Court of Appeals Opinions

Format: 01/29/2020
Format: 01/29/2020
Deborah Balzer v. Joseph Balzer
E2019-00576-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Telford E. Forgety, Jr.

Following a divorce, husband and wife agreed that wife was to receive monthly alimony payments from husband for eight and a half years. The last four years of payments were contingent upon husband attaining the rank of airline captain. The type of alimony awarded was never specified. Wife later remarried and cohabitated with her new husband. Husband filed for a modification alleging that the alimony was transitional alimony and therefore statutorily modifiable upon wife’s cohabitation with a third person. See Tenn. Code Ann. § 36–5–121(g)(2)(C) (2019). Wife instead argued that the alimony awarded was alimony in solido and therefore not modifiable except by agreement of the parties. See Tenn. Code Ann. § 36–5–121(h)(2). The trial court held that the expressly conditional nature of the alimony rendered it more properly classifiable as transitional alimony. The court terminated husband’s alimony obligation based upon wife’s remarriage and cohabitation with her new husband. Wife appeals. Discerning no error, we affirm.

Sevier County Court of Appeals 01/28/20
In Re: Kelsea L.
E2019-00762-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Thomas J. Wright

This appeal involves the termination of a father’s parental rights based on the ground of abandonment by willful failure to visit and willful failure to support. The father appeals. We reverse the trial court’s finding of willful failure to support but affirm the trial court’s finding of willful failure to visit and its determination that termination of parental rights is in the best interest of the child. Accordingly, we affirm termination of the father’s parental rights.

Hawkins County Court of Appeals 01/27/20
Brent G. Pitchford v. Loves Truck Stop
M2019-02262-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This appeal arises out of an inmate’s lawsuit alleging that an employee of Loves Truck Stop filed a false police report. The trial court dismissed the suit on September 4, 2019, for failure to file an affidavit of indigency and failure to comply with Tenn. Code Ann. § 41-21-407. The inmate, Brent G. Pitchford, filed a notice of appeal with the clerk of this court on December 16, 2019. 

Davidson County Court of Appeals 01/24/20
Joel David Cormier v. Pat Hankins Et Al.
E2018-00396-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Beth Boniface

A prisoner filed suit against a fellow inmate and several county defendants. The county defendants filed a motion to dismiss for failure to state a claim. The trial court granted the motion to dismiss and dismissed the prisoner’s cause of action as to the county defendants. The prisoner appealed. Because the order appealed does not dispose of all of the prisoner’s claims against all defendants, we dismiss the appeal for lack of a final judgment.

Greene County Court of Appeals 01/24/20
Pamela Cotham v. Nicholas Jay Yeager Et Al.
E2019-00423-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert E. Lee Davies

The plaintiff filed this action seeking to recover damages on behalf of Anderson County based upon the plaintiff’s allegations that the defendants had submitted false claims for payment by the county. The trial court dismissed the action, determining that the plaintiff’s amended complaint had failed to state a claim upon which relief could be granted. The plaintiff has appealed. Discerning no reversible error, we affirm the trial court’s judgment of dismissal.

Anderson County Court of Appeals 01/24/20
Gary Fisher v. Villages At Henley Station, LLC, Et Al.
M2018-01990-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge J. Mark Rogers

This appeal involves a slip and fall premises liability claim filed by a tenant against his landlord.  The trial court granted summary judgment to the landlord because the tenant’s evidence did not show that the allegedly dangerous condition was in existence as of the date of the lease or that the landlord had actual or constructive notice of the allegedly dangerous condition.  The tenant appeals.  Discerning no error, we affirm.

Rutherford County Court of Appeals 01/24/20
In Re Michael W. Et Al.
E2019-00107-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Ronald Thurman

Mother appeals the termination of her parental rights on grounds of abandonment, substantial noncompliance with permanency plans, and persistence of conditions. Because the record on appeal contains no permanency plans that apply to the children at issue in this case, we reverse the substantial noncompliance with permanency plans ground for termination. We affirm the remaining grounds for termination, as well as the trial court’s best interest finding.

