Court of Appeals Opinions

Format: 11/19/2017
Format: 11/19/2017
In Re Estate of Lois Culp
M2016-02433-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Stella L. Hargrove

This case deals with the issue of whether a personal representative of an estate can obtain additional attorney’s fees incurred in connection with an appeal−an appeal that occurred after the personal representative had disbursed all the estate funds other than those belonging to the estate beneficiary who pursued the appeal. That individual−Donnie Culp (Culp)−appealed the sale of his late mother’s real and personal property by Dianne Rich (the personal representative), executor of his late mother’s estate. Prior to Culp’s appeal, the personal representative obtained a court order closing the estate and awarding her $43,256.37 in attorney’s fees. These attorney’s fees included an estimated 40 hours for an appeal. After paying all estate debts, including her compensation and attorney’s fees, the personal representative disbursed all remaining estate funds, other than Culp’s share, to the other beneficiaries. The personal representative now seeks $17,500 in additional attorney’s fees for the over 70 hours that her attorney spent on the appeal. The trial court denied the personal representative’s request for additional attorney’s fees, holding that it would be inappropriate to award them to her out of Culp’s share of the estate. The court noted that the personal representative should have raised the issue before distributing the rest of the estate. We hold that the personal representative’s attorney was fully compensated by the initial award of attorney’s fees for her attorney’s services on appeal. We further hold that no estate funds remain from which the personal representative could obtain additional attorney’s fees because she distributed all funds other than Culp’s share. Additionally, we hold that Culp lacks standing to ask this Court to determine whether the personal representative should be individually liable for her attorney’s fees. The personal representative appeals. We affirm.  

Wayne County Court of Appeals 11/17/17
Jerretta Certain v. Judy Goodwin
M2016-00889-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Howard W. Wilson

On February 6, 2014, defendant Judy Goodwin, principal of Barfield Elementary School, received an anonymous telephone call. The caller said she was a nurse and the grandparent of a child that she had just picked up at the school. The caller reported that she had seen a teacher, as it turned out, plaintiff Jerretta Certain, who appeared to the caller to be in an altered state. The caller said Ms. Certain was putting children in danger. Principal Goodwin decided to investigate the caller’s claim. She asked Ms. Certain, school nurse Jessica Floyd, and Student Resource Officer Ward Bates, to come to Ms. Certain’s classroom. All three observed Ms. Certain. Generally speaking, each considered her to be in an altered state. They described her as appearing drowsy, slow, and walking with difficulty. They discovered in her bags seven bottles of medications, all prescribed for Ms. Certain, in properly-marked childproof containers. Ms. Certain alleges that Principal Goodwin stated, “I believe what we’re looking at is an addiction to prescription drugs.” The principal asked Nurse Floyd, “would you want your child in her classroom next year knowing that she’s addicted to prescriptions like this?” Ms. Certain brought this action against Principal Goodwin for defamation, invasion of privacy, and intentional infliction of emotional distress. The trial court granted Principal Goodwin summary judgment on all claims, holding as a matter of law that Ms. Certain could not establish the following essential elements: (1) actual malice; (2) that the alleged statements were defamatory; and (3) that the statements were published. Ms. Certain appeals. As modified, we affirm the judgment of the trial court. 

Rutherford County Court of Appeals 11/17/17
In Re Conservatorship of Waltraud E. Lemonte
M2016-02205-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This appeal involves competing conservatorship petitions filed by the children of the Ward. Appellees, daughters of the Ward, filed a petition seeking to be named as co-conservators for the Ward and seeking to revoke powers of attorney executed by the Ward in favor of her son who is the Appellant. Appellant filed his answer and counter-petition to be appointed conservator. Appellees opposed Appellant’s counter-petition on the ground that he is a convicted felon and, therefore, ineligible to serve as the Ward’s conservator, under Tennessee Code Annotated Section 40-20-115. The trial court found that Appellant’s Nevada sentence for drug charges disqualified him from serving as the Ward’s agent or fiduciary. As such, the trial court revoked the Appellant’s powers of attorney and dismissed Appellant’s counter-petition. Discerning no error, we affirm.

Montgomery County Court of Appeals 11/17/17
Verrina M. Shields Bey v. Wilson & Associates, PLLC, et al.
W2016-01330-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Jim Kyle

This is an appeal challenging the trial court’s order denying a motion for interlocutory appeal. Due to the deficiencies in Appellant’s brief on appeal, we find that she waived consideration of any issues on appeal and hereby dismiss the appeal.

