Court of Appeals Opinions

Format: 10/16/2021
Format: 10/16/2021
Jennifer Pallotta Gaby v. Tony Harold Gaby
E2020-00790-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Thomas J. Wright

In this post-divorce, child custody case, Appellant/Father filed a petition to modify the permanent parenting plan, seeking equal parenting time. Appellee/Mother opposed the petition. The trial court held that there had been a material change of circumstance and awarded Father additional parenting time, but not equal parenting time. On appeal, Father asserts that the trial court failed to consider the statutory best interest factors. Tenn. Code Ann. § 36-6-106(a). Although we leave undisturbed the portion of the trial court’s order concerning a material change of circumstance, the trial court’s failure to make best interest findings in compliance with Tennessee Rule of Civil Procedure 52.01 precludes any meaningful appellate review of that question. Accordingly, we vacate the order and remand for entry of an order that includes the required findings of fact and conclusions of law.

Greene County Court of Appeals 08/23/21
Lola Bernice Robinson v. Leah M. Robinson Et Al.
E2021-00034-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge John C. Rambo

This case involves a dispute over a parcel of real property. The appellant filed suit alleging fraudulent conveyance of the property. The trial court granted a judgment in favor of the appellee, finding that the appellant did not meet her burden of proof to establish fraud, undue influence, or lack of capacity. For the reasons stated herein, we affirm the trial court’s decision. Additionally, we award the appellee her attorney’s fees on appeal.

Washington County Court of Appeals 08/20/21
James Henry Matthew Owens v. Jessica Paige May
E2020-01322-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert M. Estep

This is an appeal from the trial court’s entry of a permanent parenting plan involving one minor child. The trial court named the father primary residential parent of the minor child and entered a parenting plan awarding equal co-parenting time and ordering the child’s enrollment in the father’s school of choice. The mother appealed. Upon our review, we vacate the order of the trial court and remand for entry of sufficient findings of fact and conclusions of law to facilitate appellate review.

Claiborne County Court of Appeals 08/19/21
In Re Tyler A.
E2021-00284-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge J. Michael Sharp

This action involves the termination of a mother’s parental rights to her minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to establish the following statutory grounds of termination: (1) abandonment for failure to establish a suitable home; (2) the persistence of conditions which led to removal; (3) substantial noncompliance with the permanency plan; (4) failure to manifest an ability and willingness to care for the child; and (5) a present mental condition affecting the mother’s ability to adequately parent. The court also found that termination was in the best interest of the child. We affirm the trial court.

Bradley County Court of Appeals 08/18/21
Alexis Stump v. Shirley Stinson
E2020-01139-COA-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Brad Lewis Davidson

This action was initiated by the mother’s filing of a petition for the return of custody of her minor child. The trial court granted the petition. The maternal grandmother moved to set aside the judgment. The court denied the motion by order and later entered an amended order, correcting errors. The mother appeals the final order. We dismiss the appeal.

Court of Appeals 08/18/21
Joseph Christopher Archer, Et Al. v. Ron Noonan
M2020-01266-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Jonathan L. Young

This case involves an action filed by homeowners against their contractor for breach of contract regarding the installation of a swimming pool.  The general sessions court entered judgment for plaintiffs. Defendant appealed to the circuit court which also entered judgment for the plaintiffs.  The defendant appeals.  We affirm.

Putnam County Court of Appeals 08/18/21
Donald Eugene Winder, III v. Kara Elizabeth Winder
E2021-00490-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Casey Mark Stokes

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.

Meigs County Court of Appeals 08/17/21
Albert M. Bender, Jr., Et Al. v. Attorney S. Madison Roberts, Et Al.
M2019-01699-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Russell T. Perkins

The trial court dismissed the plaintiffs’ conversion claim in accordance with Rule 12.02(6) of the Tennessee Rules of Civil Procedure, determining that it was filed outside the applicable three-year statute of limitations. We affirm.