Cumberland County Court of Appeals 01/23/20
Bakersouth, LLC v. Green Hills Mall TRG, LLC, Et Al.
M2018-02129-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Claudia Bonnyman

This appeal involves a long-running dispute among neighboring property owners over a parking easement near the Green Hills Mall that was formerly owned by the Metropolitan Government of Nashville and Davidson County in connection with its operation of a public library.  The chancery court declared that the plaintiff now owns fee simple title to its lots in addition to the easement appurtenant over the defendants’ lots for parking purposes.  The defendants appeal.  We affirm and remand for further proceedings. 

Davidson County Court of Appeals 01/23/20
Benigo Cruz v. Sherman Byrd
E2019-00444-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge L. Marie Williams

This is an appeal regarding the breach of a lease agreement between Mr. Cruz, the landlord, and Mr. Byrd, the tenant. Mr. Cruz initiated this action against Mr. Byrd because he did not pay any rent for the term of the lease. Mr. Byrd argued that he was not obligated to pay rent because the lease was rendered void and unenforceable upon discovery of a city ordinance that prohibited the intended use of the Property. We disagree. There was no evidence, and Mr. Byrd did not assert, that Mr. Cruz took any action that would violate the agreement; he was able to exercise his right to occupy the Property for the entire term of the lease. Therefore, the lease was enforceable. Furthermore, the lease provided Mr. Byrd a right to terminate if the designated use of the Property was prohibited by law; he did not invoke this remedy. Thus, Mr. Byrd was obligated to pay the rent owed under the lease. Finding no error in the trial court’s decision, we affirm.

Hamilton County Court of Appeals 01/23/20
Snake Steel, Inc. v. Holladay Construction Group, LLC
M2019-00322-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ellen H. Lyle

A subcontractor sought statutory penalties against a prime contractor based on the contractor’s failure to comply with the Prompt Pay Act’s requirement that any retainage withheld be deposited into an interest-bearing escrow account as set forth in Tenn. Code Ann. § 66-34-104(a). The prime contractor moved to dismiss the complaint, asserting that the claim was barred by the one-year statute of limitations applicable to statutory penalties, Tenn. Code Ann. § 28-3-104(a)(1)(C). The trial court granted the prime contractor’s motion and dismissed the complaint. On appeal, we hold that the discovery rule applies to this type of claim for statutory penalties under the Prompt Pay Act and remand for further proceedings.

Davidson County Court of Appeals 01/22/20
Nena Proffitt Valentine v. Fred Holt et al.
E2019-00186-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert E. Lee Davies

The original plaintiff filed this action to set aside a quitclaim deed and died while the case was still pending. When no motion for substitution of party was filed within 90 days of the original plaintiff’s death being suggested on the record, the defendants filed a motion to dismiss. The original plaintiff’s son filed a response and requested that he be substituted as the plaintiff. Finding excusable neglect, the trial court denied the motion to dismiss and allowed the original plaintiff’s son to be substituted as the plaintiff. The trial court determined that the quitclaim deed was valid and conveyed to the defendants four tracts of land but did not convey a fifth tract due to an inadequate description of the property. The defendants appealed the trial court’s decision. We affirm the trial court’s denial of the motion to dismiss, but we vacate the trial court’s decision regarding the adequacy of the property description and remand for further proceedings.

Cocke County Court of Appeals 01/22/20
Alexander J. Bynum, et al. v. Mark D. Sampson, et al.
W2019-00188-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor W. Michael Maloan

