Court of Appeals Opinions

Format: 09/04/2015
Format: 09/04/2015
Joshua Timothy Canada v. Tonya Marie Canada
W2014-02005-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Tony Childress

This post-divorce appeal arises from the trial court's denial of Father's petition to modify custody. Following a one-day trial, the court found that Father failed to demonstrate a sufficient material change in circumstances and denied his petition. We affirm.

Dyer County Court of Appeals 09/04/15
Kimberly Urban v. Robin Nichols, individually and d/b/a Willow Brook Lodge
E2014-00907-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Rex H. Ogle

This is a negligence action. The plaintiff sustained injuries to her foot and heel while attempting to use a water slide on the defendants’ property. The plaintiff filed suit against the defendants exactly one year after her injury. The complaint, filed against “Robin Nichols and Willow Brook Lodge,” failed to include the proper name of the company, which is “Accommodations by Willow Brook Lodge, LLC.” Approximately fifteen days after filing the complaint, instead of serving Robin Nichols, the plaintiff served her son, Grant Nichols. The defendants’ answer made the errors known, but the plaintiff’s counsel was dilatory in filing a motion to amend. Upon the defendants filing a motion for summary judgment claiming that the suit was barred by the statute of limitations, the trial court granted the motion. We affirm the decision of the trial court.

Sevier County Court of Appeals 09/04/15
Heather Russell Wilder v. Joseph Chamblee Wilder
E2014-02227-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge John D. McAfee

This appeal involves post-divorce child support matters. Heather Russell Wilder (“Mother”) filed a petition in the Fourth Circuit Court for Knox County (“the Trial Court”) for modification of child support against Joseph Chamblee Wilder (“Father”). Mother later alleged that Father had fraudulently misstated his true income, and that he owed more in support towards the parties' three children (“the Children”) than had been ordered. The Trial Court adopted the Magistrate's findings and recommendations and held that Mother could not obtain Rule 60 relief on her fraud claim as time had expired. Mother appeals to this Court raising a number of issues. We affirm the Trial Court.

Knox County Court of Appeals 09/04/15
Timothy R. Parsons v. Wilson County, Tennessee
M2014-00521-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge John D. Wootten, Jr.

Inmate at Wilson County jail, who fell from top bunk bed and injured his shoulder, sued the County under the Governmental Tort Liability Act for failing to assign him to a bottom bunk or provide him with a ladder to access the top bunk. Following a trial, the court held that the bunk assignment was a discretionary function, and consequently, the County was immune from suit; that the county owed no duty to provide a bottom bunk, and that the inmate was more than 50 percent at fault for his injuries. We reverse the trial court’s ruling that the County was immune and the court’s consideration of comparative fault; determining that the County was not negligent, we affirm the judgment in favor of the County.

Wilson County Court of Appeals 09/03/15
In re: Conservatorship of Horace Duke
M2015-00023-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Laurence M. McMillan, Jr.


Conservator appealed the trial court’s order adopting the special master’s report. We find merit in the conservator’s argument that the trial court was required to hold a hearing before acting on the special master’s report. As we are unable to ascertain from the record whether a hearing was held, we vacate and remand for a determination of whether a hearing was held by the trial court. If no hearing was held, the trial court must hold a hearing on the special master’s report in accordance with Tenn. R. Civ. P. 53.04(2).

Robertson County Court of Appeals 09/03/15
Corey Alan Bennett v. State of Tennessee
W2015-00442-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Joe H. Walker, III

The notice of appeal was not timely filed and therefore, this appeal must be dismissed for lack of jurisdiction.

Hardeman County Court of Appeals 09/02/15
Allen Riggs v. Richard B. Wright, et al.
W2015-00677-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Felicia Corbin Johnson

Appellant did not timely file the Notice of Appeal and thus, this Court lacks subject matter jurisdiction to hear this appeal. Consequently, the appeal must be dismissed.

