Court of Appeals Opinions

Format: 06/20/2018
Format: 06/20/2018
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
Clayton Pickens v. John R. Underwood, et al.
E2017-02120-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge David Reed Duggan

This appeal arises from a dispute over a construction contract between Clayton Pickens (“Pickens”), a general contractor, and John R. Underwood (“Underwood”) and his wife Suzanne Curtin (“the Underwoods,” collectively). Pickens sued Underwood initially in Chancery Court but later transferred to the Circuit Court for Blount County (“the Trial Court”) for allegedly failing to pay him under a contract to build the Underwoods’ home. Underwood filed counterclaims against Pickens alleging, among other things, fraud, cost overruns, violation of the Tennessee Consumer Protection Act, and entering into a construction contract in excess of the monetary limit on Pickens’ contractor’s license. This case was tried before a jury. The jury found the Underwoods breached the construction contract and awarded Pickens $147,340.25. The jury also found that Pickens breached the contract through certain errors in construction and awarded the Underwoods $10,740.00. The Trial Court entered its final judgment affirming the jury’s verdict and awards of damages. The Underwoods appeal, arguing in part that Pickens should have been limited to his actual documented expenses because he entered the construction contract in excess of his contractor’s license limit. We hold, inter alia, that under the law in effect at the time of the execution of the contract, Pickens was not limited in damages to his actual documented expenses. We affirm the judgment of the Trial Court.

Blount County Court of Appeals 06/12/18
Johnson Real Estate Limited Partnership v. Vacation Development Corp., et al.
E2017-01774-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Telford E. Forgety

This action involves a long-term ground lease in which the defendant lessee paid for and maintained an insurance policy on the property for its benefit. The defendant surrendered the premises after the motel facility constructed on the land was destroyed by a wildfire before the expiration of the lease. The plaintiff lessor filed suit, seeking an equitable lien on the policy and its proceeds, a constructive trust against the insurance rights and recovery, a claim on the policy as a third-party beneficiary, and injunctive relief. The court granted summary judgment in favor of the defendant. We affirm.

Sevier County Court of Appeals 06/12/18
Regions Mortgage, et al. v. Joseph Willie Brown, et al.
W2017-00605-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Jerry Stokes

This appeal arises from a marathon of litigation, as many as eleven separate civil actions, all of which pertain to the defendants’ former property in Eads, Tennessee that Regions Mortgage, Inc. (“Regions”) purchased at a foreclosure sale in 2013. See Brown v. AmSouth Bank, No. W2016-02596-COA-R3-CV, 2018 WL 1319169, at *1-2 (Tenn. Ct. App. Mar. 14, 2018). At issue here is the grant of a writ of possession to Regions by the General Sessions Court of Shelby County in a forcible entry and detainer action, which decision the defendants appealed to the circuit court. When the circuit court dismissed the appeal for lack of subject matter jurisdiction, the defendants appealed to this court. Due to profound deficiencies with the defendants’ brief, specifically the failure to comply with Rule 6 of the Rules of the Court of Appeals of Tennessee, we dismiss the appeal.

Shelby County Court of Appeals 06/11/18
Cornell Poe v. City of Jackson Mayor Jerry Gist, et al.
W2017-00465-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Kyle Atkins

A passenger on a Jackson Transit Authority bus was arrested as a result of an altercation with the driver; the arrest led to the passenger’s parole being revoked and his resulting incarceration. The passenger brought suit, asserting claims for slander and libel under the Tennessee Governmental Tort Liability Act and Tennessee Public Protection Act against the Transit Authority and certain of its employees, and the Mayor and various employees of the City of Jackson. The trial court granted summary judgment in favor of the defendants, and this appeal followed. Upon our review, we have determined that the complaint fails to allege causes of action under the Governmental Tort Liability Act and the Public Protection Act, and that the causes of action asserted against the individual defendants are barred by the statute of limitations. Accordingly, we affirm the judgment of the trial court dismissing the case.

Madison County Court of Appeals 06/11/18
Earl Vantrease, Jr. v. Tennessee Board of Parole, Et Al.
M2016-01384-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amanda Jane McClendon

This is an appeal from an order dismissing one of several defendants. Because the order does not dispose of the plaintiff’s claims against all of the defendants and because the trial court has not yet ruled on the plaintiff’s Tenn. R. Civ. P. 59 motion to alter or amend, we dismiss the appeal for lack of a final judgment.

