Court of Appeals Opinions

Format: 10/20/2019
Format: 10/20/2019
John Mark Porter v. Betsy Hillis Porter
M2018-01411-COA-R3-CV
Authoring Judge: Judge Carma D. McGee
Trial Court Judge: Judge William M. Locke

This appeal is from a final decree of divorce. The wife challenges the trial court’s ruling regarding the ground for divorce and division of the marital estate. Because the trial court failed to make sufficient findings of fact and failed to comply with Tennessee Rule of Appellate Procedure 24, we are unable to conduct a meaningful appellate review. Accordingly, we vacate the decision of the trial court and remand the case for further proceedings.

Warren County Court of Appeals 10/15/19
Donna Jetter v. Piedmont Natural Gas Company, Inc. Et Al.
M2019-00206-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Kelvin D. Jones

This is a negligence action brought by an absentee homeowner against two public utilities to recover compensatory damages. The plaintiff’s unoccupied residence was damaged when frozen water pipes ruptured during the winter and after gas service to the property was terminated. The defendants, Piedmont Natural Gas, Inc. and Duke Energy One, Inc. (collectively, “Defendants”), filed a motion to dismiss pursuant to Tennessee Rules of Civil Procedure 12.02(1) and (3), arguing the court lacked original jurisdiction over the subject matter and that venue was improper because the Tennessee Public Utility Commission (“the Commission” or “the TPUC”) had exclusive and original jurisdiction over the claims at issue. The trial court granted the motion and dismissed the action in its entirety. This appeal followed. We hold that the Commission did not have original or exclusive subject matter jurisdiction over the claims at issue and that the trial court had subject matter jurisdiction over the claims at issue, and it was the proper venue. Therefore, the judgment of the trial court is vacated and this matter is remanded to the trial court with instructions to reinstate the amended complaint filed by the plaintiff, to afford Defendants thirty days to file a responsive pleading, and for further proceedings consistent with this decision.

Davidson County Court of Appeals 10/14/19
In Re Justine J. Et Al.
E2019-00306-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Douglas T. Jenkins

This termination of parental rights case involves two children. Father/Appellant appeals the trial court’s termination of his parental rights on the ground of abandonment by willful failure to support and willful failure to visit. Because Father did not receive sufficient notice of the grounds for termination of his parental rights, we vacate the trial court’s order and remand.

Hawkins County Court of Appeals 10/10/19
James Mulloy, Et Al. v. Eugene G. Mulloy, Jr. Et Al.
M2017-01949-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

Two brothers formed a limited liability company to own and lease a commercial property. When the tenant sought to expand, both brothers sought to find a suitable space for the tenant to lease. The younger of the two brothers found a property that would ideally suit the tenant’s needs, a fact that was communicated to his brother. The older brother purchased the property through a newly created limited liability company without his younger sibling’s involvement. The older brother’s new limited liability company then leased the new property to the tenant. The younger brother brought a derivative suit against his brother and the newly formed limited liability company, claiming usurpation of a corporate opportunity belonging to the limited liability company that the brothers had formed together and tortious interference with business relationships. The younger brother also claimed unjust enrichment. Following a trial, the chancery court found in favor of the older brother and his newly formed limited liability company and dismissed the complaint. After our review of the record, we affirm.

Davidson County Court of Appeals 10/10/19
In Re Estate of Philip Roseman, Et Al.
M2019-00218-COA-R3-CV
Authoring Judge: Judge Carma D. McGee
Trial Court Judge: Judge David Randall Kennedy

This appeal originated from three related cases filed in the Probate Court for Davidson County. The issue on appeal relates to attorney’s fees and expenses. Finding no error, we affirm the decision of the trial court.

