Court of Appeals Opinions

Format: 12/07/2021
Format: 12/07/2021
Tennesseans For Sensible Election Laws v. Herbert H. Slatery, III Et Al.
M2020-01292-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen Hobbs Lye

This is an action for declaratory judgment and injunctive relief that challenges the constitutionality of Tenn. Code Ann. § 2-19-142, which criminalizes the publication of false statements opposing a political candidate. The complaint was filed by a political campaign committee that engages in direct advocacy for and against political candidates. The defendants, the Tennessee Attorney General and the District Attorney General for the 20th Judicial District of Tennessee, contended the action should be dismissed, inter alia, for lack of subject matter jurisdiction because the campaign committee lacked standing to challenge the constitutionality of the statute. The trial court found that the committee had standing because it faced a credible threat of prosecution and, acting upon the campaign committee’s motion for summary judgment, the trial court held that Tenn. Code Ann. § 2-19-142 contravenes the First Amendment to the United States Constitution and article I, section 19 of the Tennessee Constitution. The court also awarded the campaign committee its attorney’s fees pursuant to 42 U.S.C. § 1988(c) as the prevailing party. We have determined the campaign committee failed to establish that it had standing to challenge the constitutionality of Tenn. Code Ann. § 2-19-142; therefore, we hold that the trial court lacked subject-matter jurisdiction to rule on the matter. For these reasons, we vacate the judgment of the trial court, including the award of attorney’s fees to the campaign committee, and remand with instructions to dismiss.  

Davidson County Court of Appeals 10/07/21
Emergency Medical Care Facilities, P.C. v. Division Of Tenncare, Et Al.
M2020-01358-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Anne C. Martin

This appeal involves a reimbursement limitation that TennCare imposed on “non-emergent” medical services provided by emergency department physicians. TennCare informed its managed care organizations of the reimbursement limitation via email without engaging in rule-making procedures outlined in the Uniform Administrative Procedures Act (“UAPA”). The trial court concluded the reimbursement limitation was a “rule” subject to the rule-making requirements of the UAPA and invalidated the reimbursement limitation. We hold that the reimbursement limitation falls within the internal management exception of the 2009 version of the UAPA and was therefore not subject to the UAPA’s rule-making requirements. The ruling of the trial court is reversed.

Davidson County Court of Appeals 10/07/21
In Re Elijah H.
M2020-01548-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Charles B. Tatum

This termination of parental rights case focuses on Elijah H. (“the Child”), the minor child of Amanda H. (“Mother”) and Kevin W. (“Father”).  In March 2019, the Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate the parental rights of Mother and Father in the Wilson County Juvenile Court (“trial court”).  The Child had previously been removed from Mother’s custody after he was born exposed to drugs.  Father was incarcerated prior to the Child’s birth and has remained so continuously since that time, awaiting trial for pending criminal charges, including first degree murder.  During a bench trial, Mother voluntarily surrendered her parental rights to the Child. At the conclusion of the bench trial, the trial court terminated Father’s parental rights to the Child, finding by clear and convincing evidence that Father had abandoned the Child by exhibiting wanton disregard for the Child’s welfare prior to Father’s incarceration and that Father had failed to manifest an ability and willingness to assume legal and physical custody of or financial responsibility for the Child.  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.   Having determined that DCS presented insufficient evidence that Father knew of the Child’s existence at the time of his criminal behavior, we reverse the trial court’s finding that Father abandoned the Child by exhibiting wanton disregard for the Child’s welfare.  We affirm the trial court’s judgment in all other respects, including the termination of Father’s parental rights.

Wilson County Court of Appeals 10/06/21
Ralph Junior Lowe v. Roy Province et al.
E2020-01133-COA-R3-CV
Authoring Judge: Judge Frank G. Clement Jr.
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This appeal concerns the administration of a husband and wife’s intestate estates, consisting of several tracts of real property that the husband and wife owned as tenants by the entirety. They were both found deceased in their home several days after they had died. The wife’s heir at law, her brother, filed a petition seeking a declaration that the husband died first, that the wife, as the survivor, owned the real property at her death, and it passed to her heir at law. The husband’s heirs at law responded to the petition, contending the evidence was not sufficient to prove that the couple died in any order other than simultaneously. The only witness at the trial was the medical examiner who conducted the autopsies. He testified that it was more probable than not that the husband died first based on the causes of death and medical histories of the spouses. After considering the expert witness testimony, the trial court concluded that the evidence was not sufficient to prove that the husband and wife died otherwise than simultaneously. This appeal followed. Having determined that the trial court was not bound by the medical examiner’s speculative opinion as to who died first, we affirm the trial court’s decision.

