Court of Appeals Opinions

Format: 10/22/2019
Format: 10/22/2019
James Russell Vaughn, Jr. v. Sandra Pierce Vaughn
E2018-00794-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge William K. Rogers

Husband and wife were divorced in 2004. The parties’ marital dissolution agreement obligated husband to pay wife $950 a month in alimony. Husband failed to make payments for over ten years. In 2015, wife filed a motion for contempt and order for body attachment seeking to recover the alimony arrearages. At trial, husband argued that the equitable doctrines of laches, waiver, and unclean hands barred wife’s claim. The trial court disagreed and awarded wife $114,000 in past due alimony and $1,000 in attorney’s fees. Husband appeals. We affirm.

Sullivan County Court of Appeals 08/06/19
Gary Lee Odom v. Rachel Lea Zamata Odom
M2018-00405-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Phillip R. Robinson

Two days before the parties’ divorce trial, wife discharged her attorney. Her attorney then moved to withdraw. One day before trial, wife moved pro se for recusal of the trial judge. On the morning of trial, the court denied the wife’s recusal motion and granted her attorney’s motion to withdraw. Wife was not present. After confirming that wife had notice of the date, the court proceeded with the trial. In the final decree, the court granted husband a divorce, classified and divided the marital property, and awarded husband a portion of his attorney’s fees. On appeal, we conclude that the trial court did not err in denying wife’s recusal motion, allowing her attorney to withdraw, or conducting the trial in her absence. But the court did err in awarding husband attorney’s fees as alimony in solido. So we reverse the court’s award of attorney’s fees as alimony in solido. In all other respects, we affirm.

Davidson County Court of Appeals 08/05/19
In Re Keagan P.
E2019-00055-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Tammy M. Harrington

A trial court terminated a father’s parental rights on the basis of abandonment by failure to visit and substantial noncompliance with a permanency plan. The father appealed, and we affirm the termination.

Blount County Court of Appeals 08/05/19
In Re: K.S.
E2018-02274-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Timothy E. Irwin

The Department of Children’s Services filed a petition to terminate the parental rights of S.M. (mother) with respect to her child, K.S. The trial court determined that clear and convincing evidence supported multiple grounds for terminating mother’s parental rights. By the same quantum of proof, the court determined that termination is in the best interest of the child. We affirm.

Knox County Court of Appeals 08/02/19
Donna L. Stearns-Smith v. James Ronnie Smith
M2017-01902-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Franklin L. Russell

After Wife filed for divorce from her husband, the parties stipulated to an equitable division of personal property and to the grounds for divorce.  The court conducted a trial to resolve questions surrounding the classification and division of two parcels of improved real property and Wife’s requests for alimony and attorney’s fees.  The trial court determined one parcel of real property was separate property while the other was marital and provided for its division.  The court also awarded Wife alimony in solido and attorney’s fees.  On appeal, Husband challenges the classification and division of the real property and the awards of alimony and attorney’s fees.  We conclude that the court erred in calculating the amounts due from Husband to Wife to accomplish its division of marital property, so we modify the judgment in that respect.  Otherwise, because of a failure to fully comply with Rule 7 of the Rules of the Court of Appeals of Tennessee, Husband’s issues related to the classification, valuation, and division of property are deemed waived.  As to the remaining issues, we affirm the award of lump sum alimony in solido but reverse the award of attorney’s fees as alimony in solido.  

Bedford County Court of Appeals 07/31/19
Michael Cobble Et Al. v. Greene County, Tennessee Et Al.
E2018-02017-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Douglas T. Jenkins

This case involves an action by the petitioner landowners disputing the grant of a zoning variance to their neighbors, the respondent landowners, for the construction of a carport. In a previous appeal, this Court reversed the respondent county zoning board’s grant of the variance and remanded to the trial court for collection of costs and “further proceedings consistent with this [Court’s] Opinion.” See Cobble v. Greene Cty., 559 S.W.3d 118, 127 (Tenn. Ct. App. 2017), perm. app. denied (Tenn. May 16, 2018) (“Cobble I”). Our Supreme Court subsequently denied the county’s and zoning board’s application for permission to appeal, and this Court issued a mandate on the same day. On September 4, 2018, the petitioners filed a motion for discretionary costs. The county and the zoning board filed a response, asserting that the motion for discretionary costs was untimely pursuant to Tennessee Rule of Civil Procedure 54.04(2). The respondent landowners also filed a response objecting to the motion. Upon finding that this Court’s mandate was dispositive of all issues and that the petitioners had failed to file their motion within the thirty days allowed by Rule 54.04(2), the trial court entered an order denying the motion for discretionary costs. The petitioners have appealed. Discerning no reversible error, we affirm.

