Court of Appeals Opinions

Format: 10/22/2019
Format: 10/22/2019
Gilbert Heredia, Et Al. v. Bill Gibbons, Et Al.
M2016-02062-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle

The plaintiffs, some of whom had an interest in property that had been subject to forfeiture proceedings, filed a quo warranto action alleging misconduct by public officials in the administration of the proceedings. The plaintiffs also sought declaratory relief and judicial review “from each final judgment of forfeiture during the period permitted by Tennessee law.” On The defendants’ motion, the trial court dismissed the case on various grounds, including lack of subject matter jurisdiction and lack of standing. In the case of one plaintiff, we conclude that the court lacked subject matter jurisdiction to entertain a petition for judicial review. We further conclude that the plaintiffs either failed to state a claim upon which relief could be granted or lacked standing to pursue the claims. So we affirm the dismissal.

Davidson County Court of Appeals 07/17/19
Albert J. Ahler v. Charles Steffan Scarborough Et Al.
E2018-01102-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Elizabeth Asbury

Plaintiff filed a complaint for declaratory judgment seeking to declare Old Stage Road a public road. Plaintiff sought to use the disputed road to access his property; his property does not abut the road. The plaintiff, asserting that he was also there on behalf of the public, also sought to have the road declared public in order to access defendants’ private property for recreation. Defendants filed a counterclaim seeking a declaratory judgment. Defendants argued that absent a ruling related to defendants’ property rights, the plaintiff and those he represents were likely to interpret any ruling favorable to them as a declaration of their right to trespass upon defendants’ private property for recreational purposes, instead of a public road to gain access to some lawful destination. After a trial, the court held that defendants had shown that public use of the area in question had been abandoned. The disputed road was held to be the private property of defendants. Plaintiff appeals. We affirm.

Roane County Court of Appeals 07/17/19
Sherita Michelle Polk v. Frank Edward Polk
W2018-02052-COA-R3-CV
Authoring Judge: Judge Carma D. McGee
Trial Court Judge: Chancellor James F. Butler

This appeal arises from a divorce between parties with no minor children. The husband appealed raising numerous issues related to property division. He also challenges the trial court’s denial of his request for alimony. The appellate record contains no transcript or statement of evidence that complies with Rule 24 of the Tennessee Rules of Appellate Procedure. Further the husband’s brief is woefully deficient. Because of the husband’s failure to comply with the Tennessee Rules of Appellate Procedure and the Rules of this Court, there is no basis upon which to conclude that the evidence preponderates against the findings of the chancery court and the rulings based thereon. We affirm the judgment of the chancery court and remand the case for further proceedings consistent with this opinion.

Madison County Court of Appeals 07/16/19
James M. Morris v. Tennessee Board of Probation & Parole
M2018-01998-COA-R3-CV
Authoring Judge: Judge Carma D. McGee
Trial Court Judge: Chancellor Claudia Bonnyman

This appeal involves a petition for writ of certiorari filed in chancery court by a prisoner after he was denied parole. The chancery court concluded that the petition was timely filed but found that the issues presented were moot and lacked substantive merit. The prisoner appeals. For the following reasons, we affirm the trial court’s order of dismissal on other grounds.

Davidson County Court of Appeals 07/15/19
In Re Nicholas C. Et Al.
E2019-00165-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Brad Lewis Davidson

The trial court terminated the parental rights of Mother and Father to their four children on the grounds of abandonment by failure to visit, substantial noncompliance with the permanency plan, and failure to manifest the ability and willingness to assume custody of the children. On appeal, we conclude that there is clear and convincing evidence to support all three grounds as well as the trial court’s best interest determination. We, therefore, affirm the trial court’s decision.

Cocke County Court of Appeals 07/15/19
Northgate Limited Liability Company et al. v. Randall Amacher et al.
M2018-01407-COA-R3-CV
Authoring Judge: Judge Carma D. McGee
Trial Court Judge: Judge L. Craig Johnson

This appeal involves multiple claims asserted against multiple parties. From our review of the record, the orders appealed do not resolve all of the claims asserted in the complaint. As a result, the judgment of the trial court is not final, and this Court lacks jurisdiction to consider the appeal. The appeal is hereby dismissed.

