Court of Appeals Opinions

Format: 06/29/2022
Format: 06/29/2022
Staci L. Robinson v. Eric S. Robinson
E2020-01535-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Douglas T. Jenkins

In this divorce action, the husband contends that the trial court erred by: (1) declining to award him alimony; (2) declining to adopt his valuation of the couple’s three Subway franchises; (3) finding that he dissipated $65,000 from the marital estate; (4) awarding the wife a larger share of the marital estate; (5) imputing income of $58,000 to him for child support purposes; and (6) declining to award him his attorney’s fees at trial. We affirm the trial court’s rulings on all but one of these issues, finding that the evidence preponderates against the trial court’s determination regarding the amount of marital assets the husband dissipated. We also deny the husband’s request for attorney’s fees on appeal.

Hawkins County Court of Appeals 06/29/22
Terry Case v. Wilmington Trust, N.A., As Trustee For Trust MFRA 2014-2 Et Al.
E2021-00378-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jeffrey M. Atherton

The plaintiff appeals the trial court’s order granting the defendants’ motions for summary judgment and dismissing the plaintiff’s claims for breach of contract, wrongful foreclosure, injunctive relief, and declaratory relief. Having determined that the plaintiff has waived arguments related to his breach of contract claim, we review solely the trial court’s dismissal of the plaintiff’s claim for wrongful foreclosure. We conclude that the defendants did not strictly comply with the notice requirements of the deed of trust, vacate the portion of the trial court’s order granting summary judgment to the defendants with respect to the plaintiff’s wrongful foreclosure claim, and set aside the foreclosure sale. We affirm the trial court’s order with respect to the plaintiff’s breach of contract claim. We decline to award the defendants damages pursuant to Tennessee Code Annotated § 27-1- 122.

Hamilton County Court of Appeals 06/28/22
In Re Lily C.
M2021-00885-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Clara W. Byrd

The Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate the parental rights of Elizabeth R.1 (“Mother”) and David C. (“Father”) to their child Lily C. (“Child”). DCS alleged that Father was guilty of severe child abuse by, among other things, raping her. As grounds against Mother, DCS alleged (1) abandonment by failure to provide a suitable home for the Child in the first four months following removal; (2) persistence of the conditions that led to the Child’s removal; and (3) failure to manifest an ability and willingness to assume custody of the Child. The trial court found that DCS established the alleged grounds for termination by clear and convincing evidence, and that termination of parental rights was in Child’s best interest. We affirm.

Smith County Court of Appeals 06/27/22
Delrick Blue et al. v. Church of God Sanctified, Inc. et al.
M2021-00244-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge David L. Allen

This case involves a church property dispute.  The plaintiffs are trustees of a local church congregation who were attempting to establish their congregation as separate from the church’s national governing body and from a local congregation, with which the plaintiffs had previously been joined, that desired to remain affiliated with the national church body.  Naming as defendants the national body and trustees of the congregation desiring to remain with the national body, the plaintiffs sought, inter alia, declaratory judgment that real property upon which the local church building was located belonged to their congregation and was not held in trust for the national body as the national body’s written policy dictated.  The defendants filed motions for summary judgment, asserting in part that pursuant to our Supreme Court’s decision in Church of God in Christ, Inc. v. L. M. Haley Ministries, Inc. 531 S.W.3d 146 (Tenn. 2017), the national body’s written policy governed ownership of the property, which had therefore been held in trust for the national body.  Following a hearing, the trial court determined that the ecclesiastical abstention doctrine precluded the court’s hearing any claims except the property dispute and that the defendants were entitled to summary judgment declaring the national body as the owner of the property and associated personalty and the congregation aligned with the national body as entitled to use and possession of the property and associated personalty.  Upon the plaintiffs’ appeal to this Court and motion to the trial court for a stay, the trial court granted a stay of the judgment pending appeal and entered an order, inter alia, directing the plaintiffs to pay expenses related to the property while the stay remained in effect.  The defendants filed a Tennessee Rule of Appellate Procedure 7(a) motion seeking review of the trial court’s stay order, which this Court denied.  The plaintiffs subsequently filed a motion to supplement the record with their response to the Rule 7(a) motion, which, upon limited remand, was granted by the trial court.  The defendants then filed a motion requesting that this Court strike the references to the supplemented materials in the plaintiffs’ principal brief and disregard post-judgment facts in the supplemented materials.  Discerning no reversible error in the trial court’s grant of summary judgment in favor of the defendants, we affirm the trial court’s summary judgment order in its entirety.  However, because the supplemented materials included documents not reviewed by the trial court at the summary judgment stage, we grant the defendants’ motion to disregard the supplemental materials and strike the plaintiffs’ references to them.  We deny the defendants’ request for attorney’s fees and costs incurred on appeal. 