This appeal concerns an alleged breach of contract. Alexander Bynum and his father, Hal Bynum, (“the Bynums,” collectively) bought a slaughterhouse owned by Mark D. Sampson (“Defendant”) and his then-wife Kimberly Sampson (“the Sampsons,” collectively) and kept it running as Southern Chop Shop, LLC. The contract for sale provided that all plumbing systems would be in working order on the day of closing. A year after closing, the Bynums discovered a pipe on the property that was gushing animal blood straight from the kill floor of the slaughterhouse into a ditch. Defendant knew about but had not disclosed the pipe. The State became involved and demanded a halt to the discharge. When remedial efforts proved economically unfeasible, the Bynums shut down the slaughterhouse. The Bynums and Southern Chop Shop, LLC (“Plaintiffs,” collectively) sued the Sampsons for breach of contract in the Chancery Court for Weakley County (“the Trial Court”). The Trial Court found for Plaintiffs, ordering rescission or, if that is not possible, a monetary judgment against the Sampsons. Defendant appealed and argues that the plumbing system was in working order on the day of closing notwithstanding the blood-gushing pipe. We disagree and find that, contrary to the representations made by Defendant and relied upon by the Bynums, the plumbing system was not in working order on the day of closing. Defendant, therefore, breached the contract. We affirm the judgment of the Trial Court.

Weakley County Court of Appeals 01/21/20
Rose Coleman v. Bryan Olson
M2019-00176-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Ross H. Hicks

This is the second time this dispute has been before this court. The appeal arises from a violation of Tenn. Code Ann. § 36-4-106(d)(2), which prohibits a divorcing party from “canceling, modifying, terminating, assigning, or allowing the lapse” of any insurance policy that provides coverage to either spouse or their children without the consent of the other spouse, a court order, or abatement of the action. In this case, the wife modified her life insurance policy by replacing her husband with her mother as the sole beneficiary of the policy during the pendency of a divorce action and without the husband’s consent or a court order. The wife died one week later, which caused an abatement of the divorce action. After the insurance company remitted the proceeds of approximately $393,000 to the wife’s mother, the husband commenced this action to recover the proceeds. Following the first trial, the trial court found the wife intended to remove the husband and substitute their minor child as the insurance beneficiary, and it awarded the proceeds to the child. Both parties appealed. In the first appeal, we reversed the trial court and, after applying an equitable-balancing test, awarded the proceeds to the husband. See Coleman v. Olson, No. M2015-00823-COA-R3-CV, 2016 WL 6135395, at *15 (Tenn. Ct. App. Oct. 20, 2016) [hereinafter Coleman I]. The Tennessee Supreme Court affirmed our use of an equitable-balancing test but determined there was insufficient evidence to decide the merits on appeal. Coleman v. Olson, 551 S.W.3d 686, 697 (Tenn. 2018) [hereinafter Coleman II]. Thus, the Supreme Court remanded the case to the trial court with instructions to hear additional evidence and, after considering the equities of the parties, “remedy the violation of the statutory injunction by awarding all or a portion of the life insurance benefits to either or both parties.” Id. at 688. However, the Court did not identify the equitable factors to consider. Following an evidentiary hearing on remand, the trial court found the equities weighed in favor of the husband receiving the insurance proceeds. The wife’s mother appeals, contending the trial court erred in determining that the equities between the parties weighed in favor of depriving her of the insurance proceeds. We have determined that the trial court’s ruling was based on the erroneous determination that the court was limited to two options, enforcing the policy based on the beneficiary designation when the statutory injunction went into effect or enforcing the policy based on the beneficiary designation when the divorce action abated, instead of having the discretion to award a portion of the proceeds to each party based on the equities. Recognizing that the purpose of the § 106(d)(2) injunction was merely to preserve the status quo, not to make the ultimate determination of the rights of the parties to the proceeds, we have determined that the husband was entitled to an amount necessary to prevent an “unjust result” due to the wife’s inability to assist in caring for the parties’ minor child or to provide financial support to care for and educate the child until he reaches the age of majority. Having considered the financial benefits and burdens resulting from the wife’s death, we modify the judgment to award the husband a lump sum based on a support payment of $500.00 a month calculated from the month of the wife’s death until the minor child turns eighteen. Because the husband has been receiving a monthly payment of $500.00 since the trial court ordered the clerk of the court to remit such monthly payments out of the insurance proceeds on deposit with the clerk, the aggregate sum the husband has received from the clerk shall be deducted from the lump sum awarded to the husband. The wife’s mother shall be awarded the balance of the insurance proceeds on deposit with the clerk. We also vacate the judgment awarded against the wife’s mother and the award of prejudgment interest to the husband. The case is remanded to the trial court for further proceedings consistent with this opinion.

