Court of Appeals Opinions

Format: 07/29/2014
Format: 07/29/2014
In Re Adelyn B.
W2013-02374-COA-R3-JV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge John W. Whitworth

This case arises out of the Mother’s request to relocate with the parties’ minor child. The trial court determined it was in the best interest of the child to remain in Tennessee with Father pursuant to Tennessee Code Annotated Section 36-6-108(c). We affirm the trial court’s best interest finding, and remand for entry of a permanent parenting plan naming Father the child’s primary residential parent and setting a parenting schedule taking into account Mother’s move.

Benton County Court of Appeals 07/24/14
Linda Laseter v. J. Martin Regan, Jr.
W2013-02105-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Donna Fields

This appeal involves a defendant’s attempts to discover certain financial information from the plaintiff’s medical expert in order to facilitate an inquiry into potential bias. The trial court entered several orders requiring the expert witness to provide the requested financial information, which related to his income and compensation, but the expert witness repeatedly failed to comply with the trial court’s orders. The trial court also ruled that the defendant would be permitted to question the expert witness about certain financial information during cross-examination at trial, and the expert witness communicated to the trial judge that he would refuse to answer any such questions. The trial court eventually excluded the medical expert as a witness and allowed the plaintiff time to find a replacement expert. When the plaintiff failed to identify another expert witness within the time allowed, the trial court dismissed the complaint. The plaintiff appeals. We affirm.

Shelby County Court of Appeals 07/24/14
Bryant Jennings v. City of Memphis
W2013-02570-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. HIghers
Trial Court Judge: Judge Arnold B. Goldin

This case involves the eligibility of a Memphis police officer for automatic promotion to thirty-year Captain. The trial court granted summary judgment in favor of the officer. However, because the officer was a temporary employee prior to the cut-off date set forth in the automatic promotion provision, we find that he is not entitled to automatic promotion. We reverse the grant of summary judgment in favor of the officer and we grant summary judgment in favor of the City of Memphis. The case is remanded for further proceedings, as may be necessary, consistent with this opinion.

Shelby County Court of Appeals 07/24/14
Doris Guyear, Heir of Leroy Guyear, Deceased v. Joey Blalock, Et AL.
M2012-01562-COA-R3-CV
Authoring Judge: Senior Judge Ben H. Cantrell
Trial Court Judge: Judge J. Curtis Smith

The owner of a promissory note died, and his widow filed a complaint in the name of his estate to collect the unpaid balance, even though her late husband’s estate had never been opened. She subsequently amended her complaint to designate herself as the plaintiff in her capacity as her late husband’s wife and next friend. The obligors on the note filed a motion for dismissal, contending that the widow had not demonstrated that she was a proper plaintiff or that she had any right to collect on the note. The trial court granted the motion to dismiss. We affirm.

Grundy County Court of Appeals 07/23/14
In Re Estate of Arthur E. Wair, Jr.
M2014-00164-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge David Randall Kennedy, Sr.

This appeal arises from alleged violations of the Tennessee Adult Protection Act (“TAPA”). Arthur E. Wair, Jr. (“Decedent”) executed a last will and testament leaving his entire estate to his friend and accountant, Larry Mullins (“Mullins”). After Decedent died, his siblings Sidney Wair, Ralph Wair, and Juanita Jackson (“Plaintiffs”) sued Mullins in the Circuit Court for Davidson County (“the Trial Court”) not as a will contest but instead alleging that Mullins had exercised undue influence over their brother to manipulate him into executing the will all in violation of TAPA. Mullins filed a motion to dismiss, which the Trial Court granted. Plaintiffs appeal. We hold, inter alia, that any claim for abuse or neglect under TAPA was barred by the one-year statute of limitations for personal torts, and that Plaintiffs otherwise failed to state a claim under TAPA. We affirm the Trial Court.

