the Commissioner of Revenue to require the taxpayers to use an apportionment methodology other than the standard cost of performance methodology codified in Tenn. Code Ann. §§ 67-4-2012and67-4-2110.Plaintiffs,taxpayers thatprovide wirelesscommunication anddata services within and without Tennessee, contend they are entitled to apportion their receipts (income) based upon Tennessee’s standard apportionment formulas because the majority of their “earnings producing activities” occurred in a state other than Tennessee. The Commissioner of Revenue disagreed, insisting that Plaintiffs’ approach, even if statistically correct and derived from the language of Tenn. Code Ann. § 67-4-2012(i)(2), fails to meet the higher goal of fairly representing the business Plaintiffs derive from Tennessee. For this reason the Commissioner, acting pursuant to Tenn. Code Ann. § 67-4-2014(a), varied the standard formula requiring Plaintiffs to include “as Tennessee sales” its receipts from service provided to customers with Tennessee billing addresses.The trialcourtaffirmedthedecision. In this appeal, Plaintiffs contend the Commissioner does not have authority to impose a variance unless “unusual fact situations,” which are unique to the particular taxpayers, produce “incongruous results” unintended by Tenn. Code Ann. § 67-4-2012; they also insist that no unusual fact situations exist and that no incongruous results occurred when the statutorily-mandatedcostofperformancemethodologywas applied.We have determined that the Commissioner acted within the scope of the discretion granted to him by the statutes and rules. Therefore, we affirm the trial court’s decision.

Davidson County Court of Appeals 06/23/14
Austin Davis, Et Al v. Covenant Presbyterian Church, Et Al
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Carol Soloman

Plaintiffs sued four individual defendants and three religious institutions for invasion of privacy; malicious harassment; assault; intentional infliction of emotional distress; negligence; negligent hiring, training, supervision and retention; and civil conspiracy. The trial court dismissed all of plaintiffs’ causes of action for failure to state a claim upon which relief can be granted. We affirm the dismissal of plaintiffs’ claims against two of the religious institutions for failure to state a claim for vicarious liability. We also affirm the trial court’s dismissal of plaintiffs’ claims for invasion of privacy; malicious harassment; intentionalinfliction of emotionaldistress;negligence;negligenthiring,training,supervision and retention; and civil conspiracy. However, having liberally construed the complaint as we must at this stage of the pleading process, we find the complaint states a cause of action for assault against the individual defendants and one of the religious institutions. Therefore, we must reverse the trial court’s dismissal of the plaintiffs’ allegation of assault and affirm the court in all other respects.

Davidson County Court of Appeals 06/23/14
Wise North Shore Properties, LLC v. 3 Daughters Media, Inc., Et Al.
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor W. Frank Brown

Wise North Shore Properties, LLC (“Plaintiff”) appeals the order of the Chancery Court for Hamilton County (“the Trial Court”) dismissing Plaintiff’s claims against Gary E. Burns. We find and hold as a matter of law that Mr. Burns executed the contract at issue in this case both in his capacity as CEO of 3 Daughters Media, Inc. and in his individual capacity personally guaranteeing the contract. We, therefore, reverse the Trial Court’s June 18, 2013 order dismissing Plaintiff’s claims against Mr. Burns.

Hamilton County Court of Appeals 06/23/14
Deborah Mason Hawkins, Individually and as Administratrix of the Estate of Wayne Hawkins, Deceased, v. Rodney A. Martin, M.D., and Baptist Memorial Hospital
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge John R. McCarroll, Jr.

This appeal involves compliance with the statutory requirements for a health care liability action. The plaintiff filed a health care liability lawsuit. The attorney for the plaintiff inadvertently failed to provide the defendant health care providers with medical authorizations that complied with T.C.A. § 29-26-121(a)(2)(E). The defendants filed a motion to dismiss. The trial court granted the defendants’ motion, finding no extraordinary cause to justify noncompliance with the statutory requirement. The plaintiff filed his first appeal. The appellate court vacated the trial court’s decision and remanded the case for the trial court to consider the totality of the circumstances, including those of the attorney. After additional discovery on remand, the trial court again held that the plaintiff had not established extraordinary cause for noncompliance with the statutory requirement, and so dismissed the lawsuit. The plaintiff again appeals. After a careful review of the record, we find no abuse of the trial court’s discretion and affirm.

Shelby County Court of Appeals 06/23/14
Kathy Hudson v. William T. Hudson
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Van D. McMahan

This divorce appeal involves the division of marital property. The husband claims the trial court erred in its valuation of the marital assets and in its overall distribution of the marital estate. Discerning no error, we affirm.

