COURT OF APPEALS OPINIONS

Stonebridge Life Insurance Company, Gwendolyn R. Williams v. Onzie O. Horne, III
W2012-00515-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Arnold B. Goldin

This is an interpleader action resulting from competing claims to the proceeds of a life insurance policy. The trial court granted summary judgment to the Insured’s mother, finding that, because she was the only named beneficiary of the policy, she was entitled to the proceeds. Insured’s husband appeals, arguing that, because Insured’s mother was only named as a contingent beneficiary, the default provisions of the policy remained in effect, resulting in him being the primary beneficiary of the policy. Husband also appeals the trial court’s dismissal of his bad faith claim against the insurer. We affirm the dismissal of the bad faith claim, but conclude that the contract at issue is ambiguous and the issue in this case is not properly decided on summary judgment. Affirmed in part, reversed in part, and remanded.

Shelby Court of Appeals

In Re: Dylan P.
M2012-00639-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Amy V. Hollars

The trial court determined that the minor children in this case were dependent and neglected upon finding that one of the children was the victim of severe child abuse. Mother appeals. We dismiss for lack of jurisdiction.

Putnam Court of Appeals

Tamala Teague, as successor personal representative of the Estate of Lola Lee Duggan v. Garnette Kidd, et al.
E2011-02363-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Jerri Bryant

This appeal involves a claim filed by the Administrator of Decedent’s estate to recover monetary assets that were misappropriated from Decedent prior to her death. Administrator alleged that the Kidds depleted Decedent’s monetary assets, thereby breaching a confidential relationship they held with her. The trial court agreed and issued a judgment against the Kidds with prejudgment interest. We affirm the judgment against Wife as modified but reverse the judgment against Husband. The case is remanded.

Polk Court of Appeals

In Re: Conservatorship of Maurice M. Acree, Jr., et al. v. Nancy Acree, et al.
M2011-02699-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Senior Judge Walter Kurtz

In this action a Petition was filed and a conservator was appointed for Dr. Maurice M. Acree,
Jr., and William Acree was made a party to that proceeding. Five years after a conservator
was appointed, William Acree filed a "Complaint" in that action. The Trial Court determined
that a complaint could not lie in that action, and treated it as a Rule 60 Motion and denied
William Acree any relief. William Acree has appealed to this Court and we affirm the Trial
Court's Judgment, but modify the Judgment on the basis that the record reveals plain error
which should be addressed because the trusts remain active.

Davidson Court of Appeals

In the Matter of: Christopher A. D.
M2010-01385-COA-R3-JV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Betty K. Adams Green

The mother brought a petition to modify support and for contempt, alleging that the father
had willfully understated his income during an earlier proceeding to modify support. The
juvenile court judge found that the mother had proved her allegations and awarded her a
judgment of over $26,500 for back child support as well as attorney fees of over $12,800.
We hold that the statutory prohibition against retroactive modification of child support
disallows the award of pre-petition support. Accordingly, we are compelled to vacate the
trial court’s award of support for the time prior to the date on which the mother filed her
petition to modify child support. We affirm the prospective modification and the award of
child support from that date.

Davidson Court of Appeals

In Re Estate of Margaret L. Swift - Dissenting
W2012-00199-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Robert Benham

In re Estate of Milam, 181 S.W.3d 344, 353 (Tenn. Ct. App. 2005). (“[W]hen a decedent undertakes to make a will, we must presume that the decedent intended to die testate, and we must seek to construe the will, where possible, as including all of the testator’s property at death”). Second, as I will discuss more fully hereafter, the testatrix in this case clearly evidenced an intent to die testate. “The testator’s intent is to be determined from the particular words used in the will itself, . . . and not from what it is supposed the testator intended.” Id. at 353 (internal citation omitted).

Shelby Court of Appeals

In Re Estate of Margaret L. Swift
W2012-00199-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert Benham

This appeal involves the interpretation of a will. The named residuary beneficiary predeceased the testatrix. The executrix of the decedent’s estate argued that a survivorship requirement in the will applies to the named residuary beneficiary, so her interest lapsed. The issue of the residuary beneficiary argued that the survivorship requirement did not apply to the residuary beneficiary, so Tennessee’s anti-lapse statute operates to pass the beneficiary’s interest to her issue. The trial court held for the executrix, construing the will so as to apply the survivorship requirement to the residuary beneficiary. We agree with the trial court’s interpretation of the will, and so affirm.