Greene County Court of Appeals 07/31/19
Robert D. Palmer, Jr. Et Al. v. Wayne Eric Colvard Et Al.
E2018-00454-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Pamela A. Fleenor

This case arises from the death of Robert D. Palmer, Sr. (“Decedent”). Prior to his death, Decedent entered into a contract with Wayne Eric Colvard and Wayne Eugene Colvard (collectively “Defendants”) for the sale of his tax preparation business. Decedent’s children, Robert Dean Palmer, Jr. and Suzanne Johnson (collectively “Plaintiffs”), filed suit against Defendants in their alleged capacities as personal representatives of Decedent’s estate for breach of contract, fraud, and unjust enrichment relating to the sale. The details of the complaint are not at issue in this appeal.

Hamilton County Court of Appeals 07/31/19
Amber Ada Hernandez v. David Alan Hernandez
W2018-01388-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Van D. McMahan

This appeal involves a petition for modification of a permanent parenting plan. The initial permanent parenting plan order was entered by the McNairy County General Sessions Court (“trial court”) in October 2006. In November 2016, the father filed a petition in the trial court, alleging that a material change in circumstance had occurred due to the mother’s having been charged with aggravated statutory rape. The father concomitantly filed a petition requesting a temporary injunction granting him “emergency custody” and suspending the mother’s co-parenting time. The mother filed a motion to dismiss the petitions, alleging that the trial court lacked subject matter jurisdiction because the parties and the child all resided outside of Tennessee. In December 2016, the trial court entered an “Order for Visitation,” inter alia, modifying the father’s holiday co-parenting time and directing that the mother’s co-parenting time be supervised by her stepmother. Following a bench trial, the trial court granted the mother’s motion to dismiss for lack of subject matter jurisdiction pursuant to Tennessee Code Annotated § 36-6-217 (2017) of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The father has appealed. We affirm with one modification to the final judgment to clarify that with the trial court’s dismissal of this action, the December 2016 temporary order was no longer of any effect.

McNairy County Court of Appeals 07/30/19
Maurice Pinson v. David Kent DeBoer M.D. Et Al.
M2018-00593-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Kelvin D. Jones

Appeal of an award of discretionary costs to Defendants in healthcare liability action that had been voluntarily dismissed. The trial court initially awarded Defendants, inter alia, expert witness fees for medical providers who had treated Plaintiff, expenses for videotaped depositions, and costs for the travel time and deposition preparation time for Plaintiff’s vocational expert. On Plaintiff’s motion, the court modified the award to exclude videographer expenses, expenses attendant to the vocational expert’s deposition, and other court reporter expenses. We modify the award to exclude the witness fees for the providers who treated Plaintiff and to include the court reporter fee for the deposition of Plaintiff’s vocational expert; vacate the portion of the award that reduces the amount of court reporter fees and expenses and remand the case for reconsideration of the award; and reverse the order to the extent it requires the Plaintiff to post a bond or pay discretionary costs prior to re-filing the suit. 

Davidson County Court of Appeals 07/30/19
Toni Barrios, Et Al. v. Charlie Simpkins, Et Al.
M2018-00122-COA-R9-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Philip E. Smith

The plaintiffs filed a complaint against the defendants for trespass and sought a declaration of the boundary line between the two properties, among other things. Following discovery, the defendants moved for summary judgment on the grounds that a prior case involving the plaintiffs and the prior owner of the defendants’ property had established the boundary line between the two properties. The trial court granted the defendants’ motion. The plaintiffs appeal. We reverse the court’s decision and remand for it to hear evidence and to establish the boundary line between the two properties.

