Court of Appeals Opinions

Format: 07/16/2019
Format: 07/16/2019
Larry Beckwith, Et Al. v. LBMC, P.C. Et Al.
M2017-00972-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Michael Binkley

A business retained a professional accounting firm to value its common stock and stock options. Almost four years after the requested valuation report was provided, the president of the business claimed that one of the firm’s accountants had disclosed confidential information about the valuation to a third party. The president and the accounting firm entered a tolling agreement for his individual claim. But after attempts to resolve the dispute failed, the president and the business filed a complaint against the accounting firm for breach of contract, accounting malpractice, and breach of fiduciary duty. The accounting firm moved for summary judgment, claiming the suit was barred by the statute of limitations. Applying the one-year statute of limitations for accounting malpractice actions and concluding that the tolling agreement established a filing deadline for the president, the trial court ruled that the plaintiffs’ claims were untimely. Upon review, we conclude that the tolling agreement paused the running of the statute of limitations on the president’s confidentiality claim. So we vacate the dismissal of the president’s confidentiality claim. We affirm the judgment of the trial court in all other respects.   

Williamson County Court of Appeals 03/21/19
Jack V. DeLany, ET AL. v. Martin R. Kriger, ET AL.
W2018-01229-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Mary L. Wagner

Owners of a cat filed a wrongful death complaint against the cat’s veterinarian and animal hospital. The defendants admitted liability for wrongly placing a feeding tube into the cat’s trachea rather than her esophagus, causing the cat to aspirate and die when she was fed through the tube. The trial court found the defendants were not liable because the cat was so ill she likely would not have survived long anyway, and it dismissed the complaint. We reverse the trial court’s judgment and remand the case for a determination of damages.

Shelby County Court of Appeals 03/20/19
Vic Davis Construction, Inc. v. Lauren Engineers & Constructors, Inc.
E2017-00844-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Douglas T. Jenkins

A subcontractor brought suit against the general contractor for breach of contract and violations of the Prompt Pay Act. The subcontractor sought both damages, including punitive damages, and reformation of the subcontract based on fraud or mutual mistake. The general contractor counterclaimed for breach of contract. Upon the parties’ agreement, the trial court reformed the subcontract based on mutual mistake. The trial court also granted the general contractor summary judgment on the subcontractor’s claims for fraud and punitive damages. Then, following a bench trial, the court awarded a judgment to the subcontractor on its breach of contract claim and dismissed the general contractor’s counterclaim. The court declined to award the subcontractor a statutory penalty or attorney’s fees under the Prompt Pay Act. We affirm the trial court.

Hawkins County Court of Appeals 03/20/19
Leah Keirsey v. K-VA-T Food Stores Inc.
E2018-01213-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Alex E. Pearson

This matter involves the grant of summary judgment to defendant, K-VA-T Food Stores Inc. (Food City), in a slip and fall case. Plaintiff, Leah Keirsey, filed an action alleging that, on a rainy day, defendant negligently maintained its premises and failed to warn her of hazardous conditions. Defendant moved for summary judgment arguing that it exercised reasonable care to prevent injury to its customers and warned them of potentially wet conditions; its motion was granted. Plaintiff appeals. We affirm.

Hamblen County Court of Appeals 03/20/19
Angela Charlene Iveson v. Jeffrey Wayne Iveson
M2018-01031-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Louis W. Oliver

This appeal concerns a post-divorce effort to modify a residential parenting schedule. Angela Charlene Iveson (“Mother”) filed a petition against ex-husband Jeffrey Wayne Iveson (“Father”) in the Chancery Court for Sumner County (“the Trial Court”) seeking to modify the permanent parenting plan applicable to their minor daughter (“the Child”). The petition proceeded to a bench trial. Afterward, the Trial Court entered an order reducing and restricting Father’s parenting time as well as increasing his child support obligation. Father appeals to this Court, arguing, among other things, that the restrictions placed upon his parenting time are unwarranted and that the Trial Court erred by using his income for the most recent one year rather than a three year average of his income for child support purposes. We find that the Trial Court’s decisions with respect to these discretionary issues have a sufficient evidentiary basis and are consistent with applicable law. Thus, the Trial Court did not abuse its discretion. We, therefore, affirm the judgment of the Trial Court.

Sumner County Court of Appeals 03/18/19
Tiffany "Whitaker" Kramer v. Phillip John Kramer
E2018-00736-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Telford E. Forgerty, Jr.

In this appeal, the wife challenges the trial court’s division of the marital assets and liabilities. We find no error and affirm the judgment of the trial court.

