Court of Appeals Opinions

Format: 08/23/2017
Format: 08/23/2017
In Re Homer D., Et Al. - Dissent
M2017-00298-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Daryl A. Colson

The majority opinion dismisses this appeal due to the failure of the appellant, Sarah R. P. B., the child’s mother, to sign the initial notice of appeal as required by Tenn. Code Ann. § 36-1-124(d) or to file an amended notice that included her signature within the thirty-day time period for perfecting appeals. The majority has concluded that although the amended notice of appeal “did contain Appellant’s signature, it was filed . . . more than thirty days after the entry of the trial court’s judgment. As such, it, too, is insufficient to confer subject-matter jurisdiction on this Court.” I recognize that the majority opinion is based on two recent Court of Appeals decisions, but I respectfully disagree with those decisions and with the notion that Tenn. Code Ann. § 36-1-124(d) is jurisdictional. I also disagree with the notion that the statute compels this court to dismiss appeals in parental termination cases without affording the parent the opportunity to cure the defect by subsequently signing an amended notice of appeal even if that occurs after the expiration of the thirty-day time period set out in Tenn. R. App. P. 4(a). 

Overton County Court of Appeals 08/22/17
In Re Homer D., Et Al.
M2017-00298-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Daryl A. Colson

This is a termination of parental rights case. Upon the trial court’s entry of an order terminating her parental rights, Appellant filed a timely notice of appeal. However, Appellant did not comply with Tennessee Code Annotated Section 36-1-124(d) (Supp. 2016) in that she failed to sign the notice of appeal. Although Appellant attempted to correct the error by filing an amended notice of appeal, the amended notice was filed after the thirty day time period for perfecting appeals had expired. As such, this Court lacks subject-matter jurisdiction to adjudicate the appeal, and it is dismissed with prejudice.

Overton County Court of Appeals 08/22/17
Henriette M. Fisher v. Chandranita Ankton
W2016-02089-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert Samual Weiss

The trial court dismissed this lawsuit because proper service of process was not effectuated on the defendant. Because the defendant waived the specific defense relied upon by the trial court to dismiss this case by failing to comply with Rule 8.03 of the Tennessee Rules of Civil Procedure, we reverse the decision of the trial court and remand for further proceedings.

Shelby County Court of Appeals 08/22/17
In Re: Dae'Jrien T.
E2017-00051-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Frank V. Williams, III

This is an appeal from a final decree of adoption following the entry of an order terminating the parental rights of the appellant to her minor child. The only notice of appeal filed by the appellant within the time provided by Tennessee Rule of Appellate Procedure 4(a) for the filing of a notice of appeal did not comply with Tennessee Code Annotated § 36-1-124(d), which states: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” Because this notice of appeal was insufficient to invoke the jurisdiction of this Court, this appeal is dismissed.

Loudon County Court of Appeals 08/21/17
Roy Zumstein v. Roane County Executive/Mayor, Assessor Of Property, Trustee
E2016-02037-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin, Jr.
Trial Court Judge: Judge Frank V. Williams, III

This appeal arises from a taxpayer’s successful challenge of the appraisal value assigned to his real property by the Roane County Property Assessor. The taxpayer filed a petition for judicial review challenging an administrative decision that affirmed the assessor’s valuation. The trial court ruled in favor of the taxpayer, overturning the administrative decision and ordering Roane County to pay the taxpayer’s attorney’s fees. On appeal, Roane County argues that the trial court had no authority to assess attorney’s fees against it. We agree and reverse the trial court’s award of attorney’s fees.

Roane County Court of Appeals 08/21/17
Carlisa Elmi v. Cheatham County Board of Education, et al.
M2016-02024-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor David D. Wolfe

This is an appeal of the termination of a tenured teacher’s employment pursuant to the Tenure Act, Tenn. Code Ann. §§ 49-5-501
and -515. The Cheatham County Director of Schools initiated these proceedings by filing a notice of charges recommending the termination of the tenured teacher on the grounds of insubordination and inefficiency. Following an administrative hearing, the hearing officer recommended dismissal. When the Cheatham County Board of Education voted to sustain the hearing officer’s decision and to dismiss the tenured teacher, the teacher sought review of the decision in the chancery court. The chancery court affirmed her dismissal, and this appeal followed. We have determined that the evidence preponderates against the chancery court’s factual findings and its conclusion that the teacher was insubordinate and inefficient as those terms are defined in the Tenure Act. We have also determined that the record fails to establish any basis for the dismissal of a tenured teacher. Therefore, we reverse the judgment of the chancery court and remand with instructions for the chancery court to determine the relief to which the tenured teacher is entitled for being dismissed without justification. This includes whether the teacher is entitled to back pay pursuant to Tenn. Code Ann. § 49-5-511(a)(3) and, if so, in what amount. 

