Court of Appeals Opinions

Format: 05/22/2018
Format: 05/22/2018
Willard P. Wagner, ET AL. v. Eric Martin Novelli
E2017-01183-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge W. Neil Thomas, III

This appeal concerns a dispute over an agreement to install a heating and air conditioning system (“HVAC”) in a house. Eric Martin Novelli (“Novelli”) engaged Willard P. Wagner d/b/a Wagner Heating & Air (“Wagner”) to install an HVAC system at Novelli’s house. There was no written contract. Novelli grew dissatisfied with Wagner’s work and dismissed him from the project. Wagner sued Novelli in the Circuit Court for Hamilton County (“the Trial Court”) for payment on the project. Novelli filed an answer and counterclaim. Novelli alleged, among other things, that the units Wagner installed were too large which created problems. After a trial, the Trial Court found that it could not find any breach of contract with respect to installation. Instead, the Trial Court applied the Uniform Commercial Code (“UCC”) and awarded Wagner $11,400 for payment on the project. Novelli appeals to this Court. We find, as did the Trial Court, that Wagner in sizing the units relied on specifications Novelli gave him, installed the HVAC per their agreement using merchantable, fit for purpose units, and is entitled to judgment as awarded by the Trial Court. We affirm the judgment of the Trial Court.

Hamilton County Court of Appeals 05/21/18
State of Tennessee Ex Rel. Nicole Lytle v. Seneca Webb
M2017-01137-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Philip E. Smith

This appeal arose from a child support proceeding wherein the father sought modification of his child support obligation. After concluding that an incorrect arrearage amount had been established in a prior order, the trial court determined that the correct arrearage amount, including statutory interest, was $48,574.88. The trial court relied on an affidavit executed by the mother, which reflected the father’s child support payments. The mother’s affidavit, however, is not contained within the record on appeal. Furthermore, the trial court’s order contained no findings of fact demonstrating how the trial court calculated the arrearage or the statutory interest. Because the trial court failed to make adequate findings of fact, we vacate the trial court’s judgment and remand for entry of sufficient findings of fact regarding the method of calculation of the arrearage and interest.

Davidson County Court of Appeals 05/21/18
In Re Estate of Johnny Mack Galbreath
M2017-01409-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Stella L. Hargrove

This is a probate case. The chancery court entered an order purporting to close a probate estate. Several months later, the Appellant filed a Tennessee Rule of Civil Procedure 60.02(2) motion to set aside the order closing the estate on the basis of fraud and/or misconduct. The Appellant averred that her “verbal contract” claim which she had timely filed as a claim against the estate remained outstanding. After a hearing, the court denied the motion, having concluded that the Appellant failed to offer sufficient proof to substantiate her allegations and to justify re-opening the decedent’s estate. Because the order closing the estate was not final, we dismiss the appeal for lack of subject matter jurisdiction, and remand to the trial court to enter a final judgment addressing Appellant’s claim

Maury County Court of Appeals 05/18/18
John Doe, By His Next Friend Jane Doe v. Brentwood Academy Inc., Et Al.
M2018-00668-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Deanna B. Johnson

A Tennessee Supreme Court Rule 10B petition for recusal appeal was filed in this Court after the trial court denied a motion for recusal. Because the petition for recusal appeal was not timely filed in accordance with Tennessee Supreme Court Rule 10B, we dismiss the appeal.

Williamson County Court of Appeals 05/18/18
Debbie H. Morrow v. Gault Financial, LLC
M2017-01602-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Thomas W. Brothers

This case was originally filed in general sessions court. The general sessions court entered a default judgment against Appellant in the amount of $8,066.04 on January 27, 2012. In September of 2015, Appellant filed a motion for relief from the general sessions judgment, alleging that the judgment was void because she was not properly served with the civil warrant. The general sessions court denied the motion, and Appellant appealed to the circuit court. The circuit court vacated the general sessions’ default judgment finding that Appellant was not properly served but remanded the case to general sessions for a trial on the merits. Because the general sessions court lacked personal jurisdiction over Appellant, we conclude that the default judgment entered in the general sessions court is void. Accordingly, we affirm the circuit court’s order vacating the default judgment, but reverse the circuit court’s remand of the case to general sessions court, and instead we remand to the circuit court with instructions to dismiss the case.

