Court of Appeals Opinions

Format: 05/17/2022
Format: 05/17/2022
In Re Khalil J.
M2021-00908-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Sheila Calloway

This appeal involves a petition to terminate parental rights.  The juvenile court found by clear and convincing evidence that three grounds for termination as to both mother and father were proven: (1) persistent conditions; (2) mental incompetence; and (3) failure to manifest an ability and willingness to assume custody or financial responsibility.  The juvenile court also found that termination was in the best interests of the child.  Both the mother and the father appeal.  We reverse the juvenile court’s finding of persistent conditions as to the mother and the father, but otherwise affirm the termination of parental rights.

Davidson County Court of Appeals 05/16/22
Tennessee Farmers Mutual Insurance Company v. David Payne, et al.
W2021-00376-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Yolanda Kight Brown

This appeal concerns a dispute over insurance coverage. Amy Higgs (“Higgs”) individually and on behalf of her deceased son, Cayson Emmit Turnmire (“Cayson”), sued David Payne (“Payne”) for the negligent maintenance of his property in relation to Cayson’s death by drowning in Payne’s swimming pool. Tennessee Farmers Mutual Insurance Company (“Tennessee Farmers”), Payne’s homeowners’ insurance carrier, filed a complaint for declaratory judgment in the Circuit Court for Shelby County (“the Trial Court”) against Payne and Higgs. Tennessee Farmers argued that, due to an exclusion in Payne’s homeowners’ insurance policy against claims “arising from or in connection with the swimming pool,” it is not obligated to defend or indemnify Payne. Tennessee Farmers and Higgs filed cross motions for summary judgment. The Trial Court granted Tennessee Farmers’ motion and denied Higgs’ motion. Higgs appeals. Citing the concurrent cause doctrine, Higgs argues that Tennessee Farmers must defend and indemnify Payne as, apart from the pool, certain non-excluded causes contributed to Cayson’s death—namely, Payne’s failure to fence or gate his property. We hold, inter alia, that each of Higgs’ alleged non-excluded concurrent causes are bound up inextricably with Cayson’s tragic drowning in Payne’s pool, an excluded cause under Payne’s insurance policy. We affirm.

Shelby County Court of Appeals 05/13/22
Larry Brown et al. v. Tennessee Department of Safety and Homeland and Security
M2021-00422-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This case arises from the seizure of property owned by Appellants and the ensuing forfeiture action brought against them by Appellee Tennessee Department of Safety and Homeland Security.  After Appellee voluntarily dismissed the forfeiture action, the Administrative Law Judge awarded Appellants a portion of their requested attorney’s fees under Tennessee Code Annotated section 4-5-325(a).  The Chancery Court of Davidson County reversed the award of fees on its finding that Appellee did not issue a “citation” as required for recovery of attorney’s fees under section 4-5-325(a).  The trial court also held that Appellants were not entitled to recover attorney’s fees under 42 U.S.C. § 1988.  Discerning no error, we affirm.

Davidson County Court of Appeals 05/13/22
Debra Jean Griffith-Ball v. Stanley Lauren Ball
M2020-00509-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Kathryn Wall Olita

A husband and wife divorced after a long marriage.  They disputed whether certain assets were marital or separate property and whether the wife was entitled to alimony.  The trial court found that the disputed assets were the husband’s separate property.  And it awarded the wife alimony in futuro, as well as attorney’s fees as alimony in solido.  Upon our review, we find the evidence preponderates against the finding that the assets are separate property.  So, with those assets included in the marital estate, we remand for a new property division.  And, because the division of marital property is a factor in awarding alimony, we vacate the alimony awards.  On remand, the court should consider whether alimony is still appropriate under its new property division and, if so, the type, amount, and duration of the award. 

Montgomery County Court of Appeals 05/13/22
Vatisha Evans-Barken v. Madison County, Tennessee
W2020-01101-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

Appellee, a Sergeant with the Madison County Sheriff’s Department, sought judicial review of the Civil Service Board’s affirmance of the Sheriff Department’s decision to terminate her employment. On its finding that the Board failed to consider all relevant evidence presented, the trial court exercised its discretion to remand the case to the Board for rehearing. Tenn. Code Ann. § 4-5-322(h). Appellant, Madison County, Tennessee, filed the instant appeal. We conclude that the trial court’s remand order is not a final, appealable order under Tennessee Rule of Appellate Procedure 3(a). As such, this Court does not have subject matter jurisdiction over the appeal. Appeal dismissed.

