Court of Appeals Opinions

Format: 01/15/2019
Format: 01/15/2019
Ken Smith Auto Parts v. Michael F. Thomas
E2018-00928-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

This appeal concerns whether a circuit court has jurisdiction to consider a post-trial motion once it dismisses an appeal by a defendant from general sessions court for failure to appear. Ken Smith Auto Parts (“Plaintiff”) brought an action against Michael F. Thomas (“Defendant”) in the Hamilton County General Sessions Court (“the General Sessions Court”) and prevailed. Defendant appealed to the Circuit Court for Hamilton County (“the Circuit Court”). Defendant missed trial. The Circuit Court entered an order dismissing his appeal and remanding the case to the General Sessions Court for execution of judgment. Defendant filed a motion pursuant to Tenn. R. Civ. P. 59 and 60 seeking relief on the basis that he missed trial because of a traffic jam. The Circuit Court granted Defendant’s motion and vacated the order of dismissal. However, the Circuit Court later concluded that it lost jurisdiction when it dismissed Defendant’s appeal and that its subsequent order was null. Defendant appeals to this Court. We hold that the Circuit Court’s order of dismissal was subject to post-trial motion via the Tennessee Rules of Civil Procedure, and the Circuit Court retained jurisdiction to consider it. We hold further that the Circuit Court properly exercised its discretion to grant Defendant’s motion. We affirm, in part, and reverse, in part, the judgment of the Circuit Court, and remand for further proceedings.

Hamilton County Court of Appeals 01/15/19
Amir Esfandyari v. Tiny's Construction, LLC
M2018-00395-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal follows a jury trial in which the plaintiff was awarded a judgment of $9,950 for property damage caused by a construction company while demolishing a neighboring structure. Plaintiff appeals taking issue with, inter alia, the jury’s finding that he was comparatively at fault, the amount of the award, and opposing counsel’s closing argument. Because the plaintiff failed to file a motion for a new trial in the trial court, the plaintiff has waived any issue predicated upon error in “the admission or exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case[.]” Tenn. R. App. P. 3(e). Moreover, because the plaintiff failed to provide this court with a transcript of the evidence or a proper statement of the evidence relevant to any issue presented for review, this court is precluded from considering the issues. See State v. Ballard, 855 S.W.2d 557, 561 (Tenn. 1993). Accordingly, the judgment of the trial court is affirmed.  

Davidson County Court of Appeals 01/14/19
In Re: Jayla H.
E2018-00735-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Robert D. Philyaw

Tabatha H. (“Mother”) and James M. (“Father”) appeal the April 5, 2018 order of the Juvenile Court for Bradley County (“the Juvenile Court”) terminating their parental rights to the minor child, Jayla H. (“the Child”). We find and hold that the Juvenile Court did not err in finding that there was clear and convincing evidence of grounds to terminate Mother’s parental rights for abandonment by willful failure to visit pursuant to Tenn. Code Ann. § 36-1-113(g)(1), and that there was clear and convincing evidence that it was in the Child’s best interest for Mother’s parental rights to be terminated. We further find and hold that the Juvenile Court did not err in finding the evidence to be clear and convincing as to grounds to terminate Father’s parental rights for failure to establish paternity pursuant to Tenn. Code Ann. § 36-1-113(g)(9), and clear and convincing that it was in the Child’s best interest for Father’s parental rights to be terminated. We, therefore, affirm.

Bradley County Court of Appeals 01/14/19
Fraternal Order Of Police Et Al. v. Metropolitan Government Of Nashville And Davidson County, Tennessee, Et Al.
M2018-01717-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kelvin D. Jones

The Election Commission of the Metropolitan Government of Nashville and Davidson County, Tennessee used the August 4, 2016 election as the proper election for determining the appropriate number of signatures needed on the petition to hold a referendum on whether to create a police oversight board. Certain individuals and the Fraternal Order of Police (“FOP”) disagreed and sought a writ of certiorari. The trial court agreed with the election commission and affirmed its action. The individuals and the FOP appealed. We affirm.