Cheatham County Court of Appeals 08/18/17
Franklin-Murray Development Company, L.P. v. Shumacker Thompson, PC, Et Al.
M2015-01968-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Michael Binkley

This is a legal malpractice action in which the trial court granted partial summary judgment to the defendants, a law firm and its owners, on the plaintiff’s claim for lost profits and, in due course, granted summary judgment to the defendants on the remaining claims. The underlying suit arose from a failed real estate transaction in which a judgment for $200,000 for failure to perform a contract to purchase land for development was entered against the plaintiff in this action. The plaintiff appeals, contending that the court erred in various respects in granting the motions for summary judgment. Upon a thorough review of the record, we affirm the judgment of the trial court in all respects.

Williamson County Court of Appeals 08/18/17
Marvin D. Kinsey v. Jacob P. Schwarz, et al
M2016-02028-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley, Jr.

A prison inmate filed a health care liability action against two physicians and a medical center without providing the defendants with pre-suit notice, as required by Tenn. Code Ann. § 29-26-121(a), and without attaching a certificate of good faith to the complaint, as required by Tenn. Code Ann. § 29-26-122. The defendants filed motions to dismiss, which the trial court granted. The inmate appealed, and we affirm the trial court’s judgment.

Davidson County Court of Appeals 08/18/17
Holly Rader, Et Al. v. Ruby Tuesday, Inc.
E2016-01677-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Kristi M. Davis

Holly Rader (“Plaintiff”) appeals the August 4, 2016 order of the Circuit Court for Knox County (“the Trial Court”) granting summary judgment to Ruby Tuesday, Inc. (“Ruby Tuesday”) in this slip and fall action after finding that Ruby Tuesday did not have superior, actual, or constructive knowledge of the condition that caused Plaintiff’s slip and fall. We find and hold that Ruby Tuesday did have superior, actual, or constructive knowledge of the condition that caused the slip and fall and owed a duty to Plaintiff. We, therefore, vacate the grant of summary judgment and remand this case for further proceedings.

Knox County Court of Appeals 08/18/17
Edward Keith Morelock v. Ruth Ellen Mick Morelock
E2016-00543-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John C. Rambo

In this divorce case, Edward Keith Morelock (Husband) appeals the trial court’s decisions regarding (1) co-parenting time with the parties’ child; (2) division of marital property, (3) valuation of one of the marital assets, and (4) refusal of the court to award him spousal support. Husband argues that the trial court should have designated him primary residential parent and granted him more residential time with the child. He also asserts that the trial court overvalued the business owned by the parties, and that the court should have equally divided the assets and liabilities of that business rather than awarding and assigning all of them to him. Finally, he argues that the trial court should have ordered Ruth Ellen Mick Morelock (Wife) to pay him alimony. Finding no abuse of discretion, we affirm the trial court’s judgment.

Washington County Court of Appeals 08/18/17
Mardoche Olivier v. City of Clarksville, et al.
M2016-02473-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ross H. Hicks

This action arises out of an alleged violation of the plaintiff’s civil rights by the City of Clarksville (“the City”) and a group of police officers employed by the City (“the Officers”) (collectively, “Defendants”). The plaintiff was arrested on June 1, 2015, for driving on a revoked or suspended license, see Tenn. Code Ann. § 55-50-504 (2012), and making a 911 telephone call in a nonemergency situation, see Tenn. Code Ann. § 7-86-316 (2015). The plaintiff filed a complaint on August 11, 2016, alleging that as a result of his arrest, the Officers caused him to suffer damages from false imprisonment, malicious prosecution, malicious harassment, outrageous conduct, intentional infliction of emotional distress, conversion, and inverse condemnation. The plaintiff also alleged violations of his civil rights pursuant to 42 U.S.C. § 1983. Defendants filed a motion to dismiss on October 5, 2016, asserting, inter alia, that the plaintiff’s claims were statutorily barred due to the immunity granted to Defendants by the Tennessee Governmental Tort Liability Act (“GTLA”). See Tenn. Code Ann. § 29-20-205 (2012). The trial court entered a final order regarding Defendants’ motion to dismiss on November 17, 2016, granting the motion and dismissing all claims. The plaintiff has appealed. Discerning no error, we affirm the trial court’s dismissal of the plaintiff’s claims.

