Court of Appeals Opinions

Format: 04/30/2017
Format: 04/30/2017
Hannah Turner Ex Rel. Liam Turner v. Charles Michael Howe, et al.
M2015-02386-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Justin C. Angel

This appeal involves in personam jurisdiction over the Appellees, Georgia and Alabama corporations. The trial court granted Appellees’ Tennessee Rule of Civil Procedure 12.02(2) motions to dismiss for lack of personal jurisdiction. Appellants appeal. Discerning no error, we affirm and remand.

Marion County Court of Appeals 12/20/16
Kobie Turner v. City of Memphis
W2015-02510-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

Appellee sued the City of Memphis, alleging that he was injured in a car accident caused by a police officer employed by the City. After a bench trial, the trial court ruled in Appellee’s favor, awarding him $90,000.00 in damages. Appellant appeals. On appeal, Appellant argues that the trial court erred when it found that Appellee had proven that Appellant was the proximate cause of Appellee’s injuries and when it awarded Appellee what Appellant deemed to be an excessive amount of damages. We affirm.

Shelby County Court of Appeals 12/20/16
In re Lynx C.
E2016-01568-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Timothy E. Irwin
This appeal involves the termination of a mother’s parental rights. The Tennessee Department of Children’s Services (“DCS”) removed the child at issue from the mother’s home prior to his first birthday. Four months later, DCS filed a petition to terminate the mother’s parental rights. The juvenile court found clear and convincing evidence of two grounds for termination and that termination of the mother’s parental rights was in the child’s best interest. We, however, conclude that DCS did not prove by clear and convincing evidence that the mother abandoned the child by willful failure to support. Because the record contains clear and convincing evidence of the remaining ground— abandonment by willful failure to visit—and that termination was in the best interest of the child, we affirm.
 
Knox County Court of Appeals 12/20/16
Aarene Contracting, LLC v. Krispy Kreme Doughnut
E2016-01155-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Pamela A. Fleenor

A contractor sued an owner for violations of the Prompt Pay Act, Tenn. Code Ann. §§ 66-34-101 et seq., and notified the owner of its violations by Federal Express and e-mail. The owner moved for summary judgment on the ground that the contractor failed to strictly comply with the notice provision requiring notice be sent by registered or certified mail, return receipt requested. The trial court found strict compliance was required and dismissed the contractor's claims under the Act. The contractor appealed, and we reverse the trial court's judgment, holding substantial compliance is sufficient under the facts of this case.

Hamilton County Court of Appeals 12/20/16
In Re Casey C., et al
M2016-01344-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Tim Barnes

This is a termination of parental rights case. Mother/Appellant appeals the termination of her parental rights to three minor children on the grounds of: (1) abandonment by failure to provide a suitable home; (2) abandonment by willful failure to support; and (3) persistence of the conditions that led to the children’s removal from Appellant’s custody. The trial court also found, by clear and convincing evidence, that termination of Appellant’s parental rights is in the children’s best interests. Discerning no error, we affirm.

Montgomery County Court of Appeals 12/19/16
Monica Chamberlain v. Myra Danielle Brown
E2015-01658-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Douglas Jenkins

Monica Chamberlain (“Grandmother”) sued Myra Danielle Brown (“Mother”) seeking to be awarded grandparent visitation with Mother's child Talan B. (“the Child”) pursuant to Tenn. Code Ann. § 36-6-306. After a trial, the Circuit Court for Greene County (“the Trial Court”) entered its judgment awarding Grandmother visitation with the Child after finding and holding, inter alia, that Grandmother had proven that Mother had denied visitation, that Mother had failed to rebut the presumption that denial of visitation may result in irreparable harm to the Child, that Grandmother and the Child had a significant existing relationship, and that visitation was in the best interest of the Child. Mother appeals to this Court. We find and hold that the evidence does not preponderate against the Trial Court's findings, and we affirm

Greene County Court of Appeals 12/19/16
Jeanie Holsclaw v. Ivy Hall Nursing Home, Inc. - Dissent
E2016-02178-COA-T10B-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jean A. Stanley