Madison County Court of Appeals 05/11/22
In Re Arianna B. et al.
M2021-00980-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Ronald Thurman

In this termination of parental rights case, Appellant Father appeals the trial court’s termination of his parental rights to the two minor children on the ground of abandonment by failure to support, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(iv).  Appellant also appeals the trial court’s finding that termination of his parental rights is in the children’s best interest.  Discerning no error, we affirm.

Putnam County Court of Appeals 05/11/22
State of Tennessee v. $133,429 In U.S. Currency Seized From Joni Assefa Kilenton, et al.
W2021-01005-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge J. Weber McCraw

In this seizure and forfeiture action, we do not reach the substantive issues because the order granting the forfeiture does not comply with the requirements of Tennessee Rule of Civil Procedure 58 for entry of judgments. Nonetheless, we exercise our discretion under Tennessee Rule of Appellate Procedure 2 to take jurisdiction of the appeal for the limited purpose of instructing the trial court to enter an order on remand that not only complies with Rule 58, but also makes sufficient findings to enable this Court to make a meaningful review as required under Tennessee Rule of Civil Procedure 52.01. Vacated and remanded.

Fayette County Court of Appeals 05/10/22
State of Tennessee v. Zachery Brandon
M2020-01092-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Mark J. Fishburn

The Defendant, Zackery Brandon, was convicted by a Davidson County Criminal Court jury of attempted aggravated robbery, especially aggravated robbery, and aggravated robbery and was sentenced by the trial court as a Range I, standard offender to an effective term of twenty-five years in the Tennessee Department of Correction.  On appeal, the Defendant argues that the evidence was insufficient to sustain his convictions and that the trial court erred in admitting the unsworn recorded statement of one of his
co-defendants.  After review, we affirm the judgments of the trial court.  

Davidson County Court of Appeals 05/10/22
In Re Analesia Q.
E2021-00765-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Brad Lewis Davidson

The Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate the parental rights of Cindy B. (“Mother”) and Francisco Q. (“Father”) to their minor daughter, Analesia Q. (the “Child”). Following a bench trial, both parents’ rights were terminated pursuant to several statutory grounds, and Father appeals. He challenges the statutory grounds for termination, the trial court’s finding that termination of his rights was in the Child’s best interests, and the trial court’s decision to admit hearsay testimony regarding potential abuse of the Child pursuant to Tenn. R. Evid. 803(25). We reverse the trial court’s decision to terminate Father’s parental rights for abandonment by failure to visit and severe abuse, and vacate the trial court’s decision to terminate Father’s parental rights for failure to manifest an ability and willingness to assume custody or financial responsibility of the Child. We affirm the termination of Father’s parental rights as to the remaining grounds, as well as the holding that termination of Father’s parental rights is in the Child’s best interests. The ultimate decision of the trial court is therefore affirmed.

Cocke County Court of Appeals 05/10/22
Christina Ann Standley v. Carl Anthony Standley
M2021-00591-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Deanna B. Johnson

In this post-divorce action, Mother appeals the trial court’s award of Father’s attorney’s fees on his petition to modify child custody.  Because the trial court did not abuse its discretion in awarding Father attorney’s fees, we affirm. 

Williamson County Court of Appeals 05/09/22
Anthony Washington v. Tony Parker as Commissioner of the Tennessee Department of Corrections
M2021-00583-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Christopher V. Sockwell

An inmate filed a petition for declaratory judgment against the Commissioner of the Tennessee Department of Corrections (“TDOC”).  The action was filed in Wayne County Chancery Court instead of Davidson County Chancery Court as required by Tenn. Code Ann. § 4-5-225(a).  The trial court found that venue in Wayne County Chancery Court was not proper and that it was not in the interest of justice to transfer venue to Davidson County because Defendant neither had paid any portion of the filing fee, pursuant to Tenn. Code Ann. § 41-21-807,nor had he named the agency, TDOC, as a party to the action as required by Tenn. Code Ann. § 4-5-225(a).  The trial court, therefore, dismissed the inmate’s petition.  We find that the inmate had not failed to comply with the partial filing fee payment because the trial court had not assessed the initial filing fee to be paid.  However, the trial court was correct that the inmate had failed to include TDOC as a party to the action as required by Tenn. Code Ann. § 4-5-225(a).  Upon consideration of the appellee’s argument concerning the timeliness of the inmate’s notice of appeal, we hold that we have subject matter jurisdiction over this appeal.  Although we disagree with the trial court’s conclusion regarding the inmate’s compliance with Tenn. Code Ann. § 41-21-807, we affirm the trial court’s judgment dismissing the inmate’s action because the inmate failed to name TDOC as a party to the action.

