Court of Appeals Opinions

Format: 04/27/2017
Format: 04/27/2017
Sinan Gider v. Lydia Hubbell
M2016-00838-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Sheila Calloway

On the petition of a father, a juvenile court held the mother of father’s child in civil contempt. The court found 19 separate instances of mother violating three orders enjoining her from making certain derogatory comments, both in person and on social media. Our review of the record leads us to conclude that the mother violated only two of the orders cited by the father. We also conclude that the court erred in holding the mother in contempt for two of the counts alleged by the father. Even so, the juvenile court properly found the mother in contempt for 17 violations of court orders, and we find the sanctions imposed by the court to be appropriate. Therefore, we affirm in part and reverse in part.

Davidson County Court of Appeals 04/27/17
Sinan Gider v. Lydia Hubbell
M2016-00838-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Sheila Calloway

On the petition of a father, a juvenile court held the mother of father’s child in civil contempt. The court found 19 separate instances of mother violating three orders enjoining her from making certain derogatory comments, both in person and on social media. Our review of the record leads us to conclude that the mother violated only two of the orders cited by the father. We also conclude that the court erred in holding the mother in contempt for two of the counts alleged by the father. Even so, the juvenile court properly found the mother in contempt for 17 violations of court orders, and we find the sanctions imposed by the court to be appropriate. Therefore, we affirm in part and reverse in part. 

Davidson County Court of Appeals 04/27/17
Delta Gypsum, LLC v. Michael Felgemacher
E2016-01447-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge E.G. Moody

A supplier of drywall was a creditor of a company that installed drywall. The owner of the indebted company signed a promissory note in the amount of $370,615 payable to the supplier and paid a small portion of the note before selling the business to his son for $12,000. The supplier filed suit to obtain a judgment for the balance owed on the promissory note after the transfer of the business to the son. The supplier obtained a judgment against the former owner, but not against the company, for the amount owed on the note. The supplier then filed this action against the son in an effort to have the sale set aside on the basis that it was a fraudulent conveyance. The trial court found the supplier was unable to satisfy the elements of either the actual fraud statute, Tenn. Code Ann. § 66-3-305(a)(1), or the constructive fraud statute, Tenn. Code Ann. § 66-3-306(a). We agree and affirm the trial court’s judgment.

Sullivan County Court of Appeals 04/26/17
James Swanger v. Carrie Lowery
M2016-00600-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Phillip R. Robinson

In this appeal of the extension of an order of protection for five years, the appellant contends that the appellee did not prove an allegation of domestic abuse, stalking, or sexual assault by a preponderance of the evidence. Upon our review, we conclude that the evidence supports the finding that the initial order of protection was violated and that the court had the authority to extend the order; accordingly, we affirm the judgment of the trial court.   

Davidson County Court of Appeals 04/26/17
Suzanne Bishop West v. Epiphany Salon & Day Spa, LLC
E2016-01860-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge L. Marie Williams

This appeal concerns a jury award of damages in a negligence case. Suzanne Bishop West (“West”) sued Epiphany Salon & Day Spa, LLC (“Epiphany”) in the Circuit Court for Hamilton County (“the Trial Court”) for damages resulting from a facial she received that burned her face. Epiphany conceded liability and the matter went before a jury for a determination of damages. The jury awarded West $125,000 in damages. Epiphany filed a motion for remittitur. The Trial Court, finding the award excessive, reduced the award from $125,000 to $47,800. West appeals to this Court, asking that we restore the original jury award of $125,000. Finding no reversible error, we affirm the judgment of the Trial Court.

Hamilton County Court of Appeals 04/25/17
Volodymyr Helyukh, et al. v. Buddy Head Livestock & Trucking, Inc., et al.
W2015-01354-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Roy B. Morgan, Jr.