Davidson County Court of Appeals 05/17/18
In re Estate of John Tyler McKelvey
M2017-01298-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr., P.J., M.S.
Trial Court Judge: Senior Judge Don R. Ash

This appeal arises from a declaratory judgment action seeking to determine whether the decedent died intestate. The decedent executed a will in 2005 and executed another will in 2011, which expressly revoked all prior wills and codicils. Following the decedent’s death in 2016, the original of the 2011 will could not be located; however, the original of the 2005 will was found in the decedent’s personal filing cabinet. The decedent’s children then filed a Petition to Open Estate and [for] Declaratory Relief, seeking a declaration that the decedent died intestate. The decedent’s live-in companion of approximately 30 years, and a beneficiary under both wills, filed an answer, contending that the decedent died testate under either the 2005 or the 2011 will. At the trial, the decedent’s companion conceded that she did not have evidence to overcome the presumption that the decedent revoked the 2011 will; thus, the trial focused on whether the decedent intended to revive his 2005 will upon revoking the 2011 will. The trial court found “there is no proof Decedent revoked the 2011 Will with the intent to execute a later will,” and “[g]iven the preservation and nearby-safekeeping of the 2005 Will following revocation of the 2011 Will and the lack of evidence indicating a contrary intent, the Court concludes Decedent intended to revive his 2005 Will.” We affirm.

Franklin County Court of Appeals 05/17/18
Michelle Kay (Clark) Love v. James Terrill Clark - Dissenting
E2017-01138-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Rex A. Dale

Originally, I was assigned the task of drafting an opinion in this case. I circulated my draft to the other panel judges, the Honorable W. Neal McBrayer and the Honorable Arnold B. Goldin. Judges McBrayer and Goldin do not agree with me “that the voluntary payment doctrine barred recovery.” I have read the majority opinion drafted by Judge McBrayer and concurred in by Judge Goldin. I now formally dissent from that majority opinion.

Loudon County Court of Appeals 05/17/18
Michelle Kay (Clark) Love v. James Terrill Clark
E2017-01138-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Rex A. Dale

A mother obtained a default judgment against her former spouse for child support arrearages and other amounts. At the mother’s request, the trial court entered orders of income assignment to the former spouse’s employers, each directing them to deduct a set amount from the former spouse’s salary to satisfy the default judgment. Nearly fourteen and one-half years later, the former spouse asked the court to terminate the wage assignment, claiming the culmulative amount deducted from his income exceeded the amount of judgment plus interest. The former spouse also sought a judgment against the mother to the extent she had received more than she was entitled to under the default judgment. The mother argued that the voluntary payment doctrine barred recovery. The trial court found that the former spouse’s “overpayments were made with full knowledge of the facts chargeable to him” but that they “were not voluntary payments.” Accordingly, the court entered judgment against mother plus statutory post-judgment interest.

Loudon County Court of Appeals 05/17/18
Margaret Smith v. HSBC Mortgage Services, Inc., et al.
W2017-00526-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Jim Kyle

This appeal arises out of protracted litigation following a foreclosure sale. The plaintiff asserted claims against the mortgage holder and the purchaser at the foreclosure sale for breach of contract, breach of the implied duty of good faith and fair dealing, improper foreclosure, and fraud. The trial court dismissed each of the claims, and the plaintiff appeals. Due to the deficiencies in the plaintiff’s brief on appeal, we conclude that she has waived consideration of any issues and hereby dismiss the appeal.

