Court of Appeals Opinions

Format: 09/01/2015
Format: 09/01/2015
Plastic Surgery Associates Of Kingsport Inc. v. Gregory H. Pastrick
E2014-01203-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge E. G. Moody

This action was filed against a surgeon for breach of an employment agreement by his employers, a group owned equally by four optometrists and one non-physician. The trial court found that the group was entitled to recover damages arising from the breach. The surgeon appeals. We affirm.

Sullivan County Court of Appeals 05/19/15
Davidson Pabts, LLC v. Lucien Worsham
M2014-01061-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Russell T. Perkins

This appeal arises from an action to quiet title to property that was acquired by Plaintiff at a tax sale in 2008. The former owner of the property opposed the petition contending he did not receive proper notice of the tax sale and, therefore, the sale was void. Following discovery, Plaintiff filed a motion for summary judgment contending there were no material facts in dispute and it was entitled to judgment as a matter of law. The trial court granted the motion and entered judgment quieting title in favor of Plaintiff. Defendant appeals contending the court erred in granting summary judgment because genuine issues of material facts exist concerning whether the county provided proper notice of the tax sale. He also contends the trial court failed to state the legal grounds upon which it granted the motion as required by Tenn. R. Civ. P. 56.04. We have concluded that Plaintiff filed a properly supported motion for summary judgment demonstrating that it acquired title through an order confirming the tax sale, which shifted the burden of production to Defendant to establish that a genuine dispute of material fact exists that precludes summary judgment. However, Defendant failed to carry that burden. As for Rule 56.04, the trial court failed to state the legal grounds upon which the motion was granted; however, we are able to discern from the record the grounds for granting the motion; therefore, this omission constitutes harmless error. There being no dispute of material fact concerning whether the county provided constitutionally sufficient notice of the tax sale, Plaintiff was entitled to judgment as a matter of law. Therefore, we affirm the trial court.

Davidson County Court of Appeals 05/18/15
Green Hills Neighborhood Association, et al v. The Metropolitan Government of Nashville And Davidson County Tennessee, et al
M2014-01590-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Russell T. Perkins

A developer submitted a final site plan for a mixed-use development in the Green Hills area of Nashville for approval to the Metropolitan Nashville Planning Department; the plan was approved first by the Department’s Executive Director and later by the Metropolitan Planning Commission. A neighborhood association composed of residents in the area, as well as an individual Green Hills resident, filed a petition for certiorari review of the Commission’s approval of the final site plan. Upon review of the administrative record and following a hearing, the trial court affirmed the decision and dismissed the writ with prejudice; Petitioners appeal. We concur with the trial court and affirm the decision of the Commission.

Davidson County Court of Appeals 05/18/15
Lisa Gay Love v. Federal National Mortgage Association, et al.
E2014-01649-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Michael W. Moyers

This appeal arises from a foreclosure on a deed of trust. Lisa Gay Love (“Love”) sued Federal National Mortgage Association (“FNMA”), SunTrust Mortgage, Inc. (“SunTrust”), and Self Help Ventures Fund (“Self Help”) (“Defendants,” collectively) in the Chancery Court for Knox County (“the Trial Court”) alleging that the foreclosure of her home was wrongful. Defendants filed a motion for summary judgment asserting that Love had defaulted on her mortgage, that SunTrust had exercised its power under the deed of trust to foreclose, and that FNMA had obtained a final judgment in an earlier detainer action. Love, in turn, argued that, because FNMA was not named on the deed at the time of the detainer action, FNMA lacked standing and the detainer judgment is void. The Trial Court granted Defendants’ motion for summary judgment, holding that Defendants had established res judicata. Love appeals. We hold that the judgment in the detainer action is a final judgment, that we will not revisit the issue of FNMA’s standing in that suit, and that res judicata bars Love’s claims. We affirm the judgment of the Trial Court