Shelby County Court of Appeals 09/01/15
In re Estate of Linda Quasnitschka Kirbus
E2014-02091-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Jerri S. Bryant

This is an estate case involving the division of two properties used as collateral to secure a commercial note. When the decedent‟s beneficiaries sought to partition the properties, her former husband objected, asserting that he assumed sole ownership of the properties by fulfilling the note with proceeds from the decedent's life insurance policies. Following a hearing, the trial court found that the beneficiaries were entitled to a 70 percent share of the properties. The former husband appeals. We affirm the decision of the trial court as modified.

Monroe County Court of Appeals 09/01/15
Darrell Jones v. Tennessee Department of Correction, et al.
M2014-02389-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert L. Jones

This appeal involves a dispute between a prisoner and the Tennessee Department of Correction regarding the Department’s classification of the prisoner as a member of a security threat group. The trial court dismissed the prisoner’s petition for writ of certiorari because it was not timely filed, and therefore, the court lacked subject matter jurisdiction to hear the petition. We affirm.

Wayne County Court of Appeals 08/31/15
Ensureus, LLC v. Douglas S. Oliver, et al
M2014-00410-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Laurence M. McMillan, Jr.

Purchaser of insurance agency sued Seller, alleging breach of contract and misrepresentation. Seller filed a counterclaim seeking amount due on Purchaser’s promissory note.  The trial court found Purchaser failed to prove either breach of contract or misrepresentation, and it awarded Seller the balance due on the promissory note.  Purchaser appealed, and we affirm the trial court’s judgment in all respects.

Montgomery County Court of Appeals 08/31/15
Valerie Cecile Burnett v. David Shaw Burnett
M2014-00833-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Michael R. Jones

This case involves a mother’s request for a change in the primary residential parent designation for her children. Following a one-day hearing, the trial court found that the mother failed to prove a material change in circumstance as necessary to change the primary residential parent designation. On appeal, the mother argues that the court’s order did not comply with Tennessee Rule of Civil Procedure 52.01 and that the proof showed a material change in circumstance. After reviewing the record, we affirm the trial court’s decision. 

Montgomery County Court of Appeals 08/31/15
Terry Pantuso v. Wright Medical Technology Inc., et al.
W2014-02315-COA-R9-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Donna M. Fields

In this interlocutory appeal, the defendants appeal the trial court's denial of their motion to dismiss a product liability lawsuit on the ground of forum non conveniens. Discerning no abuse of discretion by the trial court, we affirm.

Shelby County Court of Appeals 08/31/15
Chandra L. Berry v. Mortgage Electronic Registration Systems, et al.
W2014-02175-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Jim Kyle

This appeal involves the assignment of a deed of trust. Plaintiff/Appellant purchased a home in Memphis in 2004 and later defaulted on her mortgage. Appellees advised of their intent to foreclose on the home, which prompted Plaintiff to file suit and obtain a temporary restraining order preventing foreclosure. Plaintiff asserted several legal theories, which were all dismissed by the trial court. Plaintiff appealed, and this Court affirmed the trial court's dismissal on all but one fraud claim. Upon remand, the trial court then granted Appellees' motion for summary judgment on the remaining fraud claim. Plaintiff appeals. We affirm.

Shelby County Court of Appeals 08/31/15
Tim E. Shaw v. FSGBank, N.A.
E2014-01365-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jerri S. Bryant

In 2007, Tim E. Shaw contacted FSGBank, N.A. (FSG) regarding the refinancing of multiple loans. FSG initiated the processing of his request for refinancing; in the meantime, it extended to him a new loan for $60,000 to enable him to purchase another piece of property for investment purposes. The new loan was secured by a trust deed on property he owned at 430 Highland Avenue in Cleveland, Tennessee. In 2010, after an apparent default by Mr. Shaw on the $60,000 loan, FSG sought foreclosure proceedings on the Highland Avenue property and advertised a trustee sale. As a result, Mr. Shaw filed a complaint against FSG in 2010. He alleged a number of claims, specifically (1) breach of an agreement for future loans; (2) breach of contract; (3) conversion; (4) fraud; and (5) misrepresentation. FSG subsequently filed a motion for judgment on the pleadings, contending that Mr. Shaw’s complaint failed to state an actionable claim as there was not in existence a written agreement by FSG to make additional loans. Further, FSG claimed that Mr. Shaw’s misrepresentation claim was barred by the statute of limitations and because it was based upon FSG’s alleged failure to make loans it never agreed to make.