Shelby County Court of Appeals 05/17/18
State, ex rel., Jana Ruth Alford Nichols v. Randall Nelson Songstad
W2016-02011-COA-R3-JV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Special Judge Nancy Percer Kessler

Father unilaterally modified his child support obligation without submitting a petition to modify to the trial court because his oldest child emancipated. The trial court found that Father had impermissibly modified his child support obligation based, inter alia, on the fact that Father failed to follow the Child Support Guidelines. Discerning no error, we affirm the trial court’s judgment.

Shelby County Court of Appeals 05/17/18
In Re: The Estate of Louise J. Aslinger
E2017-01371-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge William T. Ailor

This action involves a will contest in which the decedent’s daughter alleged that the current will was void due to either undue influence or lack of mental capacity. The case proceeded to a jury trial, after which the jury invalidated the will. We affirm.

Knox County Court of Appeals 05/17/18
John Edwards v. Paula Renee Herman
E2017-01206-COA-R9-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John D. McAfee

In this personal injury action arising from an automobile-motorcycle accident, the trial court granted the plaintiff’s motion to enlarge the time allowed to obtain service of process on the defendant upon finding that the plaintiff’s failure to timely obtain service of process had been due to excusable neglect. Consequently, the trial court in the same order denied the defendant’s motion to dismiss the plaintiff’s complaint for lack of service. Upon the defendant’s subsequent motion, the trial court granted permission for an interlocutory appeal, as did this Court. Upon review of the issues certified by the trial court, we affirm the trial court’s utilization of Tennessee Rule of Civil Procedure 6.02 as a method of enlarging the timeframe for issuance and service of process, pursuant to Tennessee Rule of Civil Procedure 3, when the complaint was timely filed and when excusable neglect can be demonstrated. However, having concluded that the trial court made insufficient findings and conclusions regarding excusable neglect in this matter, we vacate the trial court’s determination on that issue and remand this matter to the trial court for further proceedings consistent with this opinion. We also vacate the trial court’s determination that the defendant would be estopped from asserting a defense based on the statute of limitations because the parties had no express agreement waiving service of process in this matter.

Campbell County Court of Appeals 05/16/18
Robert A. Hanks, et al v. First American Title Insurance Company
M2017-00560-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swinery
Trial Court Judge: Chancellor Louis W. Oliver, III

Robert A. Hanks and Lee E. Hanks (“Plaintiffs”) sued First American Title Insurance Co. (“First American”) for breach of contract with regard to an owner’s title insurance policy (“Title Policy”). First American filed a motion for summary judgment. After a hearing, the Chancery Court for Sumner County (“the Trial Court”) granted summary judgment to First American after finding and holding, inter alia, that the Title Policy excluded any claim pursuant to either federal bankruptcy code or Tennessee law for an alleged fraudulent conveyance, fraudulent transfer, or preferential transfer. Plaintiffs appeal the grant of summary judgment to this Court. We find and hold that First American made a properly supported motion for summary judgment demonstrating that Plaintiffs’ evidence is insufficient to establish an essential element of their claim and that Plaintiffs failed to demonstrate that there are genuine disputed issues of material fact with regard to the claims for fraudulent conveyance or fraudulent transfer. We further find and hold that the claim for post-petition transfer is not excluded from coverage pursuant to exclusion 4 of the Title Policy, and, therefore, summary judgment on the post-petition claim was improper. We, therefore, affirm the grant of summary judgment, in part, and reverse it, in part, and remand this case to the Trial Court for further proceedings consistent with this Opinion.

Sumner County Court of Appeals 05/16/18
Fredrick Sledge v. Tennessee Department of Corrections, et al
M2017-01510-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Claudia C. Bonnyman

Fredrick Sledge (“Petitioner”) appeals the June 16, 2017 order of the Chancery Court for Nashville and Davidson County (“the Trial Court”) dismissing Petitioner’s October 2016 petition for declaratory judgment (“2016 Petition”) based upon the prior suit pending doctrine. We find and hold that the prior suit pending doctrine applies as Petitioner had a prior suit pending involving the same parties and the same subject matter in a court that had both personal and subject matter jurisdiction. We, therefore, affirm the Trial Court’s June 16, 2017 order dismissing Petitioner’s petition.

