Court of Appeals Opinions

Format: 01/28/2022
Format: 01/28/2022
Mike Bedsole D/B/A Tiny House Chattanooga v. Sinclair Broadcast Group, Inc., Et Al.
E2021-00431-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Kyle E. Hedrick

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

Hamilton County Court of Appeals 12/16/21
Trevor Seth Adamson et al. v. Sarah E. Grove et al.
M2020-01651-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joe Thompson

This appeal involves the sufficiency of a notice of appeal that arose out of one of two actions that were consolidated at the trial court. Plaintiff listed only one of the case numbers from the consolidated cases in his notice of appeal. Because he articulates no issues stemming from the dismissal of the case number he designated, we dismiss this appeal and affirm the judgment of the trial court. The cause is remanded for calculation of the attorney’s fees incurred by the defendants in defending this appeal. 

Sumner County Court of Appeals 12/15/21
Karen Nisenbaum v. Michael Nisenbaum
M2021-01377-COA-T10B-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joseph A. Woodruff

A petitioner in a divorce case moved to recuse the trial judge.  The trial judge denied the motion, and this accelerated interlocutory appeal followed.  Because the petition for recusal appeal fails to comply with Tennessee Supreme Court Rule 10B, we dismiss the appeal. 

Williamson County Court of Appeals 12/15/21
State of Tennessee v. Sidney Eugene Watkins
W2020-01006-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Kyle C. Atkins

The Defendant, Sidney Eugene Watkins, was convicted by a jury of alternative counts of possession of marijuana with the intent to sell or deliver and possession of a firearm during the commission of those dangerous felonies, as well as simple possession of methamphetamine, simple possession of alprazolam, and possession of drug paraphernalia. Following the jury verdict, the Defendant renewed his motion for judgment of acquittal regarding the two firearm convictions (counts 7 and 8). The trial court granted the Defendant’s motion for judgment of acquittal on the firearm counts, finding the evidence insufficient to support those convictions. The State appeals. Because we conclude that a reasonable jury could have found all of the necessary elements of the crime of possession of a firearm during the commission of a dangerous felony, we reverse the trial court’s decision to grant the Defendant’s motion for judgment of acquittal and reinstate the convictions for those counts. We remand to the trial court for sentencing on those counts, as well as for correction of the judgment form in count 13 for the reasons stated in this opinion.

Madison County Court of Appeals 12/15/21
Rachel Green et al. v. State of Tennessee
M2020-01244-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Commissioner James A. Haltom

In this action filed against the State of Tennessee (“the State”), alleging negligence by employees of the Tennessee Department of Children’s Services (“DCS”), the Claims Commission (“the Commission”) dismissed the plaintiffs’ claims due to lack of subject matter jurisdiction.  Determining that subject matter jurisdiction existed in the Commission, we vacate the Commission’s order and remand this matter to the Commission for further proceedings consistent with this opinion. 

Court of Appeals 12/15/21
In Re Ni'Kaiya R.
E2021-00517-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert D. Philyaw

In this termination of parental rights case, Father/Appellant appeals the termination of his parental rights to the minor child on the grounds of: (1) abandonment by failure to visit, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(i); (2) failure to manifest an ability and willingness to assume custody, Tenn. Code Ann. § 36-1-113(g)(14); and (3) grounds applicable only to putative fathers, Tenn. Code Ann. § 36-1-113(g)(9). Father/Appellant also appeals the trial court determination that termination of his parental rights is in the child’s best interest. Discerning no error, we affirm.

Hamilton County Court of Appeals 12/15/21
In Re Cyric W.
M2021-00410-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Sharon Guffee

This appeal involves a petition to terminate parental rights.  The juvenile court found by clear and convincing evidence that five grounds for termination were proven: (1) abandonment by failure to support; (2) abandonment by failure to provide a suitable home; (3) substantial noncompliance with a permanency plan; (4) persistent conditions; and (5) mental incompetence.  The juvenile court also found that termination was in the best interests of the child.  The mother appeals.  We reverse the trial court in part and affirm in part.

