Court of Appeals Opinions

Format: 08/29/2014
Format: 08/29/2014
Everette Ivey v. CRS Exteriors
E2014-01518-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Deborah C. Stevens

The appellant, Everette Ivey (“Plaintiff”), appeals from an order of the trial court which granted the motion for summary judgment filed by the appellee, CRS Exteriors (“Defendant”), entered judgment in favor of Defendant on its counterclaim and dismissed Plaintiff’s claim for relief in the original complaint. The order held in abeyance “[t]he remaining issues with regard to the damages due [Defendant], along with the issue of attorneys’ fees recoverable by [Defendant] under the terms of the contract” at issue in the proceedings below. Because it is clear that the order appealed from does not resolve all issues raised in the proceedings below, this appeal is dismissed for lack of jurisdiction.

Knox County Court of Appeals 08/29/14
In Re Asher S.C.
E2013-01830-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Rex Henry Ogle

This is a termination of parental rights case concerning A.S.C. (“the Child”), the son of A.G.S. (“Mother”) and C.D.T. (“Father”). Mother and Father were never married. Two years after the Child was born, Mother, as the sole plaintiff, filed a petition to terminate Father’s parental rights based on his alleged abandonment of the Child. After Mother and C.R.S. (“Stepfather”) were subsequently married, Mother filed a motion to join Stepfather and an amended petition to terminate Father’s rights and allow Stepfather to adopt the Child. Father objected and filed a counterclaim in which he requested that he be designated as the alternate residential parent and granted traditional visitation rights. After a bench trial, the court terminated Father’s rights based on its finding, said to be made by clear and convincing evidence, that multiple forms of abandonment exist. The court further found, also by clear and convincing evidence, that termination was in the best interest of the Child. Father appeals. He challenges the four-month period of time used to establish abandonment by failure to visit or support the Child; the sufficiency of the evidence of grounds for termination; and the trial court’s best-interest determination. We conclude that the trial court erred in its calculation of the four-month period for consideration of abandonment pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i)(2010). As a result, we vacate the trial court’s finding of abandonment by failure to provide child support as a ground for termination. In all other respects, the judgment is affirmed.

Sevier County Court of Appeals 08/29/14
Carolyn M. Heaton v. Jason Barrett Heaton - Dissent
E2013-01985-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jeffrey M. Atherton

I cannot concur in the majority’s treatment of the marital residential property as joint property. The majority concludes that it was, in the language of the parties’ prenuptial agreement, “Co-Owned Property.” The trial court held that a finding of “Co-Owned Property” would be “inconsistent with the intent and conduct of the parties, not compelled by the pre-marital agreement.” The court went on to say that such a finding “would result in an unequivocally inequitable windfall.” Hence, in my judgment, the issue for us is whether the evidence preponderates against the trial court’s findings on this subject.

Hamilton County Court of Appeals 08/29/14
Carolyn M. Heaton v. Jason Barrett Heaton
E2013-01985-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jeffrey M. Atherton

This case focuses on whether the trial court properly enforced and interpreted the parties’ prenuptial agreement when equitably dividing their assets incident to a divorce and whether the trial court properly set child support pursuant to the Child Support Guidelines. The plaintiff filed a complaint for divorce on May 30, 2012. The parties proceeded to trial in May 2013 on the issues of property division, child support, and attorney’s fees. An agreement was reached concerning a co-parenting schedule for their daughter. The court found that the parties’ prenuptial agreement was enforceable but that it did not require that the parties’ jointly owned marital residence be divided equally. The trial court did, however, divide the parties’ jointly owned personalty equally. In making findings with regard to the parties’ respective annual income amounts, the court set child support accordingly. The trial court also declined to award attorney’s fees to either party. Husband timely appealed. We vacate the trial court’s rulings regarding division of the real property, the award of child support, and attorney’s fees, and we remand this case to the trial court for further proceedings consistent with this opinion. We affirm the trial court’s judgment in all other respects.

