Court of Appeals Opinions

Format: 10/16/2021
Format: 10/16/2021
Fred Auston Wortman, III v. State of Tennessee Board Of Parole, Et Al.
M2020-01554-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Russell T. Perkins

After being denied parole, Fred Auston Wortman, III (“Plaintiff”) filed suit against the State of Tennessee (the “State”), the Tennessee Board of Parole (the “Board”), several board members and other state employees, and two assistant district attorneys in the Chancery Court for Davidson County (the “trial court”). Several defendants moved for dismissal for failure to state a claim for which relief can be granted. The trial court granted the motion to dismiss and Plaintiff appealed to this Court. Because the trial court’s order is not final, however, we lack subject matter jurisdiction to hear this appeal. The appeal is therefore dismissed.

Davidson County Court of Appeals 09/13/21
E Solutions For Buildings, LLC v. Knestrick Contractors, Inc., Et Al.
M2020-01189-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Russell T. Perkins

This is the third appeal in a dispute among a general contractor, a subcontractor, and an equipment supplier. Each party blamed the others for delays in a construction project. After the first appeal was dismissed for lack of a final judgment, the trial court held each party partially responsible for the delays and partially responsible for liquidated damages assessed by the owner. In the second appeal, this court modified the judgment in part, reversed it in part, and remanded for further proceedings. On remand, the subcontractor sought to recover from the general contractor discretionary costs of $10,962.42, attorneys’ fees of $220,724.53 under the Prompt Pay Act of 1991, Tenn. Code Ann. §§ 66-34-101 to -704, and “[a]dditional charges.” The trial court awarded some of the requested fees but excluded $100,350 of attorneys’ fees attributed to legal services rendered during the first and second appeal because the subcontractor’s request for appellate attorneys’ fees was untimely, i.e., the relief had not been requested in the pleadings in the prior appeals. The trial court also denied $29,685 in fees incurred in the trial court proceedings for legal services that were “unrelated to [the general contractor].” The trial court also found the subcontractor was not entitled to recover the “[a]dditional charges” because the remand from the Court of Appeals did not authorize such expenses. This appeal followed. The principal issues in this appeal concern the subcontractor’s claims for attorneys’ fees and additional expenses and whether the general contractor’s surety is secondarily liable for one of the judgments. Finding no error, we affirm the trial court’s judgment in all respects.

Davidson County Court of Appeals 09/13/21
In Re Christopher L.
M2020-01449-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Michael E. Spitzer

This case concerns the termination of a father’s parental rights to his son. The trial court predicated termination of parental rights on the ground of abandonment by failure to visit and found termination of the father’s parental rights was in the child’s best interest. We have determined that the record contains clear and convincing evidence to support the trial court’s findings and affirm the termination of the father’s parental rights. 

Lewis County Court of Appeals 09/13/21
Hunter Ryan Ellis, Et Al. v. Christina L. Duggan, Et Al.
E2020-00723-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Jeffrey M. Atherton

This is a case involving allegations of undue influence. The plaintiffs are the grandchildren of the decedent. The sole defendant at issue on appeal is the decedent’s niece, who also held power of attorney for the decedent during the last years of her life. The transaction at issue occurred roughly six months before the decedent died and consisted of a gift of $176,000 to the niece for the purchase of a house. The executor of the decedent’s estate declined to pursue the claim for undue influence and assigned the cause of action to the decedent’s four grandsons, who were the residuary beneficiaries of the estate. After a five-day bench trial, the trial court found that a confidential relationship existed between the decedent and the defendant niece and that multiple suspicious circumstances existed to support a finding of undue influence. As such, the trial court entered a judgment against the defendant niece for $176,000. However, the trial court denied the plaintiffs’ request for attorney fees on the basis that they were “not available under the current caselaw relating to undue influence.” The defendant niece appeals, challenging the finding of undue influence. The plaintiffs appeal the denial of their request for attorney fees. Having carefully reviewed the voluminous record, we affirm the finding of undue influence and the judgment against the defendant niece. We reverse the denial of the plaintiffs’ request for attorney fees and remand for a reasonable award of attorney fees incurred by the plaintiffs in the trial court and on appeal.

