Court of Appeals Opinions

Format: 07/31/2014
Format: 07/31/2014
Joshua Wayne Taylor v. Mary Katherine Taylor
E2013-01734-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jacqueline S. Bolton

This is a post-divorce case stemming from the parties’ competing pleadings, both of which sought a modification of their earlier-filed agreed permanent parenting plan as well as other relief. Within a few months of their divorce, Mary Katherine Taylor (“Mother”) had filed a petition to modify the residential parenting schedule. Joshua Wayne Taylor (“Father”) filed a counterclaim also seeking a modified residential schedule and, furthermore, a change in the custody designation. Following a bench trial, the court found that there was no material change in circumstances warranting a change in the identity of the primary residential parent, but that there was a material change supporting a modification  of the residential schedule. The court ordered a new schedule that substantially increased Mother’s parenting time and provided Father with only standard visitation. The court dismissed each party’s attempt to find the other in contempt. Father appeals. We affirm.

Hamilton County Court of Appeals 07/30/14
Phillip Dean Patrick v. Nelson Global Products, Inc.
E2013-02444-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Donald R. Elledge

This is a retaliatory discharge action filed by Phillip Dean Patrick (“Plaintiff”), a former employee of Nelson Global Products, Inc. (“the Employer”). Plaintiff alleged that, on a day during his employment, he was standing nearby when a co-worker sustained a work-related injury. Plaintiff alleged that he was unlawfully terminated after the injured co-worker filed a claim for workers’ compensation benefits. According to Plaintiff, the co-worker’s filing was a “substantial factor” in the Employer’s decision to discharge him. The trial court granted the Employer’s Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted. Plaintiff appeals. We affirm.

Anderson County Court of Appeals 07/30/14
David M. Dulaney, Et Al. v. Don Walker Construction, Et Al.
E2013-00805-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge W. Neil Thomas, III

David M. Dulaney and Traci L. Dulaney (“Plaintiffs”) sued Don Walker Construction (“Walker Construction”) and Rhonda P. Walker (collectively “Defendants”) with regard to real property and a house constructed and sold by Defendants to Plaintiffs. After a trial, the Circuit Court for Hamilton County (“the Trial Court”) entered its judgment finding and holding, inter alia, that Plaintiffs had failed to prove negligent construction and had failed to prove misrepresentation and violations of the Tennessee Consumer Protection Act. Plaintiffs appeal. We find and hold that the evidence does not preponderate against the Trial Court’s findings, and we affirm.

Hamilton County Court of Appeals 07/30/14
Donald E. Price v. Oxford Graduate School, Inc.
E2013-02467-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jeffrey F. Stewart

This is a breach of contract case in which an administrator filed suit against a school for unpaid severance pay. The school claimed that the administrator did not provide the requisite 30-day notice for severance pay pursuant to the terms of his contract. The trial court found that the administrator satisfied the notice requirement under the term of his contract and awarded him damages. The school appeals. We affirm the decision of the trial court.

Rhea County Court of Appeals 07/30/14
Jamia Rentz v. Michael Rentz
E2013-02414-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge E.G. Moody

This appeal arises from the Parties’ numerous post-divorce issues. As relevant to this appeal, Father filed a petition to correct his child support obligation, alleging that his alimony payments to Mother should have been considered as income in setting his support obligation. Father also sought to modify his support obligation in recognition of the birth of his new son and his payment of health insurance. Following numerous hearings, the trial court declined to consider Father’s alimony payments in setting the support obligation but modified the obligation to reflect the birth of Father’s son and the payment of health insurance. The court awarded Mother attorney fees. Father appeals. We affirm the decision of the trial court.

Sullivan County Court of Appeals 07/30/14
Circle C Construction, LLC v. D. Sean Nilsen, Et Al.
M2013-02330-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

The issue in this case is whether a tolling agreement between the parties precludes the application of the savings statute set forth in Tenn. Code Ann. § 28-1-105(a). We agree with the trial court that the tolling agreement does preclude application of the savings statute and that the plaintiff’s legal malpractice action is barred by the termination date established in the agreement.

