Court of Appeals Opinions

Format: 12/06/2021
Format: 12/06/2021
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
Pamela Estelle Harrison Et Al. v. Shannon Nicole Harrison
M2020-01140-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ted A. Crozier

This case involves a same-sex divorce and the resultant child custody issues regarding two children born during the marriage through artificial insemination. The sperm donor intervened in the divorce proceeding requesting the court establish him as the children’s legal father and award him parenting time. The trial court denied his request to be named the children’s legal father based on its interpretation and application of Tenn. Code Ann. § 68-3-306, Tennessee’s artificial insemination statute. The sperm donor appeals, challenging the court’s refusal to name him as a parent or award him visitation. We affirm the trial court in all respects.

Montgomery County Court of Appeals 10/15/21
Udo R. Liell v. Paul Stich
M2020-01071-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle

When negotiations over the sale of a boat broke down, the prospective seller and buyer sued each other. Before their claims came to trial, the parties agreed to voluntarily dismiss their claims without prejudice and to try mediation. The agreement provided that, if mediation failed, claims must be refiled within one year of the effective date of the agreement. The buyer refiled his claims against the seller just over one year after the effective date of the agreement but within one year of the dismissal of the original case. The trial court granted the seller’s motion to dismiss, concluding the buyer’s claims were time-barred under the parties’ agreement. We affirm. 

Davidson County Court of Appeals 10/14/21
Shahnaz Poursaied v. Tennessee Board of Nursing
M2020-01235-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor J.B. Cox

Tennessee’s Department of Health (“TDH” or “the Department”) sought reciprocal revocation of a registered nurse’s Tennessee license after her registered nurse license was revoked in California.  After a hearing on the matter, which the nurse did not attend, the Tennessee Board of Nursing (“Board”) entered a default judgment against the nurse and revoked her Tennessee license.  The nurse appealed to the chancery court and brought an action for damages against the Board.  The chancery court affirmed the Board’s decision and dismissed the nurse’s action for damages.  The nurse then appealed to this Court. We affirm the chancery court in all respects.

Lincoln County Court of Appeals 10/14/21
Paul Zachary Moss v. Shelby County Civil Service Merit Board
W2017-01813-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor JoeDae L. Jenkins

This appeal arises from a petition for judicial review of a decision of the Shelby County Civil Service Merit Board. The appellant was a firefighter and paramedic and was terminated from his employment after he was involved in a physical altercation at a political rally. After a hearing, the Board upheld his termination. The appellant then sought judicial review in chancery court. After reviewing the administrative record, the chancery court likewise upheld termination. On appeal, this Court concluded that the decision upholding the appellant’s termination should be reversed due to a violation of his due process rights. The Tennessee Supreme Court found no due process violation and reversed the decision of this Court, remanding for consideration of alternative arguments raised by the appellant that were deemed pretermitted in our previous opinion. Having carefully considered the appellant’s alternative arguments, we affirm the chancery court’s rulings on some issues but ultimately must vacate in part the decision upholding termination and remand for further proceedings before the Board.

Shelby County Court of Appeals 10/14/21
Matthew Keith Hubbard v. Claiborne County Board of Education Et Al.
E2020-00517-COA-Rr3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Elizabeth C. Asbury

A tenured teacher appealed his dismissal for unprofessional conduct and insubordination. He contended that the decision of the Board of Education lacked sufficient evidentiary support. The teacher also contended that the decision was arbitrary and capricious and in violation of his constitutional and statutory rights. The trial court affirmed the Board’s decision. Upon review, we conclude that the teacher received pre-termination notice of the charges and evidence against him. And the Board complied with the procedural framework in the Tenure Act. See Tenn. Code Ann. § 49-5-512 (2020). The evidence does not preponderate against the trial court’s findings that the teacher was guilty of unprofessional conduct and insubordination. We further conclude that the teacher failed to establish that the Board’s decision was arbitrary or in violation of statutory or constitutional rights. So we affirm.

Claiborne County Court of Appeals 10/13/21
Kacy Collums Davis v. Richard E. Davis, Jr.
W2019-02245-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Rhynette N. Hurd

In this divorce case, Richard E. Davis, Jr. (“Husband”) challenges the trial court’s division of the marital estate, the award of spousal support and attorney’s fees to Kacy Collums Davis (“Wife”), and the trial court’s designation of Wife as primary residential parent. Wife asserts that the trial court erred in its division of the marital estate, in declining to award her 100% of her attorney’s fees, in denying her motion to disqualify the guardian ad litem, in awarding the parties equal parenting time, and in calculating Husband’s income for child support purposes. We modify the division of the marital estate (1) to correct a miscalculation, agreed by the parties to have been a clerical error in the trial court’s order, counting Wife’s retirement account twice; and (2) to reflect that Wife shall be responsible for the debt for her first attorney’s fees, which is secured by a lien on the marital residence. We affirm the trial court’s judgment in all other respects.

Shelby County Court of Appeals 10/13/21
Thomas A. Smythe v. Fourth Avenue Church Of Christ, Inc.
M2020-01190-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Joseph A. Woodruff

This appeal involves a contract issue concerning a purported addendum to a land purchase and sale agreement. The trial court granted the seller’s motion for summary judgment holding that there was no mutual assent on at least one material term: whether the modification would include a new date-certain deadline for the diligence period or be openended. The buyer appeals. We affirm.