Hamilton County Court of Appeals 09/10/21
IN RE A.W.
M2020-00892-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Darrell Scarlet

A mother and an unknown father were the subjects of a petition to terminate parental rights and to adopt a child.  Only mother appeals.  She argues that she lacked notice of the proceedings and that the petitioners failed to comply with the parental termination statutes.  She also contests the statutory grounds relied on for terminating her parental rights and the trial court’s determination that termination was in her child’s best interest.  We affirm the termination of the mother’s parental rights.  But because the record does not reflect that the unknown father was served under the Tennessee Rules of Civil Procedure or the statutes governing substituted service, we vacate the judgment terminating his parental rights.

Rutherford County Court of Appeals 09/08/21
Bobby Scott Smith v. Barbara Diane (Fuston) Smith
M2019-01834-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge A. Ensley Hagan, Jr.

A husband and wife sought to end their long-term marriage. After a prolonged trial, the court classified, valued, and equitably divided the marital estate. The court also ordered both parties to pay their own attorney’s fees. The wife filed a motion to alter or amend the final decree. Acknowledging errors in the initial decree, the court issued an amended divorce decree. Among other things, the court amended the value of the marital residence. Both parties raise issues on appeal. We find the evidence does not preponderate against the court’s classification of the husband’s interest in several parcels of real property as marital property. We also conclude that the court did not abuse its discretion in amending the value of the marital residence, dividing the marital estate, or declining to award attorney’s fees to the wife. So we affirm.

Wilson County Court of Appeals 09/07/21
In Re Kierani C.
W2020-00850-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Gina C. Higgins

This is a termination of parental rights case focusing on Kierani C., the minor child (“the Child”) of Christopher A., Sr. (“Father”), and Keona C. (“Mother”). In August 2017, Mother surrendered her parental rights to the Child before the Shelby County Chancery Court (“chancery court”).1 At that time, the Child was placed in the legal custody and partial guardianship of Hannah’s Hope United Methodist Adoption and Pregnancy Counseling (“Hannah’s Hope”) and the physical custody of pre-adoptive parents, Katherine B. and Adrian B. In September 2017, Hannah’s Hope filed a petition in the chancery court to terminate Father’s parental rights to the Child. In January 2018, Father filed a petition to establish parentage in the Memphis and Shelby County Juvenile Court (“juvenile court”), and in May 2018, Katherine B. and Adrian B. filed a petition in the Shelby County Circuit Court (“trial court”) to terminate Father’s parental rights to the Child. Upon motions filed by Katherine B. and Adrian B., all matters pertaining to the Child were subsequently transferred to the trial court, which consolidated the actions. Following a bench trial, the trial court granted both termination petitions upon its finding clear and convincing evidence of ten statutory grounds, including four abandonment grounds, specifically that Father had willfully failed to (1) visit the Child in the four months preceding the petition’s filing by Hannah’s Hope, (2) financially support the Child in the four months preceding each petition’s filing, (3) visit Mother during the four months preceding the Child’s birth, and (4) make reasonable payments toward Mother’s financial support during the four months preceding the Child’s birth, as well as six grounds applicable to a putative father, specifically that Father had failed to (5) pay a reasonable share of expenses related to the Child’s birth, (6) make reasonable and consistent payments for the Child’s support, (7) seek reasonable visitation with the Child, (8) file a petition to establish paternity within thirty days of receiving notice of alleged paternity, and (9) manifest an ability and willingness to assume legal and physical custody of the Child, and, additionally, that (10) placement of the Child in Father’s legal and physical custody would pose a risk of substantial harm to the Child’s welfare. The trial court further found by clear and convincing evidence that it was in the Child’s best interest to terminate Father’s parental rights. Father has appealed. We hold that under Tennessee Code Annotated § 36-1-113(g)(9)(A)(ii) and (iii), a putative father’s efforts made after the termination petition’s filing may be considered in reviewing the respective grounds involving failure to support the child and failure to seek or maintain visitation with the child. Therefore, having determined that clear and convincing evidence did not support the trial court’s findings that Father’s efforts to support and visit the Child made after the respective petitions’ filings were unreasonable or token, we reverse the trial court’s findings as to these two grounds. We affirm the trial court’s judgment terminating Father’s parental rights in all other respects.

Shelby County Court of Appeals 09/03/21
Tennessee Department of Human Services v. Andrew Jackson Heaton
E2021-00791-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor John C. Rambo

A non-attorney filed a notice of appeal as next friend of Andrew Jackson Heaton. As a non-attorney next friend may not practice law while acting on behalf of an infant or incompetent, this appeal is hereby dismissed.