Cheatham County Court of Appeals 07/29/19
The Parking Guys, Inc. v. Metropolitan Government Of Nashville & Davidson County, Tennessee Ex Rel Traffic & Parking Commission
M2018-01409-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor William E. Young

This appeal concerns the denial of a valet parking permit. The Parking Guys, Inc. (“Parking Guys”) sought a permit for valet parking from the Traffic and Parking Commission (“the Commission”) of the Metropolitan Government of Nashville and Davidson County (“Metro”). Despite a study reflecting no traffic problems caused by Parking Guys’ activities, the Commission denied the permit. Parking Guys then filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County (“the Trial Court”). The Trial Court found that, notwithstanding the study, the Commission’s decision was supported by material evidence including the firsthand observations of local business owners. The Trial Court also denied a petition to intervene filed by Linda Schipani (“Schipani”), an individual sued by Parking Guys in federal court for allegedly conspiring to deny the permit. Parking Guys appeals to this Court, as does Schipani still seeking to intervene. Parking Guys argues that the Commission’s decision was based on politics rather than material evidence. Schipani, for her part, argues she has a special interest in this case warranting her intervention because of the federal suit filed against her even though it has been dismissed. We hold that the Commission’s decision was supported by material evidence. We further find no reversible error in the Trial Court’s decision to deny Schipani’s motion to intervene. We affirm the judgment of the Trial Court. 

Davidson County Court of Appeals 07/29/19
Felicitas Hayes v. Christopher Daniel Scoggin
W2019-00057-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jim Kyle

Mother and father were divorced in 2013. They have four children together. Disputes regarding child custody have spanned four states and nearly six years. In this iteration, on June 9, 2017, mother filed a “Petition to Enroll Foreign Decree, For Immediate Injunctive Relief, for Sciare Facias, and Citation for Criminal and Civil Contempt, for Modification of Custody Order, and for Entry of Temporary Parenting Plan.” In his answer, father requested that, pursuant to Tenn. Code Ann. § 36-5-103(c), he be reimbursed for the attorney’s fees incurred as a result of defending against mother’s petition. After nine months of litigation, mother voluntarily dismissed her petition without prejudice. As a result of mother’s voluntary dismissal prior to trial, father’s claim for attorney’s fees was not resolved. Following mother’s dismissal, another dispute arose regarding summer custody. On April 20, 2018, father filed a petition to resolve the summer custody issue; it was resolved by a consent order. Following the consent order, father filed a petition to recover the attorney’s fees and costs incurred in defending against mother’s voluntarily dismissed petition. Mother moved to dismiss father’s petition alleging that res judicata precluded father from seeking to recover his attorney’s fees in that matter, because he did not raise the issue in his summer custody petition. The trial court disagreed. Mother applied for an interlocutory appeal; this Court denied her application. The trial court subsequently awarded father $11,963.08 in attorney’s fees and costs. Mother appeals. We affirm.

Shelby County Court of Appeals 07/25/19
Melanie Robertson, et al. v. Tennessee Secondary School Athletic Association
W2019-00015-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Jim Kyle

Based on its bylaws, Appellant Tennessee Secondary School Athletic Association denied three students, Appellees herein, permission to play football at a local high school. Appellees filed a petition for restraining order and for temporary and permanent injunctions asking the trial court to prohibit the Association from denying the Students permission to play football. The trial court immediately granted temporary injunctions; later, the trial court granted permanent injunctions. Appellant appeals. Based on the allegations contained in Appellees’ petition, the trial court did not have authority to interfere in the internal affairs of TSSAA concerning the Students’ eligibility to play football for the 2018-2019 school year. Therefore, we reverse and remand the case with instructions to the trial court to dismiss the case and collect the costs.

Shelby County Court of Appeals 07/25/19
Dean Smith v. Tennessee Board of Paroles
M2018-01354-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Russell T. Perkins

This appeal concerns an incarcerated inmate’s filing of a petition for writ of certiorari, claiming that the Tennessee Board of Paroles acted arbitrarily, fraudulently, illegally, and in excess of its authority in denying his request for parole. The trial court granted the petition but ultimately affirmed the denial of parole. We affirm.

Davidson County Court of Appeals 07/25/19
Patricia Randolph v. White County, Tennessee, Et Al.
M2018-01496-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Larry B. Stanley, Jr.