Williamson County Court of Appeals 10/13/21
Kodi Gail Knight v. The City of Fairview, Williamson County, Tennessee
M2020-01433-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Joseph A. Woodruff

This appeal concerns a police officer’s termination. Kodi Gail Knight (“Knight”) was a police officer for the City of Fairview, Tennessee (“Fairview”). After an August 2019 incident in which Knight struck a handcuffed woman (“the Arrestee”) in the face, Fairview police chief Zack Humphreys (“Chief Humphreys”) submitted a request to City Manager Scott Collins (“the City Manager”) that Knight be terminated. The City Manager sent Knight a termination letter. Knight requested, and was granted, a pre-dismissal hearing before the City Manager. Following this hearing, the City Manager affirmed the decision to terminate Knight. Knight filed a petition for writ of certiorari in the Chancery Court for Williamson County (“the Trial Court”). The Trial Court affirmed Fairview’s termination of Knight. Knight appeals, arguing among other things that his procedural due process rights were violated because the City Manager both drafted his termination letter and presided over his pre-dismissal hearing. We find that Knight was an at-will employee who lacked a property interest entitling him to procedural due process protection. We also find that the City Manager’s decision was supported by substantial and material evidence and was neither arbitrary nor capricious. We affirm the judgment of the Trial Court.

Williamson County Court of Appeals 10/12/21
Gary W. Garrett v. Tony Parker
M2020-01742-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Anne C. Martin

This is the second action in which the petitioner, an inmate in the custody of the Tennessee Department of Corrections (“TDOC”), seeks good sentence credits and prisoner performance credits. The trial court dismissed the present action, filed in 2019, in accordance with Rule 12.02(6) of the Tennessee Rules of Civil Procedure, determining that res judicata barred the suit. The decision was based on the following findings: the petitioner did not assert that the Davidson County Chancery Court lacked jurisdiction to hear the case in the prior action, filed in 2005, “the same parties were involved in both . . . suit[s],” both cases “arose out of the same transaction or series of connected transactions” between the same parties, and “the [prior] suit resulted in a final judgment on the merits . . . .” We affirm. 

Davidson County Court of Appeals 10/12/21
Hal Eugene Hill v. Liesa Francine Hill
E2019-02226-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson
Trial Court Judge: Judge Lawrence H. Puckett

In this post-divorce action, the trial court awarded a judgment in the amount of $13,835.17 to the father, representing the mother’s retroactive child support obligation. When calculating the mother’s child support arrearage, the trial court declined to include the father’s inheritance as income for child support calculation purposes because the father had used the majority of his inherited funds to pay private school tuition for the parties’ two children. The court further awarded to the father attorney’s fees and costs in the amount of $18,394.00 related to a previous child custody modification action. The mother has appealed. Discerning reversible error, we vacate the trial court’s child support award and remand the child support issue to the trial court for further proceedings to determine whether a modification was warranted and if so, the appropriate amount of child support to be awarded pursuant to the Child Support Guidelines (“the Guidelines”). We also vacate the trial court’s determination concerning civil contempt and remand that issue to the trial court as well.

Bradley County Court of Appeals 10/12/21
John William Owens v. Meredith Elizabeth Owens
E2021-00608-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Casey Mark Stokes

Issues regarding an award of attorney fees remain pending, so the order appealed from does not constitute a final appealable judgment. As such, this Court lacks jurisdiction to consider this appeal.

Meigs County Court of Appeals 10/11/21
In Re Amora S.
E2021-00338-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Janice H. Snider

This appeal involves the termination of a father’s parental rights. The child was placed into the custody of the Tennessee Department of Children’s Services (“DCS”) in May 2019. DCS subsequently filed a petition to terminate the father’s parental rights in the Hamblen County Juvenile Court (“Juvenile Court”). Following trial, the Juvenile Court entered an order terminating the father’s parental rights to the child, upon its finding by clear and convincing evidence that the father had failed to manifest an ability and willingness to parent the child, that returning the child to the father’s custody would pose a risk of substantial harm to the child’s psychological welfare, and that termination of the father’s parental rights was in the child’s best interest. Discerning no reversible error, we affirm.

Hamblen County Court of Appeals 10/08/21
Robert C. Pelt, Et Al. v. Richard E. Benjamin Et Al.
M2020-01068-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Charles K. Smith

This case concerns an alleged contract for the sale of real property. Although a prior written offer regarding the property expired pursuant to its stated terms when it was not timely accepted, the trial court held that there was an oral agreement to extend the expiration date for acceptance and concluded that the Statute of Frauds did not serve as an impediment to enforcement of the parties’ alleged contract when the plaintiffs, the appellees herein, filed suit to enforce it. The trial court also concluded that no damages should be awarded under former Tennessee Code Annotated section 66-21-108 to the defendants, who had asserted a slander of title claim in the trial court. The defendants now appeal, challenging both the trial court’s contract law analysis and its decision to not award them statutory damages. Although we reverse the trial court’s judgment with respect to the plaintiffs’ breach of contract claim, we affirm its refusal to award the defendants statutory damages for the reasons stated herein.

Wilson County Court of Appeals 10/07/21