Court of Appeals Opinions

Format: 08/25/2016
Format: 08/25/2016
Cindy Hatfield, et al. v. Allenbrooke Nursing and Rehabilitation Center, LLC, et al.
W2016-01510-COA-T10B-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Donna M. Fields

This is an interlocutory appeal as of right from the trial court’s denial of a motion for recusal. Having reviewed the petition for recusal appeal de novo as required by Tennessee Supreme Court Rule 10B, § 2.06, we affirm the denial of the motion.

Shelby County Court of Appeals 08/25/16
Tasha Dayhoff v. Joshua D. Cathey
W2016-00377-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Christy R. Little

This is the second appeal in this custody dispute between unmarried parents. After establishing parentage of the minor children, the juvenile court entered a permanent parenting plan without hearing sworn testimony. On appeal, this Court vacated the parenting plan and remanded for an evidentiary hearing. Before the hearing on remand, the mother relocated from West Tennessee to Middle Tennessee with the children. The trial court conducted an evidentiary hearing and determined that the parental relocation statute applied to the court’s decision. The trial court first found that the mother’s move had no reasonable purpose and was vindictive and then concluded that it is in the children’s best interest for the father to be designated primary residential parent. The mother appeals. We affirm.

Madison County Court of Appeals 08/25/16
Melinda Duncan, et al. v. Cheryl L. Ledford MD, et al.
W2015-02370-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kyle Atkins

This is a healthcare liability case. The trial court granted summary judgment in favor of Appellees, Appellant’s treating physician and her employer. Summary judgment was based on the trial court’s finding that Appellants had failed to meet their burden of proof to show that Appellee doctor deviated from the standard of care or that the treatment provided caused Appellant to sustain injuries that otherwise would not have occurred. Discerning no error, we affirm.

Madison County Court of Appeals 08/24/16
Mark A. Shempert, et al. v. Kim Wright Cox, Personal Representative ad litem for the Estate of Robert Davis
W2015-02161-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donna M. Fields

This is an appeal of an order granting the unnamed defendant’s motion for summary judgment. After being involved in an accident with an uninsured motorist, the plaintiff brought suit against his uninsured motor vehicle insurance carrier seeking coverage under the policy. The insurance carrier moved for summary judgment, arguing that the plaintiff was operating a vehicle not insured under the policy but available for his regular use, and therefore, was not covered under the policy. We affirm.

Shelby County Court of Appeals 08/24/16
Ray Duffy, et al. v. Danny Elam
W2015-01456-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge J. Weber McCraw

This appeal involves an unauthorized sale of a trailer by a third party. The circuit court held that the original owner of the trailer, who holds the certificate of title, is entitled to possession of the trailer rather than the party claiming to be a bona fide purchaser. The purchaser appeals. We affirm.

McNairy County Court of Appeals 08/24/16
Adedamola O. Oni v. Tennessee Department of Health, et al.
M2015-01841-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Russell T. Perkins

In an earlier proceeding, we determined that a physician violated three different provisions of the Medical Practice Act, Tenn. Code Ann. §§ 63-6-214(b)(1), (2), and (20). We remanded the case to the Tennessee Board of Medical Examiners (the “Board”) to determine the appropriate sanction. On remand, the physician argued the case had become moot because his medical license was not renewed and had become automatically revoked by operation of law. The Board disagreed and voted to revoke the physician’s license as punishment for his violations. The physician appealed, and the chancery court vacated the Board’s decision on the basis that the Board lacked subject matter jurisdiction over the physician’s license once it was automatically revoked. The State appealed, and we reverse the chancery court’s judgment. We conclude that the Board had subject matter jurisdiction to sanction the physician for his conduct while his license was active, even though the license was not active at the time the sanction was imposed.

Davidson County Court of Appeals 08/23/16
Steve Kirby Kucinski v. Magali Ortega
M2015-00481-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

In this divorce action, the husband appeals the award of alimony in futuro, asserting that the award should be overturned because the wife was awarded substantial marital property or, alternatively, that due to changed circumstances, the award of alimony is inappropriate. Finding no error, we affirm the judgment of the trial court.