Davidson County Court of Appeals 01/11/19
Gregory Webster Et Al. Ex Rel Shakia Webster v. Metropolitan Government Of Nashville And Davidson County, Tennessee, Et Al.
M2018-00106-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kelvin D Jones

The parents of a kindergartener filed suit against a metropolitan government for negligence after their child injured her arm at school. The trial court granted the metropolitan government’s motion for summary judgment based upon its finding that the plaintiffs failed to demonstrate that the metropolitan government breached a duty of care owed to the plaintiffs or that any action or inaction by a metropolitan government employee was the cause in fact or proximate cause of the child’s injuries. We affirm.

Davidson County Court of Appeals 01/11/19
Joy Littleton Et Al. v. TIS Insurance Services, Inc.
E2018-00477-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Deborah C. Stevens

In this professional negligence case against an insurance agent, Appellants appeal from the trial court’s order excluding their expert’s opinion on the applicable standard of care. We affirm in part, reverse in part, and vacate in part.

Knox County Court of Appeals 01/09/19
In Re Gabriella H., Et Al.
M2018-00723-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Tim Barnes

This action involves the termination of a mother’s parental rights to her minor children. Following a bench trial, the court found that clear and convincing evidence existed to support the statutory grounds of abandonment by an incarcerated parent and for failure to provide a suitable home, substantial noncompliance with the permanency plans, and the persistence of conditions which led to removal. The court further found that termination was in the best interest of the children. We affirm. 

Montgomery County Court of Appeals 01/08/19
Anna Karpovich v. Gregory Brannick
W2017-01796-COA-R3-JV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Special Judge Harold W. Horne

This appeal arises from a modification of child support. Gregory Brannick (“Father”) and Anna Karpovich (“Mother”) divorced in 2003. Father was ordered to pay $560 per month in child support for the parties’ minor son (“the Child”). In 2016, the State of Tennessee ex rel. Mother filed a petition in the Juvenile Court for Shelby County (“the Juvenile Court”) to establish arrears and/or to modify child support. Following a hearing, the Juvenile Court entered an order increasing Father’s child support obligation to $1,464.17 per month. Father appeals, arguing among other things that the Juvenile Court failed to consider his actual income for purposes of modifying his child support obligation. Discerning no reversible error, we affirm.

Shelby County Court of Appeals 01/08/19
In Re Johnathan M. Et. Al.
M2018-00509-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Clara W. Byrd

Mother appeals the termination of her parental rights. The trial court found the petitioners proved two grounds for termination, “abandonment by an incarcerated parent and exhibition of wanton disregard for the welfare of the children, prior to and during incarceration, pursuant to Tenn. Code Ann. § 36-1-102.” We conclude the record contains insufficient evidence to establish that Mother failed to visit or support the children for four consecutive months immediately preceding her incarceration. However, we affirm the trial court’s determination that Mother engaged in conduct prior to incarceration that exhibited a wanton disregard for the children’s welfare. Nonetheless, we have determined that the petitioners failed to prove by clear and convincing evidence that termination of Mother’s parental rights is in the children’s best interests. Accordingly, we vacate the judgment of the trial court to terminate Mother’s parental rights.

Macon County Court of Appeals 01/08/19
Vicki L. Mobley, et al. v. State of Arkansas, et al.
W2017-02356-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Felicia Corbin Johnson

This appeal involves an Arkansas plaintiff who was involved in an auto accident on a bridge between Arkansas and Tennessee with another vehicle operated by an employee of the State of Arkansas. The Arkansas plaintiff and her husband filed this personal injury suit in the circuit court of Shelby County, Tennessee, naming as defendants the State of Arkansas, the Arkansas State Highway and Transportation Department, and the Arkansas state employee who was operating the other vehicle. The defendants moved to dismiss on numerous grounds, including sovereign immunity and the discretionary principle of comity. The Tennessee Attorney General filed an amicus brief on behalf of the Tennessee Department of Transportation asking the trial court to extend comity to the Arkansas defendants and dismiss the action against them. After two hearings, the trial court granted the defendants’ motion to dismiss on the basis of comity. Discerning no error, we affirm the decision of the circuit court.