The plaintiffs appeal the grant of summary judgment in a negligence case. One of the plaintiffs, a truck driver, suffered injuries stemming from a collision with another tractor-trailer owned by the defendant and operated by its employee. The plaintiffs claimed that the employee's negligence proximately caused the accident. The owner of the overturned tractor-trailer moved for summary judgment on the ground that the plaintiffs could not establish that its employee‟s conduct fell below the applicable standard of care. The trial court agreed and granted summary judgment. On appeal, the plaintiffs argue, among other things, that owner of the overturned tractor-trailed failed to meet its burden of production in moving for summary judgment. Because we conclude that the movant failed to demonstrate the absence of material facts that would create genuine issues for trial, we reverse the grant of summary judgment.

Henderson County Court of Appeals 04/24/17
Trina A. Henson v. Chris Robert Henson
M2016-01661-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Ross H. Hicks

This is an appeal from a final decree of divorce. The trial court declared the parties divorced, divided the marital property and marital debt, and ordered Husband to pay rehabilitative alimony of $2,500.00 per month for three years, and an award of $20,000.00 for attorney’s fees, as alimony in solido. On appeal, Husband contends that the trial court erred in: (1) its division of the marital debt; (2) its award of rehabilitative alimony; and (3) its award of attorney’s fees. Wife requests attorney’s fees incurred in defending this appeal. We affirm the trial court’s judgment and remand for determination of Wife’s attorney’s fees on appeal.

Robertson County Court of Appeals 04/24/17
M.H.L. ET AL. v. BOYS AND GIRLS CLUB OF GREATER KINGSPORT, INC., ET AL.
E2017-00024-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John S. McLellan, III

The plaintiffs, Michael Lambert and Pamela Lambert, on behalf of themselves and their minor child, M.H.L. (collectively, “Plaintiffs”), seek to appeal from an order granting summary judgment in favor of the defendant, City of Kingsport, Tennessee (“the City”), on Plaintiffs’ claims against the City in this negligence case arising out of injuries sustained by the minor plaintiff while participating in a youth basketball program. In their complaint, Plaintiffs asserted claims against not only the City, the entity who ran the youth basketball program, but also against the defendant, Boys and Girls Club of Greater Kingsport, Inc. (“the Boys and Girls Club”), which owned and managed the property used by the youth basketball program. The order from which Plaintiffs seek to appeal resolves only the claim against the City, leaving unresolved the claim against the Boys and Girls Club. As a result, we lack jurisdiction to consider this appeal. The appeal is dismissed without prejudice to the filing of a new appeal once a final judgment has been entered

Sullivan County Court of Appeals 04/24/17
David Turner, et al. v. Karl Kendrick, et al. v. Danny Anderson, et al
M2016-00884-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge James G. Martin, III

This appeal arises from the dismissal of a third-party complaint, which was filed two years after the third-party plaintiffs filed its answer to the original complaint. The trial court found that the third-party plaintiffs failed to seek leave of the court to join the third-party defendants as required by Tennessee Rule of Civil Procedure 14.01. The trial court also determined that the third-party plaintiffs failed to state a claim which would support the trial court granting leave to file a third-party complaint, and, accordingly, dismissed the Appellants’ third-party complaint. The third-party plaintiffs appealed. Discerning no error, we affirm.  

Williamson County Court of Appeals 04/21/17
Peggy Patterson v. Shane Patterson
M2016-00886-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge J. Mark Rogers

Stepmother filed a detainer warrant against Stepson and was awarded possession of the real property in the general sessions court. Stepson appealed to the circuit court, and a bench trial was conducted. The trial court awarded the property to Stepmother. We affirm the trial court’s finding that no resulting trust was proven. Although we affirm the trial court’s finding of unjust enrichment for the improvements on land based on the three-part test under Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 525 (Tenn. 2005), we reverse the trial court’s award of $37,000.00 to Stepson for the improvements to the property because Stepson failed to prove the correct measure of damages at trial. Affirmed in part, reversed in part, and remanded.

