Court of Appeals Opinions

Format: 04/25/2018
Format: 04/25/2018
Fisher Dezevallos v. Terry Burns Insurance Agency, LLC
M2017-02030-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Appellee brought a claim against Appellant insurance agency for “unlawfully and fraudulently” withdrawing funds from Appellee’s bank account and accepting premium payments on two insurance policies after Appellee allegedly cancelled his policies. Although not asserted as a claim in its general sessions summons, the circuit court, on appeal, awarded Appellee a judgment for unjust enrichment in the amount of $397.00. Because the preponderance of the evidence does not support the judgment, we reverse and remand.  

Davidson County Court of Appeals 04/24/18
Jennie Roles-Walter, Et Al. v. Robert W. Kidd, Et Al.
M2017-01417-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Franklin L. Russell

This is a property damage case. Appellants assert that their property is being damaged by the defective gutter systems of adjacent buildings, which are owned by Appellees. The trial court granted Appellees’ Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss Appellants’ complaint, finding that Appellants’ claim was barred by the three-year statute of limitations applicable to claims for property damage. Tenn. Code Ann. §28-3-105. Appellants contend that their complaint sounds in nuisance, specifically temporary nuisance, and not in negligence. Accordingly, Appellants argue that the statute of limitations renews with each rain. While we agree with the trial court that Appellants’ claim is one for negligence and not for nuisance, we conclude that the trial court erred in dismissing the complaint as time-barred. Applying the discovery rule and giving Appellants all reasonable inferences based on the averments in their complaint, we conclude that Appellants have pled facts sufficient to survive the motions to dismiss.  

Lincoln County Court of Appeals 04/24/18
In Re Estate of James Donald Meadows
M2017-01062-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael Meise

Appellants, an estate and its co-executors, appeal from the trial court’s order disqualifying their counsel due to a purported conflict of interest. Because the appellants have appealed from a non-final order, we dismiss this appeal for lack of jurisdiction. 

Dickson County Court of Appeals 04/24/18
In Re Estate of Francis J. Kowalski
M2017-00533-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Randy Kennedy

Thomas Kowalski, Michael Kowalski, John J. Kowalski, and Margaret Kowalski (“Plaintiffs”) appeal the February 2, 2017 judgment of the Circuit Court for Davidson County (“the Trial Court”) finding and holding, inter alia, that the holographic Last Will and Testament of Francis J. Kowalski (“the Will”) contained a residuary clause such that Francis J. Kowalski (“Deceased”) did not die partially intestate and that the Will granted a conditional life estate in real property located at 2820 Azalea Place (“Azalea Place”) in Nashville to Trevor Walker for as long as Walker operates Thrill Building Music, LLC. We find and hold that the Will does not contain a residuary clause and that Deceased died partially intestate. We further find and hold that the Will granted a fee determinable estate in Azalea Place to Trevor Walker for as long as Walker operates Thrill Building Music, LLC. Given all this, we reverse the Trial Court’s judgment as to whether the Will contained a residuary clause and modify the judgment to reflect that the Will granted a fee determinable estate in Azalea Place to Trevor Walker for as long as Walker operates Thrill Building Music, LLC.

Davidson County Court of Appeals 04/23/18
Toniann Whitaker v. James B. Devereaux
E2017-01812-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin, Jr.
Trial Court Judge: Judge Ben W. Hooper, II

After Appellant’s son violated an order of protection entered against him, Appellant sought relief from the trial court. Although the trial court ruled on some of the issues raised by Appellant, not all of her claims were adjudicated. We therefore dismiss the appeal due to the absence of a final judgment.

Jefferson County Court of Appeals 04/23/18
Eddison Williams v. State of Tennessee
E2017-00626-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: William O. Shults, Commissioner

This appeal involves the jurisdiction of the Tennessee Claims Commission to hear an action brought by a former medical student, Eddison Williams (claimant), against the Quillen College of Medicine at East Tennessee State University. Claimant alleged that the State, acting through medical school officials, “negligently breached its contractual duties regarding following policies before dismissing [him] on disciplinary grounds.” He argued his action stated a claim for “negligent care, custody and control of persons,” a category of claims the Commission has jurisdiction to hear under Tenn. Code Ann. § 9-8- 307(a)(1)(E) (Supp.2017). The Commission concluded it had no subject matter jurisdiction. We affirm.