Shelby County Court of Appeals 01/07/19
Roland Digital Media, Inc. v. City of Livingston
M2018-00163-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ronald Thurman

This appeal arises from the dismissal of a petition for a common law writ of certiorari in which the petitioner sought to challenge a decision of the Livingston Board of Zoning Appeals. The trial court dismissed the petition pursuant to a Tenn. R. Civ. P. 12.02(1) motion for lack of subject matter jurisdiction because the petition failed to name the Livingston Board of Zoning Appeals, whose decision was at issue, as a defendant as required by Tenn. Code Ann. § 27-9-104. This appeal followed. We affirm.

Overton County Court of Appeals 01/07/19
Matthew Tolliver Et Al. v. Tellico Village Property Owners Association, Inc.
E2018-00090-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Michael S. Pemberton

This litigation finds its genesis in a water pipeline break that caused damage to residential property. At the time of the break, Joseph and Martha Mosakowski were the title owners of the damaged property. Matthew Tolliver, who was purchasing the property under a contract for deed, resided in the home. Mr. Tolliver filed a complaint against Tellico Village Property Owners Association, Inc. (defendant) alleging negligence and breach of contract. The Mosakowskis were later joined to the suit as co-plaintiffs. Pursuant to a court order, the Mosakowskis filed their own complaint, which contained similar factual allegations and asserted the same causes of action as alleged in Mr. Tolliver’s complaint. Defendant filed a motion to dismiss the Mosakowskis’ negligence claim. The defendant also filed a motion for summary judgment on all claims asserted by Mr. Tolliver and the Mosakowskis. Mr. Tolliver consented to the entry of an agreed order granting summary judgment to the defendant as to all of his claims. The Mosakowskis, however, contested defendant’s motions. Ultimately, the trial court granted defendant’s motion to dismiss the Mosakowskis’ negligence claim because the court determined that the statute of limitations had expired. In a separate order, the court granted the defendant summary judgment on the Mosakowskis’ breach of contract claim because the court determined that there was no consideration for the alleged contract. The court denied summary judgment as to the Mosakowskis’ negligence claim because the court’s order dismissing that claim rendered the issue moot. The Mosakowskis appeal. We affirm the trial court’s dismissal of the negligence claim. Although the court erred by dismissing the negligence claim pursuant to Tenn. R. Civ. P. 12.02(6), we find that ruling to be harmless because summary judgment was proper under Tenn. R. Civ. P. 56. Finally, we reverse the trial court’s grant of summary judgment on the breach of contract claim and remand for further proceedings.

Loudon County Court of Appeals 01/07/19
Deborah L. Akers v. Heritage Medical Associates, P.C., Et Al.
M2017-02470-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas W. Brothers

This is a health care liability action in which the plaintiff asserted claims of professional negligence, negligent supervision, and medical battery against a physician’s assistant, a dermatologist, and their employer. The trial court granted the defendants’ motion for summary judgment under Tennessee Rule of Civil Procedure 56.02, motion for dismissal under Tennessee Rule of Civil Procedure 37.02, and motion for sanctions under Tennessee Code Annotated section 29-26-122(d). We agree with the trial court’s determination that the plaintiff failed to obtain a competent expert witness to testify on the applicable standard of care as required by Tennessee Code Annotated section 29-26-115 and violated Tennessee Code Annotated section 29-26-122 by filing a non-compliant certificate of good faith. Accordingly, we affirm the trial court’s dismissal of plaintiff’s action and award of sanctions.