Cannon County Court of Appeals 04/20/17
Sharyn Haynes, et al. v. Wayne County, Tennessee
M2016-01252-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Russell Parkes
This is an appeal from the trial court’s grant of summary judgment to the defendant, Wayne County, in a wrongful death action filed under the Governmental Tort Liability Act. The plaintiff’s grandson committed suicide several hours after being released from the defendant’s jail. The plaintiff filed this wrongful death action alleging that his death was caused by the defendant’s negligence in releasing him from custody in an intoxicated state without a mental health evaluation and without notifying his family of suicidal threats that he made while incarcerated. Having reviewed the record, we conclude that the plaintiff’s evidence at the summary judgment stage is insufficient to establish that the defendant breached its duty of care to the decedent or that its conduct was a proximate cause of his death. We therefore affirm the trial court’s grant of summary judgment.
 
Wayne County Court of Appeals 04/19/17
In Re: Lorenda B.
M2016-01841-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Sheila Calloway

This appeal concerns the termination of a mother’s parental rights to her minor child. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Davidson County (“the Juvenile Court”) seeking to terminate the parental rights of Judith B. (“Mother”) to her minor child Lorenda B. (“the Child”). Mother has alleged throughout this case that there is a satanic conspiracy against her and that the Child is at risk of having her organs harvested for trafficking purposes. After a trial, the Juvenile Court terminated Mother’s parental rights. Mother appeals to this Court. We affirm the grounds of substantial noncompliance with the permanency plan and mental incompetence, but we reverse the grounds of willful failure to support and persistence of conditions. We also affirm the Juvenile Court’s finding that termination of Mother’s parental rights is in the Child’s best interest. We affirm, in part, and reverse, in part, the judgment of the Juvenile Court.

Davidson County Court of Appeals 04/19/17
George M. Greenwood, et al. v. City of Lebanon, Tennessee
M2016-01168-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Charles K. Smith

The plaintiffs entered into a contract signed by the commissioner of finance for the City of Lebanon to act as the City’s insurance broker for health care benefits. The plaintiffs secured a group health care benefit contract for the City for the period from July 1, 2013 through July 1, 2014. In February 2014, the City informed the plaintiffs that it had appointed another broker and refused to pay the monthly service fees for the remaining months of the contract. The City asserted that the contract was ultra vires because it was not signed by the mayor or approved by ordinance enacted by the city council as required by the City’s charter. The trial court found the contract to be ultra vires, but determined that the City “should be equitably estopped from denying the validity of the agreement” and granted summary judgment in favor of the plaintiffs. We affirm the judgment of the trial court.  

Wilson County Court of Appeals 04/19/17
In Re: Kira G.
E2016-01198-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Douglas T. Jenkins

This case to terminate the parental rights of a father to his daughter is before the court for the second time. The case began when the mother and stepfather filed the petition to terminate the father’s rights and for the stepfather to adopt the child. The petition alleged the grounds of abandonment by failure to visit and support and by engaging in conduct showing a wanton disregard for the welfare of the child, and asserted that termination was in the child’s best interest. After a hearing, father’s parental rights were terminated; Father appealed. This Court vacated the judgment terminating his rights and remanded the case for the trial court to include written findings of fact and conclusions of law and to consider the four months prior to the father’s incarceration in the determination of whether the father had abandoned the child. On remand, the court entered an order which included findings of fact and conclusions of law, and terminated father’s parental rights on the grounds alleged in the petition and upon a finding that termination was in the child’s best interest. The father appeals. We affirm the judgment of the trial court.

Greene County Court of Appeals 04/18/17
In Re Estate of Virginia Spears
W2016-00599-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Karen D. Webster

This appeal involves a challenge to certain decisions made by the probate court pursuant to a petition to ratify the decisions of the estate’s executor. Although we affirm the probate court’s determination that a $250,000.00 debt once owed to the decedent is now extinguished and also affirm its determination that a certain annuity policy should be transferred to the estate, we reverse the probate court’s determination that insurance policies owned by the decedent at her death should be transferred to her grandchildren. Further, we reverse the trial court’s order to the extent that it directs two other annuity policies to be directed to the decedent’s grandchildren. These other two annuities are also assets of the estate that are subject to distribution in accordance with the decedent’s will.

