Court of Appeals Opinions

Format: 07/07/2022
Format: 07/07/2022
Teli White v. Shelby County Board of Education
W2020-00278-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Jim Kyle

Appellee, a tenured high school teacher, petitioned for judicial review of Appellant Shelby County Board of Education’s decision to terminate his employment. Without making findings to explain its reasoning, the trial court remanded the case to the school board for a second hearing. From our review, neither party argued that the school board’s initial hearing was procedurally deficient. As such, the trial court’s decision to remand the case to the school board, without findings to support such decision, was error. Vacated and Remanded

Shelby County Court of Appeals 03/22/22
In Re Tristan H.
M2021-00618-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge David Howard

This is an appeal from a termination of parental rights proceeding.  As to the mother of the child at issue, we vacate the trial court’s termination of her parental rights due to procedural concerns that are acknowledged by the Department of Children’s Services.  With respect to the father of the child, however, we conclude that one ground for termination was properly established.  We further conclude that the evidence clearly and convincingly shows that the termination of the father’s parental rights is in the child’s best interest.

Sumner County Court of Appeals 03/22/22
In Re SmileDirectClub, Inc. Securities Litigation
M2021-00469-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Russell T. Perkins

In this action alleging violations of a federal securities law due to purported misrepresentations and omissions in an initial public stock offering, the plaintiffs sought to certify a class consisting of all persons who purchased common stock during the initial public offering.  The trial court certified the class, determining that the requirements of Tennessee Rule of Civil Procedure 23 had been satisfied.  The defendants have appealed.  Although we dismiss the plaintiffs’ claims under section 12 of the Securities Act of 1933, codified at 15 U.S.C. § 77l, due to lack of standing, we otherwise affirm the trial court’s certification of the proposed class.

Davidson County Court of Appeals 03/18/22
In Re Jayce D. et al.
M2021-00539-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Daryl A. Colson

This appeal involves a petition to terminate parental rights.  The juvenile court found by clear and convincing evidence that seven grounds for termination as to the mother were proven: (1) abandonment by failure to visit; (2) abandonment by an incarcerated parent for failure to support; (3) abandonment by an incarcerated parent for wanton disregard; (4) abandonment by failure to establish a suitable home; (5) substantial noncompliance with a permanency plan; (6) persistent conditions; and (7) failure to manifest an ability and willingness to assume custody.  Additionally, the juvenile court found that termination of Mother’s parental rights was in the best interests of the children.  The mother appeals.  On appeal, the Department of Children’s Services does not defend the ground of abandonment by failure to visit.  We reverse the juvenile court in part and affirm in part, affirming the ultimate termination of parental rights.

Overton County Court of Appeals 03/18/22
Gehlen Liebetreu v. Sandra Liebetreu
M2021-00623-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Ross H. Hicks

Father appeals the trial court’s award of unsupervised parenting time and an award of attorney’s fees to Mother. Specifically, Father argues that Mother is a high risk for abduction of the parties’ children and that the trial court abused its discretion in allowing her unsupervised visitation.  We affirm the trial court’s award of unsupervised parenting time to Mother, but we reverse the trial court’s award of attorney’s fees to her.

Montgomery County Court of Appeals 03/18/22
Michael Halliburton v. Tennessee Board of Parole
M2020-01657-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Russell T. Perkins

This appeal concerns the Open Courts Clause of the Tennessee Constitution.  Michael Halliburton (“Halliburton”), an inmate, filed a petition for common law writ of certiorari in the Chancery Court for Davidson County (“the Trial Court”) against the Tennessee Board of Parole (“the Board”) seeking judicial review of his March 10, 2020 parole proceedings before the Board.  The Trial Court dismissed Halliburton’s petition.  In so doing, the Trial Court relied on Tenn. Code Ann. § 41-21-812, which provides that “on notice of assessment of any fees, taxes, costs and expenses under this part, a clerk of a court may not accept for filing another claim by the same inmate until prior fees, taxes, costs and other expenses are paid in full.”  This Court affirmed, holding in part that Halliburton waived his issue of whether Tenn. Code Ann. § 41-21-812 violates the Open Courts Clause in Article I, Section 17 of the Tennessee Constitution.  However, the Tennessee Supreme Court found that Halliburton sufficiently raised the issue in his answer to the Board’s motion to dismiss.  Our Supreme Court granted Halliburton’s application for permission to appeal, and remanded for this Court to consider his Open Courts issue. We hold, inter alia, that Tenn. Code Ann. § 41-21-812 places a constitutionally permissible limitation on the right of inmates to file civil actions.  The statute does not permanently bar inmates from seeking redress; it simply requires they pay outstanding fees first.  Therefore, we hold that Tenn. Code Ann. § 41-21-812 does not violate the Open Courts Clause.  We affirm.

