Court of Appeals Opinions

Format: 09/27/2022
Format: 09/27/2022
Joseph Cannistra v. William Charles (Billy) Brown
M2021-00833-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Christopher V. Sockwell

This appeal involves a challenge to a circuit court’s award to a landlord for a deficiency in lease payments.  The landlord and tenant offered conflicting testimony regarding the terms of the parties’ agreement.  The circuit court judge found the landlord’s description of the agreement more convincing than the tenant’s and awarded the landlord a judgment in the amount of $9,800 as well as costs.  On appeal, the tenant insists the circuit court judge erred in his assessment of the conflicting testimony.  We find the trial court’s determination to be supported by the record and therefore affirm the judgment of the trial court. 

Giles County Court of Appeals 09/26/22
State of Tennessee v. Isaiah M.
W2021-01133-COA-R3-JV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Donald H. Allen

This appeal arises out of delinquency proceedings that originated in the Madison County Juvenile Court. The State filed an initial delinquency petition, but the petition was unverified. The defect in the petition remained undiscovered by the State until the first witness was sworn at the adjudicatory hearing. The juvenile court dismissed the petition and found that jeopardy attached. The State filed a second verified delinquency petition. However, the juvenile court dismissed the petition finding that it violated principles of double jeopardy. The State appealed to the circuit court. The circuit court dismissed the petition finding that jeopardy attached on the initial petition. The State appeals. We reverse and remand.

Madison County Court of Appeals 09/23/22
Michael Halliburton v. Blake Ballin, et al.
W2022-01208-COA-T10B-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Gina C. Higgins

This is an accelerated interlocutory appeal from the denial of motions for recusal of the trial judge. Having carefully reviewed the record provided by the appellant, we affirm the decision of the trial court denying the motions.

Shelby County Court of Appeals 09/23/22
Jabari Issa Mandela a/k/a John Wooden v. Tennessee Department of Correction
W2021-01219-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge R. Lee Moore, Jr.

Appellant appeals the assessment of costs against him following the dismissal of his petition for a writ of certiorari. Discerning no reversible error, we affirm.

Lake County Court of Appeals 09/23/22
In Re Hope G. Et Al.
E2021-01521-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Beth Boniface

This appeal arises from the termination of a father’s parental rights to his minor child, upon the statutory grounds of abandonment by failure to visit and financially support the child. The Greene County Circuit Court (“Trial Court”) denied the ground of failure to manifest an ability and willingness to assume custody of and financial responsibility for the child, pursuant to Tenn. Code Ann. § 36-1-113(g)(14). The Trial Court further found that termination of the father’s parental rights was in the child’s best interest. We reverse the statutory ground for the termination of the father’s parental rights of abandonment by failure to visit, determining that the father had proven by a preponderance of the evidence that his failure to visit was not willful. We affirm the remaining ground for the termination of the father’s parental rights, as well as the trial court’s determination that termination of the father’s parental rights is in the child’s best interest.

Greene County Court of Appeals 09/23/22
In Re Navaiya R. et al.
M2021-01387-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Tim Barnes

This appeal involves a petition to terminate parental rights.  The juvenile court found by clear and convincing evidence that two grounds for termination existed as to the father: (1) failure to manifest an ability and willingness to assume custody and (2) incarceration under a ten-year sentence.  The juvenile court also found that termination was in the best interests of the children.  The father appeals.  We affirm.

Montgomery County Court of Appeals 09/22/22
Lisa Neely Artry v. Lester Ray Artry
W2020-00224-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Valerie L. Smith

In this divorce case, we do not reach the substantive issues concerning the trial court’s division of the marital estate due to the fact that the trial court failed to designate all property as either marital or separate, failed to assign values to all property, and failed to consider the factors set out in Tennessee Code Annotated section 36-4-121(c). As such, we vacate the trial court’s division of the marital estate and its denial of alimony. Because the trial court failed to resolve the parties’ dispute over the Tennessee Rule of Appellate Procedure 24 statement of the evidence by providing this Court with one cohesive statement, we reverse the trial court’s order concerning the statement of the evidence.

