Court of Appeals Opinions

Format: 11/09/2018
Format: 11/09/2018
In Re: Ruger N.
E2017-01379-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Lawrence Howard Puckett

This action involves the termination of a father’s parental rights to his minor child. Following a bench trial, the court found that clear and convincing evidence existed to support the statutory grounds of abandonment for failure to support and to visit. The court further found that termination was in the best interest of the child. We affirm

Polk County Court of Appeals 11/09/18
Riverland, LLC v. City of Jackson, Tennessee
W2017-01464-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kyle Atkins

Appellant sued the City of Jackson, Tennessee, after Appellant’s commercial building was damaged by flooding. Appellant stated claims, under the Governmental Tort Liability Act, for temporary and permanent nuisance, trespass, negligence, and gross negligence. Appellant also sought relief for inverse condemnation and equitable relief under a theory of nuisance. On a grant of summary judgment, the trial court dismissed the GTLA claims, finding that the City’s immunity to suit was not removed. The trial court also granted summary judgment to the City on the inverse condemnation and nuisance claims. Discerning no error, we affirm and remand.

Madison County Court of Appeals 11/09/18
Sonya Brooks v. Ron Woody, Et Al.
E2018-00127-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Michael S. Pemberton

In this wrongful dismissal case, Sonya Brooks (“Brooks”) sued her former employer Roane County and county officials Ron Woody and Gloria Wright (“Defendants”). In a March 9, 2017 order, the Circuit Court for Roane County (“the Trial Court”) dismissed Brooks’ lawsuit against Defendants with prejudice. The Trial Court reserved taxation of costs for a later date. Brooks filed a notice of appeal on January 10, 2018. Defendants argue that Brooks’ appeal was filed untimely. Brooks contends that the March 9, 2017 order was not final and appealable because it reserved the issue of costs. We hold that, in keeping with longstanding Tennessee case law, taxation of costs is incidental and not a factor in determining whether a judgment is final. As Brooks’ notice of appeal was not filed timely, we are constrained to dismiss her appeal for lack of jurisdiction.

Roane County Court of Appeals 11/08/18
Pamela Annette Dotson v. Willie Jefferson Dotson
M2017-00807-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joe H. Thompson

This post-divorce dispute concerns the enforcement of a retirement benefits provision in a marital dissolution agreement. After the defendant retired, he refused to pay any portion of his retirement benefits to his ex-wife based on his interpretation of their marital dissolution agreement. His ex-wife disagreed with his interpretation and petitioned the trial court to enforce their agreement. Both parties moved for summary judgment. The trial court denied the defendant’s motion and granted his ex-wife’s cross-motion. Upon review, we affirm the trial court in all respects and award the ex-wife her attorney’s fees incurred on appeal.

Sumner County Court of Appeals 11/06/18
Melba P. Mershon, Surviving Spouse Of Rondell M. Mershon Ex Rel. Hyland M., Et Al. v. HPT TA Properties Trust Et Al.
M2018-00315-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Deanna B. Johnson

A motor vehicle accident on the roadway abutting a truck stop resulted in the death of the plaintiff’s husband. The driver of the vehicle turning left into the truck stop was using the entrance meant for semi-trailer trucks and had a limited view of oncoming traffic due to a hill that crested a short distance ahead. The plaintiff filed a negligence claim against the truck stop owners and operators, asserting they created a hazardous condition by failing to place visible signage on their property directing passenger vehicles to the appropriate entrance. The defendants moved to dismiss the complaint, contending they owed no duty to the traveling public because the collision occurred on a municipal road, not on their property. The trial court granted the motion to dismiss, and the plaintiff appealed. We reverse the trial court’s judgment, holding that a balancing test is required to determine whether the defendants owed a duty to the plaintiff’s husband and that dismissing the complaint is premature at this stage of the proceedings.

Williamson County Court of Appeals 11/05/18
Robbie Hunter v. Kroger Limited Partnership I, et al.
W2017-01789-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

Plaintiff appeals the trial court’s order granting summary judgment to the defendant on a premises liability claim. Because the plaintiff offered no evidence to support an essential element of her premises liability claim at the summary judgment stage, we affirm.

Shelby County Court of Appeals 11/05/18
Kerry Douglas Friesen v. Beverley Joy Friesen - concurring
E2017-00775-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

I concur in the affirmance of the Circuit Court for Hamilton County’s denial of the petition of Dr. Kerry Douglas Friesen for modification of his alimony obligation and the award of attorney’s fees to Ms. Beverley Joy Friesen. I write separately to address the authority under which the trial court awarded attorney’s fees.