Davidson County Court of Appeals 08/13/21
Christina Lynn McCartney v. Lester Dale McCartney, Et Al.
M2020-00703-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Melissa T. Blevins-Willis

This is a divorce case. Husband/Appellant appeals the trial court’s: (1) pre-trial procedural rulings; (2) characterization of certain assets as marital property; and (3) equitable division of the marital estate. Discerning no reversible error, we affirm.

Sequatchie County Court of Appeals 08/13/21
In Re Matthew K. et al.
E2020-00773-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This consolidated appeal involves termination of parental rights in a case focusing on Zayne R., the minor child of Brittney R. (“Mother”) and Joseph D., and Matthew K., the minor child of Mother and Joshua K. In June 2019, Mother’s parents, Larry R. (“Grandfather”) and Bertha R. (“Grandmother”) (collectively, “Grandparents”), filed two petitions in the Hamilton County Circuit Court (“trial court”), seeking termination of Mother’s parental rights, respectively, to Zayne R. and Matthew K. (collectively, “the Children”). The Children had previously been removed from Mother’s custody and placed in the custody of Grandparents pursuant to an order entered by the Hamilton County Juvenile Court (“juvenile court”). Following a consolidated bench trial, the trial court granted Grandparents’ termination petitions based upon its finding by clear and convincing evidence that Mother had abandoned the Children by failing to visit and by failing to financially support them during the statutorily determinative period. The trial court further found that it was in the Children’s best interest to terminate Mother’s parental rights. Mother has appealed. Discerning no reversible error, we affirm the trial court’s final orders terminating Mother’s parental rights.

Hamilton County Court of Appeals 08/13/21
Damiean Devon Tolson v. John E. Herbison
M2020-01362-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Senior Judge Don R. Ash

Appellant, acting pro se, appeals the trial court’s dismissal of his legal malpractice action against Appellee, the attorney who represented Appellant in post-conviction matters related to his criminal case. The trial court held that Appellant’s lawsuit was barred by the running of the one-year statute of limitations. Tenn. Code Ann § 28-3-104(c)(1). Discerning no error, we affirm and remand. 

Davidson County Court of Appeals 08/12/21
Los Pumas Concrete v. Harmony Hospitality, LLC Et Al.
M2020-00956-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen Hobbs Lyle

A subcontractor that performed concrete and site work on a hotel construction project filed a lien on the property and then commenced this action against the general contractor and the owner of the property to recover sums due on the balance of the subcontract, for additional change order work, and interest. The claims relevant to the issues on appeal are against the owner for unjust enrichment and to enforce the lien. After obtaining a default judgment against the now defunct general contractor, the subcontractor moved for summary judgment on its claims against the owner. The owner contended that summary judgment was not proper because there were genuine issues of material fact concerning the amount owed to the subcontractor and whether the change orders had been approved. The court found it undisputed that the subcontractor performed work, in addition to that paid by the owner to the general contractor, for which the subcontractor was not paid; and that the owner received and appreciated a benefit from the services rendered by the subcontractor. Based on these findings, the trial court held that the subcontractor satisfied its burden of proving that the property owner was unjustly enriched. Accordingly, the trial court granted summary judgment in favor of the subcontractor on its claims of unjust enrichment and to enforce its lien. We affirm the trial court in all respects.

Davidson County Court of Appeals 08/11/21
In Re Mynajah S.
E2021-00040-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Sharon M. Green

Mother appeals the termination of her parental rights on the grounds of severe abuse, abandonment by failure to visit and support, persistence of conditions, and failure to manifest an ability and willingness to assume physical custody or financial responsibility for the child. We affirm the trial court’s rulings as to both grounds for termination and best interest.

Court of Appeals 08/11/21
In Re Zoey L.
E2020-01250-COA-R3-PT
Authoring Judge: Judge Douglas T. Jenkins
Trial Court Judge: Judge Frank G. Clement, Jr.

This is the second appeal from a termination of parental rights case. In the first appeal, we remanded the case with instructions for the trial court to make the requisite written findings of fact and conclusions of law. On remand, the trial court found that the ground of abandonment by willful failure to visit had been proven and that termination of Mother’s parental rights was in the best interest of the child. In this appeal, Mother argues that the trial court failed to analyze the best interest factors and how they applied to the facts of the case. After a thorough review of the record and applicable law, we affirm.