Knox County Court of Appeals 05/18/15
Soumya Pandey v. Manish Shrivastava
W2014-01071-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Walter L. Evans

At issue in this appeal are several divorce and post-divorce matters. We conclude that we are without jurisdiction to adjudicate the issues related to the divorce litigation, as they were not timely appealed. With respect to the post-divorce matters, we conclude that the trial court properly exercised jurisdiction over Mother’s petition to modify the parties’ parenting schedule, that the evidence does not preponderate against its decision to modify the parenting schedule, and that it did not err in its refusal to find Father in civil contempt. Exercising our discretion, we decline to award Mother discretionary costs and attorney’s fees pursuant to Tennessee Code Annotated § 27-1-122 or attorney’s fees pursuant to Tennessee Code Annotated § 36-5-103(c).

Shelby County Court of Appeals 05/15/15
State of Tennessee v. Donald Bruce Anderson, et al.
W2014-01971-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge John R. McCarroll

The trial court determined that it did not have authority to assess discretionary costs against the State in an eminent domain proceeding. It accordingly denied Defendants’ motion for discretionary costs under Rule 54.04 of the Tennessee Rules of Civil Procedure and determined that it did not have jurisdiction to make findings with respect to the reasonableness and necessity of Defendants’ costs. We affirm the trial court’s conclusion that Tennessee Code Annotated § 29-17-912 does not authorize an assessment of costs against the State in an eminent domain proceeding other than those costs that are explicitly permitted by the section.

Shelby County Court of Appeals 05/15/15
In re Grace N.
M2014-00803-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Sophia Brown Crawford

In this juvenile court proceeding, Father objects to a number of decisions made by the trial court concerning the parenting plan for the parties' child. We have determined that the trial court erred in its determinations regarding parenting time and child support. As to the latter, the trial court failed to consider Father's argument that Mother was underemployed, abused its discretion in its treatment of Mother's work-related child care expenses, and failed to properly calculate Father's income. We find no merit in any of the other issues raised by Father.

Davidson County Court of Appeals 05/14/15
Bill Stavely v. Harold Otto, et al
M2014-00477-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge George C. Sexton

This appeal arises from the remodeling of a 1940’s era block and frame house. The agreement was based on a written estimate that described the work in very general terms. The issues on appeal are whether the contractor was liable for negligent construction of several areas of the work and, if so, the amount of damages. After a bench trial, the trial court found that there was barely a meeting of the minds, but, to the extent there was a contract, the contractor was to build a bedroom addition, a garage addition, and a sunroom; the contractor was to additionally replace the porches and repair the roof. Placing significant weight on the contractor’s testimony, the trial court found that the homeowner failed to carry his burden of proof on all claims but for the negligent construction of the sunroom ceiling and roof for which the trial court awarded $12,950 in damages. Both parties appeal. The homeowner contends the trial court erred in failing to find the contractor liable for negligent construction of other areas of the work and in failing to award damages commensurate with the cost of repair. The contractor contends the court erred in finding him liable for any negligent construction and in the calculation of damages awarded the homeowner. Finding the evidence does not preponderate against the trial court’s finding that the contractor was liable for negligent construction of the sunroom ceiling and roof and the award of damages in the amount of $12,950, we affirm that award. As for the claim the contractor was negligent in failing to install roof ventilation, the trial court made no findings regarding this claim, and, following a de novo review, we have determined the contractor was negligent and thus liable for failing to install the ventilation, and we award an additional $2,500 in damages. As for all other claims, we affirm. 

Stewart County Court of Appeals 05/14/15
Bakers Construction Services, Inc. v. Greenville-Greene County Airport Authority
E2014-01395-COA-R3-CV
Authoring Judge: John W. McClarty
Trial Court Judge: Douglas T. Jenkins, Chancellor

This is a breach of contract action concerning a construction project. The plaintiff argued that the defendant's failure to provide access to the job site hampered its ability to complete the project in an efficient manner. The defendant responded that the plaintiff waived the failure to provide access to the site and that the plaintiff was the first to breach the contract by failing to provide a construction schedule. Following a bench trial, the court ruled in favor of the plaintiff. The defendant appeals. We affirm the decision of the trial court as modified to reflect an adjustment in the award of discretionary costs.

