Court of Appeals Opinions

Format: 02/19/2019
Format: 02/19/2019
Ernest Hobbs v. Russell L. Leonard Et Al. - Concurring
M2018-00317-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Vanessa Jackson

In our resolution of this appeal, we hold that the General Release, which the parties executed when Case No. 2014-CV-170 settled, was not against public policy. I concur with that conclusion, under the facts presented.

Coffee County Court of Appeals 02/15/19
Ernest Hobbs v. Russell L. Leonard Et Al.
M2018-00317-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Vanessa Jackson

After a defendant in an earlier action settled the claims against him, the lawyer representing the plaintiffs in the earlier action notified a regulatory agency of the defendant’s alleged conduct at issue in the earlier action. The defendant/current plaintiff filed a breach of contract action against the lawyer, asserting that the lawyer breached the terms of the settlement agreement by filing a complaint against him with the regulatory agency. The lawyer defended the action by claiming that the settlement agreement violated public policy and was unenforceable. The trial court held that the settlement agreement was not contrary to public policy and entered judgment for the plaintiff. The lawyer appealed, and we affirm the trial court’s judgment.

Coffee County Court of Appeals 02/15/19
Michael Morton v. Knox County Sheriff's Department, et al.
E2017-02077-COA-R9-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kristi Davis

The plaintiff brought this action under Tennessee Code Annotated section 40-33-215 after a Knox County deputy seized a vehicle in which the plaintiff had a perfected security interest. The Tennessee Department of Safety and Homeland Security and Knox County both filed motions to dismiss the complaints against them on sovereign immunity grounds. After the motions to dismiss were denied, permission to appeal under Rule 9 was granted. In this interlocutory appeal, we have been asked to determine whether the trial court properly ruled on the sovereign immunity issue. After review, we affirm the trial court’s denials of the motions to dismiss and remand this matter to the trial court for further proceedings.

Knox County Court of Appeals 02/15/19
Unitta Sue Newman v. State of Tennessee
M2018-00948-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Robert N. Hibbett, Commissioner, TN Claims Commission

A patient in a state psychiatric facility was killed by another patient. The surviving spouse of the deceased patient brought suit against the State and was awarded damages for the wrongful death of her husband. Because the Tennessee Health Care Liability Act applies to the surviving spouse’s claim, and because she failed to comply with the Act’s requirements of pre-suit notice and good faith certification, we must reverse the decision of the Claims Commission.

Court of Appeals 02/15/19
In Re Jaxon W.
W2018-00629-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Special Judge Harold W. Horne

In this appeal of the juvenile court’s determination of a petition to establish visitation, the father appeals the setting of supervised therapeutic visitation for him. The father argues that the court disregarded evidence that was favorable to him, that the court erred in relying upon testimony of the child’s counselor, and that the court erred in awarding attorney’s fees to Mother. Upon our review, we vacate the decision setting the father’s visitation and remand the case for the court to enter a judgment that discusses the factors set forth at Tennessee Code Annotated 36-6-106(a)(1)-(15) and makes appropriate findings relative thereto; we conclude that Father has waived any issue pertaining to the testimony of the child’s counselor, as he failed to object to the testimony at trial; in all other respects, we affirm the judgment of the trial court.

Shelby County Court of Appeals 02/15/19
Travis Hewitt Et Al. v. Karin McClain
E2018-02170-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

The pro se appellants, Travis Hewitt and Dustin Hewitt, seek to appeal from a final order entered on October 17, 2018. The Notice of Appeal was not filed until December 3, 2018, more than thirty (30) days from the date of entry of the final order. The appellants accompanied their Notice of Appeal with a motion asking this Court to accept the latefiled notice as having been timely filed. The appellee, Karin McClain, filed a motion to dismiss this appeal arguing, in part, that the Notice of Appeal was not timely filed. Because it appears from all the pleadings filed in this case that the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal and no discretion to waive the filing of a timely Notice of Appeal pursuant to Rule 4(a) of the Tennessee Rules of Appellate Procedure.

Knox County Court of Appeals 02/14/19
In Re Paetyn M., et al.
W2017-02444-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Van McMahan

Father petitioned to terminate the parental rights of the mother of his child. Father later married and, along with his spouse, joined in an amended petition for termination of parental rights and for adoption. The amended petition alleged mother abandoned the child by failure to visit and failure to support. On the date scheduled for trial, Mother failed to appear, and her attorney was denied a continuance. Following the trial, the juvenile court found by clear and convincing evidence that mother had abandoned her child by willful failure to visit and willful failure to support and a third statutory ground not asserted in the amended petition. The court also found by clear and convincing evidence that termination of mother’s parental rights was in the child’s best interest. On appeal, mother challenges the court’s subject matter jurisdiction. Mother also asserts that the court erred in denying her request for a continuance and that the proof was less than clear and convincing as to the grounds for termination and the child’s best interest. We conclude that the record only supports one statutory ground for termination of parental rights, abandonment by willful failure to visit. Otherwise, we affirm the judgment.

