Court of Appeals Opinions

Format: 12/02/2016
Format: 12/02/2016
Emily Joyce Collins v. William Michael Collins
M2014-02417-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor J. Mark Rogers

Parties in divorce proceeding entered into an agreement on the day of trial, memorialized in writing, disposing of the marital assets and debts, adopting a parenting plan, and agreeing “as a division of marital assets” that Wife would “receive the sum of $2,100.00 per month directly from Husband’s military pension.” Husband filed motions both before and after the final decree was entered, seeking to modify the agreement by removing the provision that required him to pay $2,100.00 to Wife on the ground that the $2,100.00 payment exceeded fifty percent of his military retirement and included a monthly payment for service-related disability pay. The trial court denied Husband’s motions and he appeals. Finding no error, we affirm the holding of the trial court.

Rutherford County Court of Appeals 08/01/16
Robert Dionne O'Neal v. Mark Goins, et al
M2015-01337-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

Plaintiff, whose rights of citizenship had been restored, brought action against the state coordinator of elections and election commission for declaratory, injunctive, and other relief, asserting that the Defendants had improperly refused to restore his right to vote. On motion of Defendants, the trial court dismissed the complaint with prejudice for lack of subject matter jurisdiction and failure to state a claim for relief; the court also denied plaintiff’s application to amend his complaint to assert a claim for mandamus. Finding no error, we affirm the dismissal of the complaint and denial of the application to amend; we modify the judgment to make the dismissal without prejudice.  

Court of Appeals 07/29/16
Michael A. Roberts v. Xaviera C. Forrest
M2015-00230-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ross H. Hicks

This appeal arises from a change in the primary residential parent for two minor children. Mother and Father divorced in Oklahoma. After Mother and the children moved to Tennessee, Father petitioned to modify the joint custody plan adopted in the Oklahoma divorce proceeding. Father alleged a material change in circumstance based upon Mother’s violations of the joint custody plan and Mother’s interference with Father’s relationship with the children. Following a hearing, the trial court found a material change in circumstance and that naming Father the primary residential parent was in the best interest of the children. While not contesting that a material change in circumstance occurred, on appeal, Mother asserts that a change in primary residential parent was not in the children’s best interest. After reviewing the record, we do not find the evidence preponderates against the trial court’s best interest findings. We affirm the judgment of the trial court.

Montgomery County Court of Appeals 07/29/16
Jason Richard Madden v. Jill Cara Madden
M2015-01301-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: M2015-01301-COA-R3-CV

In this divorce action, Father appeals the trial court’s classification of the marital residence as an asset and the division of the marital estate. He also challenges the designation of Mother as the primary residential parent and the residential schedule. For her issue, Mother contends she should be granted exclusive authority to make all major decisions regarding the child due to the parents’ inability to agree upon such matters. We affirm the trial court’s classification and division of the marital estate. We also affirm the designation of Mother as the primary residential parent and the parenting plan with one exception. The parenting plan directs major decisions concerning the child be made jointly by Mother and Father. Because the evidence preponderates in favor of the finding that the parents are unable to agree upon matters concerning the child’s education and non-emergency healthcare, we remand with instructions to modify the parenting plan by awarding Mother sole decision-making authority regarding such matters. See Tenn. Code Ann. § 36-6-407(b) (“The court shall order sole decision-making to one (1) parent when . . . [b]oth parents are opposed to mutual decision making;”).

Williamson County Court of Appeals 07/28/16
MR Hotels, LLC v. LLW Architects, Inc. et al
M2015-00840-COA-R9-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia C. Bonnyman