Washington County Court of Appeals 09/03/21
Melissa Ann (Letner) Grayson v. Elmer Wayne Grayson
E2020-01339-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge J. Michael Sharp

This appeal arose from a 2011 divorce decree awarding to the wife one-half of the husband’s military retirement pay that had accumulated during the term of the marriage. At the time of the husband’s retirement in 2018, the United States Defense Finance and Accounting Service would not disburse retirement funds to the wife due to deficient award language contained in the 2011 order. The Defense Finance and Accounting Service explained in a letter addressed to the wife that the 2011 order had failed to provide a method to calculate the marital portion of the husband’s retirement pay and that it had no way to calculate retirement pay that had “accumulated during the term of the marriage.” In order to effectuate the enforcement of its intended division of the husband’s military retirement pay, the trial court attempted to correct its order by replacing “accumulated during the term of the marriage” with language compliant with the United States Department of Defense Financial Management Regulations (“DoD Regulations”) and specifying that the wife should be awarded fifty percent of the husband’s disposable military retired pay based upon his military pay grade rank and his creditable service years as of the date of the divorce.

Monroe County Court of Appeals 09/03/21
Guidesoft, Inc. D/B/A Knowledge Services v. State Protest Committee, State of Tennessee, Et Al.
M2020-00964-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Patricia Head Moskal

This appeal concerns a bid protest. UWork.com, Inc., d/b/a Covendis Technologies (“Covendis”) successfully bid on a contract to manage a network of temporary workers for the State of Tennessee. Guidesoft, Inc. d/b/a Knowledge Services (“Knowledge Services”), an unsuccessful bidder, filed a protest with the Central Procurement Office (“the CPO”). The CPO dismissed Knowledge Services’ bid for insufficient bond. Knowledge Services appealed to the State Protest Committee (“the Committee”), which denied the appeal. Knowledge Services then filed a petition for common law writ of certiorari in the Chancery Court for Davidson County (“the Trial Court”). After a hearing, the Trial Court dismissed Knowledge Services’ amended petition. Knowledge Services now appeals to this Court, arguing that under Tenn. Code Ann. § 12-3-514(d), its protest bond should be based on 5% of the lowest evaluated cost proposal rather than 5% of the State’s estimated maximum liability as found below. We hold, inter alia, that the protest bond statute is meant to protect the State, and the appropriate protest bond amount is based on the costs the State may incur rather than a bidder’s proposed cost. Further, the fee relied upon by Knowledge Services to calculate its protest bond is but a small portion of the contract at issue, which is estimated to cost the State $190,000,000. The Committee did not exceed its jurisdiction or act illegally, arbitrarily, or fraudulently. We affirm the Trial Court. 

Davidson County Court of Appeals 09/02/21
Regions Bank v. Doctor R. Crants
M2020-01703-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This is a collection lawsuit to recover the balance Appellant allegedly owes on a promissory note held by Appellee.  On Appellant’s motion, the trial court stayed the proceedings and remitted the matter to binding arbitration pursuant to the terms of the promissory note.  Appellant brings the instant appeal under Tennessee Rule of Appellate Procedure 3(a).  Because the order appealed is not final, this Court lacks subject-matter jurisdiction over the appeal. Tenn. R. App. P. 3(a).  Furthermore, neither the Federal Arbitration Act nor the Tennessee Uniform Arbitration Act provides a mechanism for appeal of Appellant’s issues to this Court.  Appeal dismissed.

Davidson County Court of Appeals 09/01/21
In Re Kaelyn R.
E2020-01254-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Alex E. Pearson

A mother appeals the termination of her parental rights to her daughter. The trial court concluded that there was clear and convincing evidence that the mother had abandoned her child by wanton disregard and by committing severe child abuse against her. The court also concluded that the evidence was clear and convincing that termination of parental rights was in the child’s best interest. We agree and affirm.