Davidson County Court of Appeals 03/17/22
Tennessee Bank & Trust v. Scott Michael Boruff
M2021-00552-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

A bank brought an action against a borrower for failure to repay a promissory note.  The borrower asserted that the bank failed to mitigate its damages by failing to sell the shares of stock it held as collateral to pay off the loan at a time when the stock’s value was high.  After a bench trial, the trial court granted judgment in favor of the bank, holding that the parol evidence rule prevented consideration of his purported oral modification of the parties’ agreement. Borrower appeals. We affirm the judgment of the trial court.

Davidson County Court of Appeals 03/15/22
Lacy McAllister v. Lawrence County School System Board of Educations, et al.
M2021-00082-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge J. Russell Parkes

This case involves a challenge to a decision to non-renew the employment of a non-tenured teacher. The plaintiff sued the defendants for breach of her one-year contract of employment.  The trial court granted the defendants’ motion for summary judgment and dismissed the plaintiff’s claims with prejudice. The plaintiff appeals. We affirm the decision of the trial court.

Lawrence County Court of Appeals 03/15/22
In Re Conservatorship of John Bruce Wilson, Jr.
M2021-00145-COA-R3-CV
Authoring Judge: Middle Section Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Judge Laurence M. McMillan, Jr.

This appeal arises from a conservatorship case in which the chancery court authorized the attorneys ad litem for the ward of the conservatorship to enter into a compromise and settlement regarding a dispute among the ward and his four siblings over their deceased father’s estate. The sole issue on appeal is whether the Chancellor abused his discretion in finding the settlement was in the ward’s best interest. Finding no abuse of discretion, we affirm.

Montgomery County Court of Appeals 03/15/22
Edward Ronny Arnold v. Deborah Malchow et al.
M2021-00695-COA-R3-CV
Authoring Judge: Western Section Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Amanda Jane McClendon

Appellant appeals from various orders entered against him in two consolidated cases. Because we lack subject matter jurisdiction, we dismiss this appeal

Davidson County Court of Appeals 03/15/22
Samuel Morris Reed v. Cars of Nashville, Inc.
M2021-00854-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This action involves a contractual dispute over the sale of a 2010 Honda Civic that a pro se appellant purchased from a used car dealer.  The appellant’s brief significantly fails to comply with Tennessee Rule of Appellate Procedure 27.  Accordingly, we find that any issues on appeal are waived.  We dismiss the appeal.

Davidson County Court of Appeals 03/15/22
In Re Kailey A. Et Al.
E2021-00801-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Kenneth N. Bailey, Jr.

This appeal involves the parental rights of a mother, Mary K. (“Mother”), to her minor children, Kailey A., Abigail K., Isaiah K., and Izzabella K. (collectively, “the Children”). The Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate Mother’s parental rights on the statutory ground of severe child abuse committed against the Children. The Greene County Juvenile Court (“the Juvenile Court”) found by clear and convincing evidence that Mother had severely abused the Children and that it was in the Children’s best interest for Mother’s parental rights to be terminated. Discerning no error, we affirm.

Greene County Court of Appeals 03/14/22
Dolores C. Jones v. Smith & Nephew INC.
W2021-00426-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Valerie L. Smith

Appellant filed this products liability action more than 10 years after undergoing a total hip replacement using Appellee's hip implant system. The trial court granted Appellee's motion to dismiss on the ground that Appellant's lawsuit fell outside the 10-year statute of repose and any exceptions thereto. Discerning no error, we affirm.

