Court of Appeals Opinions

Format: 06/22/2018
Format: 06/22/2018
Melissa Martin, Et Al. v. Rolling Hills Hospital, LLC, Et Al.
M2016-02214-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Michael Binkley

This is an appeal in a health care liability action from the dismissal of the action for Plaintiffs’ failure to comply with Tennessee Code Annotated section 29-26-121(a)(2)(E) when they failed to provide the Defendants with HIPAA compliant authorizations for release of medical records. The trial court held that, as a result of the failure, Plaintiffs were not entitled to an extension of the one-year statute of limitations for bringing suit and the action was barred. Plaintiffs appeal. Upon our review, we find that Plaintiffs substantially complied with the requirements of section 29-26-121 and that the Defendants have not shown that they were prejudiced by the deficiencies in the authorizations; accordingly, we reverse the decision of the trial court and remand the case for further proceedings. 

Williamson County Court of Appeals 06/22/18
In Re Joshua E., Et Al.
N2017-01184-COA-R3-JV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Sheila Calloway

Tabitha B. (“Mother”), represented by counsel, appeals the May 31, 2017 order of the Juvenile Court for Davidson County (“the Trial Court”). Mother’s brief on appeal fails to comply in any meaningful way with Tenn. R. App. P. 27. We, therefore, find that Mother has waived her issues on appeal.

Davidson County Court of Appeals 06/22/18
Jimmy Earl McClure v. Christopher Shawn Cole, Et Al.
M2017-00187-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Larry B. Stanley, Jr.

Personal injury action arising out of accident between a pickup truck and a dump truck hauling materials for a company that paved roadways. The pickup truck driver sued the driver of the dump truck and the paving company to recover for injuries he sustained in the accident. The trial court granted the paving company’s motion for summary judgment, holding that the driver of the dump truck was an independent contractor and that the paving company was not liable for the dump truck driver’s negligence. The injured driver appeals. Upon a thorough review of the record, we affirm the grant of summary judgment.

Warren County Court of Appeals 06/22/18
Charles Montague v. Michael D. Kellum
E2017-02526-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge James E. Lauderback

A man convicted of multiple criminal offenses sued his former criminal defense attorney for legal malpractice, and the trial court granted the defendant’s motion for summary judgment. On appeal, the plaintiff argues that the trial court erred in dismissing his legal malpractice action. Because the plaintiff failed to establish a necessary element of his claim for criminal legal malpractice—namely, exoneration—we affirm the trial court’s decision.

Washington County Court of Appeals 06/22/18
State, ex rel., Sharon Denise Townsend v. Eric Wayne Williamson
W2017-01290-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Special Judge Nancy P. Kessler

Appellant/Father appeals the trial court’s order, charging Appellant with $23,663.54 in child support arrearage. Specifically, Appellant asserts that he is entitled to certain credits against the arrearage. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 06/22/18
In Re: Kylea K.
E2017-02097-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge John C. Rambo

This appeal involves the termination of a father’s parental rights. The trial court found that grounds existed to terminate parental rights based on a prior adjudication of severe child abuse and abandonment by willful failure to visit and support. The trial court also found, by clear and convincing evidence, that termination was in the best interest of the child. The father appeals. We vacate the trial court’s finding regarding one ground for termination but otherwise affirm the order terminating parental rights

Washington County Court of Appeals 06/21/18
Donald Douglas Wright v. Angel Sims Wright
M2018-00792-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Philip E. Robinson

The appellant has filed a notice of appeal from an order denying her motion to alter or amend. Because the motion to alter or amend was not timely filed and the court has already dismissed the appellant’s prior appeal from the underlying judgment as untimely, we dismiss the appeal for lack of jurisdiction.

Davidson County Court of Appeals 06/21/18
In Re: Estate Of Andrew Thomas Peery, Jr.
E2017-00603-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Michael A. Gallegos

The brother of a decedent filed a petition to admit to probate a purported holographic will. The decedent’s widow protested. After a hearing, the trial court ruled that the document was not a holographic will and that the decedent had died intestate. The brother appeals. We affirm. 

Blount County Court of Appeals 06/21/18
In Re Estate of Alys Harris Lipscomb
W2016-00881-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Karen D. Webster

The administrator of an estate appeals the trial court’s award of attorney fees to a beneficiary in a contempt action filed by him against the beneficiary. We reverse, holding that the trial court abused its discretion in its award of attorney fees because the fees awarded did not inure to the benefit of the estate.

Shelby County Court of Appeals 06/21/18
Gillis Elliot v. Mike Robbins, Et Al.
E2017-01440-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Elizabeth C. Asbury

This appeal arises from an action where the plaintiff sought to reform a deed that did not transfer a disputed acre of property to him. The plaintiff alleged that a mutual mistake had occurred and that both plaintiff and defendants had intended for the disputed acre to be sold. The trial court held that the mutual mistake existed and that the error was clear and convincing enough to allow for reformation of the deed. The defendants appeal. We affirm the decision of the trial court.

