Court of Appeals Opinions

Format: 06/30/2015
Format: 06/30/2015
Stuart H. Kaplow, et al. v. City of Gatlinburg Board of Adjustments and Appeals, et al.
E2014-00347-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Rex Henry Ogle

Housing units belonging to the property owners were cited by a city official for condemnation. The property owners appealed to the city’s Board of Adjustments and Appeals. After the board agreed with the city official and condemned the property, the property owners filed a petition for common law writ of certiorari seeking judicial review of the board’s decision. The trial court determined that the decision of the board was supported by material evidence and was neither arbitrary nor capricious. The property owners appeal. We affirm.

Sevier County Court of Appeals 06/30/15
Andrew R. Lunn, DDS v. Carole Michelle Lunn - Concurring and Dissenting
E2014-00865-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jeffrey M. Atherton

I concur in the majority’s opinion with the sole exception that I cannot agree with the majority that the amount of alimony in futuro awarded to Wife should be increased from $500 per month after eight years to $2,288. I agree with the majority that the transitional alimony must be changed to another type of alimony to comply with Tennessee law, and that the only other type that fits under the statutes is alimony in futuro. My only disagreement is with the majority’s sua sponte changing of the amount ordered by the trial court.

Hamilton County Court of Appeals 06/29/15
Andrew R. Lunn, DDS v. Carole Michelle Lunn
E2014-00865-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jeffrey M. Atherton

The appeal in this divorce litigation presents issues regarding proper valuation of the parties' business, proper division of marital assets, alimony, child support, attorney's fees, and court costs. The parties were married for seventeen years, with three children being born of the marriage. The husband is a dentist, who started his own practice during the parties' marriage. Much of the testimony at trial focused upon the proper value to be assigned to this marital asset. The trial court adopted the value assigned by the wife's expert of $430,376. The trial court then ordered that all of the marital assets be divided equally between the parties. Further, the trial court awarded Wife rehabilitative alimony, transitional alimony, and alimony in solido. The husband has appealed the trial court's final judgment. We reverse the trial court's valuation of the dental practice, and we remand this matter to the trial court for a proper determination of the value of such asset. The trial court will also be required to redistribute the parties' marital assets as necessary, in accordance with its redetermined valuation of this asset, in order to effectuate the trial court's decision to make an equal division of marital property between the parties.

Hamilton County Court of Appeals 06/29/15
Richard Muller v. Dennis Higgins, et al.
E2014-00708-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donald P. Harris

This is a personal injury action in which Plaintiff sued Defendant for injuries he sustained as a result of a two-vehicle accident. The jury allocated fifty percent of the fault for the accident to each party, and the trial court entered judgment on the jury's verdict. On appeal, Plaintiff argues that the jury was not fair and impartial and that the evidence presented does not support the jury's verdict. We affirm.

Hamilton County Court of Appeals 06/29/15
Tonya Newcomb v. State of Tennessee
M2014-00804-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Commissioner Robert N. Hibbett

Plaintiff fell down a set of steps while entering a building owned and operated by the State of Tennessee. She filed a claim with the Claims Commission alleging that the stairs were a dangerous condition because the handrail was too low and the steps were not covered with non-skid material. At trial, Plaintiff and her daughter testified about Plaintiff’s fall and the resulting injuries. Plaintiff also introduced into evidence photographs of repairs made to the stairs after her fall. The State called two witnesses, the head facilities administrator and a member of her staff, who testified that they were responsible for the maintenance of the steps. Both testified that they did not know of any prior incidents involving the steps. In his written order, the Commissioner found that both Plaintiff and the State’s witnesses were credible; however, he dismissed Plaintiff’s case because she failed to prove that a dangerous condition existed or that, if such condition existed, the State had notice of a dangerous condition. The Commissioner also concluded that Rule 407 of the Tennessee Rules of Evidence prohibited him from considering Plaintiff’s photographs as evidence of the State’s liability. Plaintiff appealed. We affirm.

Court of Appeals 06/26/15
In re Jacob B.
M2014-00805-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Tiffany Gipson

This is an appeal from the trial court’s denial of Father’s petition to modify custody. Following a one-day trial, the court found that Father had failed to demonstrate a material change in circumstance as necessary for either a change in primary residential parent or parenting time. Because we find that the evidence preponderates against the trial court’s finding of no material change in circumstance for purposes of modification of residential parenting time, we vacate and remand for further proceedings consistent with this opinion.

