Court of Appeals Opinions

Format: 05/26/2022
Format: 05/26/2022
Sheryl Haynes v. Terry Haynes
W2021-01004-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor George R. Ellis

A husband appeals a final decree of divorce in which the trial court classified the marital residence as marital property and awarded the wife alimony in futuro. Because the husband failed to file either a transcript or statement of the evidence, we conclusively presume that the record would have supported the trial court’s decision, and we affirm the trial court’s judgment.

Gibson County Court of Appeals 05/26/22
Steven Jeffrey Archer v. Sodexo Operations, LLC, et al.
W2020-01176-COA-R9-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James F. Russell

This interlocutory appeal arises from a health care liability action. The defendant filed a motion to dismiss based on the statute of limitations. In response, the plaintiff invoked the discovery rule and argued that his claim was timely filed after he learned the identity of the defendant. The plaintiff submitted an affidavit of counsel in an effort to detail the due diligence undertaken by the plaintiff to ascertain the identity of the defendant. Upon considering the affidavit, the trial court denied the defendant’s motion to dismiss. However, the trial court granted permission for the defendant to seek an interlocutory appeal. This Court granted the defendant’s application. We now affirm the trial court’s order and remand for further proceedings.

Shelby County Court of Appeals 05/25/22
Benny Vaughn v. Coffee County, Tennessee
M2021-00653-COA-R3-CV
Authoring Judge: Western Section Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Vanessa Jackson

An inmate filed this case alleging that he sustained injuries while in the county jail after slipping on water in his cell. The trial court granted the county’s motion for summary judgment, ruling that the county lacked actual or constructive notice of the alleged dangerous condition. Because we conclude that the inmate submitted sufficient proof to create a dispute of material fact as to the county’s actual notice of the alleged dangerous condition, we reverse.

Coffee County Court of Appeals 05/25/22
Dennis Owen v. Kenneth A. Grinspun et al.
M2021-00681-COA-R3-CV
Authoring Judge: Western Section Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Jonathan L. Young

Appellant appeals the trial court’s dismissal of this cause of action on the basis that it was filed by a deceased plaintiff and therefore a nullity that could not be corrected via amendment. We affirm. 

Putnam County Court of Appeals 05/25/22
Claudette Gilley Sanford v. Phillip Howard Sanford
E2021-00414-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Jeffrey Hollingsworth

A former wife sued her former husband for fraudulent misrepresentation and breach of the disclosure warranty in the marital dissolution agreement entered in their divorce fifteen years earlier. Finding that the former wife released those claims through an agreed order entered three years before the underlying action, the trial court granted summary judgment in favor of the former husband. We affirm.

Hamilton County Court of Appeals 05/24/22
Westley Murel Hall v. Megan Leigh Hall
M2021-00757-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Joe H. Thompson

In this post-divorce action, the trial court conducted a hearing with respect to the mother’s request to relocate to Ohio with the parties’ minor child, a request which the father opposed.  Following a bench trial, the trial court entered an order permitting relocation and modifying the parties’ permanent parenting plan to provide the father with more co-parenting time.  The trial court also granted an award of attorney’s fees to the mother.  The father has appealed.  Based on the trial court’s failure to render sufficient findings of fact and conclusions of law concerning its award of attorney’s fees to the mother, we vacate the attorney’s fee award and remand the case to the trial court for entry of an order containing written findings of fact and conclusions of law concerning the basis for its decision to award attorney’s fees to the mother and the reasonableness of the amount awarded.  The trial court’s judgment is affirmed in all other respects.