Montgomery County Court of Appeals 01/21/20
In Re C.L. Et Al.
E2018-02032-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Daniel G. Boyd

C.A. (petitioner) filed a petition to terminate the parental rights of H.L. (mother) and R.L. (father) with respect to their two children, C.L. and A.L. (the children). The trial court found clear and convincing evidence to terminate mother and father’s parental rights on two grounds: abandonment by willful failure to support and persistent conditions. The court also found clear and convincing evidence that termination of mother and father’s parental rights is in the best interest of the children. Both parents appeal. We vacate the trial court’s finding that there is clear and convincing evidence to terminate mother and father’s parental rights on the ground of abandonment by willful failure to support. Nevertheless, we affirm the court’s order terminating mother and father’s parental rights because there is clear and convincing evidence that termination is supported by the ground of persistent conditions and is in the best interest of the children.

Hawkins County Court of Appeals 01/21/20
In Re Aubrie W.
E2019-00862-COA-R3-PT
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge John S. McLellan, III

This is an appeal from the termination of the father’s parental rights. The trial court found the petitioners had proved that the father abandoned the child by willfully failing to visit, willfully failing to support the child, and exhibiting conduct showing a wanton disregard for the child’s welfare and that termination of the father’s parental rights, was in the child’s best interest. Following the entry of the order terminating his rights, the father appealed. Finding the record does not clearly and convincingly establish the ground of abandonment by wanton disregard, we reverse the trial court’s determination on that ground; however, the record clearly and convincingly established the other two grounds and that termination of the father’s parental rights is in the child’s best interest. Therefore, we affirm the termination of the father’s parental rights.

Sullivan County Court of Appeals 01/21/20
In Re Ronon G.
M2019-01086-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael E. Spitzer

Mother appeals the termination of her parental rights to her two children on grounds of abandonment by failure to establish a suitable home, substantial noncompliance with permanency plans, and persistence of conditions. We conclude that two grounds were not applicable to Mother’s younger child because she was not removed from Mother’s home. Because at least one ground was supported by the evidence as to each child, and the evidence clearly and convincingly shows that termination is in their best interest, we affirm the overall termination of Mother’s parental rights as modified.

Lewis County Court of Appeals 01/16/20
Jacqueline Graybill McSurley v. Michael Glen McSurley
M2019-02016-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Phillip R. Robinson

This appeal arises out of a Final Decree of Divorce entered on June 19, 2019, and the denial of the husband’s post-judgment motions. Because the husband did not file his notice of appeal within the time required by Tenn. R. App. P. 4, we dismiss the appeal.

Davidson County Court of Appeals 01/16/20
Debra Lovelace, et al. v. Baptist Memorial Hospital-Memphis
W2019-00453-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

Plaintiff filed a health care liability action against Defendant hospital following the death of Plaintiff’s husband in 2014. The trial court granted summary judgment to the hospital on two alternative, independent grounds: that the Plaintiff’s expert witness, a registered nurse, was not competent to testify as an expert witness, and that the expert witness failed to provide causation testimony as required to prove liability. Plaintiff appealed the trial court’s ruling about the competency of her expert witness, but she failed to raise the failure to provide causation testimony as an issue on appeal. As no argument was made to challenge a distinct ground for summary judgment, we consider the argument waived and affirm the trial court’s order granting summary judgment.

Shelby County Court of Appeals 01/16/20
Sherrilyn Kenyon v. Kerrie Ann Plump, Et Al.
M2019-00944-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Michael Binkley

During a hearing on a party’s motion for a protective order, the trial court summarily found the party to be in contempt of court and sentenced her to spend ten days in jail after she described members in the gallery as pedophiles and abusers of her children.  The party appealed, and we affirm the trial court’s judgment and sentence.

