Court of Appeals Opinions

Format: 07/16/2019
Format: 07/16/2019
Mohammad Naser Chorazghiazad v. Mohammad Chorazghiazad
M2018-01579-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Charles K. Smith

This appeal concerns whether a quitclaim deed was forged. Mohammad Naser Chorazghiazad (“Plaintiff”) sued Mohammad Chorazghiazad (“Defendant”) in the Chancery Court for Wilson County (“the Trial Court”) alleging that Defendant took certain of Plaintiff’s properties by means of a forged deed (“the Quitclaim Deed”). The Trial Court found by clear and convincing evidence that Defendant had indeed forged the Quitclaim Deed to give himself three additional properties that Plaintiff never agreed to transfer. Defendant appeals to this Court, arguing among other things that the evidence did not rise to the level of clear and convincing necessary to prove forgery. Given the testimony and evidence including the attendant circumstances surrounding the drafting and signing of the Quitclaim Deed, as well as the Trial Court’s credibility determinations, we find, as did the Trial Court, that Plaintiff met his burden of proving forgery by clear and convincing evidence. We affirm the judgment of the Trial Court.

Wilson County Court of Appeals 05/03/19
Karen H. Foster v. Douglas S. Foster
M2018-00595-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This is the second appeal in a post-divorce proceeding involving the computation of Wife’s portion of Husband’s military retirement pay. In the first appeal, we affirmed the trial court’s computation and remanded the case for further proceedings. On remand, the trial court assessed the arrearage of retirement pay that had accrued during the pendency of the appeal and awarded Wife her attorney’s fees. Husband appeals, contending that the trial court lacked subject matter jurisdiction and that Wife lacked standing to raise the issue of calculation of military retirement pay; Husband also raises numerous other issues related to the propriety of the judgment that was at issue in the first appeal, each party’s entitlement to attorney’s fees, and the trial court’s denial of two motions to recuse itself. We vacate the award of attorney’s fees for services rendered in another proceeding, and affirm the judgment in all other respects; we award Wife her attorney’s fees incurred in this appeal and remand the case for a determination of the amount to be awarded.   

Montgomery County Court of Appeals 05/02/19
Cheryl Merolla v. Wilson County, Tennessee
M2018-00919-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Clara W. Byrd

Plaintiff filed a complaint against the defendant county alleging mistreatment in the county jail resulting in physical and emotional injuries. Following a bench trial, the trial court dismissed all of the plaintiff’s claims. We affirm the trial court’s decision in all respects. 

Wilson County Court of Appeals 05/01/19
In Re Anna G.
M2018-01456-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ronald Thurman

A mother’s parental rights were terminated based on the ground of abandonment by willful failure to support pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i). The mother appealed, and we reverse the trial court’s judgment. Although the mother did not provide cash to the child’s guardians, she spent a portion of her disposable income that was not insignificant on the child during the relevant four-month period, thereby precluding the petitioners from proving abandonment by clear and convincing evidence.

Overton County Court of Appeals 05/01/19
Janella L. McCants v. Jacinta L. McGavock, Et Al.
E2017-01712-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Pamela A. Fleenor

This appeal involves a partition of jointly owned property. The trial court held that the plaintiff, the sole residing tenant, excluded the defendants, the three other cotenants, from the property owned by all four parties after relations deteriorated and a mutually agreed upon final disposition of the property could not be reached. The trial court further awarded $60,000, the amount of “repairs/improvements,” to plaintiff as reimbursement and compensation. Additionally, the trial court held that “ouster” was established and that the plaintiff excluded her cotenants and must pay rent to the cotenants for the use and occupation of the property. The trial court’s ruling included an order of partition of the property, that the defendants’ share of the amount expended by the plaintiff will be deducted from the sale proceeds to reimburse the plaintiff, and that those expenses are to be offset by the amount of rent owed to the defendants. The plaintiff appeals as to the finding of “ouster” and exclusion, whereas the defendants appeal as to the award of reimbursement in regard to the repairs and improvements made by the plaintiff. We affirm.