Davidson County Court of Appeals 07/29/14
Richard Jeremiah Garrett, Jr. v. Renee Michelle Elmore
M2013-01564-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Wayne C. Shelton

The father of the parties’ four-year-old child appeals the permanent parenting plan established by the juvenile court judge; specifically, he challenges the designation of Mother as the primary residential parent, the parenting schedule, the income imputed to each parent, and child support he is ordered to pay. He also contends Mother waived her right to a de novo rehearing of an earlier “order” by the magistrate, which favored Father, as she did not file a timely request for a de novo hearing; therefore, the juvenile court judge was without authority to conduct a de novo hearing or to enter judgment contrary to the magistrate’s order. We have determined the magistrate’s “order” was not a final judgment because the magistrate never prepared “findings and recommendations in writing,” which are to be provided to the juvenile court judge, as is expressly required by Tenn. Code Ann. § 37-1-107(d). Following the de novo hearing before the juvenile court judge, Mother was named the primary residential parent and she was awarded 218 days of parenting time; Father was awarded 147 days. In calculating child support, the trial court found that Mother was attending college part-time but that she was voluntarily unemployed and imputed income to her based on federal minimum wage. The court found that Father’s evidence concerning his modest income was unreliable and imputed income to Father pursuant to Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(iv). The court additionally afforded Mother a day care credit of $516 per month and set child support pursuant to the guidelines based upon the above findings. Father appeals. Finding no error, we affirm.

Montgomery County Court of Appeals 07/29/14
In Re: Adoption of Joshua M. M. and Zachary M. - Separate Concurrence
M2013-02513-COA-R3-PT
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Ross H. Hicks

In concur fully in the termination of the parents’ parental rights on the ground of persistent conditions. I write separately to state my disagreement with the majority’s conclusion that consideration of the remaining termination grounds–abandonment by willful failure to visit and abandonment by willful failure to support–is somehow rendered unnecessary in light of the parents’ ostensible failure to challenge the finding of persistent conditions.

Montgomery County Court of Appeals 07/28/14
In Re: Adoption of Joshua M. M. and Zachary M.
M2013-02513-COA-R3-PT
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Ross H. Hicks

The appeal involves a petition for termination of parental rights and adoption. The children at issue were removed from their parents’ Wisconsin home in 2005 based on abuse and neglect. Since 2006, the children have been living with the petitioners, the paternal aunt and her husband. The petitioners filed the instant petition in Tennessee to terminate the parental rights of both the mother and the father and to adopt the children. After a trial, the trial court held that the petitioners had established three grounds for termination: (1) abandonment for failure to visit, (2) abandonment for failure to support, and (3) persistent conditions. It also found that termination of parental rights would be in the children’s best interest, and so terminated the parental rights of both biological parents. The parents now appeal. Discerning no error, we affirm.

Montgomery County Court of Appeals 07/28/14
Lisa Doyle v. Town of Oakland
W2013-02078-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge J. Weber McCraw

This is an appeal from a dismissal for improper service of process. The plaintiff filed a complaint against the defendant municipality. The summons and complaint were served on the municipality’s finance director. In its answer, the municipality asserted improper service of process for failure to serve either the municipality’s chief executive or its city attorney. Later, the municipality filed a motion for summary judgment. The motion asserted that, because service of process was insufficient under Tenn. R. Civ. P. 4.04, the complaint was time-barred under the applicable statute of limitations. The trial court granted summary judgment in favor of the municipality. The plaintiff appeals. Discerning no error, we affirm.