Greene County Court of Appeals 05/14/15
In re Estate of Harold Curtis Morrison
E2014-00764-COA-R3-CV
Authoring Judge: Thomas R. Frierson, II
Trial Court Judge: Ben H. Cantrell

The decedent in this estate action made inter vivos transfers of all his real and personal property to the defendant, who was the decedent's friend and caretaker. Following the decedent's death, his brother was appointed as administrator of the decedent's estate. The decedent's brother filed the instant action, questioning whether the transfers of property by the decedent were the result of undue influence by the defendant. The trial court determined that there existed no confidential relationship between the decedent and the defendant. The court ultimately found that no undue influence had been shown. The decedent's brother appeals that determination. He also appeals the trial court's ruling regarding an evidentiary matter and motions seeking the trial judge's recusal. Discerning no error, we affirm the trial court's judgment in all respects.

Rhea County Court of Appeals 05/14/15
In re: Addison B., et al.
M2014-02265-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Wayne S. Shelton

The trial court found clear and convincing evidence that Mother had abandoned her children by failing to visit and engaging in conduct prior to incarceration that exhibited a wanton disregard for the childre's welfare. The trial court then found by clear and convincing evidence that it was in the best interest of the children to terminate Mother's parental rights. Mother appealed. We affirm.

Montgomery County Court of Appeals 05/13/15
Bank of Vernon v. Larry Lunan, et al.
E2014-00023-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge John S. McLellan, III

Larry Lunan and Susan Lunan appeal the order of the Law Court for Sullivan County (“the Trial Court”) finding the Lunans not indigent. We previously affirmed the Trial Court's determination regarding indigency. As such, we find and hold that this issue is moot. We affirm

Sullivan County Court of Appeals 05/13/15
Russell H. Hippe, Jr. v. Miller & Martin, PLLC
M2014-01184-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Claudia Bonnyman

A former member of a law firm filed a complaint against the law firm in 2009 alleging breach of contract. The trial court dismissed the complaint because it was filed after the statute of limitations had run. The individual member filed another complaint in 2014, alleging a breach of the same contract. The law firm moved to dismiss the 2014 complaint on the basis that it was barred by res judicata. The trial court agreed and dismissed the 2014 complaint. The individual appealed the trial court‟s dismissal, and we affirm. We find the appeal is frivolous and grant the law firm‟s request for an award of its attorneys‟ fees and expenses.

Davidson County Court of Appeals 05/12/15
Dana A. Daniels v. Natalie Huffaker et al.
E2014-00869-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Dale C. Workman

This case involves an automobile accident in which the plaintiff's vehicle was struck by an oncoming pick-up truck when the truck's driver attempted to turn left in front of the plaintiff's vehicle. The plaintiff suffered injuries to her neck and back, as well as significant damage to her vehicle. The plaintiff brought this action, alleging negligence against the driver of the truck and negligent entrustment against the truck's owner, who was the defendant driver's brother-in-law. The plaintiff also alleged that the truck's owner was vicariously liable for damages under the family purpose doctrine. The driver of the truck was never successfully served with process and is not a party to this appeal. The defendant owner of the truck filed a motion for summary judgment. Following a hearing, the trial court granted summary judgment in favor of the defendant owner. The plaintiff appeals. Discerning no reversible error, we affirm.

Knox County Court of Appeals 05/12/15
Charles Currence v. Harrogate Energy, LLC
M2014-01263-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Andrew R. Tillman

This is an appeal from the decision of the trial court that certain separated mineral interests reverted to the surface owner of the land due to abandonment by the purported holder of the mineral interests. Discerning no error, we affirm.