Shelby County Court of Appeals 09/22/22
Derrick Lakeith Brown v. Marlinee C. Iverson
W2022-00045-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor JoeDae L. Jenkins

Appellant, Derrick Lakeith Brown, has appealed an order of the Shelby County Chancery Court that was entered on November 5, 2021. We determine that the November 5, 2021 order does not constitute a final appealable judgment. Therefore, this Court lacks jurisdiction to consider the appeal. The appeal is dismissed.

Shelby County Court of Appeals 09/21/22
Sporting Club of Tennessee, Inc. v. Marshall County Tennessee Board of Zoning Appeals
M2021-01361-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor J.B. Cox

This appeal concerns a zoning decision.  The Sporting Club of Tennessee, Inc. (“the Sporting Club”) filed an application with Marshall County, Tennessee for a special exception for a private park.  The club was to be situated on 285 acres of property and would feature a number of recreational activities like shooting.  It would have 150 members and corporate members along with their families and guests.  After a hearing, the Marshall County Board of Zoning Appeals (“the Board”) denied the Sporting Club’s application on grounds that the Sporting Club would not be low-impact, or passive, with respect to its surroundings.  The Sporting Club filed a petition for common law writ of certiorari in the Chancery Court for Marshall County (“the Trial Court”).  The Trial Court upheld the Board’s decision.  The Sporting Club appeals to this Court.  We conclude that the Board’s decision was supported by material evidence—namely, evidence concerning the Sporting Club’s 150 members and guests and the likely impact they would have on the property’s surroundings.  The Board’s decision neither was arbitrary, capricious, nor illegal.  We affirm.

Marshall County Court of Appeals 09/20/22
April Hawthorne v. Morgan & Morgan Nashville, PLLC, ET AL.
W2021-01011-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Jim Kyle

This is an appeal following the trial court’s dismissal of a legal malpractice complaint predicated upon actions allegedly taken by the Defendants in connection with a prior class action proceeding. In light of its dismissal of the Plaintiff’s complaint, the trial court ruled that a “derivative” third-party complaint asserted by the Defendants should also be dismissed. Whereas the Plaintiff challenges the dismissal of her complaint, the Defendants submit that, if the order dismissing the Plaintiff’s complaint is reversed, the order dismissing their third-party complaint should also be reversed. For the reasons stated herein, we reverse, in part, the dismissal of the Plaintiff’s claims, reverse the dismissal of the third-party complaint, and remand for further proceedings.

Shelby County Court of Appeals 09/19/22
In Re Scarlett F.
W2021-01292-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor James F. Butler

A mother appeals the trial court’s decision to terminate her parental rights based on the grounds of (1) substantial noncompliance with the permanency plans, (2) persistence of conditions, (3) severe child abuse, and (4) failure to manifest an ability and willingness to personally assume custody or financial responsibility of the child. She further challenges the trial court’s finding by clear and convincing evidence that termination of her parental rights was in the best interest of the child. We vacate the substantial noncompliance ground and reverse the persistence of conditions and failure to manifest an ability and willingness to assume custody or financial responsibility grounds. Concluding that the record does not contain clear and convincing proof that termination is in the best interest of the child, we reverse the trial court’s order terminating the mother’s parental rights.

Madison County Court of Appeals 09/16/22
Quinton A. Cage v. State of Tennessee
M2022-01155-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Commissioner James A. Haltom

An inmate appeals the Claims Commission’s dismissal of his claim. Because the inmate did not file his notice of appeal within the time permitted by Rule 4 of the Tennessee Rules of Appellate Procedure, we dismiss the appeal.

Court of Appeals 09/16/22
Ashley J. Loveday v. Aaron KK.H. Colehamer
E2022-00361-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge:

Because the order appealed from does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

Knox County Court of Appeals 09/16/22
In Re Josie G.
E2021-01516-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert D. Philyaw

In this case involving termination of the mother’s parental rights to her child, the trial court determined that two 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.1 The mother has appealed. Discerning no reversible error, we affirm.

Hamilton County Court of Appeals 09/15/22
In Re Josie G.
E2021-01516-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert D. Philyaw

In this case involving termination of the mother’s parental rights to her child, the trial court determined that two 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.1 The mother has appealed. Discerning no reversible error, we affirm.