This interlocutory appeal arises out of the design and construction of a six-story hotel. The owner of the hotel sued LLW Architects, Inc. for breach of contract based on an AIA Standard Form of Agreement Between Owner and Architect. The owner also asserted claims for professional liability against LLW and its principal architect, Dell Livingston, alleging the breach of a duty of care in carrying out their professional services. The trial court summarily dismissed all claims against LLW and Mr. Livingston as time barred by the three-year statute of limitations for damage to real property: Tenn. Code Ann. § 28 3 105. Portions of the hotel first opened for business on May 30, 2007, and the hotel was approved for final use and occupancy on June 26, 2007. Plaintiff commenced this action on October 20, 2010. The owner-architect agreement states that the statutes of limitations for “[c]auses of action between the parties to this Agreement” begin to run on “the date of Substantial Completion.” The accrual provision also states that “[i]n no event shall such statutes of limitations commence to run any later than the date when the Architect’s services are substantially completed.” The agreement defines “Substantial Completion” as “the stage of progress of the Work when the Work or designated portion thereof is sufficiently complete . . . so that the Owner can occupy or utilize the Work for its intended use . . . .” The agreement also defines “date of Substantial Completion” as “the date certified by the Architect . . . .” The trial court held that the accrual provisions applied to the individual architect because Plaintiff’s claims against him were based on duties specified in the architectural agreement. The trial court also determined that June 1, 2007 was the date of Substantial Completion because the hotel was being used for its intended purpose on that date. We respectfully disagree, having determined that LLW and Mr. Livingston were not entitled to summary judgment because they failed to establish the elements of their affirmative defense based on the statute of limitations. Accordingly, we reverse and remand for further proceedings.

Davidson County Court of Appeals 07/28/16
In Re Kendra P. et al.
E2015-02429-COA-R3-PT
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Dwight E. Stokes

Mother appeals the termination of her parental rights to her seventeen-year-old daughter. We have concluded that the Department failed to prove by clear and convincing evidence that it is in the child’s best interest to terminate her mother’s parental rights in part because the child is seventeen years old, is not a candidate for adoption, and intends to maintain a relationship with Mother when she turns eighteen. Therefore, we reverse the termination of Mother’s parental rights to her seventeen-year-old daughter.

Sevier County Court of Appeals 07/28/16
In Re Joshua C.
E2016-00081-COA-R3-PT
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Brian J. Hunt

The mother of a child born in January 2015 appeals the termination of her parental rights. In March 2015, the two-month-old child was placed in state custody after the Department of Children’s Services received a referral that the child had been exposed to drugs in utero. Thereafter, the juvenile court adjudicated the child dependent and neglected and found that the mother had committed severe child abuse as defined in Tenn. Code Ann. § 37-1-102(b)(21). The mother did not appeal this order. In June 2015, the Department filed a petition for termination of parental rights. After a hearing, the trial court found the evidence clearly and convincingly established that the mother committed severe child abuse and that termination of the mother’s parental rights was in the child’s best interests. We affirm.

Anderson County Court of Appeals 07/28/16
State of Tennessee Ex Rel. Kathlene D. Waldo v. Jennifer L. Waldo
E2015-01438-COA-R3-JV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Dennis Humphrey

In this child support arrearage case Jennifer L. Waldo (“Respondent”) appeals the June 24, 2015 order of the Juvenile Court for Roane County (“the Trial Court”) finding Respondent in civil contempt and sentencing Respondent to incarceration in the Roane County Jail with the incarceration held in abeyance so long as Respondent pays at least $50.00 per month toward child support. We find and hold that no evidence was introduced showing that Respondent had the present ability to pay $50.00, or any amount, and, therefore, the order finding Respondent in contempt and sentencing her to incarceration held in abeyance was in error. We reverse the Trial Court’s June 24, 2015 order, and we dismiss this case.

Roane County Court of Appeals 07/28/16
Unitta Sue Newman v. Guardian Healthcare Providers, Inc., et al
M2015-01315-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Amanda J. McClendon

On August 4, 2013, Kevin Beazley, a resident at Middle Tennessee Mental Health Institute (MTMHI), attacked Billy Joe Newman, another patient and resident, causing injuries that resulted in Newman’s death. His widow, Unitta Sue Newman (plaintiff), brought this action against several corporations (defendants) that provided nursing and medical staff to MTMHI. The trial court dismissed the complaint with prejudice, on the grounds that it was governed by the Tennessee Health Care Liability Act (THCLA), and plaintiff did not comply with either the pre-suit notice requirement of Tenn. Code Ann. § 29-26-121 (Supp. 2015), or the certificate of good faith requirement of § 29-26-122 (2012). Plaintiff argues that the allegations of her complaint fall under the “common knowledge” exception to the general rule requiring expert testimony to establish medical negligence, and, thus, she was not required to file a certificate of good faith. She asserts that the trial court should have dismissed her complaint without prejudice. Because plaintiff’s negligence claims involve matters of professsional medical knowledge, judgment, and treatment not within the common knowledge of ordinary lay persons, we affirm.