Hamilton County Court of Appeals 11/05/18
Kerry Douglas Friesen v. Beverley Joy Friesen
E2017-00775-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Jeffrey Hollingsworth

Ex-husband filed a petition for modification of alimony of $1,000 each month to ex-wife, claiming a material and substantial change in circumstances. Ex-wife filed a counter petition to increase the alimony. The trial court found that neither party met their burden of proof and awarded attorney’s fees to the ex-wife for the expense of defending exhusband’s petition. Ex-husband subsequently filed two motions to alter or amend. The trial court denied both of these motions and awarded additional attorney’s fees to ex-wife for defending the motions. Ex-husband timely appeals. We affirm.

Hamilton County Court of Appeals 11/05/18
Bradley James Cox v. Laura Nicole Lucas
E2017-02264-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Gregory S. McMillan

This opinion is being filed contemporaneously with our opinion in Minyard v. Lucas, No. E2017-02261-COA-R3-CV.1 Each case involves a post-divorce custody dispute between Laura Nicole Lucas (mother) and one of her two ex-husbands. In the present case, Bradley James Cox (father) filed a petition in the trial court for ex parte emergency relief and modification of the permanent parenting plan. Nearly two years later, mother filed a motion to dismiss all orders resulting from father’s petition as void for lack of subject matter jurisdiction. Mother argued that father’s petition included allegations of dependency and neglect, which implicated the exclusive original jurisdiction of the juvenile court. After a hearing on the matter, the trial court denied mother’s motion. Mother appeals. We reverse and remand for further proceedings.

Knox County Court of Appeals 11/02/18
Lewis Alvin Minyard v. Laura Nicole Lucas
E2017-02261-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Gregory S. McMillan

This opinion is being filed contemporaneously with our opinion in Cox v. Lucas, No. E2017-02264-COA-R3-CV. Each case involves a custody dispute between Laura Nicole Lucas (mother) and one of her two ex-husbands. In the present case, Lewis Alvin Minyard (father) filed a petition in the trial court for ex parte emergency relief and modification of the permanent parenting plan. Over two and a half years later, mother filed a motion to dismiss all orders resulting from father’s petition as void for lack of subject matter jurisdiction. Mother argued that father’s petition included allegations of dependency and neglect, which implicated the exclusive original jurisdiction of the juvenile court. After a hearing on the matter, the trial court denied mother’s motion. Mother appeals. We reverse and remand for further proceedings.

Knox County Court of Appeals 11/02/18
In Re Billy C.
M2018-00463-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor James G. Martin, III

A trial court terminated a father’s parental rights on the grounds of abandonment by willful failure to support, abandonment by willful failure to visit, and persistence of conditions. The father appealed, arguing that the evidence did not support the grounds for termination by clear and convincing evidence and that it was not in the child’s best interest for his rights to be terminated. We reverse the trial court’s judgment terminating the father’s rights based on persistence of conditions because the child was not removed from the father’s home by an order of the court, as Tenn. Code Ann. § 36-1-113(g)(3) requires. We affirm the trial court’s judgment in all other respects.

Hickman County Court of Appeals 11/01/18
Red Ink Camel Company v. Myron Dowell, Et Al.
M2017-02260-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kelvin D. Jones

Plaintiff real estate developer appeals the trial court’s decision granting summary judgment to the defendants on claims of tortious interference with a contract, inducement of breach of contract, and promissory fraud. Because the plaintiff failed to construct any argument responsive to the stated basis for the trial court’s grant of summary judgment, we affirm. 

Davidson County Court of Appeals 11/01/18
Alicia Lei Alumbaugh v. Wackenhut Corporation
M2016-01530-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Thomas W. Brothers

After the plaintiff’s father was killed by an armed security guard, she filed a wrongful death action against the security guard’s employer. The complaint alleged both vicarious and direct liability and sought an award of compensatory and punitive damages. The employer maintained that the guard acted in self-defense. After the first trial, the jury rendered a verdict in favor of the plaintiff. But the trial court ordered a new trial based on errors in the calculation of damages. A second jury verdict apportioned the greater proportion of fault to the decedent, resulting in a defense judgment. On appeal, the plaintiff contends that the trial court made numerous errors in the conduct of the second trial. After a thorough review, we conclude that the trial court did not commit reversible error. So we affirm.  