Shelby County Court of Appeals 03/14/22
Commercial Painting Company INC. v. The Weitz Company LLC ET AL
W2019-02089-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor JoeDae L. Jenkins

This is the third appeal arising from a commercial construction project. Most recently, the case went to trial before a jury, which awarded the plaintiff subcontractor $1,729,122.46 in compensatory damages under four separate theories and $3,900,000.00 in punitive damages. The trial court further awarded the plaintiff pre- and post-judgment interest and attorney’s fees and costs. We conclude the economic loss rule is applicable to construction contracts negotiated between sophisticated commercial entities and that fraud is not an exception under the particular circumstances of this case. Because punitive damages and interest are not authorized under the parties’ agreement, those damages are reversed. The compensatory damages of $1,729,122.46 awarded for breach of contract are affirmed. The award of attorney’s fees incurred at trial are vacated for a determination of the attorney’s fees incurred in obtaining the compensatory damages award. No attorney’s fees are awarded on appeal. We therefore reverse in part, affirm in part, and vacate in part.

Shelby County Court of Appeals 03/11/22
Brad Rothbauer v. Ashley Sheltrown
W2021-00607-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Boyette Denton

Following the establishment of paternity, a father petitioned to change his child's surname. The trial court denied the petition. The trial court's order does not contain findings as to whether the name change is in the child's best interests. Therefore, we vacate the judgment and remand.

Hardeman County Court of Appeals 03/10/22
LaFarge North America v. Warren Mills ET AL.
W2020-00959-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Mary L. Wagner

This is the second appeal of this case. After remand from the first appeal, the trial court denied Appellant’s motion to reopen discovery concerning Appellant’s counterclaim, wherein he asserted that the guaranty he signed was void and unenforceable. In the first appeal, this Court affirmed the trial court’s dismissal of Appellant’s counterclaim, finding that the disputed guaranty was, in fact, valid. As such, we conclude that the trial court did not err in precluding further discovery on the dismissed counterclaim. We grant Appellee’s request for an award of attorney’s fees and costs for frivolous appeal, and remand the case for determination of Appellee’s reasonable appellate attorney’s fees and costs and entry of judgment on same.

Shelby County Court of Appeals 03/09/22
In Re Caroline R. Et Al.
E2021-00245-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Dwight E. Stokes

The trial court terminated a mother and father’s parental rights to their children on the grounds of (1) abandonment by failure to establish a suitable home; (2) failure to manifest an ability and willingness to personally assume custody or financial responsibility; (3) persistence of conditions; and (4) substantial noncompliance with the permanency plan. The trial court also ruled that the termination ground of abandonment by failure to visit had been proven against the father. The trial court further found that termination of the mother and father’s parental rights was in the children’s best interest. We affirm the trial court’s conclusion that clear and convincing evidence supports these grounds for termination. We also affirm the trial court’s determination that the termination of the mother and father’s parental rights is in the best interest of the children.

Sevier County Court of Appeals 03/09/22
Jerry Alan Thigpen v. The Estate of Kent Howard Smith et al.
M2020-01015-COA-R3-CV
Authoring Judge: Western Section Presiding Judge J. Steven Stafford
Trial Court Judge: Senior Judge William B. Acree

Appellant’s brief in this case fails to substantially comply with Rule 27 of the Tennessee Rules of Appellate Procedure. Therefore, we dismiss this appeal.

Trousdale County Court of Appeals 03/09/22
Megan Arndts Woody v. Jeremy Brice Woody
E2020-01200-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Casey Mark Stokes

In this divorce case, a father appeals the trial court’s reduction of his parenting time after the parties had co-parented equally by agreement, and then nearly equally under a temporary court order. He also appeals the award of alimony. We reverse the residential parenting schedule portion of the parenting plan entered by the trial court and remand for the imposition of a plan that better maximizes both parents’ time with the child. Regarding alimony, because the trial court did not make the required findings, its judgment on that issue is vacated.

Meigs County Court of Appeals 03/08/22
Hope King v. Stephen Bradley
E2021-00261-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Michael W. Moyers

In this negligent misrepresentation case, an insured alleges that her insurance agent made misrepresentations about the contents of an agreement she authorized her husband to sign on her behalf. The trial court granted summary judgment in favor of the insurance agent, finding that the insured was “responsible for what she signs or what she has her agent to sign.” Discerning no error, we affirm the trial court.