Claiborne County Court of Appeals 06/21/18
In Re Seth Mc. Et Al.
M2017-02562-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Michael Meise

A mother of four children had her parental rights terminated based on the grounds of abandonment by failure to support, abandonment by failure to provide a suitable home, abandonment by wanton disregard, substantial noncompliance with permanency plans, severe child abuse, and persistence of conditions. Mother appealed the trial court’s judgment. We affirm the termination of her rights as to all grounds other than abandonment by failure to support, abandonment by failure to provide a suitable home, and persistence of conditions.

Dickson County Court of Appeals 06/20/18
Angela Michelle Newberry v. Jeremy Mack Newberry
E2017-00340-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Neil Thomas, III

In this post-divorce case, Angela Michelle Newberry appeals the trial court’s modification of the permanent parenting plan. She challenges the trial court’s decision to change the designation of primary residential parent from her to her former spouse, Jeremy Mack Newberry. She also attacks the court’s decree reducing her co-parenting time. We hold that father failed to meet his burden of establishing a material change in circumstances affecting the children’s well-being, as required by Tenn. Code Ann. § 36- 6-101(a)(2)(B) (2017). Consequently, we reverse the trial court’s judgment and reinstate the parenting plan as originally agreed to by the parties and ordered by the court in the final divorce judgment.

Hamilton County Court of Appeals 06/20/18
In Re: Amynn K.
E2017-01866-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert D. Philyaw

This is a termination of parental rights case involving the parental rights of the father, William K. (“Father”), to his minor child, Amynn K. (“the Child”), who was four years of age at the time of trial. The Child was born in 2013 to Father and Amanda S. (“Mother”). In April 2013, the Hamilton County Juvenile Court (“trial court”) granted temporary legal custody of the Child to the Tennessee Department of Children’s Services (“DCS”). The Child was immediately placed in foster care, where he has remained since that date. Following a hearing, the trial court entered an order on June 24, 2013, adjudicating the Child dependent and neglected due to Mother’s abandonment of the Child at the hospital following his birth. On August 23, 2016, DCS filed a petition to terminate the parental rights of Mother and Father. Following a bench trial, the trial court terminated Father’s parental rights to the Child upon determining by clear and convincing evidence that Father had (1) abandoned the Child through conduct exhibiting wanton disregard for the welfare of the Child prior to Father’s incarceration, (2) failed to substantially comply with the requirements of the permanency plans, and (3) failed to manifest an ability and willingness to personally assume custody of and financial responsibility for the Child. The court also found clear and convincing evidence that termination of Father’s parental rights was in the best interest of the Child. Father has appealed. Discerning no reversible error, we affirm.

Hamilton County Court of Appeals 06/20/18
In Re Aden H.
M2017-01453-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Joe H. Thompson

The mother and step-father of a child appeal the denial of their Petition to Terminate the Parental Rights of the father of the child on the grounds of abandonment by failure to support. Upon a thorough review of the record, we affirm the judgment of the trial court.

Sumner County Court of Appeals 06/19/18
In Re Audrey T.
M2016-02443-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ronald Thurman

In this post-divorce proceeding, Father appeals the reduction of his parenting time. Because he has failed to include a transcript or statement of the evidence in accordance with Rule 24 of the Tennessee Rules of Appellate Procedure, we presume that the evidentiary record supports the trial Court’s decision. Accordingly, we affirm the judgment.

Putnam County Court of Appeals 06/18/18
Betty Jo Goodman v. Nationstar Mortgage, LLC, Et Al.
M2017-01407-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert L. Jones

A borrower filed a pro se petition against a mortgage company and law firm seeking to enjoin a foreclosure sale. The trial court issued the injunction but, upon motion of the mortgage company and law firm, set aside the order granting injunctive relief after finding the order void. The trial court also found that the borrower’s petition failed to state a claim and dismissed the action. We vacate in part and affirm in part.    

Maury County Court of Appeals 06/18/18
In Re: Dakota M. Et Al.
E2017-01855-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Henry E. Sledge

Father’s rights to his son were terminated based upon his stipulation that the Department of Children’s Services could prove that grounds to terminate existed and upon the Court’s conclusion that termination was in the child’s best interest. Father appeals. Upon our review, we conclude that Father’s stipulation that the evidence satisfied the statutory grounds for termination was a nullity. We also conclude that the trial court’s order does not contain adequate factual findings with respect to the grounds for termination to provide for a meaningful review. Accordingly, we vacate the judgment of the court and remand the case.

