Court of Appeals Opinions

Format: 05/23/2015
Format: 05/23/2015
Betty Goff C. Cartwright, et al. v. Jackson Capital Partners, Limited Partnership, et al.
W2013-01865-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Arnold B. Goldin

This appeal involves claims asserted by a beneficiary of various trusts against numerous defendants, including the beneficiary’s sister and her husband, who serve as the trustee and co-trustee of some of the trusts. Among other things, the beneficiary alleged that the defendant-trustees breached their fiduciary duties by failing to pay the beneficiary all distributions to which he was entitled. The defendants moved for partial summary judgment, claiming that they had followed the terms of the trusts and paid the beneficiary all distributions to which he was entitled pursuant to the trust documents. In response to the motion for partial summary judgment, the beneficiary asserted that the trust documents were void because he executed them due to undue influence. In a previous appeal, this Court reversed the entry of partial summary judgment on the issue of undue influence, concluding that genuine issues of material fact existed. The parties engaged in additional discovery on remand, and after lengthy proceedings and numerous evidentiary and other rulings, the trial court granted summary judgment to the defendant-trustees and denied a motion for partial summary judgment filed by the beneficiary. The trial court also awarded attorney’s fees and discretionary costs to the defendants. The beneficiary appeals. We affirm and remand for further proceedings.

Shelby County Court of Appeals 05/21/15
Robert Randall Capps, et al. v. Adams Wholesale Co.,Inc., et al.
E2014-01882-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Thomas Wright

This appeal concerns the applicability of an arbitration agreement. The plaintiffs purchased decking product manufactured by the defendant. The product was covered by a limited warranty, which included an arbitration agreement. The limited warranty was never provided to the plaintiffs. Instead, a notice was attached to the product, advising them to retrieve a copy of the limited warranty through the defendant's website. Following installation of the product, the plaintiffs experienced problems with the product. The defendant advised the plaintiffs that the issue was merely cosmetic. The plaintiffs filed suit. The defendant filed a motion to dismiss or to stay the proceedings and compel arbitration. The trial court denied the motion, finding that the parties had not entered into an agreement to arbitrate disputes. The defendant appeals. We affirm.

Greene County Court of Appeals 05/21/15
Irene Kesterson v. Lanny Jones, et al.
E2013-02092-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kindall T. Lawson

This appeal concerns three notes executed by the defendants and made payable to the plaintiff. When the plaintiff filed suit, the defendants filed a motion for summary judgment, arguing that the statute of limitations for recovery on the notes had passed. The trial court denied the motion for the summary judgment. Following a bench trial, the court ruled in favor of the plaintiff, finding that the defendants were estopped from pleading the statute of limitations as a defense and that they had revived the obligation after the limtiations period ran. The defendants appeal. We affirm.

Greene County Court of Appeals 05/21/15
Guler Boyraz v. State of Tennessee
M2013-02796-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Commissioner Robert N. Hibbett

Former Tennessee State University Professor filed a claim for damages, asserting causes of action for breach of contract and negligent deprivation of statutory rights. On the State’s motion to dismiss the claim, the Claims Commission held that it lacked subject matter jurisdiction to hear the breach of contract claim and that the professor failed to state a claim for negligent deprivation of statutory rights; accordingly, the Commission granted the State’s motion. Professor appeals. We reverse the dismissal of the breach of contract claim and remand for further proceedings; in all other respects the judgment is affirmed.

Court of Appeals 05/20/15
In re Faith W.
M2014-01223-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Sammie E. Benningfield, Jr.

Mother appeals the termination of her parental rights. The trial court found three grounds for termination: abandonment by failure to support, substantial non-compliance with the permanency plan, and persistence of conditions. The trial court also found that termination of Mother’s parental rights was in the best interests of the child. Finding the evidence clear and convincing, we affirm.

White County Court of Appeals 05/20/15
In re Kane H.
M2014-00376-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge L. Raymond Grimes

This appeal concerns a child custody dispute between a child’s Mother and Grandparents. When the child was one year old, Mother signed an order transferring custody of the child to Grandparents. One year later, Mother petitioned to modify custody and have the child returned to her. Grandparents claimed that Mother was addicted to drugs and emotionally unstable. Following a hearing, the trial court determined that Mother presented a risk of substantial harm to the child if custody was returned to her. However, the court granted Mother visitation for the majority of each year. Grandparents appealed, claiming the trial court erred by granting more parenting time to Mother than to Grandparents. We affirm.  