Williamson County Court of Appeals 12/13/21
Flora Setayesh v. State of Tennessee
M2020-01490-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Commissioner James A. Haltom

This appeal involves the interpretation of a provision in an employment contract executed by a professor and Nashville State Community College.  The appellant, a tenured faculty member, transitioned from a teaching position to an administrative position and back again, and asserts that Nashville State breached the terms of her employment contract when it refused to pay her 80% of her administrative salary when she returned to a faculty position.  The Tennessee Claims Commission held a trial on the breach of contract issue and determined that the contract referred to a Tennessee Board of Regents policy that did not entitle the professor to 80% of her administrative salary, and therefore, the professor’s breach of contract action failed.  The Commissioner recalculated the amount of money the professor was owed for her spring 2018 salary.  The professor appeals, asserting that the Commissioner erred in refusing to consider parol evidence in rendering its decision.  We agree with the professor that parol evidence is helpful to understanding the parties’ intent as expressed in the agreement, and we reverse the Commissioner’s decision.  The case is remanded for calculation of the professor’s faculty salary at no less than 80% of her administrative salary.

Court of Appeals 12/13/21
Brent Landon Carter v. Shannon Dale Carter
M2020-01704-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Ronald Thurman

This divorce action concerns the trial court’s classification and division of the marital estate and award of alimony to the wife.  We affirm the judgment of the trial court.

Overton County Court of Appeals 12/10/21
Robert Welch et al. v. Catherine Welch et al.
M2021-00081-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Amanda Jane McClendon

Prior to his death, the decedent brought suit for personal injury and loss of consortium in the Circuit Court of Kanawha County, West Virginia against more than seventy defendants after being diagnosed with mesothelioma.  Ultimately, the parties in that matter reached a settlement. After informing the West Virginia court of the resolution of the matter, the case was closed by the court. Shortly thereafter, and prior to full disbursement of the settlement proceeds, the decedent died from mesothelioma.  Several of the decedent’s heirs then brought the present action in Tennessee, seeking to have the settlement proceeds received pursuant to the West Virginia litigation characterized as wrongful death proceeds.  The trial court dismissed the heirs’ action, and this appeal followed.  We affirm the trial court’s dismissal.

Davidson County Court of Appeals 12/10/21
In Re: Megan Y
E2021-00837-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge J. Michael Sharp

The Notice of Appeal filed by the appellants, Jason Y. and Katina Y., stated that appellants were appealing the judgment entered on July 1, 2021. As the order appealed from does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

McMinn County Court of Appeals 12/08/21
In Re Trinity P.
M2020-01481-COA-R3-JV
Authoring Judge: Middle Section Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Judge Lee Bussart

The mother of a seven-year-old child appeals the trial court’s decision to grant grandparent visitation. Following an evidentiary hearing, the trial court concluded that a rebuttable presumption of irreparable harm existed under Tennessee Code Annotated § 36-6-306(a)(5), generally referred to as the Grandparent Visitation Statute, because the child lived with the grandparents for more than twelve months, a cessation of the relationship would create a danger of substantial harm, and visitation was in the child’s best interests based on the length and quality of the relationship and the existing emotional ties between the child and the grandparents. The trial court, however, made no finding concerning the threshold issue in -306(a): whether the mother opposed or severely reduced the grandparents’ visitation prior to their filing the petition. Following a de novo review of the record, we have determined that the grandparents failed to establish that the mother opposed or severely reduced their visitation prior to filing the petition. As a consequence, the Grandparent Visitation Statute was not implicated. Therefore, thejudgment of the trial court is reversed, and this matter is remanded with instructions to dismiss the petition.

Marshall County Court of Appeals 12/08/21
Katherine D. Morgan v. Kenneth F. Morgan, Jr.
E2020-00618-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge W. Jeffrey Hollingsworth

In this divorce case, Kenneth F. Morgan, Jr. (“Father”) appeals the trial court’s judgment adopting a permanent parenting plan that designates Katherine D. Ward2 (“Mother”) as primary residential parent of the parties’ child and grants Father parenting time of every other weekend. Father also argues that the trial court erred in (1) allowing the expert psychologist tasked with a parental assessment to testify in the manner in which he did; (2) declining Father’s request to remove the child’s guardian ad litem (“GAL”) for alleged bias; (3) ordering Father to pay two-thirds of the GAL fees awarded by the court; and (4) awarding Mother attorney’s fees and costs. We affirm the judgment of the trial court.