Davidson County Court of Appeals 01/04/19
Pee Wee Wisdom Child Development Center, Inc., et al. v. Herbert H. Slatery, III, in his official capacity as Attorney General and Reporter for the State of Tennessee
W2017-02437-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Jim Kyle

This appeal involves a suspended attorney’s attempt to file a petition pro se in a case in which he was not a party. The trial court denied the petition sua sponte, concluding that the suspended attorney was not a party to the original action, he did not file a petition to intervene, and he was using the pro se petition as a subterfuge to circumvent his suspension from the practice of law. The suspended attorney appeals. We affirm.

Shelby County Court of Appeals 01/03/19
Donald Berge, Et Al. v. Mary Gail Adams Warlick Et Al.
M2018-00767-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amanda Jane McClendon

In this legal malpractice lawsuit, the trial court granted summary judgment for the defendant after the plaintiffs’ counsel failed to respond to the defendant’s motion and appear at the hearing. Thereafter, the plaintiffs filed a motion to set aside the judgment, arguing their attorney’s failure to respond was due to excusable neglect. The trial court denied the motion, and this appeal followed. We affirm the trial court’s denial of the plaintiffs’ motion to set aside because the plaintiffs failed to demonstrate that they had a meritorious defense.

Davidson County Court of Appeals 01/03/19
Jeffrey Glenn Mitchell v. Carol Ann Thomas Mitchell
E2017-00100-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge William R. Brewer

This is a post-divorce action involving the interpretation of certain provisions of the parties’ marital dissolution agreement (“MDA”) and allegations of contempt of court for failure to comply with the MDA. The Blount County General Sessions Court (“trial court”) conducted a bench trial, took the matter under advisement, and directed the parties to each prepare proposed findings of fact and conclusions of law. The trial court subsequently adopted verbatim the wife’s proposed findings and conclusions with what we determine to be insufficient explanation regarding the trial court’s decision-making process. The husband has appealed. Because we are unable to ascertain whether the trial court’s final order is an independent judgment of the court, we vacate the order and remand for sufficient findings of facts and conclusions of law that reflect the trial court’s independent analysis and judgment. 

Blount County Court of Appeals 01/03/19
Austin Daugherty Ex Rel Chloe v. Sally Daugherty
E2018-01013-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Gregory S. McMillian

Austin Daugherty petitioned the trial court for an order of protection against his former wife, Sally Daugherty, on behalf of their minor child, Chloe. Mr. Daugherty alleged that Ms. Daugherty engaged in domestic violence. The order granting the petition and the amended order were entered against Ms. Daugherty by apparent default. She appeals arguing that she did not receive notice of the petition and any subsequent proceedings. We vacate the order of protection and remand for further proceedings.

Knox County Court of Appeals 01/03/19
Reliant Bank v. Kelly D. Bush Et Al.
M2018-00510-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Deanna B. Johnson

Following an appeal in which this Court affirmed the judgment of the chancery court, the unsuccessful appellants moved the chancery court for relief from the judgment under Rule 60.02 of the Tennessee Rules of Civil Procedure. The chancery court granted the motion by reducing the amount of the original judgment. The matter is now before us again on the grant of Rule 60 relief. Because the Rule 60 motion was untimely, we reverse the grant of relief.    

Williamson County Court of Appeals 12/28/18
Larry E. Parrish, P. C. v. Nancy J. Strong - Concurring In Part and Dissenting In Part
M2017-02451-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor J. B. Cox

I concur in all aspects of the opinion, save one. The majority concludes that the Chancery Court of Lincoln County erred in denying the motion of Nancy J. Strong to hold Larry E. Parrish personally liable for the obligations of Larry E. Parrish, P.C. The majority vacates the trial court’s decision and “remands for a hearing” on that issue. Because I would affirm the denial of the motion, I respectfully dissent from that part of the opinion.  