Montgomery County Court of Appeals 05/20/15
Dawn Noles Martin (Gorham), et al. v. Matthew Kendall Martin, et al.
W2014-01007-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Paul G. Summers

This is an appeal from the trial court’s order modifying child support and setting arrearage. The trial court’s calculation of child support arrearage includes a set off for credits given the Appellee Father for necessaries provided. The trial court also found that Father was responsible for one-half of the children’s private school tuition for the three year period prior to Appellant Mother filing her petition for reimbursement of those expenses. The trial court further found that the parties had sufficient income to continue sending their children to private school and that each party should be responsible for one-half of the costs of the private school tuition and fees. Mother appeals. We reverse in part, vacate in part, and remand for a fresh determination of child support arrearages from April 2007 forward, and sufficient findings on the issue of wage assignment in accordance with this opinion.

Carroll County Court of Appeals 05/20/15
Karen Fay Petersen v. Dax Deboe
E2014-00570-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Donald R. Elledge

The plaintiff filed the instant action on September 28, 2012, alleging claims against the defendant of breach of contract, misrepresentation, negligent construction, and violation of the Tennessee Consumer Protection Act. Despite several attempts, the plaintiff was unable to obtain personal service of process upon the defendant. The plaintiff subsequently served process upon the defendant via registered mail pursuant to Tennessee Rule of Civil Procedure 4.04, but that mailing was returned “unclaimed.” The plaintiff filed a return of service, indicating that service had been properly completed pursuant to Tennessee Rule of Civil Procedure 4.04(11). The trial court entered a default judgment in favor of the plaintiff, finding that the defendant had been properly served with process. The defendant in turn moved to set aside the default judgment, and the trial court denied that motion. The defendant has appealed. We affirm the trial court's finding that the defendant was properly served with process. However, we determine that the default judgment was improperly entered in violation of the express language contained in Tennessee Rule of Civil Procedure 4.04(10). We therefore reverse the trial court's denial of the defendant's motion to set aside the default judgment and remand this matter for further proceedings.

Anderson County Court of Appeals 05/20/15
William Timothy Hayes, et al. v. Coopertown Mastersweep, Inc.
W2014-00783-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Karen R. Williams

This is an appeal from the grant of two motions for directed verdict. Appellants contracted with Appellee chimneysweep company to redesign and reconstruct portions of their fireplace and chimney to address a problem with smoke escaping into the den, upper floors, and attic. More than a year after the construction was completed, Appellants’ home was damaged by a fire, which started when wood flooring joists in close proximity to the firebox ignited. Appellants brought claims for negligence and breach of contract against Appellee. The case was tried before a jury. At the close of Appellants’ proof, the trial court granted the Appellee’s motions for directed verdict on the ground that the Appellants had failed to establish that the Appellee owed them a duty of care to conduct a destructive investigation of the safety of the Appellants’ fireplace and also on the ground that the suit was barred by the applicable statute of repose. We affirm and remand.

Shelby County Court of Appeals 05/20/15
In re K.G.S.
E2014-01299-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Dwight E. Stokes

This is a termination of parental rights case focusing on K.G.S. (the Child), the minor daughter of K.G.S. (Mother).1 The Department of Children’s Services (DCS) took emergency custody of the Child based on allegations of sexual abuse and lack of supervision. The trial court adjudicated the Child dependent and neglected. Both parents conceded the factual basis for this holding. After a trial, the court terminated Mother's parental rights after finding, by clear and convincing evidence, that (1) grounds for termination were established, and (2) termination is in the best interest of the Child. Mother appeals and challenges each of these holdings. We affirm.

Sevier County Court of Appeals 05/19/15
Linda Hanke v. Landon Smelcer Construction
E2014-01826-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Rex H. Ogle

The plaintiff, proceeding pro se, filed a complaint against the defendant in General Sessions Court for problems related to the remodel of her residence. Thereafter, the plaintiff filed a motion to “withdraw” her complaint. The General Sessions Court granted the motion and dismissed the complaint with prejudice. Approximately one year after the dismissal, the plaintiff filed a motion to set aside the judgment. The General Sessions Court denied the motion. The plaintiff appealed to the Circuit Court. The Circuit Court dismissed the appeal. The plaintiff appeals. We affirm the decision of the Circuit Court.

Sevier County Court of Appeals 05/19/15
Plastic Surgery Associates Of Kingsport Inc. v. Gregory H. Pastrick
E2014-01203-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge E. G. Moody

This action was filed against a surgeon for breach of an employment agreement by his employers, a group owned equally by four optometrists and one non-physician. The trial court found that the group was entitled to recover damages arising from the breach. The surgeon appeals. We affirm.