Knox County Court of Appeals 03/08/22
In Re Estate of Patsy Glover Bonifield
W2020-01593-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor George R. Ellis

Appellant, an attorney, filed a creditor’s claim against Decedent’s estate for legal fees allegedly owed to Appellant for his representation of Decedent in her divorce action and in her challenge of the seizure of certain assets by the State of Tennessee. Appellant argued that he represented Decedent in the seizure matter under a contingency fee agreement; however, Appellant failed to produce a valid contingency fee agreement. At the hearing, the only proof of fees Appellant produced was an invoice for $3,847.51, and the trial court awarded him the full amount of that invoice. Discerning no error, we affirm.

Crockett County Court of Appeals 03/07/22
Barry Vaulton Et Al. v. Polaris Industries, Inc. Et Al.
E2021-00489-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge O. Duane Slone

This appeal concerns an ATV (all-terrain vehicle) accident. Sam Vaulton, a minor, by his parents, next friends and natural guardians, Barry Vaulton and Joy Vaulton, and Barry Vaulton and Joy Vaulton, individually (“Plaintiffs,” collectively) sued Polaris Industries, Inc. (“Polaris”) and Ritchie Power Sports, LLC (“Ritchie”) (“Defendants,” collectively) in the Circuit Court for Jefferson County (“the Trial Court”) for injuries Sam Vaulton received from the winch on his ATV (called “The General”). The General was manufactured by Polaris and sold by Ritchie. Sam Vaulton lost his right index finger when he directed his friend to push the “out” button on the winch-controls while Sam Vaulton was holding the winch-hook and the cable went in rather than out. Defendants filed motions for summary judgment, which the Trial Court granted. Plaintiffs appeal. We affirm the Trial Court’s conclusion that there is no genuine issue of material fact as to whether Plaintiffs were provided an owner’s manual or safety instructions; the undisputed evidence shows they were provided. However, there are genuine issues of material fact as to whether a tether was attached to the winch-hook and whether the General’s winch was in a defective or unreasonably dangerous condition when it left Polaris’ control. We hold further that the Trial Court erred in concluding at this summary judgment stage that Polaris had no duty to attach a rubber stopper to the winch. We, therefore, reverse the Trial Court’s grant of summary judgment to Defendants, and remand for further proceedings consistent with this Opinion. The judgment of the Trial Court is thus affirmed, in part, and reversed, in part.

Jefferson County Court of Appeals 03/04/22
Deborah Elaine Murdock v. Joel Montgomery Murdock
W2019-00979-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor JoeDae L. Jenkins

In this divorce case, Husband and Wife filed cross-appeals seeking review of the trial court’s: (1) division of marital property; (2) award of alimony in futuro to Wife; and (3) award of alimony in solido to Wife. Husband raises additional issues concerning the trial court’s reliance on testimony from Wife’s medical expert and the trial court’s refusal to apply the missing witness rule. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 03/02/22
In Re Kendall R. et al.
M2020-01226-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joseph A. Woodruff

Father appeals from the Williamson County Circuit Court’s order suspending his parenting time with his minor children.  The Circuit Court had tried the matter de novo following an appeal by Father from prior proceedings in the Williamson County Juvenile Court.  Based upon our review of the record, we conclude that Father failed to timely perfect his appeal to the Circuit Court from the Juvenile Court’s order.  Therefore, we conclude that the Circuit Court did not have subject matter jurisdiction to hear the appeal, and we vacate its order and dismiss the case. 

Williamson County Court of Appeals 03/02/22
Fitness and Ready Meals LLC et al. v. Eat Well Nashville LLC
M2021-00105-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Joseph A. Woodruff

A seller entered into an agreement to sell its meal preparation business and assets to a purchaser who was also in the meal preparation business.  When the seller failed to perform certain of its obligations under the agreement, the purchaser ceased performing its contractual obligations.  The seller filed a breach of contract claim against the purchaser, and the purchaser moved for summary judgment based on the seller committing the first material breach.  The trial court granted summary judgment to the purchaser, and the seller appealed.  We affirm as modified and remand for a determination of the purchaser’s reasonable attorney fees incurred on appeal.

Williamson County Court of Appeals 03/01/22