Hawkins County Court of Appeals 08/11/21
Deborah Bistolfi Felker, et al. v. Rex Stephen Felker
W2019-01925-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Valerie L. Smith

This case involves a post-divorce complaint to enforce the parties’ Marital Dissolution Agreement (“MDA”), which was executed in 2005 in Shelby County, Tennessee. The complaint was filed in the Shelby County Circuit Court (“trial court”) by the wife and the parties’ adult son. The husband, now a resident of Hamblen County, Tennessee, filed a motion to dismiss based on, inter alia, lack of personal jurisdiction, improper venue, and expiration of the statute of limitations. The husband also subsequently filed an answer to the complaint, denying that the wife was entitled to relief and asserting various affirmative defenses. The trial court denied the husband’s motion to dismiss, determining that jurisdiction was proper in Shelby County. The court further found that the husband had breached the terms of the MDA and that the complaint was not time-barred. The court ordered the husband to procure life insurance for the benefit of the parties’ son within thirty days and to cooperate with the wife’s procurement of additional life insurance on the husband’s life. The court also ordered the husband to pay the wife’s attorney’s fees. The husband has appealed. Determining that the applicable statute of limitations had expired before the complaint was filed, we reverse the trial court’s judgment and remand for entry of a judgment of dismissal.

Shelby County Court of Appeals 08/10/21
In Re Evan M.
E2020-01673-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Brian J. Hunt

This appeal concerns termination of parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Anderson County (“the Juvenile Court”) seeking to terminate the parental rights of Nicole M. (“Mother”) and Joseph M. (“Father”) to their minor son Evan M. (“the Child”). After a hearing, the Juvenile Court entered an order finding a host of grounds for termination against Mother and Father. These grounds were based largely on proof of substance abuse and domestic violence. The Juvenile Court also found that termination of Mother and Father’s parental rights is in the Child’s best interest. Mother and Father appeal. We affirm the Juvenile Court as to certain grounds for termination found against Mother and Father. However, we reverse certain other grounds for lack of clear and convincing evidence. In addition, we affirm the Juvenile Court’s finding that termination of Mother and Father’s parental rights is in the Child’s best interest. We thus affirm, in part, and reverse, in part, the judgment of the Juvenile Court, the result being we affirm the termination of Mother and Father’s parental rights to the Child.

Anderson County Court of Appeals 08/10/21
Michael Ashley Lockhart v. Casey Dawn Higgins
M2020-01370-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Larry B. Stanley, Jr.

A father filed a petition to change the surname of his nonmarital child. After the trial court granted the father’s petition, the mother appealed. Finding that the father failed to meet his burden of establishing that a surname change was in the child’s best interest, we reverse.

Warren County Court of Appeals 08/09/21
In Re LeAnn K. Et Al.
M2021-00053-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Thomas C. Faris

This is a termination of parental rights case.  The trial court entered an order terminating Father’s parental rights as to five of his children.  Father now appeals, contending that there was a lack of clear and convincing evidence in the record to support the trial court’s decision.  For the reasons stated in this Opinion, we vacate in part, reverse in part, but otherwise we affirm the trial court’s termination of Father’s parental rights.

Franklin County Court of Appeals 08/09/21
In Re Trinity S. et al.
E2021-00098-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Wylie Richardson

A mother appeals the juvenile court’s decision to terminate her parental rights. She challenges the juvenile court’s determination by clear and convincing evidence that termination of her parental rights was in the best interest of the children. We affirm the juvenile court’s termination of the mother’s parental rights.

McMinn County Court of Appeals 08/09/21
Jonathan Finley v. Wettermark Keith, LLC
E2020-01081-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge L. Marie Williams

In this legal malpractice action, the trial court determined that any duty owed by the defendant law firm to the plaintiff ceased when the law firm undisputedly terminated its representation of the plaintiff more than five months prior to expiration of the statute of limitations applicable to the plaintiff’s underlying claim. The court found that the plaintiff had ample time within which to hire new counsel before the statute of limitations would have run on his personal injury claim. The court also found that the plaintiff had failed, within that timeframe, to obtain new counsel or inquire about the status of his claim such that any damages he suffered were due to his own inaction. The court accordingly granted summary judgment in favor of the defendant law firm. The plaintiff has appealed. Discerning no reversible error, we affirm.