Fayette County Court of Appeals 07/28/14
Woodrow Beamer, Jr. v. Agatha Thomas a/k/a Jean T. Beamer
W2013-01279-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Walter L. Evans

This appeal involves dismissal of a complaint. The plaintiff filed this declaratory judgment action, seeking a declaration that the 30-year marriage of his deceased father was void. The plaintiff asserted in the complaint that the allegedly void marriage interfered with his right to inherit from his deceased father. The defendant widow of the deceased father filed a motion to dismiss, asserting that she and the deceased father had resided in Mississippi for over 30 years and asked the trial court to dismiss the petition for lack of personal and subject matter jurisdiction. The trial court found that jurisdiction over the matter was proper in Mississippi and dismissed the complaint for lack of subject matter jurisdiction. We vacate the order of dismissal and remand for preliminary factual findings necessary for effective appellate review of the trial court’s decision.

Shelby County Court of Appeals 07/28/14
Edna Lee Weaver v. Diversicare Leasing Corp. et al.
E2013-01560-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Donald R. Elledge

Edna Lee Weaver (“plaintiff”) was employed as a bookkeeper for the Briarcliff Health Care Center, a nursing home facility in Oak Ridge. After plaintiff’s employment was terminated, she brought this action against her former employer alleging (1) common law retaliatory discharge; (2) violation of the Tennessee Public Protection Act, (“TPPA”), Tenn. Code Ann. § 50-1-304 (2008 & Supp. 2013); and (3) violation of the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-301 (2011). The trial court granted the employer summary judgment on the ground that plaintiff failed to show a causal link between the conduct alleged to be protected, i.e., speaking out against alleged harassment and discrimination against other Briarcliff employees, and her termination. The court further held that the employer established legitimate, non-discriminatory reasons for plaintiff’s termination, and that plaintiff failed to present any evidence tending to show that there were genuine issues of material fact as to whether these reasons were pretextual. We affirm.

Anderson County Court of Appeals 07/28/14
Darrell Trigg v. Little Six Corporation et al.
E2013-01929-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Thomas J. Wright

The issue in this wrongful termination action is the enforceability of an arbitration clause in an agreement between the plaintiff employee and his former employer. Plaintiff executed an employment agreement in 2007. Employer terminated plaintiff without cause in April 2012. He brought this action alleging common law retaliatory discharge and violations of the Tennessee Public Protection Act and the Tennessee Human Rights Act. Employer filed a motion to compel arbitration. Plaintiff argued that the arbitration clause is unenforceable because it is unconscionable due to the “excessive” and “prohibitive” costs of arbitration. The trial court found that the agreement had been freely negotiated and was neither a contract of adhesion nor unconscionable. We affirm the judgment of the trial court enforcing the agreement and ordering arbitration.

Hawkins County Court of Appeals 07/28/14
Barry Craig Taylor v. Sarah Ann McClintock
M2013-02293-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Tom E. Gray

This appeal involves a Tennessee court’s jurisdiction to modify a parenting order entered by a court in another state. The parties were divorced in Florida, and the Florida court designated the mother as the primary residential parent of the parties’ only child. Soon thereafter, the father moved to Tennessee. Years later, after many parenting disputes, the Florida court entered an order granting the father “make-up” parenting time by allowing the child to live in Tennessee with the father for a defined period of time that exceeded six months. At the same time, the Florida court granted the mother permission to relocate to Alabama. After the child had lived with the father in Tennessee for over six months in accordance with the Florida order, the father filed a petition in the Tennessee trial court below, seeking to modify the Florida parenting plan to designate him as the primary residential parent. The trial court held that it did not have subject matter jurisdiction to modify the Florida parenting order under the Uniform Child Custody Jurisdiction and Enforcement Act.  The father now appeals. We reverse the Tennessee trial court’s holding that it lacked subject matter jurisdiction to adjudicate the father’s Tennessee custodypetition, and remand for further proceedings.