Wayne County Court of Appeals 05/09/22
Rita A. Roach v. Moss Motor Company, Inc. et al.
M2021-00511-COA-R3-CV
Authoring Judge: Western Section Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Ross H. Hicks

The trial court denied a defendant’s motion to amend to include a cross-claim against another defendant. We reverse.

Robertson County Court of Appeals 05/06/22
In Re J.H. Et Al.
E2021-00624-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Brad L. Davidson

Tennessee Department of Children’s Services (“DCS”) removed two children from the custody of Polly H. (“Mother”) and Billy H. (“Father”) in March 2020 after receiving a referral regarding the family and allegations of abuse, and after Mother’s partner was found at the home with Mother and the children in violation of a permanent restraining order against Mother’s partner. In December 2020, DCS filed a petition to terminate Mother’s and Father’s parental rights. DCS alleged, as statutory grounds for termination, abandonment by failure to support, abandonment by failure to establish a suitable home, failure to manifest an ability and willingness to parent, persistence of conditions, and severe child abuse. Father voluntarily surrendered his parental rights on the day of the trial. The trial court found that DCS proved four of the five grounds for termination of Mother’s rights by clear and convincing evidence and that termination was in the children’s best interests. Mother appeals. We affirm in part and reverse in part. We affirm the trial court’s ultimate holding that the parental rights of Mother should be terminated.

Cocke County Court of Appeals 05/05/22
In Re Miranda T., et al.
W2021-00628-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Paul B. Conley, III

This appeal concerns the termination of a mother’s parental rights to her minor children. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Crockett County (“the Juvenile Court”) seeking to terminate the parental rights of Tiffany T. (“Mother”) to her minor children, Miranda and Baylee (“the Children”). After a hearing, the Juvenile Court entered an order terminating Mother’s parental rights on four grounds and finding that termination of Mother’s parental rights is in the Children’s best interest. Mother appeals, arguing solely that the Juvenile Court erred in its best interest determination. We find, as did the Juvenile Court, that DCS proved four grounds for termination of parental rights against Mother by clear and convincing evidence. We find further by clear and convincing evidence, as did the Juvenile Court, that termination of Mother’s parental rights is in the Children’s best interest. We affirm the judgment of the Juvenile Court.

Crockett County Court of Appeals 05/05/22
Tennessee Department of Safety and Homeland Security v. David Shell
M2021-00108-COA-R3-CV
Authoring Judge: Western Section Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Patricia Head Moskal

Following the return of his seized property under the forfeiture statutes, claimant asked the administrative law judge to award him attorney’s fees under two separate statutes, Tennessee Code Annotated section 4-5-325(a) and 42 U.S.C. § 1988(b). The administrative law judge awarded fees under only the former statute. Upon review by the chancery court, the decision to award fees under section 4-5-325(a) was reversed; the chancery court also ruled that claimant’s request for fees under the federal statute was waived or abandoned. We affirm the trial court’s conclusion that claimant is not entitled to fees under section 4-5-325(a). We remand to the trial court for consideration of the previously pretermitted claim for attorney’s fees under section 1988(b). 

Davidson County Court of Appeals 05/04/22
Michael Charles Smallbone v. Jennifer Elizabeth Smallbone
M2020-01556-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joseph A. Woodruff

As part of a divorce decree, the trial court fashioned a permanent parenting plan for three minor children.  The court’s plan provided for substantially equal parenting time and joint decision making for major decisions.  The plan was expressly conditioned on the parents remaining within the children’s current school district after the divorce.  The father argues that neither equal parenting time nor joint decision making were appropriate based on the evidence presented.  And he maintains that the court lacked authority to include a residency requirement in the plan.  He also contends that the court failed to address some of his claims.  We conclude that the court, either expressly or implicitly, resolved all claims between the parties.  And because the court did not abuse its discretion in establishing the parenting plan, we affirm.

