Court of Appeals Opinions

Format: 06/28/2017
Format: 06/28/2017
Lisa Schnur v. James William Sherrell, III
E2016-01338-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge W. Neil Thomas, III

This appeal involves a post-divorce order of protection. Mother obtained an ex-parte order of protection on behalf of the parties’ thirteen-year-old son alleging that Father had punched the child in the mouth while drunk on a family vacation. After an evidentiary hearing, the trial court dismissed Mother’s petition for order of protection finding that she had not met her burden of proof. Mother appealed. Discerning no error, we affirm.

Hamilton County Court of Appeals 06/27/17
Lorese Douglas Jones, et al. v. Stephen W. Behrman, et al.
W2016-00643-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert Samuel Weiss

This is a medical malpractice action in which the trial court granted summary judgment for failure to file suit within the applicable statute of limitations. We affirm.

Shelby County Court of Appeals 06/27/17
Kimberly K. Carr v. Floyd K. Sutton
M2015-01568-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Barry R. Brown

The State of Tennessee filed a petition in 2013 on behalf of the mother of a child who was born in 1996 to legitimate the child and to require the father to provide health insurance for the child; the requested relief was granted.  In 2014, the mother filed a petition to set child support and, following a hearing before a juvenile court magistrate, the father was ordered to pay child support; the magistrate determined that child support should not be made retroactive to the birth of the child but, rather, to the date that the petition to have the child legitimated was filed.  Mother appealed the decision to the juvenile judge; after a de novo hearing, the juvenile judge adopted the findings of the magistrate and ordered Father to pay support of $549.00 per month from the date the petition to legitimate was filed.  Mother appeals the ruling, contending that the obligation to pay support should be retroactive to the date of the child’s birth.  Concluding that the trial court did not abuse its discretion, we affirm the judgment.  

Sumner County Court of Appeals 06/26/17
In Re: Francis P
E2016-02493-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Lawrence Howard Puckett

The appellant, Tony P., filed a “Complaint and Petition to Terminate Parental Rights and/or for Adoption” in the Circuit Court for McMinn County (“trial court”) on September 18, 2015. This petition sought to terminate the parental rights of the “unknown father” of a child for whom Tony P. had signed a voluntary acknowledgment of paternity (“VAP”). Jon F. filed a motion to intervene, asserting that he was the biological father of the child. The trial court allowed Jon F. to intervene in the action pursuant to an agreed order. The child’s mother later filed a motion seeking to dismiss Tony P.’s petition for failure to state a claim upon which relief could be granted and lack of subject matter jurisdiction. By oral motion, Jon F. joined with the mother in seeking dismissal. The trial court entered a Memorandum and Order on August 15, 2016, finding that (1) Jon F. was the biological and legal father of the child, (2) Tony P.’s VAP had been rebutted, and (3) any and all parental rights of Tony P. as legal father were “terminated by operation of law under Tenn. Code Ann. § 36-1-102(28)(C).” The trial court entered a subsequent order dismissing the petition filed by Tony P. Tony P. timely appealed. Having determined that the trial court properly found that Jon F. challenged and rebutted the VAP executed by Tony P., we conclude that Tony P. no longer enjoyed any parental rights with regard to the child. Although we determine that the trial court erred by applying Tennessee Code Annotated § 36-1-102(28)(C) retrospectively to this action filed before the statutory subsection’s enactment, we determine this error to be harmless inasmuch as Tony P.’s parental rights were a nullity. We therefore modify the judgment to reflect that Tony P. had no parental rights to be terminated following the court’s rescission of the VAP. We affirm the trial court’s dismissal of Tony P.’s petition seeking termination of Jon F.’s parental rights. We decline to award fees and costs to the mother and Jon F.

