Court of Appeals Opinions

Format: 11/27/2020
Format: 11/27/2020
Jacob Daniel Drucker v. Colleen Erin Daley
M2019-01264-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Adam Dodd

Mother challenges the trial court’s granting of father’s petition to modify the residential parenting schedule to give him equal residential parenting time. She argues that the father failed to establish a material change in circumstances affecting the child’s well-being in a meaningful way. We have determined that the evidence does not preponderate against the trial court’s findings that there was a material change of circumstances under Tenn. Code Ann. § 36-6-101(a)(2)(C) and that modification of the parenting schedule was in the best interest of the child.    

Rutherford County Court of Appeals 11/25/20
Sypriss Smith v. All Nations Church of God, et al.
W2019-02184-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Donald H. Allen

Former employee sued her former employer for retaliatory discharge under the Tennessee Public Protection Act, disability discrimination, and religious discrimination. Former employee voluntarily dismissed the religious discrimination claim prior to trial; the jury returned a verdict in favor of the former employee on only the retaliatory discharge claim, awarding total damages of $15,500.00, inclusive of punitive damages. Former employee then sought an award of over $100,000.00 in attorney’s fees under the applicable statutes, which the trial court reduced to $12,500.00, the same amount of punitive damages awarded by the jury. Former employee appeals only the attorney’s fee award. We vacate the judgment of the trial court and remand for further proceedings.

Madison County Court of Appeals 11/25/20
A & P Excavating And Materials, LLC v. David Geiger
E2019-01712-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Douglas T. Jenkins

In this contract action, the trial court entered a judgment dismissing the plaintiff logging company’s complaint for breach of contract, determining that the defendant landowner had been within his rights to terminate the parties’ agreement because (1) the contract, which had been drafted by the owner of the logging company, was not sufficiently specific to be enforceable and (2) the logging company had violated what was an unambiguous section of the contract requiring that the logging company follow directions concerning the logging operation given by the landowner’s property manager. The logging company has appealed. Having determined that the parties’ contract is enforceable, we reverse the trial court’s first basis for dismissal of the logging company’s breach of contract claim. However, we affirm the remainder of the trial court’s judgment in its entirety.

Hawkins County Court of Appeals 11/25/20
Jason Hale v. Turney Center Disciplinary Board, Et Al.
M2020-00724-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael E. Spitzer

Appellant prison inmate appeals the dismissal of his petition for a writ of certiorari. On appeal, Appellant asserts that the board failed to comply with the Uniform Disciplinary Procedure in imposing discipline in this case. Because the trial court did not abuse its discretion in denying the appellant relief, we affirm. 

Hickman County Court of Appeals 11/25/20
Tennessee Department of Health, Et Al. v. Christina K. Collins, RN, APRN
M2019-01306-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Russell T. Perkins

This appeal involves a licensure disciplinary action.  The Tennessee Board of Nursing charged an advanced practice registered nurse with overprescribing controlled substances.  After a contested case hearing, the Board found the nurse practitioner guilty of violations of Tennessee’s nursing rules.  However, during the deliberations of the Board, one member conducted her own research.  She observed that her findings had “changed her mind” and shared the information with the other panel members.  The Board subsequently imposed a much-reduced sanction than what was sought by the State.  After the administrative law judge twice denied the State’s motions for mistrial, the parties filed appeals with the chancery court.  Upon review, the trial court determined that the procedural errors in the record, including the introduction of extrinsic prejudicial information, constituted an abuse of discretion that affected the merits of the Board’s decision.  The court reversed and remanded the matter for a new contested case hearing to be heard before and deliberated by a different Board panel.  We affirm.

Davidson County Court of Appeals 11/25/20
Mini Systems, Inc. v. Marvin Alexander, et al.
W2019-01871-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Tony Childress

This case arises from a breach of contract dispute involving the construction of two storage buildings. Among other issues is whether Appellee’s actions were “unfair or deceptive” pursuant to the Tennessee Consumer Protection Act. The trial court ultimately found that there was a breach of contract, but that Appellee’s actions were not deceptive and dismissed the Tennessee Consumer Protection Act claim. Appellant now appeals the trial court’s dismissal of his claim under the Tennessee Consumer Protection Act. For the reasons stated herein, we affirm the trial court’s judgment.

