Court of Appeals Opinions

Format: 10/22/2017
Format: 10/22/2017
In Re Estate of Veronica Stewart
M2016-02355-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Larry B. Stanley

This appeal arises from a will contest. The contestant insists the purported Last Will and Testament of the decedent, dated June 19, 2015, is invalid because the attesting witnesses, who duly executed the attestation affidavit, failed to affix their signatures to the will as required by the Tennessee Execution of Wills Act at the time the will was executed. The proponent insists the will was validly executed based on a 2016 amendment to Tenn. Code Ann. § 32-1-104, which applies to wills executed prior to July 1, 2016, and states “to the extent necessary for the Will to be validly executed, witness signatures affixed to an affidavit meeting the requirements of § 32-2-110 shall be considered signatures to the Will.” The trial court ruled that the 2016 amendment did not apply because the testator died before it went into effect. Consequently, the 2015 will was invalid because it was not executed in accordance with the law then in effect. We have determined that the 2016 amendment to Tenn. Code Ann. § 32-1-104 applies retrospectively to wills executed prior to July 1, 2016, because that is the clear and unambiguous intent of the legislation. We have also determined that the retrospective application of the law does not impair any vested legal right of the contestant. Therefore, we reverse and remand for further proceedings consistent with this opinion.

Warren County Court of Appeals 10/20/17
Wade Harvey, Ex Rel. Alexis Breanna Gladden v. Cumberland Trust And Investment Company, Et Al.
E2015-00941-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Thomas J. Wright

In this interlocutory appeal, the trustee of a trust executed an investment/brokerage account agreement that included a provision requiring the arbitration of disputes. The trust beneficiary filed a lawsuit asserting claims against the investment broker, and the defendant broker sought to compel arbitration under the arbitration provision in the account agreement. The trial court granted the motion to compel arbitration and granted permission for this interlocutory appeal. The Court of Appeals reversed. On appeal, we are asked to determine whether the signature of the trustee on the account agreement binds the beneficiary of the trust to the predispute arbitration provision. We hold that the Tennessee Uniform Trust Code is intended to give trustees broad authority to fulfill their duties as trustee. We also hold that the Tennessee Uniform Trust Code gives trustees the power to enter into predispute arbitration agreements, so long as doing so is not prohibited under the operative trust instrument. We hold that the trust instrument in this case gives the named trustee broad authority and does not prohibit the trustee from entering into a predispute arbitration agreement. As a result, we interpret the trust instrument as authorizing the trustee to execute the account agreement with the defendant broker, including the predispute arbitration provision therein. Thus, under both the Tennessee Uniform Trust Code and the operative trust instrument, the trustee had authority to enter into the arbitration agreement contained within the account agreement. The question of whether the trust beneficiary in this case is bound by the arbitration provision is governed by the principle that a third party who seeks the benefit of a contract must also bear its burdens. Applying this principle, the trust beneficiary in this case may be bound to arbitrate claims against the investment broker that seek to enforce the account agreement. We reverse the decision of the Court of Appeals and vacate the trial court order compelling arbitration of all claims. We remand the case to the trial court for further proceedings, including a determination as to which if any of the claims asserted by the trust beneficiary seek to enforce the account agreement.

Hamblen County Court of Appeals 10/20/17
Joe David Erwin, et al. v. Great River Road Supercross, LLC, et al.
W2017-00150-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Tony Childress

At oral argument, the parties agreed that the trial court made a finding concerning the reliance element of Appellants’ fraud claim that was not supported by the record. Accordingly, we vacate the trial court’s order and remand the case for further proceedings.

Dyer County Court of Appeals 10/19/17
In Re Elizabeth Beck Hoisington Living Trust
W2016-02527-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Karen D. Webster

Appellant appeals the trial court’s determination that settlor’s holographic notations on her trust agreement did not operate to modify the original trust. Specifically, the trial court held that settlor neither satisfied the requirements for modification of the trust as set out in the trust agreement, nor manifested a clear intent to amend the trust under Tennessee Code Annotated Section 35-15-602(c)(2)(B). Discerning no error, we affirm.