Coffee County Court of Appeals 07/11/19
Neeld J. Messler II v. Janette Roberts Brumlow
E2018-00563-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge John B. Bennett

This is an appeal challenging a jury verdict in an unlawful detainer action, in which both parties had raised additional counterclaims against one another, including breach of contract, fraud, and a violation of the Tennessee Consumer Protection Act. The jury returned a verdict in favor of the appellee. However, neither the jury’s verdict nor the trial court’s judgment on the verdict, addressed all of the parties’ claims. Accordingly, we dismiss the appeal for lack of subject matter jurisdiction.

Hamilton County Court of Appeals 07/10/19
Christopher Conrad Fichtel v. Jill Crowell Fichtel (Zirwas)
M2018-01634-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Philip E. Smith

This appeal results from Father’s petition in opposition to relocation. Trial on the petition was held over a period of more than a year. Ultimately, the trial court granted Father’s petition in opposition and modified the parties’ child support obligation to take into account their changed incomes. We vacate the trial court’s determination of Father’s income for child support purposes, but affirm the trial court’s rulings in all other respects.

Davidson County Court of Appeals 07/10/19
Erin Alford Fuller v. Roger Darnell Fuller
E2018-01003-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Jerri S. Bryant

This appeal concerns a redetermination of alimony on remand. Erin Alford Fuller (“Wife”) sued Roger Darnell Fuller (“Husband”) for divorce in the Chancery Court for Bradley County (“the Trial Court”). The case was tried, and Husband appealed the judgment. We determined that the Trial Court properly classified and valued Husband’s trail income from his business in the property division but erred by then including, as part of Husband’s income, the amount of trail income distributed as a marital asset. We thus vacated the Trial Court’s determinations regarding child support and alimony. On remand, the Trial Court found that Husband inflated his business expenses. The Trial Court found that Husband earned approximately $200,000 per year and ordered him to pay Wife $1,500 per month as alimony in futuro. Husband appeals. We hold that the Trial Court, in keeping with our instructions, properly excluded the trail income distributed as a marital asset in making its fresh determination of Husband’s income. We find no reversible error in the Trial Court’s finding as to Husband’s income, nor do we discern any abuse of discretion in the Trial Court’s alimony decision. We affirm the judgment of the Trial Court and remand for an award to Wife of her reasonable attorney’s fees and costs incurred on appeal.

Bradley County Court of Appeals 07/10/19
Rex A. Ferguson v. Tennessee Board of Parole
M2018-01784-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

This is an appeal from the judgment of the trial court denying an inmate’s petition for writ of certiorari challenging the Tennessee Board of Parole’s denial of parole. The inmate contends the Board’s decision to deny parole based solely on the seriousness of the offense was arbitrary and capricious, and the trial court abused its discretion in denying his petition. More specifically, he contends that denying parole on the basis of one factor, the seriousness of the offenses, “in the face of so many positive factors, without an explanation of how these positive factors do not outweigh the seriousness of the offense, constitutes an arbitrary and capricious decision contrary to the weight of the evidence in the record.” Having determined that “‘seriousness of the offense’ is a proper, independent basis to deny parole release,” the trial court denied the petition for writ of certiorari. Because the seriousness of the offense is a proper, independent basis for denying parole under Tenn. Code Ann. § 40-35-503(b)(2), and the trial court did not abuse its discretion in denying the petition, we affirm.

Davidson County Court of Appeals 07/09/19
Larry Daniel Cantey v. Alyson Lindsay Cantey (Violette)
W2018-01331-COA-R3-CV
Authoring Judge: Judge Carma D. McGee
Trial Court Judge: Chancellor George R. Ellis

This appeal involves a petition to modify an agreed permanent parenting plan. The trial court denied the petition. We conclude that the trial court’s order does not contain sufficient findings of fact and conclusions of law. We vacate the order of the trial court and remand for entry of an appropriate order.