Montgomery County Court of Appeals 08/17/17
Sonja Broyles Williams v. Stewart Ashley Williams
W2016-01602-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Larry McKenzie

This is an appeal from a divorce case dissolving a long-term marriage with two minor children. Following a four and one-half day trial, the court awarded Wife a divorce, designated Husband as the primary residential parent of the parties’ children, distributed the marital property, awarded Wife rehabilitative alimony, and denied Wife’s request for attorney’s fees. Wife appeals the designation of Husband as primary residential parent, the value and division of certain items within the marital estate, the court’s decision to award her rehabilitative alimony rather than alimony in futuro, and the denial of her request for attorney’s fees. We vacate the trial court’s order regarding retroactive child support and remand the issue for further proceedings consistent with this opinion. We affirm the remainder of the judgment of the trial court. We deny Wife’s request for attorney’s fees incurred on appeal.

Hardin County Court of Appeals 08/17/17
In Re David P. Et Al.
E2017-00245-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Robert M. Estep

This is an appeal from an order terminating the parental rights of the appellant to his minor children. The only Notice of Appeal filed by the appellant within the time provided in Rule 4(a) of the Tennessee Rules of Appellate Procedure for the filing of a notice of appeal, did not comply with Tennessee Code Annotated section 36-1-124(d), which states: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” Because this Notice of Appeal was insufficient to invoke the jurisdiction of this Court, this appeal is dismissed.

Claiborne County Court of Appeals 08/17/17
Latisia Upshaw v. Sunrise Community Of Tennessee, Inc.
E2016-01005-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Deborah C. Stevens

This appeal concerns a claim of retaliatory discharge. After a trial before a jury, judgment was entered against the defendant employer. The plaintiff was awarded $225,000 in compensatory damages and $200,000 in punitive damages. The employer appeals. We affirm.

Knox County Court of Appeals 08/16/17
In Re Estate of Charles Edward Fant, III
W2016-02498-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Karen D. Webster

This is a will contest. The affidavit attached to the purported will was signed, in the presence of the testator, by two witnesses. At the hearing on the will contest, both witnesses and the notary public testified as to the validity of signatures on the purported will. The trial court held that the will and accompanying affidavit were not in strict compliance with the statute and denied admission of the will to probate. On appeal, the proponent of the purported will argues that the will satisfied the recent statutory requirements of Tennessee Code Annotated Section 32-1-104(b) such that the signatures of both witnesses were integrated into the will. Concluding that the witnesses’ signatures were integrated into the will pursuant to Tennessee Code Annotated Section 32-1-104(b), and that the other statutory requirements were met, we reverse the trial court’s ruling.

Shelby County Court of Appeals 08/15/17
Sue Ann Templeton v. Jackson-Madison County General Hospital District
W2016-02419-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Roy B. Morgan, Jr.

This is an appeal from the grant of summary judgment in a Tennessee Governmental Tort Liability Act (“GTLA”) premises liability case. Appellant was exiting Jackson-Madison County General Hospital/Appellee when she was hit by an automatic door, fell, and sustained a broken femur. Appellee moved for summary judgment on the ground that it was immune from suit under the GTLA. Appellant argued that Appellee failed to make a reasonable inspection of the automatic door, so as to discover the alleged dangerous or defective condition. The trial court granted summary judgment in favor of Appellee, finding that the condition was not dangerous or defective, the condition was latent, and Appellee had no actual or constructive notice of the condition. Discerning no error, we affirm.

Madison County Court of Appeals 08/15/17
In Re Nevaeh B. - Dissent
W2016-01769-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Van McMahan

The majority opinion dismisses this appeal due to the failure of the appellant, Makayla B., the child’s mother, to sign the notice of appeal as required by Tenn. Code Ann. § 36-1-124(d). The majority has concluded, “[i]n the absence of full compliance with the statutory requirements, this Court does not have subject-matter jurisdiction over the appeal.” I recognize that the majority opinion is based on a prior Court of Appeals decision, but I respectfully disagree with the decision and the notion that Tenn. Code Ann. § 36-1-124(d) is jurisdictional or that the statute compels this court to dismiss appeals in parental termination cases when the parent fails to sign the notice of appeal without affording the parent the opportunity to cure the defect.

Chester County Court of Appeals 08/14/17
In Re Nevaeh B.
W2016-01769-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Van McMahan

This is a termination of parental rights case. The trial court terminated Appellant’s parental rights to the minor child by order of July 15, 2016. Appellant filed a timely notice of appeal. However, Appellant failed to comply with Tennessee Code Annotated § 36-1-124(d) (Supp. 2016) in that she failed to sign the notice of appeal. Because this Court lacks subject-matter jurisdiction, we dismiss the appeal.