Sumner County Court of Appeals 07/25/14
Town of Crossville Housing Authority v. John A. Murphy, Et Al.
M2013-02576-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Andrew R. Tillman

The buyers of an apartment complex brought this action against the sellers for breach of contractand intentionalmisrepresentationafterdiscoveringthatseveralrepresentations made by the sellers in the transactional documents were false. The buyers challenge the propriety of the trial court’s grant of summary judgment to the defendants. After review, we conclude that the defendants are entitled to summary judgment on the plaintiff’s breach of contract claims, and that Paul Murphy and John Murphy are entitled to summary judgment on the plaintiff’s intentional misrepresentation claims. As to the remainder of the defendants, we conclude that summary judgment on the plaintiff’s intentional misrepresentation claims was improper because theydid not meet their initial burden of production on summaryjudgment. We affirm in part and reverse in part the trial court’s judgment and remand for further proceedings.

 

Fentress County Court of Appeals 07/25/14
Ronald Terry v. Tennessee Dept. of Corrections et al.
M2013-02206-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

An inmate in the custody of the Tennessee Department of Correction filed this petition for common law writ of certiorari challenging his placement in involuntary administrative segregation.He contends his placement in administrative segregation is punitive,and violates his constitutional due process rights as well as Department rules. The respondents assert that his placement in administrative segregation was non-punitive because it was necessary for the safety of staff and other inmates; respondents also assert that a writ of certiorari is not the appropriate means to challenge a non-punitive action. Following a review of the record, the trial court dismissed the petition. Finding no error in the trial court’s determination that the inmate’s placement was non-punitive and that, as such, the common law writ of certiorari was not the proper means of challenging his status, we affirm.

Davidson County Court of Appeals 07/25/14
Jane Field v. The Ladies' Hermitage Association
M2013-02635-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Carol McCoy

This is the third round in a battle between these parties over the terms of a deed requiring certain payments to the heirs of the grantor. The property at issue is the historic Tulip Grove Mansion near The Hermitage, in Nashville, Tennessee. The deed conveying Tulip Grove to the Ladies’ Hermitage Association required payments to the heirs of the grantor of one-third “of all gate receipts received by [the LHA] from visitors to Tulip Grove House[.]” In a prior appeal, we held that “the term ‘gate receipts’ in the deed includes the rent paid to LHA for use of the property for special events.” The parties now dispute whether the LHA can deduct expenses from the special event rental fees prior to calculating the heirs’ one-third share. The chancellor held that such a deduction is permissible. We hold that it is not. We therefore reverse and remand for further proceedings.

Davidson County Court of Appeals 07/24/14
In Re Adelyn B.
W2013-02374-COA-R3-JV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge John W. Whitworth

This case arises out of the Mother’s request to relocate with the parties’ minor child. The trial court determined it was in the best interest of the child to remain in Tennessee with Father pursuant to Tennessee Code Annotated Section 36-6-108(c). We affirm the trial court’s best interest finding, and remand for entry of a permanent parenting plan naming Father the child’s primary residential parent and setting a parenting schedule taking into account Mother’s move.

Benton County Court of Appeals 07/24/14
Linda Laseter v. J. Martin Regan, Jr.
W2013-02105-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Donna Fields

This appeal involves a defendant’s attempts to discover certain financial information from the plaintiff’s medical expert in order to facilitate an inquiry into potential bias. The trial court entered several orders requiring the expert witness to provide the requested financial information, which related to his income and compensation, but the expert witness repeatedly failed to comply with the trial court’s orders. The trial court also ruled that the defendant would be permitted to question the expert witness about certain financial information during cross-examination at trial, and the expert witness communicated to the trial judge that he would refuse to answer any such questions. The trial court eventually excluded the medical expert as a witness and allowed the plaintiff time to find a replacement expert. When the plaintiff failed to identify another expert witness within the time allowed, the trial court dismissed the complaint. The plaintiff appeals. We affirm.