Davidson County Court of Appeals 06/08/18
Susan Walton Ex Rel. James Walton v. Tullahoma HMA, LLC
M2017-01366-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Vanessa Jackson

This is a case of healthcare liability and wrongful death. After the decedent’s death at a Tullahoma hospital, his surviving spouse filed suit seeking damages for his injuries and death. The case was eventually tried before a jury, and a verdict was returned in favor of the Plaintiff. Although the jury determined that the total damages were $300,000, the trial court suggested an additur of over $1,000,000. An amended final judgment was subsequently entered after the trial court determined that the Defendant had accepted the additur under protest. Because we are of the opinion that the trial court’s additur destroyed the jury’s verdict, we reverse the trial court’s judgment and remand the case for a new trial.

Coffee County Court of Appeals 06/07/18
Gretelle Brashell Ingram v. Joey Evi Ingram
W2017-00640-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor James F. Butler

In this divorce case, the trial court awarded Wife alimony in futuro and partial attorney’s fees as alimony in solido. The trial court additionally awarded Wife the marital home despite the fact that Wife was unable to refinance the home to remove Husband from the mortgage. Discerning no error, we affirm the trial court’s judgment in all respects.

Madison County Court of Appeals 06/07/18
Harold R. Gunn v. First Baptist Church, et al.
W2017-02382-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Senior Judge William B. Acree

Appellant, a member of First Baptist Church of Humboldt, appeals the trial court’s grant of summary judgment in favor of Appellees, the church, its pastor, and chairman of the deacons. Appellant challenged the vote to change the name of the church to “The Church at Sugar Creek.” Finding that the ecclesiastical abstention doctrine acted as a jurisdictional bar, the trial court granted summary judgment. Discerning no error, we affirm and remand.

Gibson County Court of Appeals 06/07/18
Lorna Gibson v. Charles Bikas
E2018-00911-COA-T10B-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Pamela A. Fleenor

Appellant sought disqualification of the trial court judge pursuant to Tennessee Supreme Court Rule 10B. Finding no error, we affirm.

Hamilton County Court of Appeals 06/04/18
Ovalla Jobe v. Goodwill Industries Of Middle Tennessee, Inc., Et Al.
M2017-02299-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Kelvin D. Jones

This appeal involves a premises liability suit filed by a customer of a Goodwill store after the customer sat on an item of furniture that was for sale and it collapsed. The trial court granted summary judgment to Goodwill, finding no genuine issue of material fact and concluding that Goodwill did not create or have actual or constructive knowledge of any alleged defect. The plaintiff appeals. We affirm.     

Davidson County Court of Appeals 06/04/18
In Re Avery B.
W2016-02542-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge William A. Peeler

This appeal arises from a modification of a permanent parenting plan established in 2010 in which Mother was designated as the primary residential parent. In December of 2012, Father filed a petition to modify the parenting plan alleging that Mother’s mental health impeded her ability to properly care for their child. He also alleged that Mother alienated the child from Father due to numerous false allegations that Father abused the child, which resulted in temporary but substantial decreases in his parenting time. Although no evidence was produced indicating that Father abused the child, Mother continued to accuse Father of abuse and to take the child for repeated evaluations and physical exams. Following a three-day trial, the trial court designated Father as the primary residential parent, established a temporary parenting plan, and ordered Mother to attend counseling until the court was satisfied with her mental health so that it could issue a permanent parenting plan. Mother appealed that order; however, we dismissed the appeal for lack of subject matter jurisdiction because the order appealed from was not a final judgment. On remand, following an assessment of Mother’s compliance with the court-ordered intensive therapy, the trial court entered a final judgment that included a permanent parenting plan from which Mother appeals. Mother contends the trial court erred in holding, inter alia, that there was a substantial and material change in circumstances requiring a modification of the parties’ permanent parenting plan. She also contends the court erred in holding that it was in the child’s best interest to change the primary residential parent to Father due, in part, to the fact the court failed to consider factors added to Tenn. Code Ann. § 36-6-106 pursuant to the 2014 amendment that became law on July 1, 2014. Finding no error, we affirm.

Tipton County Court of Appeals 06/04/18