Davidson County Court of Appeals 10/31/18
Nancy Maureen Jarman v. Franklin N. Jarman - Concurring in Part and Dissenting in Part
M2017-01730-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Philip E. Smith

I concur in the conclusion that the Circuit Court for Davidson County correctly denied the petition of Ms. Nancy Maureen Jarman to increase her alimony.  But I respectfully dissent from the affirmance of the award of attorney’s fees to Ms. Jarman.  I share the view of Franklin N. Jarman that the trial court lacked the authority to award attorney’s fees in this instance.

Davidson County Court of Appeals 10/31/18
Nancy Maureen Jarman v. Franklin N. Jarman
M2017-01730-COA-R3-CV
Authoring Judge: Presiding Frank G. Clement
Trial Court Judge: Judge Philip E. Smith

An inmate at the South Central Correctional Facility in Clifton, Tennessee, filed this action to challenge the confiscation and destruction of his property and the decision of the prison grievance board concerning said property. The respondents denied the allegations. The trial court dismissed the petition as to all respondents. We affirm.

Davidson County Court of Appeals 10/31/18
In Re Morgan K.
M2018-00040-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Sammie E. Benningfield, Jr.

Father appeals from the trial court’s order terminating his parental rights. Discerning no error, we affirm. 

White County Court of Appeals 10/31/18
Jarvis Q. Williams v. Cherry Lindamood, Warden, Et Al.
M2017-02407-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Robert L. Jones

An inmate at the South Central Correctional Facility in Clifton, Tennessee, filed this action to challenge the confiscation and destruction of his property and the decision of the prison grievance board concerning said property. The respondents denied the allegations. The trial court dismissed the petition as to all respondents. We affirm.

Wayne County Court of Appeals 10/31/18
Douglas Benjamin Gregg v. Estate of Jerry Dean Cupit, Et Al.
M2018-00379-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor William E. Young

This appeal involves a contract between an aspiring country music artist and a record company owner for promotion of the artist’s songs. After the record company owner died, the artist demanded an accounting from the owner’s widow and filed this lawsuit alleging that the record company and its owner breached the promotion agreement executed by the parties. The trial court found that the record company owner breached the contract by failing “to adequately promote” the artist’s singles and awarded the artist a judgment for $223,069.89. We reverse and remand for further proceedings.

Davidson County Court of Appeals 10/31/18
St. Paul Community Limited Partnership v. St. Paul Community Church v. St. Paul Community Limited Partnership; Et Al.
M2017-01245-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Claudia Bonnyman

Declaratory judgment action in which lessee of real property on which it had constructed a retirement facility sought a declaration (1) of its right pursuant to the lease agreement to obtain a mortgage loan insured by the United States Department of Housing and Urban Development to finance repairs and improvements to the facility and (2) absent an express right, a declaration that what it asserted was a “settlement agreement” with the lessor gave it that right. After considering the parties’ motions for summary judgment, the trial court granted the lessor’s motion. Lessee appeals; we affirm the judgment.

Davidson County Court of Appeals 10/31/18
Jason Price v. Brandi Price Carter
W2018-00229-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Tony Childress

This case involves a petition to modify a parenting plan to change the primary residential parent. The father sought to be designated as the primary residential parent, citing to the children’s excessive absenteeism from school while in the mother’s care. The trial court agreed and found that, while the children were doing well in school, they could be doing better and would be less stressed without the problem of their excessive absenteeism. We reverse, finding that the mother had remedied the children’s excessive absenteeism from school prior to trial and that the prior absenteeism does not rise to the level of a material change in circumstance warranting a modification of the parenting plan so as to change the designation of the primary residential parent from mother to father.

Dyer County Court of Appeals 10/31/18
Jacob Davis v. Tennessee Department of Correction , Et al.
M2017-02301-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Claudia Bonnyman

Having pursued relief under the Uniform Administrative Procedures Act, Jacob Davis filed a petition for a declaratory order with the Tennessee Department of Correction (“TDOC” or “the Department”) to challenge the Department’s interpretation of the statutes regarding release after a sentence of life, and the constitutionality of Tenn. Code Ann. § 40-35-501(i). Upon receiving an unsatisfactory response, Davis then filed a declaratory judgment action in the Davidson County Chancery Court against the TDOC and the Tennessee Attorney General (collectively, “the State”) about the calculation of his sentence, including his eligibility for release and the constitutionality of Tenn. Code Ann. § 40-35-501. The chancery court ruled against him and he appealed. The Court of Appeals finds, based on rules of statutory interpretation, Vaughn v. State, 202 S.W.3d 106 (Tenn. 2006), and a number of cases from the Court of Criminal Appeals, that Tenn. Code Ann. § 40-35-501(i) establishes the legal release date for someone sentenced to life. The court also finds that the statute is constitutional. The chancery court is affirmed.