Sumner County Court of Appeals 05/24/22
Town of Monterey, Tennessee et al. v. The Garden Inn, LLC et al.
M2020-01511-COA-R3-CV
Authoring Judge: Middle Section Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Judge Jonathan L. Young

This is a declaratory judgment action concerning an express ingress/egress easement that provides access via The Garden Inn at Bee Rock in Monterey, Tennessee, to a neighboring natural landmark owned by the Town of Monterey, Tennessee. After years of public use of the easement to access the landmark, The Garden Inn took steps to physically hinder the public’s use of the easement. As a consequence, the Town of Monterey and others commenced this action against The Garden Inn, LLC, to declare the respective rights and responsibilities of the parties. After years of litigation, The Garden Inn contended that a conservation foundation was an indispensable party. In doing so, The Garden Inn contended that failure to add the conservation foundation, which holds a conservation easement by which it may prohibit certain uses of the landmark property, would subject The Garden Inn to multiple or otherwise inconsistent obligations. The trial court disagreed, holding that the conservation foundation “has no interest in the fight with respect to the interpretation of this easement for ingress and egress.” Thereafter, the court granted summary judgment in favor of the Town of Monterey concerning the scope and uses of the easement. The Garden Inn appealed, challenging only the trial court’s determination that the conservation foundation was not an indispensable party. We affirm.

Putnam County Court of Appeals 05/24/22
Lawrence Simonetti et al. v. Thomas Frank McCormick et al.
M2021-00754-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This appeal arises from the denial of a motion to compel arbitration in a construction dispute involving the purchase of a newly constructed townhome in Nashville.  The plaintiffs brought suit in the Davidson County Circuit Court, asserting claims of promissory fraud, breach of contract, and breach of implied warranty, while also attempting to pierce the corporate veil of one of the involved companies.  The defendants filed motions to dismiss and/or compel arbitration, contending that the contract between the parties required the matter to be resolved via arbitration.  The trial court denied the motions in an order finding that the arbitration clause relied upon by the defendants was part of a warranty that was not included in the initial contract and to which the plaintiffs had not agreed.  Discerning no error, we affirm the trial court’s denial of the motions.

Davidson County Court of Appeals 05/24/22
Jack Breithaupt et al. v. Vanderbilt University Medical Center
M2021-00314-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Kelvin D. Jones

This appeal is a health care liability case involving issues of pre-suit notice and the statutory requirements under Tennessee Code Annotated section 29-26-121.  The trial court denied the plaintiff’s motion for partial summary judgment; granted the defendant’s motion for summary judgment; and dismissed the plaintiff’s claims with prejudice after determining she failed to give the defendant
pre-suit notice in compliance with Tennessee Code Annotated section 29-26-121.  The plaintiff appeals.  We affirm.

Davidson County Court of Appeals 05/24/22
State of Tennessee Ex Rel. David Jonathan Tulis v. Bill Lee, Governor of Tennessee Et
E2021-00436-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Pamela A. Fleenor

In this mandamus action, the petitioner/relator, acting on relation to the state, sought to have the trial court, inter alia, issue writs requiring the state governor and county health department administrator to comply with Tennessee Code Annotated § 68-5-104, which pertains to “[i]solation or quarantine.” The relator named the governor and health department administrator as respondents in both their official and “personal” capacities. Upon the respondents’ respective motions to dismiss the petition and following a hearing, the trial court entered separate orders granting the motions to dismiss as to each respondent, finding, as pertinent on appeal, that (1) the court lacked subject matter jurisdiction as to the claim against the governor in a mandamus action, (2) the court lacked subject matter jurisdiction as to the claim against the health department administrator because the relator lacked standing, and (3) the relator otherwise failed to state claims upon which relief could be granted. The trial court also granted the health department administrator’s motion for a reasonable award of attorney’s fees and costs in defending against the lawsuit in her personal capacity pursuant to Tennessee Code Annotated § 29-20-113. The relator filed motions to alter or amend, which the trial court denied following a hearing in orders certified as final pursuant to Tennessee Rule of Civil Procedure 54.02. The relator timely appealed. Concluding that (1) the trial court’s lack of subject matter jurisdiction is dispositive as to the action against the governor in his official capacity, (2) the relator’s lack of standing is dispositive as to the action against the county health administrator in her official capacity, and (3) the relator’s actions against both respondents in their personal capacities failed to state claims upon which relief could be granted, we affirm the trial court’s dismissal orders. We clarify, however, that the relator’s lack of standing with respect to his claim against the county health administrator did not equate to a lack of subject matter jurisdiction in the trial court.

