Court of Appeals Opinions

Format: 08/03/2021
Format: 08/03/2021
Angela Michelle Cela v. Sokol Cela
M2019-01861-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Kathryn Wall Olita

In this divorce case, the wife appeals the trial court’s calculation of her portion of the husband’s military retirement and valuation of her speech therapy practice, as well as the overall division of marital assets. As appellee, the husband raises a number of issues, all of which are without merit. We vacate the portion of the trial court’s judgment addressing the husband’s military retirement and remand for recalculation of the wife’s share in the same. We affirm the trial court’s judgment in all other respects. 

Montgomery County Court of Appeals 07/30/21
In Re Sophia S. Et Al.
E2020-01031-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Randy M. Kennedy

A mother appeals the termination of her parental rights to her two children. The juvenile court concluded that there was clear and convincing evidence of severe abuse by the mother and that termination was in the children’s best interests. On appeal, the mother challenges whether there was clear and convincing evidence to support the court’s best interest determinations. In weighing the statutory best-interest factors, she contends the trial court did not properly consider her completion of permanency plan requirements and nearly fifteen months of drug-free tests. The mother also complains that she was denied contact with her children by court order shortly after their removal and, despite her progress, was thwarted in her efforts to reestablish contact. We affirm.

Sullivan County Court of Appeals 07/30/21
J. Pemberton Guerry v. James Christopher Jenkins and Gail Jenkins
E2020-00709-COA-R3-CV
Authoring Judge: Judge Frank G. Clement Jr., P.J., M.S.
Trial Court Judge: Judge Kyle E. Hedrick

This appeal arises from an action for breach of a promissory note. After granting the plaintiff’s motion for partial summary judgment on his claim against one of the defendants, the court held an evidentiary hearing to determine damages. Following the hearing, the court entered a judgment for $1,628,074.27, which included interest and attorney’s fees. On appeal, the defendant contends that, in accordance with the terms of the promissory note, the plaintiff is only entitled to recover the principal sum of $14,194.43 plus interest. We have determined that the defendant failed to properly raise this issue in the trial court; therefore, it is waived. Accordingly, we affirm the trial court’s decision.

Hamilton County Court of Appeals 07/30/21
Nathaniel Hicks, Et Al. v. Thomas Chears, Et Al.
M2019-01428-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Amanda Jane McClendon

Property owners sued lessees for possession and back rent. Lessees counterclaimed, alleging anticipatory breach, fraud, unjust enrichment, promissory estoppel, and breach of the duty of good faith and fair dealing in conjunction with a purchase option. Property owners moved for summary judgment on their claim for possession, arguing that lessees never exercised their option to purchase. In response, lessees asserted anticipatory breach. The trial court granted partial summary judgment to property owners. After a bench trial, the court dismissed the remaining counterclaims. On appeal, lessees challenge both decisions. Discerning no reversible error, we affirm.
 

Davidson County Court of Appeals 07/29/21
Timothy O'Guin v. State of Tennessee
M2020-00732-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Commissioner James A. Halton

A patient died after a fall at a state-owned rehabilitation facility. The administrator of the deceased patient’s estate filed a monetary claim against the State of Tennessee for negligently creating or maintaining a dangerous condition on real property. The State moved for summary judgment arguing that the claimant lacked sufficient evidence of causation. The Claims Commission agreed and granted summary judgment to the State. Because the claimant lacked sufficient evidence that the State’s conduct more likely than not caused the patient’s fall, we affirm.

Court of Appeals 07/28/21
Doug Zukowski Ex Rel. Taylor Alexander Zukowski v. Hamilton County Department of Education
E2020-00939-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

This appeal arises from a school bullying lawsuit. Doug Zukowski and Aimee Zukowski filed suit in the Circuit Court for Hamilton County (“the Trial Court”) on behalf of their son Taylor Alexander Zukowski (“Alex,” who later joined the suit in his own right after turning 18) (“Plaintiffs,” collectively) against the Hamilton County Department of Education (“Defendant”). Plaintiffs alleged that Alex was bullied while a student at Chattanooga’s Center for Creative Arts (“CCA”), a public fine arts magnet school, and that Defendant breached its duty of care to protect Alex. Plaintiffs appeal, raising a number of issues. We find that the record does not contain the requisite clear and convincing evidence necessary to overturn the Trial Court’s credibility determinations. We also find, inter alia, that the evidence does not preponderate against the Trial Court’s factual finding that Defendant’s employees responded appropriately when Alex reported to them that he was bullied. We affirm the judgment of the Trial Court.

Hamilton County Court of Appeals 07/28/21
Arthur Jack Shipley v. Christa Elise Shipley
E2021-00670-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge John B. Bennett

Because the notice of appeal in this case was not timely filed this Court lacks jurisdiction to consider this appeal.