Blount County Court of Appeals 03/18/19
Stephen Teague Et Al. v. Shane Bruce
E2018-02104-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge John D. McAfee

This is an appeal from a final order granting the petition, filed by the appellees, Stephen Teague, M.D., Mark Rasnake, M.D., University Infectious Disease, Lori Staudenmaier, D.O., and UT Family Physicians LaFollette, which sought a permanent restraining order against the appellant, Shane Bruce. The final order denying the pro se appellant’s motion to set aside the judgment, which the Trial Court treated as a motion for new trial, was entered on January 22, 2018. The appellant did not file his Notice of Appeal until November 21, 2018, more than thirty (30) days from the date of entry of the final order. The appellees filed a motion to dismiss this appeal arguing that the Notice of Appeal was not timely filed. We conclude that the appellees’ motion is well-taken and that we have no jurisdiction to consider this appeal.

Campbell County Court of Appeals 03/18/19
Enhanceworks, Inc. v. Dropbox, Inc.
M2018-01227-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joseph p. Binkley, Jr.

This appeal involves the issue of personal jurisdiction over Appellee, a Delaware corporation with its principal place of business in San Francisco, California. The trial court, on Appellee’s Tennessee Rule of Civil Procedure 12.02(2) motion to dismiss for lack of personal jurisdiction, decided it lacked personal jurisdiction and dismissed the case. Appellant appeals. Discerning no error, we affirm and remand.

Davidson County Court of Appeals 03/14/19
Patrick Durkin v. MTown Construction, LLC
W2018-00953-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Rhynette N. Hurd

This is the second appeal from a trial court’s award in a case dealing with damage to real property. The plaintiff’s home had been damaged by a rainstorm while a construction company was in the middle of repairing the roof. The trial court entered an award in favor of the plaintiff for the reasonable costs of repair and remediation in the amount of $118,926.12 by totaling the damage estimate of the defendant’s insurance adjuster with the estimates provided by the plaintiff’s experts. While we affirm the trial court’s method of awarding damages based on the reasonable costs of repair, finding duplication in its award, we vacate the amount of the trial court’s judgment and remand the case for a new calculation of damages.

Shelby County Court of Appeals 03/13/19
Country Mile, LLC, Et Al. v. Cameron Properties
M2017-01771-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Joseph A. Woodruff

Cameron Properties, LLC (“Landlord”) appeals the judgment of the Circuit Court for Williamson County (“the Trial Court”), which, inter alia, found Landlord in breach of a lease agreement with Country Mile, LLC (“Country Mile”) and awarded a judgment against Landlord of $18,037.75. Landlord raises issues, among others, regarding standing, whether Country Mile breached the lease agreement by failing to pay rent, and whether Landlord is entitled to an award of all of its attorney’s fees. We find and hold, that Country Mile, Well North, LLC, and Dean Pennington all had standing; that the Trial Court did not err in finding the tenants in breach but that Landlord had breached the lease agreement first; that the tenants proved $18,037.75 in damages from Landlord’s breach; and that pursuant to the lease agreement Landlord is entitled to an award of reasonable attorney’s fees due to the tenant’s breach. We affirm the Trial Court’s judgment.  

Williamson County Court of Appeals 03/13/19
State of Tennessee, Ex Rel. Herbert H. Slatery, III, Et Al. v. Volkswagen Aktiengesellschaft, Et Al.
M2018-00791-COA-R9-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

At issue in this appeal is the breadth of federal preemption under Title II of the federal Clean Air Act, 42 U.S.C. §§ 7521 to 7590, for claims that pertain to: (1) the initial manufacture and installation of “defeat device” software in emissions control systems in automobiles, and (2) post-sale software updates of emissions control systems during manufacturer recalls. The State of Tennessee brought this action against several automobile manufacturers for violating state anti-tampering laws by tampering with the emissions control systems in more than 8,000 of their “clean diesel” vehicles that were registered and operated in Tennessee from 2008 to 2015. The manufacturers responded by filing Tenn. R. Civ. P. 12.02(6) motions to dismiss arguing that all of the claims were preempted by the federal Clean Air Act. The trial court dismissed the claims that pertained to the initial manufacture and installation of emissions control systems for automobiles as expressly preempted by Section 209(a) of the act; however, the court denied the manufacturers’ motions to dismiss the claims that pertained to the post-sale software updates of emissions control systems during manufacturer recalls. We have determined that all of the State’s claims are preempted by the federal Clean Air Act. Therefore, we affirm the dismissal of the claims related to the initial manufacture and installation of emissions control systems, reverse the decision to deny the Rule 12 motions to dismiss the post-sale software updates and installations, and remand with instructions to dismiss all claims.

