Court Opinions

Format: 04/24/2019
Format: 04/24/2019
Christy Keller Elrod Church v. Darrell Gene Elrod
M2018-01064-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Deanna B. Johnson

In this post-divorce petition to modify, the Appellant (former Husband) contends that the trial court erred in concluding that his obligation to provide life insurance for the benefit of Appellee (former Wife) was part of a property settlement and therefore not subject to modification.  The trial court’s order included an upward deviation for support of the parties’ youngest child for the twelve month period prior to her emancipation.  The trial court also ordered Appellant to pay college tuition equal to that of the University of Tennessee at Knoxville without providing any allowance for scholarships and sponsor fees received by the parties’ daughter.  The trial court further found that Appellant was not guilty of civil contempt for failure to make payments into Appellee’s retirement account under the terms of the parties’ Agreed Order of Legal Separation (AOLS).  However, the trial court refused to relieve Appellant of his obligation to continue funding Appellee’s retirement account at the same level as he funds his own retirement account.  We conclude from our review that the life insurance policy obligation constitutes spousal support, which is subject to modification.  We vacate the trial court’s judgment concerning college tuition and hold that Appellant is obligated to pay the cost of tuition and books, less scholarships and sponsor fees received by the parties’ daughter.  All other aspects of the trial court’s order are affirmed.  Accordingly, we affirm in part, reverse in part, and remand for further proceedings in accordance with this opinion.

Williamson County Court of Appeals 03/25/19
John Gunn Et Al. v. Jefferson County Economic Development Oversight Committee, Inc.
E2018-01345-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Don R. Ash, Senior Judge

Because appellants’ notice of appeal was filed more than thirty days following the trial court’s final, appealable judgment, we dismiss this appeal for lack of subject matter jurisdiction.

Jefferson County Court of Appeals 03/25/19
State of Tennessee v. Louis Dane Devillier - Concurring Opinion
M2018-00565-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Michael W. Binkley

I concur in the conclusion that the judgments of the trial court should be affirmed if the decision of this court must be made addressing the merits of the case. However, I would dismiss the appeal because, as the State correctly points out, the notice of appeal was not timely filed, and Defendant has failed to seek a waiver of the timely filing of the notice.

Williamson County Court of Criminal Appeals 03/25/19
State of Tennessee v. Louis Dane Devillier
M2018-00565-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Michael W. Binkley

The Defendant, Louis Dane Devillier, pleaded guilty to misdemeanor theft, driving under the influence (“DUI”), and perjury, in exchange for concurrent sentences of eleven months and twenty-nine days, with the manner of service of the sentence to be determined by the trial court. At a sentencing hearing, the trial court imposed the agreed-upon sentence and ordered the Defendant to serve his sentence in confinement. On appeal, the Defendant contests the manner of service of the sentence, contending that the trial court failed to find specific facts supporting enhancement factors and failed to give “due weight” to mitigating factors. After review, we affirm the trial court’s judgments.

Williamson County Court of Criminal Appeals 03/25/19
Penklor Properties, LLC v. Jo Ellen Buehler, et al.
W2018-00630-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Jim Kyle

Appellant Mid South Title Services, LLC agreed to act as escrow agent for a real estate transaction in which Appellee Penklor Properties, LLC was the buyer. Appellee tendered earnest money, which, under the Purchase and Sale Agreement, was to be held by Appellant unless and until the parties to the Purchase and Sale Agreement submitted a signed written agreement changing the terms of the escrow. Very shortly after the Purchase and Sale Agreement was signed, Appellant received a purported amendment from the seller’s former attorney and real estate broker. The amendment requested that Appellant release $53,000.00 of the escrowed funds in satisfaction of the attorney/broker’s “former legal fees.” Without inquiring further, Appellant issued the requested check. Appellant later discovered that the amendment was not, in fact, authorized by the parties to the Purchase and Sale Agreement. Appellee filed suit against Appellant for breach of contract and breach of fiduciary duty, and the trial court entered judgment against Appellant. Appellant appeals. We affirm.

Shelby County Court of Appeals 03/25/19
Rosalyn Small v. Memphis-Shelby County Airport Authority
W2018-01461-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Walter L. Evans

This is the second appeal of this wrongful termination of employment case. Appellant/Employee appeals the amount of post judgment interest awarded. Because the trial court’s order does not comply with Tennessee Rule of Civil Procedure 52.01, we cannot conduct a meaningful review. As such, we vacate and remand.