Davidson County Court of Appeals 10/10/19
In Re Omari T.
M2018-02227-COA-R3-JV
Authoring Judge: Chief Judge D. Michel Swiney
Trial Court Judge: Judge Timothy K. Barnes

This appeal results from a custody action. A Missouri court issued an initial custody decision providing Cherita L. (“Mother”) with primary custody of Omari T. (“the Child”). Both parents and the Child later moved out of that state. Both Mother and the Child relocated to Tennessee. The father, Otis T. (“Father”), resided in Tennessee for a time but more recently had been living and working in Germany. In response to a petition to domesticate the foreign decree and modify custody, the Juvenile Court for Montgomery County (“Juvenile Court”) subsequently entered in July 2017 an “agreed order” reflecting that the parties resided in Tennessee and approving an agreed parenting plan designating Father as the primary residential parent of the child. The agreed order was signed only by the Juvenile Court Judge and Father’s counsel. Mother’s signature was not included on the agreed order nor was a certificate of service included showing that the order was provided to Mother. Approximately a year later, Father filed a contempt petition when Mother refused to return the Child to Father’s custody. In response, Mother filed a motion to set aside the agreed order modifying custody, pursuant to Tennessee Rule of Civil Procedure 60.02(3), (4), and (5). The Juvenile Court denied Mother’s Rule 60.02 motion and determined that Mother had violated the Juvenile Court’s July 2017 order and held Mother in contempt. We hold that the Juvenile Court’s July 2017 order had no effective entry date pursuant to Tennessee Rule of Civil Procedure 58, and Mother, therefore, could not have been in contempt of that order. We affirm the Juvenile Court’s order transferring venue to Shelby County, and we vacate the July 2017 order and all other subsequent orders by the Juvenile Court concerning Father’s contempt petition.

Montgomery County Court of Appeals 10/10/19
Kenneth A. Weber, Et Al. v. Harold W. Kroeger, ET Al.
M2019-00406-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Anne C. Martin

Two adjoining property owners disputed their shared boundary line. The contractor who renovated the houses on each of the parcels owned both properties before selling them to the parties, and he erected a privacy fence where he thought the property line was located. A survey conducted years after the parties had purchased the properties placed the boundary line in a somewhat different location than the location of the privacy fence. When one of the property owners began dismantling the fence in an effort to utilize the property that the survey showed belonged to them, the neighboring owners obtained a temporary restraining order to maintain the status quo and filed a declaratory judgment complaint to determine the boundary line. The trial court entered a judgment declaring that the privacy fence was the boundary line and that the parties jointly owned the fence. On appeal, we affirm the trial court’s ruling declaring the location of the boundary line, but we reverse the ruling that the fence is jointly owned.

Davidson County Court of Appeals 10/10/19
Kondaur Capital Corporation v. Keith T. Finley
W2019-00143-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Gina C. Higgins

The mortgage holder on property in Cordova, Tennessee initiated foreclosure proceedings against the mortgagor in general sessions court and obtained a judgment. The mortgagor appealed to circuit court, the mortgage holder moved for summary judgment, and the circuit court ultimately granted summary judgment in favor of the mortgage holder. The circuit court denied the mortgagor’s motion for relief pursuant to Tenn. R. Civ. P. 60.02, and this Court dismissed the mortgagor’s appeal.

In the case at issue in the present appeal, the mortgagor filed another motion for relief pursuant to Tenn. R. Civ. P. 60.02 in the circuit court, and the circuit court again denied the motion. We conclude that the mortgagor has failed to comply with the Tennessee Rules of Appellate Procedure and has waived all issues stated in his brief. Consequently, we dismiss the appeal.

Shelby County Court of Appeals 10/09/19
In Re Brendan G.
M2019-00081-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Larry B. Stanley

This action involves the termination of a father’s parental rights to his minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the statutory grounds of (1) failure to establish or exercise paternity; (2) severe child abuse; and (3) sentence of imprisonment for severe child abuse. The trial court also found that termination was in the best interest of the child. We affirm the trial court.

