Court of Appeals Opinions

Format: 11/24/2021
Format: 11/24/2021
In Re Daylan D. Et Al.
M2020-01647-COA-R3-PT
Authoring Judge: Western Section Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Ken Witcher

Father appeals the termination of his parental rights on grounds of (1) abandonment by failure to support; (2) substantial noncompliance with permanency plans; (3) persistence of conditions; and (4) failure to manifest a willingness and ability to assume custody of the children. Although we vacate the trial court’s finding of substantial noncompliance with permanency plans, we affirm the remaining grounds, as well as the trial court’s determination that termination was in the children’s best interests. 

Macon County Court of Appeals 11/09/21
Fred Auston Wortman, III v. State of Tennessee, Tennessee Board of Parole, Et Al.
M2021-00068-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Russell T. Perkins
This appeal concerns a denial of parole. Fred Austin Wortman, III (“Wortman”) pled guilty to two counts of attempted first degree murder and one count of solicitation of first degree murder, all stemming from Wortman’s repeated attempts to kill his wife. Wortman was sentenced to thirty years in prison. After a parole hearing, the Tennessee Board of Parole (“the Board”) denied Wortman parole due to the seriousness of his offenses and the substantial risk that he would not conform to the conditions of release. Wortman subsequently filed a petition for writ of certiorari in the Chancery Court for Davidson County (“the Trial Court”) challenging the Board’s decision. The Trial Court affirmed the Board’s decision. Wortman appeals to this Court raising a number of issues. We affirm the Trial Court.
 
Davidson County Court of Appeals 11/08/21
Lisa Dorothea Henry v. Lauren Delano Smith
E2021-00019-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Frank V. Williams

The Domestic Relations Court for Meigs County dismissed a petition for order of protection, and the petitioner appealed to the Chancery Court for Meigs County (the “trial court”). The trial court determined that it lacked subject matter jurisdiction over the case and dismissed the appeal. Because the trial court has subject matter jurisdiction, we reverse.

Meigs County Court of Appeals 11/05/21
Deric J. Mead v. James Loyd Tucker
M2020-01512-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Joe H. Thompson

In this personal injury negligence action, the defendant died while the litigation was pending.  The plaintiff failed to file a motion for substitution of party within ninety days of the original defendant’s death being suggested on the record.  Over a month later, the plaintiff moved the trial court to enlarge the time to substitute the parties pursuant to Tennessee Rule of Civil Procedure 6.02(2).  The trial court denied the motion for an enlargement of time.  Because the trial court did not abuse its discretion, we affirm.

Sumner County Court of Appeals 11/05/21
Michael A. Cress Et Al. v. Tennessee State Board Of Equalization Et Al.
E2021-00093-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John F. Weaver

This action involves the valuation of thirty-two unimproved parcels of real property for taxation purposes. The property owners appealed the values assigned by the Knox County Assessor of Property to the Knox County Board of Equalization, the Tennessee State Board of Equalization, and the Tennessee Assessment Appeals Commission before filing a petition for judicial review in the Knox County Chancery Court (“trial court”). The trial court affirmed the respective values of the parcels as found by the Tennessee Assessment Appeals Commission. The property owners have appealed the trial court’s determination. Discerning no reversible error, we affirm the trial court’s judgment.

Knox County Court of Appeals 11/05/21
In Re Conservatorship Of Ruth Tomlinson Osborn
M2020-01447-COA-R3-CV
Authoring Judge: Western Section Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Ronald Thurman

Aristotle once explained that “it is possible to fail in many ways . . . while to succeed is possible only in one way[.]”[1] With some notable exceptions, in order for an issue to be proper on appeal, success depends on the following requirements: (1) that an issue be properly raised in the trial court; and (2) that the issue be properly raised on appeal. Of the three arguments Appellants presented in this appeal, none meets both of the above requirements, though they all fail in different respects. As a result, we affirm the decision of the trial court and award Appellee attorney’s fees for defending against a frivolous appeal.

Putnam County Court of Appeals 11/05/21
Ruby Bridges v. Randall Roth
W2020-01508-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Mary L. Wagner

This appeal involves a Tennessee Rule of Civil Procedure 4.01(3) summons issue. The trial court granted defendant’s motion to dismiss after finding that plaintiff intentionally delayed the issuance of the summons for the complaint in contradiction to Rule 4.01(3) of the Tennessee Rules of Civil Procedure. Plaintiff appeals. We affirm.

Shelby County Court of Appeals 11/04/21
In Re Austin W.
M2020-01315-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Stella L. Hargrove

This appeal involves the termination of a father’s parental rights to his young son.  The trial court found by clear and convincing evidence that four grounds for termination were proven and that termination was in the best interest of the child.  We affirm and remand for further proceedings.