Davidson County Court of Appeals 04/23/18
Thomas Nathan Loftis, Sr. v. Randy Rayburn
M2017-01502-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kelvin D. Jones

The former director of a culinary program filed a complaint alleging defamation by implication or innuendo and false light invasion of privacy against an individual he claimed was the source of statements made in a newspaper article. The defendant moved to dismiss the complaint on the basis that the statements were not actionable as a matter of law. The trial court dismissed the complaint, and the former director appealed. We affirm the trial court’s judgment dismissing the complaint and remand the issue of attorney’s fees to the trial court.

Davidson County Court of Appeals 04/20/18
Sugar Creek Carriages v. Hat Creek Carriages, Et Al.
M2017-00963-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This case involves a claim for procurement of breach of contract. The plaintiff and the defendants operate competing businesses that provide carriage rides for hire in Nashville, Tennessee. The plaintiff sued the defendants for violating Tenn. Code Ann. § 47-50-109 by procuring one of its carriage drivers to breach his noncompete agreement with the plaintiff by driving a carriage for the defendants’ business. The trial court granted summary judgment in favor of the defendants upon the determination that the plaintiff could not prove an essential element of a procurement of breach of contract claim, that the underlying contract was enforceable. Agreeing with the determination that the noncompete agreement was not enforceable, we affirm.

Davidson County Court of Appeals 04/19/18
E Solutions For Buildings, LLC v. Knestrick Contractor, Inc., Et Al.
M2017-00732-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Russell T. Perkins

This appeal involves a construction contract dispute among a general contractor, a subcontractor, and the subcontractor’s equipment supplier regarding liability for construction project delays. After a four-day bench trial, the trial court resolved most of the substantive issues among the parties and ultimately determined that the prevailing parties were entitled to awards of attorney’s fees pursuant to various contractual provisions. However, the trial court did not make the awards of attorney’s fees at that time because the parties had not submitted sworn itemizations of services rendered. As a result, the trial court directed the parties to renew their requests for attorney’s fees after any appeals were exhausted. The requests for attorney’s fees were granted in part and denied in part “without prejudice.” Due to the outstanding unresolved issues regarding the attorney’s fee awards, we conclude that the appeal must be dismissed. 

Davidson County Court of Appeals 04/17/18
In Re: T.W. Et Al.
E2017-00317-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jerri Bryant

In this termination of parental rights case, J.B.H. and H.D.H. (prospective parents) filed a petition to terminate the parental rights of M.A.W. (mother) and E.R.W. (father) in order to adopt two of their minor children, T.W. and B.W. (the children). S.A.G. (grandmother) and M.W.G. (grandfather) are the maternal grandparents of the children. They joined the prospective parents as co-petitioners. The trial court found clear and convincing evidence that mother and father abandoned their children by willfully failing to visit and support them during the relevant statutory time frame. By the same quantum of proof, the court also determined that termination is in the best interest of the children. Consequently, the court entered an order terminating the parents’ rights. Mother appeals the trial court’s order terminating her rights. We reverse.

McMinn County Court of Appeals 04/17/18
Kathlene Denise Roberts v. Willie Dino Roberts, Jr.
M2017-00479-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

Husband appeals the trial court’s decision in this post-divorce marital property dispute, arguing that the trial court erred in finding that certain retirement benefits “matured” in 2012. Discerning no reversible error, we affirm. 

Montgomery County Court of Appeals 04/16/18
Shelby County Board of Education, et al. v. Tennessee Secondary School Athletic Association
W2018-00083-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Jim Kyle

Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 04/16/18
Bruce Guy, Jr., et al. v. Tennessee Secondary School Athletic Association
W2018-00082-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Walter L. Evans

Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 04/16/18
Christopher Conrad Fichtel v. Jill Crowell Fichtel
M2017-00409-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Philip E. Smith

This is a post-divorce/parental relocation matter in which the father of two minor children opposed the mother’s intended relocation to Ohio. The father also sought a modification of the parties’ parenting plan regardless of whether the mother was permitted to relocate. The mother filed a cross-petition to modify the parenting plan and child support. After determining that the parties spent substantially equal intervals of time with the child, the court conducted a best-interest analysis to determine whether it was in the children’s best interest to relocate with the mother. The court concluded that it was not in the children’s best interest to relocate and modified child support to reflect the parties’ current incomes. Although the trial court made an explicit finding that the mother had indeed relocated without the children, the trial court never ruled on the parties’ competing claims to modify the original parenting plan or entered a new parenting plan. Having reviewed the record transmitted to us on appeal, we observe that the judgment appealed from is not final. Given the absence of a final judgment, we dismiss the appeal for lack of subject matter jurisdiction.  