Hamilton County Court of Appeals 05/23/22
Mickell Lowery v. Michael Redmond, et al.
W2021-00611-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor JoeDae L. Jenkins

Petitioner/Appellee filed a petition in chancery court against Respondents/Appellants, alleging various claims related to allegedly false and defamatory statements made by the Respondents/Appellants. An objection was made to the chancery court’s subject matter jurisdiction, seeking dismissal or transfer of the action to circuit court. The chancery court denied the motion to dismiss or transfer and ultimately rendered judgment in favor of Petitioner/Appellee. We conclude that the chancery court lacked subject matter jurisdiction. We therefore reverse the judgment of the chancery court regarding subject matter jurisdiction, vacate all other orders of judgment entered by the trial court, and remand the case for transfer to circuit court.

Shelby County Court of Appeals 05/23/22
Leo Charles Hillman et al. v. Young Street Partners II, LLC et al
M2021-00142-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Russell T. Perkins

This case involves the interpretation of a commercial lease provision containing a tenant improvement allowance.  Following a hearing, the trial court initially entered an order in August 2020, granting partial summary judgment in favor of the plaintiffs/assignees and directing the defendant/assignor, Young Street Partners II, LLC (“Young Street”), to reimburse the plaintiffs for $92,000.00 they had paid to a tenant claiming the improvement allowance, as well as costs, attorney’s fees, and statutory prejudgment interest.  Upon the filing of subsequent competing motions for summary judgment and following a hearing, the trial court confirmed its prior judgment in favor of the plaintiffs and further dismissed Young Street’s counterclaim for attorney’s fees and costs in an order entered in January 2021, thereby denying Young Street’s motion for partial summary judgment.  Following entry of an order of voluntary dismissal without prejudice against all defendants except Young Street and upon the plaintiffs’ motion, the trial court entered an order certifying its January 2021 order as final pursuant to Tennessee Rule of Civil Procedure 54.02.  Young Street has appealed.  Determining that the trial court improvidently granted summary judgment in favor of the plaintiffs, we vacate the judgment and remand this matter to the trial court for further proceedings.  We deny the plaintiffs’ request for an award of attorney’s fees on appeal.

Davidson County Court of Appeals 05/20/22
Estate of Donna McCullough v. Anthony McCullough
W2020-01723-COA-R3-CV
Authoring Judge: Judge Krisit M. Davis
Trial Court Judge: Judge Daniel L. Smith

Donna McCullough (“Wife”) and Anthony McCullough (“Husband”) executed a marital dissolution agreement (the “MDA”) on June 14, 2018. The agreement provided that Husband was to pay Wife $4,521.00 per month in alimony and that the obligation terminated upon the death of either party. The parties were divorced by the General Sessions Court for Hardin County on September 21, 2018. Several months later, Husband sought to set aside the final decree of divorce, arguing that the alimony provision in the MDA was void. Following a hearing, the trial court denied Husband’s motion and granted Wife her attorney’s fees incurred in defending the action. Husband appeals. Discerning no error, we affirm.

Hardin County Court of Appeals 05/19/22
In Re Bonnie E.
E2021-00919-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge R. Wylie Richardson

In this case involving termination of the mother’s parental rights to her child, the McMinn County Juvenile Court (“trial court”) determined that several statutory grounds for termination had been proven by clear and convincing evidence. The trial court further determined that clear and convincing evidence demonstrated that termination of the mother’s parental rights was in the child’s best interest. The mother has appealed. Discerning no reversible error, we affirm.

McMinn County Court of Appeals 05/19/22
Abraham A. Augustin v. Tennessee Department of Safety And Homeland Security
E2021-00635-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

This case arises from the 2009 seizure of Appellant’s property and the subsequent forfeiture of same. Appellant petitioned for judicial review, and the trial court dismissed the petition for lack of subject matter jurisdiction. On appeal, we conclude that because Appellant’s petition was not filed within sixty days of receiving notice of the forfeiture, see Tenn. Code Ann. § 4-5-322(b)(1)(A)(iv), the trial court lacked subject matter jurisdiction to review the forfeiture. Accordingly, we affirm.