Loudon County Court of Appeals 06/18/18
In Re: D.T.
E2017-02098-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Daniel R. Swafford

In this termination of parental rights case, the Department of Children’s Services filed a petition to terminate the rights of R.T. with respect to his child, D.T.1 At trial, DCS alleged a single ground for termination: persistence of conditions. The court found clear and convincing evidence. By the same quantum of proof, the court also found that termination is in the child’s best interest. Father appeals. We affirm.

Bradley County Court of Appeals 06/18/18
Desiree Daniels Disterdick v. John Disterdick
E2017-00743-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge L. Marie Williams

In this divorce action presenting issues concerning the classification and distribution of the parties’ assets, the trial court determined that an oil and gas investment purchased during the marriage was the wife’s separate property, as was her engagement ring. The trial court fashioned an equitable distribution of the parties’ marital property and debts and denied the wife’s claim for alimony. In doing so, the trial court excluded any consideration of assets formerly owned by the parties that were held by a trust at the time of trial. The husband has appealed. Discerning no error, we affirm.

Hamilton County Court of Appeals 06/18/18
Cindy Terry v. Jackson-Madison County General Hospital District
W2017-00984-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Kyle Atkins

A medical product sales representative brought suit against her former employer, a hospital, claiming retaliation in violation of the Tennessee Human Rights Act. After a bench trial, the trial court judge entered a verdict in favor of the hospital, having concluded that the employee failed to carry her burden of proof. In spite of dismissing the employee’s case, the trial court awarded the employee a portion of her attorney’s fees as “sanctions” against the hospital for making an allegedly late-filed motion to strike the employee’s demand for a jury trial, which the trial court granted. We affirm the trial court’s dismissal of the employee’s retaliation claim, and we reverse the trial court’s order granting the employee attorney’s fees.

Madison County Court of Appeals 06/15/18
In Re K. O. Et Al.
M2017-01736-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Micheal Collins

The trial court terminated the parental rights of A.D.G. to her children, K.O. and K.G. Because the court did not “make[] specific findings of fact and conclusions of law,” Tenn. Code Ann. § 36-1-113(k) (2017), we remand the case to the trial court for the entry of an appropriate order.

Smith County Court of Appeals 06/14/18
Alexander Alaka v. Short Cut Auto Sales & Repairs, Inc.
M2017-01577-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

The plaintiff appeals the circuit court’s judgment for damages sustained to his vehicle, a reduction from the amount awarded in general sessions court. We vacate the final order and remand for entry of an order that sets forth sufficient findings of fact and conclusions of law in support of the circuit court’s decision.  

Davidson County Court of Appeals 06/13/18
Homeowners of Ash Grove Estates v. Carla Hurley, et al.
M2016-02008-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Joe H. Thompson

This appeal arises out of a suit to enforce restrictive covenants. Plaintiffs filed suit seeking an injunction to prevent their neighbors from operating a commercial horse facility. After a hearing, the court permanently enjoined Defendants from using or allowing their property to be used for a commercial horse operation and from constructing any additional buildings before they built a residence on the property. The trial court also ruled that Defendants did not have to remove or relocate the already-constructed “run-in shed” at this time, but that once a residence is built, the shed must be removed or moved to the rear of the residence. Defendants appeal. Upon our review, we reverse the judgment enjoining Defendants from conducting a commercial horse operation; in all other respects we affirm the judgment of the trial court.  

Sumner County Court of Appeals 06/13/18
In Re Emmalee O., et al.
E2017-01605-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Gregory S. McMillan

This appeal involves the issue of past child sexual abuse by a parent. After the original trial de novo, the father was found guilty of severe child abuse and was enjoined from contact with the child and another daughter. A prior appeal resulted in an affirmance of the trial court’s finding. In re Emmalee O., 464 S.W.3d 311 (Tenn. Ct. App. 2015). After permission to appeal was denied by the Tennessee Supreme Court and the U.S. Supreme Court, the father filed a motion to vacate or modify the 2014 ruling of the trial court. After the trial court denied the relief requested, the father again appealed. We affirm the trial court’s decision.

Knox County Court of Appeals 06/13/18
Town & Country Jewelers, Inc., et al. v. Andrew Timothy Sheriff, et al.
W2017-01375-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Jim Kyle

Over ten years after entry of a judgment, the judgment creditors filed a motion for scire facias to revive the judgment. The trial court denied the motion based on a determination that expiration of the statute of limitations deprived the court of subject matter jurisdiction. On appeal, the judgment creditors argue that their motion was timely because the debtor revived the debt by agreeing that the debt was nondischargeable in bankruptcy. We conclude that the trial court possessed subject matter jurisdiction but that revival does not apply. So we affirm as modified.

Shelby County Court of Appeals 06/13/18