Hamilton County Court of Appeals 08/29/14
In Re Hayden L.E.B.
E2013-01880-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Tim Irwin

Rebecca H. and Christopher H. (“Petitioners”) filed a petition seeking to terminate the parental rights of Kayla H. (“Mother”) and Aaron B. (“Father”) to the minor child Hayden L.E.B. (“the Child”). After a trial the Juvenile Court for Knox County 1 (“the Juvenile Court”) terminated Father’s parental rights to the Child after finding clear and convincing evidence of grounds for termination pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(iv) for abandonment by willful failure to pay support and abandonment by wanton disregard and clear and convincing evidence that it was in the Child’s best interest for Father’s parental rights to be terminated. Father appeals the termination of his parental rights to this Court. We find and hold that the evidence does not preponderate against the Trial Court’s findings made by clear and convincing evidence, and we affirm.

Knox County Court of Appeals 08/29/14
In Re J.F., Et Al.
E2013-01712-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge O. Duane Slone

C.R.H. (“Mother”) appeals the trial court’s order terminating her rights to two minor children. The Department of Children’s Services (“DCS”) removed the children from Mother’s care following allegations that she locked one child in a bedroom for three days without access to water, food, or a bathroom. The children entered protective custody and were adjudicated dependent and neglected. DCS filed a petition to terminate Mother’s parental rights. After a bench trial, the court found (1) that multiple 1 grounds exist to terminate Mother’s rights and (2) that termination is in the children’s best interest, both findings said by the trial court to be made by clear and convincing evidence. Mother appeals. She challenges the trial court’s findings with respect to grounds, but does not contest the best-interest determination. We affirm.

Jefferson County Court of Appeals 08/28/14
State of Tennessee Ex Rel. Mark B. Garrett v. City of Norris, Tennessee
E2013-02355-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor William Lantrip

This appeal arises from a challenge to an annexation ordinance. The City of Norris, Tennessee (“Norris”) passed two annexation ordinances on the same day. The second territory to be annexed was contiguous to the city only through bordering the territory annexed earlier that same day. Mark B. Garrett (“Garrett”), a property owner in the second annexed territory, sued Norris in the Chancery Court for Anderson County (“the Trial Court”) in a bid to stop the annexation of this second territory (“the Territory”). The Trial Court eventually voided the annexation of the Territory on the basis that the Territory was not contiguous to the city. Norris appeals. We hold, inter alia, that the annexation ordinance purporting to annex the Territory is void because at the time of the passage of the annexation ordinance, the first annexation was not yet operative and the Territory, therefore, was not contiguous to the city as required by law. We affirm the Trial Court.

Anderson County Court of Appeals 08/28/14
Union County Education Association v. Union County Board of Education
E2013-02686-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Andrew R. Tillman

A Union County schoolteacher was twice interviewed by school administrators in an investigation of charges regarding the teacher’s alleged improper conduct. Both times, the teacher’s request to have a representative from the Union County Education Association (“the Association”) present with him for the investigatory interview was denied. After the investigation was complete, the teacher was not disciplined and no adverse action was taken against him. The Association brought this action alleging that the Union County Board of Education (“the Board”), acting through its agents, violated the Professional Educators Collaborative Conferencing Act of 2011 (“the Collaborative Conferencing Act”), Tenn. Code Ann. § 49-5-603 (2013), which provides that “[p]rofessional employees have the right to selforganization, to form, join or be assisted by organizations, to participate in collaborative conferencing . . . and to engage in other concerted activities for the purpose of other mutual aid and benefit. . . .” The Association sought a declaratory judgment that the Board’s refusal to allow the teacher to have a representative present was an unlawful act under Tenn. Code Ann. § 49-5-606. The trial court granted the Board summary judgment on the ground that the Association “had no injury in fact and therefore lacked standing to proceed with this action.” We hold that the rights provided to professional employees under section 603 of the Collaborative Conferencing Act include the right to have a representative of his/her organization present, upon the employee’s request, at an investigative interview where the employee reasonably believes the investigation may result in disciplinary action against him or her. We further hold that the Association has standing to pursue this action. Consequently, we vacate the trial court’s judgment.

Union County Court of Appeals 08/28/14
In Re Shainna S.C., Et Al.
E2014-00407-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Daniel Ray Swafford

This is an appeal by Joseph C. from an order terminating his parental rights to his two minor children, Shainna S. C. and Jason L. C. Because the record does not support the trial court’s finding that the Department of Children’s Services (DCS) proved by clear and convincing evidence the only ground relied upon in support of the termination of the appellant’s parental rights to his children, we vacate the order and remand for further proceedings.