Fentress County Court of Appeals 05/11/15
Martha Hungerford v. Jane Boedeker, et al.
E2014-01381-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Michael Falk

Martha Hungerford (“Plaintiff”) filed a petition seeking a declaration that Jimmy Hungerford was a child and legal heir at law of Thomas Hungerford. Plaintiff filed a motion for summary judgment. After a hearing the Chancery Court for Hawkins County (“the Trial Court”) granted Plaintiff summary judgment. James E. Price (“Defendant”) appeals the grant of summary judgment to Plaintiff. We find and hold that Plaintiff failed to comply with Tenn. R. Civ. P. 56.04 and, therefore, summary judgment should not have been granted. We vacate the grant of summary judgment and remand this case for further proceedings.

Hawkins County Court of Appeals 05/11/15
Richard K. Williams, by and through his attorney-in-fact, Jennifer Ann Rezba v. Healthsouth Rehabilitation Hospital North
W2015-00639-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge James F. Russell

This accelerated interlocutory appeal results from the trial court’s denial of Appellant’s motion for recusal. Having reviewed the trial court’s ruling on the motion for recusal pursuant to the de novo standard of review required under Tennessee Supreme Court Rule 10B, we affirm.

Shelby County Court of Appeals 05/08/15
Henriette M. Fisher v. Chandranita M. Ankton
W2014-00882-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

Plaintiff filed suit against defendant alleging negligence resulting in an automobile accident. Plaintiff procured issuance of multiple summonses, but did not return the final summons within ninety days after its issuance. Defendant filed a motion to dismiss asserting insufficiency of process, insufficiency of service of process, and expiration of the statute of limitations. The trial court granted defendant’s motion and concluded that Tennessee Rules of Civil Procedure 3 and 4.03 required dismissal when a plaintiff failed to file a return of proof of service within ninety days. Based on this finding, the trial court also concluded that plaintiff had intentionally delayed service. We reverse in part, vacate in part, and remand.

Shelby County Court of Appeals 05/05/15
David Chambers, et al. v. Illinois Central Railroad Company
W2013-02671-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Robert Samual Weiss

This appeal arises out of a negligence action brought against a railroad for damage to the plaintiffs’ home and storage building during a flood in and around Memphis, Tennessee. Railroad moved for summary judgment on the ground that the negligence claim was preemptioned by federal law and that plaintiff could not prove causation. The trial court initially denied the railroad’s motion but, on reconsideration, granted summary judgment; plaintiffs appealed. We reverse the grant of summary judgment and remand for further proceedings.

Shelby County Court of Appeals 05/05/15
Larry D. Williams v. City of Burns
M2012-02423-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Robert E. Burch

We granted permission to appeal in this case to address whether the evidence established that the plaintiff police officer was discharged solely in retaliation for conduct protected under the Tennessee Public Protection Act,Tennessee Code Annotated section 501-304, sometimes called the Whistleblower Act. The chief of police for the defendant municipality had the plaintiff police officer “fix” a traffic ticket for a relative. After the plaintiff officer complained to the mayor that the police chief had pressured him into illegal ticket fixing, the police chief discharged the plaintiff. The defendant municipality claimed that it terminated the officer’s employment because he violated the chain of command by reporting the ticket fixing to the mayor, and also because he undermined the chief’s authority with the other officers in the police department. We hold that the municipality’s assertion that it discharged the plaintiff for going outside of the chain of command amounts to an admission that it retaliated against the plaintiff for refusing to remain silent about illegal activities, conduct that is protected under the Tennessee Public Protection Act. After a review of the record, we also hold that the evidence preponderates in favor of a finding that the second reason proffered by the municipality for the officer’s discharge, that he undermined the police chief’s authority, is pretext for retaliation. Accordingly, we hold that the plaintiff was discharged solely in retaliation for conduct protected under the Public Protection Act.