Davidson County Court of Appeals 03/13/19
Sallie Lunn Tarver v. John Taylor Tarver, et al.
W2017-01556-COA-R3-CV
Authoring Judge: Senior Judge Robert E. Lee Davies
Trial Court Judge: Judge Robert Samual Weiss

This appeal involves a unique divorce proceeding. Throughout most of the parties’ 29-year marriage, the husband worked as vice president of his father’s railroad construction business. Numerous properties, assets, and accounts were jointly titled in the names of the husband and his father over the years. When the wife filed a complaint for divorce, she named as defendants not only the husband but also his father. Shortly thereafter, the husband’s father drastically reduced the amount of money the husband was receiving from the company. The divorce trial was conducted over the course of twelve days. The trial court classified some of the disputed assets as belonging solely to the husband’s father. It found that the husband had an ownership interest in other property and included it in the marital estate subject to equitable division. The trial court imputed income to both the husband and the wife and ordered the husband to pay alimony and child support. The parties raise various issues on appeal regarding the classification, valuation, and division of marital property, the imputation of income for purposes of alimony and child support, and the alimony award. The wife also seeks an award of attorney’s fees on appeal. For the following reasons, we affirm the trial court’s decision in all respects and deny the request for attorney’s fees on appeal.

Shelby County Court of Appeals 03/13/19
In Re: Rilyn S.
E2018-00027-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Michael S. Pemberton

A putative father challenges the trial court’s decision to terminate his parental rights on five grounds. We find that the trial court erred in terminating the putative father’s rights for failure to support. In all other respects, we affirm the decision of the trial court.

Loudon County Court of Appeals 03/12/19
State of Tennessee v. Jerome Antonio McElrath
W2015-01794-SC-R11-CD
Authoring Judge: Justice Roger A. Page and Chief Justice Jeffrey S. Bivins, joins
Trial Court Judge: Judge Jeff Parham

We granted the State’s permission to appeal in this case to determine whether to adopt, as a matter of state law, the good-faith exception to the exclusionary rule set forth by the United States Supreme Court in Herring v. United States, 555 U.S. 135 (2009), and if so, whether the Herring good-faith exception permits introduction of the evidence in this case. A Union City police officer arrested the defendant without a warrant because he was on a list of individuals who had been “barred” from housing authority property. The list in question was maintained by the Union City Police Department. Upon performing a search incident to arrest, the officer seized marijuana from the defendant. Nineteen days later, the same officer arrested the defendant on the same property based on the same list and again seized marijuana from the defendant. It was later discovered that the list was incorrect and that the defendant’s name should have been removed prior to the date of his arrests. The trial court suppressed the evidence in both cases, and the Court of Criminal Appeals affirmed. The trial court and the Court of Criminal Appeals based their decisions on Tennessee’s not having yet adopted Herring’s good-faith exception. Upon discretionary review, we adopt the good-faith exception as set forth by Herring but conclude that neither of the defendant’s arrests falls within the good-faith exception. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.  

Obion County Court of Appeals 03/12/19
Jairus Lee v. Estes Express, et al.
W2018-00642-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jerry Stokes

A plaintiff injured in a motor vehicle accident filed a civil warrant in general sessions court seeking damages for his personal injuries. The defendants claimed the action was barred by the statute of limitations and moved for judgment on the pleadings. The trial court granted the defendants’ motion because the warrant was filed but not issued before the statute of limitations period expired. We affirm the trial court’s judgment on appeal.

Shelby County Court of Appeals 03/11/19
George W. Brown, et al. v. Markesha C. Echols, et al.
W2018-01240-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Valerie L. Smith

This is a motor vehicle accident case. Following a jury trial, the Plaintiffs were awarded $250,000.00 in damages. On appeal, the Defendant challenges, among other things, the trial court’s admission of video testimony from a medical expert and the court’s decision to allow a vocational expert to testify as to loss of earning capacity damages. Because we are of the opinion that the Defendant’s evidentiary objections have merit, we vacate the jury’s verdict and the trial court’s judgment and remand for a new trial.

Shelby County Court of Appeals 03/11/19
In Re Elizabeth H.
M2018-01464-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ronald Thurman

The mother has appealed from a final judgment terminating her parental rights. Because the mother did not file her notice of appeal within thirty days after entry of the judgment as required by Tenn. R. App. P. 4(a), we dismiss the appeal.

Davidson County Court of Appeals 03/11/19
Courtney P. Brunetz v. Neil A. Brunetz
E2018-01116-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Don R. Ash, Senior Judge

This appeal concerns a post-divorce proceeding for contempt. Mother filed a petition for contempt over Father’s alleged failure to pay certain expenses. The trial court granted the Mother’s petition and found the Father in contempt and awarded Mother attorney’s fees. We reverse the trial court’s decision ordering Father to pay expenses associated with a parental evaluation ordered by the trial court. We affirm the trial court’s judgment in all other respects.