I cannot concur in the majority’s conclusion that Judge Stanley’s “personal extrajudicial knowledge” created “an appearance of impropriety . . . under Canon 2.11 of the Code of Judicial Conduct necessitating recusal.” Therefore, I respectfully dissent

Carter County Court of Appeals 12/19/16
Jeanie Holsclaw v. Ivy Hall Nursing Home, Inc. - Concurring
E2016-02178-COA-T10B-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Jean A. Stanley

I concur in the opinion as authored by Judge Stafford and write separately to reiterate the conclusion that nothing in the record leads me to believe that the trial judge is biased or prejudiced for or against any party or that there was any improper motive in the court’s contact with Dr. Mulkey. As gatekeeper of the expert opinion evidence proffered at trial, the court has the responsibility under Tenn. R. Evid. 702 and 703 to determine whether the evidence “will substantially assist the trier of fact to understand the evidence or to determine a fact at issue and whether the facts and data underlying the evidence indicate a lack of trustworthiness.” McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997). The record fully supports the trial court’s statement that the purpose of the call to Dr. Mulkey was to gain basic knowledge of the field of rehabilitation counseling, a discipline taught at the University of Tennessee. My concern, and what leads me to conclude that recusal is appropriate in this case, is the limited and specific nature of the court’s inquiry and how that inquiry could reasonably create the appearance of impropriety

Carter County Court of Appeals 12/19/16
Jeanie Holsclaw v. Ivy Hall Nursing Home, Inc.
E2016-02178-COA-T10B-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Jean A. Stanley

When asked to rule on the defendant‘s motion for physical examination by a certified rehabilitation counselor, the trial judge telephoned the director of a university department for information regarding the program in order to determine whether rehabilitation counselors "are even qualified to testify as experts." The trial judge disclosed the communication on the record and granted the examination. Later, the defendant filed a motion to recuse. The trial judge denied the motion and this accelerated interlocutory appeal followed. Because the trial judge learned information concerning facts in dispute from an extrajudicial source, we conclude that recusal is required by Canon 2.11 of the Tennessee Code of Judicial Conduct

Carter County Court of Appeals 12/19/16
In Re Jakob., et al
M2016-00391-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donna Scott Davenport

Upon petition of the Tennessee Department of Children’s Services (“the Department”), the trial court terminated the parental rights of Mother. We reverse the trial court’s determination that Mother willfully failed to support her children prior to her incarceration and its determination that she failed to substantially comply with the requirements of the family permanency plans created in this case. However, clear and convincing evidence supports the remaining grounds for termination relied upon by the trial court, as well as the trial court’s determination that the termination of Mother’s parental rights is in the children’s best interest. Accordingly, we affirm the termination of Mother’s parental rights.

Rutherford County Court of Appeals 12/15/16
Linda K. Guthrie v. Rutherford County, Tennessee, et al.
M2015-01718-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Howard W. Wilson

Plaintiff, a special education assistant, was injured at work when two middle school students were roughhousing in a school hallway and one was pushed into her, causing her to fall. She sued Rutherford County for negligence, pursuant to the Tennessee Governmental Tort Liability Act, alleging that, inter alia, her injuries were caused by the County’s failure to properly supervise the students, whom she also sued. After a bench trial, the court rendered judgment in favor of the defendants. Plaintiff appeals the judgment with respect to the County, contending that the court erred in holding that the County was immune from suit, that the evidence preponderated against certain findings of the court, and that the court erred in concluding that the County’s agents had not acted negligently. Discerning no error, we affirm the judgment.

Rutherford County Court of Appeals 12/15/16
Andrew Hirt, et al. v. Metropolitan Board Of Zoning Appeals Of The Metropolitan Government Of Nashville And Davidson County Tennessee
M2015-02511-COA-R3-cV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal concerns a local zoning board’s denial of a permit to replace an old billboard with a new digital billboard. After the zoning board denied the permit for the new billboard, the applicants who had requested the permit filed a petition for a writ of certiorari in chancery court. The chancery court found no basis to disturb the zoning board’s denial of a permit based upon its review of the administrative record. Although the applicants have appealed from the chancery court’s decision, we conclude that we cannot reach the merits of their appeal. Because the applicants did not file a petition for a writ of certiorari that complied with Tennessee Code Annotated section 27-8-106 within sixty days of the zoning board’s order, we conclude that the chancery court was without subject matter jurisdiction to review the zoning board’s actions. We accordingly vacate the chancery court’s order and dismiss this case.    