Bradley County Court of Appeals 08/28/14
Malinda Annette Stills v. Chadburn Ober Harmon
E2014-01180-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson
Trial Court Judge: Judge Douglas T. Jenkins

This is an appeal from a Restraining Order entered on May 20, 2014. The Notice of Appeal was not filed until June 20, 2014, thirty-one (31) days after the date of entry of the Restraining Order. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

Greene County Court of Appeals 08/27/14
Reelfoot Utility District of Lake County, Tennessee v. Samburg Utility District of Obion County, Tennessee, et al.
W2013-01952-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge W. Michael Maloan

This appeal involves water service by one utility district to a neighboring utility district. The plaintiff utility district provided water service to the defendant neighboring utility district for many years pursuant to a series of contracts. The last contract included a date certain on which the contract expired. Before the expiration date, the defendant neighboring utility district agreed to begin purchasing its water from a different provider upon expiration of the water service contract with the plaintiff. The plaintiff filed this lawsuit seeking, inter alia, to enjoin the defendant provider and the neighboring utility district from entering into a contract for water services. The trial court granted summary judgment in favor of the defendant neighboring utility district and denied the plaintiff’s motion for summary judgment, holding that the defendants were permitted to contract for water services. It then dismissed all remaining claims against the defendants. The plaintiff now appeals. We affirm the decision of the trial court in all respects.

Obion County Court of Appeals 08/27/14
In Re Anya G.
E2013-02595-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert D. Philyaw

This is a termination of parental rights case, focusing on Anya G. (“the Child”), the minor child of Melisa G. (“Mother”). In October 2011, temporary custody of the Child was granted to the Tennessee Department of Children’s Services (“DCS”), and the Child was placed in foster care. DCS subsequently filed a petition to terminate the parental rights of Mother and the Child’s father, Michael G., on December 27, 2012. The petition alleged 1 as statutory grounds for termination abandonment by failure to visit, abandonment by an incarcerated parent who exhibited wanton disregard for the welfare of the child prior to incarceration, and substantial noncompliance with the permanency plans. Following a bench trial, the trial court granted the petition as to Mother upon finding that DCS had proven by clear and convincing evidence the grounds of (1) abandonment by engaging in conduct prior to her incarceration that exhibited a wanton disregard for the welfare of the child and (2) substantial noncompliance with the permanency plans. The court also found clear and convincing evidence that termination of Mother’s parental rights was in the Child’s best interest. Mother has appealed. Discerning no error, we affirm.

Hamilton County Court of Appeals 08/27/14
Candace D. Watson v. The City of Jackson
W2013-01364-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Roy B. Morgan, Jr.

Plaintiff in a premises liability action appeals from the trial court’s finding that she was more than fifty percent at fault for her injury. Discerning no error, we affirm.

Madison County Court of Appeals 08/26/14
Jeremiah David Hawk v. Erika Leigh Hawk (Ricker)
E2013-02458-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jon Kerry Blackwood

This post-divorce appeal concerns a parenting plan that provided for equal time between the Parents, who subsequently filed competing petitions to modify, claiming that a material change in circumstances necessitated a change in the parenting plan. The trial court found that a change in circumstances had not yet occurred but awarded Mother approximately 12.5 days of additional parenting time after deciding that the Child should attend school in Mother’s county. Father appeals. We affirm the trial court’s decision.

Greene County Court of Appeals 08/26/14
Barry Wood v. Decatur County Tennessee
W2013-02470-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Charles C. McGinley

Applicant filed a petition for writ of certiorari against Decatur County challenging the denial of his beer permit application. The trial court reversed the decision of the local beer board on the basis that the sale of beer was allowed due to Decatur County’s status as a Tennessee River resort district. Because we conclude that Decatur County’s ordinance restricting the sale of beer within two thousand feet of a church remains in effect despite Decatur County’s status as a Tennessee River resort district, we reverse the decision of the trial court. Reversed and remanded.