Montgomery County Court of Appeals 08/23/16
Carla Suzanne Jackson v. City of Cleveland
E2015-01279-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Lawrence H. Puckett

Plaintiff, who had served as a police officer for the City of Cleveland Police Department since 1990, was fired on September 12, 2011, eleven months after filing a charge of discrimination with the Equal Employment Opportunity Commission. Four months after her termination, Plaintiff filed suit in federal court asserting, inter alia, claims of sexual discrimination, hostile work environment, and retaliation against the City of Cleveland under the Tennessee Human Rights Act. She asserted that the discriminatory acts continued until January 18, 2012, when she was interviewed by the Tennessee Bureau of Investigation for allegedly filing false timesheets while employed by the Department. All claims in the federal court action were dismissed without prejudice on August 13, 2013. On August 12, 2014, Plaintiff commenced this action in the Circuit Court for Bradley County asserting the same state-law claims. After answering the complaint, the city filed a motion for summary judgment seeking the dismissal of all claims based on the one-year statute of limitations. Plaintiff opposed the motion contending the action was timely filed due to the combined effect of the continuing violation doctrine, see Booker v. The Boeing Co., 188 S.W.3d 639, 649 (Tenn. 2006), and 28 U.S.C. § 1367(d), which suspends the running of the state statute of limitations while a federal suit is pending and for 30 days after dismissal. The trial court dismissed all claims as time-barred upon the finding that they arose from the discrete act of terminating Plaintiff’s employment in September 2011. We affirm.

Bradley County Court of Appeals 08/22/16
In Re Estate of Lana Hopson Reed
E2015-02372-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Douglas T. Jenkins

This case arises from an exception to a claim filed against decedent’s estate. Appellant/Administratrix filed an exception to a claim brought by the Appellees, who are the decedent’s parents. The trial court found that the Statute of Frauds, Tennessee Code Annotated Section 29-2-101, was not applicable to bar the claim. The trial court further held that the claimed amount was a loan to the decedent and not a gift as Appellant argued. Discerning no error, we affirm and remand.

Greene County Court of Appeals 08/22/16
Sandra Clark et al v. Christopher Powers
E2015-02226-COA-R9-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John B. Bennett

This interlocutory appeal presents an issue regarding whether a cause of action related to an automobile accident was barred by the running of the statute of limitations as a result of a lack of compliance with the service of process requirements of Tennessee Rule of Civil Procedure 3 upon the defendant tortfeasor. The plaintiffs assert that their counsel had entered into an agreement with the defendant’s liability insurer, acting on behalf of the defendant, to forbear service of process until settlement negotiations ended and litigation ensued. Upon an offer of settlement from the defendant’s liability insurer, the plaintiffs notified their underinsured motorist carrier of their intent to accept the liability insurer’s offer to pay the amount of its policy limit. The underinsured motorist carrier elected to pay the amount of the liability insurer’s policy limit in order to protect its subrogation rights against the defendant. The underinsured motorist carrier subsequently began corresponding with the plaintiffs’ counsel and investigating the plaintiffs’ claim on its own behalf. Following the expiration of the one-year statute of limitations period, the defendant filed a motion to dismiss based upon lack of service of process. The underinsured motorist carrier thereafter filed a similar motion. The trial court, upon considering documents outside the record, converted the motions to dismiss to motions for summary judgment. The motions were denied. The defendant and the underinsured motorist carrier sought and were granted permission for an interlocutory appeal. Discerning no error in the trial court’s denial of summary judgment to the defendant and the underinsured motorist carrier, we affirm and remand for further proceedings.

Hamilton County Court of Appeals 08/19/16
Mukta Panda v. Niladri Panda
E2015-01911-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Justin C. Angel

This post-divorce appeal concerns the wife’s request for attorney fees based upon the husband’s failure to comply with the requirements of the marital dissolution agreement. The trial court denied the request, finding that attorney fees were not warranted when the husband had not acted in contempt of the court’s orders. The wife appeals the court’s denial of attorney fees and also requests attorney fees on appeal. We reverse and also award attorney fees on appeal pursuant to the marital dissolution agreement.

Rhea County Court of Appeals 08/19/16
In Re Jaiden C.
E2016-00366-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Elizabeth C. Asbury

This is a termination of parental rights and adoption case. Appellant, the minor child’s paternal grandmother, appeals the trial court’s denial of her petition to terminate Appellee/Mother’s parental rights on grounds of abandonment by willful failure to visit and persistence of the conditions that led to the child’s removal from Appellee’s home. Specifically, the trial court held that Appellant had failed to meet her burden of proof to show, by clear and convincing evidence, either that Appellee’s failure to visit the child was willful, or that the conditions that precipitated the child’s removal persisted. Discerning no error, we affirm and remand.