Shelby County Court of Appeals 03/25/19
Auto Glass Company of Memphis, Inc. d/b/a Jack Morris Auto Glass v. David Gerregano Commissioner, Department of Revenue, State of Tennessee
W2018-01472-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Walter L. Evans

This is a taxation dispute between the Commissioner of the Department of Revenue and a Tennessee corporation. The primary point of contention concerns the proper tax classification of the corporation under Tennessee’s Business Tax Act. After paying an amount of taxes that it deemed improper, the corporation filed a claim for refund. The Department of Revenue subsequently denied the claim for refund, and the corporation thereafter filed suit seeking a refund in the Shelby County Chancery Court. The litigation quickly advanced with the filing of competing cross-motions for summary judgment. After a hearing, the chancery court ruled in the corporation’s favor, specifically rejecting the Commissioner’s tax classification of the business. For the reasons stated herein, we affirm.

Shelby County Court of Appeals 03/25/19
Ernest Ray Laning et al. v. Johnny Lawrence et al.
E2017-02479-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Douglas T. Jenkins

This case arises out of a dispute involving conflicting claims to the charter of a local affiliate of a national veteran’s service organization, the ownership of real property held by the local affiliate, and the right to manage a clubroom being operated on the property. The appellants, plaintiffs in the trial court, seek review of an order setting aside the deed upon which their claim to ownership derives and dismissing their claim for damages. Finding no error, we affirm the judgment.

Hamblen County Court of Appeals 03/22/19
In Re: Cynthia P. Et Al.
E2018-01937-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Janice Hope Snider

In this parental termination case, the juvenile court found four statutory grounds for termination of a mother’s parental rights and that termination of parental rights was in her children’s best interest. We conclude that the record contains clear and convincing evidence to support all four grounds for termination of parental rights and that termination of parental rights is in the children’s best interest. So we affirm.

Hamblen County Court of Appeals 03/22/19
State of Tennessee v. Erskine Any Hunt, Jr.
E2018-00500-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Jeffery H. Wicks

A Morgan County jury convicted the Defendant, Erskine Andy Hunt, Jr., of one count of second degree murder, one count of unlawful possession of a firearm by a convicted felon, one count of attempted unlawful possession of a firearm by a convicted felon, and two counts of reckless endangerment; the Defendant pleaded guilty to an additional count of unlawful possession of a firearm by a convicted felon. The trial court sentenced the Defendant to an effective sentence of thirty-three years of incarceration. On appeal, the Defendant contends that: (1) the evidence is insufficient to support his conviction for second degree murder; (2) the State failed to disclose evidence it planned to introduce at trial; and (3) the trial court erred when it instructed the jury about the mental state required for a conviction of unlawful possession of a firearm by a convicted felon. After a thorough review of the record and the applicable law, we affirm the trial court’s judgments.

Morgan County Court of Criminal Appeals 03/21/19
In Re: Conservatorship of Gloriadean S. Porter, et al
W2016-00693-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Karen D. Webster

This action concerns the closing of two estates and a conservatorship. A beneficiary appeals the court’s award of attorney fees and expenses to the attorney of record and the subsequent denial of his motion to continue the settlement of the estates. We affirm.

Shelby County Court of Appeals 03/21/19
United Supreme Council AASR SJ, et al v. Fredrick McWilliams, et al
W2018-00116-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Jim Kyle

This appeal concerns a derivative action brought on behalf of a non-profit corporation. Citing alleged embezzlement and misappropriation of funds by the directors, plaintiffs, members of the non-profit at the time of filing, brought a derivative action on behalf of the fraternal and charitable organization. After filing the derivative suit, plaintiffs established and became members of a competing organization. Pursuant to the original organization’s constitution, this caused the plaintiffs to surrender all their membership rights in the original organization. Defendants moved for summary judgment based on plaintiffs’ lack of standing to maintain the derivative action pursuant to Tennessee Rule of Civil Procedure 23.06. The trial court granted the motion, dismissing all of plaintiffs’ claims against defendants, holding that plaintiffs could not fairly and adequately represent the interest of the organization’s remaining members because they themselves were no longer members and because of the conflict of interest inherent in their establishment of the competing organization. We affirm.

Shelby County Court of Appeals 03/21/19
Candance Gooch Spight v. Deangelo M. Spight
W2018-00666-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

This is an appeal from a final decree of divorce. Father/Appellant appeals the trial court’s ruling regarding retroactive child support. The appellate record contains no transcript or statement of the evidence for our review as required by the Tennessee Rules of Appellate Procedure. However, the trial court’s order contains an inconsistency regarding the amount of the retroactive child support award. Specifically, the amount of arrears ordered does not comport with the accrual date for arrears listed in the trial court’s order. Because there are no findings, to resolve the inconsistency, we vacate the trial court’s award of retroactive child support. The trial court’s order is otherwise affirmed.