Jackson County Court of Appeals 06/26/15
Michael Todd Culver v. Lisa Culver
E2014-01201-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jacqueline S. Bolton

This appeal arises from a divorce. After 20 years of marriage, Michael Todd Culver (“Husband”) sued Lisa Culver (“Wife”) for divorce in the Circuit Court for Hamilton County (“the Trial Court”). After a trial, the Trial Court divided the marital estate and granted the parties a divorce. Wife appeals to this Court. We hold, inter alia, that the Trial Court did not commit reversible error in its valuation or division of the marital estate, or in declining to find Husband in contempt. We hold further that the Trial Court erred in adding $500 per month in alleged rental income to Wife’s income for child support purposes. We, therefore, reverse that portion of the Trial Court’s judgment and remand for a new calculation of child support. We affirm, in part, and, reverse, in part, the judgment of the Trial Court.

Hamilton County Court of Appeals 06/26/15
Jennifer Parrott v. Lawrence County Animal Welfare League, Inc., et al
M2014-01241-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jim T. Hamilton


The owner of approximately forty dogs filed a complaint against an animal welfare league for improperly removing the dogs from her property. She later added Lawrence County as a defendant. Lawrence County filed a motion to dismiss the owner’s complaint on the basis of governmental immunity. The trial court granted the county’s motion, and the owner appealed. Tennessee law requires that pleadings alleging negligence by a governmental entity overtly state that the tort was committed by an employee or employees of the governmental entity within the scope of his/her or their employment. The dog owner failed to include this assertion in any of her pleadings. As a result, we affirm the trial court’s judgment granting the county’s motion to dismiss the dog owner’s claims against it.

Lawrence County Court of Appeals 06/25/15
State of Tennessee Ex Rel. Tennessee Department of Transportation v. William Ernest Jones, Sr., et al.
M2014-00151-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Robert L. Jones

This appeal concerns the measure of incidental damages in a condemnation proceeding. The State appeals the trial court’s denial of its motions for directed verdict and remittitur of incidental damages. Taking the strongest legitimate view of the evidence offered by the landowners, we find that the award of incidental damages was properly supported, and therefore, we affirm.

Lawrence County Court of Appeals 06/25/15
In re Conservatorship For Mary N. Ayers
M2014-01522-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Nolan Goolsby

This appeal arises from a conservatorship proceeding in the Putnam County Probate Court.  The trial court appointed co-conservators over the Respondent’s property and person.  We vacate the trial court’s final order and remand for the entry of an order that complies with Tennessee Rule of Civil Procedure 52.01.

Putnam County Court of Appeals 06/25/15
State of Tennessee Ex Rel Landle Byrge, et al. v. Nicholas Jay Yeager
E2014-01996-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Don R. Ash

The petitioners filed this action seeking to remove the respondent from the position of county law director of Anderson County pursuant to Tennessee's ouster law, found at Tennessee Code Annotated section 8-47-101. The respondent filed a motion to dismiss, which the trial court granted after concluding that the position of county law director is not a public office subject to the ouster law. On appeal, the petitioners argue that the trial court erred in concluding that the position of county law director is not a public office. Because the county law director is subject to oversight by an advisory committee that may remove him or her at any time with the subsequent approval of the county legislature, we affirm the ruling of the trial court.

Anderson County Court of Appeals 06/25/15
In re Gabriel V.
M2014-01500-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Sophia Brown Crawford

Mother and Father were married to other people when the Child was conceived. Mother divorced her husband, but Father returned to his wife and children after the Child was born. Father initiated court proceedings in an effort to be named the Child’s primary residential parent and to obtain parenting time. The court performed a best interest analysis and determined that Mother was better suited to be named the primary residential parent. By the time of trial, Mother was living in California, and Father was living in Tennessee. The court awarded Father parenting time during the majority of the summer and shorter periods throughout the year, for a total of about ninety-six days per year. Father appealed, contending the court erred in its best interest analysis and in failing to award him more parenting time with the Child. Father also challenged the court’s calculation of child support and credits to which he is entitled. We affirm the trial court’s judgment in all regards except for its calculation of child support and credits to which Father is entitled. The case is remanded for a recalculation of Father’s child support obligation and arrearage, as set forth herein.

Davidson County Court of Appeals 06/24/15
Alex Friedmann, et al. v. Marshall County, TN, et al. - Concurring
M2014-01413-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor J. B. Cox

I concur with the majority Opinion’s ruling, but I write separately to address only the attorneys’ fee issue. Over the years, two schools of thought apparently developed regarding the “willfulness” standard under the Public Records Act attorneys’ fee provision. Tenn. Code Ann. § 10-7-505(g). One school of thought adopted the Black’s Law Dictionary definition of bad faith, which includes phrases like “the conscious doing of a wrong,” “dishonest purpose,” and “moral obliquity.” See Capital Case Res. Ctr. of Tenn., Inc. v. Woodall, No. 01-A01-9104-CH-00150, 1992 WL 12217, at *8 (Tenn. Ct. App. Jan. 29, 1992) (no. perm. app. filed) (holding that Section 10-7-505(g)’s “knowing and willful” standard is synonymous with “bad faith,” without defining “bad faith”); Contemporary Media v. City of Memphis, No. 02A01-9807-CH-00211, 1999 WL 292264, at *4-5 (Tenn. Ct. App. May 11, 1999) (citing Capital Case Res. Ctr. but defining “bad faith” by quoting the Black’s Law Dictionary definition of the term); Arnold v. City of Chattanooga, 19 S.W.3d 779, 789 (Tenn. Ct. App. 1999).

