Court of Appeals Opinions

Format: 04/19/2014
Format: 04/19/2014
In Re: Josephine E.M.C.
E2013-02040-COA-R3-PT
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Jeffrey D. Rader

This appeal involves the termination of a mother’s parental rights to her young daughter. The trial court terminated the mother’s parental rights based upon four separate grounds: substantial noncompliance with a permanency plan; abandonment by willful failure to visit; abandonment by failure to provide a suitable home; and persistent conditions. We find that DCS failed to prove by clear and convincing evidence that it made reasonable efforts to reunify the mother and her child, and we reverse the trial court’s finding that grounds for termination were proven by clear and convincing evidence. This matter is remanded for such further proceedings as may be necessary.

Sevier County Court of Appeals 04/17/14
Duckworth Pathology Group, Inc., a Professional Association v. The Regional Medical Center at Memphis (The Med)
W2012-02607-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Walter L. Evans

A surgical pathology group filed this action in chancery court, claiming that the Med violated its own rules and acted arbitrarily and capriciously by failing to award the petitioner with a contract after a lengthy request for proposals process. The petition stated that the chancery court had subject matter jurisdiction over the matter pursuant to the statutes governing petitions for certiorari. The trial court granted the Med’s motion to dismiss for numerous reasons, including lack of jurisdiction. We find that the petition was not subject to dismissal for lack of subject matter jurisdiction, and we reverse the trial court’s finding to the contrary. However, due to the petitioner’s failure to appeal the trial court’s alternative grounds for dismissal, we find it unnecessary to consider the issues raised on appeal, and we otherwise affirm the order of dismissal.

Shelby County Court of Appeals 04/17/14
Susan E. Rich et al v. The City of Chattanooga et al.
E2013-00190-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor W. Frank Brown, III

This case presents the issue of whether citizens who reside on real property that is proposed for deannexation by a municipal ordinance may, pursuant to Tennessee Code Annotated § 6-51-201 (2011), properly bring a quo warranto or declaratory judgment action against the municipality to challenge adoption of the deannexation ordinance. The trial court dismissed these claims against the municipality, and the plaintiffs have appealed. The plaintiffs have also taken issue with the propriety of the trial court’s determination regarding who would be qualified to vote in the referendum election, as well as other procedural and evidentiary issues. Discerning no error, we affirm the decision of the trial court.

Hamilton County Court of Appeals 04/17/14
The Bank of New York Mellon f/k/a The Bank of New York, et al. v. William Barry Goodman, et al.
M2013-01372-COA-R3-CV
Authoring Judge: Senior Judge Ben H. Cantrell
Trial Court Judge: Judge Timothy L. Easter

Bank made a loan to an individual who owned real property and obtained a deed of trust on the property securing the loan. Bank recorded the deed of trust in the wrong county. A few years later Second Bank obtained two judgment liens and properly registered them in the correct county. Bank later realized its error and registered its deed of trust in the correct county but was by that time in the junior creditor position. Bank filed a complaint seeking equitable subrogation in an effort to obtain the prioritycreditor position and get placed ahead of Second Bank, which had no security interest in the property at issue, but which had filed its liens first. The trial court denied Bank this relief after balancing the equities of the parties. We affirm.

Williamson County Court of Appeals 04/16/14
State of Tennessee on Relation of the Commissioner of the Department of Transportation v. Richardson Lumber Company, et al.
M2012-02092-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Larry J. Wallace

This is a condemnation case in which the State of Tennessee Department of Transportation acquired 20.93 acres of a 46.813 parcel of land by eminent domain for the purpose of constructing a highway. The jury awarded the landowner money for the value of the land acquired, the improvements on the land (including interior roadsand culverts), and incidental damages to the remainder of the property not acquired by the State. The trial court suggested an additur and also awarded the landowner discretionary costs. The State appeals the trial court’s award of an additur and discretionary costs. We have determined that the evidence does not preponderate against the trial court’s suggestion of additur on the issues of incidental damages and interior roads; however, we find the evidence preponderates against the court’s additur with respect to culverts. We also find the trial court erred in assessing discretionary costs against the State.