Sullivan County Court of Appeals 05/19/15
Davidson Pabt, LLC v. Lucien Worsham
M2014-01061-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Russell T. Perkins

This appeal arises from an action to quiet title to property that was acquired by Plaintiff at a tax sale in 2008. The former owner of the property opposed the petition contending he did not receive proper notice of the tax sale and, therefore, the sale was void. Following discovery, Plaintiff filed a motion for summary judgment contending there were no material facts in dispute and it was entitled to judgment as a matter of law. The trial court granted the motion and entered judgment quieting title in favor of Plaintiff. Defendant appeals contending the court erred in granting summary judgment because genuine issues of material facts exist concerning whether the county provided proper notice of the tax sale. He also contends the trial court failed to state the legal grounds upon which it granted the motion as required by Tenn. R. Civ. P. 56.04. We have concluded that Plaintiff filed a properly supported motion for summary judgment demonstrating that it acquired title through an order confirming the tax sale, which shifted the burden of production to Defendant to establish that a genuine dispute of material fact exists that precludes summary judgment. However, Defendant failed to carry that burden. As for Rule 56.04, the trial court failed to state the legal grounds upon which the motion was granted; however, we are able to discern from the record the grounds for granting the motion; therefore, this omission constitutes harmless error. There being no dispute of material fact concerning whether the county provided constitutionally sufficient notice of the tax sale, Plaintiff was entitled to judgment as a matter of law. Therefore, we affirm the trial court.

Davidson County Court of Appeals 05/18/15
Green Hills Neighborhood Association, et al v. The Metropolitan Government of Nashville And Davidson County Tennessee, et al
M2014-01590-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Russell T. Perkins

A developer submitted a final site plan for a mixed-use development in the Green Hills area of Nashville for approval to the Metropolitan Nashville Planning Department; the plan was approved first by the Department’s Executive Director and later by the Metropolitan Planning Commission. A neighborhood association composed of residents in the area, as well as an individual Green Hills resident, filed a petition for certiorari review of the Commission’s approval of the final site plan. Upon review of the administrative record and following a hearing, the trial court affirmed the decision and dismissed the writ with prejudice; Petitioners appeal. We concur with the trial court and affirm the decision of the Commission.

Davidson County Court of Appeals 05/18/15
Lisa Gay Love v. Federal National Mortgage Association, et al.
E2014-01649-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Michael W. Moyers

This appeal arises from a foreclosure on a deed of trust. Lisa Gay Love (“Love”) sued Federal National Mortgage Association (“FNMA”), SunTrust Mortgage, Inc. (“SunTrust”), and Self Help Ventures Fund (“Self Help”) (“Defendants,” collectively) in the Chancery Court for Knox County (“the Trial Court”) alleging that the foreclosure of her home was wrongful. Defendants filed a motion for summary judgment asserting that Love had defaulted on her mortgage, that SunTrust had exercised its power under the deed of trust to foreclose, and that FNMA had obtained a final judgment in an earlier detainer action. Love, in turn, argued that, because FNMA was not named on the deed at the time of the detainer action, FNMA lacked standing and the detainer judgment is void. The Trial Court granted Defendants’ motion for summary judgment, holding that Defendants had established res judicata. Love appeals. We hold that the judgment in the detainer action is a final judgment, that we will not revisit the issue of FNMA’s standing in that suit, and that res judicata bars Love’s claims. We affirm the judgment of the Trial Court

Knox County Court of Appeals 05/18/15
Soumya Pandey v. Manish Shrivastava
W2014-01071-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Walter L. Evans

At issue in this appeal are several divorce and post-divorce matters. We conclude that we are without jurisdiction to adjudicate the issues related to the divorce litigation, as they were not timely appealed. With respect to the post-divorce matters, we conclude that the trial court properly exercised jurisdiction over Mother’s petition to modify the parties’ parenting schedule, that the evidence does not preponderate against its decision to modify the parenting schedule, and that it did not err in its refusal to find Father in civil contempt. Exercising our discretion, we decline to award Mother discretionary costs and attorney’s fees pursuant to Tennessee Code Annotated § 27-1-122 or attorney’s fees pursuant to Tennessee Code Annotated § 36-5-103(c).

Shelby County Court of Appeals 05/15/15
State of Tennessee v. Donald Bruce Anderson, et al.
W2014-01971-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge John R. McCarroll

The trial court determined that it did not have authority to assess discretionary costs against the State in an eminent domain proceeding. It accordingly denied Defendants’ motion for discretionary costs under Rule 54.04 of the Tennessee Rules of Civil Procedure and determined that it did not have jurisdiction to make findings with respect to the reasonableness and necessity of Defendants’ costs. We affirm the trial court’s conclusion that Tennessee Code Annotated § 29-17-912 does not authorize an assessment of costs against the State in an eminent domain proceeding other than those costs that are explicitly permitted by the section.