Knox County Court of Appeals 10/05/21
Larry E. Parrish, P.C. v. Nancy J. Strong
M2020-01145-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor J. B. Cox

This is but the latest appeal in what has been a prolonged course of litigation between the parties. In a prior appeal, this Court ruled in favor of Ms. Strong on all issues raised by the professional corporation and also held, among other things, that an injunction regarding disputed funds in the case should be dissolved. On remand, the trial court accordingly dissolved the injunction and ordered the court’s Clerk & Master to pay the disputed fund proceeds to Ms. Strong and her attorneys. The professional corporation now appeals from this decision. We affirm and hold that the funds should be immediately disbursed to Ms. Strong pursuant to the trial court’s order. Further, finding the professional corporation’s appeal to be frivolous under Tennessee Code Annotated section 27-1-122, we remand the case for a determination of Ms. Strong’s damages incurred on appeal.

Lincoln County Court of Appeals 09/30/21
James G. Akers v. Dyck-O'Neal, Inc. Et Al.
M2021-00063-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Russell T. Perkins

Appellant sought an injunction to stop foreclosure on real property. Appellees, the lienholder, the lienholder’s law firm, and the substitute trustee, filed motions to dismiss, which the trial court granted. After Appellant filed this appeal, Appellee lienholder filed a release of its lien on the subject property. As such, Appellant’s appeal is moot, and the appeal is dismissed.

Davidson County Court of Appeals 09/30/21
Ronald Moore v. Tennessee Board of Parole
M2020-00982-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Patricia Head Moskal

An inmate petitioned for a writ of certiorari after the Tennessee Board of Parole denied him parole. The Board moved to dismiss the petition for lack of subject matter jurisdiction. The trial court concluded that, in the absence of a verification attesting to the truth of the contents of the petition and proper notarization of the petition, it lacked subject matter jurisdiction. So the court dismissed the petition. We affirm. 

Davidson County Court of Appeals 09/30/21
William Green v. Timothy Thomas Et Al.
M2021-01140-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Michael E. Spitzer

This is an appeal from an order dismissing an inmate’s petition for common law writ of certiorari.  Because the inmate did not file his notice of appeal within thirty days after entry of the order as required by Rule 4(a) of the Tennessee Rules of Appellate Procedure, we dismiss the appeal.

Hickman County Court of Appeals 09/30/21
In Re Madylynn C. Et Al.
M2021-00184-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Michael Meise

This is a termination of parental rights case.  Appellants, the children’s biological mother and father, appeal the trial court’s termination of their respective parental rights to the four children on the grounds of: (1) abandonment by an incarcerated parent by wanton disregard, Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv); (2) substantial non-compliance with the requirements of the permanency plans, Tenn. Code Ann. § 36-1-113(g)(2); (3) persistence of the conditions that led to the children’s removal, Tenn. Code Ann. § 36-1-113(g)(3)(A); (4) severe child abuse, Tenn. Code Ann. § 36-1-113(g)(4); and (5) failure to manifest an ability and willingness to assume custody, Tenn. Code Ann. §36-1-113(g)(14).  Appellants also appeal the trial court’s determination that termination of their respective parental rights is in the children’s best interest.  Discerning no error, we affirm.

Dickson County Court of Appeals 09/30/21
Wilmington Savings Fund Society, FSB Et Al. v. Thomas S. Jackson
E2021-00300-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This appeal arises from an action for default on a promissory note. Wilmington Savings Fund Society, FSB, as certificate trustee on behalf of Bosco Credit II Trust Series 2010-1 (“Plaintiff”), filed suit against Thomas S. Jackson (“Defendant”) in the Chancery Court for Sevier County (the “trial court”), alleging causes of action for breach of contract and unjust enrichment arising from a note executed in 2006. Defendant moved the trial court for summary judgment, alleging that he defaulted on the note in 2007 and that the property was foreclosed in 2008. Defendant averred that Plaintiff’s cause of action accrued when Defendant’s remaining debt was accelerated in 2008 and that Plaintiff’s cause of action was therefore time-barred by Tennessee’s six-year statute of limitations on breach of contract actions. Plaintiff responded to Defendant’s motion but failed to cite to any facts in the record that created a dispute as to Defendant’s statements and failed to produce any countervailing evidence. Accordingly, the trial court granted Defendant’s motion and Plaintiff filed a timely appeal to this Court. Discerning no error, we affirm.