Davidson County Court of Appeals 07/27/16
Matthew Jordan, Sr. v. City of Memphis
W2015-01994-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Kenny W. Armstrong

At its scheduled meeting, the City of Memphis Pension Board denied by voice vote a Memphis police officer's request for benefits. At some point in time, which is unclear from the record, the Board approved minutes from its meeting, which reflected the denial of the police officer's request. The police officer filed a petition for writ of certiorari, seeking judicial review of the Board's decision. The police officer supported his petition with an oath but failed to include a recitation indicating that the petition was his first application for the writ. The City of Memphis moved to dismiss the petition for lack of subject matter jurisdiction on the basis of the missing recitation. The trial court granted the motion. On appeal, the police officer argues that the missing recitation did not deprive the trial court of subject matter jurisdiction. In addition to the missing recitation, the City argues that the trial court also lacked subject matter jurisdiction because the petition was not filed within sixty days from the Board‟s decision on the request for benefits. We vacate the judgment of dismissal and remand for further proceedings.

Shelby County Court of Appeals 07/27/16
In Re Daymien T.
E2015-02527-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Daniel G. Boyd

The trial court terminated Father’s parental rights on grounds of substantial noncompliance with a permanency plan and persistent conditions. The trial court also found that termination was in the child’s best interest. Discerning no error, we affirm.

Hawkins County Court of Appeals 07/27/16
In Re Selena L. et al.
E2015-02059-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge J. Michael Sharp

This is a termination of parental rights case regarding the parental rights of the mother, Brandy L. (“Mother”) to her minor children, Selena L. and Isabella H., ages five and two respectively when the termination action was filed (collectively, “the Children”). Mother voluntarily placed Selena L. in the custody of a relative in 2009, shortly after the child’s birth. On April 13, 2012, the Hamilton County Juvenile Court (“juvenile court”) placed the Children into the custody of the maternal great-grandmother, Vickie R. (“Petitioner”), upon Petitioner’s filing an action for custody. On August 25, 2014, Petitioner filed petitions in the Bradley County Circuit Court (“trial court”) seeking to terminate the parental rights of Mother and to adopt the Children. Following a bench trial, the court terminated Mother’s parental rights to the Children after determining by clear and convincing evidence that Mother had abandoned the Children by: (1) willfully failing to visit them, (2) willfully failing to financially support them, and (3) exhibiting a wanton disregard toward their welfare. The trial court further found by clear and convincing evidence that terminating Mother’s parental rights was in the best interest of the Children. Mother has appealed. We reverse the trial court’s finding that Mother abandoned the Children by willfully failing to support them during the determinative four-month period. We affirm the trial court’s judgment in all other respects, including the termination of Mother’s parental rights to the Children.

Bradley County Court of Appeals 07/27/16
In Re: A.E.T.
M2015-01193-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Timothy R. Brock

DCS filed a petition to terminate the parental rights of T.E.W. (Father) to his child, A.E.T. (the Child), on two grounds. Following a bench trial, the court entered a termination order, finding, by clear and convincing evidence, that Father had been sentenced by a federal court to a term of imprisonment of more than ten years, at a time when the Child was not yet eight years of age. The court also found that termination was in the Child’s best interest. DCS had sought to terminate Father’s parental rights based on abandonment by wanton disregard, but the trial court initially declined to do so. After the trial, DCS realized that the parties had made a mutual mistake, the result of which was to render invalid the sole ground for termination found by the trial court. At the request of DCS, the trial court re-opened the proof. In light of additional evidence, the court entered a new order that terminated Father’s parental rights, this time finding DCS had established the ground of wanton disregard by clear and convincing evidence. The court adopted its earlier holding regarding the Child’s best interest. Father appeals. We affirm the judgment of the trial court as modified.  

Coffee County Court of Appeals 07/26/16
John Michael Thayer v. Jennifer Lynn Thayer
M2015-00194-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Philip E.Smith

This appeal arises from post-divorce efforts to modify child support. The father agreed, in the original parenting plan, to pay the tuition for a program for children with autism in lieu of child support. Subsequently, the parties agreed to enroll their child in a private school for children with learning challenges, and the father voluntarily paid the tuition. Several years later, the mother filed a petition for modification of child support after the father refused to continue paying the tuition. After a hearing, the trial court found a significant variance between the child support obligation in the agreed parenting plan and the presumed amount of child support under the Tennessee Child Support Guidelines. The court calculated a new child support amount after finding that the father was voluntarily underemployed and allocating additional income to him based on his earning potential. The court also ordered an upward deviation for extraordinary educational expenses and awarded the mother a portion of her attorney’s fees. Upon review of the record, the evidence does not preponderate against the trial court’s factual findings, and we find no abuse of discretion in the trial court’s decision. Therefore, we affirm and remand this case for a determination of the amount of the mother’s reasonable attorney’s fees on appeal.