Hamilton County Court of Appeals 09/15/22
In Re Josie G.
E2021-01516-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert D. Philyaw

In this case involving termination of the mother’s parental rights to her child, the trial court determined that two 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.1 The mother has appealed. Discerning no reversible error, we affirm.

Hamilton County Court of Appeals 09/15/22
Knoxville TVA Employees Credit Union v. Greg Hill et al.
E2021-01341-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson
Trial Court Judge: Chancellor Frank V. Williams, III

This case involves two creditors, each claiming a superior interest in the same motor vehicle, which was pledged as collateral for two separate loans by its owner. The trial court granted summary judgment in favor of the creditor that had perfected its title lien on the vehicle. Discerning no reversible error, we affirm.

Roane County Court of Appeals 09/15/22
Dominique Nance v. Mark Franklin
M2021-00161-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Sheila Calloway

This appeal concerns the trial court’s denial of the mother’s petition to relocate with her minor child.  We affirm the trial court’s decision.

Davidson County Court of Appeals 09/15/22
Paige Wininger v. Jarred Wininger
E2021-01296-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor John C. Rambo

The appellant challenges the trial court’s dismissal of her petition for order of protection against her husband. Following a hearing where both parties testified, the trial court did not find appellant’s testimony credible and dismissed her petition. We affirm.

Washington County Court of Appeals 09/14/22
Timothy J. Pagliara v. Marlene Moses, et al.
M2020-00990-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ross H. Hicks

This is a consolidated appeal from the trial court’s attorney fee award pursuant to Tennessee Code Annotated section 20-12-119(c), which concerns awards of the costs and reasonable and necessary attorney fees to parties who prevail on a Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted. The plaintiff filed a complaint alleging various claims against the defendants. Upon the defendants’ motion, the trial court entered a judgment of dismissal on December 3, 2018. The plaintiff took a timely appeal, and we affirmed the judgment of dismissal in full. We remanded the case for collection of the costs below. After the Tennessee Supreme Court denied review, the defendants, for the first time, moved for attorney fees and expenses pursuant to Tennessee Code Annotated section 20-12-119(c) in the trial court. The trial court granted that motion and awarded the statutory maximum amount of fees to the defendants. We vacate the trial court’s award of attorney fees and costs. 

Davidson County Court of Appeals 09/14/22
Elizabeth Ann Baker v. Jonathan Garrett Grace
M2021-00116-COA-R3-CV
Authoring Judge: Judge Frank G. Clement Jr.
Trial Court Judge: Judge Ted A. Crozier

This appeal arises from a post-divorce petition to modify a parenting plan, specifically the parenting schedule, and a counter-petition to modify child support. The parties were divorced in Kentucky shortly after the father was diagnosed with a mental illness in 2012. The separation agreement gave the father visitation “as agreed upon by the parties to be supervised at all times by [the father]’s parents.” Over the next four years, the father enjoyed frequent and liberal visitation with the child. This arrangement continued until the grandparents took the father to the child’s school performance. The mother believed the father’s presence was “wildly inappropriate” due to his mental health issues. She subsequently refused the grandparents’ requests to see the child, effectively depriving the father of any parenting time with the child. The father then commenced this action by petitioning to modify the parenting plan so that he would have regularly scheduled parenting time that was not subject to the mother’s unilateral approval. The mother opposed the father’s petition and filed a counter-petition to modify his child support obligation and to award an arrearage judgment for unpaid child support. After a trial, the court found that the mother’s unilateral termination of the father’s visitation was a material change in circumstance and that scheduled, supervised visitation with the father was in the child’s best interest. The trial court also retroactively modified the father’s child support obligation and awarded an arrearage judgment of $7,000 in favor of the mother for unpaid child support. The court denied the mother’s request for pre- and postjudgment interest because the mother’s “own actions . . . caused a lengthy delay to the conclusion of the[] proceedings.” The mother raises several issues on appeal. She contends the trial court lacked subject matter jurisdiction because there was no evidence that the mother, the child, and the father lived in Tennessee for six months before the father’s petition. She also contends that her refusal to allow the grandparents to see the child was not a material change in circumstance. Further, she contends the trial court erred in its calculation of the father’s child support obligation and in failing to award pre- and post-judgment interest under Kentucky law. After carefully reviewing the record, we agree with the trial court in all regards except its denial of interest and the effective date of the modified support order. Therefore, the judgment of the trial is affirmed in part, reversed in part, modified in part, and remanded for further proceedings consistent with this opinion.