A mother brought suit against White County and its Sheriff for negligent infliction of emotional distress arising out of a situation in which the Sheriff erroneously informed the mother that her son had been shot and killed by deputies. The trial court dismissed the suit, ruling that the Sheriff was immune from suit under the Governmental Tort Liability Act and White County was immune from suit by application of the public duty doctrine. Mother appeals, asserting that neither defendant is immune from suit. Finding no error, we affirm the judgment.

White County Court of Appeals 07/24/19
Metropolitan Government Of Nashville And Davidson County Ex Rel. State of Tennessee v. Delinquent Taxpayers As Shown On The 2011 Real Property Tax Records Of The Metropolitan Government of Nashville And Davidson County, Tennessee
M2018-00357-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Ellen H. Lyle

This case involves a dispute regarding a trial court’s assessment of interest on a parcel of real property subject to a redemption action. The trial court required the redeeming party to pay interest to the tax sale purchasers for the time that elapsed during the redemption proceedings. The redeeming party appealed the trial court’s application of interest to any period after the redeeming party had filed its notice of redemption. Following our thorough review of this issue, we agree that assessment of interest beyond the date of the filing of redemption notice was improper. We therefore reverse the trial court’s assessment of interest and modify the trial court’s judgment accordingly.

Davidson County Court of Appeals 07/24/19
Morristown Heart Consultants, PLLC et al. v. Pragnesh Patel, M.D.
E2018-01590-COA-R9-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Robert E. Lee Davies

We granted this Tennessee Rule of Appellate Procedure 9 interlocutory appeal to consider whether the Trial Court erred in ordering disclosure of the representation file maintained by attorney Troy L. Bowlin, II, during his representation of Morristown Heart Consultants, PLLC (“MHC”) to a member of MHC. We find and hold that the Trial Court did not err in determining that MHC had not properly authorized the hiring of Mr. Bowlin and that attorney-client privilege did not apply to prevent disclosure of Mr. Bowlin’s legal file to a member of MHC with fifty percent financial rights and thirty-three percent governing rights to the company. We, therefore, affirm the Trial Court’s order permitting the member to acquire Mr. Bowlin’s legal file concerning MHC and conduct relevant discovery concerning that representation.

Hamblen County Court of Appeals 07/24/19
Wayne Jones, Jr. Et Al. v. State of Tennessee
M2017-02198-COA-AR3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Commissioner Robert N. Hibbett

This wrongful death action arises from the tragic death of a state university student-athlete during football practice. The student’s parents filed a claim against the State of Tennessee in the Tennessee Claims Commission. After a trial, the Commissioner found that the parents had failed to prove by a preponderance of the evidence that: (1) the head athletic trainer violated the applicable standard of care after the student’s collapse; (2) the trainer’s negligence was the cause in fact of the student’s death; and (3) the university was otherwise negligent in caring for the student after his collapse. Because the evidence does not preponderate against the Commissioner’s causation findings, we affirm.

Court of Appeals 07/24/19
Donna M. Sabella F/K/A Donna Frazier F/K/A Donna Sabella Frazier v. Naomi Foreman, Et Al.
M2019-01067-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Charles K. Smith

This is an appeal from a final judgment entered on May 14, 2019. Because the defendants did not file their notice of appeal within thirty (30) days after entry of the final judgment as required by Tenn. R. App. P. 4(a), we dismiss the appeal.

Wilson County Court of Appeals 07/23/19
Carolyn Coffman et al. v. Armstrong International, Inc. et al.
E2017-01985-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge William T. Ailor

This consolidated appeal arises from a product liability action brought by Donald Coffman and his wife, Carolyn Coffman, after Mr. Coffman was diagnosed with mesothelioma. Plaintiffs asserted several claims against multiple defendants for their alleged involvement in Mr. Coffman’s exposure to asbestos at his workplace. The trial court dismissed their claims against some of the original defendants. The court granted summary judgment to the remaining defendants. Specifically, the court found that: (1) plaintiffs’ claims against one defendant were time-barred by the four-year construction statute of repose set forth in Tenn. Code Ann. § 28-3-202 (2017); (2) plaintiffs’ claims against three defendants were time-barred by the ten-year statute of repose set forth in Tenn. Code Ann. § 29-28-103 (2012); (3) ten defendants affirmatively negated their alleged duty to warn; and (4) plaintiffs presented insufficient evidence of causation with respect to seven defendants. The court denied plaintiffs’ motion to alter or amend certain summary judgment orders. Plaintiffs filed separate notices of appeal for each final judgment entered by the trial court. These cases were consolidated for the purpose of oral argument before the Court of Appeals. For the reasons stated in this opinion, we vacate all of the final judgments entered by the trial court.