Shelby Court of Appeals

Bridget Michelle Agee v. Jason Forest Agee
M2011-02103-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge C. L. Rogers

In this post-divorce dispute, Father challenges the trial court’s modification of the parenting plan to designate Mother as primary residential parent and the trial court’s calculation of his income and monthly child support obligation. Discerning no error, we affirm.

Sumner Court of Appeals

Joshua Hilliard v. Turney Center Disciplinary Board, et al.
M2011-02213-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Timothy L. Easter

Inmate appeals the dismissal of his petition for writ of certiorari. The chancery court dismissed the petition for lack of subject matter jurisdiction based upon the expiration of the applicable statute of limitations and because inmate failed to show that the prison disciplinary board acted illegally, fraudulently, or arbitrarily. We affirm, finding the inmate failed to show that the disciplinary board exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily.

Hickman Court of Appeals

Rick Earl, et al. v. Dr. Raquel Hatter, Commissioner, Tennessee Department of Human Services, et al.
M2011-00914-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

Married couple sought judicial review of decision of Department of Human Services holding that they were not eligible for medicaid under an amendment to the Social Security Act known as the “Pickle Amendment.” Upon consideration of the record we affirm the judgment of the Chancery Court.

Davidson Court of Appeals

Anna Ruth Collins (Eisenberg) v. The Estate of Harvey L. Collins
E2012-00079-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Bill Swann

This is an action to collect child support ordered in the parties’ 1965 divorce decree. The Trial Court held that the ten year statute of limitations contained in Tenn. Code Ann. § 28-3- 110(2) acted as a bar to this action and dismissed the case. Anna Ruth Collins (Eisenberg) appeals to this Court. We affirm.

Knox Court of Appeals

Sherman Lane Pierce, et al. v. James H. Delashmitt, et al.
E2011-02748-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Frank V. Williams, III

Sherman Lane Pierce and Cathryn Pierce (“the Pierces”) own real property in Meigs County, Tennessee. James H. Delashmitt and Minnie C. Delashmitt (“the Delashmitts”) own real property that adjoins the Pierces’ property. The Pierces sued the Delashmitts alleging, among other things, that the Delashmitts had trespassed upon the Pierces’ property and attempted to fence off a portion of the Pierces’ driveway. The Delashmitts answered the complaint and filed a counterclaim asserting that the Pierces had trespassed on the Delashmitt’s property. After a trial, the Trial Court entered its order finding and holding, inter alia, that the Pierces had adversely possessed a portion of the disputed property. The Pierces appeal to this Court raising issues regarding whether the Trial Court erred in finding and holding that the Pierces failed to prove adverse possession as to the entire disputed area. The Delashmitts raise an issue regarding whether the Trial Court erred in finding and holding that the Pierces adversely possessed any portion of the disputed property. We affirm.

Meigs Court of Appeals

Publix Super Markets, Inc. v. Tennessee Department of Labor and Workforce Development, Labor Standards Division
M2012-00089-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

This is an administrative appeal in which an employer challenges the decision of the Tennessee Department of Labor & Workforce Development finding the employer in violation of the Tennessee Child Labor Act for failing to furnish, within one hour of demand, personnel files of each of its minor employees. The trial court affirmed the decision of the Department and this appeal followed. Tennessee Code Annotated § 50-5-111(1) & (4) require employers to “make, keep and preserve a separate and independent file record for each minor employed, which shall be kept at the location of the minor’s employment” and to “furnish” the records relative to the minor employees. On appeal, the employer contends it maintained the records on site as required, thus it did not violate Subsection (1) of the statute. The employer also asserts that it has a Fourth Amendment right to object to a warrantless search by the Department and it may not be penalized for asserting its constitutional right. We have determined the Department’s decision to assess penalties for violating Subsection (1) of Tennessee Code Annotated § 50-5-111 is not supported by substantial and material evidence and the inference drawn by the Department that the records were not maintained on site based upon a mere inference drawn from the fact they were not produced within one hour of demand is insufficient. Therefore, the assessments for allegedly failing to maintain personnel records of minor employees on site is reversed. As for the requirement under Subsection (4) of Tennessee Code Annotated § 50-5-111 that employers of minor employees furnish and allow inspection of the separate and independent file records for each minor employed upon request by the Department, the Act expressly provides that if the Department is denied permission to make an inspection, Tennessee Code Annotated § 50-4-101 provides that the Department employee or official may obtain an administrative inspection warrant in accordance with the procedures outlined in the statute; the Department did not seek to obtain a warrant in this case. As for refusing the Department’s request to inspect the records without an administrative warrant, in order for a warrantless search or inspection to be constitutionally permissible under the Fourth Amendment, the Department must establish that the employer was part of a pervasively regulated industry or that the employer had weakened or reduced privacy expectations that are significantly overshadowed by the Department’s interests in regulating the employer’s industry. We have determined the Department failed to establish either; accordingly, the Department cannot assess a penalty against an employer for asserting its constitutional rights under the Fourth Amendment.Thus, the penalty assessed for allegedly violating Subsection (4) of the statute is reversed. Pursuant to the foregoing, we remand with instructions for the trial court to order the Department to vacate the citations and penalties against the employer.