Davidson County Court of Appeals 07/26/16
In Re Jacqueline G. et al.
M2015-02156-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Stella L. Hargrove

The mother and stepfather of two children filed a petition to terminate the parental rights of the children’s father. Father was incarcerated when the petition was filed and had not visited or supported the children during the four months preceding his incarceration. Father was released in February 2015 after serving more than three years in prison on a theft of property charge and admitted at trial that the oldest child “might remember” him but that the youngest child would not. Nevertheless, Father testified that he had been sober for more than four years, had started his own business, had paid child support since his release, and wanted to restore his relationship with his children. While the petition was pending, Mother, who also had a history of drug and alcohol abuse, was arrested for driving under the influence. After a two-day trial, the court found that two grounds for termination had been proved; however, the court found that Mother and Stepfather had failed to prove by clear and convincing evidence that termination of Father’s parental rights was in the best interest of the children. The trial court’s best-interest findings were based in part on findings that Father had “turned his life around” and was addressing his addiction while Mother, who admitted to having a “very serious, addiction to alcohol,” was not realistically dealing with her addiction. Mother and Stepfather appeal contending the trial court erred by considering Mother’s DUI and addiction when it was Father who was the subject of the petition. They also contend the evidence demonstrated that it was in the best interest of the children to terminate Father’s parental rights. We find no error with the trial court’s consideration of Mother’s addiction in its best-interest analysis because Tenn. Code Ann. § 36 1 113(i) expressly authorizes consideration of factors other than the enumerated factors when determining the best interest of a child. Furthermore, the evidence does not preponderate against the trial court’s finding that Mother and Stepfather failed to prove by clear and convincing evidence that it is in the children’s best interest to terminate Father’s parental rights. Therefore, we affirm.

Maury County Court of Appeals 07/26/16
In re S.D.D.
W2015-02300-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge James R. Reid

This case involves an effort to terminate parental rights. The Department of Children’s Services filed a petition to terminate the parental rights of E.D. (Mother) with respect to her child, S.D.D. (the Child). The trial court found clear and convincing evidence of four grounds supporting termination. The court also found, by the same quantum of proof, that termination is in the best interest of the Child. Mother appeals. We affirm.

Haywood County Court of Appeals 07/26/16
Theodore Elaster, Jr. et al. v. Hamilton County Department of Education et al.
E2015-02241-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge W. Neil Thomas, III

This appeal arises from an alleged assault of a student by a school employee.  April Elaster (“Mother”) filed a lawsuit against the Hamilton County Department of Education, Dean of Students Edward Rowe (“Rowe”), and part-time school administrator Carol Thomas (“Thomas”) (collectively, “Defendants”) in the Circuit Court for Hamilton County (“the Trial Court”) on behalf of her minor son, Theodore Elaster, Jr. (“the Child”).  Mother alleged that Rowe assaulted the Child, and her various counts arose from that alleged assault.  After a trial, the Trial Court entered judgment in favor of Defendants, finding that any collision between Rowe and the Child was unintentional.  Mother appeals to this Court.  We find that the evidence does not preponderate against the Trial Court’s finding that the alleged assault did not happen, and this finding serves to defeat all of Mother’s claims.  We affirm the judgment of the Trial Court.

Hamilton County Court of Appeals 07/26/16
George Thomas Kirby v. Mable Dean Kirby
M2015-01408-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ross H. Hicks

In this divorce action, the trial court fashioned a division of the parties’ marital property without determining values for several items of personal property and amounts of certain debt and without reference to the statutory factors. The trial court also awarded the wife alimony in futuro in the amount of $1,500 per month and attorney’s fees in the amount of $5,000. The husband has appealed. Due to the lack of factual findings regarding the basis for the trial court’s marital property distribution, we vacate that portion of the judgment and remand the issue to the trial court for entry of appropriate findings of fact and conclusions of law. Because we have vacated the trial court’s distribution of marital property, we must also vacate and remand the issues of alimony and attorney’s fees for reconsideration by the trial court once an equitable distribution of marital property has been fashioned. The wife’s claim seeking attorney’s fees incurred on appeal is denied.