Davidson County Court of Appeals 12/15/16
In re La'Trianna W., et al.
E2016-01379-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Timothy E. Irwin

This is a termination of parental rights case. Appellant/Mother appeals the trial court’s termination of her parental rights to two minor children on the ground of mental incompetence and on its finding that termination of Appellant’s parental rights is in the children’s best interests. Discerning no error, we affirm.

Knox County Court of Appeals 12/15/16
K.G.R., by and through his parents, Rachel Riffe and Jeffrey v. Union City School District, et al.
W2016-01056-COA-R9-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jeff Parham

This is a negligence case involving the alleged sexual assault of a 13-year-old special education student by another 13-year-old special education student in a school bathroom. The trial court determined that the Appellant school district was not entitled to summary judgment as a matter of law because there was a question of fact as to whether the incident was foreseeable. We conclude that there is no dispute of material fact and that summary judgment in favor of the school district should be granted. Reversed and remanded.

Obion County Court of Appeals 12/14/16
Charlesan Woodgett, et al v. John R. Vaughan, Jr., et al
M2016-00250-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Robert L. Jones

This appeal arises from a jury trial. The plaintiff filed a premises liability suit against the defendant-homeowners after she allegedly fell and sustained injuries while viewing the defendants’ home as a prospective buyer. After a two-day jury trial, the jury returned a verdict in favor of the defendant-homeowners, finding that they were not at fault for the plaintiff’s injuries. The plaintiff raises numerous issues on appeal. We affirm.      

Maury County Court of Appeals 12/13/16
Tracy Vann Knocke v. James Joseph Knocke
E2016-01347-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Lawrence Howard Puckett

The Final Judgment of Divorce entered in this case reserved the issue of the division of any deficiency indebtedness resulting from the foreclosure of the parties’ marital residence prior to the time of trial.  The Permanent Parenting Plan, incorporated into the Final Judgment, also indicated that the precise amount of child support, as a portion of the total support payment ordered by the trial court, had yet to be determined.  As such, it is clear that the order appealed from does not resolve all issues raised in the proceedings below.   As a result of this jurisdictional defect, we lack jurisdiction to consider this appeal. 

Bradley County Court of Appeals 12/12/16
Jana Maria Deboe Howard Sisco v. Robert Glynn Howard
M2015-01928-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

Jana Maria Deboe Howard Sisco (“Mother”) appeals the March 31, 2015 order of the Circuit Court for Montgomery County (“the Trial Court”) modifying the Permanent Parenting Plan entered when Mother and Robert Glynn Howard (“Father”) divorced. Mother raises issues regarding whether a material change in circumstances justifying a modification had occurred and, if so, whether a modification was in the best interest of the parties’ minor children. We find and hold that the March 31, 2015 order fails to comply with Tenn. R. Civ. P. 52.01. We, therefore, vacate the March 31, 2015 order and remand this case to the Trial Court to make specific findings of fact and conclusions of law in compliance with Tenn. R. Civ. P. 52.01. 

Montgomery County Court of Appeals 12/12/16
John Anthony Gentry v. Katherine Wise Gentry
M2016-01765-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joe Thompson

Appellant seeks review of three appellate judges’ denial of his motion asking them to recuse themselves. We find no bias, and no error, in the matters appellant raises and therefore deny the motion to recuse the judges.