Gibson County Court of Appeals 07/09/19
In Re Joshua S.
E2018-01742-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Janice H. Snider

Daniel S. (“Father”) and Kimberly T. (“Mother”) appeal the August 27, 2018 order of the Hamblen County Juvenile Court (“Juvenile Court”) terminating their parental rights to the minor child, Joshua S. (“the Child”). Upon petition of the Tennessee Department of Children’s Services (“DCS”), the Juvenile Court terminated the parents’ rights on the grounds of substantial noncompliance with the permanency plan and failure to manifest an ability and willingness to assume custody or financial responsibility for the Child. The Juvenile Court also terminated Mother’s parental rights on the ground of persistent conditions and Father’s parental rights on the ground of abandonment by wanton disregard. Upon its determination that grounds existed to terminate the parents’ rights to the Child, the Juvenile Court determined that termination of both parents’ rights was in the best interest of the Child. Discerning no error, we affirm.

Hamblen County Court of Appeals 07/08/19
Christina Klepper Neely v. Brian Richard Neely
E2017-01807-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor E.G. Moody

Mother moved to hold Father in criminal contempt for his failure to pay child support in full each month. After finding a failure to pay child support as ordered, the court held father in criminal contempt. Because the order contains insufficient findings of fact, we vacate the judgment and remand for further proceedings.

Sullivan County Court of Appeals 07/08/19
The Wolf Organization, Inc. v. TNG Contractors, LLC
M2018-00073-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Kelvin D. Jones

Judgment creditor petitioned to enforce Pennsylvania default judgment under the Uniform Enforcement of Foreign Judgments Act. See Tenn. Code Ann. §§ 26-6-101 to -108 (2017). Judgment debtor moved for summary judgment, claiming that the Pennsylvania judgment was void because the court lacked personal jurisdiction. The trial court denied the judgment debtor’s motion for summary judgment and later granted summary judgment to the judgment creditor. The trial court also denied the judgment creditor’s subsequent motion to supplement the balance of the judgment to include post-judgment attorney’s fees and expenses. Both parties raise issues on appeal. We conclude that the judgment debtor waived its personal jurisdiction defense in the Pennsylvania court. We further conclude that the judgment creditor could not seek an award of post-judgment attorney’s fees and expenses in this enforcement action. So we affirm

Davidson County Court of Appeals 07/03/19
Hem Raj Singh v. Neeta Singh
W2017-02091-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge James F. Butler

Wife/Appellant appeals the trial court’s grant of a divorce to Husband/Appellee. Wife argues that the divorce should be set aside because the trial court lacked subject matter jurisdiction and/or lacked personal jurisdiction over Wife. Wife also asserts that she was not properly served with the complaint for divorce. Because Wife filed an answer and counter-complaint for divorce, without objecting to in personam jurisdiction, she submitted to the jurisdiction of the trial court; her filing of an answer also indicates that she was served with the complaint for divorce. Because Husband/Appellee had resided in Tennessee for more than six months before filing his complaint for divorce, Tennessee Code Annotated section 36-4-101(a) conferred subject matter jurisdiction to the trial
court. Affirmed and remanded.

Madison County Court of Appeals 07/03/19
Andres Perez v. Tennessee Board of Medical Examiners
M2018-00960-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Ellen H. Lyle

This case arose out of the Petitioner/Appellant’s attempts to become a licensed physician in Tennessee. Appellant sent an application to the Tennessee Board of Medical Examiners but was ultimately rejected. After a contested hearing, the Board again determined that Appellant’s application should be rejected since Appellant had not engaged in direct patient care in many years. Thereafter, Appellant sought review of the Board’s decision in the Chancery Court of Davidson County pursuant to the Tennessee Uniform Administrative Procedures Act. The chancery court concluded that Appellant was not entitled to relief, and Appellant appealed to this Court. Discerning no error, we affirm. 

