Court of Appeals Opinions

Format: 12/16/2017
Format: 12/16/2017
Orion Federal Credit Union v. Fitzgerald Brewer
W2017-00944-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge James F. Russell

This is a post-foreclosure unlawful detainer action in which Orion Federal Credit Union, after purchasing the property at foreclosure, was awarded a judgment for possession of the property by the general sessions court. The prior owner refused to surrender the property and appealed the judgment for possession to the circuit court. Orion filed a motion for judgment on the pleadings, which was granted. The trial court also issued Orion a writ of immediate possession, and Orion took possession of the property. The prior owner appeals the trial court’s grant of the motion for judgment on the pleadings. Because we have determined the case is moot, we dismiss.

Shelby County Court of Appeals 12/15/17
In Re Brianna B.
W2017-01181-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Daniel L. Smith

This appeal involves the termination of a father’s parental rights to his minor child. The father is currently serving an eleven-year prison sentence after pleading guilty to vehicular homicide, with the victim being the child’s mother. The child’s maternal aunt and uncle, who had been granted custody of the child, filed a petition to terminate the father’s parental rights. The trial court terminated the father’s parental rights upon finding by clear-and-convincing evidence that four grounds for termination were proven, and that termination was in the child’s best interest. The father appeals. We reverse the decision of the trial court as to three of the grounds for termination. However, we affirm the trial court’s decision as to one ground, and that termination of the father’s parental rights is in the child’s best interest.

Hardin County Court of Appeals 12/15/17
Tennison Brothers, Inc., et al. v. William H. Thomas, Jr.
W2016-00795-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Jim Kyle

This appeal involves parties with interests in neighboring properties who competed for the issuance of a billboard permit. Rather than waiting for the resolution of the administrative process that would determine which of the two applicants was entitled to a billboard permit, one party illegally constructed his billboard without a permit in the midst of the proceedings. Because of his action, the opposing party was unable to construct a billboard when the litigation ultimately ended in its favor. The party who prevailed in the administrative process and its landlord both obtained default judgments against the party who constructed the billboard based on claims of intentional interference with business relations and inducement to breach a contract. The trial court appointed a special master to calculate damages and adopted the master’s report in its entirety, awarding the landlord approximately $1.1 million and awarding the party who planned to construct the billboard $3.9 million, which included treble damages. We affirm and remand for further proceedings.

Shelby County Court of Appeals 12/15/17
Josh Holland Et Al. v. Edward M. Forester Et Al.
E2016-02147-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge L. Marie Williams

This case involves an alleged intentional or negligent misrepresentation made in connection with the sale of a residence. Shortly after purchasing their home from sellers Edward M. Forester and Alisa S. Forester, buyers Josh Holland and Angie Holland discovered that the subfloor of the house was saturated and ruined by pet urine. The buyers sued the sellers in general sessions court. That court found that the sellers intentionally misrepresented the condition of the subfloor on the property disclosure form. The sellers appealed to the trial court. The buyers alleged that the sellers violated the Tennessee Residential Property Disclosure Act (TRPDA), Tenn. Code Ann. § 66-5- 201, et seq. (2015). They sought damages for intentional or negligent misrepresentation; promissory fraud; fraudulent inducement to contract; and breach of the implied covenant of good faith and fair dealing.1 Mr. Forester passed away prior to the second trial. The buyers continued this litigation but only against Ms. Forester in her individual capacity. The trial court held that the buyers failed to prove that Ms. Forester had knowledge of the alleged defect in the subfloor. Specifically crediting her trial testimony, the court held that Ms. Forester did not violate the TRPDA or make an intentional or negligent misrepresentation. The buyers appeal, asserting that the trial court erred in determining that Ms. Forester did not know about the condition of the subfloor and in admitting Ms. Forester’s testimony regarding Mr. Forester’s mental capacity around the time of the general sessions court trial. We affirm the judgment of the trial court.