Dickson County Court of Appeals 05/04/15
In re Destiny W.
M2014-01256-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Charles B. Tatum

This appeal involves the termination of Mother’s parental rights to her child. At ten and one-half weeks old, the Department of Children’s Services placed the child with guardians due to Mother’s drug use. About eighteen months after the child’s placement with the guardians, the Guardian ad Litem filed a petition for termination of parental rights. The juvenile court found statutory grounds for termination of Mother’s parental rights and that termination was in the child’s best interest. On appeal, Mother argues that the Guardian ad Litem did not have standing to file the petition to terminate parental rights and that clear and convincing evidence did not support the juvenile court’s conclusion that termination of Mother’s parental rights is in the child’s best interest. We affirm.

Wilson County Court of Appeals 04/30/15
Pinnacle Roofs Plus v. William Murphy
M2014-01286-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Roofing company filed a civil warrant against homeowner for money owed on a written contract after completion of work and homeowner refused to pay. Homeowner countered by filing a civil warrant for breach of contract alleging that roofing company was not licensed as required by Tenn. Code Ann. § 62-6-603 prior to entering into contract. The circuit court found that roofing company was licensed at all material times and awarded a monetary judgment in favor of roofing company. Homeowner appealed. Finding no error, we affirm. 

Davidson County Court of Appeals 04/30/15
Robert W. Halliman et al v. Heritage Bank et al
M2014-00244-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Ross H. Hicks

After foreclosing on three lots securing three loans, the mortgagee, Heritage Bank, sought to satisfy the outstanding deficiency by foreclosing on the debtors’ family-owned property that additionally secured these obligations. To prevent the impending foreclosure, the debtors commenced this action contending they are not liable for the deficiency because the properties sold at foreclosure for an amount materially less than their fair market value. In its answer, the bank asserted a counterclaim seeking a deficiency judgment and attorneys’ fees. At the close of the debtors’ case-in-chief, the bank moved for involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02(2). The trial court granted the motion, finding that the debtors failed to prove the fair market value of the three properties at the time of each foreclosure was materially less than the foreclosure sale prices; therefore, the debtors failed to overcome the presumption afforded by Tenn. Code Ann. § 35-5-118(b) that the foreclosure sale prices equaled the fair market value. The court then conducted a trial on the bank’s counterclaim for the deficiency and awarded the bank a judgment of $111,115.66. The trial court also awarded attorney’s fees in the amount of $55,000, which was substantially less than the bank requested. Both parties appeal. The debtors contend the trial court erred in dismissing their claim because they presented sufficient proof that the sale prices were materially less than fair market value; they also contend the bank was not entitled to recover its attorneys’ fees. The bank contends the trial court erred by reducing its fee application. We have determined the debtors failed to prove that the sales price for each of the foreclosed properties was materially less than their fair market value at the time of each sale, and we find no error with the award of attorneys’ fees. Accordingly, we affirm.

Montgomery County Court of Appeals 04/30/15
In re Mattie H.
M2014-01350-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Jere M. Ledsinger

The trial court entered an order establishing paternity and setting child support for a non-marital child. The trial court also granted J. W. B.’ s (hereinafter “Father”) oral motion to change the child’s surname from T. H.’ s (hereinafter “Mother”) to Father’s. Mother appeals only the order changing the child’s surname. We reverse.

Coffee County Court of Appeals 04/30/15
Regina D. Wiser v. Cyrus W. Wiser, Jr.
M2013-02510-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Larry B. Stanley, Jr.

Husband was ordered in an earlier proceeding to increase his alimony and child support payments to Wife. The following year, Husband filed a petition to reduce his alimony and child support payments due to a substantial and material change of circumstances. Husband alleged both that Wife was cohabitating with another person and that Husband’s income had significantly decreased. The trial court denied Husband’s petition and awarded Wife attorney’s fees. Husband appeals, and we affirm the trial court’s judgment in all respects.

Rutherford County Court of Appeals 04/30/15