Shelby County Court of Appeals 11/17/17
Laronda F. Johnson v. Barry Dominick
M2016-01643-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Ross H. Hicks

This is an appeal from the trial court’s order concerning retroactive child support.  Because the trial court’s order lacks the findings of facts and conclusions of law required under Tennessee Code Annotated Section 36-2-311(a)(11), we vacate the order as to retroactive child support. The order is otherwise affirmed.

Montgomery County Court of Appeals 11/16/17
R.B.E., PLLC et al. v. Emergency Coverage Corporation
E2016-02378-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Kristi M. Davis

This case focuses on a service contract between R.B.E,PLLC (RBE) and Emergency Coverage Corporation pursuant to which Dr. Robert Bruce Evans and his company were to provide medical services in emergency rooms. The issue before us is whether the subject contract obligates Emergency Coverage to schedule Dr. Evans for a minimum number of hours. Dr. Evans and RBE filed a breach of contract action alleging that Emergency Coverage failed to pay the required minimum monthly amounts due under the contract. Emergency Coverage filed a motion for summary judgment asserting that the contract contains a minimum availability requirement for Dr. Evans but no obligation on the part of Emergency Coverage to use Dr. Evans for a guaranteed number of hours. The trial court granted the motion. The plaintiffs appeal. We affirm

Knox County Court of Appeals 11/16/17
State, ex rel., Schrita O. v. Robert T., Concur in part and Dissent in part
W2017-00073-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Dan H. Michael

I concur in the majority’s decision in all respects but one. I respectfully disagree with the majority’s decision to “vacate the trial court’s judgment as to the calculation of retroactive child support and remand so that child support may be calculated based on the actual number of days Father exercised parenting time.”

Shelby County Court of Appeals 11/16/17
State, ex rel., Schrita O. v. Robert T.
W2017-00073-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Dan H. Michael

This is an appeal from the juvenile court’s order establishing paternity and retroactive child support, for a child who was born in 1996 and reached majority during the course of these proceedings. In 2014, with the assistance of a Tennessee Department of Human Services Title IV-D Staff Attorney, the child’s mother filed a UIFSA petition in the Juvenile Court of Shelby County to establish paternity and an initial child support order and to recover retroactive child support for her son. Genetic testing confirmed Father’s parentage, and the trial court ordered Father to pay retroactive child support in the amount of $127,530.00. Father timely appealed. For the following reasons, we affirm in part and vacate in part.

Shelby County Court of Appeals 11/16/17
Rutherford County, Tennessee v. Delinquent Taxpayers Of Rutherford County, Tennessee, Et Al.
M2016-01254-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: J. Mark Rogers

A purchaser bought real property at a delinquent tax sale in Rutherford County, Tennessee. The delinquent taxpayer who owned the property at the time of the sale moved to redeem the property within one year of confirmation of the sale. After moving to redeem the property, the delinquent taxpayer conveyed it to a third party. The tax sale purchaser contested the redemption and, alternatively, requested reimbursement for expenses paid to preserve the value of the property during the redemption period. The trial court confirmed the redemption, divested title from the tax sale purchaser, vested title in the third party, and found that the tax sale purchaser was only entitled to reimbursement for property taxes paid on the property. The tax sale purchaser appealed. We affirm as modified.

Rutherford County Court of Appeals 11/15/17
Priscilla Brooke Wilson v. Patrick Shane Phillips
M2017-00097-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge J. Curtis Smith

The trial court denied mother’s petition to make her the primary residential parent of the parties’ three children. Based upon this court’s review of the facts, we have concluded that the trial court erred in assessing the best interest of the children and reverse the decision of the trial court.

