COURT OF APPEALS OPINIONS

Lisa Smith c/o rodterrius M. Tinnel (Deceased) et al. v. HFH, Inc. d/b/a DHL and Pacific Employers Insurance Company et al.
M2012-02198-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This is an appeal from an order denying a motion to set aside an order of dismissal for failure to state a claim. Because the appellant did not file her notice of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.
 

Davidson Court of Appeals

Latif Abdulsayed et al. v. Randal Hand et al.
M2012-00583-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amanda McClendon

This appeal arises from two very unorthodox contracts by which Buyers purchased a retail convenience market, the equipment and inventory of the market, and the underlying real estate. Within four months of the purchase, Buyers commenced this action seeking rescission of the contracts on the basis of Sellers’ breach of contract, fraud, and misrepresentation. Sellers prevailed on all issues in the trial court and recovered the business and real estate. The trial court also ruled that Sellers were entitled to keep the $190,000 down payment on the real estate. On appeal, Buyers raise several issues, inter alia, they contend the trial court erred in finding they did not prove fraudulent inducement or intentional misrepresentation, that the court erred in finding that Buyers breached the contract, and that the trial court erred in awarding Sellers the $190,000 down payment as damages for Buyers’ breach of the contract when Sellers did not plead damages in their counter-complaint. We have determined the evidence preponderates against the trial court’s finding that Sellers did not make intentional misrepresentations, and that, to the contrary, the preponderance of the evidence established that Sellers made intentional misrepresentations for which Buyers are entitled to a rescission of the contracts and return of their $190,000 down payment.

Davidson Court of Appeals

In Re: Zacharias T.M., et al.
E2012-00920-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge William T. Denton

The State of Tennessee Department of Children’s Services (“DCS”) filed a petition in
February of 2009 seeking to terminate the parental rights of Kimberly M. (“Mother”) to the
minor children, Zacharias T.M., Isaiah K.M., Ashley M.M., Chelsea M.M., Sierra C.M., and
Brittany N.M. (“the Children”). After a trial, the Juvenile Court terminated the parental
rights of Mother to the Children after finding that grounds for termination pursuant to Tenn.
Code Ann. § 36-1-113(g)(1) and (g)(3) and Tenn. Code Ann. § 36-1-102(1)(A)(ii) had been
proven by clear and convincing evidence, and that clear and convincing evidence had been
shown that it was in the Children’s best interest for Mother’s parental rights to be terminated.
Mother appeals to this Court. We affirm.

Blount Court of Appeals

In Re: Wyatt S.
E2012-00539-COA-R3-JV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Amy V. Hollars

This appeal arises from a dependency and neglect proceeding. The State of Tennessee, Department of Children’s Services (“DCS”) filed a petition against Lisa M. S. (“Mother”) seeking to adjudicate her minor child Wyatt S. (“the Child”), born in March of 1998, dependent and neglected. The petition was rooted in the Child’s disclosures that Mother had sexually abused him. The juvenile court found the Child dependent and neglected. Mother appealed to the Circuit Court for Cumberland County (“the Trial Court”) for a de novo hearing. The Trial Court found the Child dependent and neglected by clear and convincing evidence. The Trial Court also specifically found severe child abuse in this case. Mother appeals to this Court. We affirm the judgment of the Trial Court in its entirety.

Cumberland Court of Appeals

State of Tennessee v. Allen Kelley
M2011-02758-COA-R3-JV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Thomas W. Graham

This is an appeal from the dismissal of Appellant/juvenile’s appeal of the juvenile court’s determination of delinquency to the circuit court pursuant to Tennessee Code Annotated Section 37-1-159. While the appeal was pending, Appellant ran away from the group home, where he had been ordered to live. Appellee Department of Children’s Services filed a motion to dismiss the appeal. The circuit court determined that the appeal should be dismissed based upon application of the fugitive disentitlement doctrine. The court further determined that Appellant had capacity, under the Rule of Sevens, to be held responsible for his actions. Discerning no error, we affirm.

Franklin Court of Appeals

Leon Marshall v. Civil Service Commission of the State of Tennessee and the Tennessee Department of Safety
M2011-02157-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Carol L. McCoy

Pursuant to Tennessee Code Annotated section 4-5-322, a former Tennessee State Trooper appeals the chancery court’s judgment affirming the Tennessee Civil Service Commission’s decision to terminate his employment. The Commission affirmed the initial order of the Administrative Law Judge, who upheld the Tennessee Department of Safety’s decision to terminate the trooper’s employment for violations of its policies and procedures and for the good of the service pursuant to Tennessee Code Annotated section 8-30-326. Discerning no error, we affirm.