Hamilton County Court of Appeals 03/08/19
Mark Ross Et Al. v. Orion Financial Group, Inc. Et Al.
M2018-00991-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joseph Woodruff

This appeal involves the assignment of a deed of trust and subsequent foreclosure. Appellants purchased a home and later defaulted on the mortgage. Appellees foreclosed on the property, and Appellants filed suit to set aside the foreclosure. Appellees argued numerous theories, which were all dismissed by the trial court on grant of summary judgment. Appellants appeal. We affirm. 

Williamson County Court of Appeals 03/07/19
Daniel Fults v. Metlife Auto & Home Insurance Agency, Inc.
M2018-00647-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Thomas W. Graham

In this action to recover for personal injuries suffered in a hit-and-run accident, the trial court held that the suit was barred by the one year statute of limitations and dismissed it. Plaintiff appeals; we affirm the judgment of the trial court.    

Franklin County Court of Appeals 03/07/19
Kristen Paulette Stokes v. Steven Wade Stokes
M2018-00174-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Phillip R. Robinson

A mother and father each sought to be named the primary residential parent of their son, who was nine years old when the court granted the father a divorce. The trial court designated the father as the primary residential parent and granted the mother 146 days of residential parenting time with the child per year. The mother appealed, arguing that the court erred in conducting its comparative fitness analysis and in concluding that the father should be the primary residential parent. We affirm the trial court’s judgment.

Davidson County Court of Appeals 03/07/19
In Re Estate of Charles E. Caldwell
E2017-02297-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge J. Michael Sharp

This appeal involves a will contest. The decedent’s son alleges that his father “was of unsound mind, without sufficient degree of mental capacity and/or was mentally incompetent to make a valid will” and “was unduly influenced . . . in all circumstances surrounding and including the execution of the purported Last Will and Testament” by his daughter. The trial court found that the decedent had the requisite testamentary capacity to execute the November 2012 will, no confidential relationship existed between the Decedent and his daughter that triggered a presumption of undue influence, and the will was not a product of undue influence. The trial court further found that, in the alternative, the daughter rebutted any presumption of undue influence. The plaintiff appeals. We affirm.

Bradley County Court of Appeals 03/07/19
In Re Devin V. et al.
E2018-01438-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Robert D. Philyaw

J.V. (mother) and R.W. (father) have two children together, D.V. (child 1) and S.W. (child 2). In connection with a case involving the custody of the children, father attended a hearing in the trial court. He brought his children to the courthouse. While there, he was taken into custody and thereafter extradited to Michigan on outstanding warrants. Mother was not able to care for the children. As a consequence, the children remained in Hamilton County without a parent or legal guardian. The children were adjudicated dependent and neglected and placed in the custody of the Department of Children’s Services. Father was later convicted in Michigan on four counts of criminal sexual conduct in the first degree; mother was identified as the victim. Father was sentenced to serve a minimum of fifteen years in prison. In 2017, DCS filed a petition to terminate mother and father’s parental rights. Mother did not oppose the termination, but father did. The trial court found clear and convincing evidence to support DCS’s petition to terminate the parties’ parental rights. By the same quantum of proof, the court also found that termination is in the children’s best interest. Father appeals. We affirm.

Hamilton County Court of Appeals 03/06/19
Naomi Marie Jones v. Donnie Frank Jones, Jr.
M2018-01746-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Larry J. Wallace

Wife/Appellee filed a complaint for divorce while the Husband/Appellant was incarcerated. After the matter was set for final hearing, Husband filed a motion with the trial court requesting that Husband be allowed to participate in the proceeding via telecommunication. The trial court failed to rule on Husband’s motion, and proceeded to hold the hearing and grant Wife’s petition with no participation from Husband. Because we conclude that the trial court erred in proceeding with the final hearing while Husband’s motion remained pending, the judgment of the trial court is hereby vacated in its entirety and the case is remanded for a new trial. 

Dickson County Court of Appeals 03/05/19
In Re Estate of Milford Cleo Todd
W2018-01088-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Carma Dennis McGee

In this case, the decedent’s ex-wife filed a claim against his estate to collect unpaid pension benefits awarded to her in their divorce. She asserted that the decedent failed to pay her a pro rata share of his cost-of-living allowances and “supplemental” benefit. The executrix for the decedent’s estate filed an exception to the claim, asserting that the divorce decree expressly provided that the ex-wife would “have no claim against the estate of [the decedent],” and did not award cost-of-living allowances or an interest in the “supplemental” benefit. The trial court found that the divorce decree did not bar the ex-wife’s action, that the ex-wife was entitled to a share of the decedent’s cost-of-living allowances and “supplemental” benefit, and awarded prejudgment interest. We affirm the trial court’s award of damages and interest but modify the judgment to reflect that the ex-wife is entitled to postjudgment rather than prejudgment interest.

Benton County Court of Appeals 03/05/19