Williamson County Court of Appeals 01/13/20
Hill Boren Properties, et al. v. Ricky Lee Boren v. Tamara Hill, et al.
W2019-02128-COA-T10B-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Senior Judge Robert E. Lee Davies

Third-party defendants in a lawsuit moved to disqualify the trial judge, asserting that the judge is a material witness in the case and demonstrated bias and prejudice against one of the parties in another case; the trial court denied the motion and the parties filed an expedited interlocutory appeal pursuant to Tennessee Supreme Court Rule 10B. Upon a thorough review of the petition for recusal appeal and supporting materials, we affirm the decision of the trial court denying the motion for recusal and remand for further proceedings.

Madison County Court of Appeals 01/10/20
In Re Emma S.
E2019-00718-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Robert D. Philyaw

In this parental termination case, the juvenile court found two statutory grounds for termination of a mother’s parental rights: substantial noncompliance with the requirements of the permanency plan and persistence of conditions. The juvenile court also found that termination of the mother’s parental rights was in her child’s best interest. Because the record contains clear and convincing evidence to support the grounds for termination and the best interest determination, we affirm.

Hamilton County Court of Appeals 01/09/20
In Re Mahaley P. Et Al.
E2019-00770-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Robert M. Estep

This is the second appeal concerning the petition filed by the Tennessee Department of Children’s Services (“DCS”) in the Claiborne County Juvenile Court (“Juvenile Court”) to terminate the parental rights of Ed P. (“Father”) to the children, Mahaley P. and Morgan P. (“the Children”). During the first appeal as to Father, this Court reversed the statutory ground of substantial noncompliance with the permanency plan and remanded for the Juvenile Court to make additional findings of fact and conclusions of law related to the two remaining grounds and as relevant to the best interest analysis. See In re Mickeal Z., No. E2018-01069-COA-R3-PT, 2019 WL 337038 (Tenn. Ct. App. Jan. 25, 2019). On April 4, 2019, the Juvenile Court entered an order making additional findings of fact and conclusions of law. Father appeals the April 4, 2019 order of the Juvenile Court terminating his parental rights to the Children upon its determination that DCS had proven by clear and convincing evidence the statutory grounds of persistent conditions and failure to manifest an ability and willingness to assume custody of the Children and that the termination of Father’s parental rights was in the Children’s best interest. Discerning no error, we affirm.

Claiborne County Court of Appeals 01/09/20
Amanda Bliss Gricunas (Harmon) v. Andrew James Gricunas
E2018-02284-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Beth Boniface

In this post-divorce proceeding, the mother filed a petition to modify time sharing arrangements between the mother and the father with regard to the minor children of the parties. The parties have been divorced since 2010. The mother also requested a modification of the father’s child support obligation and asked that the father pay for onehalf of the children’s past and future medical expenses.

Greene County Court of Appeals 01/09/20
In Re O.W., Jr., et al.
W2019-01127-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Special Judge Harold W. Horne

Father appeals the termination of his parental rights, arguing that one ground for termination was not proven and that the trial court’s ruling as to that ground did not reflect its independent judgment and did not include sufficient findings of fact and conclusions of law. After a thorough review of the record, we affirm five grounds for termination and vacate the ground of failure to manifest an ability and willingness to parent the children. We also affirm the trial court’s finding that termination is in the child’s best interest. As such, we affirm the termination of Father’s parental rights.

Shelby County Court of Appeals 01/09/20
In Re: A.W.
M2019-00358-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Darrell Scarlett

In this parental termination case, the petitioners sought termination of the parental rights of mother and the unknown father based upon four statutory grounds, pursuant to Tenn. Code Ann. § 36-1-113(g)(2018). Following a hearing on the petition, the trial court entered an amended order holding that there was clear and convincing evidence sufficient to terminate the parents’ rights for abandonment based upon their failure to support and failure to visit the minor child. By the same quantum of proof, the court found that termination is in the child’s best interest. The trial court, however, failed to address all of the grounds for termination raised in the petition. The trial court’s judgment was not final. Accordingly, this appeal is remanded for further proceedings consistent with this opinion.

Rutherford County Court of Appeals 01/08/20