Humphreys County Court of Appeals 04/16/14
Joseph E. Rich, M.D. v. Dan Warlick
M2013-01150-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Ben H. Cantrell

A doctor who became the subject of disciplinary proceedings by the Tennessee Medical Examiners Board filed a complaint for legal malpractice against the attorney who had represented him in those proceedings. The doctor asserted that the Board suspended his medical license for one year as a result of numerous acts of professional negligence by the attorney. The attorney filed a motion for summary judgment, denying that he was guilty of any professional negligence and contending that in any case, the doctor’s complaint was barred by the one-year statute of limitations for legal malpractice. The trial court granted partial summary judgment to the attorney on the basis of the statute of limitations. The court ruled that the doctor suffered a legally cognizable injury when the attorney failed to disclose a list of proposed witnesses to the Administrative Law Judge assigned to conduct the evidentiary hearing, which was more than one year earlier than the doctor’s filing of his legal malpractice complaint. The court accordingly held that the attorney could not be held liable for his failure to disclose the witnesses, or for anyother acts that occurred more than one year prior to the filing of the malpractice complaint. The court certified its judgment as final for purposes of appeal under Tenn. R. Civ. P. 54.02. We affirm.

Davidson County Court of Appeals 04/16/14
Teresa Lee Walker v. Larry Alan Walker
E2013-01698-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge James W. McKenzie

This post-divorce appeal concerns the equitable division of property between the Parties. Following the grant of the request for divorce, the trial court credited Husband for separate property he contributed to the marital residence to equalize the overall division of the property. Wife appeals. We affirm the decision of the trial court.

Rhea County Court of Appeals 04/16/14
Michael W. Smith v. Kimberly Chrestman
W2013-02478-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Jerry Stokes

The trial court dismissed Appellant’s complaint for lack of prosecution. Finding no abuse of discretion, we affirm.

Shelby County Court of Appeals 04/16/14
William E. Cherry et. al. v. Reagan Farr, Commissioner of the Department of Revenue for the State of Tennessee
M2013-01823-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robbie T. Beal

Plaintiffs filed suit to recover income taxes paid under protest pursuant to Tennessee’s Hall Income Tax. At issue is a “Special Dividend” Plaintiffs received that was classified by the corporation for income tax purposes as a return of “paid-in capital.” Plaintiffs contend the Special Dividend was exempt because the Hall Income Tax states, in pertinent part, that “no distribution of capital shall be taxed as income under this chapter, and no distribution of surplus by way of stock dividend shall be taxable in the year such distribution is made; but all other distributions out of earned surplus shall be taxed as income when and in whatever manner made, regardless of when such surplus was earned[.]” Tenn. Code Ann. § 67-2-104(e)(7) (2011). The trial court ruled in favor of Plaintiffs based upon a finding that “[t]he Special Dividend was not a leveraged dividend and as such the reduction in book value could have onlycome through a return of capital distribution.” We have determined the mere fact the dividend was not a leveraged dividend is not sufficient to prove the dividend was exempt from the Tennessee Hall Income Tax. To qualify for the exemption, Plaintiffs had the burden to prove the Special Dividend was paid out of capital. See Tenn. Code Ann. § 67-2-104(e)(7). We, therefore, reverse and remand for entry of judgment in favor of the Department of Revenue and for other proceedings consistent with this opinion.