Davidson Court of Appeals

Publix Super Markets, Inc. v. Tennessee Department of Labor and Workforce Development, Labor Standards Division - CONCUR
M2012-00089-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Claudia Bonnyman

I fully concur in parts A and B of the opinion’s analysis section; however, I have some reservations regarding part C. I have chosen to write separately to highlight my concerns about the implications of this opinion for administrative inspections generally.
 

Davidson Court of Appeals

Shirleen Nevels v. Joseph Contarino, M.D. et al.
M2012-00179-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Stella L. Hargrove

The trial court dismissed this medical malpractice claim on the defendants’ motion for summary judgment and motion to dismiss, after excluding the testimony of the plaintiff’s expert witness. Because the trial court erred in its application of the locality rule and Rule 702 of the Rules of Evidence, we reverse.

Giles Court of Appeals

RCR Building Corporation v. Pinnacle Hospitality Partners, et al.
M2012-00286-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Carol L. McCoy

This appeal involves a contract for the construction of a hotel. The project owner refused to make the final payment owed to the general contractor, claiming that it was entitled to withhold $237,000 in liquidated damages because the project was not completed on time, in addition to deducting other “offsets” under the contract. The general contractor claimed that the owner was not entitled to liquidated damages for several reasons, including the fact that the owner had caused delays, and the fact that the owner had failed to make a timely claim for liquidated damages as required by the contract. The trial court granted partial summary judgment to the owner on the issue of liquidated damages, allowing the owner to subtract $237,000 from the final payment it owed under the contract. The court also resolved several other issues between the parties. The trial court declared the owner to be the prevailing party in the litigation and awarded the owner its attorney’s fees. The general contractor appeals. We affirm in part and reverse in part and remand for further proceedings.

Davidson Court of Appeals

Linda M. Pettigrew v. Dennis A. Pettigrew
E2011-02706-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Jeffrey M. Atherton

In this divorce case, the Trial Court awarded the wife her attorney's fees as alimony in solido. The husband appeals this issue arguing that the wife's property settlement was such that she should pay her attorney's fees out of the property settlement. On appeal, we affirm the Trial Court.

Hamilton Court of Appeals

In Re Preston C. G.
M2011-01777-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge George L. Lovell

This appeal involves Father’s petition to be named primary residential parent of his son. The trial court held that a material change in circumstances had occurred and that it was in the child’s best interest to spend more time with the Father; however, the court determined that Mother should remain the child’s primary residential parent. Father appeals the trial court’s determination that it is in the best interest of the parties’ son for Mother to be the primary residential parent. Finding no error, we affirm.

Maury Court of Appeals

Filippo Carbone v. Brenda Blaeser
W2012-00670-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Ron E. Harmon

This is a child custody case. Appellant/Mother appeals the denial of her Tennessee Rule of Civil Procedure 59.04 motion to vacate the order granting Father/Appellee’s petition for custody of the minor child and for enrollment of a foreign decree on custody. Mother received, at most, three days notice before the hearing on Father’s petition in violation of Tennessee Rule of Civil Procedure 6.04. Because Mother did not receive adequate notice, we conclude that the trial court erred in denying Mother Rule 59 relief. Reversed and remanded.

Carroll Court of Appeals

Tikita Jones v. Shelby County Government Civil Service Merit Board & Shelby County Division of Health Services
W2012-00191-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Kenny W. Armstrong

This is an appeal from an administrative decision on the termination of the employment of a municipal employee. The appellant employee was fired from her job with the appellee municipal health department for accessing patient medical records without authorization. The appellee civil service merit board of the municipality conducted an administrative hearing and upheld the termination of her employment. The employee filed a lawsuit in chancery court seeking judicial review of this decision. The trial court affirmed the decision of the civil service merit board and upheld the termination. The employee now appeals this decision, arguing that her due process rights were violated and that the decision of the civil service merit board was not supported by substantial and material evidence. We affirm.