Davidson County Court of Appeals 07/23/14
In Re Chandler M. - Concurring and Dissenting
M2013-02455-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Thomas C. Faris

I concur fully in everything in the majority’s decision except the majority’s determination that the statutory ground of termination found in Tenn. Code Ann. § 36-1113(g)(6) was proven byclear and convincing evidence. I believe the language of the statute itself is dispositive:
 

Franklin County Court of Appeals 07/21/14
In Re Chandler M.
M2013-02455-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Thomas C. Faris

This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate Father’s parental rights to the Child. The trial court found that clear and convincing evidence existed to support the termination of Father’s parental rights on the statutory grounds of abandonment, persistence of conditions, and confinement under a sentence of ten years or more. The court further found that termination of his rights was in the Child’s best interest. Father appeals. We affirm the trial court’s termination of Father’s parental rights on the grounds of abandonment and confinement under a sentence of 10 years or more.  However, we reverse the trial court on the ground of persistent conditions.

Franklin County Court of Appeals 07/21/14
Samuel Bridgefourth, Jr. v. Santander Consumer USA, Inc.
W2013-02468-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Rubert Samual Weiss

Plaintiff’s car was repossessed. Plaintiff paid the amount owed, but never received the car. Plaintiff sued and won a judgment for conversion. He was also awarded attorney’s fees, first as special damages and then, in an amended order, as punitive damages. Defendant appeals. We reverse because attorney’s fees cannot be awarded as punitive damages and no statute or contract involved in this case provides for attorney’s fees.

Shelby County Court of Appeals 07/21/14
Ok Nan Kim Lambert v. Mark Stephen Lambert
M2013-01885-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Laurence M. McMillan, Jr.

This appeal involves the interpretation of two marital dissolution agreements. The parties married, divorced , and then remarried each other. They stayed remarried for a few years and then divorced again. In both divorces, the parties entered into a marital dissolution agreement. Years later, after the husband retired from military service, this litigation was commenced regarding the award of a portion of the husband’s military retirement benefits to the wife. The trial court held that the wife’s award of benefits was based on the combined duration of both marriages. Both parties appeal. The husband argues that the trial court erred in not limiting the wife’s award to the duration of the first marriage only. We construe the parties’ marital dissolution agreement as awarding the wife the agreed percentage of all of the husband’s military retirement benefits, irrespective of the duration of marriage. Thus, we decline to adopt the husband’s argument. The wife does not argue on appeal that the trial court erred in failing to award her the agreed percentage of all of the husband’s military retirement benefits. Accordingly, we are constrained to affirm the trial court’s decision to base the award on the combined duration of both of the parties’ marriages.

Montgomery County Court of Appeals 07/18/14
Cheryl Hall v. James H. Crenshaw, M.D., The Jackson Clinic Professional Association, et al.
W2013-00662-COA-R9-CV
Authoring Judge: Judge Holly M. KIrby
Trial Court Judge: Judge Donald H. Allen

This interlocutory appeal involves ex parte communications between defense counsel for a defendant medical entity and non-party physicians who treated the plaintiff’s decedent and are employed by the defendant medical entity. The plaintiff filed this healthcare liability action against the defendant medical entity arising out of treatment of the plaintiff’s decedent. The trial court held that the attorneys for the defendant medical entity are barred under Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn. 2006), from conferring ex parte with treating physicians employed by the defendant medical entity who are not named as defendants in the lawsuit. The defendant medical entity was granted permission for this interlocutory appeal. We hold that the defendant medical entity has an independent right to communicate privately with its employees, and this right is not abrogated by the filing of the plaintiff’s healthcare liability lawsuit. Therefore, Alsip does not bar the medical entity’s attorneys from communicating ex parte with physicians employed by the medical entity about the physician employee’s medical treatment of the plaintiff’s decedent. Accordingly, we reverse.

Madison County Court of Appeals 07/18/14
Hanna (John) Nazi, et al. v. Jerry's Oil Company Inc.
W2013-02638-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Nathan B. Pride

In this contract dispute, the parties disagree as to whether the signatory of the contracts may be personally liable thereon, as well as to whether the contract provides for a fuel surcharge. We affirm in part, vacate in part, and remand for further proceedings.