Hamblen County Court of Appeals 08/31/21
Jeremy Khristian Abney v. Kaitlynne Nichole Pace
M2020-00182-COA-R3-CV
Authoring Judge: Chief Judge D Michael Swiney
Trial Court Judge: Chancellor Howard W. Wilson

This appeal arises from a post-divorce proceeding. The father filed a petition to modify child support, and the mother filed a civil contempt action against the father for failure to pay child support as ordered by the court. Following trial, the trial court found that a significant variance existed from the previously ordered child support obligation and granted the father’s petition to modify child support. The trial court retroactively modified the father’s child support obligation from the date the petition was filed, resulting in three modifications while the petition had been pending. In the respective child support worksheets for the modifications, the trial court declined to include a credit to the mother for the health insurance premiums she had paid for the child, determining such expense of additional insurance coverage not to be “a reasonable necessity or requirement.” In consideration of the mother’s civil contempt complaint, the trial court found that the father had been in contempt of court due to his failure to pay child support as ordered by the court but that he had cured his contempt due to an involuntary payment from his income tax refund proceeds and the retroactive modification of his obligation and resultant overpayment of child support while the petition to modify was pending. The trial court further denied an award of attorney’s fees to either party. Discerning no error, we affirm the trial court in all respects.

Rutherford County Court of Appeals 08/31/21
Julie C. W. v. Frank Mitchell W. Jr.
M2019-01243-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Phillip E. Smith

The Tennessee Supreme Court entered an order vacating our previous judgment in this matter solely with respect to the division of the marital estate and remanding for our further review consistent with its order. We find upon further review that the Circuit Court for Davidson County (“the Trial Court”) abused its discretion in dividing the marital estate as it did. We vacate the judgment of the Trial Court on this one issue and remand for a new and equitable division of the marital estate.

Davidson County Court of Appeals 08/30/21
In Re PrinceKenyan F.
M2020-01306-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Stella L. Harvrome

This appeal concerns the termination of a mother’s parental rights. The trial court found that seven grounds had been established: abandonment for failure to support; abandonment for failure to visit; abandonment for failure to provide a suitable home; substantial noncompliance with the permanency plan; persistence of conditions; mental incompetence; and failure to manifest an ability and willingness to assume custody. It also found that termination was in the child’s best interest for many reasons, including the mother’s failure to provide a safe home, maintain regular visitation, pay child support, and resolve her legal, mental health, and substance abuse issues. The mother contends the trial court incorrectly calculated the period relevant to the ground of abandonment, erred by admitting her mental health records into evidence in violation of Tenn. Code Ann. § 24-7-122, and that the evidence failed to meet the clear and convincing evidence standard. Following a thorough review of the record, we have determined that four of the seven grounds for termination as found by the trial court were established by clear and convincing evidence and that termination of the mother’s parental rights was clearly and convincingly in the child’s best interest. Therefore, we affirm the termination of the mother’s parental rights.

Lawrence County Court of Appeals 08/30/21
Marn Suzanne Larsen-Ball v. William Gordon Ball
E2020-00297-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Gregory S. McMillan

In this post-divorce action concerning enforcement of the trial court’s order distributing the parties’ marital property, the trial court ultimately awarded a judgment to the wife in the amount of $206,868.67. The court also ordered that the wife would be entitled to a certain portion of the proceeds from the sale of the parties’ former marital residence. The court dismissed the wife’s contempt claims and declined to award interest or attorney’s fees. The husband has appealed. Having discerned two relatively minor errors in the judgment, we modify the amount awarded to the wife to increase it by $18,525.24, enlarging the trial court’s award to the wife to the total of $225,393.91 rather than $206,868.67. We affirm the trial court’s judgment in all other respects.

Knox County Court of Appeals 08/30/21
Nigel M. Reid, II v. Colette Jean Wallace
E2021-00181-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Beth Boniface

Following a hearing, the Circuit Court for Hamblen County (“trial court”) entered an order of protection against Nigel Reid II (“Respondent” or “Cross-Petitioner”) and in favor of Collette Jean Wallace (“Petitioner” or “Cross-Respondent”). Respondent appealed to this Court. Because Respondent’s brief fails to comply with Tennessee Rule of Appellate Procedure 27, we dismiss the appeal.

Hamblen County Court of Appeals 08/30/21
In Re L.F., Et Al.
M2020-01663-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Thomas C. Faris

This case involves a petition to terminate parental rights.  The petition was filed by the Tennessee Department of Children’s Services against the biological mother of three minor children.  The petition listed seven grounds for termination of the mother’s parental rights.  After a final hearing on the petition, the trial court terminated Mother’s parental rights, finding five grounds for termination: (1) abandonment by failing to visit; (2) persistence of conditions; (3) substantial noncompliance with a permanency plan; (4) failure to manifest an ability or willingness to parent; and (5) severe child abuse.  We affirm the trial court in part, reverse in part, and remand.