Shelby Court of Appeals

Covista Communications, Inc. v. Oorah, Inc. d/b/a Cucumber Communications, Inc.
E2012-00720-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor W. Frank Brown, III

This appeal involves in personam jurisdiction over an out-of-state defendant. The chancery court granted the defendant’s motion to dismiss for lack of personal jurisdiction pursuant to Rule 12.02(2) of the Tennessee Rules of Civil Procedure. The court found that the defendant had not purposely availed itself of the privilege of doing business in Tennessee and did not have sufficient contacts with Tennessee to be subjected to jurisdiction in this state. The plaintiff, a corporation that claims its principal place of business is in Tennessee, appeals. We find that the circumstances do not support the exercise of personal jurisdiction over the defendant foreign corporation by a Tennessee court. Accordingly, we affirm.

Hamilton Court of Appeals

Lisa Smith c/o rodterrius M. Tinnel (Deceased) et al. v. HFH, Inc. d/b/a DHL and Pacific Employers Insurance Company et al.
M2012-02198-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This is an appeal from an order denying a motion to set aside an order of dismissal for failure to state a claim. Because the appellant did not file her notice of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.
 

Davidson Court of Appeals

Latif Abdulsayed et al. v. Randal Hand et al.
M2012-00583-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amanda McClendon

This appeal arises from two very unorthodox contracts by which Buyers purchased a retail convenience market, the equipment and inventory of the market, and the underlying real estate. Within four months of the purchase, Buyers commenced this action seeking rescission of the contracts on the basis of Sellers’ breach of contract, fraud, and misrepresentation. Sellers prevailed on all issues in the trial court and recovered the business and real estate. The trial court also ruled that Sellers were entitled to keep the $190,000 down payment on the real estate. On appeal, Buyers raise several issues, inter alia, they contend the trial court erred in finding they did not prove fraudulent inducement or intentional misrepresentation, that the court erred in finding that Buyers breached the contract, and that the trial court erred in awarding Sellers the $190,000 down payment as damages for Buyers’ breach of the contract when Sellers did not plead damages in their counter-complaint. We have determined the evidence preponderates against the trial court’s finding that Sellers did not make intentional misrepresentations, and that, to the contrary, the preponderance of the evidence established that Sellers made intentional misrepresentations for which Buyers are entitled to a rescission of the contracts and return of their $190,000 down payment.

Davidson Court of Appeals

In Re: Zacharias T.M., et al.
E2012-00920-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge William T. Denton

The State of Tennessee Department of Children’s Services (“DCS”) filed a petition in
February of 2009 seeking to terminate the parental rights of Kimberly M. (“Mother”) to the
minor children, Zacharias T.M., Isaiah K.M., Ashley M.M., Chelsea M.M., Sierra C.M., and
Brittany N.M. (“the Children”). After a trial, the Juvenile Court terminated the parental
rights of Mother to the Children after finding that grounds for termination pursuant to Tenn.
Code Ann. § 36-1-113(g)(1) and (g)(3) and Tenn. Code Ann. § 36-1-102(1)(A)(ii) had been
proven by clear and convincing evidence, and that clear and convincing evidence had been
shown that it was in the Children’s best interest for Mother’s parental rights to be terminated.
Mother appeals to this Court. We affirm.

Blount Court of Appeals

In Re: Wyatt S.
E2012-00539-COA-R3-JV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Amy V. Hollars

This appeal arises from a dependency and neglect proceeding. The State of Tennessee, Department of Children’s Services (“DCS”) filed a petition against Lisa M. S. (“Mother”) seeking to adjudicate her minor child Wyatt S. (“the Child”), born in March of 1998, dependent and neglected. The petition was rooted in the Child’s disclosures that Mother had sexually abused him. The juvenile court found the Child dependent and neglected. Mother appealed to the Circuit Court for Cumberland County (“the Trial Court”) for a de novo hearing. The Trial Court found the Child dependent and neglected by clear and convincing evidence. The Trial Court also specifically found severe child abuse in this case. Mother appeals to this Court. We affirm the judgment of the Trial Court in its entirety.

Cumberland Court of Appeals