Shelby County Court of Appeals 04/17/17
Steven J. Thomas, et al. v. Jeffrey M. Thomas, et al. v. Delmus L. Thomas, et al.
W2016-01412-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor George R. Ellis

This appeal concerns the proper ownership of a piece of farm property in which the deed recites ownership as one-half to parents and one-fourth each to their two sons. The trial court eventually ruled that the property in dispute was solely owned by parents based on the complaining son’s nonpayment of taxes and awarded full ownership of the property to the parents under the theories of title by prescription and unjust enrichment. We reverse and remand.

Crockett County Court of Appeals 04/17/17
Linda Diane Cobb v. State of Tennessee
M2014-01755-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Robert Lee Holloway, Jr.

The plaintiff filed suit alleging discriminatory and harassing practices violative of the Tennessee Human Rights Act. The defendants moved for summary judgment, and the trial court dismissed the plaintiff’s claims, holding that the defendants had negated essential elements of the plaintiff’s claims. On appeal, the plaintiff argues that the trial court erred in failing to allow for additional discovery before ruling on the request for summary judgment. The plaintiff also argues that the trial court failed to address all her claims and that genuine issues of material fact precluded summary judgment. We conclude that the trial court properly granted summary judgment. Therefore, we affirm.

Maury County Court of Appeals 04/17/17
Brandi Burge, et al. v. Farmers Mutual of Tennessee
M2016-01604-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Justin C. Angel
This appeal involves an insurer’s refusal to pay a claim for a fire loss. The trial court granted summary judgment in favor of the plaintiffs on the issue of liability and held a bench trial on the issue of damages only. The trial court ultimately awarded the plaintiffs $127,500 for their covered losses, prejudgment interest, and a statutory penalty because the insurer’s refusal to pay the claim was not in good faith. On appeal, the insurer argues that the plaintiffs are not entitled to any recovery because they failed to sufficiently prove their damages. The insurer also contends that it did not act in bad faith because it had substantial legal grounds for denying the claim. The plaintiffs argue that the trial court should have awarded additional damages. We conclude that the trial court should have awarded $4,000 in additional damages for the loss of the residence but otherwise affirm the trial court’s judgment as modified.
 
Grundy County Court of Appeals 04/13/17
Cheryl S. Maher v. Joseph A. Woodruff
M2016-01468-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge J. Russell Parkes

This is a post-divorce case involving wife’s claims against husband for a portion of his military retirement benefits and husband’s claims against wife for retroactive child support. Wife initiated this action against husband claiming that, pursuant to the parties’ marital dissolution agreement, she was entitled to a percentage of the retirement benefits that husband was receiving from the military, as well as a judgment for a portion of the benefits that had already been paid to husband. Husband then filed a counter-petition against wife requesting that the court enter a judgment against her for back child support. The trial court held that the parties’ martial dissolution agreement did in fact entitle wife to a percentage of husband’s military retirement benefits going forward but that she failed to present the proof required for an award of the benefits husband received prior to trial. The trial court further found that wife owed husband child support and calculated the amount of child support wife owed by using the Child Support Guidelines that were in effect at the time wife’s child support obligation was incurred rather than those in effect at the time of trial. Wife appealed. We reverse the judgment of the trial court with respect to the calculation of wife’s child support obligation and remand with instructions to re-calculate child support using the Child Support Guidelines in effect at the time of trial. We modify the order of the trial court to correct the percentage of the retirement benefits to which wife is entitled. The remainder of the judgment is affirmed. We decline husband’s request for attorney’s fees incurred on appeal.     

