Court of Appeals Opinions

Format: 08/01/2014
Format: 08/01/2014
Lisa M. Paterson Potter v. Scott D. Paterson
E2013-01569-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor G. Richard Johnson

This post-divorce case involves the application of Supreme Court Rule 40A, which governs the appointment, role and duties of a guardian ad litem. The guardian ad litem in this case, Janice Russell, was appointed on November 7, 2008. She filed a motion requesting the court to hold her ward’s father, appellant Scott D. Paterson (“father”), in contempt. After father filed a response pointing out that Rule 40A, § 9(a)(4) did not authorize a guardian ad litem to file a contempt motion, the trial court, in response, entered an order on March 17, 2010, appointing Ms. Russell “attorney ad litem.” Subsequently, Rule 40A, § 9 was amended to allow a guardian ad litem to “take any action that may be taken by an attorney representing a party pursuant to the Rules of Civil Procedure.” After the amendment took effect, Russell referred to herself in her filings as “guardian ad litem.” The trial court followed suit in its final order. On January 20, 2011, the trial court entered an order that disposed of all matters relating to custody of the child. More than a year later, father filed a petition to modify his child support. On May 16, 2013, the guardian ad litem filed a “motion for emergency hearing and motion for contempt.” On May 20, 2013, the trial court conducted a hearing, after which it entered an order holding father in contempt on four counts, sentencing him to 40 days in jail, suspending all of his parenting time, and reducing contact with his daughter to one telephone call per week. Father appeals. We hold that, pursuant to Supreme Court Rule 40A, § 5, the guardian ad litem’s appointment terminated when, with the passage of time, the court’s order disposing of the custody matters became final. Hence, the guardian ad litem had no authority to file her motion for “emergency hearing” and for contempt. We reverse the judgment of the trial court.

Johnson County Court of Appeals 05/28/14
Tanya L. Cooper v. Virginia A. Everett
W2013-02865-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge James F. Russell

Because the order appealed is not a final judgment, this Court lacks jurisdiction to hear this matter. Thus, the appeal is dismissed.

Shelby County Court of Appeals 05/28/14
In the Matter of: Jamazin H. M.
W2013-01986-COA-R3-PT
Authoring Judge: Judge Christy R. Little
Trial Court Judge: Presiding Judge Alan E. Highers

This appeal involves the termination of a father’s parental rights on numerous grounds. We affirm the trial court’s finding that grounds for termination exist, due to incarceration under a ten year sentence, severe child abuse, persistent conditions, and abandonment by an incarcerated parent, and we affirm the trial court’s finding that termination is in the child’s best interest. We vacate the trial court’s finding of willful failure to pay child support but otherwise affirm the order as modified.

Madison County Court of Appeals 05/28/14
James G. Akers v. McLemore Auction Company, LLC, Et Al.
M2012-02398-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Plaintiff in action to recover for negligence, professional negligence, breach of duty, constructive fraud, constructive breach of contract, and inducement of failure to perform a lawful contract, appeals dismissal of various parties and claims; plaintiff also appeals a portion of the jury instructions, the jury’s verdict awarding him $474.00, and the denial of his motion for a new trial. We affirm the trial court’s judgment.

Davidson County Court of Appeals 05/27/14
City of Gatlinburg v. Stuart H. Kaplow, et al.
E2013-01941-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This case presents issues regarding the interpretation and enforceability of an agreed order entered into between the parties before the Gatlinburg Board of Appeals and Adjustments (the “Board”). Defendant, Stuart H. Kaplow, leases certain real property improved with rental units from defendant, Maury R. Greenstein, which property is located within the City of Gatlinburg. The City of Gatlinburg (the “City”), through its building official, issued notices of condemnation to the defendants regarding certain units on this property and informed the defendants that the units would be demolished if repairs were not made. The defendants appealed to the Board. During those proceedings, the parties entered into an agreement with respect to the property and memorialized this agreement in the form of a written order, which was signed by the defendants and their counsel. A few months later, the City filed the instant action, seeking a declaration that (1) the defendants’ further attempts to appeal to the Board were void and ineffectual pursuant to the terms of the agreed order and (2) the defendants had materially breached the agreed order such that the City had no obligation to issue building permits. Following a bench trial, the trial court found that the defendants had materially breached the terms of the agreed order. The court also found that the defendants had forfeited their right to further appeal to the Board. The court therefore ruled that the City could demolish the condemned units and impose a lien against the real property for the demolition and cleaning costs. Defendants have appealed. Discerning no error, we affirm.