Hamilton County Court of Appeals 12/15/17
Bonnie Shaw v. Metropolitan Government Of Nashville And Davidson County, Tennessee
M2016-02455-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Thomas W. Brothers

In this premises liability action, following the filing of a motion for summary judgment by the defendant, the plaintiff filed a motion seeking to amend her complaint to add a claim of negligence per se based on alleged building code violations attributed to the defendant’s maintenance of the premises at issue. The trial court failed to rule upon the pending motion to amend before granting summary judgment in favor of the defendant. The plaintiff timely appealed. Due to the trial court’s lack of proper consideration of the motion to amend, we conclude that summary judgment was improperly granted. We therefore vacate the grant of summary judgment in favor of the defendant and remand this matter to the trial court for consideration of the motion to amend and entry of an order presenting a reasoned explanation for the grant or denial of the sought amendment. Following such action regarding the motion to amend, the trial court may consider the motion for summary judgment.

Davidson County Court of Appeals 12/14/17
In Re Steevie A.
W2016-02577-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor James F. Butler

The trial court terminated Father’s parental rights on grounds of: (1) abandonment by willful failure to visit; (2) abandonment by willful failure to support; (3) abandonment by failure to establish a suitable home; and (4) persistence of conditions. We reverse the grounds of abandonment by failure to establish a suitable home and persistence of conditions. In all other respects, we affirm the judgment of the trial court, including the termination of Father’s parental rights.

Henderson County Court of Appeals 12/14/17
In Re Alyssa W., Et Al.
E2017-00070-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge J. Michael Sharp

The Department of Children’s Services initiated a proceeding to have four children declared dependent and neglected; the children were so determined, and in a separate proceeding, the Department sought to terminate the rights of the parents of the children. The rights of the father of three of the children were terminated on the grounds of substantial noncompliance with the permanency plans, persistence of conditions, and severe child abuse; the court also determined that termination was in the children’s best interest. After a thorough review of the record, we reverse the ground of persistence of conditions and affirm the remaining grounds and the holding that termination of Father’s rights is in the best interest of the children.

Bradley County Court of Appeals 12/14/17
In Re Carter B.
M2016-01438-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Robert L. Jones

This case involves the custody of Carter B., a child adjudicated to be dependent and neglected.  The Department of Children’s Services, after taking custody of the child, asked the trial court to approve a 90-day trial home visit in the home of the child’s maternal grandmother, pursuant to the provisions of Tenn. Code Ann. § 37-1-130(d) (Supp. 2017).  The trial court granted the motion, finding a trial home visit to be in the child’s best interest.  The court scheduled a review hearing at a time near the end of the 90-day period.  The child’s guardian ad litem, Stacie Odeneal, who opposed the trial home visit, filed a notice of appeal.  The child’s mother filed a motion to dismiss the appeal, arguing that the trial court’s order is not a final judgment.  We hold the trial court’s order granting a temporary trial home visit is not a final judgment.  Accordingly, the guardian ad litem’s appeal is dismissed.  

Lawrence County Court of Appeals 12/12/17
In Re Da'Vante M., Et Al.
M2017-00989-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Tiffany Gentry Gipson

This appeal concerns termination of a father’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Jackson County (“the Juvenile Court”) seeking to terminate the parental rights of Craig M. (“Father”) to his three minor children Da’Vante, Brandon, and Leaddra (“the Children”). After a trial, the Juvenile Court entered an order terminating Father’s parental rights on the grounds of failure to provide a suitable home, substantial noncompliance with the permanency plans, and persistent conditions. The Juvenile Court also found that termination of Father’s parental rights is in the Children’s best interest. Father appeals to this Court. We affirm the judgment of the Juvenile Court.

Jackson County Court of Appeals 12/12/17
Randall Lloyd Case v. Mary Kathryn Case
E2017-02025-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge M. Nicole Cantrell

The notice of appeal in this case indicates on its face that the appellant is appealing from a decision entered on September 18, 2017. However, there is no final judgment in the proceedings below entered on September 18, 2017, or any other date. Because the case remains pending in the trial court, we lack jurisdiction to consider this appeal.