Hamilton County Court of Appeals 05/01/19
Sandi Lynn Pack v. James Wade Pack
M2018-00491-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Deanna B. Johnson

This appeal arises from a divorce action in which the wife was granted a partial default judgment after the husband failed to enter an appearance or file a responsive pleading to the complaint, and failed to file a response or appear at the hearing on the wife’s motion for a default judgment. After receiving the order granting the partial default judgment, the husband retained counsel and filed a motion to set it aside pursuant to Tenn. R. Civ. P. 60.02(1) and (5), seeking relief for “excusable neglect” and for “any other reason justifying relief.” Following a hearing, the trial court denied the motion to set aside the partial default judgment upon a determination that the husband’s conduct precipitating the default was willful. The court also set a final hearing to try the remaining issues, including child support for the parties’ minor child and property division. After an evidentiary hearing, the trial court valued the marital estate at well over one million dollars; however, the total did not include the present value of the wife’s pension plan, which was classified as marital property and awarded to the wife. Excluding the unknown value of the wife’s pension, the court awarded 60% of the marital assets to the wife and 40% to the husband. This decision was based in part on the court’s finding that in addition to being the sole wage earner for the family, the wife was primarily responsible for the children and the home while the husband “dissipated marital assets” through stock trading. The husband appeals, contending the trial court erred by (1) failing to set aside the partial default judgment; (2) failing to make an equitable division of the marital estate by not determining the value of the wife’s pension plan, designating the husband’s stock trading losses as a dissipation of marital assets, and awarding the wife a greater share of the marital estate, despite the fact that the husband was the economically disadvantaged spouse; and (3) failing to award the husband his attorney’s fees. We affirm the trial court in all respects.

Williamson County Court of Appeals 04/30/19
Regions Commercial Equipment Finance, LLC v. Richards Aviation Inc., et al.
W2018-00033-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Walter L. Evans

In this appeal, the trial court granted summary judgment to a bank that financed the debtor’s purchase of an aircraft; the court also dismissed the debtor’s counterclaim based on fraudulent inducement, fraudulent misrepresentation, and negligent misrepresentation, and the debtor’s motion seeking damages from the Receiver that had been appointed by the court to manage and sell the aircraft. We vacate the order granting summary judgment to the bank and remand the case for further consideration and entry of an order that complies with Tennessee Rule of Civil Procedure 56.04; in all other respects we affirm the judgment.

Shelby County Court of Appeals 04/30/19
Crouch Railway Consulting , LLC v. LS Energy Fabrication, LLC
M2017-02540-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Joseph A. Woodruff

The sole issue on appeal is whether a Tennessee court may exercise specific personal jurisdiction over the nonresident defendant. A Tennessee civil engineering company filed an action for breach of contract and unjust enrichment against a Texas energy company in Williamson County Chancery Court, alleging that the Texas company breached its contract with the Tennessee company by failing to pay for engineering and planning services. The defendant filed a Tenn. R. Civ. P. 12.02(2) motion to dismiss for lack of personal jurisdiction. The trial court granted the motion, determining that the minimum contacts test had not been satisfied because the defendant did not target Tennessee. Additionally, the trial court determined that it would be unfair and unreasonable to require the defendant to litigate the dispute in Tennessee. This appeal followed. Relying primarily on the Tennessee Supreme Court’s reasoning in Nicholstone Book Bindery, Inc. v. Chelsea House Publishers, 621 S.W.2d 560 (Tenn. 1981), we have determined that the Texas company purposefully directed its activity toward Tennessee by engaging a Tennessee engineering company to provide customized services, which were performed primarily in Tennessee. We have also determined that it is fair and reasonable to require the Texas company to litigate the dispute in Tennessee. Therefore, we reverse the trial court’s decision to dismiss for lack of personal jurisdiction and remand for further proceedings.

Williamson County Court of Appeals 04/30/19
Leslie K. Jones v. Andy L. Allman
M2018-00899-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Senior Judge Robert E. Lee Davies

The trial court granted the defendant’s motion for summary judgment with regard to the plaintiff’s claim of legal malpractice. Upon the plaintiff’s motion to alter or amend the judgment, the trial court denied the motion. The plaintiff has appealed. Discerning no reversible error, we affirm.