Hamilton County Court of Appeals 07/26/21
Michael Murphy v. Richard Sarta Et Al.
E2020-00445-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Alex E. Pearson

Following a judgment in their favor in a personal injury action, the defendants were granted an award of discretionary costs in the amount of $3,499.81. Appellant appeals, raising several arguments in opposition to the costs awarded. Because many of Appellant’s arguments were not properly raised in the trial court, and the trial court did not abuse its discretion on the remaining issues, we affirm.

Hamblen County Court of Appeals 07/26/21
Tywan Sykes v. James Berrong Et Al.
E2021-00726-COA-UNK-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge David Reed Duggan

Because the notice of appeal in this case was not timely filed this Court lacks jurisdiction to consider this appeal.

Blount County Court of Appeals 07/26/21
Joseph Riccardi v. Carl Little Construction Company, Inc Et Al.
E2020-00678-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Jean A. Stanley

Plaintiff Joseph Riccardi brought this action for negligent construction of his residence against Carl Little Construction Company (“Defendant”), builder of the residence, and the Bridgewater Condominiums Property Owners Association (“Bridgewater POA”). He alleged that Defendant negligently built the residence on non-compacted fill dirt, causing structural and cosmetic damages to the residence. Plaintiff alleged that Bridgewater POA was contractually responsible for repairs to the exterior of the residence. The trial court granted summary judgment to Defendant based on its finding that the statutes of limitation and repose had run. The court held that Bridgewater POA was liable for repairs to the porches and patios of the property, but not the foundation or the cracks in the interior. We vacate summary judgment against Defendant, finding that Plaintiff presented evidence sufficient to establish genuine issues of material fact regarding when Plaintiff’s cause of action accrued and whether Defendant fraudulently concealed the defects in the residence. We affirm the judgment against Bridgewater POA.

Washington County Court of Appeals 07/26/21
Ginger Lougene Hutsell Denton v. Steven Lee Denton
E2020-01105-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This appeal arises from a divorce. Acting pro se, the former husband fails to present an issue for this Court to review. Because his brief falls well short of the requirements of both the Tennessee Rules of Appellate Procedure and the rules of this Court, we dismiss the appeal.

Jefferson County Court of Appeals 07/26/21
Kelly Turner et al. v. WW Steeplechase, LLC. et al.
E2020-00579-COA-R3-CV
Authoring Judge: Judge Frank G. Clement Jr.
Trial Court Judge: Judge Kristi M. Davis

The issues on appeal arise from a personal injury action commenced by two tenants of an apartment complex against the owner of the complex and the property management company. The complaint alleged that one of the plaintiffs fell through an inadequately supported floor vent in the master bedroom of their apartment. The plaintiffs asserted that the management company should have discovered the defective condition while conducting maintenance and repairs on the apartment. The trial court summarily dismissed the complaint after finding the undisputed facts showed the defect was concealed and the management company had no duty to test the vent’s structural integrity. Prior to entry of a final judgment, the plaintiffs then filed an amended complaint based on negligence per se against only the management company. The plaintiffs asserted that a local building code established a minimum live load for apartment floors. The court dismissed the amended complaint after finding the building code did not apply. We affirm.

Knox County Court of Appeals 07/23/21
State of Tennessee v. The City of Greeneville, TN et al.
E2020-01106-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Douglas T. Jenkins

A police officer appealed his termination by the Town of Greeneville to the Greeneville Civil Service Board, which upheld it. Appellant then appealed to the trial court, which also upheld the termination. Because we conclude that the record lacks information necessary to conduct appellate review, we vacate the trial court’s judgment and remand the case to the Board for further proceedings.

Greene County Court of Appeals 07/23/21
In Re Jayda J. Et Al.
M2020-01309-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Amy V. Hollars

In this parental rights termination case, the trial court ruled that DCS proved five grounds for terminating Mother’s parental rights to her two children: mental incompetence, persistence of conditions, abandonment by failure to support, abandonment by failure to provide a suitable home, and failure to manifest a willingness and ability to assume custody of the children. The trial court also ruled that termination of Mother’s rights was in the children’s best interest. We reverse the trial court’s rulings as to the grounds of mental incompetence and abandonment by failure to support. We also reverse the trial court’s ruling that termination of Mother’s rights is in the children’s best interests.

Putnam County Court of Appeals 07/21/21
In Re Chance B. Et Al.
M2020-01555-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This appeal involves the termination of a mother’s parental rights. The Trial Court found the mother to be indigent and appointed counsel to represent her. The Trial Court conducted a trial and entered an order finding that two statutory grounds of abandonment existed for termination of the mother’s parental rights and that termination was in the children’s best interest. There is no transcript or statement of the evidence included in the record to permit appellate review of the mother’s issues on appeal concerning the termination of her parental rights. As such, we vacate the Trial Court’s judgment terminating the mother’s parental rights to the children and remand to the Trial Court for further proceedings consistent with this Opinion.    