Madison County Court of Appeals 03/21/19
Rebecca M. Little v. The City Of Chattanooga, Tennessee
E2018-00870-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Pamela A. Fleenor

Plaintiff appeals the dismissal of her complaint, which ostensibly alleged declaratory judgment, inverse condemnation, and due process violations. We vacate the dismissal of Plaintiff’s procedural due process claim because that claim was not actually addressed in the trial court’s order of dismissal. The trial court’s judgment is affirmed in all other respects

Hamilton County Court of Appeals 03/21/19
Larry Beckwith, Et Al. v. LBMC, P.C. Et Al.
M2017-00972-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Michael Binkley

A business retained a professional accounting firm to value its common stock and stock options. Almost four years after the requested valuation report was provided, the president of the business claimed that one of the firm’s accountants had disclosed confidential information about the valuation to a third party. The president and the accounting firm entered a tolling agreement for his individual claim. But after attempts to resolve the dispute failed, the president and the business filed a complaint against the accounting firm for breach of contract, accounting malpractice, and breach of fiduciary duty. The accounting firm moved for summary judgment, claiming the suit was barred by the statute of limitations. Applying the one-year statute of limitations for accounting malpractice actions and concluding that the tolling agreement established a filing deadline for the president, the trial court ruled that the plaintiffs’ claims were untimely. Upon review, we conclude that the tolling agreement paused the running of the statute of limitations on the president’s confidentiality claim. So we vacate the dismissal of the president’s confidentiality claim. We affirm the judgment of the trial court in all other respects.   

Williamson County Court of Appeals 03/21/19
Jack V. DeLany, ET AL. v. Martin R. Kriger, ET AL.
W2018-01229-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Mary L. Wagner

Owners of a cat filed a wrongful death complaint against the cat’s veterinarian and animal hospital. The defendants admitted liability for wrongly placing a feeding tube into the cat’s trachea rather than her esophagus, causing the cat to aspirate and die when she was fed through the tube. The trial court found the defendants were not liable because the cat was so ill she likely would not have survived long anyway, and it dismissed the complaint. We reverse the trial court’s judgment and remand the case for a determination of damages.

Shelby County Court of Appeals 03/20/19
State of Tennessee v. Ellen Becker Goldberg
M2017-02215-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James G. Martin, III

A jury convicted the Defendant, Ellen Becker Goldberg, of vandalism of property valued at $1,000 or more but less than $10,000, misdemeanor assault, and stalking for offenses committed against her neighbor, who suffered from chronic illness and physical disability. The Defendant was sentenced to serve three years of supervised probation. On appeal, the Defendant argues that the evidence was insufficient to prove the value of the vandalized property, the mens rea for vandalism, or ownership of the property; that the evidence was insufficient to support the conviction for assault; that the evidence was insufficient to establish the elements of stalking, particularly in light of the statutory exclusion for constitutionally protected conduct; that the trial court erroneously admitted evidence regarding the value of the vandalized property; and that the Defendant was erroneously sentenced under the incorrect theft statute. After a thorough review of the record, we conclude that the savings statute in Tennessee Code Annotated section 39-11-112 applies to the revisions to the theft statute in Tennessee Code Annotated section 39-14-105(a). Accordingly, we remand for resentencing and for the correction of errors on the judgment forms. In all other respects, we affirm the trial court’s judgments.

Williamson County Court of Criminal Appeals 03/20/19
Estate of Ella Mae Haire Et Al. v. Shelby J. Webster, Et Al.
E2017-00066-SC-R11-CV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Chancellor Clarence E. Pridemore

We granted this appeal to determine whether a person listed as a joint tenant with right of survivorship on checking and savings accounts sufficiently alleged claims for relief against a bank by asserting that the bank removed his name from the accounts without his consent and breached its duty to him as a co-owner of the account by accepting forged signature cards. We conclude that the allegations of the complaint are sufficient to survive the bank’s motion to dismiss because, under Tennessee law: (1) each joint tenant with right of survivorship of a multiple-party account is deemed an owner of the account; (2) all joint tenants have presumptively equal ownership of account funds; (3) a contractual relationship arises between a bank and joint tenants upon the creation of joint tenancy bank accounts; (4) contracts cannot be modified except upon consent of the parties; and (5) no statute affords banks protection from liability for removing a joint tenant’s name from an account without the joint tenant’s consent. Accordingly, we reverse the decision of the Court of Appeals affirming the trial court’s judgment granting the bank’s motion to dismiss for failure to state a claim and remand this matter to the trial court for further proceedings consistent with this decision.