Marshall County Court of Appeals 06/24/15
Alex Friedmann, et al. v. Marshall County, TN, et al.
M2014-01413-COA-R3-CV
Authoring Judge: Judge Arnold B. Golding
Trial Court Judge: Chancellor J. B. Cox

The trial court ordered the Marshall County Sheriff’s Office to produce the public records requested by Appellant but declined to award Appellant any attorneys’ fees. On appeal, we conclude that the trial court abused its discretion in declining to award attorneys’ fees. Accordingly, we reverse and remand the case to the trial court for the entry of an order awarding Appellant reasonable attorneys’ fees and costs pursuant to Tennessee Code Annotated § 10-7-505(g).

Marshall County Court of Appeals 06/24/15
Mary V. Williams v. Gibson County, Tennessee
W2014-01599-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Clayburn Peeples

Plaintiff filed suit against defendant county alleging, inter alia, racial discrimination and retaliatory discharge. Defendant filed a motion to dismiss plaintiff’s claims, which motion the trial court granted in part and denied in part. Defendant subsequently filed a motion for summary judgment as to plaintiff’s remaining claims. The trial court granted summary judgment in favor of defendant, disposing of the remainder of plaintiff’s claims. Plaintiff appeals. Due to significant procedural shortcomings in plaintiff’s appellate brief, we are unable to reach the merits of her appeal. We therefore affirm.

Gibson County Court of Appeals 06/24/15
Robert W. Mills v. Nita D. Mills, et al.
W2014-00855-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Arnold B. Goldin

This case involves various causes of action related to the administration of an estate, specifically, the executor‘s action in failing to fund a residuary trust. The trial court granted summary judgment on the grounds that no assets remained in the estate to fund the residuary trust, the expiration of the statute of limitations, and laches. Although we rely on different grounds, we affirm the trial court‘s order granting summary judgment and dismissing the complaint.

Shelby County Court of Appeals 06/24/15
Hanna (John) Nazi, et al. v. Jerry's Oil Company, Inc.
W2014-02008-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Nathan B. Pride

The trial court determined that Appellant Hanna (John) Nazi executed the contractual documents between the parties as the owner/proprietor of the Handy Peddler and that he was liable for a judgment in favor of Appellee Jerry‘s Oil Company, Inc. We affirm.

Madison County Court of Appeals 06/24/15
The Cohn Law Firm, et al. v. YP Southeast Advertising & Publishing, LLC, et al.
W2014-01871-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Kenny W. Armstrong

Plaintiff law firm and lawyer brought suit against defendant advertising companies alleging, inter alia, breach of contract and misrepresentation. Defendants moved to dismiss the complaint because the parties' contracts included a forum selection clause that provided all litigation arising from the contracts would take place in the state of Georgia. The trial court found the forum selection clause enforceable and granted defendants' motion to dismiss. On appeal, plaintiffs argue that the trial court erred in enforcing the forum selection clause because the contracts are adhesion contracts and unconscionable. Discerning no error, we affirm.

Shelby County Court of Appeals 06/24/15
James T. Patterson v. Lincoln Medical Center
M2014-01145-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Franklin L. Russell

Suit was instituted under the Governmental Tort Liability Act and the Health Care Liability Act against a county-owned hospital four days after the patient gave the hospital notice of a potential health care liability claim. The trial court dismissed the complaint for failure to state a cause of action, holding that the patient did not demonstrate extraordinary cause to institute suit prior to the expiration of 60 days from giving notice of his claim under the Health Care Liability Act. Finding that the record does not establish extraordinary cause, we affirm the judgment of the trial court.

Lincoln County Court of Appeals 06/23/15
Administrative Management Resources, LLC v. James G. Neeley
M2014-01073-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Carol L. McCoy

A staff leasing company filed this petition for judicial review of the administrative decision of the Tennessee Department of Labor and Workforce Development (“the Department”). In its decision, the Department determined that the company had illegally transferred employees from one entity to another to acquire a lower unemployment insurance premium rate. We affirm the chancery court’s decision finding substantial and material evidence to support the Department’s determination.

