Court of Appeals Opinions

Format: 09/27/2016
Format: 09/27/2016
Penny Arvidson Richards v. Neil Kingsland Richards
E2015-00758-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge R. Jerry Beck

In this divorce action, Penny Arvidson Richards (Wife) argues that the trial court’s judgment granting her a divorce and incorporating the parties’ marital dissolution agreement (MDA) should be set aside. Among other things, Wife alleges that she signed the MDA under duress and/or while she lacked the requisite mental capacity to do so. The trial court ruled that Wife failed to prove her defenses to the enforcement of the MDA. Wife appeals. We affirm.

Sullivan County Court of Appeals 09/26/16
Kimberly E. Lapinsky v. Janice E. Cook et al.
E2015-00735-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

Kimberly E. Lapinsky (“Plaintiff”) appeals the order of the Chancery Court for Sevier County (“the Trial Court”) granting summary judgment to Janice E. Cook, Kevin D. Cook (“the Cooks”) and Brenda Brewster (“Brewster”) in this lawsuit that arose from the sale of a house by the Cooks to Plaintiff. Plaintiff raises issues on appeal with regard to whether the Trial Court erred in granting summary judgment and whether the Trial Court erred in failing to allow Plaintiff to conduct additional discovery prior to ruling on the motions for summary judgment. The Cooks raise an issue regarding whether the Trial Court erred in denying their motion for attorney’s fees pursuant to Tenn. Code Ann. § 47-18-109. We find and hold that the Trial Court did not abuse its discretion in refusing to allow further discovery, that the defendants made properly supported motions for summary judgment, and that Plaintiff failed to show that there is a genuine disputed issue of material fact. As the Cooks and Brewster made properly supported motions for summary judgment and are entitled to summary judgment, we affirm the grants of summary judgment. We further find and hold that the Trial Court did not abuse its discretion in denying the motion for attorney’s fees.

Sevier County Court of Appeals 09/26/16
In re: Jason S., et al.
M2016-00226-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ken Witcher

This case involves termination of the parental rights of a mother and father to their three children. Following a report of drug exposure and environmental neglect, the Tennessee Department of Children’s Services (“DCS”) obtained emergency temporary custody of the children. Approximately nine months after the children were removed from the parents’ home, DCS filed a petition to terminate the parental rights of both parents on the grounds of substantial noncompliance with the permanency plan, persistence of conditions, and severe child abuse. The petition also sought to terminate the mother’s parental rights on the additional ground of abandonment by willful failure to visit, and it sought to terminate the father’s parental rights on the ground of abandonment by an incarcerated parent. The juvenile court found all grounds were established by clear and convincing evidence and that termination of both parents’ parental rights was in the children’s best interests. Although we conclude that DCS did not prove by clear and convincing evidence that the mother abandoned the children by willful failure to visit, we affirm the termination of parental rights. 

Macon County Court of Appeals 09/23/16
In re: Beckwith Church Of Christ
M2015-00085-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Charles K. Smith

In this case, two former members of a dissolved church filed a petition seeking permission to sell the improved real property formerly occupied by the church and donate the money to a nonprofit Bible school or, in the alternative, to convey the property directly to the school. The petitioners filed suit against unknown former members of the church and obtained permission to serve the unknown respondents by publication in a local newspaper. After publication of the action, no responsive pleadings were filed, and the petitioners obtained a default judgment. Before the default judgment became final, a descendant of the original owners of the real property filed a motion to set aside the default judgment and dismiss the petition based on insufficient service of process. The court granted the motion, set aside the default judgment, and dismissed the petition with regard to the descendant. On appeal, the petitioners argue: (1) the chancery court erred in finding constructive service insufficient; (2) that the descendant waived his objections to service of process by filing a notice of appearance; and (3) that the descendant should be estopped from setting aside the judgment because he delayed asserting his rights. Upon review of the record, we conclude that service of process on the descendant was insufficient and that the descendant’s conduct did not preclude him from setting aside the void judgment. Therefore, we affirm the decision of the chancery court.  