Lincoln County Court of Appeals 12/28/18
Larry E. Parrish, P. C. v. Nancy J. Strong
M2017-02451-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor J. B. Cox

A professional corporation through which a lawyer practiced law brought suit against a former client seeking to recover the “res” transferred to the corporation under an assignment of chose-in-action executed by the client as a means of paying fees owed to the corporation for its representation of the client in a legal malpractice action. The client counterclaimed for breach of contract. A jury found in favor of the client and awarded her compensatory and punitive damages. We find in favor of the client on all issues raised by the corporation. As to the client’s issues, we find that the trial court erred in failing to require the corporation to file a bond with regard to the injunction restraining the client from using certain funds during the pendency of the litigation and in failing to hold a hearing on the issue of piercing the corporate veil.       

Lincoln County Court of Appeals 12/28/18
In Re Antonio J., Et Al.
M2017-01833-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Sheila Calloway

A mother placed the children that are the subject of this appeal with a child placement agency because she was unable to provide a stable home for them. Ten months later, the agency filed a petition to have the children declared dependent and neglected; the court appointed a guardian ad litem for the children and in due course declared the children to be dependent and neglected and continued custody with the agency. The guardian ad litem initiated this proceeding to have the mother’s parental rights terminated on the grounds of abandonment by failure to visit and support, abandonment by failure to establish a suitable home, substantial non-compliance with permanency plans, and persistence of conditions; the agency later filed a separate petition on most of the same grounds also seeking termination of mother’s rights. Following a trial, the court terminated the mother’s rights on the grounds of abandonment by failure to visit, substantial non-compliance with the permanency plans, and persistence of conditions; the court also found that termination of mother’s rights was in the children’s best interest. The mother appeals, denying that grounds existed to terminate her rights and that termination was in the children’s best interest; the guardian ad litem and agency appeal the failure of the court to sustain the ground of abandonment by failure to support. Upon our de novo review, we affirm the determination that the evidence established the grounds of abandonment by failure to visit, substantial non-compliance with the permanency plans, and persistence of conditions; we vacate the holding that termination of mother’s rights was in the children’s best interest and remand the case for further consideration.  

Davidson County Court of Appeals 12/28/18
In Re Frederick S.
W2018-00941-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge J. Roland Reid

Mother appeals the termination of her parental rights to her child. The juvenile court found three statutory grounds for termination: (1) abandonment by failure to establish a suitable home; (2) persistence of conditions; and (3) mental incompetence. The court also found that termination of Mother’s parental rights was in the child’s best interest. We conclude that the record contains clear and convincing evidence to support two of the three statutory grounds for termination. We further conclude that the record contains clear and convincing evidence that termination is in the child’s best interest. So we affirm the termination of Mother’s parental rights.

Haywood County Court of Appeals 12/26/18
Albert Bell et al. v. Richard Cadmus d/b/a Band-Type Supply
E2017-02149-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael S. Pemberton

In this unlawful detainer action, the defendant appeals the dismissal of his appeal by the Loudon County Circuit Court (“circuit court”) from an order to disburse funds entered by the Loudon County General Sessions Court (“general sessions court”). Discerning no reversible error, we affirm.

Loudon County Court of Appeals 12/26/18
State of Tennessee v. Christopher Bernard Simmons
M2018-00937-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Defendant appeals the trial court’s refusal to dismiss the State’s claim that he violated Tennessee’s implied consent statute. Discerning no error, we affirm.

Davidson County Court of Appeals 12/21/18
Amnon Shreibman, Et Al. v. First Class Corporation Et Al.
M2017-02289-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle

A commercial landlord filed suit against its tenant and the guarantor of the lease. After obtaining a default judgment against the tenant, the landlord moved for partial summary judgment on the question of the guarantor’s liability. The chancery court concluded that the guarantor was liable under the guaranty. And following a trial on damages, the court entered judgment against the tenant and the guarantor. The guarantor appeals solely on the issue of his personal liability, arguing that his guaranty was conditional. Because the guaranty was an absolute undertaking, we affirm.  

Davidson County Court of Appeals 12/21/18