McMinn County Court of Appeals 06/26/17
Brenda Ramsey v. Cocke County, Tennessee, Et Al.
E2016-02145-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Richard R. Vance

In this wrongful death action, the decedent’s mother filed suit alleging that the county emergency communications district and the city police department refused to send help when the plaintiff called to report that her daughter was making suicidal threats and that, as a result, her daughter committed suicide later the same night. The trial court granted summary judgment in favor of the defendants on the ground that the decedent’s suicide constituted an intervening, superseding cause. Viewing the evidence in the light most favorable to the plaintiff, we conclude that the decedent’s suicide was foreseeable and that the special duty exception to the public duty doctrine applies. We, therefore, reverse the trial court’s grant of summary judgment and remand for further proceedings.

Cocke County Court of Appeals 06/23/17
Phillip Neal Kennedy v. Jane Kennedy
M2016-01635-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Michael W. Binkley

This post-divorce appeal concerns the father’s petition to modify the residential schedule in an agreed parenting plan. Following a hearing, the trial court found that a material change in circumstances necessitated a change in the schedule. The court modified the plan by awarding the father additional co-parenting time. The court also entered a new child support order and directed the mother to remit payment for retroactive child support and the father’s attorney fees. The mother appeals. We affirm.

Williamson County Court of Appeals 06/23/17
The Metropolitan Government of Nashville And Davidson County v. Delinquent Taxpayers As Shown On The 2006 Real Property Tax Records, et al
M2016-02220-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

Delinquent taxpayer appeals the denial of his Tenn. R. Civ. P. 60.02(3) motion to set aside a 2009 final decree confirming a tax sale of his property as void on due process grounds. Having determined that the doctrine of collateral estoppel precluded the delinquent taxpayer from relitigating the issue of notice, we affirm.

Davidson County Court of Appeals 06/23/17
J.P.Morgan Chase Bank, N.A. v. Gary Eldon Finley, et al
M2016-01178-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor J. B. Cox

A bank filed a complaint to reform a Deed of Trust to correct a scrivener’s error in the legal description of a parcel of property in order to foreclose on the property. While the litigation was pending, the mortgagors conveyed title to the property to a third party, who claimed to be a bona fide purchaser for value without notice. The trial court concluded that the third party did not qualify as a bona fide purchaser because he was aware of the bank’s litigation when he obtained title to the property. We affirm the trial court’s judgment.

Marshall County Court of Appeals 06/22/17
Jerry Faerber, Et Al. v. Troutman & Troutman, P.C., Et Al.
E2016-01378-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Don R. Ash

Appellees entered into a contract for the purchase of an undeveloped lot in a planned unit development. Appellants, an attorney and his law firm, prepared closing documents, including a warranty deed and settlement statement. The warranty deed included language that the property was unencumbered, and the settlement statement provided for payoff of the first mortgage and for the purchase of title insurance. Appellees later discovered that Appellants had failed to procure release of the first lien and had also failed to procure title insurance. The property was foreclosed, and Appellees filed suit against Appellants for negligent misrepresentation and violation of the Tennessee Consumer Protection Act. The trial court found Appellees liable on these claims. We concluded that the Tennessee Consumer Protection Act does not apply to Appellants, who were engaged in the practice of law in the preparation of the closing documents. Accordingly, we reverse the trial court’s award of attorney fees and costs pursuant to the Tennessee Consumer Protection Act. The trial court’s order is otherwise affirmed.

Campbell County Court of Appeals 06/22/17
Terry Joe McBroom v. Kelly Loretta Folkers McBroom
W2016-01276-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jim Kyle

In this divorce case, Terry Joe McBroom appeals the trial court’s award of alimony in futuro to Kelly Loretta Folkerts McBroom in the amount of $980 per month for three years or until Husband began drawing his retirement pension. The trial court ordered that once Husband began drawing his pension, which the parties agree will happen no later than April of 2019, the amount of spousal support will be reduced to $720. The court further ruled that Husband’s support obligation would cease when Wife began drawing Social Security benefits. Finding no abuse of discretion, we affirm.