Williamson County Court of Appeals 05/04/22
David Simpkins et al. v. John Maher Builders, Inc. et al.
M2021-00487-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor James G. Martin, III

In this action concerning a newly-constructed home, the plaintiffs asserted,inter alia, claims of breach of contract, breach of warranty, fraud, intentional misrepresentation, fraudulent concealment, negligence, and unfair and deceptive business practices by the defendant construction company and its owners.  The trial court granted a motion to dismiss filed by the defendants based upon expiration of the three-year statute of limitations applicable to claims of injury to real property.  We determine that although the trial court properly applied the three-year statute of limitations to the plaintiffs’ claims of injury to their real property, the trial court improperly determined that the doctrine of fraudulent concealment would not apply to toll the accrual of such limitations period concerning the plaintiffs’ claims for damages caused by the defendants’ failure to seal the utility penetrations beneath the home, a fact which allegedly was concealed by the defendants.  We also determine that the plaintiffs stated claims of breach of contract, including breach of any express or implied warranties provided by the contract, and that the trial court improperly dismissed these claims based on the incorrect statute of limitations.  We therefore vacate the trial court’s dismissal of the breach of contract and contractual warranty claims, as well as the claims based on the defendants’ failure to seal the utility penetrations, and we remand those claims to the trial court for further proceedings consistent with this opinion.  We affirm the remaining portion of the trial court’s judgment in its entirety.  

Williamson County Court of Appeals 05/04/22
Keveena Marie Martin Judzewitsch v. George Aaron Judzewitsch
E2022-00475-COA-T10B-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Gregory S. McMillan

This is an accelerated interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B section 2.02 from the trial court’s denial of a motion for recusal. We have determined the petition must be summarily dismissed due to numerous and substantive failures to comply with Rule 10B section 2.02, including the failure to file a copy of the motion for recusal, supporting documents filed in the trial court, and a copy of the trial court’s order denying recusal. Accordingly, the appeal is dismissed.

Knox County Court of Appeals 04/29/22
In Re Andrew W. Et Al.
E2021-00868-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Janice Hope Snider

A mother appeals the termination of her parental rights to three of her children. The juvenile court terminated on grounds of substantial noncompliance with the permanency plan, persistence of conditions, and failure to manifest an ability and willingness to assume custody or financial responsibility for her children. The court also determined that termination was in her children’s best interest. After a thorough review, we agree and affirm.

Hamblen County Court of Appeals 04/29/22
Pratik Pandharipande, MD. v. FSD Corporation
M2020-01174-COA-R3-CV
Authoring Judge: Middle Section Presiding Judge, Frank G. Clement, Jr.
Trial Court Judge: Judge Jonathan L. Young

This is a dispute between a property owner and his homeowners’ association concerning the scope and applicability of restrictive covenants. Two restrictive covenants are at issue. One is a covenant contained in the neighborhood’s 1984 Declaration of Covenants, Conditions, and Restrictions that limited usage of the homes to residential use as “a residence by a single family.” The other is a covenant contained in a 2018 Amendment that relaxed the 1984 residential use restriction by authorizing short-term rentals of no less than 30 consecutive days, subject to specific criteria. The plaintiff, who purchased a home in the development in 2015 and has been leasing it on a short-term vacation rental basis to third parties as a business venture, seeks a declaratory judgment that he may lease his home for rentals as short as two days. For its part, the homeowners’ association seeks to enforce the restrictive covenants in the 1984 Declaration as well as the 2018 Amendment. The trial court granted summary judgment in favor of the homeowners’ association on both issues. In doing so, the court held that restrictions in the 1984 Declaration prohibited non-residential renting. The court also held that Plaintiff’s current use of his property is subject to the 2018 Amendment, which authorized short-term leasing subject to stipulations including that “[t]the length of the lease must be for a minimum of 30 consecutive days.” The plaintiff appeals. We affirm.

DeKalb County Court of Appeals 04/29/22
Martin Holmes et al. v. David Karkau et al.
M2021-00696-COA-R3-CV
Authoring Judge: Middle Section Presiding Judge, Frank G. Clement, Jr.
Trial Court Judge: Judge James G. Martin, III

This is an action to set aside a change of beneficiary on a term life insurance policy under Tennessee’s Uniform Fraudulent Transfer Act (“the TUFTA”), Tennessee Code Annotated §§ 66-3-301 to -314. The challenged event was the change of beneficiary from the wife of the insured/owner to two of their adult children, the form for which was executed by the wife as the attorney-in-fact for the insured/owner and transmitted to the insurance company the day before the insured/owner died. In pertinent part, the complaint alleged that the defendants—the wife and two adult children of the deceased insured/owner of the insurance policy—“devised and orchestrated” a “fraudulent scheme . . . to eliminate assets owned by [the insured’s wife] in the event that Plaintiffs obtain a judgment against her” in a separate civil action. The complaint further alleged that “[t]he transfer of the beneficiary interest in the . . . insurance policy was a fraudulent transfer under T.C.A. § 66-3-305(a)(1) because it was made with the intent to hinder, delay or defraud Plaintiffs as creditors defined under the Act.” The trial court dismissed the action under Tennessee Rule of Civil Procedure 12.02(6) for failure to state a claim for which relief could be granted under the TUFTA. We affirm.