Giles County Court of Appeals 11/03/21
In Re Jaxon C.
M2021-00537-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Steven D. Qualls

This is an appeal from a trial court’s modification of child support.  Father filed a petition to modify custody.  The trial court modified the parties’ parenting schedule but reserved its determination of child support for future adjudication.  Subsequently, without conducting an evidentiary hearing, the trial court entered an order requesting that the parties submit their own competing proposed orders concerning child support.  Ultimately, the trial court issued its final order setting child support based solely on the documents attached to Father’s proposed order.  Because the trial court failed to conduct an evidentiary hearing, we conclude that there was no evidence before it from which to make a ruling.  Accordingly, we vacate the trial court’s order and remand with instructions for it to conduct an evidentiary hearing to allow the parties to put on their proof as to child support.

Overton County Court of Appeals 11/02/21
In Re Sebashtian K. Et Al
E2020-01439-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Robert D. Philyaw

A mother and father appeal the termination of their parental rights to three children. The juvenile court concluded that there was clear and convincing evidence of multiple statutory grounds for termination. The court also concluded that there was clear and convincing evidence that termination of the parents’ parental rights was in the children’s best interest. After a thorough review, we agree and affirm.

Hamilton County Court of Appeals 11/02/21
Dorian Jones v. AutoNation Inc. Et Al.
E2020-01231-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor John C. Rambo

This case stems from the sale of a 2000 Mercury Sable (“the vehicle”) purchased by Amy Jennings from John M. Lance Ford, LLC, an affiliate of AutoNation, Inc. (“AutoNation” or “Defendant”), in 2017. Ms. Jennings signed all of the paperwork associated with the sale, including an arbitration agreement. In September of 2018, Ms. Jennings and her husband, Dorian Jones, filed suit against AutoNation in the Chancery Court for Washington County (the “trial court”) alleging multiple causes of action arising from the sale of the vehicle. Generally, Ms. Jennings and Mr. Jones alleged that AutoNation breached several warranties and fraudulently induced Ms. Jennings into the sale. Eventually, AutoNation filed a motion to compel arbitration which the trial court granted on August 10, 2020. Mr. Jones filed an appeal to this Court. Because an appeal from an order granting a motion to compel arbitration and staying litigation is nonfinal, this Court lacks subject matter jurisdiction and the appeal is dismissed.

Washington County Court of Appeals 11/01/21
Rachel Victory, Et Al. v. State of Tennessee
M2020-01610-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Commissioner James A. Halton

This appeal arises from an action before the Tennessee Claims Commission for personal injuries filed on behalf of a minor child who broke her arm when she fell from playground equipment at Tims Ford State Park. The complaint asserted claims for negligence, gross negligence, and gross negligence per se. It alleged that the State was negligent by failing to adequately maintain its property, and by failing to discover, rectify, and/or warn against a dangerous condition, and allowing park visitors “to use the playground which did not have a safe surface area.” The State denied liability under Tenn. Code Ann. § 9-8-307(a)(1)(C), insisting it had no notice of any dangerous condition; it also raised the “Recreational Use Statute,” Tenn. Code Ann. §§ 70-7-101 to -105, as an affirmative defense. Following discovery, the State filed a motion for summary judgment, which the claims commissioner granted. The commissioner found the State was entitled to judgment as a matter of law on two grounds. The commissioner found that Tenn. Code Ann.
§ 70-7-102 of the Recreational Use Statute provided immunity to the State as a landowner against premises-liability claims and that the gross negligence exception under the statute, Tenn. Code Ann. § 70-7-104(a)(1), did not apply. The commissioner also held that the claimants failed to show that notice of the alleged dangerous condition had been provided to the State, which is an essential element of the Claims Commission Act. The plaintiffs appeal one issue, asserting a genuine issue of material fact existed concerning whether the State’s failure to maintain the playground was gross negligence. We affirm the Commissioner’s decision on both grounds.

Court of Appeals 10/29/21
All Access Coach Leasing, LLC v. Jeff McCord, Commissioner Of Labor And Workforce Development, State of Tennessee
M2020-01368-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Anne C. Martin

An agency determined that a tour bus leasing company mischaracterized its tour bus drivers as independent contractors rather than employees, for the purposes of unemployment taxes. The company sought review in chancery court, which affirmed the agency’s determination. Because there is substantial and material evidence to support the agency’s determination, we affirm the trial court.