Davidson Court of Appeals

Cotton States Mutual Insurance Company v. Jami McNair Tuck, et al.
M2011-02445-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor J. B. Cox

An insurance company filed a declaratory judgment action seeking a declaration that mother and child were residents of the insured’s household, and therefore, that coverage for the death of the child was excluded bythe relevanthomeowner’s insurance policy. The chancery court found that mother and child were not residents of the insured’s household at the time of the child’s death, and we affirm.
 

Lincoln Court of Appeals

In the Matter of: Connor S.L.
W2012-00587-COA-R3-JV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Robert W. Newell

In this paternity case, Father appeals the Carroll County Juvenile Court’s rulings with regard to custody and parenting time with his minor child. The trial court’s ruling as to the paternity of the child is affirmed. However, because the trial court did not comply with Rule 52.01 of the Tennessee Rules of Civil Procedure, we vacate the judgment of the trial court with regard to custody and the parenting schedule and remand for entry of an order with appropriate findings of fact and conclusions of law.

Carroll Court of Appeals

In Re: Isobel V. O. and Bree'Ana J.A.
M2012-00150-COA-R3-PT
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Donna Scott Davenport

The trial court terminated the parental rights of Mother and Father based on abandonment for failure to support and failure to provide a suitable home, substantial noncompliance with the permanency plan, and persistence of conditions. We reverse termination on the grounds of abandonment, and affirm termination of parental rights on the grounds of substantial noncompliance with the permanency plan and persistence of conditions. We also affirm the trial court’s determination that termination of parental rights is in the best interests of the children.

Rutherford Court of Appeals

Leroy J. Humphries, et al. v. Nicolas C. Minbiole, et al.
M2011-00008-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Ronald Thurman

This appeal involves a dispute between adjacent landowners over Defendants’ installation of a private water line within a right-of-way easement across the Plaintiffs’ property. Following a bench trial, the trial court concluded that Defendants’ private water line trespassed on Plaintiffs’ property. Further, the trial court ordered that the Defendants would be incarcerated if they did not remove the water line and return Plaintiffs’ property to its previous condition within thirty (30) days. Defendants appealed. We affirm in part and remand for further proceedings.

DeKalb Court of Appeals

James D. Holder and Barbara L. Holder v. S & S Family Entertainment, LLC
M2011-00601-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge C. L. Rogers

Plaintiff purchased family entertainment center businesses from defendants and it leased, from defendants, buildings in which the entertainment centers were operated. Plaintiff also purchased certain assets from defendants, but a dispute ultimately arose regarding certain assets’ inclusion within the sale. At the expiration of the building leases, defendants filed suit claiming that plaintiff had damaged their property, that plaintiff had improperly removed certain items from the buildings, and that it had failed to remove other items which it should have removed. Plaintiff filed an answer and counterclaim asserting ownership of the allegedly damaged, improperly removed, and non-removed property, and further claiming that defendants had reneged upon an agreement to sell it one of the buildings at issue. The trial court entered a brief order awarding defendants damages and dismissing plaintiff’s counterclaim. Plaintiff moved the trial court to alter or amend its judgment and for entry of a final order. The trial court denied plaintiff’s motion, finding there were no remaining issues in need of resolution. We find that the order appealed is not a final judgment, and therefore, that this Court lacks jurisdiction in this matter. Thus, we must dismiss this appeal and remand to the trial court for appropriate findings and entry of a final order.

Sumner Court of Appeals

Sammie Netters v. Tennessee Board of Probation and Parole
M2012-01591-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Claudia Bonnyman

This appeal involves an inmate’s petitions for writ of certiorari challenging the Board of Probation and Parole’s decisions to deny him parole on two separate occasions. The trial court dismissed the inmate’s claims related to one parole hearing but requiring further proceedings as to his claims related to the second parole hearing. Because the order appealed does not resolve all the claims between the parties, we dismiss the appeal for lack of a final judgment.