Hamilton County Court of Appeals 12/07/21
Shahnaz Poursaied v. State of Tennessee
M2021-00693-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Commissioner James A. Haltom

The claimant has appealed from the dismissal of her claims against the State of Tennessee. Because the claimant did not file her notice of appeal with the clerk of this Court within the time permitted byTennessee Rule of Appellate Procedure 4(a), we dismiss the appeal.

Court of Appeals 12/07/21
In Re K.W.
M2021-00408-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Sharon Guffee

This is an appeal from a termination of parental rights case.  The trial court determined that three grounds for termination existed and that termination of the father’s parental rights was in the child’s best interests.  We vacate one ground for termination relied upon by the trial court due to the application of an incorrect standard in the court’s order, but we affirm the court’s reliance on the remaining grounds for termination and its best interests determination.  The trial court’s termination of the father’s parental rights is accordingly affirmed.

Williamson County Court of Appeals 12/07/21
Timothy Rosebrough v. Karen Caldwell f/k/a Karen Rosebrough
W2020-00538-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Senior Judge William B. Acree

In this post-divorce case, Mother appeals the trial court’s denial of her motion to modify the permanent parenting plan to designate her as the Child’s primary residential parent. Discerning no error, we affirm.

Madison County Court of Appeals 12/06/21
A.B. Normal, LLC v. State of Tennessee
M2020-01390-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Commissioner James A. Haltom

A property owner whose property was destroyed by a lightning-induced fire filed suit against the State on the theory of negligence.  The Claims Commission dismissed the case after concluding that any negligence on the part of the State was not the proximate cause of the property owner’s injury.  Finding no error, we affirm the decision of the Claims Commission.

Court of Appeals 12/03/21
James G. Akers v. Gregory Funding, LLC et al.
M2020-01351-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Amanda Jane McClendon

A homeowner sued to stop a foreclosure on his home.  Most of the defendants filed motions to dismiss, which the trial court orally granted.  But before written orders of dismissal could be entered, the homeowner filed a notice of voluntary dismissal.  The court then entered an order of voluntary dismissal without prejudice, as well as the orders of dismissal with prejudice.  Claiming that the orders were inconsistent, the homeowner filed a post-judgment motion for reconciliation of conflicting orders.  The court clarified that the order granting the voluntary dismissal without prejudice only applied to claims against defendants that did not file motions to dismiss.  But the dismissals with prejudice applied to claims against defendants that did file such motions.  Finding no error, we affirm.    

Davidson County Court of Appeals 11/30/21
In Re Bailey J. Et Al.
E2021-00446-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Janice Hope Snider

A mother appeals the termination of her parental rights to her twins. The juvenile court terminated on grounds of abandonment by an incarcerated parent and substantial noncompliance with the permanency plans. The court also determined that termination was in her children’s best interest. Mother argues that she lacked notice of the grounds and consequences of abandonment and the procedures for terminating her rights. She also argues that the evidence of the grounds for terminating her parental rights and of her children’s best interests was less than clear and convincing. We conclude Mother waived her notice argument. And while we agree that the evidence of substantial noncompliance with the permanency plans was less than clear and convincing, clear and convincing evidence does support the ground of abandonment by an incarcerated parent and the court’s best interest determination. So we affirm termination of Mother’s parental rights.

Hamblen County Court of Appeals 11/30/21
In Re Conservatorship of Jerome Edward Douglas
M2020-01685-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Amanda Jane McClendon

This appeal arises from the grant of an emergency conservatorship.  Specifically, the appellant, as the wife of the individual at issue, contends that the trial court improperly granted the emergency conservatorship, alleging that there existed no legal basis to do so.  She further contends that the assessment of attorney’s fees against her was improper.  Finding no error, we affirm the judgment of the trial court.

Davidson County Court of Appeals 11/30/21
In Re Markus E.
M2019-01079-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Philip E. Smith

A mother and father appeal the termination of their parental rights.  The trial court concluded that there was clear and convincing evidence of two statutory grounds for termination of the mother’s rights and one statutory ground for the termination of the father’s parental rights.  The trial court also concluded that there was clear and convincing evidence that termination of their parental rights was in their child’s best interest.  After a thorough review, we affirm.