Anderson County Court of Appeals 12/11/17
Kim Maura Baxstrom (Webb) v. Kirk Ewing Webb
E2017-01651-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge W. Neil Thomas, III

This is an appeal from an order granting a motion filed pursuant to Rule 60 of the Tennessee Rules of Civil Procedure. Because the order does not resolve all issues raised in the proceedings below, this appeal is dismissed for lack of jurisdiction without prejudice to the filing of a new appeal once a final judgment has been entered.

Hamilton County Court of Appeals 12/11/17
Kim Covarrubias v. Gerald Edward Baker
E2016-02316-COA-R3-CV
Authoring Judge: Judge Frank G. Clement Jr., P.J., M.S.
Trial Court Judge: Judge Gregory S. McMillian

This appeal arises out Husband’s petition to reduce his alimony in futuro obligation and Wife’s motion for criminal contempt for Husband’s failure to pay his alimony obligation in full. Wife opposed the modification of alimony on two grounds: (1) the 2007 Marital Settlement Agreement was not modifiable and (2) there had been no material change in circumstances. The trial court held that the alimony in futuro provision was modifiable and, based on a finding that Husband had proven a material change in circumstances, reduced Husband’s alimony obligation. The court then calculated Husband’s alimony arrearage for 2015 based on his income in 2007, not on his income as stated on his W-2 for 2015, which was greater. The court also dismissed the contempt petition upon a finding that Wife failed to prove the essential elements. Wife appeals, contending the trial court erred (1) by dismissing her motion for criminal contempt; (2) by finding that the trial court had the authority to modify alimony; (3) by finding that a substantial and material change in circumstances warranted a modification; and (4) by failing to properly calculate Husband’s alimony arrearage for 2015. We have determined that the double jeopardy clause of the Fifth Amendment to the United States Constitution precludes us from reviewing the trial court’s decision to dismiss the contempt petition; therefore, we affirm the dismissal of the criminal contempt petition. As for Husband’s petition to modify alimony in futuro, we affirm the trial court’s determination that the alimony in futuro provision was modifiable; however, we have determined that there is no factual basis to support a finding that Husband proved a substantial and material change in circumstances. Accordingly, we reverse the trial court’s decision to decrease Husband’s alimony obligation and remand with instructions to reinstate the alimony award as stated in the final divorce decree. Because the alimony arrearage judgment was based on the reduced alimony obligation, we also reverse that award and remand with instructions for the trial court to award an arrearage judgment based on Husband’s gross earnings in 2015, not his salary in 2007. Therefore, we affirm in part, reverse in part, and remand for recalculation of the alimony arrearage judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part, Reversed in Part, and Remanded.

Knox County Court of Appeals 12/11/17
Metropolitan Development And Housing Agency v. Nashville Downtown Platinum, LLC
M2017-00450-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Kelvin D. Jones

In this condemnation case, a jury trial was held concerning the amount of compensation owed to Appellant as a result of the governmental taking of its property. The jury returned a verdict finding that the fair market value of the property had been over $2,000,000.00 on the date of the taking, and the trial court entered judgment on the verdict. Although Appellant now appeals raising several issues, we affirm the trial court’s judgment.

Davidson County Court of Appeals 12/08/17
Tina Lynn Davis Newell v. First State Bank, Inc., et al.
W2017-01209-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joe H. Walker, III

A customer of a tanning salon injured herself upon exiting the salon when she fell while stepping off the curb onto a snow and ice-covered portion of the parking lot where she had parked her car. The customer brought suit against the owners of the tanning salon and of the shopping center, as well as a grounds keeping service, alleging that the codefendants negligently failed to clear the ice and snow from the parking lot or warn her of the potential danger. The owners of the tanning salon filed a motion for summary judgment. Finding that the tanning salon owed no duty to the customer, the trial judge granted summary judgment. The customer appealed. We affirm.

Tipton County Court of Appeals 12/07/17
Frankie G. Munn v. Sandra M. Phillips Et Al. - Dissenting
E2016-02242-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Rex H. Ogle

The majority holds that a remand to the trial court is necessary “[b]ecause the trial court failed to make specific findings of fact and conclusions of law regarding the applicability of any res judicata defense . . . .” (Italics in original.) I believe the record in this case clearly shows that the claim of the appellee Frankie G. Munn is barred by the doctrine of res judicata. Hence, I see no need for a remand.