Wilson County Court of Appeals 09/23/16
Caney Fork Electric Cooperative, Inc., et al. v. Tennessee State Board of Equalization
M2016-00316-COA-R12-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Executive Secretary Kelsie Jones

The Tennessee Attorney General opined that a tax exemption in favor of electric cooperatives found at Tenn. Code Ann. § 65-25-122(a) violates Article II, Section 28 of the Tennessee Constitution. The Board of Equalization began proceedings to recalculate the taxes of the electric cooperatives. Several electric cooperatives objected and maintained that the exemption under Tenn. Code Ann. § 65-25-122(a) was valid. The Board recalculated their taxes anyway. The electric cooperatives appealed. Although the Board of Equalization cannot rule on the constitutionality of the statute, we can. We find that Tenn. Code Ann. § 65-25-122(a) violates Article II, Section 28 of the Tennessee Constitution.

Court of Appeals 09/23/16
James F. Logan, Jr. et al. v. The Estate of Mildred Cannon et al.
E2015-02254-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Frank V. Williams, III
This case involves a one-quarter ownership interest in an unimproved 7.18-acre tract of real property located in Bradley County, Tennessee (“the Property”). The plaintiff, attorney James F. Logan, Jr., asserts that he purchased a one-quarter interest in the Property from Sam and Mildred Cannon in 1974. Sam and Mildred Cannon were divorced in 1979, and Mr. Cannon remarried. Upon Mr. Cannon’s death in 2002, he was survived by his second wife, Yvonne, and two adult children from his marriage to Mildred Cannon. Prior to commencement of this action, Yvonne Cannon conveyed any interest she had in the disputed property to Mr. Logan via quitclaim deed. Mr. Logan, together with co-plaintiffs, who are co-tenants of the Property not participating in this appeal, subsequently filed this action in February 2011, seeking declaration of ownership in Mr. Logan’s name and clear title concerning his claimed one-quarter interest in the Property. They named as defendants Mildred Cannon; her daughter, both individually and in her capacity as trustee for Sam and Mildred Cannon’s son; and a successor trustee. The plaintiffs acknowledged that no deed reflecting Sam and Mildred Cannon’s purported conveyance to Mr. Logan had been recorded or could be produced. In the alternative, the plaintiffs pled adverse possession. Mildred Cannon died in September 2011, and her estate was substituted as a party in this action. The parties subsequently filed competing motions for summary judgment, with the defendants alleging that Mr. Logan’s claim could not satisfy the requirements of the Statute of Frauds and the plaintiffs amending their complaint to add alternative equitable theories of constructive trust and/or resulting trust. Following hearings, the trial court granted summary judgment in favor of the defendants. Mr. Logan appeals. We affirm the trial court’s findings that the evidence cannot satisfy the requirements of the Statute of Frauds or give rise to a constructive or resulting trust. We determine, however, that genuine issues of material fact exist regarding Mr. Logan’s claim of adverse possession, and we remand for further proceedings concerning this claim. We also determine that the trial court improperly found statements in an affidavit presented by an employee of Mr. Logan’s law firm to be inadmissible. We affirm the trial court’s judgment in all other respects.
 
Bradley County Court of Appeals 09/23/16
Randall E. Pearson, M.D. et al. v. Paul Koczera et al.
E2015-02081-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John D. McAfee

This appeal arises from the trial court’s determination that it was without jurisdiction, following a prior appeal in the same matter, to act upon a motion seeking to alter or vacate an order entered after remand. The administrator ad litem for the third-party plaintiff has appealed from the trial court’s order determining that it lacked jurisdiction to act on her motion following remand. We determine that the trial court did possess jurisdiction to act on pending motions following the remand from the appellate courts. We therefore vacate the trial court’s order and remand this case for further proceedings. We also vacate the trial court’s order granting sanctions against the administrator ad litem for filing her motion to alter or vacate.

Anderson County Court of Appeals 09/23/16
In Re Elizabeth D.
E2015-02097-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Thomas J. Wright

The custodians of a child filed a petition in Greene County Circuit Court to terminate the parental rights of the Father to the child, who had resided with the Custodians since birth; at the time of the hearing on the petition, the Father was incarcerated in Florida. Following a three-day hearing extending over one month, the court entered an order holding that Father failed to visit or support the child within the four months preceding his incarceration and terminating Father’s rights on the grounds of abandonment. Father appeals, asserting that the conduct of the hearing denied him his due process right to meaningfully participate in the termination proceeding and that the record does not support the determination that he willfully failed to visit or support his child. Finding no error, we affirm the judgment of the trial court.