Weakley County Court of Appeals 11/24/20
The Total Garage Store, LLC. v. Nicholas C. Moody
M2019-01342-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Kathryn Wall Olita

This appeal concerns a noncompetition agreement. The Total Garage Store, LLC (“TGS”) sued former employee Nicholas C. Moody (“Moody”) in the Chancery Court for Montgomery County (“the Trial Court”). TGS alleged that Moody violated his noncompetition agreement (“the Agreement”). At the end of a hearing on TGS’s motion for a temporary injunction held 35 days after suit was filed, the Trial Court invoked Tenn. R. Civ. P. 65.04(7) to declare that the hearing was on the merits of the case, not just the injunction. The Trial Court found the Agreement enforceable and entered an injunction order. Later, TGS filed a motion for contempt against Moody alleging that he violated the order. After a hearing, the Trial Court found Moody guilty of six counts of criminal contempt. The Trial Court also awarded damages to TGS. Moody appeals. Because the record does not reflect that Moody received adequate notice that the injunction hearing also would be on the merits, we vacate the Trial Court’s judgment as it pertains to Moody’s alleged violation of the Agreement. However, this does not and did not entitle Moody to ignore the temporary injunction, and we affirm the Trial Court in its finding Moody guilty of criminal contempt. We therefore affirm, in part, and vacate, in part, the Trial Court’s judgment, and remand for further proceedings consistent with this Opinion.

Montgomery County Court of Appeals 11/24/20
In Re Allie-Mae K., Et Al. - Concurring In Part
M2020-00215-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Amy Cook Puckett

While I concur with the end result reached by the majority in this case, I write separately to note my disagreement with the the majority’s suggestion that the split of authority surrounding In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280 (Tenn. Ct. App. June 20, 2018) and In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044 (Tenn. Ct. App. May 31, 2018), has been fully resolved in favor of In re Amynn K. See, e.g., In re Allyson P., No. E2019-01606-COA-R3-PT, 2020 WL 3317318, at *9 (Tenn. Ct. App. June 17, 2020) (following In re Ayden S. and reversing the trial court’s decision to terminate a mother’s parental rights based upon this ground when the proof showed that mother was unable to assume custody of her child but was not unwilling). As I perceive it, this split remains clear and irreconcilable.

Hickman County Court of Appeals 11/24/20
In Re Allie-Mae K., Et Al.
M2020-00215-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Amy Cook Puckett

This appeal involves the termination of a mother’s parental rights. The trial court found by clear and convincing evidence that multiple grounds for termination were proven and that termination is in the best interest of the children. We reverse one ground for termination but otherwise affirm and remand for further proceedings.

Hickman County Court of Appeals 11/24/20
Barbara Lundell v. Lois Hubbs Et Al.
E2019-02168-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Deborah C. Stevens

In this negligence action arising from the plaintiff’s injuries sustained while attempting to traverse the aisle of a moving school bus, the trial court granted the defendants’ motion for summary judgment following a determination that (1) the plaintiff had not demonstrated that the defendants had breached any duty of care to the plaintiff and (2) alternatively, any reasonable fact-finder could only conclude that the plaintiff was at least fifty percent (50%) at fault for her injuries. In so finding, the trial court declined to consider the plaintiff’s captioned “Declaration” in part because it failed to meet the affidavit requirements of Tennessee Rule of Civil Procedure 56.06. In filing her “Declaration” in support of her opposition to summary judgment, the plaintiff sought to amend her prior deposition testimony concerning the location of her fall. The trial court additionally denied the plaintiff’s “Motion to Deem Requests for Admission Admitted” after the plaintiff averred that the defendants had failed to respond to the plaintiff’s initial requests for admission for over five-hundred days. The plaintiff has appealed. Having determined that genuine issues of material fact exist regarding the defendants’ breach of duty of care and comparative fault, we reverse the trial court’s granting of summary judgment in favor of the defendants and the trial court’s finding that the plaintiff’s “Declaration” should not be considered. We affirm the trial court’s denial of the plaintiff’s “Motion to Deem Requests for Admissions Admitted.”

Knox County Court of Appeals 11/23/20
John Doe Ex Rel. Jane Doe v. Brentwood Academy, Inc. Et Al.
M2017-02554-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Deanna B. Johnson

In this consolidated appeal, we review whether the trial court erred in holding appellants’ attorney in civil contempt and/or in assessing fees and costs after this Court, in a previous appeal, reversed the trial court’s grant of appellees’ motion for involuntary dismissal and mandated for entry of an order granting appellants’ motion for voluntary dismissal. We conclude that there was no contempt and that the fees assessed for contempt were unwarranted. Because the underlying lawsuit was voluntarily nonsuited, we pretermit appellants’ issue concerning whether the trial court erred in denying recusal.  