Bradley County Court of Appeals 08/31/15
Jimmy L. Hensley v. Cocke Farmers Cooperative
E2014-01775-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge O. Duane Slone

Jimmy L. Hensley brought this action to enforce his agreement with a former employer, Cocke Farmer’s Cooperative (the co-op), providing for the payment of severance pay to him in the event his employment was terminated without cause. Each side moved for summary judgment. The trial court held the agreement to be valid and enforceable. Accordingly, it granted Hensley summary judgment, awarding him the severance pay set forth in the agreement. The co-op appeals. We affirm.

Cocke County Court of Appeals 08/31/15
In re L.J., Jr.
E2014-02042-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Timothy E. Irwin

J.S.H. (Mother) appeals the termination of her parental rights to her child, L.J., Jr. (the Child). Mother contends that the trial court erred in its finding – said to be made by clear and convincing evidence – that she abandoned the Child by willfully (1) failing to pay support and (2) failing to visit the Child in the four months immediately preceding the filing of the termination petition. She also challenges the trial court's holding that she failed to provide the Child a suitable home. Mother argues that the trial court erred when it held that termination is in the Child's best interest. Mother has three other children, B.H., J.T., and A.T. The Department of Children's Services (DCS) was awarded temporary legal custody of all of the four children on September 20, 2012, due to the trial court's finding that each was dependent and neglected. Mother's other three children now live with their paternal grandmother. Only Mother's parental rights with respect to L.J., Jr. are at issue on this appeal. We modify the trial court's judgment. As modified, the judgment terminating Mother's rights is affirmed.

Knox County Court of Appeals 08/31/15
Travis G. McCosh v. Jennifer Burns McCosh
E2014-01702-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jerri S. Bryant

This is a post-divorce case. Travis G. McCosh (Father) appeals the trial court’s judgment increasing his child support payment retroactively to the date that Jennifer Burns McCosh (Mother) filed a counterclaim seeking (1) to modify the parties’ permanent parenting plan and (2) the recalculation of child support pursuant to the Child Support Guidelines. Father also appeals the trial court’s award of $500 in attorney’s fees to Mother. We hold that the proof establishes a significant variance between the amount of the current support order and the amount of the presumptive support based upon the relevant facts before the trial court. The significant variance is due primarily to the fact that Father’s income has increased significantly between the time of the last child support order and the filing of Mother’s petition. We affirm the judgment of the trial court.

McMinn County Court of Appeals 08/31/15
Nonprofit Housing Corporation, et al. v. Tennessee Housing Development Agency
M2014-01588-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Russell T. Perkins

Three non-profit corporations filed suit alleging that they were wrongfully denied low income housing tax credits. The trial court determined that the plaintiffs’ claims were moot, and we concur.

Davidson County Court of Appeals 08/27/15
Springfield Investments, LLC et al v. Global Investments, LLC et al.
E2014-01703-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor W. Frank Brown, III

This case involves a claim for, inter alia, intentional interference with business relationships. The plaintiffs allege that the defendants, owners and operators of a franchise pursuant to an agreement with Wendy's Old Fashioned Hamburgers Restaurant (“Wendy's') in Cleveland, Tennessee, interfered with the plaintiffs' ability to timely secure a franchise agreement with Wendy's to build a new restaurant in Cleveland. The plaintiffs alleged that the defendants improperly used a non-compete agreement, entered into in 1998 by the defendants and a brother of one of the plaintiffs, to object to Wendy's grant of the new franchise. Following a bench trial, the trial court found, inter alia, that the plaintiffs failed to establish the claim of intentional interference with business relationships. The court did enter a judgment, however, in favor of the plaintiffs for nominal damages in the amount of $500. The plaintiffs have appealed. Discerning no reversible error, we affirm.