Shelby County Court of Appeals 06/21/17
In Re: Skylar P., Et Al.
E2016-02023-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kurt A. Benson

Mother appeals the trial court’s decision to terminate her parental rights to two children on the grounds of: (1) abandonment by failure to provide a suitable home; (2) abandonment by willful failure to provide support; (3) substantial noncompliance with the requirements of the permanency plans; and (4) persistence of conditions that precipitated the children’s removal from Mother’s custody. The trial court found by clear and convincing evidence that termination of Mother’s parental rights was in the best interest of the children. We reverse in part and affirm in part.

Bradley County Court of Appeals 06/21/17
In Re Jase P.
E2016-02519-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Timothy E. Irwin

This appeal arises from the termination of a father’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition against Anthony G. (“Father”) in the Juvenile Court for Knox County (“the Juvenile Court”) seeking to terminate Father’s parental rights to his son, Jase P. (“the Child”). Father had been incarcerated and unable to parent the Child since the Child’s birth. After a trial, the Juvenile Court terminated Father’s parental rights on the grounds of wanton disregard and various grounds coming under the putative father statute at Tenn. Code Ann. § 36-1- 113(g)(9)(A). Father appeals. We affirm all grounds for termination found against Father. We further affirm that termination of Father’s parental rights is in the Child’s best interest. We, therefore, affirm the judgment of the Juvenile Court in its entirety.

Knox County Court of Appeals 06/21/17
Tracy Lynn Hallums v. Bruce Alan Hallums
M2016-00396-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge John Thomas Gwin

In this divorce action, the trial court awarded alimony in futuro and attorney’s fees to Wife; Husband appeals both awards. Concluding that the court did not make adequate findings as to whether rehabilitative or transitional alimony was feasible, we vacate the award of alimony in futuro and remand for further consideration of the nature and duration of the alimony award; we affirm the trial court’s award of attorney’s fees to Wife; and we decline to award attorney’s fees to either party for the appeal.

Wilson County Court of Appeals 06/21/17
John F. Pinkard, M.D. v. HCA Health Services of Tennessee, Inc. D/B/A Summit Medical Center
M2016-01846-COA-R9-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

We granted this interlocutory appeal to determine whether Tenn. Code Ann. § 68-11-272(c)(1) of the Healthcare Quality Improvement Act (“HCQIA”), as applied to the facts of this case, violates the separation of powers provisions in the Tennessee Constitution. Plaintiff, a physician whose medical staff privileges were terminated by Summit Medical Center, sued the hospital, alleging, inter alia, that it acted in bad faith and with malice during the peer review process. Following a lengthy discovery process, the hospital filed a motion for summary judgment asserting, inter alia, that Plaintiff’s anticipated evidence was confidential, privileged, and inadmissible under the HCQIA because it was derived from the activity of a Quality Improvement Committee (“QIC”). At the same time, the hospital filed a motion in limine to exclude all records of quality improvement activity pursuant to the evidentiary privilege under Tenn. Code Ann. § 68-11-272(c)(1). After ascertaining that Plaintiff intended to rely on QIC evidence, the trial court ruled that the peer review privilege could not be waived, and that Tenn. Code Ann. § 68-11-272(c)(1) violated the separation of powers provisions because it deprived the court of its inherent authority to make evidentiary decisions affecting “the heart of this case.” This Tenn. R. App. P. Rule 9 interlocutory appeal followed. We agree with the trial court’s ruling that the privilege cannot be waived. However, we disagree with the trial court’s ruling that Tenn. Code Ann. § 68-11-272(c)(1), as applied to the facts of this case, violates the separation of powers provisions in the Tennessee Constitution. This is because the General Assembly created the evidentiary privilege to effectuate one of its powers, the enactment of legislation that promotes the safety and welfare of our citizens. To that end, the primary concern of the challenged legislation is not to create court rules, but to promote candor within a hospital’s quality improvement process to ensure effective evaluation measures. Furthermore, Tenn. Code Ann. § 68-11-272(c)(2) provides an “original source” exception to the privilege whereby documents not produced specifically for use by a QIC, and are otherwise available from original sources, are both discoverable and admissible into evidence even if the information was presented during a QIC proceeding. Thus, the privilege is reasonable and workable within the framework of - 2 - evidentiary rules already recognized by the judiciary. For these reasons, we reverse and remand for further proceedings.