Williamson County Court of Appeals 11/20/20
Craig Williams v. State Farm Mutual Automobile Insurance Company, et al.
W2019-00851-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor JoeDae L. Jenkins

Appellant was injured in an accident involving a vehicle owned by Lexus of Memphis and insured under a policy issued by Appellee insurance company. The at-fault driver entered into a rental agreement with Lexus of Memphis for use of the subject vehicle. After a jury entered a verdict in favor of Appellant against the at-fault driver, Appellant sought to collect the judgment under a policy issued by Appellee. The trial court held that the at-fault driver, as a renter of the vehicle, was exempt from coverage under the policy. Discerning no error, we affirm.

Shelby County Court of Appeals 11/20/20
Gloria J. Jones v. Justin Martin, et al.
W2019-02047-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge J. Weber McCraw

Appellant and her son were driver and passenger, respectively, in a motor vehicle when they were struck in the rear by a vehicle driven by one of the Appellees. Appellant’s son later died from medical causes not related to the accident. Appellant then filed suit for injuries in her own name and as next of kin of her deceased son. Following arguments by the Appellees that Appellant had no authority to prosecute the case on behalf of her son, the trial court dismissed the claim corresponding to the injuries allegedly sustained by the son. Appellant then took a nonsuit of her remaining claim. This appeal concerns initially whether or not the judgment on appeal is a final judgment and, if so, the application of Tennessee Code Annotated section 20-5-102 to this case. Tennessee Code Annotated section 20-5-102, which provides for the survival of actions despite the death of the person wronged, specifies that the right of action shall pass “in like manner as the right of action described in § 20-5-106.” By way of that referenced authority, it is clear that a next of kin is one of the persons authorized to bring an action that survives under section 20-5-102. For the reasons set out herein, we conclude that we have jurisdiction to hear this appeal and reverse the trial court’s dismissal.

Fayette County Court of Appeals 11/20/20
James Howell v. Lee R. Morisy, M.D., et al.
W2020-00343-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Gina C. Higgins

In this Tennessee Rule of Appellate Procedure 9 interlocutory appeal, we address whether the trial court erred in applying Tennessee Rule of Professional Conduct (“RPC”) 1.7 in determining whether Appellants’ law firm had a concurrent conflict of interest. Because a law firm may not cure a concurrent conflict by withdrawing from representing a client to avoid a conflict of interest with another client, we conclude that the trial court properly applied RPC 1.7. We also conclude that the trial court properly considered alternatives to disqualification.

Shelby County Court of Appeals 11/20/20
In Re Malachi M.
E2020-00561-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Robert D. Philyaw

This appeal involves a petition to terminate the parental rights of a father to a minor child. The trial court found that there was clear and convincing evidence to terminate the father’s rights on the ground of abandonment by an incarcerated parent and that termination was in the best interest of the child. The father appealed. We affirm the trial court’s decision to terminate the father’s parental rights and remand.

Hamilton County Court of Appeals 11/20/20
State of Tennessee Ex Rel. Rachel Beth Gray v. Allan Vincent Daugherty, Jr.
M2020-00081-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Darrell Scarlett

This is an appeal of a judgment entered against Father for child support arrearage. The State of Tennessee, on behalf of Mother, sought a modification of the judgment against Father under Rule 60.02 of the Tennessee Rules of Civil Procedure due to an alleged erroneous calculation of child support owed by Father. The trial court granted the State’s motion, increasing the amount of the arrearage judgment owed by Father. For the reasons stated herein, we reverse the trial court’s order granting the State relief under Rule 60.02.

Rutherford County Court of Appeals 11/19/20
Melissa Janelle Jones v. Charles Jason Jones
M2019-01859-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor C.K. Smith

A husband sought relief from a final decree of divorce nine years after its entry. He argued that the decree was void because the trial court lacked subject matter and personal jurisdiction. The trial court denied the husband’s motion. We affirm. 

Wilson County Court of Appeals 11/19/20
Ronald L. Jones v. Louise Helms, et al.
W2019-00864-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Clayburn Peeples

In this case, a sister contests the sale of her deceased brother’s interest in real estate they inherited from their mother to satisfy an outstanding judgment lien against the brother. Because the sister waives her right to appellate review of most of her arguments and we discern no error in the circuit court’s exercise of subject matter jurisdiction, we affirm the circuit court.

Gibson County Court of Appeals 11/19/20
Anthony Rental v. Mark B. Sagers, Et Al.
M2019-01237-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Anne C. Martin

This appeal arises out of a dispute concerning an express, ingress and egress easement across the defendant’s property. The principal issue is whether the plaintiff abandoned the easement by failing to maintain the easement in a condition permitting it to be used for access and/or by acquiescing in the acts of others that reduced the utility of the easement. Following a bench trial, the court determined the defendant failed to prove abandonment by clear and convincing evidence. Having determined that the evidence does not preponderate against the findings by the trial court, we affirm. 