Greene County Court of Appeals 09/23/16
In re Envy J., et al.
W2015-01197-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Robert L. Childers

Mother appeals the trial court's termination of her parental rights. The trial court terminated her parental rights on the grounds that the children were victims of severe abuse and that mother had failed to financially support the children. The trial court also concluded that termination of parental rights was in the children's best interest. After a thorough review of the record, we conclude that there was not clear and convincing evidence of abandonment by willful failure to support. But, we conclude that there was clear and convincing evidence of severe abuse and that termination was in the best interest of the children. Consequently, we affirm the termination of Mother's parental rights.

Shelby County Court of Appeals 09/22/16
In re C.C. et al.
E2016-00475-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Dennis (Will) Roach, II
The Department of Children’s Services filed a petition seeking, on the basis of four grounds, to terminate the parental rights of H.C. (Mother) to her four children, C.C., D.C., A.D., and S.D. (collectively the Children). In the same petition, DCS also sought to terminate, on three grounds, the parental rights of B.D., Mother’s long-time boyfriend and father of two of the Children, i.e., A.D. and S.D. (collectively the twins).The trial court found, by clear and convincing evidence, three grounds to terminate Mother’s parental rights and three grounds to terminate B.D.’s parental rights. By the same quantum of proof, the court found that termination is in the Children’s best interest. Mother and B.D. (collectively the parties) appeal. As modified, we affirm the judgment
of the trial court.
 
Jefferson County Court of Appeals 09/22/16
Trevor Travis v. Cookeville Regional Medical Center, et al.
M2015-01989-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Amy V. Hollars

In this health care liability case, the defendants moved to dismiss the complaint on the grounds that the plaintiff failed to comply with Tenn. Code Ann. § 29-26-121, part of Tennessee’s Health Care Liability Act. Specifically, the defendants argue that the plaintiff failed to provide a statement in the pleadings that he complied with Tenn. Code Ann. § 29-26-121(a), failed to file, with the complaint, documentation demonstrating compliance with Tenn. Code Ann. § 29-26-121(a), failed to file, with the complaint, an affidavit of the person who mailed pre-suit notice to the defendants, and failed to provide a HIPAA compliant medical authorization form. The trial court dismissed the case. We have reviewed the record and find that the plaintiff failed to substantially comply with Tenn. Code Ann. § 29-26-121(b). We affirm the judgment of the trial court.

Putnam County Court of Appeals 09/20/16
Lisa E. Burris v. James Morton Burris
M2015-01969-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Mitchell Keith Siskin

Appellant appeals from the denial of her motion to alter or amend the trial court’s judgment finding her guilty of thirty-seven counts of criminal contempt and sentencing her to 403 days incarceration. We affirm the trial court’s denial of Appellant’s post-trial motion on the ground that the trial court erred in finding her non-payment of child support willful. We also affirm the denial of Appellant’s post-trial motion based upon evidence that Appellant obtained a loan to pay her support obligation after the contempt hearing. We vacate the trial court’s denial of Appellant’s post-trial motion, however, on the ground that trial court failed to consider whether Appellant’s sentence was excessive. We therefore remand to the trial court to make appropriate findings of fact and conclusions of law to support its ruling and to consider whether Appellant’s sentence is excessive. Affirmed in part; vacated in part and remanded. 

Rutherford County Court of Appeals 09/20/16
Stephny Denise Young, et al. v. Richard Jordan, MD, et al.
W2015-02453-COA-R9-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Rhynette N. Hurd

This is a healthcare liability case. Appellees, patient and her husband, filed suit against Appellants, physician and employer. Appellants raised the affirmative defense of comparative fault based on the fact that Appellee/patient had been non-compliant with medical advice. Appellees moved for partial summary judgment on the affirmative defense of comparative fault. The trial court granted the motion, and Appellants appeal. Because expert testimony adduced during discovery creates a dispute of material fact as to the question of Appellees’ non-compliance with medical advice and the effect of such non-compliance on Appellees’ injury, the grant of summary judgment was error.