Davidson County Court of Appeals 07/03/19
Cynthia P. Lack v. Saint Thomas Rutherford Hospital
M2018-00879-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Senior Judge Robert E. Lee Davies

This appeal involves a visitor at a hospital who was injured when she slipped and fell in an icy parking lot. The visitor filed a claim against the hospital asserting that the hospital was negligent in failing to remedy the dangerous condition created by accumulated ice because the hospital did not take steps to prevent melted snow and ice from refreezing prior to the incident. The hospital filed a motion for summary judgment and, after determining that the hospital did not have a duty to prevent melted snow and ice from refreezing, the trial court granted the hospital’s motion. We affirm in part and reverse in part.

Rutherford County Court of Appeals 07/03/19
Mary Alice Akins v. Griff Elliott Akins
M2017-00594-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Charles K. Smith

In this appeal, the father sought to revise the permanent parenting plan in order to permit him greater participation in the life of his daughter. The trial court denied the requested revision, finding that the father had failed to prove by a preponderance of the evidence that there had been a material change in circumstances that affected the child’s best interest. The father appeals. We affirm the trial court’s ruling regarding the permanent parenting plan, but we vacate the award of attorney’s fees and costs.

Wilson County Court of Appeals 07/03/19
Andy Aylor v. Fred Carr, Et Al.
M2018-01836-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This appeal arises from the trial court’s award of attorneys’ fees to three state employee defendants. The plaintiff, also a state employee, sued the defendants in their individual and official capacities related to the plaintiff’s termination from his employment. The defendants moved to dismiss the plaintiff’s claims for failure to state a claim upon which relief can be granted pursuant to Tenn. R. Civ. P. 12.02(6). The trial court granted the motions and dismissed the plaintiff’s claims with prejudice. The defendants then filed a joint motion for attorneys’ fees, relying on Tenn. Code Ann. § 29-20-113, which permits a state employee to recover attorneys’ fees when the employee is the “prevailing party” on claims filed against the employee in the employee’s individual capacity. The trial court granted this motion and awarded reasonable attorneys’ fees and costs to the defendants. This appeal followed. We affirm.

Davidson County Court of Appeals 07/01/19
Tomeka Douglas v. Covington Crosssing, Inc., et al.
W2018-01513-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Walter L. Evans

This appeal arises from the trial court’s entry of a default judgment against defendants and its denial of defendants’ motion to set aside the judgment. The trial court’s entry of default, however, was not a final judgment because it did not address the plaintiff’s claim for damages. Accordingly, we dismiss the appeal for lack of subject matter jurisdiction.

Shelby County Court of Appeals 06/28/19
Stainmaster Carpet & Restoration, LLC, Et Al. v. Music City Messenger Service, Inc., Et Al.
M2018-01368-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor William E. Young

This appeal arises from an action for declaratory judgment as to the ownership of a business, defamation, and tortious interference with business relations. The plaintiff carpet cleaner alleged that the defendant entrepreneur and his wife loaned money to the plaintiff to expand his carpet cleaning business with the condition that the defendants handle the business’s finances and bookkeeping. The defendants asserted that they started a new carpet cleaning business and the plaintiff was merely an employee. Following a jury verdict for the plaintiff, the trial court denied the defendants’ motion for a new trial and remittitur. On appeal, the defendants contend that the trial judge failed to fulfill his duty as the thirteenth juror and there was no material evidence to support the jury’s verdict or award of damages. After reviewing the record, we find the trial judge fulfilled his role as the thirteenth juror and that there was material evidence to support the jury’s verdict and award of damages. Accordingly, we affirm the judgment against the defendants.

Davidson County Court of Appeals 06/28/19
Jeffrey Heatley, et al. v. David G. Gaither, et al.
M2018-01792-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Amy V. Hollars

This is an appeal from the dismissal of the plaintiffs’ second lawsuit against adjacent property owners arising from the discovery of a leaking septic tank on the plaintiffs’ property. In their first lawsuit, the plaintiffs sued their neighbors in chancery court for negligence and trespass after discovering that the leaking septic tank was connected to a mental health facility on their neighbors’ property. While the first action was still pending, the plaintiffs filed this action against their neighbors for continuing nuisance and trespass arising from the leaking septic tank. The defendants moved for summary judgment based on the doctrine of prior suit pending. The plaintiffs opposed the motion and requested additional time to conduct discovery. After the trial court granted summary judgment to the defendants, the plaintiffs appealed. We conclude that the requested discovery was unnecessary to respond to the defendants’ motion and that all the elements of the defense of prior suit pending were present. So we affirm.