Davidson Court of Appeals

City of Memphis Civil Service Commission v. Steven Payton
W2011-02501-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Arnold B. Goldin

A City of Memphis firefighter who participated in the City’s employee assistance program was terminated after his second positive drug screen. The firefighter appealed his termination to the Civil Service Commission. He argued that his drug screen results were confidential under federal law and that he had not executed a consent form to authorize the disclosure of the results to the City. The Commission overruled the firefighter’s motion to exclude the test results and upheld his termination. The chancery court reversed, finding that the drug screen results were inadmissible because the City had failed to comply with federal law. We find substantial and material evidence to support the decision of the Commission, and therefore reverse the decision of the chancery court.

Shelby Court of Appeals

City of Memphis Civil Service Commission v. Steven Payton - Concurring
W2011-02501-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Arnold B. Goldin

I concur in the majority’s holding that the followup drug screen at issue was not a “[r]ecord[] of the identity, diagnosis, prognosis, or treatment” of Mr. Payton, and therefore was not covered by 42 U.S.C.A. § 290dd-2(a).

Shelby Court of Appeals

Jimmy Dill v. City of Clarksville, Tennessee, et al. - Concur
M2012-00356-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Michael R. Jones


I concur in the majority’s conclusion that the disciplinary action taken by the city must be set aside because of the failure to follow its own procedures for such action. However, I want to make clear that, in my opinion, Constitutional due process was not implicated. I believe relief is appropriate under the petition for other reasons.

Montgomery Court of Appeals

Debbie Sikora ex rel. Shelley Mook v. Tyler Mook et al.
M2011-01764-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Franklin L. Russell

This is a custody action in which the father and paternal grandparents appeal the trial court’s designation of the maternal grandmother as the primary residential parent of the father’s seven-year-old daughter following the disappearance of the mother of the child, who was the primary residential parent. The trial court found that the father was unfit to parent the child and that he posed a substantial risk of harm to the child due to his history of domestic violence and the danger from exposure to the father’s drug activities and father’s associates. On appeal, the father and the paternal grandparents raise numerous issues relating to the trial court’s decision. They argue, inter alia, that the trial court erred in considering evidence of the father’s conduct that occurred prior to the entry of the Final Divorce Decree, that the evidence presented at trial was insufficient to overcome the father’s superior parental rights, that the decision to award custody to the maternal grandmother was not in the best interest of the child, that the trial court erred in awarding custody to the maternal grandmother, and that the trial court erred in allowing the maternal grandmother to relocate to Pennsylvania. We have concluded that the evidence does not preponderate against the trial court’s factual findings and that the evidence clearly and convincingly established that designation of the father as the primary residential parent would expose the child to the risk of substantial harm. Accordingly, we affirm the trial court’s designation of the maternal grandmother as the primary residential parent of the father’s seven-year-old child.

Bedford Court of Appeals

Jimmy Dill v. City of Clarksville, Tennessee, et al.
M2012-00356-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Michael R. Jones

Former police officer sought certiorari review of the City of Clarksville’s decision to terminate his employment, contending that the City failed to follow the disciplinary procedure set forth in the City Code and that, as a consequence, his termination deprived him of due process of law. The trial court held that there was material evidence to support the decision to terminate petitioner and returned the case to the City to have the head of the human resources department conduct a review of the investigation and appropriateness of the penalty; following a report from the head of the human resources department, the court entered a final order granting judgment to the City. Concluding that the failure of the City to follow its disciplinary procedure deprived petitioner of his due process right, we reverse the judgment, vacate the termination and remand the case for further proceedings.

Montgomery Court of Appeals

Jolyn Cullum, et al v. Jan McCool, et al
E2012-00991-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge L. Marie Williams

This is a negligence case in which Jolyn Cullum and Andrew Cullum sued Jan McCool, William H. McCool, and Wal-Mart for injuries arising in a Wal-Mart parking lot. Wal-Mart filed a motion to dismiss, alleging that the Cullums had failed to state a claim upon which relief could be granted. The trial court dismissed the suit against Wal-Mart. The Cullums appeal. We reverse the decision of the trial court and remand the case.

Hamilton Court of Appeals

Paul Shearer et al. v. Fred McArthur et al.
M2012-00584-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Jeffrey F. Stewart

This appeal involves an option contract under which the defendants agreed to buy a piece of property from the plaintiffs at any time. We find no error in the trial court’s determination that the option contract was supported by consideration, that the plaintiffs exercised the option within a reasonable time, and that the plaintiffs did not waive the option by pursuing an inconsistent remedy. We, therefore, affirm the judgment of the trial court.