Decatur County Court of Appeals 08/25/14
Edwin Dennison, et al. v. Glenna Overton
E2013-02290-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge David R. Duggan

Edwin Dennison, Kaye Dennison, Joel Campbell, and Christine Campbell (“Plaintiffs”) sued attorney Glenna Overton (“Defendant”) for legal malpractice. Defendant filed a motion for summary judgment alleging that Plaintiffs’ claim was barred by the statute of limitations and that Defendant’s actions were not the proximate cause of any loss to Plaintiffs. After a hearing, the Circuit Court for Blount County (“the Trial Court”) granted Defendant summary judgment after finding and holding, inter alia, that Plaintiffs had notice of the alleged negligence and the fact that Plaintiffs had suffered an injury by August of 2009 and, therefore, the suit filed on September 21, 2010 was barred by the applicable one year statute of limitations. Plaintiffs appeal to this Court raising issues regarding whether the Trial Court erred in finding their suit barred by the statute of limitations and whether the Trial Court erred in finding that Plaintiffs could not prove that Defendant’s actions were the proximate cause of any loss to Plaintiffs. We find and hold, as did the Trial Court, that Plaintiffs were on notice of the alleged negligence and loss in August of 2009 and that their suit, therefore, was barred by the statute of limitations. We affirm the Trial Court’s judgment.

Blount County Court of Appeals 08/25/14
Kenneth D. Hardy v. Tennessee State of Tennessee
M2013-02103-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Carol Soloman

Former police officer at Tennessee State University filed suit against the university, the Tennessee Board of Regents, and the chief of the university police department under the Tennessee Human Rights Act,the Tennessee Public Protection Act,and Title VIIof the Civil Rights Act of 1964. The trial court granted the defendants’ motion for summary judgment and former officer appeals. We vacate the order granting summaryjudgment and remand the case for further proceedings.

Davidson County Court of Appeals 08/22/14
Middle TN Rehabilitation Hospital, LLC. v. Health Services & Development Agency, et al.
M2013-02180-COA-R3-CV
Authoring Judge: Special Judge Amy V. Hollars
Trial Court Judge: Judge Russell T. Perkins

This appeal arises from a petition for judicial review of the Tennessee Health Services and Development Agency’s decision to deny one and grant the other of two competing applications for a certificate of need to establish a rehabilitation hospital. Discerning no error, we affirm the chancery court’s order upholding the agency’s decision.

Davidson County Court of Appeals 08/22/14
Theresa R. Francis v. Robert A. Francis, Jr.
M2013-01957-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Michael R. Jones

Wife appeals the trial court’s division of property and denial of an award of alimony in this divorce action. We affirm.

Montgomery County Court of Appeals 08/22/14
William D. Stalker, et al. v. David R. Nutter, et al.
M2013-02463-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Tom E. Gray

In this non-jury case, builders of a home appeal the dismissal of their breach of contract claim against the prospective buyers, the court’s determination that the builders breached the construction and sale agreement, and the order awarding the earnest money deposit to the buyers. Finding no error, we affirm the trial court’s judgment.

Sumner County Court of Appeals 08/21/14
Shirley M. Cartwright v. Tennessee Farmers Mutual Insurance Company
M2013-02019-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Stella L. Hargrove

Shirley M. Cartwright (“Plaintiff”) sued Tennessee Farmers Mutual Insurance Company (“Defendant”) alleging breach of a contract of insurance. Defendant filed a motion for summary judgment. After a hearing, the Circuit Court for Maury County (“the Trial Court”) entered an order finding and holding, inter alia, that Plaintiff’s response to Defendant’s motion was untimely and would not be considered and that Defendant was entitled to summary judgment. Plaintiff appeals raising issues regarding whether the Trial Court erred in finding her response untimely, whether the Trial Court erred in granting Defendant summary judgment, and whether the Trial Court erred in denying two other motions filed by Plaintiff. We find and hold that Plaintiff’s response to Defendant’s motion for summary judgment was filed timely. We, therefore, reverse the Trial Court’s decision finding Plaintiff’s response untimely and refusing to consider it. As it was error to refuse to consider Plaintiff’s response to Defendant’s motion for summary judgment, we vacate the grant of summary judgment to Defendant and the Trial Court’s denial of Plaintiff’s motions and remand this case to the Trial Court for further proceedings consistent with this Opinion.