Knox County Court of Appeals 05/17/22
Nasser Luby Saleh v. Lystacha G. Pratt
E2021-00965-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Gregory S. McMillan

This appeal arises after the trial court found the defendant in contempt of an order of protection and sentenced him to 510 days of incarceration. We affirm the judgment holding the appellant in contempt in its entirety.

Knox County Court of Appeals 05/17/22
In Re Khalil J.
M2021-00908-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Sheila Calloway

This appeal involves a petition to terminate parental rights.  The juvenile court found by clear and convincing evidence that three grounds for termination as to both mother and father were proven: (1) persistent conditions; (2) mental incompetence; and (3) failure to manifest an ability and willingness to assume custody or financial responsibility.  The juvenile court also found that termination was in the best interests of the child.  Both the mother and the father appeal.  We reverse the juvenile court’s finding of persistent conditions as to the mother and the father, but otherwise affirm the termination of parental rights.

Davidson County Court of Appeals 05/16/22
Tennessee Farmers Mutual Insurance Company v. David Payne, et al.
W2021-00376-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Yolanda Kight Brown

This appeal concerns a dispute over insurance coverage. Amy Higgs (“Higgs”) individually and on behalf of her deceased son, Cayson Emmit Turnmire (“Cayson”), sued David Payne (“Payne”) for the negligent maintenance of his property in relation to Cayson’s death by drowning in Payne’s swimming pool. Tennessee Farmers Mutual Insurance Company (“Tennessee Farmers”), Payne’s homeowners’ insurance carrier, filed a complaint for declaratory judgment in the Circuit Court for Shelby County (“the Trial Court”) against Payne and Higgs. Tennessee Farmers argued that, due to an exclusion in Payne’s homeowners’ insurance policy against claims “arising from or in connection with the swimming pool,” it is not obligated to defend or indemnify Payne. Tennessee Farmers and Higgs filed cross motions for summary judgment. The Trial Court granted Tennessee Farmers’ motion and denied Higgs’ motion. Higgs appeals. Citing the concurrent cause doctrine, Higgs argues that Tennessee Farmers must defend and indemnify Payne as, apart from the pool, certain non-excluded causes contributed to Cayson’s death—namely, Payne’s failure to fence or gate his property. We hold, inter alia, that each of Higgs’ alleged non-excluded concurrent causes are bound up inextricably with Cayson’s tragic drowning in Payne’s pool, an excluded cause under Payne’s insurance policy. We affirm.

Shelby County Court of Appeals 05/13/22
Larry Brown et al. v. Tennessee Department of Safety and Homeland and Security
M2021-00422-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This case arises from the seizure of property owned by Appellants and the ensuing forfeiture action brought against them by Appellee Tennessee Department of Safety and Homeland Security.  After Appellee voluntarily dismissed the forfeiture action, the Administrative Law Judge awarded Appellants a portion of their requested attorney’s fees under Tennessee Code Annotated section 4-5-325(a).  The Chancery Court of Davidson County reversed the award of fees on its finding that Appellee did not issue a “citation” as required for recovery of attorney’s fees under section 4-5-325(a).  The trial court also held that Appellants were not entitled to recover attorney’s fees under 42 U.S.C. § 1988.  Discerning no error, we affirm.

Davidson County Court of Appeals 05/13/22
Debra Jean Griffith-Ball v. Stanley Lauren Ball
M2020-00509-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Kathryn Wall Olita

A husband and wife divorced after a long marriage.  They disputed whether certain assets were marital or separate property and whether the wife was entitled to alimony.  The trial court found that the disputed assets were the husband’s separate property.  And it awarded the wife alimony in futuro, as well as attorney’s fees as alimony in solido.  Upon our review, we find the evidence preponderates against the finding that the assets are separate property.  So, with those assets included in the marital estate, we remand for a new property division.  And, because the division of marital property is a factor in awarding alimony, we vacate the alimony awards.  On remand, the court should consider whether alimony is still appropriate under its new property division and, if so, the type, amount, and duration of the award. 