Shelby County Court of Appeals 09/20/16
Scott B. Peatross, as Administrator Ad Litem of the Estate of Dora Birk v. Graceland Nursing Center, LLC, et al.
W2015-01412-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge D'Army Bailey

This is a health care liability action. The plaintiff filed suit against the defendants concerning the inadequate care and treatment received by the decedent. He then amended his complaint to add the defendant hospital as a party after the defendants alleged comparative fault. The defendant hospital moved to dismiss, arguing that the failure to attach a certificate of good faith applicable to it required dismissal. The trial court granted the motion to dismiss, citing this court’s opinion in Sirbaugh v. Vanderbilt University, 469 S.W.3d 46 (Tenn. Ct. App. 2014). The plaintiff appeals. We affirm.

Shelby County Court of Appeals 09/20/16
Hitachi Capital America Corp v. Community Trust & Banking Company, et al.
E2015-02121-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor W. Frank Brown, III

This is a declaratory judgment action in which the intervening plaintiff sought to establish priority lien status over the original plaintiff as well as a Rule 19 defendant. We affirm the decision of the Chancery Court.

Hamilton County Court of Appeals 09/20/16
Jeff Lowe v. John Smith, et al.
M2015-02472-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Vanessa Jackson

Plaintiff seller filed suit against defendant buyers after buyers stopped paying interest on a line of credit under the terms of a contract for the sale of a convenience store. The trial court concluded that both sides breached the contract. As a result, the trial court ordered that buyers were required to pay the seller the contracted amount, less $16,000.00 resulting from buyer’s breach. Buyers appealed. Discerning no error, we affirm. 

Coffee County Court of Appeals 09/19/16
Sharper Impressions Painting Co., et al v. Dan Yoder
M2015-00841-COA-R9-CV
Authoring Judge: Judge S. Neal McBrayer
Trial Court Judge: Judge Hamilton V. Gayden, JR.

This interlocutory appeal involves the failure of an Ohio corporation to obtain authorization to transact business in Tennessee prior to filing suit. The Ohio corporation filed this action against a former employee, seeking monetary damages and injunctive relief for breach of contract, unjust enrichment, and misappropriation of trade secrets. The former employee moved for partial summary judgment on the ground that the Ohio corporation had not obtained a certificate of authority from the Tennessee Secretary of State, as required by law, and thus was barred from maintaining an action in Tennessee court. The trial court granted the motion but allowed the Ohio corporation thirty days to obtain the certificate. After obtaining the certificate, the Ohio corporation filed a motion to reinstate its claims against the former employee. The trial court denied the motion, ruling that the certificate of authority only allowed the Ohio corporation to maintain an action on claims that arose after the date the certificate of authority was issued. We granted the Ohio corporation’s application for an interlocutory appeal. We conclude, based on the plain language of Tennessee Code Annotated § 48-25-102, that a foreign corporation who has filed an action in a Tennessee court without a certificate of authority may obtain a certificate during the pendency of the case and then prosecute the action. Therefore, we reverse the decision of the trial court and remand for further proceedings.

Davidson County Court of Appeals 09/19/16
In Re Mickia J.
E2016-00046-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Brian J. Hunt

This is a termination of parental rights case. Appellant/Father appeals the termination of his parental rights on the sole ground of persistence of the conditions that led to the child’s removal. Tenn. Code Ann. §36-1-113(g)(3). As a threshold requirement, in order for the persistence of conditions ground to apply in termination of parental rights proceedings, there must be a prior order adjudicating the child to be dependent and neglected. No such order is included in the appellate record. Furthermore, it is undisputed that Appellant was incarcerated at the time the child was removed from the home. Removal of the child from the parent’s home is a threshold requirement for applicability of the persistence of conditions ground. Because there is no order on dependency and neglect and because the child was not removed from Appellant’s custody or home, we conclude that the threshold requirements for applicability of the persistence of conditions ground are not met in this case. Reversed and remanded.