McNairy County Court of Appeals 06/23/14
Willie Campbell & Ulysses Campbell, Sr. v. Memphis-Shelby County Airport Authority
Authoring Judge: Judge Robert Samual Weiss
Trial Court Judge: Presiding Judge Alan E. Highers

This case involves a plaintiff who fell outside the Memphis International Airport and sued the Airport Authority for negligence. The trial court granted summary judgment to the defendant Airport Authority, finding, based on the undisputed facts, that the plaintiffs and their witnesses are unable to identify what caused the fall. Plaintiffs appeal. We affirm and remand for further proceedings.

Shelby County Court of Appeals 06/20/14
Morgan Keegan & Company, Inc. v. Michael Starnes, et al.
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Walter L. Evans

The trial court vacated an arbitration award in favor of Petitioner/Appellant Morgan Keegan & Company, Inc., on the basis of “evident partiality” and remanded the matter for rearbitration before a different panel. We reverse and remand for further proceedings consistent with this Opinion.

Shelby County Court of Appeals 06/20/14
Mary Lisa Gaston Luplow v. Martin Duane Luplow
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Phillip R. Robinson

This is an appeal in a divorce case, where Wife appeals the classification and division of marital property and debt, the calculation of the division of the proceeds from the sale of the marital residence, the dismissal of the contempt petition she filed against Husband, and the failure to award her attorney fees. Husband appeals the classification of certain real property and the division of marital debt; he also requests his fees on appeal. We modify the judgment allocating the marital debt and awarding $16,691 to Wife as alimony in solido; we affirm the judgment in all other respects

Davidson County Court of Appeals 06/19/14
Jeffrey Wade Myrick v. Gloria Denise Myrick
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Tom E. Gray

The issue presented in this case is whether alimony in futuro was properly terminated by the trial court. The parties entered into a marital dissolution agreement, which provided that Husband/Appellee would pay Wife/Appellant alimony in futuro until death, remarriage, or “until a third person not the Wife’s child, moves into the Wife’s residence.” The marital dissolution agreement was incorporated, by reference, into the final decree of divorce. Thereafter,Wife’s mother moved into Wife’s home,and Husband filed a motion to terminate his support obligation based upon the occurrence of the suspending condition. The trial court granted Husband’s petition, finding that the parties’ agreement for alimony in futuro was contractual in nature and that the unambiguous language mandated cessation of Husband’s support obligation when Wife’s mother moved into Wife’s home. Based upon the provision for attorney’s fees in the parties’ marital dissolution agreement, the trial court also awarded Husband his attorney’s fees and costs. Wife appeals. Discerning no error, we affirm and remand.

Sumner County Court of Appeals 06/19/14
In Re Brennen T.
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This is a termination of parental rights case. After the Appellants filed a termination petition against Biological Parents, Mother filed a counter-claim for malicious use of process, kidnapping, and perjury. The trial court dismissed the termination petition, but failed to rule on Mother’s counter-claim. Accordingly, we dismiss this appeal for lack of a final judgment.

Robertson County Court of Appeals 06/19/14
Ashley Evans v. Nigel M. Reid
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Mike Faulk

At an earlier time, Ashley Evans (“the petitioner”) filed a petition against Nigel M. Reid (“the respondent”) seeking an order of protection. The trial court dismissed the petition due to “[in]sufficient cause.” In the same order, however, the court found “proof of the need of a restraining order.” Accordingly, the court restrained the respondent from coming about, calling or harassing the petitioner or her family. Several years later, the respondent asked the court to void the restraining order, which, on its face, was still in effect. The court refused. The respondent appeals. We reverse the trial court and hold that (1) the trial court was without jurisdiction to issue the restraining order and (2) the restraining order is, consequently, null and void.

Hamblen County Court of Appeals 06/19/14
Practical Ventures, LLC d/b/a AAA Cash Fast v. James Neely, Commissioner of the Tennessee Department of Labor and Workforce Development, and Danyelle A. McCullough
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Kenny W. Armstrong

This is an appeal from an administrative decision on unemployment benefits. The appellee Tennessee Department of Labor and Workforce Development held that the claimant employee was “constructively discharged” and was therefore eligible for unemployment benefits. The appellant employer filed a petition for judicial review of the administrative decision. The chancery court affirmed, and the employer appeals. We hold that the doctrine of constructive discharge is inapplicable to proceedings under the unemployment compensation statutes. The facts as found by the administrative tribunal support a holding that the employee voluntarily terminated her employment. For this reason, we conclude that the administrative decision awarding benefits to the employee is not supported by substantial and material evidence and is arbitrary and capricious. Accordingly, we reverse.

Shelby County Court of Appeals 06/19/14