Davidson County Court of Appeals 05/16/18
Dana Looper v. City of Algood
M2016-01880-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Larry B. Stanley, Jr.

Former police officer appeals the denial of her petition for a writ of certiorari and the denial of her motion for relief from a final judgment related to the termination of her employment. Here, the evidence was undisputed that the former police officer neglected her duties, failed to follow the directive of a “superior” and was repeatedly informed about various instances of misconduct. As such, the city administrator’s decision to uphold Appellant’s dismissal was supported by material evidence and was neither arbitrary, illegal, nor capricious.

Putnam County Court of Appeals 05/16/18
Sandra Buttram v. Kenneth Ramsey
E2017-00937-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge J.B. Bennett

Kenneth Ramsey (“Defendant”), pro se, appeals the April 18, 2017 order of the Circuit Court for Hamilton County (“the Circuit Court”) granting Plaintiff’s motion to dismiss Defendant’s appeal from General Sessions Court to the Circuit Court. Defendant’s brief on appeal severely fails to comply with Tenn. R. App. P. 27. We, therefore, find that Defendant has waived his issues on appeal. We affirm the Trial Court’s April 18, 2017 order.

Hamilton County Court of Appeals 05/15/18
In Re: Samuel R., et al.
W2017-01359-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Jim Kyle

This appeal involves the termination of a father’s parental rights to his two children. The father suffers from paranoid schizophrenia. The trial court terminated his parental rights on the grounds of mental incompetence and abandonment by willful failure to visit and/or support. We reverse the trial court’s findings regarding abandonment but otherwise affirm the termination of parental rights.

Shelby County Court of Appeals 05/14/18
Family Trust Services, LLC, Et Al. v REO Holdings, LLC, Et Al.
M2016-02524-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal of a conviction for criminal contempt arises out of a civil suit brought by business owners against the owners and employees of a competing business for fraud in the use of the tax-sale and redemption process for real property. The trial court issued a temporary injunction, prohibiting defendants from, inter alia, recording deeds in real estate transactions without an authentic notary seal on the documents and requiring defendants to notify the court and opposing counsel of any documents they intended to record in the Register’s Office. Appellant, the owner of the business which was the subject of the injunction, subsequently formed a trust in which Appellant retained the right to direct the distribution of income and principal and to amend, revoke, or terminate the trust. The trustee of the trust was conveyed real property in trust and recorded the deed without the notice required by the injunction. The property was subsequently sold, and, at Appellant’s instruction, a portion of the proceeds of sale used to pay Appellant’s legal fees for a related proceeding; the trial court held that, in so doing, the Appellant willfully and for a bad purpose violated the injunction, and held him in contempt. On appeal, Appellant argues that the evidence is insufficient to support the conviction. We have reviewed the record and conclude that there is evidence to support the contempt conviction beyond a reasonable doubt and accordingly affirm the judgment.

Davidson County Court of Appeals 05/14/18
U.S. Bank National Association v. Letitia Robertson, et al.
W2017-01421-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Gina C. Higgins

This is an unlawful detainer case. U.S. Bank initiated an action against Letitia and Roderick Robertson in the general sessions court seeking possession of a residential property it had purchased at a foreclosure sale after the Robertsons defaulted on their home loan. The general sessions court issued U.S. Bank a writ of possession, and the Robertsons appealed to the circuit court. The circuit court granted U.S. Bank’s motion for summary judgment and writ of possession. The Robertsons appealed to this Court, arguing that the circuit court lacked subject matter jurisdiction over the unlawful detainer claim. Because we have concluded that the circuit court had subject matter jurisdiction, we affirm.

Shelby County Court of Appeals 05/11/18
Mayla C. Anders v. Jonah Paul Anders
W2017-00071-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Gina C. Higgins

This is an appeal from the entry of an order dismissing an order of protection, which had already expired by its own terms. Because the order of protection has expired, we affirm the decision of the trial court and dismiss the appeal as moot.