Cocke County Court of Appeals 12/07/17
Frankie G. Munn v. Sandra M. Phillips Et Al.
E2016-02242-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Rex H. Ogle

In this unjust enrichment action, the trial court awarded the plaintiff $42,929.00 for the fair market rental value of improved real property that the plaintiff purchased at a foreclosure sale in 2012 but did not gain possession of until 2015. Following the foreclosure sale, the plaintiff was forced to litigate for a period of three years to obtain title, during which time the former owners of the home, who had defaulted in payments on their mortgage, remained in possession and failed to pay rent. The plaintiff subsequently filed this action in the trial court, seeking an award of fair market rental value of the home from the former owners. The trial court ordered that the former owners pay reasonable rent of $1,200.00 per month from August 2, 2012, the date of the foreclosure sale, to July 24, 2015, the date upon which the court in the prior action entered a final order declaring the plaintiff to be the rightful owner of the property. The former owners have appealed. Because the trial court failed to make specific findings of fact and conclusions of law regarding the applicability of any res judicata defense, we vacate the trial court’s judgment and remand this matter to the trial court for resolution of that issue.

Cocke County Court of Appeals 12/07/17
In Re Estate of Eunice Katherine Sanders McCollum
M2015-02169-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Michael R. Meise

This is a probate case, and the parties are Decedent’s children. Appellant son filed a claim against Appellee daughter, alleging that she mishandled the Decedent’s financial affairs, both during Decedent’s life and after her death in 2007. In 2009, the trial court appointed a special master, who conducted two evidentiary hearings and filed two reports, which essentially exonerated Appellee from any wrong-doing. Two years later, the trial court ordered the Administrator of the estate to pay certain fees and file certain applications so that the estate could be closed, and dismissed all pending motions filed by the parties. Appellant filed a motion to alter or amend the judgment of the trial court that was denied. Concluding that the Appellant did not have standing to bring a claim against Appellee, we affirm and remand.  

Dickson County Court of Appeals 12/05/17
In Re Brooklyn J.
E2016-00482-COA-R3-PT
Authoring Judge: Judge Frank G. Clement Jr., P.J., M.S.
Trial Court Judge: Judge J.B. Bennett

The mother of twins seeks to set aside the termination of her parental rights on the ground the judgment is void for lack of personal service. In August 2013, relatives who had legal custody of the children filed a “Petition for Termination of Parental Rights and Adoption.” After two failed attempts to locate the mother for service of process, she was served by publication. In December 2013, the trial court entered an Order of Default terminating her parental rights, and the children were adopted shortly thereafter. The mother received actual notice of the termination of her parental rights and the adoption no later than April 2014, but she waited until October 2015 to file a Tenn. R. Civ. P. 60 motion to set aside the 2013 judgment. Following a hearing, the trial court ruled that the 2013 judgment was void for lack of personal service but that the mother was not entitled to relief from the judgment based on “exceptional circumstances.” The mother appealed. We affirm the trial court’s determination that the mother is not entitled to relief based on exceptional circumstances, they being that she had actual notice of the judgment eighteen months prior to seeking relief, which manifested an intention to treat the judgment as valid, and that granting relief would impair the children’s and the adoptive parents’ substantial interests of reliance on the judgment.

Hamilton County Court of Appeals 12/05/17
In Re Prince J.
E2016-00479-COA-R3-PT
Authoring Judge: Judge Frank G. Clement Jr., P.J., M.S.
Trial Court Judge: Judge J.B. Bennett

The mother of twins seeks to set aside the termination of her parental rights on the ground the judgment is void for lack of personal service. In August 2013, relatives who had legal custody of the children filed a “Petition for Termination of Parental Rights and Adoption.” After two failed attempts to locate the mother for service of process, she was served by publication. In December 2013, the trial court entered an Order of Default terminating her parental rights, and the children were adopted shortly thereafter. The mother received actual notice of the termination of her parental rights and the adoption no later than April 2014, but she waited until October 2015 to file a Tenn. R. Civ. P. 60 motion to set aside the 2013 judgment. Following a hearing, the trial court ruled that the 2013 judgment was void for lack of personal service but that the mother was not entitled to relief from the judgment based on “exceptional circumstances.” The mother appealed. We affirm the trial court’s determination that the mother is not entitled to relief based on exceptional circumstances, they being that she had actual notice of the judgment eighteen months prior to seeking relief, which manifested an intention to treat the judgment as valid, and that granting relief would impair the children’s and the adoptive parents’ substantial interests of reliance on the judgment.