Knox County Court of Appeals 07/22/19
State of Tennessee Ex Rel. Claiborne County v. Delinquent Taxpayer, Albertano Alvarez Et Al.
E2018-01710-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin, Jr.
Trial Court Judge: Judge Elizabeth C. Asbury

This appeal arises from the redemption of a parcel of real property purchased at a delinquent taxpayer sale. The appellants were lienholders on a parcel of real property sold to a third party purchaser at a delinquent tax sale. Within days after the tax sale, the lienholders filed a petition for redemption of the property. In response, the purchaser filed a motion to protest the validity of the lien or, alternatively, a claim to recover the expenses that had been incurred to preserve the value of the property by clearing debris and personalty from the property. The lienholders then filed a cross-claim alleging conversion and trespass to chattels. After the purchaser withdrew his objection to the validity of the lien, a bench trial was conducted, and the trial court granted the lienholders’ petition for redemption upon the following conditions relevant to this appeal: that they reimburse the purchaser in the amounts of $8,579.60 for expenses incurred in cleaning up the property and an additional $600.00 for the storage of personalty. The lienholders’ conversion and trespass to chattels claims were subsequently dismissed. Having determined that the expenses were incurred to prevent permissive waste on the property—and concluding that such expenses are recoverable despite having been incurred prior to the entry of the order confirming the sale—we affirm the judgment of the trial court.

Claiborne County Court of Appeals 07/22/19
Save Our Fairgrounds Et Al. v. Metropolitan Government Of Nashville And Davidson County, Tennessee
M2019-00724-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

Appellants filed a complaint for a declaratory judgment and injunctive relief against the Metropolitan Government of Nashville & Davidson County related to the city’s decision to allow a soccer stadium to be built at the fairgrounds. The complaint alleged that the action violated several provisions of the city’s charter intended to protect the fairgrounds for fair uses. The trial court granted summary judgment in favor of the city on the basis that the additional uses for the fairgrounds did not violate Metropolitan Charter section 11.602. Because the trial court’s order fails to adjudicate Appellants’ claims that the city’s action violated additional charter provisions, we dismiss this appeal for lack of subject matter jurisdiction.

Davidson County Court of Appeals 07/18/19
Noah Ryan Et Al. v. Laverna Soucie
E2018-01121-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Pamela A. Fleenor

This appeal arises from a dispute concerning the defendant’s conduct, which impeded the plaintiffs’ use of a state right of way for ingress to and egress from the plaintiffs’ commercial property. The trial court entered a judgment in favor of the plaintiffs following its determination that the defendant had created a nuisance and had intentionally interfered with the plaintiffs’ business relationships. The defendant has appealed. Discerning no reversible error, we affirm.

Hamilton County Court of Appeals 07/18/19
Tennessee Farmers Cooperative, Et Al. v. Ted D. Rains
M2018-01097-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Michael W. Binkley

Defendant in a debt collection case appeals the entry of judgment against him, contending that the court erred in setting the case for trial with only two days’ notice, in granting a motion in limine on the day of trial, and in its award of attorney’s fees to the Plaintiff. We modify the judgment to reduce the amount of attorney’s fees awarded; in all other respects, we affirm the judgment.  

Perry County Court of Appeals 07/18/19
Adrian Delk v. State of Tennessee
W2019-00224-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor William C. Cole

Appellant inmate filed a petition for a writ of mandamus in the chancery court seeking redress for various errors involving the sentence he ultimately received following a plea of guilty to two felonies. Because we conclude that Appellant failed to show he had no other equally effective means to redress these alleged errors, we affirm the trial court’s dismissal of Appellant’s petition.

Hardeman County Court of Appeals 07/18/19