Marion County Court of Appeals 11/15/17
Erie Insurance Exchange v. Gary H. Maxwell, Et Al.
M2017-00193-COA-R9-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ronald Thurman

Erie Insurance Exchange (“Erie”) commenced this declaratory judgment action seeking a declaration that Erie has no duty to defend its insureds in a separate action because the policies of insurance issued to its insureds provided no coverage for the claims asserted in that action. The insureds are the defendants in a separate action in which the buyers of the insureds’ home allege that the insureds made negligent misrepresentations concerning the property’s propensity to flood. The buyers sought to recover damages they sustained from flooding that occurred after the sale. Following discovery, Erie filed a motion for summary judgment on the ground that the “negligence” and “negligent misrepresentation” claims asserted against its insureds do not contain any allegations that constitute an “occurrence” as that term is defined in the policies; therefore, there is no coverage and no duty to defend the insureds. The trial court denied the motion, and this appeal followed. We have determined that the “negligence” and “negligent misrepresentation” claims asserted against Erie’s insureds do not arise from an “occurrence” as that term is defined in the insurance policies; therefore, there is no coverage, and Erie has no duty to defend the insureds in the other action. For these reasons, we reverse the judgment of the trial court and remand with instructions to enter summary judgment in favor of Erie.

Putnam County Court of Appeals 11/15/17
Michael Joseph Crew Hensley v. Shellie Nicole Bouma Hensley
E2017-00354-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Amanda Sammons

In this post-divorce parenting dispute, the mother appeals the trial court’s judgment modifying the residential co-parenting schedule and reducing the number of co-parenting days allotted to the mother from that provided in the prior permanent parenting plan. Having determined that the order appealed fails to resolve the issue of a corresponding modification in child support, we conclude that it is not a final order. Accordingly, we dismiss the appeal for lack of subject matter jurisdiction.

Campbell County Court of Appeals 11/15/17
Mike Breen, Et Al v. Janice C. Sharp
M2016-02415-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor David D. Wolfe

This appeal arises from an action for partition of undeveloped real property located in Stewart County, Tennessee. The property consists of three non-contiguous tracts and is owned by three people ─ two brothers and their aunt. The brothers (“Plaintiffs”) seek partition of all of the property by sale. Their aunt (“Defendant”) seeks partition in kind. Pursuant to an agreed order of reference, the trial court referred the case to a special master to determine the ownership interests of the parties, whether the property could be partitioned in kind, and whether there were any encumbrances. Prior to the completion of the master’s report, Defendant filed a motion for summary judgment. The court delayed ruling on the motion until after the master’s report was completed. Thereafter, the special master filed a report in which he found that Defendant owned a one-half undivided interest, and each Plaintiff owned an undivided one-fourth interest. The master also concluded that the overall value of the property would be reduced if the property was partitioned in kind among the three parties. Defendant filed eight exceptions to the report. After reviewing the report and evidence presented at the master’s hearing, the trial court concurred with all but one of the master’s findings. As for that one issue, the court ordered a partial partition in kind of one tract, awarded that parcel to Defendant, and ordered her to pay $195,948 to Plaintiffs for the value of that parcel. The remaining property was to be sold with the proceeds divided according to the parties’ respective interests. The court also denied Defendant’s motion for summary judgment. Defendant appeals, contending the trial court erred by (1) delaying its ruling on her summary judgment motion; (2) determining that Plaintiffs each owned an undivided one-fourth interest; (3) ruling that the entire property could not be partitioned in kind; and (4) valuing the parcel awarded to her in kind based on incompetent evidence. We affirm the trial court on all issues except for the value assigned to the parcel awarded to Defendant, and modify the judgment in that respect only.

Stewart County Court of Appeals 11/14/17
Sherry Lynn Dalrymple v. Shawn Patrick Dalrymple
M2016-01905-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Ross H. Hicks

In this post-divorce litigation, Father, who had been designated primary residential parent of the parties’ two children, filed a petition to modify the parenting plan, citing his military reassignment from Fort Campbell, Tennessee, to Huntsville, Alabama. Mother filed a counter petition, seeking to be named the primary residential parent. The parties reached agreement as to the parenting schedule but could not agree on which of them would be the primary residential parent. The trial court held a hearing and determined that it was in the children’s best interest for Mother to be named the primary residential parent. Father appeals. Discerning no reversible error, we affirm the judgment of the trial court.