Union County Court of Appeals 08/18/16
Morristown Heart Consultants, LLC, Et Al. v. Pragnesh Patel, M.D.
E2016-01151-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Thomas J. Wright

The appellants, Morristown Heart Consultants, LLC and Sunil Ramaprasad, M.D. (“Plaintiffs”), appeal from an order of the Trial Court which granted the declaratory judgment portion of the counterclaim filed by the appellee, Pragnesh Patel, M.D. (“Defendant”), in the proceedings below. The order does not resolve the declaratory judgment claims raised by Plaintiffs in their initial petition, nor does the order resolve the remaining claims for damages raised by Defendant in his counterclaim. Because it is clear that the order appealed from does not resolve all issues raised in the proceedings below, this appeal is dismissed for lack of jurisdiction.

Hamblen County Court of Appeals 08/18/16
Katherine C. Dubis v. Yolanda E. Loyd, et al.
W2015-02192-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

After the death of the original plaintiff while this case was pending, a timely motion for substitution was filed to substitute the original plaintiff's parents as the real party in interest pursuant to Rule 25.01 of the Tennessee Rules of Civil Procedure. The motion indicated that the original plaintiff's parents were her only heirs and that no estate was to be opened for the original plaintiff in her home state of Missouri. The defendant filed an objection to the substitution asserting that the original plaintiff's heirs were not the proper parties, but the trial court eventually allowed parents to be substituted as plaintiffs. After the parties became aware that an estate had been opened for the original plaintiff in Missouri, defendant filed a motion to dismiss based upon non-compliance with Tennessee Code Annotated Section 20-5-104, which requires a showing that no person is willing to administer the estate of a deceased party before his or her heirs may revive a claim. Parents filed a response in opposition and, in the alternative, a motion for enlargement of time to file a motion to substitute the original plaintiff's personal representative. The trial court denied the motion for enlargement of time and granted the defendant's motion to dismiss. Because parents have shown excusable neglect sufficient to justify an enlargement of time under Rule 6.02 of the Tennessee Rules of Civil Procedure, we reverse and remand for further proceedings.

Shelby County Court of Appeals 08/15/16
In Re Gabriella M.
E2015-02507-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kenneth N. Bailey, Jr.

This appeal involves the termination of a mother's parental rights to her minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of her rights on the statutory grounds of abandonment for failure to visit; substantial noncompliance with the requirements of the permanency plan; and the persistence of conditions which led to removal. The court further found that termination was in the best interest of the child. The mother appeals. We affirm.

Greene County Court of Appeals 08/15/16
Kathryn Lynn Jones v. Gary Edward Jones
M2015-00042-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor L. Craig Johnson

The parties to this appeal are a former Husband and Wife who each challenge the classification and division of certain assets upon their divorce. Additionally, Husband challenges the finding that $2,000 owed to the parties’ son is a separate rather than a marital debt, and Wife challenges the failure to award her one-half of funds Husband withdrew from marital accounts during the pendency of the divorce. We modify the judgment to reflect that the $2,000 payment is a marital debt and affirm the order that Husband be responsible for it; in all other respects, the judgment is affirmed.

Coffee County Court of Appeals 08/12/16
Jami Logian a/k/a Jami Logian Gobea v. Lee R. Morisy MD, et al.
W2015-02369-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert L. Childers

This is a jury case arising from Appellant's healthcare liability claim against Appellee doctors. The jury returned a verdict in favor of the doctors. Appellant asserts that the trial court erred in allowing a pictograph to be passed to the jury and admitted into evidence. Appellant also asserts that the trial court should have charged the jury with a special instruction on damages. Discerning no error, we affirm.

Shelby County Court of Appeals 08/11/16
Emily Wade Turner v. John B. Turner, Jr.
W2015-01165-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Felicia Corbin Johnson

Mother filed a petition to enroll and enforce a Mississippi divorce decree in Tennessee requesting the trial court to order Father to continue paying one-half of the parties' child's private school tuition and costs. Father opposed Mother's request and instead argued that the parties' property settlement agreement did not mandate private schooling, that it was reasonable for him to withhold consent to private schooling, and that, in the alternative, the costs associated with private schooling should be apportioned based on the parties' incomes. The trial court found in favor of Mother on all issues. Father appealed. Discerning no error, we affirm

Shelby County Court of Appeals 08/11/16
C. Wesley Fowler as Administrator Ad Litem of the Estate of Frank Jackson v. City of Memphis, et al.
W2015-01637-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert Samual Weiss

In this premises liability case, the plaintiff appeals from the trial court's grant of summary judgment to a governmental defendant. We affirm in part, vacate in part, and remand.