Shelby County Court of Appeals 05/15/15
Bakers Construction Services, Inc. v. Greenville-Greene County Airport Authority
E2014-01395-COA-R3-CV
Authoring Judge: John W. McClarty
Trial Court Judge: Douglas T. Jenkins, Chancellor

This is a breach of contract action concerning a construction project. The plaintiff argued that the defendant's failure to provide access to the job site hampered its ability to complete the project in an efficient manner. The defendant responded that the plaintiff waived the failure to provide access to the site and that the plaintiff was the first to breach the contract by failing to provide a construction schedule. Following a bench trial, the court ruled in favor of the plaintiff. The defendant appeals. We affirm the decision of the trial court as modified to reflect an adjustment in the award of discretionary costs.

Greene County Court of Appeals 05/14/15
In re Estate of Harold Curtis Morrison
E2014-00764-COA-R3-CV
Authoring Judge: Thomas R. Frierson, II
Trial Court Judge: Ben H. Cantrell

The decedent in this estate action made inter vivos transfers of all his real and personal property to the defendant, who was the decedent's friend and caretaker. Following the decedent's death, his brother was appointed as administrator of the decedent's estate. The decedent's brother filed the instant action, questioning whether the transfers of property by the decedent were the result of undue influence by the defendant. The trial court determined that there existed no confidential relationship between the decedent and the defendant. The court ultimately found that no undue influence had been shown. The decedent's brother appeals that determination. He also appeals the trial court's ruling regarding an evidentiary matter and motions seeking the trial judge's recusal. Discerning no error, we affirm the trial court's judgment in all respects.

Rhea County Court of Appeals 05/14/15
In re: Addison B., et al.
M2014-02265-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Wayne S. Shelton

The trial court found clear and convincing evidence that Mother had abandoned her children by failing to visit and engaging in conduct prior to incarceration that exhibited a wanton disregard for the childre's welfare. The trial court then found by clear and convincing evidence that it was in the best interest of the children to terminate Mother's parental rights. Mother appealed. We affirm.

Montgomery County Court of Appeals 05/13/15
Bank of Vernon v. Larry Lunan, et al.
E2014-00023-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge John S. McLellan, III

Larry Lunan and Susan Lunan appeal the order of the Law Court for Sullivan County (“the Trial Court”) finding the Lunans not indigent. We previously affirmed the Trial Court's determination regarding indigency. As such, we find and hold that this issue is moot. We affirm

Sullivan County Court of Appeals 05/13/15
Russell H. Hippe, Jr. v. Miller & Martin, PLLC
M2014-01184-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Claudia Bonnyman

A former member of a law firm filed a complaint against the law firm in 2009 alleging breach of contract. The trial court dismissed the complaint because it was filed after the statute of limitations had run. The individual member filed another complaint in 2014, alleging a breach of the same contract. The law firm moved to dismiss the 2014 complaint on the basis that it was barred by res judicata. The trial court agreed and dismissed the 2014 complaint. The individual appealed the trial court‟s dismissal, and we affirm. We find the appeal is frivolous and grant the law firm‟s request for an award of its attorneys‟ fees and expenses.

Davidson County Court of Appeals 05/12/15
Dana A. Daniels v. Natalie Huffaker et al.
E2014-00869-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Dale C. Workman

This case involves an automobile accident in which the plaintiff's vehicle was struck by an oncoming pick-up truck when the truck's driver attempted to turn left in front of the plaintiff's vehicle. The plaintiff suffered injuries to her neck and back, as well as significant damage to her vehicle. The plaintiff brought this action, alleging negligence against the driver of the truck and negligent entrustment against the truck's owner, who was the defendant driver's brother-in-law. The plaintiff also alleged that the truck's owner was vicariously liable for damages under the family purpose doctrine. The driver of the truck was never successfully served with process and is not a party to this appeal. The defendant owner of the truck filed a motion for summary judgment. Following a hearing, the trial court granted summary judgment in favor of the defendant owner. The plaintiff appeals. Discerning no reversible error, we affirm.

Knox County Court of Appeals 05/12/15
Charles Currence v. Harrogate Energy, LLC
M2014-01263-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Andrew R. Tillman

This is an appeal from the decision of the trial court that certain separated mineral interests reverted to the surface owner of the land due to abandonment by the purported holder of the mineral interests. Discerning no error, we affirm.

Fentress County Court of Appeals 05/11/15
Martha Hungerford v. Jane Boedeker, et al.
E2014-01381-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Michael Falk

Martha Hungerford (“Plaintiff”) filed a petition seeking a declaration that Jimmy Hungerford was a child and legal heir at law of Thomas Hungerford. Plaintiff filed a motion for summary judgment. After a hearing the Chancery Court for Hawkins County (“the Trial Court”) granted Plaintiff summary judgment. James E. Price (“Defendant”) appeals the grant of summary judgment to Plaintiff. We find and hold that Plaintiff failed to comply with Tenn. R. Civ. P. 56.04 and, therefore, summary judgment should not have been granted. We vacate the grant of summary judgment and remand this case for further proceedings.

Hawkins County Court of Appeals 05/11/15