Franklin County Court of Appeals 08/26/21
Irene Howard v. State of Tennessee
M2020-00735-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Commissioner James Haltom

Following a car accident involving an employee of the State of Tennessee, Irene Howard (“Claimant”) sought damages against the State based on alleged injuries arising from the accident. The claim was denied by the Division of Claims and Risk Management (the “DCRM”), and Claimant thereafter appealed to the Claims Commission (the “Commission”). Because Claimant failed to appeal the DCRM’s decision within ninety days, however, the Commission concluded it lacked jurisdiction over the case and dismissed the appeal. We affirm.

Court of Appeals 08/26/21
Delia Ruth Smith Durham v. Karen Stone, Et Al.
E2020-01444-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge John B. Bennett

This appeal involves a complaint filed by a pro se plaintiff. After two hearings, the trial court entered an order granting the defendants’ motions to dismiss. The plaintiff appeals. We affirm.

Hamilton County Court of Appeals 08/25/21
In Re Jackson H.
M2020-01551-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge:

The trial court terminated a father’s parental rights to his child on the grounds of (1) persistence of conditions, (2) failure to manifest an ability and willingness to personally assume custody or financial responsibility, (3) substantial noncompliance with the permanency plan, and (4) abandonment by wanton disregard. The trial court also found that termination of the father’s parental rights was in the child’s best interest. Although we reverse three of the termination grounds, we affirm the trial court’s conclusion that clear and convincing evidence supports a finding of abandonment by wanton disregard. We also affirm the trial court’s determination that the termination of the father’s parental rights is in the best interest of the child.

Giles County Court of Appeals 08/25/21
W. Scott Johnson v. Tomcat USA, Inc. et al.
E2021-00057-COA-R9-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Michael W. Moyers

This interlocutory appeal concerns the trial court’s refusal to enforce a forum selection clause contained in a stock bonus transfer agreement in this action arising out of the termination of the plaintiff’s employment. The defendants filed a motion to dismiss for improper venue, citing the forum selection clause, which specified New York as the sole venue for litigating claims. The trial court denied the motion to dismiss. The defendants appeal. We affirm the decision of the trial court.

Knox County Court of Appeals 08/24/21
Carlos Rodgers et al v. Nationstar Mortgage et al.
W2020-01022-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Felicia Corbin Johnson

This appeal concerns the dismissal of one of the defendants involved in the underlying case. Because there is no written order evidencing how the operative claims against the subject defendant were resolved, we vacate the trial court’s dismissal of the defendant and remand for further proceedings not inconsistent with this Opinion.

Shelby County Court of Appeals 08/24/21
Rarity Bay Partners v. Rarity Bay Community Association Inc. Et Al.
E2021-00166-COA-R10-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Jerri Bryant

Members of a nonprofit corporation sought to compel production of election records from the election of the corporation’s board of directors. The trial court ordered production of the records pursuant to a protective order. This Court granted the Rule 10 appeal to determine whether production of the election ballots is required under the Tennessee Nonprofit Corporation Act, whether the members have a privacy right with respect to their votes, and whether the trial court’s protective order protects that privacy right. We hold that production of the ballots is required under the statute, members have a limited privacy right with respect to their votes, and the protective order protects that right.

Monroe County Court of Appeals 08/23/21
Rickie Heatherly v. Off The Wagon Tours, LLC
M2019-01582-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Anne C. Martin

Relying on an inapplicable statute, the plaintiff asked the court to order a limited liability company to produce records for his inspection.  Claiming that the plaintiff had never been a member, the LLC denied that he was entitled to access its records.  After a bench trial, the court found that the plaintiff was a member and entitled to inspect and copy the records.  So the court ordered the LLC to allow the inspection and to pay the plaintiff’s costs and attorney’s fees incurred in filing suit.  The evidence does not preponderate against the court’s finding that the plaintiff was a member at formation of the LLC.  But because the relief was sought under an inapplicable statute, we vacate the inspection order and the award of attorney’s fees. 

Davidson County Court of Appeals 08/23/21