Maury County Court of Appeals 08/21/14
Dorah Elizabeth Johnson v. Jeffrey Walter Johnson
W2013-02248-COA-R3-CV
Authoring Judge: Judge Paul G. Summers
Trial Court Judge: Judge George R. Ellis

This appeal stems from a divorce proceeding and child support modification. On appeal, the appellant husband challenges several decisions made by the trial court after it had entered an order purporting to be the final decree of divorce. Because prior orders reserved issues not addressed in this divorce decree, we find this divorce decree was not a final order, and thus, subject to revision by later orders. Consequently, we find the trial court had jurisdiction and did not abuse its discretion in later revising awards contained in the non-final divorce decree and affirm the later changes in part. Additionally, in a later order purporting to modify the child support award, we find the trial court failed to properly make findings of facts and conclusions of law in compliance with Rule 52.01 of the Tennessee Rules of Civil Procedure and remand in part on this issue.

Crockett County Court of Appeals 08/21/14
First Community Bank, N.A. v. First Tennessee Bank, N.A., et al.
E2012-01422-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Wheeler A. Rosenbalm

Plaintiff brought this action against Defendants for fraud, constructive fraud, negligent misrepresentation, civil conspiracy, unjust enrichment, and violation of the Tennessee Securities Act, codified at Tennessee Code Annotated section 48-1-101, et seq. The claims arose out of the purchase of asset-backed securities that were later deemed unmarketable, causing a significant financial loss to Plaintiff. Defendants filed motions to dismiss pursuant to Rule 12.02(6), arguing that the claims were untimely, that Plaintiff failed to plead its claims with particularity, and that the losses were caused by general market conditions. Nonresident Defendants also objected to the court’s personal jurisdiction. The trial court dismissed the complaint. Plaintiff appealed the dismissal to this court, and we affirmed the
dismissal against Nonresident Defendants for lack of personal jurisdiction but reversed the dismissal for failure to state a claim as to the remaining defendants. In so holding, this court found that consideration of matters outside the pleadings pertaining to the running of the statute of limitations converted the motions to dismiss into one for summary judgment, thereby requiring remand of the entire case for further discovery. The remaining defendants filed an application for permission to appeal. The Tennessee Supreme Court granted the application and remanded the case for “consideration of the trial court’s alternative basis of dismissal of [the] complaint, i.e., the failure to state a cause of action or state a claim for which relief can be granted (other than on the basis of the running of the applicable statutes
of limitations or repose).” Upon remand, we reverse the decision of the trial court.

Knox County Court of Appeals 08/20/14
In Re Aireona H.W.
E2014-00241-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert D. Philyaw

This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate Mother’s parental rights to the Child. The trial court found that clear and convincing evidence existed to support the termination of Mother’s parental rights on several statutory grounds and that termination of her rights was in the Child’s best interest. Mother appeals. We affirm the decision of the trial court.

Hamilton County Court of Appeals 08/20/14
Ram Tool & Supply Co., Inc. Et Al. v. HD Supply Construction Supply, LTD. d/b/a Whit Cap Construction Supply, Robert Maples and Tim Pruitt
M2016-02264-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Joseph Binkley, Jr.

The parties in this case are competitors. The defendant company opened a branch in Nashville and began competing with the plaintiff; the defendant company hired employees away from the plaintiff and it allegedly worked with a now-former employee of the plaintiff to obtain plaintiff’s confidential information.  The plaintiff filed suit alleging, among other things, breach of the fiduciary duty of loyalty by unlawfully recruiting, aiding and abetting such breach,and conspiracyto unlawfully recruit. The trial court granted summary judgment in favor of the defendants,finding the plaintiff’s claims preempted by the Tennessee Uniform Trade Secrets Act (“TUTSA”). We affirm in part and reverse in part and we remand for further proceedings. Specifically, we find preempted by TUTSA, Ram Tool’s common law breach of fiduciary duty/loyalty claim–and its derivative claims–insofar as they are based upon the misappropriation of trade secrets. However, we find Ram Tool’s common law breach of fiduciary duty/loyalty claim–and its derivative claims–insofar as they are not grounded in the misappropriation of trade secrets, are not preempted by TUTSA; summary judgment was improperly granted as to these claims.

Davidson County Court of Appeals 08/19/14