Hamilton County Court of Appeals 12/05/17
In Re: Jaiden A.
E2016-02421-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John D. McAfee

This is a dependency and neglect case. After adjudication of dependency and neglect, the juvenile court granted custody to the child’s paternal grandparents. Mother/Appellant appealed that decision to the circuit court. Because the circuit court did not conduct a de novo hearing, we vacate its order and remand for further proceedings.

Scott County Court of Appeals 12/05/17
In Re Christopher J., et al.
W2016-02149-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Special Judge Harold W. Horne

Father appeals the termination of his parental rights to two children. The juvenile court found clear and convincing evidence that Father was criminally convicted of the intentional and wrongful death of the children’s mother and that termination of parental rights was in the children’s best interest. We conclude that the record contains clear and convincing evidence to support both findings. Thus, we affirm the termination of parental rights.

Shelby County Court of Appeals 12/04/17
Briggs & Stratton Power Products Group, LLC v. Osram Sylvania, Inc., et al.
W2016-01799-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge William B. Acree

The tenant of a warehouse and the warehouse owner’s property manager disagree over which party is responsible for the damage caused by a fire that destroyed the tenant’s inventory. We have concluded that the “as is, where is” lease between the warehouse owner and the tenant places the responsibility for the damage on the tenant and that the trial court properly granted summary judgment in favor of the property manager.

Dyer County Court of Appeals 12/04/17
Citrina Louise Gensmer v. Luke August Gensmer
W2017-00443-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Carma Dennis McGee

The divorced mother and father of a nine year-old child were sharing residential time equally when the mother notified the father of her intent to relocate to Gulfport, Mississippi, eight to nine hours away. The father opposed the relocation and asked the court to designate him as the primary residential parent. After determining that the parties spent substantially equal intervals of time with the child during the twelve months immediately preceding the trial, the court conducted a best interest analysis to determine whether it was in the child’s best interest to relocate with the mother. Concluding that it was not in the child’s best interest to relocate, the court designated the father as the primary residential parent and entered a new parenting plan in which the mother was awarded sixty-four days per year of residential time with the child. The mother appealed several aspects of the trial court’s decision, and we affirm the judgment in all respects.

Henry County Court of Appeals 11/30/17
In Re Estate Of John Jefferson Waller, Jr.
M2017-00360-COA-R9-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge David Randall Kennedy

In this interlocutory appeal involving a will contest, the trial court determined that Appellant did not have standing to contest the will at issue. In light of the Tennessee Supreme Court’s recent decision in In re Estate of Brock, No. E2016-00637-SC-R11-CV, 2017 WL 5623526 (Tenn. Nov. 22, 2017), we reverse and remand for further proceedings.

Davidson County Court of Appeals 11/30/17
Michael Tomlin, Et Al. v. Renal Care Group, Inc. Et Al.
M2016-02216-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Russell T. Perkins

A real estate consultant brought suit against a renal care company and related corporate affiliates alleging breach of contract for failing to pay real estate commissions. The commissions were allegedly owed based upon the consultant’s work in negotiating one original lease for a dialysis clinic, and based upon several alleged renewals of leases that had originally been negotiated by the consultant. The parties’ consulting agreement specified that the consultant was entitled to commissions upon execution of original leases, and at any subsequent renewals or extensions of the original leases. Because the order appealed is not final in that it fails to adjudicate at least six of the former consultant’s claims, this Court lacks subject-matter jurisdiction over the appeal. Tenn. R. App. P. 3(a). Accordingly, the appeal is dismissed. 

Davidson County Court of Appeals 11/30/17