Anderson County Court of Appeals 09/19/16
In Re: Samuel D., et al.
E2015-01449-COA-R3-JV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Gregory S. McMillan

This appeal arises from a finding of dependency and neglect. Ashley D. (“Mother”) and Matthew M. (“Father”) are the parents of Samuel D. and Uriah D. The Tennessee Department of Children’s Services (“DCS”) sought a finding of dependency and neglect regarding Samuel and Uriah stemming from the alleged sexual abuse by Father of their older half-siblings, Gage and Gracie, with Mother’s knowledge. The Circuit Court for Knox County, Fourth Circuit (“the Trial Court”) adjudicated Samuel and Uriah dependent and neglected. Mother and Father appeal. DCS concedes one of Father’s issues, which we reverse. Otherwise, we affirm the judgment of the Trial Court finding Samuel and Uriah dependent and neglected.

Knox County Court of Appeals 09/19/16
Charles Groves, et al v. Ernst-Western Corporation
M2016-01529-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joe Thompson

This is an accelerated interlocutory appeal from the trial court’s denial of a recusal motion. Having reviewed the trial court’s ruling on the motion pursuant to the de novo standard of review required by Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial court.  

Sumner County Court of Appeals 09/16/16
Stratford Hall Home Owners' Association v. Roger G. Haley
M2015-01948-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Mitchell Keith Siskin

Homeowners’ association brought suit against homeowner who refused to paint his home as requested. After a bench trial, the court determined that the board of the homeowners’ association had properly exercised its discretion and ordered homeowner to paint his house. Homeowner appeals, contending that the appearance of his home was consistent with the appearance of homes and the common areas of the subdivision. Upon our de novo review, we have determined that the board had authority under the bylaws governing the association and the subdivision’s covenants to require the homeowner to paint his home, and that the board’s action was appropriate. Accordingly, we affirm the judgment.  

Rutherford County Court of Appeals 09/16/16
In Re: Kenneth G.
M2016-00380-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Amy V. Hollars

This appeal involves the termination of a father’s parental rights to his minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of his rights on the statutory grounds of abandonment for failure to visit and to support the child. The court further found that termination was in the best interest of the child. The father appeals. We affirm.

DeKalb County Court of Appeals 09/15/16
In Re: Stormie M., et al.
M2015-02336-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Ken Witcher

This appeal involves the termination of parental rights with respect to three minor children. The trial court terminated Mother’s parental rights on the grounds of abandonment, substantial noncompliance with the permanency plans, persistent conditions, and severe child abuse. The trial court also terminated the parental rights of the putative father of one of the minor children. On appeal, we conclude that considerations of fundamental due process require us to vacate that portion of the trial court’s final decree terminating the putative father’s parental rights. Concerning Mother’s parental rights, we reverse the trial court’s determination that Mother abandoned the children by willfully failing to support them in the four months preceding the filing of the termination petition. We also reverse the trial court’s finding that clear and convincing evidence established the ground of persistent conditions. However, because clear and evidencing evidence supports at least one ground for termination and that termination is in the children’s best interests, we ultimately affirm the termination of Mother’s parental rights.

Macon County Court of Appeals 09/15/16
Paul D. Kennamer, Sr. Et Al. v. Bethany E. Chaffin et al.
E2016-01417-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This is an appeal from an order dismissing the claims made by the appellant, Paul D. Kennamer, Sr., against the appellees, Bethany E. Chaffin and Maria Kishimoto. Because the claims raised by Dorothy Kennamer in the Amended Complaint remain pending against the appellees, we lack jurisdiction to consider this appeal.

Hamilton County Court of Appeals 09/13/16
Crye-Leike Property Management, et al. v. Nedra Drayton
W2015-02437-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert Samual Weiss

This is a forcible entry and detainer warrant case. The General Sessions Court for Shelby County entered a default judgment against the Appellant/tenant and granted an order for immediate possession in favor of the property manager and the landlord, Appellees. The Appellant filed a notice of appeal to the Circuit Court for Shelby County, using a pauper's oath in lieu of an appeal bond. The Circuit Court for Shelby County dismissed the appeal, finding that Appellant failed to perfect the appeal because she did not post a possession bond although she retained possession of the property. We affirm and remand.

Shelby County Court of Appeals 09/12/16