McNairy County Court of Appeals 02/14/19
Belinda Puller Ex Rel. Darel Puller v. Judith Roney
M2018-01234-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Larry B. Stanley, Jr.

Defendant Judith Roney hired Darel Puller as a handyman to do periodic odd jobs in maintaining her house. Mr. Puller died in an accident when he fell from defendant’s roof while clearing it of debris. No one witnessed the accident. A housekeeper found him unconscious on a patio, with an extension ladder lying on the ground next to him. Defendant testified that she had not spoken to Mr. Puller the day of the accident, and that she did not know he was going to get her ladder from a back garage and use it to get on the roof. She also said that the ladder was probably at least forty years old and that it was missing one of the extension latching hooks. Mr. Puller’s widow, Belinda Puller, brought this action alleging defendant was negligent in failing to warn him of the defective condition of the ladder. Defendant moved for summary judgment, which was granted by the trial court on the ground that “the Plaintiff is unable to establish in any way, the cause of the injury to the Plaintiff or the relation of the Defendant to the Plaintiff’s injury.” We affirm.

Warren County Court of Appeals 02/13/19
Memphis Light Gas & Water Division v. Tykena Watson, et al.
W2018-00218-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert Samual Weiss

At issue in this appeal is whether nurse case management fees are recoverable as part of an employer’s workers’ compensation subrogation lien under Tennessee Code Annotated section 50-6-112. The trial court answered this question in the negative and also determined that the employer’s subrogation lien should be reduced by attorney’s fees awarded to the employee’s attorney. For the reasons stated herein, we affirm the judgment of the trial court.

Shelby County Court of Appeals 02/13/19
In Re: H. A., Et Al.
E2018-01914-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Brad Lewis Davidson

Mother appeals the termination of her parental rights, arguing that termination was not in the children’s best interest. We conclude that clear and convincing evidence supports both the grounds for termination found by the trial court and the trial court’s best interest determination.

Cocke County Court of Appeals 02/12/19
Gloria Andrews, Et Al. v. Norfolk Southern Railway Company
E2018-00508-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge William T. Ailor

This appeal arises from a widow’s suit over her husband’s alleged exposure to asbestos. Raymond Andrews (“Decedent”) worked for Norfolk Southern Railway Company (“Norfolk Southern”) for 24 years before retiring. He later died of lung cancer. Decedent’s wife, Gloria Andrews (“Plaintiff”), sued Norfolk Southern in the Circuit Court for Knox County (“the Trial Court”) under the Federal Employers’ Liability Act (“FELA”) alleging that her late husband had been exposed to asbestos while working for Norfolk Southern. Norfolk Southern filed several evidentiary motions which the Trial Court granted. Norfolk Southern subsequently filed a motion for summary judgment, which also was granted. Plaintiff appeals to this Court raising several evidentiary issues. We hold that the Trial Court did not err in excluding lay testimony regarding the presence of asbestos in areas where Decedent worked because these witnesses lacked personal knowledge about the alleged asbestos. Plaintiff was unable to produce any admissible evidence at the summary judgment stage to support her claim that Norfolk Southern failed to maintain a safe working environment. We affirm the judgment of the Trial Court.

Knox County Court of Appeals 02/12/19
Deja Vu of Nashville, Inc. v. Brasfield & Gorrie, LLC et al.
M2018-00610-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kelvin D. Jones

After street closures allegedly affected its business, Appellant filed suit against the construction company. The company answered the complaint denying that any street closures occurred without the permission of Appellee Metropolitan Government of Nashville. More than a year after the construct company filed its answer, Appellant filed an amended complaint against Appellee, averring nuisance, inverse condemnation, and federal taking. Appellee moved for dismissal under Tennessee Rule of Civil Procedure 12.02(6) motion, arguing that the one-year statute of limitations barred Appellant’s claims. The trial court found that Appellant was on notice of Appellant’s involvement in the road closures based on the construction company’s answer and granted the motion to dismiss. We affirm.

Davidson County Court of Appeals 02/08/19
In Re Serenity W. - concurring in part and dissenting in part
E2018-00460-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Steven Lane Wolfenbarger

The majority holds, in its own words, that the evidence was less than clear and convincing as to two of the statutory grounds but the record contains clear and convincing evidence to support one ground for termination. But because we also conclude that the evidence was less than clear and convincing that termination was in the child’s best interest, we reverse the termination of the mother’s parental rights.