Davidson County Court of Appeals 04/30/19
Duane Southerland, Et Al. v. Danny Howell
M2018-01427-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Larry B. Stanley

This appeal arises from a boundary line dispute. Duane and Jean Southerland (“Plaintiffs”) sued Danny M. Howell (“Defendant”) in the Chancery Court for Van Buren County (“the Trial Court”) seeking declaratory judgment as to a boundary line and damages for the removal of a fence. The Trial Court found that Plaintiffs successfully established their claim of adverse possession over the disputed area. Defendant timely appealed to this Court. Defendant argues, among other things, that Plaintiffs cannot prevail because they did not own or adversely possess the property for a period of 20 years. We, as did the Trial Court, hold that, in keeping with Tennessee law, the requisite time period may be established by successive possessions. The unrefuted proof at trial was that Plaintiffs and their predecessors in title maintained actual, continuous, and exclusive possession of the disputed area for over 20 years. We affirm the judgment of the Trial Court.

Van Buren County Court of Appeals 04/30/19
Evangeline Webb, et al. v. Milton E. Magee, Jr., et al.
W2018-01305-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert Samual Weiss

This appeal involves a re-filed health care liability action in which the plaintiffs challenged the constitutionality of the health care liability act. The trial court upheld the constitutionality of the statutes and granted summary judgment in this action because the initial suit was not filed within the applicable statute of limitations. We affirm.

Shelby County Court of Appeals 04/30/19
Randall Holt, et al. v. Billy Kirk, et al.
W2017-00847-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Jerry Stokes

Residential property owners sued their neighbors alleging multiple causes of action, including intentional infliction of emotional distress, false arrest, and assault. The jury rendered a verdict in favor of the plaintiffs, which was approved by the trial court. On appeal, the defendant contends that the trial court erred in denying pre-trial motions for summary judgment, excluding relevant evidence at trial, determining a potential witness was competent to testify, refusing to grant a directed verdict or a mistrial, failing to order a new trial when the verdict was against the weight of the evidence, and refusing to suggest a remittitur. After a careful review of the record, we find no reversible error. So we affirm.

Shelby County Court of Appeals 04/30/19
James Kirby v. Memphis Light Gas & Water
W2017-02390-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jerry Stokes

The driver of a delivery truck was injured when the delivery truck collided with a utility truck. The trial court determined that the utility company was 70% at fault and the delivery driver was 30% at fault. The court awarded the delivery driver $105,000 in damages. On appeal, the utility company argues that the trial court erred in including future medical expenses in its calculation of damages and that the delivery driver failed to mitigate his damages. We find no error in the trial court’s award of damages and affirm the trial court’s judgment.

Shelby County Court of Appeals 04/29/19
In Re Laura F.
M2017-01767-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Diana F. Monroe

A mother appeals the termination of her parental rights to her child. The juvenile court found by clear and convincing evidence three statutory grounds for termination of parental rights: abandonment by willful failure to support and by willful failure to visit and persistence of conditions. The court also found by clear and convincing evidence that termination of mother’s parental rights was in the child’s best interest. Upon our review of the record, we affirm.

Overton County Court of Appeals 04/29/19
Venture Holdings, LLC v. Metropolitan Government Of Nashville And Davidson County, Tennessee, by and through Metropolitan Board of Zoning Appeals
M2018-01838-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Anne C. Martin

This case involves an appeal to the Davidson County Chancery Court (“trial court”) of an administrative zoning decision denying an application for a special exception permit. In January 2018, the petitioner, Venture Holdings, LLC (“Venture”), filed an application with the respondent, the Metropolitan Government of Nashville and Davidson County, Tennessee, acting by and through the Metropolitan Board of Zoning Appeals (“the Board”), for a special exception permit to build a waste transfer station at a particular location. Following an administrative hearing, the Board denied Venture’s application upon finding that Venture had failed to meet the applicable requirements set forth by the Zoning Code for Metropolitan Nashville and Davidson County (“Metro Code”). Venture, through a petition for writ of certiorari, appealed the Board’s decision to the trial court, alleging that the Board’s decision was not supported by substantial or material evidence and was illegal, arbitrary, and capricious. Following a hearing, the trial court found substantial and material evidence to support the Board’s decision and affirmed the Board’s denial of Venture’s application. Venture timely appealed. Discerning no reversible error, we affirm.       