Knox County Supreme Court 03/20/19
State of Tennessee v. James Lucas Green
M2018-00683-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Stella Hargrove

A Maury County jury convicted the Defendant, James Lucas Green, for driving under the influence (“DUI”), fifth offense, violation of the implied consent law, and violation of a habitual motor vehicle offender restriction. The trial court imposed an effective four-year sentence to be served at thirty percent. On appeal, the Defendant contends that: (1) the evidence is insufficient to support his conviction for DUI; (2) the trial court improperly overruled his Batson challenge; (3) the trial court erred when it ordered consecutive sentencing; and (4) cumulative error entitles him to relief. After review, we affirm the judgments of the trial court.

Maury County Court of Criminal Appeals 03/20/19
Vic Davis Construction, Inc. v. Lauren Engineers & Constructors, Inc.
E2017-00844-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Douglas T. Jenkins

A subcontractor brought suit against the general contractor for breach of contract and violations of the Prompt Pay Act. The subcontractor sought both damages, including punitive damages, and reformation of the subcontract based on fraud or mutual mistake. The general contractor counterclaimed for breach of contract. Upon the parties’ agreement, the trial court reformed the subcontract based on mutual mistake. The trial court also granted the general contractor summary judgment on the subcontractor’s claims for fraud and punitive damages. Then, following a bench trial, the court awarded a judgment to the subcontractor on its breach of contract claim and dismissed the general contractor’s counterclaim. The court declined to award the subcontractor a statutory penalty or attorney’s fees under the Prompt Pay Act. We affirm the trial court.

Hawkins County Court of Appeals 03/20/19
Leah Keirsey v. K-VA-T Food Stores Inc.
E2018-01213-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Alex E. Pearson

This matter involves the grant of summary judgment to defendant, K-VA-T Food Stores Inc. (Food City), in a slip and fall case. Plaintiff, Leah Keirsey, filed an action alleging that, on a rainy day, defendant negligently maintained its premises and failed to warn her of hazardous conditions. Defendant moved for summary judgment arguing that it exercised reasonable care to prevent injury to its customers and warned them of potentially wet conditions; its motion was granted. Plaintiff appeals. We affirm.

Hamblen County Court of Appeals 03/20/19
Stacy Clark v. Charms, L.L.C.
W2017-02552-SC-R3-WC
Authoring Judge: Judge William B. Acree
Trial Court Judge: Judge William C. Cole

Stacy Clark (“Employee”) alleged that she injured her back and left knee in the course and scope of her employment with Charms, L.L.C. (“Employer”). The trial court determined that Employee suffered a compensable injury to her left knee and awarded 21 percent permanent partial disability, temporary total disability, medical expenses, future medical expenses, discretionary costs, and attorneys’ fees. The court made no award for the injury to her back. Employer’s 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 trial court’s judgment.

Lauderdale County Workers Compensation Panel 03/19/19
Keith Lemont Farmer v. Shawn Phillips, Warden
W2018-01687-CCA-R3-HC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge R. Lee Moore, Jr.

The Petitioner, Keith Lemont Farmer, appeals from the Lake County Circuit Court’s dismissal of his petition for a writ of habeas corpus from his 2012 conviction for attempt to commit first degree murder and his twenty-year sentence. The Petitioner contends that the habeas corpus court erred by dismissing his petition. We affirm the judgment of the habeas corpus court.

Lake County Court of Criminal Appeals 03/19/19
Willie L. Pegues v. State of Tennessee
W2018-00830-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge Mark Ward

The Petitioner, Willie L. Pegues, appeals from the Shelby County Criminal Court’s dismissal of his petition pursuant to the
Post-Conviction DNA Analysis Act. The post-conviction court denied relief on the basis that, although the Petitioner requested various forms of scientific analysis, his claim was not cognizable because he had not requested DNA analysis. On appeal, the Petitioner contends that the court erred in dismissing his petition because the scope of the forensic testing authorized by the statute is not limited to DNA analysis. We affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 03/19/19
Angela Charlene Iveson v. Jeffrey Wayne Iveson
M2018-01031-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Louis W. Oliver

This appeal concerns a post-divorce effort to modify a residential parenting schedule. Angela Charlene Iveson (“Mother”) filed a petition against ex-husband Jeffrey Wayne Iveson (“Father”) in the Chancery Court for Sumner County (“the Trial Court”) seeking to modify the permanent parenting plan applicable to their minor daughter (“the Child”). The petition proceeded to a bench trial. Afterward, the Trial Court entered an order reducing and restricting Father’s parenting time as well as increasing his child support obligation. Father appeals to this Court, arguing, among other things, that the restrictions placed upon his parenting time are unwarranted and that the Trial Court erred by using his income for the most recent one year rather than a three year average of his income for child support purposes. We find that the Trial Court’s decisions with respect to these discretionary issues have a sufficient evidentiary basis and are consistent with applicable law. Thus, the Trial Court did not abuse its discretion. We, therefore, affirm the judgment of the Trial Court.

Sumner County Court of Appeals 03/18/19