Madison County Court of Appeals 07/18/14
Robert Maloney v. Gloria Maloney
W2013-02409-COA-R9-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Karen R. Williams

Husband and paramour are represented by two partners in the same law firm. Wife sought to disqualify Husband’s attorney. The trial court granted the motion to disqualify, citing the inevitability of conflict. Husband appealed. We reverse and remand for an evidentiary hearing on the motion.

Shelby County Court of Appeals 07/17/14
Jean Marie Bailey v. Billie Carson Bailey
E2013-02195-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Douglas T. Jenkins

In this post-divorce action, the petitioner sought to terminate or modify his spousal and child support payments. The trial court terminated the petitioner’s child support obligation, lowered the monthly spousal support amount, and reduced the spousal support arrearage owed. The petitioner appeals. We affirm.

Hawkins County Court of Appeals 07/17/14
Nashville Metro Government v. New Orleans Manor, Inc., et al.
M2013-00706-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Claudia Bonnyman

Metropolitan Government filed suit for recovery of delinquent real property taxes on property leased by the Metropolitan Nashville Airport Authority. Taxpayers filed a motion to dismiss the proceeding, asserting that its obligation to pay taxes arose from its lease obligation and was extinguished when the Airport Authority released taxpayers from all obligations under the lease. Metropolitan Government moved for summary judgment on the ground, inter alia, that the taxpayers did not have standing to challenge the taxes because they had failed to pay the tax under protest as required by Tenn. Code Ann. § 67–1-901; the trial court granted the motion. We affirm the judgment.

Davidson County Court of Appeals 07/16/14
Michael O'Neil v. Clinically Home, LLC
M2013-01789-COA-R3-CV
Authoring Judge: Special Judge Laurence M. Mcmillan, Jr.
Trial Court Judge: Chancellor Ellen Hobbs Lyle

The Chief Executive Officer of a Company and the Company executed an Employment Agreement that covered, among other issues, consequences of termination with or without cause, either by the Officer or by the Company. A year or so later, the Officer called a meeting and issued an ultimatum to the board of directors threatening to resign if certain changes were not made. The Company later wrote a letter to the Officer accepting his resignation without “Good Reason” as defined in the Employment Agreement. The Officer asserted the Company terminated him “without cause” and that he did not resign. The Company responded that it did not terminate the Officer,but simply accepted his resignation. The Officer filed a complaint seeking severance pay and other benefits he claimed he was entitled to pursuant to the Employment Agreement.  The trial court agreed with the Officer and granted his motion for summary judgment.  The Company appealed, and we affirm the trial court’s judgment.

Davidson County Court of Appeals 07/16/14
In Re: The Adoption of Male Child A.F.C. By: C.M.C. and D.F.C., and J.L.B.
M2013-00583-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Robert E. Corlew, III

Parents of a child born of a surrogate mother with an anonymously donated egg and the father’s sperm and Tennessee Department of Health appeal order entered in consolidated parentage and adoption proceedings which required the live birth certificate issued for the child to list the mother as “unknown.” Having determined that the definition of “mother” for the purpose of completing the birth certificate is the same as that used in preparing the standard birth certificate promulgated bythe National Center for Health Statistics,we reverse the trial court’s decision and hold that the gestational carrier should be listed as the mother.

Rutherford County Court of Appeals 07/16/14
Scott Ostendorf, Et Al. v. R. Stephen Fox, et al.
E2013-01978-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Andrew R. Tillman

Scott Ostendorf, et al. (“Plaintiffs”) sued R. Stephen Fox, Mark S. 1 Dessauer (“Attorney Dessauer”), and Hunter, Smith & Davis, LLP (“the Firm”) with regard to a transaction involving the sale of substantially all of the assets of Mothwing Camo Technologies, Inc. The defendants filed motions to dismiss. After a hearing, the Chancery Court for Scott County (“the Trial Court”) granted the motions to dismiss. Plaintiffs appeal to this Court. We find no error in the Trial Court’s finding and holding that Plaintiffs’ claims against Attorney Dessauer and the Firm are barred by the statute of limitations. We, however, find error in the sua sponte dismissal of Plaintiffs’ claims against Mr. Fox for improper venue. We affirm the dismissal of the claims against Attorney Dessauer and the Firm, vacate the dismissal of Plaintiffs’ claims against Mr. Fox, and remand this case for further proceedings.