Davidson County Court of Appeals 04/29/19
Cannon and Associates, LLC v. Hillcrest Healthcare, LLC
M2018-00929-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Ellen H. Lyle

This case involves the enrollment of a foreign judgment in Tennessee. The trial court granted summary judgment in favor of the plaintiff, effectively enrolling the foreign judgment, rendered in Florida, pursuant to the Full Faith and Credit Clause of the United States Constitution and Tennessee’s Uniform Foreign Judgment Enforcement Act. On appeal, the defendant argues that the granting of summary judgment was improper because the Florida court lacked personal jurisdiction over defendant. Because we conclude that genuine issues of material fact remain unresolved, the trial court’s order granting summary judgment in favor of the plaintiff is vacated and remanded for further proceedings.

Davidson County Court of Appeals 04/29/19
Paige Diane Griffith v. Richard John Griffith
M2018-01245-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Deanna B. Johnson

This appeal arises from a divorce proceeding. The only issues raised on appeal relate to the trial court’s awards of alimony and child support. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings.

Lewis County Court of Appeals 04/29/19
In Re Antoine J., et al.
W2017-02456-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Gina C. Higgins

The mother of a three-year-old child appeals the trial court’s ruling that she committed severe child abuse under Tennessee Code Annotated § 37-1-102(b)(27). The Department of Children’s Services (the “Department”) received a referral from a Memphis hospital after determining that the child had suffered a fractured femur along with other injuries that were not usually caused by normal childhood play. Following its initial investigation, the Department determined that the injuries were the result of abuse by the mother’s boyfriend. Subsequently, the Department filed a petition against the mother and her boyfriend to declare her children dependent and neglected and the victims of severe child abuse. A juvenile court magistrate and the juvenile court judge each found the children dependent and neglected and that the mother committed severe child abuse by failing to protect the child from her boyfriend’s abuse and failing to timely seek medical attention for the child. Following an appeal, the circuit court made the same findings. The mother appeals the determination that she committed severe child abuse. We affirm.

Shelby County Court of Appeals 04/26/19
In Re: O.M. Et Al.
E2018-01463-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Robert M. Estep

Department of Children’s Services filed a petition to terminate the parental rights of father, J.M., with respect to his children, O.M. and K.M. The court held clear and convincing evidence exists to terminate father’s parent rights on the ground of abandonment by an incarcerated parent, pursuant to Tenn. Code Ann. § 36-1-113(g)(1), and for failure to manifest an ability to parent, pursuant to Tenn. Code Ann. § 36-1- 113(g)(14). By the same quantum of proof, the court held that termination is in the children’s best interest. Father appeals. We affirm

Claiborne County Court of Appeals 04/26/19
U.S. Bank National Association, et al. v. Marce Harvey Ingram, et al.
W2018-01689-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Clayburn Peeples

This a declaratory judgment action in which the plaintiff sought to reform a deed that included an incorrect description of the property at issue. The plaintiff alleged that a mutual mistake had occurred and that the parties to the transaction intended to encumber a 2-acre tract of land, not a 0.7-acre tract of land as described in the deed. The plaintiff claimed that the land had also been improperly released. The trial court agreed and granted summary judgment in favor of the plaintiff. The defendants appeal. We affirm.