Montgomery County Court of Appeals 07/25/16
In re Estate of Alys Harris Lipscomb
W2015-02277-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Karen D. Webster

Appellants appeal from an order that was not final pursuant to Rule 58 of the Tennessee Rules of Civil Procedure. Accordingly, we dismiss this appeal for lack of subject matter jurisdiction.

Shelby County Court of Appeals 07/25/16
Jack Helmboldt et al v. Michael R. Jugan et al.
E2015-01664-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor John F. Weaver

This appeal concerns certain declarations of covenants and restrictions (i.e., a buffer easement) on a piece of property. The purchasers of the property filed a motion for summary judgment arguing that the foreclosure by the bank on its superior mortgage extinguished by operation of law any covenants and restrictions recorded after the bank’s deed of trust was recorded. The trial court granted summary judgment in favor of the purchasers. The holders of the buffer easement containing the covenants and restrictions appeal. We affirm.

Knox County Court of Appeals 07/25/16
Carla Landrum et al v. Methodist Medical Center et al.
E2015-01733-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Donald Ray Elledge

This is a premises liability action in which the plaintiffs, a husband and wife, filed suit against the defendant hospital for personal injuries and other damages resulting from wife’s slip and fall. The trial court granted the defendant’s motion for summary judgment, holding that the plaintiffs failed to demonstrate defendant’s actual or constructive knowledge of the dangerous condition by failing to proffer material evidence establishing the cause, source, or duration of the dangerous condition. The plaintiffs appeal. We affirm the decision of the trial court.

Anderson County Court of Appeals 07/25/16
Christopher Denton v. Edna Taylor et al.
E2015-01726-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

This case arises out of a head-on automobile accident that resulted in the death of Howard Taylor, the driver of one of the cars, and serious injuries to Christopher Denton (plaintiff), the other driver. Plaintiff brought this negligence action against the decedent’s widow, Edna Taylor, and his estate. There were no witnesses to the accident, and plaintiff has no memory of what happened. Some fifteen months after the complaint was filed, the sole remaining defendant, Edna Taylor, moved for summary judgment, arguing that plaintiff’s evidence was insufficient to establish causation. In support of the motion, defendant filed the affidavit of the officer who investigated the accident, in which he stated that he “wasn’t able to locate any roadway evidence that indicated the point of impact.” After a hearing on defendant’s motion, plaintiff filed a motion asking the trial court to grant him more time to obtain and file an accident reconstruction “report.” The court denied the motion and granted summary judgment on the ground that plaintiff provided no evidence establishing that the decedent’s negligence caused the accident. We affirm.

Hamilton County Court of Appeals 07/25/16
Denver Napier et al v. Gail Howard et al.
E2015-01222-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

Gail Howard purchased at auction a subdivision lot in Grainger County. The deed to Howard’s lot, as well as the deeds to the other lots in the subdivision, contains a restrictive covenant prohibiting “single wide mobile homes.” Howard converted her lot into a campground with sixteen camper trailer sites for rent. Denver Napier, Sheryl Napier, and Jeffrey Bryant (collectively the plaintiffs), each of whom had purchased a lot in the subdivision, filed a complaint against Howard seeking an injunction enjoining her from using her property as a campground. They based their complaint on the restrictive covenant against “single wide mobile homes.” The trial court held that the restrictive covenant prohibited, in the court’s words, “camping trailers and/or single wide mobile homes” in the subdivision. Accordingly, the trial court permanently enjoined Howard and all other owners of lots from having, again in the court’s words, “camping trailers/single wide mobile homes” on their property. Howard appeals. We affirm.

Grainger County Court of Appeals 07/25/16
Wilma J. White v. James Dale White, Jr.
M2015-02388-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Kristi M. Davis

This is an appeal of an order denying Husband’s motion to alter or amend the trial court’s judgment modifying Husband’s alimony obligation. Husband argues that he was not provided adequate notice that a hearing held on July 6, 2015 was the final hearing in the matter and was therefore deprived of due process. We affirm.

Clay County Court of Appeals 07/22/16
Amanda Parker Jones v. Parker Jones
W2015-01304-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor George R. Ellis

Because the order appealed is not a final judgment, we dismiss the appeal for lack of subject matter jurisdiction. Tenn. R. App. P. 3(a).

Gibson County Court of Appeals 07/22/16