Cocke County Court of Appeals 02/08/19
In Re Serenity W.
E2018-00460-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Steven Lane Wolfenbarger

A mother appeals the termination of her parental rights to her child. After the mother tested positive for drugs at a court hearing, the trial court awarded temporary legal and physical custody of the child to the Tennessee Department of Children’s Services. Over two years later, the juvenile court found by clear and convincing evidence three statutory grounds for termination: abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plans, and failure to manifest an ability and willingness to assume custody or financial responsibility for the child. The court also found by clear and convincing evidence that termination of the mother’s parental rights was in the child’s best interest. We conclude that the evidence was less than clear and convincing as to two of the statutory grounds but the record contains clear and convincing evidence to support one ground for termination. But because we also conclude that the evidence was less than clear and convincing that termination was in the child’s best interest, we reverse the termination of the mother’s parental rights.

Cocke County Court of Appeals 02/08/19
IN RE AUTUMN L. ET AL.
M2018-01184-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Michael Binkley

This is a termination of parental rights case involving two minor children. Appellants, who have custody of the children, appeal the trial court’s denial of their petition to terminate Mother/Appellee’s parental rights. The trial court found that Appellants met their burden to show the grounds of persistence of the conditions that led to the children’s removal from Appellee’s custody and abandonment by wanton disregard by an incarcerated parent. However, the trial court found that termination of Appellee’s parental rights was not in the children’s best interests. We affirm the trial court’s findings as to the grounds for termination but reverse its finding as to best interests. We remand the case for entry of an order terminating Appellee’s parental rights to the children.

Lewis County Court of Appeals 02/08/19
Jackson Miller v. Phyllis Frevik
M2018-01077-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael W. Binkley

This case originated when the plaintiff filed an action against the defendant, alleging that the plaintiff was entitled to the proceeds from a life insurance policy. The trial court found in favor of the plaintiff. The defendant did not appeal that order but subsequently filed a motion for relief from the judgment pursuant to Tennessee Rule of Civil Procedure 60. The trial court denied the defendant’s motion, and the defendant appealed. Having determined that the defendant has failed to comply with Tennessee Rule of Appellate Procedure 27 and Tennessee Court of Appeals Rule 6, we dismiss this appeal.

Williamson County Court of Appeals 02/06/19
Rafia N. Khan, Individually, And In Her Capacity As Trustee Of The Rafia N. Khan Irrevocable Trust v. Regions Bank
E2018-01173-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This is the fourth appeal arising from a disputed arbitration award in favor of Regions Bank (the Bank) “against Rafia N. Khan, individually, and as trustee” of the Rafia N. Khan Irrevocable Trust (the Trust). Pursuant to this Court’s mandate in the first appeal, the trial court entered an order confirming the arbitration award “as to the Rafia N. Khan Irrevocable Trust and to Rafia N. Khan as Trustee of the Rafia N. Khan Irrevocable Trust.” Later, the trial court entered an order granting the Bank $72,156 in attorney’s fees and $2,094.05 in costs. Of that amount, the court assessed $45,928.92 against the Trust and assessed $28,321.13 against Ms. Khan individually. Ms. Khan’s notice of appeal states that she is appealing (1) the trial court’s order confirming the arbitration award; (2) the court’s order granting the Bank attorney’s fees and costs; and (3) the court’s order denying Ms. Khan’s motion to alter or amend. We affirm the trial court’s order confirming the arbitration award pursuant to the law of the case doctrine. We modify the court’s order awarding attorney’s fees. The award shall include attorney’s fees incurred by the Bank in the trial court and on direct appeal but not attorney’s fees incurred by the Bank in federal bankruptcy court proceedings.

Knox County Court of Appeals 02/06/19
Katherine Mae Pruitt v. Travis Pruitt
W2018-00453-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Carma Dennis McGee

Appellant appeals the trial court’s denial of his motion to set aside a final judgment obligating him to pay child support. The record shows that Appellant voluntarily executed a document placing his name on the child’s birth certificate and thereafter entered into a marital dissolution agreement and parenting plan obligating him to pay child support with full knowledge that he was not the biological parent of the child. Because Appellant has failed to present sufficient evidence of a ground for relief under Rule 60.02 of the Tennessee Rules of Civil Procedure, we affirm the decision of the trial court to deny Appellant’s request to set aside the judgment. We reverse, however, the trial court’s award of attorney’s fees based on the parties’ marital dissolution agreement.

Henry County Court of Appeals 02/05/19
State Ex Rel. Candice McQueen v. Metropolitan Nashville Board of Public Education Et Al.
M2018-00506-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor William E. Young

A metropolitan board of education adopted a policy preventing the provision of student information to the State of Tennessee in its role as the administrator of an achievement school district pursuant to Tenn. Code Ann. § 49-13-132. The State filed a petition for writ of mandamus and declaratory judgment, and the chancery court granted the writ of mandamus. The board of education appeals. We affirm the decision of the chancery court.