Warren County Court of Appeals 10/09/19
Denita McMahan v. City of Cleveland, Tennessee
E2018-01719-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge J. Michael Sharp

In this action brought under the Governmental Tort Liability Act, the plaintiff sought damages from the City of Cleveland for injuries received when she fell after tripping on a raised, cracked and uneven section of a public sidewalk. In pertinent part, the plaintiff alleged that the city’s immunity under the Act should be removed based on constructive notice because the city created the dangerous condition by planting trees along the sidewalk in the 1990s and roots from those trees caused the unsafe condition. Alternatively, the plaintiff asserted that immunity should be removed under the common occurrence theory of constructive notice because the tree roots caused numerous and similar defects in other sections of the city’s sidewalks. Following a bench trial, the trial court found that the city did not have actual or constructive notice of the alleged defect in the sidewalk and held that the city was immune from liability under Tennessee Code Annotated § 29-20-203(b). This appeal followed. Because the evidence does not preponderate against the trial judge’s finding that the plaintiff failed to prove that the city had actual or constructive notice of the alleged defect in the sidewalk where she tripped and fell, we hold that immunity under the GTLA was not removed and affirm the judgment of the trial court.

Bradley County Court of Appeals 10/09/19
Yolanda Carter v. Maurice Butler
W2019-00175-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Jim Kyle

This appeal involves a dispute related to the interpretation of a lease purchase agreement. However, because the trial court did not make sufficient findings of facts and conclusions of law, we are unable to conduct a meaningful appellate review. Accordingly, we vacate the order and remand for further proceedings.

Shelby County Court of Appeals 10/08/19
Kayla Nicole (White) Blakney v. Justin Taylor White
W2018-00640-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Daniel L. Smith

This is a consolidated appeal concerning a post-divorce action that involves the father’s petition to modify the parties’ existing permanent parenting plan. The trial court named the father as primary residential parent of the parties’ child, increased the father’s
co-parenting time to 271 days per year, reduced the mother’s co-parenting time to 94 days annually, and required that the mother’s co-parenting time be supervised. The court further granted the father sole decision-making authority with respect to the child’s education, non-emergency health care, religious upbringing, and extra-curricular activities. The mother has appealed. Having determined that the trial court failed to settle the differences between the parties’ competing statements of the evidence, we vacate the trial court’s judgment and remand this matter for the trial court to make the necessary findings required by Tennessee Rule of Appellate Procedure 24(e) and transmit a proper supplemental record to this Court.

Hardin County Court of Appeals 10/08/19
Gerald Brown v. Waddell Wright, Et Al.
M2018-01743-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal arises from a dispute over an unorthodox, two-page contract pursuant to which the plaintiff sold his home to the defendant and continued to reside in the home, in accordance with a lease-back provision, for “up to five years” with rent “not to exceed $950 a month.” The contract also included provisions for “equity participation,” including the option for the plaintiff to buy the property back “at prevailing market value.” The plaintiff filed a complaint asserting, inter alia, claims for violations of the Tennessee Consumer Protection Act, quiet title, and breach of contract. The defendant answered and asserted counterclaims, inter alia, for breach of contract and to remove the plaintiff from the property. Following a trial, the trial court dismissed the complaint upon the principal findings that the plaintiff lacked credibility and was the first to materially breach the contract. The trial court also ruled that the defendant owned the property and was entitled to immediate possession but denied the defendant’s claim to recover his attorney’s fees. Both parties appeal. We affirm the dismissal of all of the plaintiff’s claims and the trial court’s determination that the defendant owned the property and was entitled to immediate possession. As for the attorney’s fees, we hold that the defendant was entitled to recover his reasonable attorney’s fees based on Section 6 of the contract which provides that in the event suit is filed to enforce the contract, “the prevailing party shall be entitled to recover all cost of such enforcement including reasonable attorney’s fees as approved by the Court.”

Davidson County Court of Appeals 10/07/19
Teresa M. Daffron, As Daughter, Next of Kin To And As The Administrator Of The Estate Of Wiley E. Daffron v. Memorial Health Care System, Inc.
E2018-02199-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