Davidson County Court of Appeals 11/30/21
Park Place Boat Dock Association, Inc. Et Al. v. Gary Phillips Construction, LLC Et AL.
E2021-00160-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor John C. Rambo

This appeal concerns easement rights. The Park Place Community Association, Inc. (“the PPCA”) and the Park Place Boat Dock Association, Inc. (“the PPBDA”) (“Plaintiffs,” collectively) filed suit in the Chancery Court for Washington County (“the Trial Court”) against Gary Phillips Construction, LLC and Gary Phillips (“Phillips”). Plaintiffs sought access to a certain boat dock and sun deck on Boone Lake over a strip of land previously owned by the community’s developer that Phillips bought at a bankruptcy auction. After a trial, the Trial Court found Plaintiffs had proven the elements of an easement by implication and an easement by necessity over the property at issue. Phillips appeals raising a number of issues, including whether Plaintiffs have standing. We find, inter alia, that Plaintiffs have standing to bring this action. We further find that lake access has been, and is, essential for Plaintiffs’ use and beneficial enjoyment of Park Place, in some instances representing the exclusive reason why people bought their homes in the community. Plaintiffs have proven the elements of an easement by implication and an easement by necessity. We affirm the judgment of the Trial Court in all respects.

Washington County Court of Appeals 11/29/21
Deborah P. Linn v. Mark A. Linn
M2020-01624-COA-R3-CV
Authoring Judge: Western Section Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Louis W. Oliver, III

At issue in this appeal is the trial court’s characterization of the alimony obligation in the parties’ divorce decree. The trial court determined that the alimony is part alimony in solido and part alimony in futuro. Based in part on this conclusion, the court denied Husband’s petition to modify his alimony obligation. The trial court also entered judgment against Husband for alimony arrearages, life insurance premiums, and Wife’s discretionary costs and attorney’s fees. Additionally, the court found Husband in contempt for failing to pay alimony and life insurance premiums. Because we conclude the trial court mischaracterized the alimony at issue, we affirm in part, reverse in part, and vacate in part its judgment.

Sumner County Court of Appeals 11/29/21
Miracle Tenney Ex Rel. Desirae B. v. Daniel Paul Bullington
M2020-01432-COA-R3-CV
Authoring Judge: Middle Section Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Chancellor Joseph A. Woodruff

The father of a fourteen-year-old daughter appeals the propriety of two separate orders of protection issued upon the mother’s petition for the protection of their daughter. Because both orders of protection have expired, we dismiss the father’s challenges to the propriety of the orders of protection on the basis of mootness and decline the father’s claim to recover his attorney’s fees. Notwithstanding the dismissal of the father’s issues, the mother seeks to recover the attorney’s fees and costs she incurred in defending the father’s appeal. The Tennessee Supreme Court’s recent decision inNew v. Dumitrache, 604 S.W.3d 1 (Tenn. 2020), makes it clear that the legislative mandate in Tenn. Code Ann. § 36-3-617(a)(1) extends to the reasonable attorney’s fees and costs incurred on appeal by victims of domestic abuse, even if the respondent’s challenge to the order of protection is no longer justiciable. Accordingly, we hold that the mother is entitled to an award of the reasonable attorney’s fees and costs she incurred in defending this appeal and remand this case for the trial court to make the appropriate award.

Williamson County Court of Appeals 11/29/21
First Community Mortgage, Inc. v. Appraisal Services Group, Inc., et al.
W2020-01246-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor W. Michael Maloan

A mortgage company appeals the dismissal of its lawsuit against an appraisal company and its employee as barred by the applicable statute of limitations. The appraisal company and its employee urge this Court to affirm the dismissal of the lawsuit and to award them attorney’s fees under Tennessee Code Annotated section 20-12-119(c). We affirm the dismissal of the mortgage company’s action against the appraisal company and its employee. We conclude, however, that section 20-12-119(c) does not authorize the award of attorney’s fees incurred for appellate work.

Weakley County Court of Appeals 11/29/21