Montgomery County Court of Appeals 07/21/21
The Estate of Stella Ruth Hughes, et al. vs. C. Ray Adams, et al.
E2020-01383-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Douglas T. Jenkins

This case involves a motion by the defendants to enforce an alleged “walkaway settlement” agreement. The defendants argued that the plaintiffs—through their former attorney— agreed to a binding settlement agreement. After an evidentiary hearing on the motion, the trial court granted the motion and dismissed the case. The trial court’s decision is affirmed in part, reversed in part, vacated in part, and remanded.

Greene County Court of Appeals 07/20/21
State of Tennessee v. Delinquent Taxpayers 2015 (Manfred Steinhagen)
W2020-00981-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Walter L. Evans

This appeal arises from the court-ordered sale of real property to satisfy unpaid property tax owned by a living trust. After the property was sold, the trustee, acting pro se, moved to set aside the sale, asserting a violation of the trust’s due-process rights. The trial court dismissed the motion because the trustee was not a licensed attorney and was thus unqualified to represent the trust in a legal proceeding. For the reasons explained below, we have determined that the trial court correctly dismissed the motion because the
pro se trustee is not licensed to practice law in Tennessee. We also dismiss this appeal on the same ground because the trustee signed the notice of appeal on behalf of the trust, and a non-attorney may not represent a trust in our Tennessee courts. See ELM Children’s Educational Trust v. Wells Fargo Bank, N.A., 468 S.W.3d 529, 530 (Tenn. Ct. App. 2014); see also Tenn. R. Civ. P. 11 and Old Hickory Eng’g & Machine Co, Inc. v. Henry, 937 S.W.2d 782, 786 (Tenn. 1996). Accordingly, this appeal is dismissed.

Shelby County Court of Appeals 07/20/21
Chimneyhill Condominium Association v. King Chow
W2020-00873-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

The defendant appealed to circuit court following a judgment against it in general sessions court. The plaintiff filed no notice of appeal, but amended its complaint to allege an additional claim. The plaintiff later filed a motion for partial summary judgment seeking an award of attorney’s fees. Eventually, the defendant dismissed its appeal and asked that the general sessions court judgment be affirmed. The trial court affirmed the previous judgment from the general sessions court, but also granted the plaintiff an additional judgment for attorney’s fees and discretionary costs. The defendant appeals the award of attorney’s fees and discretionary costs. We reverse the trial court’s decision to award the plaintiff attorney’s fees, but affirm the award of discretionary costs.

Shelby County Court of Appeals 07/20/21
Zimmer US, Inc. v. David Gerregano
M2020-00171-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Patricia Head Moskal

This is a taxpayer action challenging the Tennessee Department of Revenue’s decision to deny its refund claim. The taxpayer filed a refund claim in December 2015, after which the parties entered into three consecutive extension agreements under Tenn. Code Ann. §§ 67-1-1501 and -1802. Shortly before the last extension expired, the taxpayer commenced this action to obtain its refund. The Department responded by filing a motion to dismiss the complaint on the basis the trial court lacked subject matter jurisdiction because the one-year statute of limitations to commence the refund action was not extended. Specifically, the Department insisted the extension agreements only extended the limitation periods for it to assess taxes and refund overpayments. For its part, the taxpayer insisted the parties agreed to extend the deadline for filing suit and that its action was timely commenced. The trial court agreed with the Department and dismissed the complaint. We affirm the trial court’s decision because the plain language of each extension agreement references only the assessment and refund of taxes.

Davidson County Court of Appeals 07/19/21
George Gary Ingram v. Dr. Michael Gallagher et al.
E2020-01222-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

This appeal arises from a healthcare liability action wherein the plaintiff initially sued the doctor, the hospital, and two other defendants. The plaintiff voluntarily dismissed the action without prejudice against all defendants except for the doctor. The doctor subsequently filed an answer to the complaint, stating that the action should be dismissed under the Governmental Tort Liability Act because the hospital, a governmental hospital entity and the doctor’s employer, was not a party to the action. Shortly thereafter, the plaintiff filed a “Motion to Alter or Amend,” seeking to set aside the Trial Court’s order of dismissal in order to withdraw his voluntary dismissal of the hospital as a party. The Trial Court denied the plaintiff’s motion to alter or amend, determining that the voluntary dismissal order was a final order and that the plaintiff knew about the doctor’s employment with the hospital prior to the voluntary dismissal. We determine that the Trial Court erred by treating the plaintiff’s motion as a Tennessee Rule of Civil Procedure 60 motion, instead of a motion to revise pursuant to Rule 54.02, and further hold that the Trial Court erred by denying the plaintiff’s motion to revise the non-final order of voluntary dismissal.