Scott County Court of Appeals 07/16/14
Tracy W. Hamilton v. Pemberton Truck Lines, Inc., et al.
E2013-01329-WC-R3-WC
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Larry H. Puckett

The employee sustained a work-related injury to his cervical spine. The trial court found permanent and total disability as a result of the injury. The employer has appealed, contending that the evidence preponderates against the trial court’s finding. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.

Monroe County Court of Appeals 07/16/14
In Re: Conservatorship of Robert E. L. Hathaway, Ward
W2013-01474-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert Benham

This is a conservatorship proceeding. The ward’s wife filed a petition to appoint a conservator in which she asked to be appointed as conservator for the ward. After a trial, the trial court held that the ward was disabled and in need of a conservator but appointed a public conservator instead of the wife. The trial court also set aside a transfer of real property, purportedly made by the ward prior to the filing of the conservatorship action. The wife now appeals, arguing that the trial court erred in setting aside the transfer of real property and in rejecting her request to be appointed conservator. Discerning no error, we affirm.

Shelby County Court of Appeals 07/16/14
Markeesha L. Rucker v. Frederick E. Harris
M2013-01240-COA-R3-JV
Authoring Judge: Special Judge Larry B. Stanley, Jr.
Trial Court Judge: Judge Walter C. Kurtz

The trial court fashioned a parenting plan that designated the mother of five year old twins as their primary residential parent and gave the father 91 days of visitation each year. The father argues on appeal that the trial court should have divided parenting time equally between the parties, or, in the alternative, simply granted him additional parenting time. He relies on language in the child custody statute,Tenn.Code Ann.§ 36-6-106(a),which directs the court to “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child . . .” For her part, the mother argues that the parenting plan adopted by the trial court is in the best interest of the children. We affirm, but we remand this case to the trial court for correction of a clerical error.

Davidson County Court of Appeals 07/15/14
Tennessee Farmers Mutual Insurance Company v. Judy Pauline Simmons, et al.
E2013-01419-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Thomas J. Seeley, Jr.

This case presents an issue regarding the proper interpretation of a policy of insurance. The insurance company filed a declaratory judgment action against the defendants, seeking a determination from the trial court regarding whether the insurance policy afforded coverage for an accident involving a four-wheeler vehicle owned by one of the defendants. The accident resulted in the death of a minor, Ryan Casey. The child’s father intervened in the declaratory judgment action. Following a hearing, the trial court concluded that the policy did not provide coverage. The intervenor has appealed. Discerning no error, we affirm.

Unicoi County Court of Appeals 07/15/14
Robert Walker and Susan Elder v. Charles Smith v. Clifford Byrne and Wife, Carol Byrne
M2013-01816-COA-R3-CV
Authoring Judge: Judge Holly M. KIrby
Trial Court Judge: Chancellor Jeffrey F. Steward

This appeal involves private condemnation of an easement. The plaintiffs and the defendant both owned property on an island in the Tennessee River. There was a causeway or land bridge across the river, connecting the island to the mainland. The trial court rejected the defendant’s claim for private condemnation of an easement on the plaintiffs’ property to enable the defendant to access the causeway.  It also enjoined the defendant from using the causeway or from entering onto the plaintiffs’ property to get to the causeway. The defendant appeals. We hold that the causeway is accessible by the public and so vacate the injunction. We reverse the trial court’s decision on the defendant’s private condemnation claim and hold that the defendant is entitled to condemnation of an appropriate easement under the facts of this case.

Marion County Court of Appeals 07/11/14