Davidson County Court of Appeals 11/18/20
Xingkui Guo v. Jon David Rogers
M2020-01321-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Thomas W. Brothers

This accelerated interlocutory appeal is taken from the trial court’s order denying Appellant’s motion for recusal. Because there is no evidence of bias that would require recusal under Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial court.

Davidson County Court of Appeals 11/18/20
In Re Haskel S.
M2019-02256-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Sammie E. Benningfield, Jr.

In this termination of parental rights case, Appellant/Father appeals the trial court’s termination of his parental right to the minor child on the grounds of: (1) abandonment by an incarcerated parent by willful failure to visit, willful failure to support, and wanton disregard, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(iv); (2) substantial noncompliance with the requirements of the permanency plan, Tenn. Code Ann. § 36-1-113(g)(2); and (3) failure to manifest a willingness and ability to parent the child, Tenn. Code Ann.
§ 36-1-113(g)(14). Appellant also appeals the trial court’s finding that termination of his parental rights is in the child’s best interest. We reverse the trial court’s termination of Father’s parental rights on the grounds of abandonment by an incarcerated parent for failure to visit and support. We affirm the trial court’s termination of Father’s parental rights on all remaining grounds and on its finding that termination of Father’s parental rights is in the child’s best interest.  

Van Buren County Court of Appeals 11/18/20
Rocky Joe Houston v. Pat Brown
E2019-01563-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Frank V. Williams, III

Appellant appeals the trial court’s order setting aside his transfer of real property as a fraudulent conveyance. We do not reach the substantive issue because Appellant’s notice of appeal is untimely, thus depriving this Court of jurisdiction over the appeal. Dismissed.

Roane County Court of Appeals 11/18/20
In Re Dyllon M. Et Al.
E2020-00477-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Timothy E. Irwin

In this termination of parental rights case, Appellant/Mother appeals the trial court’s termination of her parental rights to the minor children on the grounds of: (1) substantial noncompliance with the requirements of the permanency plan, Tenn. Code Ann. § 36-1- 113(g)(2); (2) mental incompetence, Tenn. Code Ann. § 36-1-113(g)(8); and (3) failure to manifest an ability and willingness to parent the children, Tenn. Code Ann. § 36-1- 113(g)(14). Appellant also appeals the trial court’s finding that termination of her parental rights is in the children’s best interests. We reverse the trial court’s termination of Mother’s parental rights on the ground of substantial noncompliance with the requirements of the permanency plan. We affirm the trial court’s termination of Mother’s parental rights on all remaining grounds and on its finding that termination of Mother’s parental rights is in the children’s best interests.

Knox County Court of Appeals 11/18/20
TBF Financial LLC v. Jonathan Simmons
E2020-00396-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kristi M. Davis

Appellant appeals the trial court’s dismissal of his Tennessee Rule of Civil Procedure 60.02 motion for relief from a judgment entered against him in the Knox County General Sessions Court. Appellant’s Rule 60.02 motion was filed approximately 8 years after the judgment was entered, and the trial court held that it lacked jurisdiction based on the expiration of the 10-day time period set out in Tennessee Code Annotated Section 16-15- 727(b). Appellant’s motion was premised on his contention that he was never served with process in the general sessions court and, as such, the judgment was void ab initio. We conclude that the 10-day statutory time period does not preclude the trial court’s jurisdiction to address Rule 60.02 motions based on a void judgment. However, we do not reach the ultimate question of whether Appellant is entitled to such relief because there is a dispute of fact regarding whether proper service was achieved. This dispute must be resolved by the trial court in order to determine whether Rule 60.02(3) relief is warranted. Vacated and remanded.

Knox County Court of Appeals 11/18/20
Fatma Adel Sekik v. Nehad Abdelnabi Et Al.
E2019-01302-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Gregory S. McMillan

In this divorce appeal, Husband challenges the court’s failure to grant a continuance, the child support and alimony obligation imposed, and certain provisions of the parenting plan prohibiting contact with his children and revoking the parental rights set forth in Tennessee Code Annotated section 36-6-101(a)(3)(B). This proceeding also involved allegations of a conspiracy to defraud Wife of funds resulting from a sale of marital property in Gaza during the pendency of the divorce by Husband, his brother, and his brother’s wife; those nonspousal parties challenge the court’s jurisdiction over them and over the property in Gaza, as well as the court’s valuation of that property. They also challenge the court’s rulings that they engaged in a civil conspiracy and whether the judgment imposed against them is supported by the pleadings and the evidence. Upon our review of the issues raised, we discern no reversible error in the rulings of the court and accordingly affirm it in all respects.

Knox County Court of Appeals 11/18/20