Shelby County Court of Appeals 05/11/18
James Edgar Yarbrough v. Cheryl Ann Pinegar Yarbrough
W2017-00152-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jerry Stokes

A wife filed a motion pursuant to Tennessee Rule of Civil Procedure 60.02(3) to set aside a final decree of divorce granted on the ground of irreconcilable differences. The trial court denied the motion, finding that she failed to prove by clear and convincing evidence that the judgment was void. We affirm the trial court’s decision.

Shelby County Court of Appeals 05/11/18
Tennessee Community Organizations, Et Al. v. Tennessee Department of Intellectual And Developmental Disabilities
M2017-00991-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Russell T. Perkins

Appellants, home and community based service providers and their professional trade organization, appeal the trial court’s grant of summary judgment in favor of Appellee Tennessee Department of Intellectual and Developmental Disabilities. The case, which was filed as a declaratory judgment action, involves financial sanctions levied against Appellant providers by Appellee for billing for day services in excess of the 243-day limit imposed by a federal waiver. Appellants assert, inter alia, that the imposition of these fines exceeded Appellee’s statutory and/or contractual authority. Discerning no error, we affirm the trial court’s grant of summary judgment against Appellants on all counts of their petition.

Davidson County Court of Appeals 05/11/18
State of Tennessee F/B/O City of Columbia v. 2013 Delinquent Taxpayers
M2017-01439-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge David L. Allen

This case involves Appellant’s attempt to redeem property that was purchased by Appellee at a tax sale. Appellant executed a power of attorney in favor of his son, which vested his son with authority to file the motion to redeem the subject property. Appellee objected to the motion on the ground that son, who is not a licensed attorney, engaged in the unauthorized practice of law by filing the motion to redeem; thus, Appellee argued that the motion was void. In response to the motion, Appellant filed an amended motion to redeem with the assistance of an attorney. The amended motion, however, was filed after the one year redemption period had expired. The trial court denied the amended motion to redeem, finding that the original motion to redeem was void and that the amended motion to redeem did not relate back to the date son filed the original motion. Thus, the trial court held that the amended motion was untimely. We hold that Appellant’s son was authorized, under the power of attorney, to file the original motion to redeem and that the filing of the form motion provided by the clerk’s office was not an unauthorized practice of law. Accordingly, we reverse the trial court’s order and remand.  

Maury County Court of Appeals 05/11/18
In Re J.T.,Et Al.
M2017-01509-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Michael Meise

In this termination of parental rights case, the Department of Children’s Services filed a petition to terminate the parental rights of B.B. (mother) and J.T. (father) with respect to J.T., Jr. and H.T. (the children). The trial court determined that clear and convincing evidence supported two grounds for termination: (1) substantial noncompliance with a permanency plan; and (2) persistence of conditions. By the same quantum of proof, the court determined that termination is in the best interest of the children. We vacate the trial court’s judgment with respect to the ground of persistence of conditions. As modified, we affirm the trial court’s judgment terminating the parental rights of the parents because termination is supported by clear and convincing evidence of substantial noncompliance with a permanency plan and is in the best interest of the children. 

Dickson County Court of Appeals 05/10/18
DL Rummage v. Kimberly Rummage
M2016-02356-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Philip E. Smith

This is a divorce case in which the trial court designated the mother as the primary residential parent, awarded her child support and a portion of her attorney’s fees as alimony, and awarded her retroactive child support. The father appealed, arguing the trial court erred in numerous ways. We decline to address the father’s arguments, however, and affirm the trial court’s judgment because the father’s brief does not comply with the requirements of Tennessee Rule of Appellate Procedure 27(a) or Court of Appeals Rule 6. We grant the mother’s request for frivolous appeal damages pursuant to Tenn. Code Ann. § 27-1-122.  

Davidson County Court of Appeals 05/09/18