Sevier County Court of Appeals 09/30/21
In Re Allainah B.
M2020-01381-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Thomas C. Faris

Cara S. and Bradley S. (together, “Petitioners”) sought termination of the parental rights of Austin B. (“Father”) as to Father’s daughter, Allainah B. (the “Child”).  Following a bench trial, the Juvenile Court for Franklin County (the “trial court”) found four statutory bases for termination of Father’s parental rights and further concluded that termination was in the Child’s best interest.  Father appealed to this Court.  We conclude that the trial court’s decision should be affirmed as to three statutory grounds for termination and vacated as to the fourth ground.  We also conclude that termination of Father’s parental rights is in the Child’s best interest.  The ultimate holding of the trial court is therefore affirmed. 

Franklin County Court of Appeals 09/29/21
Kimberly Johnson Dougherty v. M.E. Buck Dougherty, III
W2021-01014-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Martha B. Brasfield

This accelerated interlocutory appeal is taken from the trial court’s order denying Appellant’s motion for recusal. Because there is no evidence of bias that would require recusal under Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial court.

Fayette County Court of Appeals 09/29/21
State of Tennessee Ex Rel. Larry E. Parrish, P.C. v. The Honorable James B. Cox Et Al.
M2021-00029-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Senior Judge Robert E. Lee Davies

Appellant brought a mandamus action in the trial court praying that the court would mandate certain actions related to other litigation involving Appellant. The trial court dismissed the action. We affirm the court’s dismissal and, finding the appeal to be frivolous pursuant to Tennessee Code Annotated section 27-1-122, remand the case for a determination of Appellees’ damages incurred as a result of the appeal.

Lincoln County Court of Appeals 09/29/21
In Re Isabella M., Et Al.
M2020-01616-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ken Witcher

This action involves the termination of a mother’s parental rights to her minor children. Following a bench trial, the trial court found that clear and convincing evidence existed to establish the following statutory grounds of termination: (1) substantial noncompliance with the permanency plan; (2) the persistence of conditions which led to removal; and (3) failure to manifest an ability and willingness to care for the children. The court also found that termination was in the best interest of the children. We affirm the trial court.

Macon County Court of Appeals 09/29/21
In Re Kyler C. Et Al.
M2020-01366-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge William Riley Anderson, III

In this second appeal of the termination of a mother’s and father’s rights to their children, we consider the best interest of four children.  In the previous appeal, we affirmed that clear and convincing proof established the existence of severe abuse and therefore constituted a ground for termination. On remand, the trial court made appropriate findings and determined that it was in the children’s best interest for the rights of the mother and father to be terminated.  On appeal, we conclude that the evidence establishes that termination is in the children’s best interest. Accordingly, we affirm.

Grundy County Court of Appeals 09/29/21
City of Morristown Et Al. v. Michael W. Ball Et Al.
E2020-01567-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Douglas T. Jenkins

The trial court granted the cross-plaintiff’s motion for judgment on the pleadings. Because this case is inappropriate for rendering judgment on the pleadings, we reverse.

Hamblen County Court of Appeals 09/29/21
In Re The Estate of Mary E. Schaumberg
E2019-02030-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Larry M. Warner

In this action to contest a will, the trial court determined that the contestants were estopped from maintaining their action because they had received property from the decedent’s estate pursuant to the will’s provisions and were therefore bound by its terms. The will contestants have appealed. Determining that the elements of estoppel were not proven, we vacate that portion of the trial court’s final order and remand this matter to the trial court for further proceedings.

Cumberland County Court of Appeals 09/29/21
In Re Layton W.
M2021-00084-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Justin C. Angel

For a second time, a father appeals the termination of his parental rights to his child. On remand after the first appeal, the trial court determined that there were two statutory grounds for terminating the father’s parental rights and that termination was in the child’s best interest. We conclude that the record contains clear and convincing evidence to support one ground for termination: incarceration under a sentence of at least ten years when, at sentencing, the child was under the age of eight. But, because the trial court’s order lacks sufficient findings regarding the child’s best interest, we vacate and remand.

Franklin County Court of Appeals 09/28/21
F & M Bank v. George Raymond Fleming, Jr.
M2020-01086-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Ross H. Hicks

Appellant debtor appeals the trial court’s decision to find certain affirmative defenses waived, to deny his motion to continue the summary judgment hearing in order to conduct discovery, and to grant summary judgment to the defendant bank. Discerning no reversible error, we affirm.

Montgomery County Court of Appeals 09/28/21
Kenneth J. Mynatt v. National Treasury Employees Union, Chapter 39 Et Al.
M2020-01285-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Darrell Scarlett

This case involves claims of malicious prosecution and civil conspiracy.  The trial court dismissed the claims pursuant to Tennessee Rule of Civil Procedure 12.02(6), determining that the plaintiff could not prove that the underlying criminal prosecution had terminated in his favor, a necessary element of a malicious prosecution claim.  Regarding the civil conspiracy claim, the court determined that the conspiracy claim was only actionable if the underlying tort were actionable.  Having found that the malicious prosecution claim could not stand, the court concluded that the conspiracy claim had to be dismissed as well.  The plaintiff timely appealed.  Based upon the applicable standard of review, we conclude that the trial court erred in dismissing the plaintiff’s claims, and we accordingly reverse the judgment of dismissal and remand this matter to the trial court for further proceedings.