Sevier County Court of Appeals 05/27/14
City of Townsend v. Anthony Damico
E2013-01778-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge David R. Duggan

This appeal presents the issue of whether the City of Townsend (“the City”) properly issued a citation for trespass to the defendant, Anthony Damico, when he exited the Little River onto private property in order to avoid crossing a dam on his inner tube. The Townsend Municipal Court upheld the citation and issued Mr. Damico a fine. Mr. Damico appealed to the Blount County Circuit Court for a trial de novo. The circuit court held that Mr. Damico had a right to portage around the dam and that he was denied this right when he was confronted by an agent of the private property owner. The circuit court further held that Mr. Damico did not engage in trespass when he traversed private property because he was seeking to avoid further confrontation, which the court found constituted justifiable cause. Therefore, the circuit court dismissed the citation. The City of Townsend appeals. We reverse and remand for reinstatement of the trespassing citation and fine.

Blount County Court of Appeals 05/27/14
In Re A Transfer Of Structured Settlement Payment Rights By Laurel J. Shanks
E2013-01702-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Thomas J. Wright

The respondent financial services company appeals the trial court’s entry of an order approving a transfer of the payee’s structured settlement payment rights to the petitioner financial services company and its assignee, pursuant to Tennessee’s Structured Settlement Protection Act (“SPPA”). See Tenn. Code Ann. §§ 47-18-2601 to 2607 (2013). The trial court found that the transfer at issue met all statutory requirements. On appeal, the respondent company raises the issue of whether the transfer order contravened two prior court orders partially transferring the payee’s structured settlement payment rights to the respondent and if so, whether this contravened applicable law under the SSPA. Discerning no error, we affirm.

Hamblen County Court of Appeals 05/27/14
Frank W. Wilson, et al. v. TMBC, LLC
E2013-01907-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Rex Henry Ogle

The plaintiff took his bass fishing boat to defendant’s business for it to repair a “rodbox lid” that did not fit properly. While the boat was there, defendant replaced the lid. Subsequently, plaintiff went to the defendant’s store and got in the boat, which was on a trailer in the parking lot, in order to examine the new lid. While attempting to exit the boat, plaintiff caught his foot on something, tripped, and fell out of the boat. Plaintiff’s theory was that an employee of the defendant had negligently left the old rodbox lid inside the boat and that plaintiff tripped over the old lid. At the close of plaintiff’s proof, defendant moved for a directed verdict, arguing that plaintiff failed to prove breach of duty because, according to defendant, he offered no evidence of the object that caused his fall; and defendant could not, as a matter of law, be liable because plaintiff was at least 50% at fault for his injuries. The trial court directed a verdict for defendant. We hold that plaintiff presented sufficient proof that the old lid caused him to trip and fall, and that a reasonable trier of fact could conclude that the employee had negligently caused plaintiff’s injury. We further hold that the question of comparative fault is properly for the jury to decide under the proof presented at this trial. We therefore vacate the directed verdict and remand for further proceedings.

Sevier County Court of Appeals 05/27/14
Winfred Errol Ankton v. Chandranita Michelle Ankton
W2013-02152-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Kenny W. Armstrong

The parties to this action were divorced in Shelby County, Tennessee in 2002. The parties had one child together during the marriage. Pursuant to the original parenting plan, Mother had primary custody of the child. Father remarried and moved to Arkansas in 2003. In 2003, Father brought an action in the trial court charging Mother with contempt and petitioning the court to award him custody of the child. The trial court granted Father’s petition, and the child moved to Arkansas to live with Father. In 2012, Father was granted permission by the court to relocate to Texas with the child. In 2013, Mother brought this action in the trial court charging Father with contempt and petitioning the court to award her custody of the child once again. The trial court dismissed Mother’s petitions, ruling that Tennessee no longer had exclusive, continuing jurisdiction over custody issues related to the child. On appeal, we affirm the trial court’s ruling.