Williamson County Court of Appeals 04/13/17
Freddy Mora, et al. v. David Vincent, et al.
E2016-00327-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jerri S. Bryant

Freddy Mora (“Plaintiff”), pro se, appeals the February 4, 2016 judgment of the Chancery Court for Bradley County (“the Trial Court”) in this suit alleging violations of Tenn. Code Ann. § 66-28-101, et seq., the Uniform Residential Landlord and Tenant Act. Plaintiff’s brief on appeal severely fails to comply with Tenn. R. App. P. 27. We, therefore, find that Plaintiff has waived his issues on appeal. David Vincent and Teresa Vincent (“Defendants”) raise an issue regarding the Trial Court’s award to Plaintiff of attorney’s fees. We find and hold that while the award of attorney’s fees was proper, there is nothing in the record before us on appeal showing any evidence which the Trial Court could have relied upon in determining the amount of attorney’s fees. Nor is there anything in the record showing that the Trial Court considered the factors contained in Rule 8, RPC 1.5 of the Rules of the Supreme Court or the applicable case law in determining the amount of reasonable attorney’s fees. Given all this, we vacate the amount awarded in attorney’s fees and remand this case to the Trial Court for further proceedings to determine the amount of reasonable attorney’s fees to be awarded to Plaintiff.

Bradley County Court of Appeals 04/13/17
Toni Jones v. Metropolitan Government of Nashville and Davidson County
M2016-00483-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Ellen H. Lyle
This is an appeal from the grant of Appellee’s Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss Appellant’s 42 U.S.C. §1983 claim for alleged violation of her substantive and procedural due process rights to a public education. Appellant was removed from her Algebra I class and placed in a computer-based course. Because the right to a public education does not include a particular course placement or teaching method, Appellant’s complaint fails to state a claim for relief. Affirmed and remanded.
 
Davidson County Court of Appeals 04/13/17
In Re Marterrio H.
W2016-01273-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Special Judge David S. Walker

The trial court terminated Mother’s parental rights after finding by clear and convincing evidence that (1) Mother failed to substantially comply with the requirements of the permanency plans, (2) Mother’s mental incompetence prevented her from properly caring for the Child, and (3) the conditions which precipitated removal of the Child from Mother’s custody still persisted. The trial court then found by clear and convincing evidence that it was in the child’s best interest to terminate Mother’s parental rights. Mother appealed. We affirm the trial court’s judgment.

Shelby County Court of Appeals 04/12/17
Alanna Christine Howe v. John Ashley Howe
E2016-01212-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Pamela A. Fleenor

This post-divorce appeal concerns the requested modification of a parenting plan designating the father as the primary residential parent and awarding the mother reasonable visitation. The mother filed a petition to modify, alleging that a material change in circumstances necessitated her designation as the primary residential parent. The father objected and filed a motion for contempt for failure to pay child support. Following a hearing, the court held the mother in contempt for failure to pay and denied her request for designation as the primary residential parent. However, the court awarded her additional co-parenting time, finding that a modification of the residential schedule was warranted. The mother appeals. We affirm the decision of the trial court.

Hamilton County Court of Appeals 04/10/17
State Ex Rel. The Metropolitan Government Of Nashville And Davidson County, TN v. State of Tennessee, Et Al.
M2016-02036-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ellen H. Lyle

The Metropolitan Government of Nashville and Davidson County filed a petition for a writ of mandamus against the State, seeking full funding for English language learner teachers and translators in accord with the ratios found in Tennessee Code Annotated § 49-3-307(a)(7). The trial court denied the writ of mandamus. We affirm.

Davidson County Court of Appeals 04/03/17
Jerry Clark v. Metropolitan Government Of Nashville & Davidson County
M2016-01014-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Russell T. Perkins

The trial court dismissed the plaintiff’s complaint as untimely, in part, due to its determination that the general savings statute, Tenn. Code Ann. § 28-1-105, did not apply. We affirm the decision of the trial court and remand for further proceedings consistent with this Opinion.

Davidson County Court of Appeals 04/03/17