Gibson County Court of Appeals 04/26/19
Comcast Holdings Corporation, Et Al. v. Tennessee Department of Revenue, Et Al.
M2017-02250-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Claudia Bonnyman

This action involves a multistate taxpayer suit concerning an assessment against four Comcast entities doing business in Tennessee for the payment of additional franchise and excise tax liabilities for cable television and internet receipts from Tennessee subscribers. Comcast filed suit against the Tennessee Department of Revenue, alleging that the assessments improperly attributed the cost of performance of various earnings producing activities to Tennessee. Following a hearing, the trial court determined that Comcast failed to correctly identify its earnings producing activity, thereby requiring judgment for the Department. The court alternatively ruled that the activities underlying the licensing costs for video content took place in Tennessee, supporting the assessment for cable television receipts. The court entered judgment against Comcast. We affirm.

Davidson County Court of Appeals 04/25/19
Margaret Winebrenner v. Johnnie Mackalyn Godwin, Et Al.
M2017-00270-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Stella L. Hargrove

This appeal illustrates the, not uncommon, choice of law problems that can arise when an unmarried couple begins cohabitation in one state and then moves to another state and one of the cohabitants dies. After meeting and living together in California, the cohabitants moved to Tennessee, where they lived together for a number of additional years. When one of the cohabitants died, the other sought a declaratory judgment against the decedent’s children and the trustee of a trust created by the decedent that, among other things, the cohabitants’ relationship entitled the surviving cohabitant to support in the form of “palimony” as allowed by California law. The children and the trustee moved for summary judgment, which was granted. On appeal, the surviving cohabitant argues that the trial court erred in not applying California law to an agreement for support that was made in California. We conclude that, under our choice of law rules, Tennessee law applies.  

Maury County Court of Appeals 04/25/19
James C. Gekas v. HCA Health Services Of Tennessee, Inc., Et Al.
M2019-00535-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Senior Judge William B. Acree

This is an appeal from an order granting the defendants’ Tenn. R. Civ. P. 12.02 motion to dismiss for failure to state a claim. Because the plaintiff did not file his notice of appeal within thirty days after entry of the order as required by Tenn. R. App. P. 4(a), we dismiss the appeal.

Davidson County Court of Appeals 04/25/19
Larry Mark Mangum v. Laney Celeste Mangum
E2018-00024-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Douglas T. Jenkins

In this appeal, the wife challenges the trial court’s designation of the husband as the primary residential parent of the minor children, the crafting of the parenting plan, and the marital property determinations. The trial court neglected to make findings under the appropriate statutory provisions. We vacate the judgment except as to the divorce and remand with instructions to make findings of fact and conclusions of law that consider all the relevant and applicable statutory factors.

Hamblen County Court of Appeals 04/24/19
Joe Logan Diffie v. Theresa Crump Diffie
M2018-00267-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph A. Woodruff

In this divorce action, the husband contends the trial court erred in the division of marital property in awarding 60% of the marital estate to the wife and 40% to the husband, and in its decision to award the wife all four types of alimony. The wife takes issue with the amount of alimony awarded to her, and both parties seek attorney’s fees on appeal. We affirm the award of alimony in solido. As for the awards of alimony in futuro and transitional alimony, an award of alimony must be based on the factors known at the time of the hearing, Ford v. Ford, 952 S.W.2d 824, 829-30 (Tenn. Ct. App. 1996); however, the trial court considered the husband’s “speculative income,” that being what he might earn in the future, in setting the amount of alimony in futuro and transitional alimony. Accordingly, we reverse the amounts awarded for in futuro and transitional alimony and remand to the trial court to make additional findings of fact and conclusions of law to determine the wife’s need for each category of alimony and the husband’s ability to pay based upon the relevant factors and facts known at the time of the divorce, and enter judgment accordingly. We vacate the award of rehabilitative alimony because it was not requested, and there is no competent evidence to support an award of rehabilitative alimony. Moreover, because we have affirmed the finding that the wife is entitled to receive transitional alimony, which should be awarded only when rehabilitation is not necessary, see Tenn. Code Ann. § 36–5–121(d)(4), she may not be awarded rehabilitative alimony. Additionally, we decline the husband’s request to recover his attorney’s fees on appeal but grant the wife’s request and remand this issue for the trial court to award the fees and expenses she incurred on appeal that were reasonable and necessary. 

Williamson County Court of Appeals 04/23/19