Davidson County Court of Appeals 10/28/21
300 Kate Street Partners, LLC v. NIS Trading, Inc. D/B/A NIS Construction
M2020-01253-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Anne C. Martin

A foreign corporation sought to have a default judgment entered against it set aside on the basis that service of process was ineffective, rendering the judgment void. Because the proof before the court at the time it entered the default fails to demonstrate that service by mail complied with Rule 4 of the Tennessee Rules of Civil Procedure, we reverse the judgment of the trial court, vacate the default judgment, and remand for further proceedings.

Davidson County Court of Appeals 10/28/21
Shannon Giles, Et Al. v. Geico General Insurance Company
M2021-00165-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge J. Curtis Smith

This appeal involves the applicability of Tennessee Code Annotated section 56-7-105, the bad faith penalty statute, to automobile insurance policies. The trial court granted the insurance company’s motion for summary judgment holding that Tennessee Code Annotated section 56-7-105 did not apply to automobile insurance policies. The insured appeals. We affirm.

Marion County Court of Appeals 10/28/21
Linda R. Kerley v. George Olin Kerley
E2021-01065-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Thomas W. Graham

The appellee, Linda R. Kerley (“Appellee”), filed a motion to dismiss this appeal alleging that the notice of appeal was not timely filed. Because the notice of appeal was not timely filed, this Court lacks jurisdiction to consider this appeal.

Bledsoe County Court of Appeals 10/27/21
Richard J. Hartigan Et Al. v. Arnold Brush Et Al.
E2020-01442-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Frank V. Williams, III

This is the second appeal in this action for breach of a contract to purchase improved real property. Prior to the first appeal, the trial court, having found following a bench trial that the defendant buyers, Arnold Brush and Pamela Sue Brush, had breached the parties’ purchase and sale agreement, initially entered damage awards in favor of the plaintiffs, who included the sellers, Richard J. Hartigan and Leila R. Hartigan; the Hartigans’ realtor, James M. Henry d/b/a Coldwell Banker Jim Henry & Associates (“Coldwell Banker”); and a realty company, Lakeway Realty Group, Inc. (“Lakeway Realty”), with whom the Brushes had entered into a buyer representation agreement. Mr. Brush, by then acting individually and as the Administrator of the Estate of Pamela Sue Brush, appealed to this Court, raising issues concerning the trial court’s calculations of damages and pre-judgment interest. This Court affirmed the judgment in favor of Lakeway Realty but vacated the award of damages and prejudgment interest to the Hartigans and the calculation of prejudgment interest awarded to Coldwell Banker. This Court directed that upon remand, the trial court was to enter additional findings of fact regarding the fair market value of the property, with further proceedings as necessary, and recalculate the amount of prejudgment interest awarded to Coldwell Banker.

Roane County Court of Appeals 10/27/21
MaryClair B. McDonald v. Kaleb C. Coffell
E2021-00460-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Lawrence Howard Puckett

A review of the record on appeal reveals that the order appealed from does not constitute a final appealable judgment. As such, this Court lacks jurisdiction to consider this appeal.

Bradley County Court of Appeals 10/26/21
In Re Estate of Micki D. Thompson
M2021-00025-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Louis W. Oliver, III

This appeal arises from a petition to probate a handwritten instrument as a codicil to the decedent’s last will and testament. The parties stipulated that the purported holographic will was in the handwriting of the decedent and that she was of sound mind and disposing memory at the time the purported holographic will was written. Additionally, the trial court found that the writing expressed a testamentary intent on the part of the decedent. Nevertheless, the trial court denied the petition, holding that the writing did not satisfy the signature requirement of Tenn. Code Ann. § 32-1-105 because, inter alia, the decedent’s name, Micki D. Thompson, was not subscribed to the writing. Instead, she merely identified herself within the writing in the third person as “Micki.” The court found the word “Micki” was not the decedent’s signature. The petitioner appeals, contending the handwritten instrument satisfies Tenn. Code Ann. § 32-1-105 because a testator’s name need not be “subscribed” as long as the name, or a portion thereof, is “inserted in some part of [the writing]” and the other requirements of Tenn. Code Ann. § 32-1-105 are satisfied. We agree because the decedent’s name was inserted in the writing, it was established that she was of sound mind and disposing memory, and the writing expresses a testamentary intent on the part of the decedent. Therefore, we reverse and remand with instructions to admit the handwritten instrument to probate as a codicil to the decedent’s last will and testament.