Sumner County Court of Appeals 12/09/16
William Lane Lanier v. Corie J. Lanier
M2014-02293-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor J. B. Cox

The Mother and Father of three children were divorced in 2007; in the parenting plan Father was designated primary residential parent, and Mother and Father received equal parenting time. Five years after entry of the plan, the trial court found a material change in circumstances with respect to the oldest child; determined that modification of the parenting plan was in her best interest; and reduced Mother’s parenting time with that child. Seven months later, Mother filed a petition to modify the plan; Father answered and filed a counter-petition for contempt and modification of the parenting plan based on changed circumstances. A hearing was held on both petitions and the trial court entered an order which, inter alia, gave Father sole decision-making responsibility with respect to each of the children and reduced Mother’s parenting time. Both parties appeal, raising numerous issues. We vacate that portion of the judgment that sets the parenting time during the children’s vacation schedule and remand this issue for further consideration; in all other respects we affirm the judgment.    

Marshall County Court of Appeals 12/09/16
Jeremy David Parvin v. Jackie Ladean Parvin - dissenting in part
E2016-00549-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: L. Marie Williams

I fully concur in the majority's opinion with one exception—I would grant Wife's request for attorney's fees on appeal. I respectfully dissent on this one issue.

Hamilton County Court of Appeals 12/09/16
Jeremy David Parvin v. Jackie LaDean Newman
E2016-00549-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge L. Marie William

In this post-divorce action, the husband filed a complaint alleging abuse of process on the part of the wife during the divorce proceedings. He asserted that prior to the parties' stipulation to grounds for divorce and presentation of a settlement agreement, subsequently adopted by the trial court in a final divorce judgment, the wife had filed a motion for contempt against him with the intent to harass him, cause him to incur unnecessary expense, and “weaken his resolve” to litigate for more favorable terms. The wife filed a motion to dismiss this action, which the trial court treated as a motion for summary judgment because the wife had requested that the court consider the record of the divorce proceedings. Following a hearing, the trial court granted summary judgment in favor of the wife upon finding, inter alia, that the husband's complaint was barred by the doctrine of res judicata. Upon the wife's subsequent motion, the trial court imposed a sanction against the husband's counsel, pursuant to Tennessee Rule of Civil Procedure 11.02, in the amount of $9,745.25, comprising the wife's reasonable attorney's fees and expenses incurred in defending against this action. The husband appeals. Discerning no reversible error, we affirm. We deny the wife's request for attorney's fees on appeal.

Hamilton County Court of Appeals 12/09/16
In Re: La'Trianna W.
E2016-01322-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Timothy E. Irwin

This appeal involves the termination of a father's parental rights to his minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of his rights on the statutory ground of mental incompetence. The court further found that termination was in the best interest of the child. The father appeals. We affirm.

Knox County Court of Appeals 12/09/16
Ace Design Group, Inc. v. Greater Christ Temple Church
M2016-00089-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Claudia Bonnyman

Appellant/Church appeals the trial court’s entry of default judgment against it and the trial court’s award of damages for breach of contract in favor of Appellee, an architectural and design firm. Appellee served its complaint for breach of contract on Appellant’s registered agent at an address other than the one listed with the Secretary of State. The trial court found that service was proper and entered default judgment against Appellant for failure to appear. Thereafter, the trial court entered judgment in favor of Appellee for the alleged balance on the contract price, lost profits, and interest. We conclude that the default judgment was proper. However, as to the type and measure of damages, we vacate and remand.

Davidson County Court of Appeals 12/08/16
Valerie Miller v. Jackson-Madison County General Hospital District, et al.
W2016-01170-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donald H. Allen

This is a case, brought pursuant to the Tennessee Governmental Tort Liability Act, involving a plaintiff who was injured when she slipped and fell in a municipal hospital owned and operated by the defendant. The plaintiff alleged that she suffered injuries after slipping in water that was on the hospital's floor. Following a bench trial, the trial court found that the defendant had no actual or constructive notice of the water and entered judgment in its favor. The plaintiff appealed. We affirm.

Madison County Court of Appeals 12/08/16
Mark W. Lovett v. Frank Lynch, et al.
M2016-00680-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Larry B. Stanley, Jr.

Appellant, the first, but not the highest nor successful bidder on a piece of real property in a delinquent tax property sale, filed a quo warranto action alleging that the tax sale was conducted illegally. The trial court dismissed appellant’s suit for lack of standing because the property at issue had been redeemed by an individual with a mortgage on the property. Discerning no error, we affirm.

Franklin County Court of Appeals 12/08/16