Davidson County Court of Appeals 02/05/19
Jonathan George Carter v. Elizabeth Jo Browne
W2018-00429-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Valerie L. Smith

Following a bench trial, the trial court entered a final decree of divorce in which it determined that Appellant/Wife was not entitled to an award of alimony in futuro, but awarded Wife alimony in solido and transitional alimony. The trial court further determined that the parties’ marital residence was Wife’s separate property. On appeal, Wife argues that the trial court erred in denying her alimony in futuro, while Appellee/Husband appeals the classification of the parties’ home as Wife’s separate property. With respect to the trial court’s decision that alimony in futuro is inappropriate in this case, we affirm. However, because we conclude that the trial court erred in classifying the parties’ home as Wife’s separate property, we reverse in part and remand for further proceedings

Shelby County Court of Appeals 02/04/19
In Re: Estate Of Mary Ruth Davis Hudson
E2018-00583-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

In this estate proceeding, the appellants, three of the five adult children of the decedent, appeal the probate court’s interpretation of the decedent’s last will and testament as demonstrating the decedent’s intent to have her real property administered as part of her estate by her personal representative. Having determined that the probate court’s order was premature due to ongoing proceedings in the decedent’s conservatorship case, we vacate the probate court’s order interpreting the last will and testament. We remand for further proceedings consistent with this opinion.

Knox County Court of Appeals 02/04/19
Wells Fargo Bank, N.A. v. William S. Lockett, Jr., ET Al.
E2018-00129-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: E2018-00129-COA-R3-CV

The mortgagors sought to rescind the foreclosure sale of their property, claiming that the sale was invalid because it had been conducted improperly. A jury found the sale process was properly followed and the verdict was approved by the trial court. The mortgagors appeal. We affirm

Knox County Court of Appeals 02/04/19
Richard Alan Ellis v. Donica Ann Woods Ellis
W2017-02287-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge James F. Russell

This is an appeal from a final decree of divorce. The trial court ordered Husband to pay Wife alimony in futuro in the amount of $9,000 per month. In addition, the trial court awarded Wife her attorney’s fees as alimony in solido in the amount of $121,873.81. We vacate the trial court’s award of alimony in futuro and, for the reasons stated herein, remand the issue of Wife’s alimony for reconsideration. Additionally, we vacate the trial court’s award of Wife’s attorney’s fees and remand for the trial court to reconsider whether or not to award Wife her attorney’s fees and, if so, to award a reasonable attorney’s fee and state the basis for its decision. We also vacate the trial court’s order denying Wife’s motion for discretionary costs, and remand the issue to the trial court for a reconsideration of Wife’s motion on its merits.

Shelby County Court of Appeals 01/31/19
In Re J'Khari F.
M2018-00708-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge William M. Locke

This is a termination of parental rights case involving the parental rights of the mother, Alexis F. (“Mother”), to her minor child, J’Khari F. (“the Child”), who was five years old at the time of trial. On April 10, 2015, the Warren County Juvenile Court (“trial court”) entered an order removing the Child from Mother’s custody and placing the Child into the temporary legal custody of the Tennessee Department of Children’s Services (“DCS”), effective April 9, 2015. The Child was immediately placed in foster care, where he remained at the time of trial. The trial court subsequently entered an order on September 24, 2015, finding that the Child was dependent and neglected due to Mother’s insufficient housing, Mother’s insufficient means to support the Child, and the Child’s positive drug test result for methamphetamine. On April 18, 2017, DCS filed a petition to terminate the parental rights of Mother. Following a bench trial, the trial court terminated Mother’s parental rights to the Child upon determining by clear and convincing evidence that (1) Mother had abandoned the Child by willfully failing to support him, (2) Mother had abandoned the Child by willfully failing to visit him, (3) Mother had abandoned the Child by engaging in conduct prior to her incarceration that exhibited wanton disregard for the Child’s welfare, (4) Mother had not substantially complied with the reasonable requirements of the permanency plans, (5) the conditions leading to the Child’s removal from Mother’s custody persisted, and (6) Mother had failed to manifest an ability and willingness to personally assume custody of or financial responsibility for the Child. The trial court further found by clear and convincing evidence that termination of Mother’s parental rights was in the best interest of the Child. Mother has appealed. Upon a determination that the evidence presented at trial did not support a finding by clear and convincing evidence that Mother had abandoned the Child by willfully failing to support him during the four months prior to her incarceration, we reverse as to that statutory ground. We affirm the trial court’s judgment in all other respects.

Warren County Court of Appeals 01/31/19
Ronna Lyn Ueber v. Anthony James Ueber
M2018-02053-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joseph Woodruff

This is an accelerated interlocutory appeal from the trial court’s denial of Appellant’s motion for recusal. Because the record contains insufficient evidence of bias requiring recusal under Tennessee Supreme Court Rule 10B, we affirm.

Williamson County Court of Appeals 01/31/19