Shelby County Court of Appeals 10/19/17
Mark T. Thomas v. Richard J. Myers, et al.
W2016-02581-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Senior Judge William B. Acree

This is a legal malpractice case. Appellees, who are licensed attorneys, represented Appellant in a trademark infringement and consumer protection lawsuit in federal court that resulted in a judgment against Appellant. On October 21, 2015, more than a year after the federal court judgment, Appellant filed a complaint for misrepresentation and negligence against Appellees. The trial court interpreted Appellant’s claims against Appellees as a legal malpractice action and granted Appellees’ motion for summary judgment on the ground that the one-year statute of limitations had expired prior to commencement of the action. Tenn. Code Ann. § 28-3-104(c)(1). We affirm the trial court’s judgment and remand.

Shelby County Court of Appeals 10/19/17
Corey M. Searcy, et al. v. Walter Axley, et al.
W2017-00374-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Charles C. McGinley

Parents filed suit against dog owners following their son’s injury from a dog bite that occurred at the owners’ home. The trial court granted the dog owners’ motion for summary judgment, concluding that parents failed to show that owners knew or should have known of their dog’s dangerous propensities as required by Tennessee Code Annotated section 44-8-413. Finding no error, we affirm the trial court’s judgment.

Benton County Court of Appeals 10/19/17
Tray Simmons v. John Cheadle, Et Al.
M2017-00494-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Mitchell Keith Siskin

This appeal involves a dispute between a judgment debtor and the attorneys for the judgment creditor. In an effort to collect on a final judgment, attorneys for the judgment creditor served the judgment debtor with a notice of deposition. After some discussion, it became clear that the debtor failed to bring the requested documents with him to the deposition, and the attorneys for the creditor refused to go forward with the deposition that day. The debtor then filed this separate lawsuit, pro se, against the creditor’s attorneys alleging that they had taken an “unlawful deposition” of him. The trial court granted summary judgment in favor of the attorneys for the judgment creditor. We affirm.  

Davidson County Court of Appeals 10/19/17
Dianne Elizabeth Lutzak, Trustee Of The Dianne Elizabeth Lutzak Family Revocable Trust v. Phoenix American Development Partners, L. P. Et Al.
M2015-02117-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor James G. Martin, III

The owner of undeveloped property sought a declaratory judgment that restrictive covenants governing an adjacent subdivision did not apply to its property. The developer of the subdivision and the homeowners’ association of the subdivision filed counterclaims seeking a declaratory judgment that the restrictive covenants applied to the undeveloped property and attorney’s fees and costs. On cross-motions for summary declaratory judgment, the trial court granted summary declaratory judgment to the owner of the undeveloped property. On appeal, the defendants argue that the trial court erred in finding no express restrictive covenants applicable to the undeveloped property and in refusing to enforce negative reciprocal easements by implication from an alleged common development plan. We conclude that the restrictive covenants, by their express terms, do not apply to the undeveloped property. We further conclude that the trial court properly declined to impose negative reciprocal easements on the undeveloped property. Thus, we affirm.

Williamson County Court of Appeals 10/18/17
George Metz, Et Al. v. Metropolitan Government Of Nashville And Davidson County, TN, Et Al.
M2016-02031-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Carol L. McCoy

This appeal concerns a determination by the Planning Commission (“the Commission”) of the Metropolitan Government of Nashville and Davidson County (“Metro”) that the Forest View Park planned unit development was “active.” Certain Forest View neighbors (“Petitioners”) filed a petition for writ of certiorari against respondents Metro and The Ridge at Antioch, Limited Partnership (“Respondents,” collectively) in the Chancery Court for Davidson County (“the Trial Court”) challenging the Commission’s decision. Metro filed a motion to dismiss. After a hearing, the Trial Court entered an order dismissing the petition for writ of certiorari for lack of jurisdiction. The Trial Court found fatal defects in the petition for writ of certiorari, including that it was not supported by oath as required. Petitioners appeal to this Court. We affirm the judgment of the Trial Court.

Davidson County Court of Appeals 10/17/17
James Davis d/b/a Davis Auto Repair v. Tennessee Board of Water Quality, Oil, & Gas
W2016-00870-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Walter L. Evans

After Appellant failed to comply with the terms of a storm water permit issued to him, he was fined $5,000.00 by the Tennessee Department of Environment and Conservation. The fine was upheld by an administrative law judge and, upon judicial review, by the Shelby County Chancery Court. For the reasons stated herein, we affirm.