Chester County Court of Appeals 08/14/17
In Re Audrina E. et al.
E2017-01178-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge J. Klyne Lauderback, Jr.

This is an appeal from an order terminating the parental rights of the appellant to his minor children. The only notice of appeal filed by the appellant within the time provided in Rule 4(a) of the Tennessee Rules of Appellate Procedure for the filing of a notice of appeal did not comply with Tennessee Code Annotated § 36-1-124(d), which states: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” Because this notice of appeal was insufficient to invoke the jurisdiction of this Court, this appeal is dismissed.

Sullivan County Court of Appeals 08/14/17
Homelift Of Nashville, Inc v. Porta, Inc.
M2016-00894-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge John D. Wootten, Jr.

This appeal involves a claim for attorney’s fees and other litigation expenses incurred by a third-party defendant in a wrongful death action. The third-party plaintiff filed the third-party complaint against the third-party defendant seeking indemnity. A jury found both the third-party plaintiff and third-party defendant at fault for the death in the underlying action, but because the third-party plaintiff was allocated more than 50% of the fault, the jury determined that the third-party plaintiff was not entitled to indemnification. The third-party defendant filed a post-trial motion for attorney’s fees and expenses incurred in defending the third-party action. The trial court denied the motion, concluding that it lacked subject matter jurisdiction. Although we conclude that it did not lack subject matter jurisdiction, we affirm the denial of the third-party defendant’s motion.

Wilson County Court of Appeals 08/11/17
In Re Jayden R., et al. - dissenting
M2016-02336-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge William M. Locke

The majority opinion dismisses this case due to the failure of Mother and Father to sign the notice of appeal pursuant to Tenn. Code Ann. § 36-1-124(d).  I recognize that the majority opinion is based on a prior Court of Appeals decision, but I respectfully disagree with the majority’s conclusion.

Warren County Court of Appeals 08/11/17
In Re Jayden R., et al.
M2016-02336-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge William M. Locke

This appeal concerns termination of parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Warren County (“the Juvenile Court”) seeking to terminate the parental rights of Dara C. (“Mother”) to her minor children Jayden R., Kara C., and Jaxson C. (collectively, “the Children”). DCS also sought to terminate the parental rights of Jonathan C. (“Father”) to Kara C. and Jaxson C. After a trial, the Juvenile Court entered an order terminating Mother’s parental rights to the Children and Father’s parental rights to Kara and Jaxson. Mother and Father appealed. DCS argues that Mother’s and Father’s failure to sign their notices of appeal renders this appeal jurisdictionally deficient. We agree that Mother’s and Father’s failure to sign their notices of appeal as required by Tenn. Code Ann. § 36-1-124(d) renders this appeal jurisdictionally deficient, and it is dismissed on that basis. Even if the appeal were not jurisdictionally deficient, we would, given this record, affirm the Juvenile Court’s judgment terminating Mother’s and Father’s parental rights. We dismiss this appeal for lack of jurisdiction.

Warren County Court of Appeals 08/11/17
In Re: Michael B., Jr., Et Al
E2017-00486-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Sharon M. Green

The trial court found clear and convincing evidence to terminate Mother’s parental rights to her two children on the grounds of abandonment by failure to establish a suitable home, substantial noncompliance with permanency plans, and persistence of conditions. The trial court also found clear and convincing evidence that termination was in the children’s best interest. Discerning no error, we affirm.

Washington County Court of Appeals 08/11/17
Alfonzia Biles, et al. v. Tiffany Roby
W2016-02139-COA-R3-CV
Authoring Judge: Judge Brandon O.Gibson
Trial Court Judge: Judge Gina C. Higgins

This case involves residential property that was purchased after a foreclosure. The purchaser filed this detainer action against the original homeowners, who refused to vacate the property. The general sessions court ruled in favor of the purchaser, and after a de novo trial in circuit court, the circuit court ruled in favor of the purchaser as well. We do the same. The decision of the circuit court is hereby affirmed and remanded for further proceedings.

Shelby County Court of Appeals 08/11/17
State Farm Mutual Automobile Insurance Company v. James T. Jones, et al
M2016-02423-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Deanna B. Johnson

The trial court dismissed plaintiff’s claim for failure to prosecute and for failing to respond to affirmative defenses. The trial court also denied plaintiff’s motion to alter or amend the judgment. Because disposition of litigation on the merits is favored over procedural dismissals, we reverse. 

Hickman County Court of Appeals 08/11/17