Putnam County Court of Appeals 06/28/19
Vinings Bank v. Homeland Community Bank, Et Al.
M2016-02403-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Jonathan L. Young

The key issue on appeal is the scope of a dragnet clause under Georgia law. Mortgagors refinanced debt secured by their real property with a new lender. Although the new lender sent the original mortgagee the requested payoff amount, the original mortgagee refused to release its deed of trust. The original mortgagee claimed that the real property was also security for other debts by virtue of an unrecorded instrument signed by one of the mortgagors that contained a dragnet clause. The mortgagee sought a declaratory judgment that its unrecorded instrument had priority over the deed of trust recorded by the new lender. The new lender counterclaimed, seeking the statutory penalty for the mortgagee’s failure to release its deed of trust and recovery of attorney’s fees and expenses. The trial court concluded that the unrecorded instrument was unenforceable and not effective as to the new lender due to a lack of actual notice. The court also ordered the original mortgagee to release its deed of trust and awarded the new lender the statutory penalty and attorney’s fees. On appeal by the original mortgagee, we conclude that the unrecorded instrument was enforceable, but under Georgia law, the dragnet clause was limited to the debts of the mortgagor who signed the instrument. Because of the lack of actual notice, the unrecorded instrument was not effective as to the new lender. Despite the new lender being a defendant in the declaratory judgment action, the new lender’s counterclaim for the statutory penalty entitled it to an award of attorney’s fees. We affirm the decision of the trial court as modified.

White County Court of Appeals 06/28/19
Check Printers, Inc. v. David Gerregano, Et Al.
M2018-01030-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Russell T. Perkins

This case involves the Commissioner of Revenue for the State of Tennessee’s audit and subsequent adjustment of sales tax due from Appellant, Check Printers, under the Tennessee Retailers Sales Tax Act, Tennessee Code Annotated section 67-6-101, et seq. The trial court granted the Commissioner’s motion for summary judgment finding that, although Appellant manufactured the disputed products in Tennessee and ultimately exported the products outside the state, under Appellant’s standard contract language, title passed to the customer in Tennessee at the time the product was tendered for shipping. Based on this intervening taxable event, i.e., the “sale,” as that term is defined in Tennessee Code Annotated section 67-6-102(80)(A), the trial court concluded that the products were not excluded from taxation under either the manufactured-for-export exemption, Tennessee Code Annotated section 67-6-313(a), or the sale-for-resale exemption, Tennessee Code Annotated section 67-6-102(75)(a). Because there is a dispute of material fact concerning whether Appellant’s sale of blow-in cards to its customer, AMI, was consummated in Tennessee, we vacate the trial court’s grant of summary judgment only as to the AMI blow-in cards; the trial court’s order is otherwise affirmed.

Davidson County Court of Appeals 06/28/19
Carol Lee v. Hamilton County, Tennessee
E2018-01531-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Kyle E. Hedrick

The plaintiff in this action is a retired employee of the defendant county. She filed a complaint in October 2009, asserting claims of negligence, breach of contract, intentional or negligent misrepresentation, and breach of fiduciary duty related to a county employee’s alleged faulty advice and lack of disclosure to her concerning the interplay of her disability benefits policy and her retirement plan. Upon the county’s motion, the trial court granted partial summary judgment in favor of the county in July 2016, dismissing the plaintiff’s claims of misrepresentation and breach of fiduciary duty. The trial court subsequently denied the county’s motion for judgment on the pleadings as to the remaining issues. Following a bench trial in July 2018, the trial court entered a judgment awarding to the plaintiff the amount of $13,985.52. The county timely appealed. Having determined that the trial court’s final order does not sufficiently explain the legal basis upon which the money judgment was awarded, we vacate the judgment and remand to the trial court for entry of findings of fact and conclusions of law explaining the basis of the judgment or, in the alternative, reconsideration of the judgment.

Hamilton County Court of Appeals 06/28/19