Shelby County Court of Appeals 10/16/17
Belinda Butler Pandey v. Aneel Madhukar Pandey
M2016-01919-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Philip E. Smith

This action presents issues regarding the interpretation and application of a postnuptial agreement previously executed by parties who later filed for divorce. The trial court determined that the parties’ agreement was valid and enforced its terms, including a provision allowing for an award of attorney’s fees to a prevailing party who was attempting to defend the agreement. The trial court granted the wife an award of attorney’s fees pursuant to this provision. In addition, the husband filed two motions seeking the trial judge’s recusal, which the trial court denied. The husband timely appealed. Discerning no reversible error, we affirm the trial court’s judgment. We further determine that the wife is not entitled to an award of attorney’s fees incurred on appeal.

Davidson County Court of Appeals 10/16/17
In Re: Estate of Donald Carl Battle
M2017-00227-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge David Randall Kennedy
This is a partition case. Appellants petitioned the trial court to order a partition sale of property they own as tenants in common with Appellee. The court ordered the property to be appraised and, upon receipt of the appraisal, held that the Appellee could buy out Appellants’ interest in the property for their portion of the appraised value. Appellants appeal the trial court’s failure to order a sale of the Property in accordance with Tennessee Code Annotated section 29-27-201. We reverse the judgment of the trial court and remand for further proceedings.
 
Davidson County Court of Appeals 10/12/17
Raymond Cass Ballard v. Gertrude Cayabas
W2016-01913-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Tony Childress

Father filed a petition to change primary residential parent and for civil and criminal contempt. Because there was no material change of circumstance that affected the wellbeing of the child, we affirm the trial court’s dismissal of Father’s petition. We also affirm the trial court’s decision not to find Mother in civil contempt.

Dyer County Court of Appeals 10/12/17
In Re Lyric A.
M2015-02468-COA-R3-PT
Authoring Judge: Judge Frank G. Clement
Trial Court Judge: Chancellor Larry B. Stanley, Jr.

This appeal arises from the termination of Mother’s parental rights with respect to her minor child. Father and Grandmother jointly filed a “Petition for Termination and Adoption” to terminate Mother’s parental rights and to allow Grandmother to adopt the child without terminating Father’s parental rights. The trial court granted the petition and Mother appeals. We have determined that petitioners do not have standing to petition the court to terminate Mother’s parental rights in order to allow Grandmother to adopt the child without terminating Father’s parental rights. Therefore, we reverse and remand with instructions to dismiss the petition for lack of standing. 

Warren County Court of Appeals 10/12/17
In Re Brennen T.
M2016-01639-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This appeal involves the termination of a mother and father’s parental rights to their minor child.  Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of each parent’s parental rights on the statutory groundof abandonment for failure to remit child support.  The court further found that termination of each parent’s rights was in the best interest of the child.  The parents appeal.  We affirm. 

Robertson County Court of Appeals 10/12/17
Jonah Paul Anders v. Mayla Anders
W2016-02561-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Gina C. Higgins

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

Shelby County Court of Appeals 10/12/17
Raymond Hunter, Jr. v. City Of Chattanooga Beer Board
E2017-00017-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Pamela A. Fleenor

The petitioner seeks reversal of the denial of a beer permit by the city. City’s board asserts that the property is unsuitable for a beer permit as it has lost its zoning status as a “grandfathered in” restaurant, bar, or event hall. The trial court affirmed the board’s action. The petitioner filed this appeal. The trial court lacked subject matter jurisdiction to consider it. We vacate the trial court’s order and dismiss this case.

Hamilton County Court of Appeals 10/12/17
Bradley Jetmore v. Metropolitan Government of Nashville & Davidson County, Tennessee
M2016-01792-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Senior Judge Robert E. Lee Davies
A petitioner seeking to inspect and obtain copies of traffic accident reports prepared by the Metropolitan Nashville Police Department (“MNPD”) “promptly,” as required by the Tennessee Public Records Act (“TPRA” or “the Act”), filed a petition for injunctive relief. The trial court granted the petitioner the relief requested, and the Metropolitan Government of Nashville and Davidson County (“Metro”) appealed. We affirm the trial court’s judgment.
 