Marion Court of Appeals

Tasha Dayhoff v. Joshua D. Cathey
W2011-02498-COA-R3-JV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Chirsty R. Little

Father appeals the Madison County Juvenile Court’s judgment, entering a permanent parenting plan, setting child support, awarding a child support arrearage, awarding attorney fees to Mother, and granting a wage garnishment. We affirm the trial court’s ruling that Father is the legal and biological parent of the children at issue. However, having determined that no testimony was elicited at the hearing on this cause, and thus no evidence was presented from which the trial court could make a determination, we vacate the judgment of the trial court and remand for an evidentiary hearing on all other issues in this case.

Madison Court of Appeals

John Brockman v. Wesley Wolfe, et al.
W2011-02204-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Clayburn Peeples

Plaintiff sued multiple parties after trees on his property were allegedly erroneously removed during the development of an adjacent subdivision. The trial court ultimately granted summary judgment to a subdivision developer, who was sued in his individual capacity, finding that it was his limited liability company which had developed the property, and that the developer had not instructed that Plaintiff’s trees be removed. The trial court also granted summary judgment to the developer’s limited liability company, finding the claims against it were time-barred. A trial was held against the remaining defendant and a judgment was entered against him. However, the trial court then reduced the judgment against the remaining defendant based upon the comparative fault of the limited liability company. Plaintiff appeals. We affirm the trial court in all respects.

Gibson Court of Appeals

Brenda Griffith, next of kin of Decedent, Bob Griffith v. Dr. Stephen Goryl and Upper Cumberland Urology Associates, P.C.
M2011-02730-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amy V. Hollars

In this medical malpractice, wrongful death action the plaintiff alleges the defendant physician, a urologist, failed to timely diagnose and treat the decedent’s bladder cancer which caused his death. At the close of the plaintiff’s case in chief, the defendant moved for a directed verdict. The trial court held that the plaintiff’s only medical expert witness erroneously defined the standard of care and, upon that basis, excluded his testimony concerning the standard of care and breach thereof. With the exclusion of the plaintiff’s only expert testimony, the trial court held that the plaintiff failed to establish a prima facie case for medical malpractice and granted the motion for a directed verdict. We have determined the plaintiff’s medical expert did not erroneously identify the standard of care, he is competent to testify and, thus, the trial court erred in excluding his testimony and directing a verdict in favor of the defendant. We, therefore, reverse and remand for a new trial.

Putnam Court of Appeals

Tommy Wright, et al. v. The City of Shelbyville Board of Zoning Appeals, et al.
M2011-01446-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Larry b. Stanley, Jr.

This case involves a prolonged dispute over a proposed stone quarry that the plaintiff landowners, the Wrights, wished to establish on their property. While their application was pending, the city changed the zoning ordinance to rezone the Wrights’ property so that a quarry was no longer permitted as a conditional use. The Wrights filed suit, and on appeal this court held that the notice of the zoning amendment had been defective and that the zoning change was therefore void. The Wrights subsequently asked the Board of Zoning Appeals to consider their application under the property’s original zoning, but the BZA refused to put the application on its meeting agenda. The Wrights filed a petition for writ of certiorari. The trial court found that the BZA’s action was arbitrary and illegal, but ruled that the Wrights were nonetheless precluded from obtaining any relief because of the operation of res judicata. We reverse the trial court’s dismissal of the petition on the basis of res judicata, because we find that doctrine inapplicable. We agree with the trial court that the BZA’s actions were arbitrary and capricious.

Bedford Court of Appeals

John Albert Cordell, Jr. et al. v. Burl Bruce Snyder et al.
E2011-02312-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor G. Richard Johnson

This is an action for breach of warranty of title. The court found, after a bench trial, that the defendants breached the warranty by conveying an easement which they did not own. The defendants appeal. We affirm.

Johnson Court of Appeals

Sherry Hutson v. Safe Star Trucking et al.
E2012-00651-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John J. Maddux, Jr.

In this case, Sherry Hutson filed a complaint in which she alleged her vehicle was struck by a tractor-trailer (“the tractor”) that left the scene of the accident. She seeks to recover under the uninsured motorist (“UM”) provisions of a policy providing coverage to the vehicle she was driving. The jury found that no “actual physical contact ha[d] occurred between” the plaintiff’s vehicle and the vehicle that left the scene. She appeals. We affirm.

Cumberland Court of Appeals