Sumner County Court of Appeals 10/25/21
David T. Frazier v. Herbert H. Slatery, III, Et Al.
E2020-01216-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jerri S. Bryant

The appellant challenges the chancery court’s order dismissing his petition for a declaratory judgment enjoining the State of Tennessee Attorney General, District Attorney General for the Tenth Judicial District, and an assistant district attorney general from enforcing his 2004 criminal convictions, which the appellant claimed had resulted in an illegal sentence. The chancery court dismissed Mr. Frazier’s petition because, inter alia, it did not have subject matter jurisdiction to adjudicate the matter. We affirm the chancery court’s order of dismissal.

Polk County Court of Appeals 10/25/21
Brett Hanson Et Al. v. Sarah J. Levan Et Al.
E2020-01581-COA-R9-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Deborah C. Stevens

In this healthcare liability action, the plaintiff sued several medical professionals and facilities. Following an amended complaint, which had removed multiple parties from the action, the remaining defendants filed their answer to the amended complaint that included allegations of comparative fault against a doctor that the plaintiff had removed as a party to the action in the amended complaint. The defendants did not file a certificate of good faith in compliance with Tennessee Code Annotated § 29-26-122, which is required when a defendant alleges comparative fault against a “non-party.” Following a motion by the plaintiff, the trial court entered an order striking the defendants’ allegations of comparative fault. The trial court further found that the defendants had not demonstrated good cause to support an extension of time to file a certificate of good faith. Discerning no error, we affirm.

Knox County Court of Appeals 10/25/21
Elizabeth Anne Sykes v. Chad Steven Sykes
M2020-00261-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joseph A. Woodruff

This appeal arises from a divorce proceeding filed by Wife in Tennessee.  Husband objected to the trial court’s divorce jurisdiction and any custody determination concerning the parties’ minor children.  Ultimately, the trial court found that it had jurisdiction over the parties’ divorce, as well as any custody determinations.  In connection with granting the parties a divorce, the trial court awarded Wife an equalizing distribution of the marital assets and attorney’s fees.  The trial court also found Husband to be in contempt due to his alleged violation of the statutory restraining order set out in Tennessee Code Annotated section 36-4-106(d) and his failure to return one of the parties’ minor children to Wife’s custody following summer visitation.  Husband now appeals numerous aspects of the trial court’s findings.  Upon our review of the record before us, we affirm in part and reverse in part.

Williamson County Court of Appeals 10/25/21
Corey L. Choate v. Amanda Kay Choate (Ralston)
E2020-01503-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jerri Bryant

This appeal concerns post-divorce residential parenting schedule matters and findings of criminal contempt. Corey L. Choate (“Father”) and Amanda Kay Choate (Ralston) (“Mother”), parents of daughter BC and younger son RC, divorced in 2015. Some years later, Father filed a petition in the Chancery Court for Bradley County (“the Trial Court”), seeking to modify the most recently entered permanent parenting plan and to have Mother found in criminal contempt. After a trial, the Trial Court entered its order regarding the children’s custody and Mother’s criminal contempt. As relevant, Father was granted complete custody of RC.Mother was found guilty of 573 counts of criminal contempt in connection with her failure to follow the parenting plan. Mother appeals, arguing among other things that she lacked adequate notice of the criminal contempt charges because the Trial Court failed to read the charges aloud to her in open court upon her request. We find, inter alia, that Father’s detailed Second Amended Notice of Criminal Contempt, as well as the Trial Court’s written order entered before trial specifically finding that Mother was on notice of the charges, reflect that Mother received adequate notice of the criminal contempt charges against her. We affirm the judgment of the Trial Court in its entirety and remand for an award to Father of his reasonable attorney’s fees incurred on appeal.

Bradley County Court of Appeals 10/25/21
In Re William B.
M2020-01187-COA-R3-PT
Authoring Judge: Presiding Judge Steven Stafford
Trial Court Judge: Judge Donna Scott Davenport

Mother appeals the termination of her parental rights to one child. In addition to disputing the grounds for termination and best interest, Mother argues on appeal that she should have been appointed counsel in the termination proceeding and that the Tennessee Department of Children’s Services violated Tennessee Code Annotated section 33-6-401. We conclude that the record demonstrates that Mother expressly waived her right to counsel and failed to show that the waiver was ineffective. We further hold that section 33-6-401 was inapplicable in this case. Finally, we conclude that clear and convincing evidence was presented of both the grounds for termination and that termination is in the child’s best interest. As such, we affirm the decision of the trial court. 

Rutherford County Court of Appeals 10/22/21
Roger Dale Grice v. Dawn Marie Grice
M2020-00931-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kathryn Wall Olita

Following a divorce, a husband appeals the trial court’s division of his military retirement benefit. Discerning no error, we affirm the trial court’s order.

Montgomery County Court of Appeals 10/20/21