Davidson County Court of Appeals 10/12/17
Donnie Trammell, et al. v. D'eddrick Peoples, et al.
M2016-02198-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kelvin D. Jones
This is a negligence action concerning injuries sustained from an accident. The trial court granted summary judgment in favor of the defendants. We reverse.
 
Davidson County Court of Appeals 10/11/17
In Re Estate of Marjorie Ross Potter
W2016-01809-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Karen D. Webster

Beneficiary of decedent’s estate appeals the judgment holding that the executor did not breach his fiduciary duty in administering the estate and the award of a fee to the executor. Upon a thorough review of the record, we affirm the decision of the Probate Court.

Shelby County Court of Appeals 10/11/17
Estate of Evelyn Sample v. Life Care Centers Of America, Inc., Et Al.
E2017-00687-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Michael S. Pemberton

The Estate of Evelyn Sample (“the Estate”) appeals the March 13, 2017 order of the Circuit Court for Bradley County (“the Trial Court”) granting summary judgment to Life Care Centers of America, Inc. and Life Care Center of Cleveland (collectively “Life Care”) in this health care liability action. We find and hold that Life Care made a properly supported motion for summary judgment negating an essential element of the Estate’s claim, i.e., causation, and that the Estate failed to produce evidence showing a genuine issue of material fact. We, therefore, affirm the grant of summary judgment to Life Care.

Bradley County Court of Appeals 10/11/17
William August Lockler, III v. Pamela Michelle Barr Lockler
E2016-02308-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge J. Eddie Lauderback

This case involves the interpretation of a divorce judgment. William August Lockler, III, and Pamela Michelle Barr Lockler were married on January 3, 2002, and divorced on September 6, 2007. In its judgment, the original trial judge, the Honorable Jean A. Stanley, ordered that “If [wife] is entitled under federal law to receive any portion of [husband’s] military retirement benefits[,] then she is awarded one-half (1/2) of those benefits earned during the parties’ marriage.” After husband retired from military service in December 2014, wife filed a petition on February 20, 2015 to reopen the divorce judgment. She sought one-half of husband’s military retirement that had accrued during their marriage. The trial court granted wife’s petition, holding that Judge Stanley awarded wife a portion of husband’s military retirement benefits. Husband appeals, arguing that wife is not entitled to a portion of his benefits because she is only eligible to receive the benefits under federal law and does not have a right to them. We hold that the trial court correctly concluded that the original trial judge intended to award wife onehalf of husband’s military retirement that accrued during their marriage. Accordingly, we affirm.

Washington County Court of Appeals 10/11/17
Jesus Vidal Rodriguez, et al. v. Bridgestone/Firestone North American Tire, LLC, et al.
M2013-01970-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Thomas W. Brothers

This is an appeal from a jury verdict in favor of the defendants in a products liability action arising out of a deadly vehicle crash in Mexico. The accident was allegedly caused by a separation of the tire tread and resulting blow-out and vehicle rollover. The decedent’s son, daughter, and mother brought suit against the manufacturers of the tire and SUV. The case went to trial, and the jury returned a verdict in favor of the defendants. Plaintiffs appeal an instruction the court gave the jury on contributory negligence and several evidentiary rulings. Finding no reversible error, we affirm the judgment.

Davidson County Court of Appeals 10/10/17
Gary Wayne Garrett v. Tennessee Board of Parole
M2016-01738-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Claudia Bonnyman

This appeal involves an incarcerated inmate’s filing of a petition for writ of certiorari, claiming that the Tennessee Board of Parole acted arbitrarily and without material evidence in denying his request for parole. The respondent filed a motion to dismiss, claiming that the time for filing such a petition had passed. The trial court dismissed the petition as untimely. The petitioner appeals. We reverse and remand for further hearing.

Davidson County Court of Appeals 10/10/17
Johnny Moffitt v. Orbin McPeake, et al.
W2016-01706-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Roy B. Morgan, Jr.

A man convicted of aggravated assault filed suit for malicious prosecution against the other three persons involved in the altercation that led to his conviction. The trial court determined that the statute of limitations had run on the malicious prosecution claim. We affirm on a different ground: the plaintiff has no claim for malicious prosecution because the aggravated assault case has not been terminated in his favor.

Henderson County Court of Appeals 10/10/17