Shelby County Court of Appeals 05/27/14
Griffith Services Drilling, LLC, et al. v. Arrow Gas & Oil, Inc.
E2013-01349-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Donald R. Elledge

Griffith Services Drilling, LLC (“Griffith”) and Lexington Insurance Company, Griffith’s insurance company, sued Arrow Gas & Oil, Inc. (“Arrow”) for property damage caused by a fire that occurred while Arrow was refueling a drilling rig operated by Griffith in Anderson County, Tennessee (“the Drilling Site”). Arrow answered the complaint and counterclaimed for breach of contract based upon Griffith’s refusal to pay for the fuel delivered by Arrow on the day of the fire. Arrow also filed a motion to dismiss for spoliation, which the Circuit Court for Anderson County (“the Trial Court”) granted dismissing Griffith’s claims against Arrow. Arrow then filed a motion for summary judgment on its counterclaim, which the Trial Court granted in part. Griffith appeals to this Court raising issues regarding the dismissal of their claims and the grant of summary judgment to Arrow. We find and hold that both Griffith and Arrow were guilty of spoliation, and, therefore, that dismissal of Griffith’s claims was not an appropriate sanction. We vacate the dismissal of Griffith’s claims against Arrow and reinstate them. Because the Trial Court granted Arrow summary judgment based upon its decision on the issue of spoliation, and we have vacated the Trial Court’s decision on the issue of spoliation, we also vacate the grant of summary judgment to Arrow.

Anderson County Court of Appeals 05/27/14
Donald Lester Benedict v. Gretchen Michelle Benedict
E2013-00978-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor W. Frank Brown, III

This appeal concerns numerous post-divorce issues. Donald Lester Benedict (“Husband”) filed a petition to modify his child support obligation against his former wife Gretchen Michelle Benedict (“Wife”) in the Chancery Court for Hamilton County (“the Trial Court”). The parties eventually raised a host of issues about money, which were referred to a Special Master. Wife objected to certain of the Master’s findings. Ultimately, the Trial Court sustained certain of Wife’s objections to the Master’s report and denied others. The Trial Court found, inter alia, that Husband was willfully or voluntarily underemployed. Husband appeals, and both parties raise several issues. We reverse the Trial Court as to its finding that Husband is willfully or voluntarily underemployed and those issues related to this finding. We remand for the Trial Court to make new determinations on these issues in light of our holdings that Husband was not willfully or voluntarily underemployed, and that Husband’s income for purposes of child support is $75,000 per year as found by the Master. Otherwise, we affirm the judgment of the Trial Court.

Hamilton County Court of Appeals 05/27/14
Summer Ann-Michelle MIller v. Richard Anthony McFarland
M2013-00381-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge John H. Gasaway, III

In this post-divorce modification of alimony case,Husband contends that the trial court erred in concluding that his alimony obligation was not subject to modification. We reverse the trial court’s judgment and conclude that Husband’s alimony obligation constitutes transitional alimony that is subject to modification pursuant to Tennessee Code Annotated Section 36-5-121(g)(2). Reversed and remanded.
 

Robertson County Court of Appeals 05/23/14
Ashley Purdy v. Matthew C. Smith
M2012-02463-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge James Y. Ross

This case involves the difficult issue of disestablishment of paternity and its effect on child support arrears. Over a year after the trial court entered an order requiring the respondent to pay child support, he requested Rule 60 relief on the grounds that he was not the biological father of the child. Based upon the statutory prohibition against the retroactive modification of child support and the related caselaw, we must affirm the trial court’s decision denying the respondent Rule 60 relief for any time period prior to the filing of his petition.

Wayne County Court of Appeals 05/23/14