Davidson County Court of Appeals 04/13/18
500 Block, LLC v. Donald Bosch
E2016-02449-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This case was brought by the landlord of a building that was leased to a limited liability company for purposes of operating a restaurant; the restaurant failed, and the company defaulted on its obligations under the lease and took bankruptcy. The landlord filed suit to recover damages from four persons who had signed agreements guaranteeing performance of the lease to the extent of the guarantors’ interest in the lessee. The case proceeded to trial against one guarantor and, after a bench trial, the court dismissed the action, finding that the guaranty lacked consideration and that the guaranty was invalid and unenforceable because only the guarantor signed it. On appeal, the landlord contends that the trial court erred in both respects. Upon a de novo review of the record, we reverse the judgment of the trial court and remand the case for entry of a judgment against the guarantor in the amount of $60,037.97 and for a determination of interest on the judgment.

Knox County Court of Appeals 04/12/18
In Re: Roderick R. Et Al.
E2017-01504-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin, Jr.
Trial Court Judge: Judge Telford E. Forgerty, Jr.

This is a termination of parental rights case. Upon the petition of the Tennessee Department of Children’s Services, the trial court terminated the parental rights of both the mother and father of two children. Clear and convincing evidence supports each ground relied upon by the trial court and the trial court’s conclusion that termination of both parents’ parental rights is in the children’s best interest. Accordingly, we affirm.

Sevier County Court of Appeals 04/11/18
In Re: Conservatorship For Ralph C. Williams
E2017-00777-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Rex A. Dale

This is a conservatorship action in which the wife sought appointment as her husband’s conservator. Following a hearing, the court found that the husband was fully disabled and in need of a conservator to manage his personal and financial affairs. The court appointed the wife to serve in that capacity and awarded her spousal support. We affirm.

Loudon County Court of Appeals 04/11/18
Marilyn (Reso) Ramsey v. Warren A. Reso, Jr.
E2017-01305-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This is a post-divorce case dealing with numerous issues of interpretation of the parties’ marital dissolution agreement and permanent parenting plan. The plaintiff wife appealed one portion of the on-going case. We affirm the ruling of the trial court.

Knox County Court of Appeals 04/11/18
Lara C. Stancil v. Todd A. Stancil
M2017-01485-COA-R3-CV
Authoring Judge: Judge. D. Bennett
Trial Court Judge: Judge Michael Binkley

In this post-divorce dispute, Mother filed a petition to modify parenting time and obtained an ex parte restraining order based upon Father’s physical altercation with his wife during parenting time with the parties’ children. After a hearing in December 2015, the trial court suspended Father’s parenting time until he took steps to address his anger management issues. At a review hearing in August 2016, the trial court determined that the suspension of Father’s parenting time was no longer in the best interest of the children and adopted the recommendations of Father’s psychologist concerning the reintegration of Father into the lives of the children. The trial court subsequently awarded Mother her attorney fees and discretionary costs incurred throughout the case. On appeal, Father asserts that he should have been awarded his attorney fees for the period of time after the December 2015 hearing and that the trial court erred in awarding Mother her discretionary costs for the same period. Both parties seek their attorney fees on appeal. We affirm the trial court’s award of attorney fees in full. With respect to discretionary costs, we affirm the trial court’s award with the exception of the costs of preparation and travel, which are not authorized by Tenn. R. Civ. P. 54.04. Each party shall pay his or her own attorney fees and costs on appeal.
 

Williamson County Court of Appeals 04/10/18
Lascassas Land Company, LLC v. Jimmy E. Allen, Et Al.
M2017-01400-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This appeal involves a dispute between two limited liability companies (and an individual with an interest in both companies) over four lots in a residential subdivision. After a two-day bench trial, the trial court awarded the plaintiff-company $116,151.87 in proceeds from the sale of lots that were originally owned by the plaintiff. However, the trial court ruled that the defendant-company was entitled to recover $512,795.07 for the amount it expended constructing homes on those lots. The plaintiff-company has appealed, challenging numerous rulings made by the trial court. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