This appeal arises from a wrongful death action based on health care liability. Wiley E. Daffron (“Decedent”) received medical treatment from Memorial Health Care System, Inc. (“Memorial”) in 2013. During his stay at Memorial, Decedent developed a pressure ulcer. Decedent died a few months after he was discharged from Memorial. Teresa M. Daffron (“Ms. Daffron”), Decedent’s adult daughter, obtained Decedent’s medical records from Memorial. Some 13 months later, Ms. Daffron sent pre-suit notice of her intent to sue Memorial. A few months after that, Ms. Daffron filed suit against Memorial in the Circuit Court for Hamilton County (“the Trial Court”). Memorial filed a motion for summary judgment asserting the statute of limitations, which the Trial Court granted. The Trial Court held that Ms. Daffron knew or should have known of Decedent’s injury and its possible cause more than one year before the pre-suit notice was sent and, therefore, her complaint was filed outside the statute of limitations. On appeal, Ms. Daffron argues that the statute of limitations did not begin to run until an expert informed her that Decedent’s injury was caused by Memorial. We hold that, pursuant to the discovery rule, and, as evidenced by, among other things, her seeking through counsel Decedent’s medical records, Ms. Daffron had constructive knowledge of Decedent’s claim more than one year before she sent pre-suit notice and, therefore, the complaint was not timely filed. Ms. Daffron’s claim brought on behalf of her father is barred by the statute of limitations. We affirm the judgment of the Trial Court.

Hamilton County Court of Appeals 10/07/19
Karen Abrams Malkin v. Reed Lynn Malkin
W2018-01197-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Walter L. Evans

This appeal involves a former husband’s fourth petition to reduce or terminate his alimony in futuro obligation since the parties were divorced. When considering the appeal of husband’s third attempt, in Malkin v. Malkin, 475 S.W.3d 252 (Tenn. Ct. App. 2015), this Court reversed the trial court’s reduction of the award and reinstated the prior alimony obligation. We found that the husband’s retirement was objectively reasonable and constituted a substantial and material change in circumstances, but we concluded that the husband failed to prove that the change in circumstances significantly diminished his financial ability to pay alimony or his former wife’s need for it. Just months after the Tennessee Supreme Court denied the husband’s application for permission to appeal, he filed his fourth petition to reduce or terminate his obligation. The wife filed a counter-petition to increase the award. The trial court granted the husband’s petition, again, and reduced the award to less than half of its previous amount. The wife appeals. We reverse and remand for further proceedings.

Shelby County Court of Appeals 10/07/19
Li Huang Sullivan v. Eric Jason Sullivan
M2018-01776-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James G. Martin, III

This appeal is from a final decree of divorce. The Husband challenges several of the trial court’s rulings regarding the parenting plan, division of the marital estate, calculation of child support, and denial of his motion to amend to file a counterclaim for alimony. For the following reasons, we affirm the judgment of the trial court.

Williamson County Court of Appeals 10/04/19
Thomas J. Elsten, Jr. v. Jeffrey Coker, Et Al.
M2019-00034-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joe H. Thompson

This appeal arises from a defamation action filed by one mayoral candidate against another for statements made during the City of Hendersonville, Tennessee mayoral race. Accordingly, the issues are to be judged based on the more stringent standards that apply in a defamation action brought by a public figure. After engaging in discovery, the defendant filed a motion for summary judgment, contending the plaintiff lacked evidence showing the defendant published the statements with actual malice. To withstand the motion for summary judgment, the plaintiff had the burden to demonstrate he would be able to prove clearly and convincingly that the defendant acted with actual malice, which required proof the defendant had knowledge that the facts he published about the plaintiff were false or that he acted with reckless disregard as to their truth or falsity. The trial court found that the plaintiff “did not produce clear and convincing evidence of actual malice at the summary judgment stage” and summarily dismissed the action. We affirm.

Sumner County Court of Appeals 10/04/19
Latonya Denise Hall v. Sammie Lee Williams, III
M2018-1738-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ted A. Crozier

This post-divorce appeal concerns the trial court’s modification of a permanent parenting plan. We affirm the parenting plan determination and all other rulings by the trial court.  

Montgomery County Court of Appeals 10/04/19
In Re Caroline U.
E2018-01951-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Timothy E. Irwin

This is a modification of residential schedule case. The father requested an increase in parenting time based on a material change in circumstances. The court ruled that the father failed to demonstrate a material change in circumstances. We affirm.