Davidson County Court of Appeals 06/21/17
Western Farm Products, LLC, Inc. v. Sumner County, TN , et al
M2015-02003-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Joe H. Thompson

A property owner who wished to construct and operate a quarry sought a declaratory judgment that a Sumner County Zoning Resolution, which was alleged to exclude quarrying and mining activities, is unconstitutional and in violation of the Tennessee zoning enabling statutes. A group of adjoining property owners were permitted to intervene in the proceeding, and the court granted summary judgment to the county and adjoining property owners. The property owner now appeals. We find that the evidence relied upon by the property owner does not establish that the ordinance at issue prohibits all quarrying activities and affirm the trial court’s judgment.

Sumner County Court of Appeals 06/19/17
Ronald Stringer v. Alecia Stringer
M2016-01314-COA-R3-CV
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Judge Philip E. Smith

This post-divorce case concerns parental relocation.  Mother, the primary residential parent, sought to relocate to Texas, citing an employment offer.  Father objected to the relocation, arguing that the move had no reasonable purpose and that Mother’s real purpose for relocating is to be closer to her boyfriend. The trial court denied mother’s request to relocate based on mother’s perjury in the trial court’s presence and on the finding that the real purpose of mother’s proposed move is to be closer to her boyfriend. We reverse the trial court’s decision because we determine that father failed to carry his burden of proof.

Davidson County Court of Appeals 06/16/17
Amy Ausenbaugh Sturdivant v. William Eugene Sturdivant
M2016-00976-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

Father appeals the trial court’s denial of his request for equal parenting time with the parties’ children and failure to grant father a fault-based divorce based on mother’s infidelity. Discerning no error, we affirm.

Montgomery County Court of Appeals 06/15/17
Tennessee Firearms Association, et al. v. Metropolitan Government of Nashville and Davidson County, Tennessee
M2016-01782-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Carol L. McCoy

This appeal involves an attempt to challenge the legality of a gun show ban that was adopted for the Tennessee State Fairgrounds. The trial court dismissed the complaint on numerous alternative grounds. We affirm.

Davidson County Court of Appeals 06/15/17
In Re Estate of Bessie Adcock Bingham
M2016-01186-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor James B. Cox

This appeal arises from the probate administration of an estate. The principal issues concern a certificate of deposit and the trial court’s approval of attorney fees paid from the estate to the estate’s first attorney. The trial court awarded the certificate of deposit to the decedent’s son, finding that the certificate of deposit passed to the son as the surviving joint tenant. With respect to attorney fees paid to estate’s first attorney, the trial court approved fees in the amount of $12,400 and disapproved fees in the amount of $7,600. The decedent’s daughter appealed. Finding no error, we affirm.

Bedford County Court of Appeals 06/13/17
Church of The First Born Of Tennessee, Inc. v. Tom Slagle, et al.
M2014-01605-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Charles K. Smith

A dispute among members of a church arose over control of the church. One group of members incorporated and then filed suit against individual members of the church seeking to quite title to certain real property. The parties filed cross-motions for summary judgment. In granting the individual church members’ motion and denying the corporation’s motion, the trial court found the church to be congregationally governed with a clear and established practice for handling real property transactions. We conclude that the corporation lacked standing to bring the action and that the corporation’s case should be dismissed on that basis. Therefore, we reverse.  

Trousdale County Court of Appeals 06/13/17
Sonya C. Franklin Sardon v. Troy Eugene Sardon
M2015-01672-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Phillip R. Robinson

Post-divorce proceeding wherein Mother petitioned the court for a modification of the parenting plan and to increase Father’s child support obligation; following a hearing, the court granted her petition. Father appeals the upward deviation to his basic support obligation to pay a portion of the children’s extracurricular activities, the failure to give Father credit for additional funds he paid Mother each month, and the award of attorney’s fees to Mother. Upon consideration of the record, we discern no error and, accordingly, affirm the judgment of the trial court.  