Shelby County Court of Appeals 08/11/16
In Re Rylee R., et al.
E2016-00574-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Magistrate Kurt Andrew Benson

This is a termination of parental rights case. Mother/Appellant appeals the termination of her parental rights to two minor children on the statutory grounds of: (1) persistence of the conditions that led to the removal of the children from Appellant’s home; and (2) substantial noncompliance with the requirements set out in the permanency plan. Appellant also appeals the trial court’s determination that termination of her parental rights is in the best interests of the children, and she raises several issues concerning the admission of evidence. We conclude that the state did not establish the predicate for termination of Appellant’s parental rights on the ground of persistence of conditions; however, we affirm the termination of Mother’s parental rights on the ground of substantial noncompliance with the requirements of the permanency plan. We also affirm the trial court’s finding that termination of Mother’s parental rights is in the children’s best interests.

Bradley County Court of Appeals 08/11/16
Tina Dawn Garner v. Scott Whitney Garner
W2016-01213-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Daniel L. Smith

This accelerated interlocutory appeal arises from the trial court's denial of Appellant's motion for recusal. Having reviewed the trial court's ruling on the motion for recusal pursuant to the de novo standard of review required under Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial court.

Hardin County Court of Appeals 08/10/16
Alice Wheeler Et Al v. Mark Abbott Et Al.
E2015-01214-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

Catherine McCulley, Jean Abbott, Steven Abbott, Jerry Abbott, Larry Abbott, Diane West, and Geraldine Abbott (“Plaintiffs”) sued Mark Abbott and Stephanie Abbott (“Defendants”)1 with regard to an alleged easement located across real property in Sevier County, Tennessee. During the pendency of the suit, Catherine McCulley died and a motion was made to substitute her four children as party plaintiffs. Without benefit of a hearing, the Chancery Court for Sevier County (“the Trial Court”) entered an order allowing the substitution. The case then was tried, and the Trial Court entered its judgment finding and holding, inter alia, that “the Plaintiffs, the heirs of Elmer Abbott, have an easment across the property of the Defendant, Mark Abbott . . . .” Defendants appeal to this Court raising several issues. We find and hold that the motion for substitution and the Trial Court’s order granting the motion failed to comply with Tenn. R. Civ. P. 25, which deprived Defendants of an opportunity to be heard prior to entry of the order allowing substitution. We, therefore, vacate both the April 22, 2015 order allowing substitution of parties and the June 5, 2015 judgment holding that “the Plaintiffs” have an easement, and we remand this case for further proceedings consistent with this Opinion.

Sevier County Court of Appeals 08/10/16
Jorge A. Alfonso, et al. v. Linda V. Bailey, Executrix and Personal Representative of the Estate of Robert M. Bailey, et al.
E2015-02100-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This appeal stems from a foreclosure. Jorge A. Alfonso and Madelyn Alfonso (“Plaintiffs”) defaulted on their mortgage on real property owed to CitiMortgage, Inc. (“Citi”). Plaintiffs wanted to effectuate a short sale in order to avoid foreclosure. However, certain real estate investors (“Defendants”) attended the foreclosure sale, bid on, and purchased the property. Plaintiffs sued Defendants and Citi in the Chancery Court for Sevier County (“the Trial Court”), alleging in part that Defendants knew that Plaintiffs and Citi were engaged in discussions to complete a short sale but purchased the property anyway. The Trial Court granted Citi’s motion to dismiss finding that Citi had the right to pursue foreclosure even if it was in talks with Plaintiffs to conduct a short sale. Plaintiffs do not appeal that order. The Trial Court later granted a motion to dismiss claims against the remaining Defendants. Plaintiffs appeal to this Court. We find and hold that Plaintiffs have stated no cause of action against the remaining Defendants. We affirm the judgment of the Trial Court.

Sevier County Court of Appeals 08/09/16
Ashli Fallon Bryan v. Billie Dee Miller
M2015-00550-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Ross H. Hicks

At issue in this case is the custody of a minor child. Although the child had previously been in the physical custody of his maternal grandmother pursuant to a temporary order, the child’s mother regained custody after the grandmother failed to show that the child would be subjected to substantial harm if returned to the mother. We affirm.

Montgomery County Court of Appeals 08/08/16
Robert Harold Douglas v. Susan Mercedes Douglas
W2015-02044-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Carma Dennis McGee

In this divorce proceeding, Husband appeals from the trial court’s classification of an account as Wife’s separate property. On appeal, Husband asserts that the account is marital property based on the doctrine of transmutation. Discerning no error, we affirm.

Benton County Court of Appeals 08/08/16