Rutherford County Court of Appeals 09/28/21
In Re Raiden H. Et Al.
E2021-01105-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Daniel G. Boyd

The appellant filed a motion to accept late-filed notice of appeal. Because the notice of appeal was not timely filed, this Court lacks jurisdiction to consider this appeal.

Hawkins County Court of Appeals 09/28/21
In Re Ryat M.
M2020-00156-COA-r3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Clara W. Byrd

In this dependency and neglect case, the juvenile court found the child dependent and neglected and awarded custody to Appellees, maternal grandparents. Appellant/father failed to timely perfect an appeal of the juvenile court’s final order in the dependency and neglect matter. However, father filed a petition to set aside or vacate the same, which the juvenile court denied. On appeal, the circuit court accepted jurisdiction over the dependency and neglect matter, and conducted a de novo hearing; however, the circuit court denied hearing as to “other issues,” including father’s petition to set aside or vacate order. We conclude that the circuit court lacked jurisdiction to review the dependency and neglect petition; as such, we vacate the circuit court’s order on dependency and neglect for lack of jurisdiction. Because there is a question as to whether father’s notice of appeal concerning his motion to set aside or vacate order conferred jurisdiction on the circuit court to review that motion, we vacate the portion of the circuit court’s order wherein it determined that it would hear no other issues on appeal. We remand to the circuit court for determination of whether father perfected an appeal of the juvenile court’s order denying his motion to set aside or vacate order. If the circuit court determines that father perfected the appeal, then the circuit court should proceed with de novo review of father’s motion.

Macon County Court of Appeals 09/27/21
Carolyn Diane Long v. Steven Lawrence Long
E2020-01350-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Larry Michael Warner

Following a bench trial in this divorce action, the trial court entered an order in October 2018, granting the parties a divorce and distributing the marital estate. Upon the wife’s appeal, this Court vacated the trial court’s distribution of marital property and remanded, directing the trial court to make sufficient findings of fact and conclusions of law, pursuant to Tennessee Rule of Civil Procedure 52.01, concerning the classification and valuation of various real estate and real estate partnership assets. Following an evidentiary hearing on remand, the trial court entered a final order in September 2020. Noting that the parties had stipulated that the wife’s interests in a realty company and two property partnerships were separate property, the trial court found that the wife’s partnership interest in a fourth realty enterprise at issue was marital property and also found that several specific realty assets were marital property. The trial court determined its valuation of each property or property interest and, pursuant to the factors provided in Tennessee Code Annotated § 36-4-121(c), set forth what it found to be an equitable distribution of the marital property. Wife has appealed.

Cumberland County Court of Appeals 09/27/21
In Re Artemas A., et al.
W2021-00058-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge John W. Whitworth

This appeal involves a petition to terminate parental rights to four children. The juvenile court found by clear and convincing evidence that six grounds for termination were proven: (1) abandonment by failure to support; (2) abandonment by failure to provide a suitable home; (3) substantial noncompliance with the permanency plan; (4) persistent conditions; (5) severe child abuse; and (6) failure to manifest an ability and willingness to assume legal and physical custody or financial responsibility of the children. The juvenile court also found that termination was in the best interests of the four children. Only the mother appeals. We affirm.

Benton County Court of Appeals 09/24/21
Christina Brooke Tigart v. Charles Shannon Tigart
M2020-01146-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Ted A. Crozier

Appellant/Father and Appellee/Mother’s Marital Dissolution Agreement (“MDA”) and agreed permanent parenting plan (“PPP”) were incorporated into the final decree of divorce. In the PPP, the parties agreed to an upward deviation in Father’s child support obligation. Mother subsequently petitioned the trial court to modify the parenting plan, to hold Father in contempt for failing to comply with certain provisions of the MDA, and to award her attorney’s fees and costs under the MDA. The trial court initially modified the PPP to lower Father’s child support obligations to comport with the child support guidelines; however, the trial court later granted Mother’s Tennessee Rule of Civil Procedure 59 motion to alter or amend the judgment and reinstated the original upward deviation. The trial court denied Mother’s petition for contempt and her request for attorney’s fees. For the reasons discussed herein, we vacate the trial court’s denial of Mother’s contempt petition and reverse the trial court’s denial of Mother’s request for attorney’s fees and costs under the MDA. The trial court’s orders are otherwise affirmed.  

Montgomery County Court of Appeals 09/24/21