Davidson County Court of Appeals 06/23/15
In re Gavin G.
M2014-01657-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Stella L. Hargrove

This appeal arises from the termination of Father’s parental rights. After Father had not seen the child for over a year-and-a-half, Mother and her husband petitioned to terminate Father’s parental rights. Following a trial, the chancery court found that Father had abandoned the child by willfully failing to visit him. The court also found that the termination of Father’s parental rights was in the child’s best interest. Father appeals the court’s determination that he abandoned the child and that the termination of his rights was in the child’s best interest. We affirm.  

Maury County Court of Appeals 06/23/15
In re Jayden B.T.
E2014-00715-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Dennis W. Humphrey
This is a termination of parental rights case, focusing on Jayden B.T., the minor child (“the Child”) of Jayson T. (“Father”) and Britney B. (“Mother”). On July 2, 2013, the Child's maternal aunt and her husband, with whom the Child had been residing, filed a petition to terminate the parental rights of both parents. Following a bench trial, the trial court found that grounds existed to terminate the parental rights of both parents upon its finding, by clear and convincing evidence, that the parents had abandoned the Child by willfully failing to visit the Child, willfully failing to support the Child, and failing to provide a suitable home. The trial court also found clear and convincing evidence as to both parents of the statutory ground of persistence of the conditions that led to removal of the Child. The court further found, by clear and convincing evidence, that termination of Father's and Mother's parental rights was in the Child's best interest. Father has appealed. We conclude that the evidence was insufficient to support a finding that Father abandoned the Child through failing to visit him and therefore reverse the trial court's finding as to that ground. In addition, we determine that the statutory grounds of persistence of the conditions leading to removal and abandonment through failure to provide a suitable home are not applicable to Father, and we therefore reverse the trial court's findings regarding those two grounds. We affirm the trial court's judgment in all other respects, including the termination of Father's parental rights upon the ground of abandonment through willful failure to support the Child.
 
Roane County Court of Appeals 06/23/15
In re Kayden H.
E2014-02360-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Tammy M. Harrington

This is a termination of parental rights case, focusing on Kayden H., the minor child (“the Child”) of Kristy L. (“Mother”) and Johnathan H. (“Father”). On January 28, 2014, the Child’s paternal grandparents, Linda H. and Donald H. (“Grandparents”), filed a petition to terminate the parental rights of the parents and adopt the Child. Father joined as a co-petitioner in order to consent to the termination of his parental rights. Father is not a party to this appeal. Following a bench trial, the trial court found that grounds existed to terminate the parental rights of Mother upon its finding by clear and convincing evidence that Mother had abandoned the Child by willfully failing to provide support and willfully failing to visit the Child in the four months preceding Mother’s September 2013 incarceration. The court also found by clear and convincing evidence that Mother had abandoned the Child by exhibiting wanton disregard for the Child’s welfare prior to Mother’s incarceration. The court further found by clear and convincing evidence that termination of Mother’s parental rights was in the Child’s best interest. Mother has appealed. Discerning no reversible error, we affirm.

Blount County Court of Appeals 06/23/15
In re Destaney D. et al.
E2014-01651-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge James W. McKenzie

This is a termination of parental rights action involving two minor children, Destaney D. and Rebekah D. (―the Children‖). In April 2012, the Tennessee Department of Children’s Services (―DCS‖) removed the Children from their mother due to her drug use. The Children were allowed to remain in the care of Amy M. and Jeremy M., a married couple with whom the Children had been residing following their mother’s arrest. On February 21, 2014, Amy M. and Jeremy M. (―the Petitioners‖) filed a petition to terminate the parental rights of the Children’s parents. The petition alleged, as a statutory ground for termination, abandonment by willful failure to support. The Petitioners subsequently filed an amended petition alleging the additional statutory ground of persistence of the conditions leading to removal. Despite being properly served with process, the Children’s mother failed to answer the petition or otherwise make an appearance in this matter. The trial court accordingly terminated her parental rights by default judgment entered on July 21, 2014. She is not a party to this appeal. Following a bench trial on the merits, the trial court granted the petition as to the father upon finding that the Petitioners had proven by clear and convincing evidence the grounds of (1) abandonment by willful failure to support and (2) persistence of the conditions leading to removal. The court also found clear and convincing evidence that termination of the father’s parental rights was in the Children’s best interest. The father has appealed. Having determined that the statutory ground of persistence of conditions is inapplicable to the present action, we reverse the trial court’s determination as to this ground. We affirm the trial court’s judgment in all other respects, including the termination of the father’s parental rights.

Rhea County Court of Appeals 06/23/15
S.A.M.D. v. J.P.D.
W2014-01015-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donna M. Fields

This is a post-divorce action. The trial court denied Wife's motion to continue, found that she breached the parties' marital dissolution agreement, and credited Husband for amounts he paid for necessaries when calculating Husband's child support arrearage. Wife appeals. We affirm.

Shelby County Court of Appeals 06/23/15