Montgomery County Court of Appeals 09/13/22
In Re Grayson M.
E2021-00893-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge John C. Rambo

This is a termination of parental rights case. The trial court terminated mother’s parental rights to her child on multiple grounds. Specifically, the trial court determined that mother had abandoned her child and failed to manifest an ability and willingness to care for the child or assume physical or legal custody of the child. In addition to finding that grounds existed for termination, the trial court concluded termination was in the child’s best interests. The mother now appeals the trial court’s termination. Although we vacate one ground for termination relied upon by the trial court, we otherwise affirm the trial court’s order terminating mother’s parental rights.

Carter County Court of Appeals 09/12/22
In Re Rufus C.
M2021-01538-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Charles B. Tatum

This appeal concerns the termination of a mother’s parental rights to her child.  The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Wilson County (“the Juvenile Court”) seeking to terminate the parental rights of Christina C. (“Mother”) to her minor child Rufus C. (“the Child”).  After a hearing, the Juvenile Court entered an order terminating Mother’s parental rights.  Mother appeals.  We find, as did the Juvenile Court, that the grounds of severe child abuse and persistent conditions were proven against Mother by clear and convincing evidence.  However, due to ambiguity in the Juvenile Court’s order, we vacate the ground of abandonment by failure to provide a suitable home.  We further find, also by clear and convincing evidence, that termination of Mother’s parental rights is in the Child’s best interest.  We affirm the Juvenile Court’s judgment, as modified, terminating Mother’s parental rights to the Child.

Wilson County Court of Appeals 09/12/22
TMS Contracting, LLC v. SmithGroup JJR, INC. et al.
M2020-01028-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Laurence M. McMillan Jr.

The general contractor on a park and marina project brought a professional negligence action against the engineering firm that designed the project and administered the construction contract.  The jury returned a verdict for the general contractor.  And the trial court approved the verdict.  On appeal, the engineering firm argues that it is entitled to a new trial.  It contends that: (1) the jury verdict must be set aside because it is irreconcilably inconsistent; (2) the general contractor’s expert witness was not qualified to testify on the engineering standard of care; (3) and there is no material evidence to support the jury’s findings as to liability or delay damages.  Discerning no reversible error, we affirm.

Montgomery County Court of Appeals 09/09/22
David Lynch, Sr. et al. v. Bradley E. Poe et al.
M2021-00867-COA-R3-CV
Authoring Judge: Judge Frank G. Clement Jr.
Trial Court Judge: Judge Kelvin D. Jones

This is a multi-party premises liability and general negligence action among a roofer who fell from the homeowner’s roof, the homeowner who erected the scaffolding at issue, and the scaffolding company that rented the scaffolding to the homeowner, but did not erect the scaffolding. The complaint alleged that the roofer slipped and fell on the roof and then bounced over to the scaffolding before falling to the ground. The complaint also alleged that had a safety rail been installed on the scaffolding it could have prevented the roofer’s fall. The homeowner filed an answer denying liability and alleging comparative fault against the scaffolding company. Consequently, the roofer filed an amended complaint adding the scaffolding company as a codefendant. After discovery, the scaffolding company filed a motion for summary judgment, alleging that it owed no duty to the roofer or the homeowner because it had no control over the premises nor actual or constructive notice of a dangerous condition on the premises. The roofer and homeowner opposed the motion contending, inter alia, that this is a case of general negligence against the scaffolding company because the homeowner relied on the scaffolding company for guidance during the installation process and the scaffolding company assumed the duty of care to ensure the scaffold was installed safely. They also contend that summary judgment was not appropriate because material facts are in dispute. The trial court summarily dismissed all claims against the scaffolding company, and this appeal followed. We find that the material facts are not in dispute and that the scaffolding company was entitled to summary judgment as a matter of law on claims sounding in premises liability and general negligence. Thus, we affirm the summary dismissal of all claims against the scaffolding company.

Davidson County Court of Appeals 09/09/22