Knox County Court of Appeals 10/04/19
David Mark Sloane v. Tennessee Department of State, Business Services Division
M2019-00126-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Anne C. Martin

On September 30, 2016, Appellee Tennessee Secretary of State, Business Services Division assessed $25,000.00 in civil penalties against Appellant David M. Sloane for his violations of the Athlete Agent Reform Act of 2011. Mr. Sloane requested a hearing to dispute the penalties, and the Administrative Law Judge (“ALJ”) reduced the penalties to $5,000.00 for each violation and $740.00 in investigatory costs. Mr. Sloane then filed a petition for judicial review with the trial court; the trial court affirmed the ALJ’s order. Mr. Sloane appeals. We affirm.  

Davidson County Court of Appeals 10/03/19
Abraham Asley Augustin v. Bradley County Sheriff's Office et al.
E2018-00281-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Lawrence Howard Puckett

Appellant appeals from the dismissal of his complaint seeking damages for the improper forfeiture of his property seized incident to an arrest. The trial court dismissed the action on the basis of lack of subject matter jurisdiction. We affirm the trial court’s dismissal of Appellant’s claim for the return of his seized property, as the trial court lacked subject matter jurisdiction to adjudicate that claim. We reverse, however, the dismissal of Appellant’s claim for damages related to a bad faith seizure under Tennessee Code Annotated section 40-33-215.

Bradley County Court of Appeals 10/02/19
In Re Josiah T.
E2019-00043-COA-R5-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Timothy E. Irwin

A mother appeals the termination of her parental rights to her child. Before trial, the mother moved to dismiss the petition to terminate her parental rights for failure to join the father of the child as a necessary party. The juvenile court denied the motion. And after a trial, the court found six statutory grounds for termination and that termination of the mother's parental rights was in the child's best interest. We discern no error in the trial court's denial of the motion to dismiss. But we conclude that the evidence was less than clear and convincing as to one of the statutory grounds relied on by the trial court for the termination of the mother's parental rights. Still, the record contains clear and convincing evidence to support the remaining five grounds for termination and that termination is in the child's best interest. So we affirm the termination of the mother's parental rights.

Knox County Court of Appeals 10/02/19
George E. Miller et al. v. TRH Health Insurance Company et al.
E2017-02049-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Telford E. Forgety

An insured sued his health insurance provider, seeking damages for breach of contract and bad faith refusal to pay valid insurance claims after coverage was denied for medical expenses related to the removal of a kidney stone. The defendants moved for summary judgment based on a benefit exclusion rider to the insurance contract that excluded coverage for treatment, surgery, or expenses related to kidney stones. The trial court rejected the insured’s argument that the exclusion rider did not apply and granted summary judgment to the defendants. Because the defendants were entitled to a judgment of dismissal as a matter of law based on the undisputed facts, we affirm.

Sevier County Court of Appeals 10/02/19
Gloria Juanita Milton v. Donald Powell et al.
E2018-01904-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Elizabeth C. Asbury

This case presents a boundary line dispute between the owners of adjacent properties. Gloria Juanita Milton (plaintiff), owner of a roughly 2.44-acre lot in the Morton Acres subdivsion in Campbell County, brought this action against the owners of the adjacent lot to the north, Donald Powell and Donna Powell Fredricks Carson (defendants). The issue at trial was the location of the boundary line between the properties. Each side hired a surveyor. Plaintiff’s surveyor, William Easter, presented a survey of plaintiff’s property that conformed very closely to the calls and boundaries established by the original subdivision plat. Defendants’ surveyor, Dwight Crutchfield, presented a survey of the boundary line that gave defendants property in the amount of about 0.46 acre more than that described in the subdivison plat and Easter’s survey. The trial court credited the survey presented by plaintiff and established the boundary line as presented in the Easter survey. Defendants appeal, arguing that the trial court erred by disregarding wellestablished principles for determining disputed boundaries as prescribed in Thornburg v. Chase, 606 S.W.2d 672 (Tenn. Ct. App. 1980) and Wood v. Starko, 197 S.W.3d 255 (Tenn. Ct. App. 2006). We affirm.

Campbell County Court of Appeals 10/02/19
Mary Ann Sklar v. Patrick Clancy et al.
E2018-01487-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Telford E. Forgety

This appeal involves a review of the denial of a motion pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. We affirm the ruling of the trial court.

Jefferson County Court of Appeals 10/02/19