Williamson County Court of Appeals 04/27/22
Barbara Matthews Law v. Halbert Grant Law, Jr.
E2021-00206-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Jeffrey M. Atherton

On May 1, 1992, Barbara Matthews Law (“Wife”) and Halbert Grant Law, Jr. (“Husband”), executed a prenuptial agreement. They married the following day. Wife filed for divorce in the Chancery Court for Hamilton County in December of 2017. The parties disputed, inter alia, the enforceability of the prenuptial agreement, as well as the classification and division of several assets. Trial was held over multiple days in 2019 and 2020, and the trial court entered its final decree divorcing the parties on July 31, 2020. The trial court held that the prenuptial agreement was valid and enforceable, classified the parties’ assets, and divided the marital estate. Wife was awarded the parties’ family home and $4,500.00 per month in alimony in futuro. Husband appeals, challenging the classification of the parties’ home as marital property, as well as the classification of one bank account. Wife cross-appeals, challenging the enforceability of the prenuptial agreement and the classification of several assets. Wife also requests increased alimony. We affirm the trial court’s finding that the parties’ prenuptial agreement is valid and enforceable. We reverse the trial court’s classification of three assets – the parties’ home, a checking account, and an investment account. We vacate the trial court’s decision as to those three assets and remand for proceedings consistent with this opinion. In light of the changes in classification of several major assets, we also vacate and remand the trial court’s award of alimony for reconsideration.

Hamilton County Court of Appeals 04/26/22
Edna Gergel v. James Gergel
E2020-01534-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor M. Nichole Cantrell

In this divorce action, the husband appeals the trial court’s distribution of the marital estate, denial of the husband’s request for alimony in futuro, grant to the wife of sole decision-making authority over the parties’ minor child, and grants to the wife of attorney’s fees and discretionary costs. The husband, who received disability benefits for a prior mental health diagnosis, also appeals the trial court’s finding that he was voluntarily unemployed and the court’s denial of his motion to strike certain expert witness testimony. Having determined that an unspecified portion of the discretionary costs awarded to the wife for fees related to three expert witnesses, one vocational rehabilitation consultant and two psychiatrists, were not allowable under Tennessee Rule of Civil Procedure 54.04(2), we vacate the trial court’s award of discretionary costs as to the fees for these three experts’ work with the exception of $2,070.00 in demonstrably allowable fees paid to the vocational consultant. We remand for a specific determination of the fees for these three experts allowable, if any, as an award of discretionary costs to the wife under Rule 54.04(2). We also modify the trial court’s award of discretionary costs to the wife for court reporter fees to reduce them slightly pursuant to Rule 54.04(2). We otherwise affirm the trial court’s judgment. We deny the wife’s request for an award of attorney’s fees on appeal.

Anderson County Court of Appeals 04/26/22
Caroline Harrill v. PI Tennessee, LLC et al.
M2021-00424-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Russell Parks

A guest sued a landlord for negligence after the guest was injured by a vicious animal while visiting the landlord’s tenant.  The landlord filed a motion for summary judgment that the trial court granted.  Because the undisputed facts establish that the landlord did not breach any duty owed to the guest, we affirm.

Giles County Court of Appeals 04/26/22
City of Memphis v. Beverly Prye
W2020-01716-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge:

This appeal involves an employment termination case in which an employee of the City of Memphis witnessed the signing of a will, but after the decedent’s death, the probate court determined that the will submitted to probate did not bear the genuine signature of the decedent. Following an administrative appeal, the Civil Service Commission for the City of Memphis unanimously affirmed the decision of termination. The employee filed a petition for judicial review with the chancery court. The chancery court reversed the termination of the employee finding that the Civil Service Commission’s decision to sustain her termination was arbitrary and capricious. The chancery court reinstated the employee with full backpay and benefits. The City of Memphis appeals. We affirm.

Shelby County Court of Appeals 04/26/22