Hamilton County Court of Appeals 07/19/21
Darlene Christmas Murray (Godsey) v. Louis Wade Godsey
E2020-00442-COA-R3-CV
Authoring Judge: Judge Kristi Davis
Trial Court Judge: Judge Dennis W. Humphrey

This appeal arises from a post-divorce contempt action. Darlene Christmas Murray (“Wife”) filed a petition for contempt in the General Sessions Court for Roane County (the “trial court”) in 2015, alleging that her former husband, Louis Wade Godsey (“Husband”), should be held in contempt for failing to pay Wife retirement benefits to which she was entitled under their final decree of divorce. The trial court found Husband in contempt and awarded Wife, inter alia, $25,000.00 in attorney’s fees as punishment. Because the evidence in the record preponderates against the trial court’s finding that Husband actually and willfully violated a court order, we reverse.

Roane County Court of Appeals 07/19/21
Rebecca M. Pomeroy v. Michael L. McGinnis
E2020-00960-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Kyle E. Hedrick

In this action for conversion, the plaintiff alleged that the defendant, who is her brother, unilaterally surrendered an annuity fund that had been titled jointly in their names, received a check for the proceeds, endorsed her signature without her permission, and deposited the proceeds in a bank account to which the plaintiff had no access. Upon the defendant’s motion for summary judgment, in which he asserted that the plaintiff had been an owner of the annuity in name only and that the three-year statute of limitations had expired well before she filed the complaint, the trial court found that the plaintiff was a titled co-owner of the annuity and that genuine issues of material fact existed as to whether the statute of limitations had been tolled by the defendant’s fraudulent concealment of the cause of action from the plaintiff. Following a bench trial, the trial court found that the defendant had fraudulently concealed the cause of action from the plaintiff and that he had committed conversion of the plaintiff’s one-half interest in the check representing the annuity proceeds. The trial court awarded to the plaintiff a judgment in the amount of one-half of the annuity proceeds plus pre-judgment interest calculated from the date of the check’s endorsement. The defendant has appealed. Having discerned a minor mathematical error in the judgment, we modify the amount to reduce it by $90.00, affirming the trial court’s award to the plaintiff in the amount of $59,674.22 rather than $59,764.22. We affirm the trial court’s judgment in all other respects.

Hamilton County Court of Appeals 07/16/21
Sullivan County et al. v. Purdue Pharma, L.P. et al.
E2021-00479-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor E.G. Moody

Having determined that the amount of attorney’s fees awarded and possible further sanctions remain pending in this action, we further determine that the order appealed from does not constitute a final appealable judgment. Therefore, this Court lacks subject matter jurisdiction to consider this appeal.

Sullivan County Court of Appeals 07/15/21
Braylon W., et al. v. Armie Walker, M.D., et al.
W2020-00692-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Kyle C. Atkins

This appeal stems from a dismissal pursuant to Tennessee’s Governmental Tort Liability Act. Suit was filed against Appellant’s treating physician, among other defendants, for health care liability involving Appellant’s birth. The trial court ultimately granted summary judgment in favor of the physician, finding that, because the physician was an employee of a governmental entity at the time of the incident, Appellant was required by statute to name the physician’s employing governmental entity as a party defendant. Because Appellant failed to do so, the lawsuit against the treating physician could not proceed. Appellant now appeals the trial court’s grant of summary judgment. Discerning no error, we affirm the trial court’s dismissal.

Madison County Court of Appeals 07/15/21
Penny Lawson et al. v. Hawkins County, TN et al.
E2020-01529-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Alex Pearson

This appeal arises from litigation concerning a fatal road accident. Steven W. Lawson (“Decedent”), by and through his wife, Penny Lawson, and on behalf of Corey Lawson, Decedent’s child (“Plaintiffs,” collectively), sued the Hawkins County Emergency Communications District Board (“ECD-911”), Hawkins County, Tennessee and Hawkins County Emergency Management Agency (“the EMA”) (“Defendants,” collectively) in the Circuit Court for Hawkins County (“the Trial Court”) alleging negligence, gross negligence, and recklessness in Defendants’ response to a road washout that led to Decedent’s death. Plaintiffs specifically alleged nepotism in Defendants’ hiring practices and a failure to train. Defendants filed motions for judgment on the pleadings, which the Trial Court granted partly on grounds that claims of recklessness could not proceed against the Defendant entities under the Governmental Tort Liability Act (“the GTLA”). Plaintiffs appeal. We hold that Plaintiffs could, in fact, proceed with their claims of recklessness and gross negligence under the GTLA, and the facts pled by Plaintiffs were sufficient to state claims based upon recklessness and gross negligence. We hold further that, based on the facts alleged at this stage, the third special duty exception to the public duty doctrine applies so as to remove Defendants’ immunity. We reverse the judgment of the Trial Court.

Hawkins County Court of Appeals 07/14/21