Rutherford County Court of Appeals 04/10/18
Ludye N. Wallace v. Metropolitan Government Of Nashville And Davidson County, Tennessee Et Al.
M2018-00481-SC-RDM-CV
Authoring Judge: Chief Justice Jeffrey S. Bivins
Trial Court Judge: Chancellor Claudia Bonnyman

We assumed jurisdiction over this appeal pursuant to Tennessee Code Annotated section 16-3-201(d)(1) and Rule 48 of the Rules of the Tennessee Supreme Court and ordered expedited briefing and oral argument. The issue we must determine is whether the vacancy in the Office of Mayor of Metropolitan Nashville and Davidson County may be filled at the August 2, 2018 election, or whether it must be filled at a special election pursuant to section 15.03 of the Metropolitan Charter. We conclude that section 15.03 of the Metropolitan Charter requires that a special election be set, that the Davidson County Election Commission therefore acted in contravention of the Charter in setting the election on August 2, 2018, and that the trial court erred in denying Mr. Wallace’s claims for relief and dismissing this case. Accordingly, the judgment of the trial court is reversed. The Commission is hereby ordered to set a special election in accordance with Tennessee Code Annotated section 2-14-102(a). This opinion is not subject to rehearing under Tennessee Rule of Appellate Procedure 39, and the Clerk is directed to certify this opinion as final and to immediately issue the mandate.  

Davidson County Court of Appeals 04/10/18
Jerry Harlan, Et Al. v. Cornerstone Church Of Nashville, Inc.
M2017-00671-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor William E. Young

This appeal involves a dispute over ownership of three easements and allegations of fraud stemming from the failure of Appellee to honor its alleged oral promise to purchase the disputed easements and an adjacent parcel of land owned by Appellants. The trial court, on Appellee’s Motion to Dismiss, ruled that Appellants had no interest in the easements and that Appellants’ claim arising from the alleged oral promise to purchase the easements and the adjacent parcel of land was barred by the Statute of Frauds. We affirm the trial court’s judgment and remand.

Davidson County Court of Appeals 04/09/18
Michael Brandon Adams v. State of Tennessee
M2018-00606-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge James G. Martin, III

This is an appeal from an order entered on February 5, 2018, dismissing the appellant’s Petition for Writ for Habeas Corpus ad Testificandum. The appellant filed his notice of appeal on April 2, 2018, together with a motion to accept a late notice of appeal. Because the thirty day time limit for filing a notice of appeal is jurisdictional in civil cases and cannot be waived, we deny the appellant’s motion and dismiss the appeal.

Hickman County Court of Appeals 04/09/18
In Re Sharda R., Et Al.
M2018-00616-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Charles L. Rich

This is an appeal from an order entered on February 23, 2018, terminating the mother’s parental rights. The mother filed her notice of appeal on April 5, 2018, together with a motion to accept an untimely notice of appeal. Because the thirty-day time limit for filing a notice of appeal is jurisdictional and cannot be waived, we deny the mother’s motion and dismiss the appeal.

Bedford County Court of Appeals 04/09/18
Local TV Tennessee, LLC d/b/a WREG-TV v. N.Y.S.E. Wolfchase, LLC d/b/a The New York Suit Exchange
W2017-00675-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Walter L. Evans

This is a breach of contract action in which both parties assert affirmative claims. Plaintiff, a Memphis TV station, sued one of its advertisers for breach of an advertising agreement to recover approximately $511,000 for past advertising services. Defendant Advertiser filed a counterclaim under the Tennessee Consumer Protection Act, for constructive fraud, and for breach of contract. The trial court granted judgment on the pleadings with respect to the breach of contract claim in favor of Plaintiff and awarded damages of $510,000. Subsequently, the trial court granted Plaintiff’s Motion to Dismiss Defendant’s Second Amended Counter-Complaint in its entirety, finding that Defendant failed to state any claims upon which relief could be granted. Defendant appealed. We have concluded that Defendant’s Answer constituted a denial that Defendant owed approximately $511,000 in unpaid advertising fees; therefore, Plaintiff’s Motion for Judgment on the Pleadings should have been denied. We affirm the trial court’s dismissal of Defendant’s claims for constructive fraud; however, we have determined that the factual allegations in the Second Amended Counter-Complaint are sufficient to state claims for breach of contract, and claims under the Tennessee Consumer Protection Act. Therefore, we reverse the dismissal of these claims and remand for further proceedings.

Shelby County Court of Appeals 04/09/18