Montgomery County Court of Appeals 11/14/17
In Re Estate of Bill Morris
M2016-02557-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jeffrey F. Stewart

This is an appeal from the trial court’s denial of Appellants’ motion pursuant to Tennessee Rule of Civil Procedure 60.02. In In re Estate of Morris, No. M2014-00874-COA-R3-CV, 2015 WL 557970, (Tenn. Ct. App. Feb. 9, 2015), perm. app. denied (Tenn. June 15, 2015) (Morris I), this Court held that Decedent’s will was invalid for failing to comply with the statutory formalities for executing a will. Following the Supreme Court’s denial of certiorari, the parties entered into an agreed order declaring the will invalid and agreeing to administer the Decedent’s estate as an intestate estate. After our decision in Morris I and entry of the agreed order, the legislature amended Tennessee Code Annotated section 32-1-104 to validate wills executed in the manner of the will at issue here. Relying on this amendment, Proponents of the will filed a Rule 60.02 motion asserting that "it is no longer equitable that the [agreed final judgment] should have prospective effect and relief from the operation is justified.” The trial court denied Rule 60.02 relief and proponents of the will appeal. Discerning no error, we affirm.  

Franklin County Court of Appeals 11/13/17
Natalie Sharp v. Tennessee Department of Commerce And Insurance
M2016-01207-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Thomas W. Brothers

This appeal involves the trial court’s order of disclosure of certain public records over the objection of the Tennessee Department of Commerce and Insurance and the corresponding denial of attorney fees for failure to disclose the said records. We affirm.  

Davidson County Court of Appeals 11/09/17
Adnan A. Alattiyat v. Faiza A. Qasqas
W2016-00855-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert Samual Weiss

This is a divorce case. Appellant/Husband appeals the trial court’s denial of his motion for summary judgment, his motion to vacate the pendente lite award, the division of marital property, and the award of alimony. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 11/09/17
Jason Donaldson v. Susan Donaldson
E2017-01806-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge M. Nicole Cantrell

This is an appeal from an order granting a motion filed pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. The order on appeal vacated and set aside the Final Decree of Divorce, Permanent Parenting Plan and Marital Dissolution Agreement previously entered by the Trial Court in the proceedings below. The appellee has filed a motion to dismiss this appeal arguing that the lack of a final judgment deprives this Court of jurisdiction. We agree and grant the motion to dismiss.

Anderson County Court of Appeals 11/09/17
Linda Beard v. James William Branson, et al
M2014-01770-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robert E. Burch

This appeal is before the court on remand from the Supreme Court for our consideration of two issues that were not resolved by the Supreme Court in Beard v. Branson, No. M2014-01770-SC-R11-CV, __ S.W.3d __, 2017 WL 3725519 (Tenn. Aug. 30, 2017). This is a medical malpractice, wrongful death action in which Plaintiff seeks to hold Trinity Hospital, LLC (“Trinity”) and James William Branson, M.D. (“Dr. Branson”), liable for the wrongful death of Ruth Hartley on September 29, 2004. Plaintiff alleged that Mrs. Hartley died because of delay in treatment of a bowel perforation she developed as a complication of colon surgery performed by Dr. Branson. In a partial summary judgment ruling, the trial court determined that a non-party, Stanley Anderson, M.D. (“Dr. Anderson”), the radiologist with whom Trinity contracted to provide services to its patients, was an apparent agent of Trinity and that Trinity was vicariously liable for any negligent acts or omissions of Dr. Anderson. Following a trial, the jury found in favor of Plaintiff and awarded damages in the amount of $750,000.00, allocating 50% of the fault for Mrs. Hartley’s death to Trinity, 10% to Dr. Anderson, and 40% to Dr. Branson. The two issues we must consider are: (1) whether the trial court erred in granting partial summary judgment to Plaintiff by finding that Dr. Anderson was the apparent agent of Trinity; and (2) whether the trial court erred in assessing discretionary costs in the amount of $68,945.85 against Trinity. Finding no error, we affirm.

Houston County Court of Appeals 11/08/17
ADP, LLC v. Eric Manchir
M2016-02541-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal concerns an employment-related restrictive covenant. Eric Manchir (“Manchir”) worked as a sales manager for ADP, LLC (“ADP”), a company that deals in human resources and business outsourcing matters. As a prerequisite to obtaining restricted stock options from ADP, Manchir consented to a restrictive covenant agreement (“the Agreement”). The Agreement contained, among other things, a non-competition clause extending to twelve months after Manchir left ADP. New Jersey law governs the Agreement. Manchir later resigned from ADP and went to work for an ADP competitor, Paycor, Inc. (“Paycor”). ADP sued Manchir in the Chancery Court for Davidson County (“the Trial Court”) for breach of contract and sought specific enforcement of the Agreement. ADP filed a motion for summary judgment, which the Trial Court granted. The Trial Court also awarded ADP, pursuant to a provision in the Agreement, attorney’s fees and costs. Manchir appeals. We hold, inter alia, that the Agreement is reasonable and enforceable under New Jersey law, that Manchir breached the Agreement, and that specific performance is an appropriate remedy. We affirm the judgment of the Trial Court.