Davidson County Court of Appeals 06/13/17
Knox County, Tennessee, et al. v. Delinquent Taxpayers, et al.
E2016-01750-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor John F. Weaver

This case involves an attempt by Omer G. Kennedy and Angela Helms (landowners) to exercise their right of redemption with respect to their property sold at a delinquent tax sale. Jon Johnson (tax sale purchaser) bought the property on January 13, 2015. Within the one-year redemption period, landowners paid $37,892.81, the amount they thought was required to redeem the property. Tax sale purchaser filed a motion for additional funds, consisting of payments he had made for insurance on the property and interest, under Tenn. Code Ann. § 67-5-2701 (Supp. 2016). The trial court granted the motion in an order entered January 11, 2016. The order gave landowners 30 days to pay the additional amount. Because notice of the order was not sent to their last known address, landowners did not receive the notice until after the 30 days had passed. They paid the additional amount of $5,869.43 on February 18, 2016. Tax sale purchaser moved the court to deny the redemption, arguing that the payment was not timely. The trial court denied the motion, holding that its order of January 11, 2016, was void because it was not effectively entered under Tenn. R. Civ. P. 58. and not effectively served under Tenn. R. Civ. P. 5. Alternatively, the trial court ruled that landowners were entitled to relief for excusable neglect under Tenn. R. Civ. P. 60. Tax sale purchaser appeals. We affirm.

Knox County Court of Appeals 06/13/17
Michael G. Breakey, et al. v. Sequatchie County, Tennessee, et al.
M2016-01504-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jeffrey F. Stewart
Appellees/taxpayers filed suit against Sequatchie County, seeking to set aside the tax sale of their property. As grounds, Appellees alleged that they were not afforded due process and were never notified of the delinquent tax action. The trial court ruled in favor of the taxpayers and set aside the tax sale due to lack of notice sufficient to provide due process. Sequatchie County appealed. Discerning no error, we affirm.
 
Sequatchie County Court of Appeals 06/12/17
In Re P.T.F.
E2016-01077-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Timothy E. Irwin

In this termination of parental rights case, the Department of Children’s Services filed a petition to terminate the parental rights of T.W.B. (mother) with respect to her child, P.T.F. The trial court found clear and convincing evidence of two grounds supporting termination. By the same quantum of proof, the trial court held that termination of mother’s parental rights is in the best interest of the child. Mother appeals. We affirm.

Knox County Court of Appeals 06/12/17
Rhonda Sue Griffis Grubb v. James Wesley Grubb
E2016-01851-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Frank V. Williams, III

This appeal arises from a divorce. Rhonda Sue Griffis Grubb (“Wife”) filed for divorce against husband James Wesley Grubb (“Husband”) in the Chancery Court for Roane County (“the Trial Court”). Trial in this matter was bifurcated. The validity of the parties’ antenuptial agreement (“the Agreement”) was tried first. The Trial Court found that the provision in the Agreement purporting to cap Wife’s alimony was unenforceable but otherwise upheld the Agreement. Later, trial was conducted on the remaining issues in the case. Citing her adultery and a clause in the Agreement, the Trial Court declined to grant Wife alimony. However, the Trial Court awarded Wife a substantial portion of the marital estate. The Trial Court also ruled upon child support, parenting time, and education for the parties’ two daughters. Husband appealed to this Court raising numerous issues. Wife raised additional issues of her own. We find and hold that Husband failed to carry his burden as to the validity of the Agreement. As to the second stage of this bifurcated matter, we find that the Trial Court’s final judgment is devoid of factual findings to such a degree that we cannot effectively review the remaining issues in this case. We reverse as to the validity of the Agreement. We vacate and remand for further proceedings as necessary and for entry of a new final judgment containing detailed factual findings and conclusions of law as to the remaining issues.

Roane County Court of Appeals 06/09/17