Shelby County Court of Appeals 07/24/14
Bryant Jennings v. City of Memphis
W2013-02570-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. HIghers
Trial Court Judge: Judge Arnold B. Goldin

This case involves the eligibility of a Memphis police officer for automatic promotion to thirty-year Captain. The trial court granted summary judgment in favor of the officer. However, because the officer was a temporary employee prior to the cut-off date set forth in the automatic promotion provision, we find that he is not entitled to automatic promotion. We reverse the grant of summary judgment in favor of the officer and we grant summary judgment in favor of the City of Memphis. The case is remanded for further proceedings, as may be necessary, consistent with this opinion.

Shelby County Court of Appeals 07/24/14
Doris Guyear, Heir of Leroy Guyear, Deceased v. Joey Blalock, Et AL.
M2012-01562-COA-R3-CV
Authoring Judge: Senior Judge Ben H. Cantrell
Trial Court Judge: Judge J. Curtis Smith

The owner of a promissory note died, and his widow filed a complaint in the name of his estate to collect the unpaid balance, even though her late husband’s estate had never been opened. She subsequently amended her complaint to designate herself as the plaintiff in her capacity as her late husband’s wife and next friend. The obligors on the note filed a motion for dismissal, contending that the widow had not demonstrated that she was a proper plaintiff or that she had any right to collect on the note. The trial court granted the motion to dismiss. We affirm.

Grundy County Court of Appeals 07/23/14
In Re Estate of Arthur E. Wair, Jr.
M2014-00164-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge David Randall Kennedy, Sr.

This appeal arises from alleged violations of the Tennessee Adult Protection Act (“TAPA”). Arthur E. Wair, Jr. (“Decedent”) executed a last will and testament leaving his entire estate to his friend and accountant, Larry Mullins (“Mullins”). After Decedent died, his siblings Sidney Wair, Ralph Wair, and Juanita Jackson (“Plaintiffs”) sued Mullins in the Circuit Court for Davidson County (“the Trial Court”) not as a will contest but instead alleging that Mullins had exercised undue influence over their brother to manipulate him into executing the will all in violation of TAPA. Mullins filed a motion to dismiss, which the Trial Court granted. Plaintiffs appeal. We hold, inter alia, that any claim for abuse or neglect under TAPA was barred by the one-year statute of limitations for personal torts, and that Plaintiffs otherwise failed to state a claim under TAPA. We affirm the Trial Court.

Davidson County Court of Appeals 07/23/14
In Re Chandler M. - Concurring and Dissenting
M2013-02455-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Thomas C. Faris

I concur fully in everything in the majority’s decision except the majority’s determination that the statutory ground of termination found in Tenn. Code Ann. § 36-1113(g)(6) was proven byclear and convincing evidence. I believe the language of the statute itself is dispositive:
 

Franklin County Court of Appeals 07/21/14
In Re Chandler M.
M2013-02455-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Thomas C. Faris

This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate Father’s parental rights to the Child. The trial court found that clear and convincing evidence existed to support the termination of Father’s parental rights on the statutory grounds of abandonment, persistence of conditions, and confinement under a sentence of ten years or more. The court further found that termination of his rights was in the Child’s best interest. Father appeals. We affirm the trial court’s termination of Father’s parental rights on the grounds of abandonment and confinement under a sentence of 10 years or more.  However, we reverse the trial court on the ground of persistent conditions.

Franklin County Court of Appeals 07/21/14
Samuel Bridgefourth, Jr. v. Santander Consumer USA, Inc.
W2013-02468-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Rubert Samual Weiss

Plaintiff’s car was repossessed. Plaintiff paid the amount owed, but never received the car. Plaintiff sued and won a judgment for conversion. He was also awarded attorney’s fees, first as special damages and then, in an amended order, as punitive damages. Defendant appeals. We reverse because attorney’s fees cannot be awarded as punitive damages and no statute or contract involved in this case provides for attorney’s fees.

Shelby County Court of Appeals 07/21/14