Davidson County Court of Appeals 11/08/17
In Re Brooklyn S., Et Al
M2017-00390-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Justin C. Angel

This is a dependent and neglect action in which the mother of three minor children appeals the circuit court’s finding that her children were subjected to severe abuse and that she “either committed the severe abuse herself, or knowingly failed to protect her four month old infant from the severe abuse that led to his death.” Mother contends the circuit court erred by allowing three grandparents who intervened in the juvenile court proceedings to fully participate as parties in the circuit court proceedings. She further contends the circuit court failed to conduct a true de novo hearing following her appeal from the juvenile court, and that the circuit court erred by admitting the transcripts from the juvenile court hearings into evidence. We affirm the trial court in all respects but one. We find the evidence insufficient to clearly and convincingly establish that Mother committed the severe abuse herself; however, we affirm the circuit court’s ruling that Mother committed severe child abuse by knowingly failing to protect Hunter from the severe abuse that led to his death.

Franklin County Court of Appeals 11/08/17
In Re Ashton B.
W2017-00372-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Walter L. Evans

The partial guardian of the child appeals the trial court’s order assessing the totality of the guardian ad litem’s fees to it following the denial of the partial guardian’s termination of parental rights petition. Because guardian ad litem’s fees may be assessed against parties pursuant to Rules 17.03 and 54.04 of the Tennessee Rules of Civil Procedure in parental termination proceedings, we affirm the decision of the trial court.

Shelby County Court of Appeals 11/07/17
B&W Pipeline, LLC v. Tennessee Regulatory Authority Et Al.
M2016-02013-COA-R12-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge:

B&W Pipeline, LLC (“B&W”), a public utility that owns a gas pipeline in three Tennessee counties, filed a petition with the Tennessee Regulatory Authority (“the Authority”) seeking a rate increase. As part of the rate increase request, B&W sought to include in the rate base $2.6 million in acquisition costs that it had incurred when it purchased the pipeline and several oil and gas wells in 2010. A contested case hearing took place on September 14, 2015. Following deliberation, the Authority denied B&W’s proposed acquisition adjustment and instead utilized a 2008 federal income tax return filed by the pipeline’s previous owner to establish the pipeline’s value for the purpose of determining the rate base. The Authority issued its final order on March 10, 2016. B&W timely filed a motion for reconsideration. The Authority denied the motion for reconsideration with respect to the value of the pipeline while granting the motion for reconsideration with respect to certain due diligence and other costs B&W incurred in the acquisition. After the submission of briefs, the Authority affirmed its decision to exclude the additional acquisition costs. The Authority issued a final order concerning reconsideration on August 4, 2016. B&W filed a timely petition for review with this Court on October 3, 2016. Discerning no error, we affirm the Authority’s decision.

Court of Appeals 11/06/17
Christine Greenwood v. City of Memphis, et al.
W2016-00897-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge James F. Russell

This is a case about an unleashed German shepherd. The dog belonged to Appellant’s neighbor, who allowed the dog to remain unleashed in his yard. Appellant reported this to several employees of the City of Memphis, who ultimately determined that the dog was appropriately restrained in the neighbor’s yard by an invisible electric fence. Appellant was unsatisfied with this determination and filed suit against the City and its employees for tort claims and violations of her constitutional rights. The trial court dismissed Appellant’s suit for failure to state a claim upon which relief could be granted. We affirm.

Shelby County Court of Appeals 11/06/17
Ray W. Buck v. Accurate C & Services, Inc., ET Al.
E2017-00231-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Donald Elledge

Ray W. Buck (“Plaintiff”) appeals the January 4, 2017 order of the Circuit Court for Anderson County (“the Trial Court”) granting summary judgment to Accurate C & S Services, Inc. (“Accurate”) and R&R Properties of Tennessee, LLC (“R&R”) in this suit for premises liability. We find and hold that the defendants made properly supported motions for summary judgment and that Plaintiff failed to respond with genuine disputed issues of material fact showing that a rational trier of fact could find in his favor. We, therefore, affirm the grant of summary judgment.

Anderson County Court of Appeals 11/06/17