Davidson County Court of Appeals 10/30/18
Cindy Brumfield Et Al. v. City of Murfreesboro, Et Al.
M2016-01569-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Mitchell Keith Siskin

Homeowners filed a declaratory judgment action related to the operation of a group home in their neighborhood. Among other things, homeowners claimed that the use of the property for a group home violated the local zoning ordinance. On motions for summary judgment, the court concluded that the operation of the group home did not violate the zoning ordinance because the group home’s residents constituted a “family” as defined in the ordinance. The court further concluded that the use was protected under the Fair Housing Act, 42 U.S.C. §§ 3601-3619 (Supp. 2017). We affirm the grant of summary judgment.

Rutherford County Court of Appeals 10/30/18
Christine Song Et Al. v Jane C. Chung Et Al.
E2018-00114-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Telford E. Forgerty, Jr.

This case involves a claim of unjust enrichment following the execution and partial performance of a contract for the sale of a laundry and dry cleaning business. On December 21, 2012, the parties executed a contract, selling the business in exchange for $100,000.00. The buyers tendered $50,000.00 at the time of the contract’s execution and simultaneously tendered a promissory note to the seller for the remaining $50,000.00 with a pre-arranged payment plan. The contract contained a provision stating that it was conditioned on the buyers’ ability to obtain a satisfactory commercial lease from the owner of the building where the business was located. The buyers took possession of the business and began making payments pursuant to the promissory note. However, the buyers were unable to enter into a written or long-term lease with the building owner. The buyers ceased making payments on the promissory note after nine months. In November 2013, the buyers began contacting the seller, requesting a return of the down payment and money paid on the promissory note in exchange for the business. In June 2014, the buyers filed a complaint seeking, inter alia, a declaration that the contract of sale was void due to an unsatisfied condition. The seller filed an answer and countercomplaint requesting enforcement of the contract and promissory note, including the enforcement of a vendor’s lien held on the business equipment. On December 19, 2017, the trial court entered an order dismissing the buyers’ complaint and granting the seller’s requested relief pursuant to the contract and promissory note. The buyers have appealed. Discerning no reversible error, we affirm.

Blount County Court of Appeals 10/30/18
Robin Lynn Bolt v. Michael David Bolt
E2017-02357-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge J. Michael Sharp

This appeal arose from a divorce action filed by the wife. Prior to the onset of the litigation, the parties had been married for eighteen years with one minor child born during the marriage. On November 2, 2017, the trial court granted the divorce; divided the marital property according to the wife’s proposed property distribution; awarded to the wife alimony in futuro in the amount of $1,100 per month; awarded to the wife half of her attorney’s fees as alimony in solido; and adopted the husband’s proposed permanent parenting plan. Although the husband’s permanent parenting plan contained a child support calculation based on monthly income estimates, the court ordered the child support payments to be calculated using the average of the parties’ respective incomes from the previous three years. The husband has appealed. Because it is unclear whether the trial court classified the real property upon which the marital home is located as marital property or the wife’s separate property prior to awarding her its value and because we determine that the order appealed from contains an internal inconsistency with respect to the amount of child support awarded, we vacate the trial court’s distribution of marital property and its awards of alimony and child support. We remand for the trial court to clarify its property classification and resolve the inconsistency concerning child support prior to rendering judgment regarding an award of alimony. The trial court’s judgment granting the divorce is otherwise affirmed.

Monroe County Court of Appeals 10/30/18
Courtney Partin v. Tennessee Department of Correction
W2018-00933-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Tony Childress

Following adverse disciplinary proceedings against him while in prison, Appellant filed a petition for common law writ of certiorari in Chancery Court. The Chancery Court later dismissed the case upon determining that the petition for certiorari was not timely filed. Because Appellant was released from prison during the pendency of this appeal, we vacate the trial court’s order and remand the case for the entry of an order dismissing the petition due to mootness.

Lake County Court of Appeals 10/30/18