Hamilton County Court of Appeals 08/06/21
In Re Terry E. Et Al.
E2020-01572-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Steven Lane Wolfenbarger

This is a termination of parental rights case. The trial court concluded that multiple grounds for terminating Mother’s parental rights existed and that termination was in the Children’s best interests. Discerning no error, we affirm the judgment of the trial court.

Grainger County Court of Appeals 08/06/21
Tony W. Carrick Et Al. v. City of Shelbyville, Tennessee
M2020-01218-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge M. Wyatt Burk

Following a single-vehicle accident on a road owned and controlled by the City of Shelbyville (the “City”), Tony Carrick and his wife, Linda Carrick (together, “Plaintiffs”), filed suit against the City alleging damages for personal injury, injury to property, and loss of consortium. The City moved for summary judgment on the basis that it retained its immunity under the Governmental Tort Liability Act (“GTLA”) because it had no actual or constructive notice of a defective, unsafe, or dangerous condition on the road where the accident occurred. The trial court agreed with the City and granted its motion for summary judgment. Having reviewed the record, we conclude that genuine issues of material fact exist regarding whether the City had actual or constructive notice of the condition at issue. We reverse.

Bedford County Court of Appeals 08/05/21
Ronald Martin Reese v. The Waters of Clinton, LLC
E2020-01466-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Donald R. Elledge

This healthcare liability action was brought against a skilled nursing facility. The plaintiff sent pre-suit notice to multiple potential defendants prior to initiating the action. The plaintiff, however, failed to include as part of the pre-suit notice a HIPAA-compliant medical authorization as one of the six core elements was missing from the authorization. Following a motion to dismiss filed pursuant to Tennessee Rule of Civil Procedure 12.02(6), the Trial Court granted the motion and dismissed the action against the defendant due to noncompliance with Tennessee Code Annotated § 29-26-121 and as being untimely. The Trial Court denied the plaintiff’s request to compel discovery in this matter concerning whether the plaintiff had substantially complied with the pre-suit notice requirement. The plaintiff argues on appeal that the Trial Court erred by not treating the defendant’s motion as a motion for summary judgment and by preventing the plaintiff from conducting discovery regarding the plaintiff’s compliance with Section 29-26-121, as well as the resulting prejudice to the defendant. Discerning no error, we affirm the Trial Court’s judgment in all respects.

Anderson County Court of Appeals 08/04/21
Daniel Jerome Canzoneri v. Colleen Luella Burns
M2020-01109-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Darrell Scarlett

This case involves a petition to modify a permanent parenting plan for two minor children. The children’s father filed the petition, alleging that there had been a material change of circumstances since the plan was entered and that, as a result, he should be designated as the children’s primary residential parent. The children’s mother denied that there had been a material change of circumstances and filed a counter-petition to modify the father’s child support obligation. After a hearing on the parties’ petitions, the trial court found that there had not been a material change of circumstances to justify modifying the plan. However, the trial court modified several aspects of the plan. The trial court further found that the father was voluntarily underemployed and that his child support obligation should be modified accordingly. Father appealed. We affirm the trial court in part, reverse in part, vacate in part, and remand.

Rutherford County Court of Appeals 08/04/21
In Re Ahleigha C. - Dissent
E2020-01683-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Brad Lewis Davidson

Respectfully, I must dissent from the majority’s decision to reverse the trial court’s order terminating Father’s parental rights. Based upon this Court’s decisions in prior cases, I believe that there was clear and convincing proof that Father has failed to manifest, by act or omission, an ability and willingness to personally assume legal and physical custody or financial responsibility of the child, and placing the child in the person’s legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child.

Cocke County Court of Appeals 08/04/21