Montgomery County Court of Appeals 05/13/22
Vatisha Evans-Barken v. Madison County, Tennessee
W2020-01101-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

Appellee, a Sergeant with the Madison County Sheriff’s Department, sought judicial review of the Civil Service Board’s affirmance of the Sheriff Department’s decision to terminate her employment. On its finding that the Board failed to consider all relevant evidence presented, the trial court exercised its discretion to remand the case to the Board for rehearing. Tenn. Code Ann. § 4-5-322(h). Appellant, Madison County, Tennessee, filed the instant appeal. We conclude that the trial court’s remand order is not a final, appealable order under Tennessee Rule of Appellate Procedure 3(a). As such, this Court does not have subject matter jurisdiction over the appeal. Appeal dismissed.

Madison County Court of Appeals 05/11/22
In Re Arianna B. et al.
M2021-00980-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Ronald Thurman

In this termination of parental rights case, Appellant Father appeals the trial court’s termination of his parental rights to the two minor children on the ground of abandonment by failure to support, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(iv).  Appellant also appeals the trial court’s finding that termination of his parental rights is in the children’s best interest.  Discerning no error, we affirm.

Putnam County Court of Appeals 05/11/22
State of Tennessee v. $133,429 In U.S. Currency Seized From Joni Assefa Kilenton, et al.
W2021-01005-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge J. Weber McCraw

In this seizure and forfeiture action, we do not reach the substantive issues because the order granting the forfeiture does not comply with the requirements of Tennessee Rule of Civil Procedure 58 for entry of judgments. Nonetheless, we exercise our discretion under Tennessee Rule of Appellate Procedure 2 to take jurisdiction of the appeal for the limited purpose of instructing the trial court to enter an order on remand that not only complies with Rule 58, but also makes sufficient findings to enable this Court to make a meaningful review as required under Tennessee Rule of Civil Procedure 52.01. Vacated and remanded.

Fayette County Court of Appeals 05/10/22
State of Tennessee v. Zachery Brandon
M2020-01092-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Mark J. Fishburn

The Defendant, Zackery Brandon, was convicted by a Davidson County Criminal Court jury of attempted aggravated robbery, especially aggravated robbery, and aggravated robbery and was sentenced by the trial court as a Range I, standard offender to an effective term of twenty-five years in the Tennessee Department of Correction.  On appeal, the Defendant argues that the evidence was insufficient to sustain his convictions and that the trial court erred in admitting the unsworn recorded statement of one of his
co-defendants.  After review, we affirm the judgments of the trial court.  

Davidson County Court of Appeals 05/10/22
In Re Analesia Q.
E2021-00765-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Brad Lewis Davidson

The Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate the parental rights of Cindy B. (“Mother”) and Francisco Q. (“Father”) to their minor daughter, Analesia Q. (the “Child”). Following a bench trial, both parents’ rights were terminated pursuant to several statutory grounds, and Father appeals. He challenges the statutory grounds for termination, the trial court’s finding that termination of his rights was in the Child’s best interests, and the trial court’s decision to admit hearsay testimony regarding potential abuse of the Child pursuant to Tenn. R. Evid. 803(25). We reverse the trial court’s decision to terminate Father’s parental rights for abandonment by failure to visit and severe abuse, and vacate the trial court’s decision to terminate Father’s parental rights for failure to manifest an ability and willingness to assume custody or financial responsibility of the Child. We affirm the termination of Father’s parental rights as to the remaining grounds, as well as the holding that termination of Father’s parental rights is in the Child’s best interests. The ultimate decision of the trial court is therefore affirmed.

Cocke County Court of Appeals 05/10/22