Hamilton County Court of Appeals 08/27/15
Julian Hinson, D/B/A Trivia Time v. Thom O'Rourke
M2014-00361-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

Plaintiff, a sole proprietor of an entertainment business featuring trivia and bingo games, filed this action to enforce an Independent Contractor Agreement, a Noncompetition Agreement, and a Contractor Confidentiality Agreement and for violation of the Tennessee Uniform Trade Secrets Act. The defendant asserted that the covenant not to compete was unenforceable and that none of the information provided to him by Plaintiff constituted trade secrets or confidential information. The trial court dismissed all claims finding the covenant not to compete was unenforceable and that none of the information qualified as a trade secret. Following the dismissal of the claims, the defendant filed a motion for attorney’s fees pursuant to the Trade Secrets Act. The trial court denied the motion finding that the claim under the Trade Secrets Act was not brought in bad faith. Both parties appeal. We affirm the trial court in all respects. 

Davidson County Court of Appeals 08/25/15
Open Lake Sporting Club v. Lauderdale Haywood Angling Club
W2014-00436-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge William C. Cole

At issue in this case is the interpretation of an agreement that, inter alia, provides for a lease for the use of Open Lake in Lauderdale County by Lauderdale Haywood Angling Club. Following summary judgment proceedings, the trial court determined that the parties' agreement had terminated on two grounds. After declaring that all rights under the agreement had ended, it later required one of the parties to post a bond in order to continue using certain duck blinds for the remainder of the 2013-2014 duck hunting season. Although we conclude that one of the grounds relied upon by the trial court in declaring that the agreement was terminated was in error, we affirm the entry of summary judgment on the other ground. We also affirm the propriety and amount of the bond ordered by the trial court.

Lauderdale County Court of Appeals 08/25/15
Nicholas Grimaldi, D.O. et al v. Ronald Christopher, M.D.
E2014-02556-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Douglas T. Jenkins

This consolidated appeal involves the denial of two motions to alter or amend the court's dismissal of a complaint requesting corporate dissolution of a medical practice and a shareholder derivative suit involving the same medical practice. We affirm.

Hamblen County Court of Appeals 08/25/15
Ronald Christopher v. East Tennessee Spine and Orthopaedic Specialists, P.C.
E2014-02552-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Douglas T. Jenkins

This consolidated appeal involves the denial of two motions to alter or amend the court's dismissal of a complaint requesting corporate dissolution of a medical practice and a shareholder derivative suit involving the same medical practice. We affirm.

Hamblen County Court of Appeals 08/25/15
Royal Properties, Inc. v. The City of Knoxville et al.
E2014-01937-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Daryl R. Fansler

This is an appeal from a judgment in a certiorari review action. The petitioner sought approval for the construction of a surface parking lot as a use permitted on review in Knoxville, Tennessee. The Metropolitan Planning Commission denied the application. The petitioner appealed the denial to the Knoxville City Council, which failed to vote on the matter. The trial court upheld the de facto denial, holding that the Knoxville City Council had not exceeded its jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or fraudulently, or acted without material evidence to support its decision. The petitioner appeals. For the reasons discussed herein, we reverse and remand this case to the trial court with instructions to remand to the Knoxville City Council for a definitive ruling on whether the requested surface parking lot is permissible as a use permitted on review.

Knox County Court of Appeals 08/25/15
RCR Building Corporation v. State of Tennessee
M2014-01555-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Robert N. Hibbett, Commissioner, TN Claims Commission

This appeal concerns the construction of a welcome center along I-65 North in Ardmore, Tennessee. The State entered into an agreement with a contractor to construct the welcome center and the adjacent roadways and parking lots. As construction progressed, the contractor submitted requests for several changes to the scope of the project, which were denied; the State also denied several pay requests for work the contractor or its subcontractors had already completed. The contractor filed suit against the State alleging nine separate claims for damages. The Claims Commission ruled in favor of the contractor on all claims. The State appeals four of the claims, asserting that the Commission erred in awarding damages. Concluding that the evidence does not preponderate against the Commission’s findings of fact, we affirm the Commissioner in all respects.

Court of Appeals 08/24/15