Williamson County Court of Appeals 04/15/14
Ronald Lampley, et al. v. Town of Chapel Hill, Tennessee, et al.
M2013-01335-COA-R3-CV
Authoring Judge: Senior Judge Ben H. Cantrell
Trial Court Judge: Judge Franklin Lee Russell

A real estate developer entered an agreement with the Town of Chapel Hill to purchase sewer and water taps in exchange for the Town’s extension of a sewer line to the developer’s property. The developer paid the money and the Town extended the line, as agreed. Developer later lost the property through foreclosure before development occurred. When the property was sold to a third party, the Town transferred the sewer and water taps to the purchasers. The developer filed a complaint alleging the Town breached the agreement by transferring taps that belonged to the developer to the third party purchasers. The Town denied it breached the agreement and moved for summary judgment. The trial court granted the Town’s motion for summary judgment and the developer appealed. We affirm. The agreement evidences the parties’ intention that the sewer and water taps were to be used in connection with the development of the property the developer owned when the agreement was executed. When the developer lost the property through foreclosure, the developer had no more interest in the taps.

Marshall County Court of Appeals 04/15/14
Qui Pham v. Tennessee Board of Probation and Parole
M2013-00955-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Inmate filed petition for writ of certiorari seeking review of decisions of the Board of Parole denying him parole and setting a two year period for his next consideration. Trial court dismissed petition; finding no error, we affirm the decision.

Davidson County Court of Appeals 04/15/14
Cindy Wheatley, et al. v. Robert J. Martineau, et al.
M2013-01704-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Carol L. McCoy

This appeal arises from a certiorari proceeding instituted in December of 2011 in which owners of property adjoining a landfill sought review of the Commissioner of the Tennessee Department of Environment and Conservation’s decision in October 2011 to issue a modification of a permit to operate a Class II disposal facilitywhich was issued in 2008. The trial court held that the approval of the modification in 2011 was invalid because it was grounded on the 2008 permit, which the court also held to be invalidly approved; the court ordered the Commissioner to take action to void the 2008 permit and 2011 modification. The Commissioner and landfill owner appeal the holding that the 2008 permit and 2011 modification are null and void; adjoining landowners appeal the denial of their request for injunctive relief and ask this court to decide two issues which the trial court did not address. We conclude that the trial court lacked subject matter jurisdiction to review the issuance of the 2008 permit and to declare it void; that the Commissioner’s authority to approve the 2011 modification was not conditioned on the expansion project being approved by the city and county legislative bodies; that the landfill owner was not required to submit the 2011 modification application to the regional solid waste board prior to securing the Commissioner’s approval; and that the Commissioner had no dutyto require thatthe material to be placed in the landfill be determined not hazardous prior to approving the modification. Accordingly, we reverse the judgment of the trial court and dismiss the petition.

Davidson County Court of Appeals 04/15/14
Elizabeth Breckinridge Wheeler v. Joseph Robert Wheeler
M2012-02154-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Philip E. Smith

Following a 26-year marriage, Wife was granted a divorce,designated the primary residential parent of their children and given sole decision making authority for the minor children’s education, health and medical care, and extracurricular activities; Husband was ordered to pay child support, pendente lite support of $7,000 per month, post-divorce support at the same rate as pendente lite support until the marital residence was sold, transitional alimony of $3,600 for 48 months commencing upon the sale of the marital residence, and $25,000 of Wife’s attorneys’ fees. The parties’ separate and marital assets were classified, and the marital assets and debts were divided. Husband appeals, challenging Wife’s designation as the sole decision making authority for the children’s educational and extracurricular activities, the amount of Wife’s income for purposes of child support, the awards for pendente lite support, the indefinite award of post-divorce support and the additional award of transitional alimony for 48 months. Husband also challenges the classification and division of the marital estate, including holding him liable for one-half of the $335,000 home equity line of credit debt, most of which was incurred during the pendency of the divorce, and the award of attorneys’ fees to Wife. We have determined that Wife is not entitled to receive post-divorce support of $7,000 per month in addition to the award of transitional alimony of $3,600 for a term of 48 months; therefore, we reverse the indefinite post-divorce support award of $7,000 per month. We also modify the award of transitional alimony of $3,600 per month, reducing the term from 48 months to 24 months with the term commencing upon the entry of the Final Decree of Divorce. We affirm the trial court in all other respects. As for Wife’s request to recover the attorneys’ fees she incurred on appeal, we respectfully deny that request.

Davidson County Court of Appeals 04/15/14