Maury County Court of Appeals 06/27/22
Gina G. Gianopulos Cruz et al. v. Wilhoit Properties et al.
M2022-00687-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Vanessa Jackson

This is an appeal from a Final Order of Dismissal and Order Approving Minor’s Settlement. Because the appellant did not file her notice of appeal within thirty days after entry of the final order as required by Rule 4(a) of the Tennessee Rules of Appellate Procedure, we dismiss the appeal.

Coffee County Court of Appeals 06/27/22
Maycee J. Stine v. Isaiah M. Jakes et al.
M2021-00800-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Sharon Guffee

This appeal arises from Appellant/Mother’s January 2020 petition to modify the visitation provisions in an agreed parenting plan entered by the juvenile court in December 2017.  Following proceedings before a juvenile court magistrate, Mother filed a timely request for a de novo hearing by the judge pursuant to Tennessee Code Annotated section 37-1-107(d).  In lieu of an evidentiary hearing, the juvenile court considered the matter on the parties’ briefs and argument of counsel.  The court determined it could not make factual findings without conducting a de novo trial and advised the parties that, in lieu of a hearing, a direct appeal to this Court was “a remedy for either party.”  Mother did not set a hearing, and the juvenile court affirmed the magistrate’s findings of fact and conclusions of law.  Mother appeals.  We vacate the juvenile court’s order and remand this matter for a de novo hearing before the juvenile court judge.  

Williamson County Court of Appeals 06/27/22
Adam J. Rothberg v. Fridrich & Associates Insurance Agency, Inc. et al.
M2022-00827-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Kelvin D. Jones

This is an interlocutory appeal under Tennessee Supreme Court Rule 10B.  We affirm the trial court’s denial of the Appellant’s recusal motion.

Davidson County Court of Appeals 06/24/22
In Re Destiny C.
M2021-00533-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Thomas C. Faris

This appeal involves a petition to terminate parental rights.  The juvenile court found by clear and convincing evidence that four grounds for termination as to the mother were proven: (1) abandonment by failure to visit; (2) persistent conditions; (3) substantial noncompliance with a permanency plan; and (4) failure to manifest an ability and willingness to assume custody or financial responsibility.  The juvenile court also found that termination was in the best interests of the child.  The mother appeals.  We affirm.

Franklin County Court of Appeals 06/24/22
In Re C.T.
E2021-01336-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Jeffrey D. Rader

This appeal involves termination of the parental rights of an incarcerated putative father. The trial court found by clear and convincing evidence that grounds for termination existed and that termination was in the best interest of the child. We affirm and remand for further proceedings.

Sevier County Court of Appeals 06/22/22
Barbara Cunningham v. Fresenius Medical Care, Inc. et al.
M2021-01087-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Thomas W. Brothers

In this appeal arising out of a negligence action, the plaintiff died while the litigation was pending, and no motion for substitution of the plaintiff was filed within the ninety-day period following the filing of the suggestion of death as required by Tenn. R. Civ. P. 25.01. After the defendant filed a motion to dismiss, the plaintiff’s counsel filed a motion to enlarge the time, pursuant to Tenn. R. Civ. P. 6.02. The trial court found no excusable neglect warranting enlargement of the ninety-day period and dismissed the action pursuant to Tenn. R. Civ. P. 25.01. The plaintiff appealed the trial court’s denial of its motion to enlarge and the dismissal of the suit. Discerning no error, we affirm.

Davidson County Court of Appeals 06/22/22
In Re Jose A.
M2021-00828-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Donna Scott Davenport

A relative of an undocumented minor filed a guardianship petition in juvenile court.  The petition also requested that the court make special findings to enable the minor to apply for special immigrant juvenile status under federal law.  The juvenile court issued a guardianship order with special findings but only after the minor turned 18.  On appeal, the relative raises issues with the court’s special findings.  We conclude that the juvenile court lost subject matter jurisdiction to appoint a guardian once the minor turned 18.  So we do not reach the merits of this appeal.  We vacate the court’s decision with directions to dismiss the guardianship petition.

Rutherford County Court of Appeals 06/21/22
Amy Frogge et al. v. Shawn Joseph et al. - Concurring
M2020-01422-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle

W. Neal McBrayer, J., concurring.

This is an appeal from the chancery court’s grant of summary judgment to the plaintiffs, elected officials who serve on the Metropolitan Nashville Board of Public Education (“the Board”).  In response to the motion for summary judgment, the defendants, the Board and Metro’s former director of schools, Dr. Shawn Joseph, relied on arguments they made in unsuccessful motions to dismiss.  Although the majority reviews and rejects the defendants’ arguments that the plaintiffs lacked standing and that their claims were not ripe, the court does not review the grant of summary judgment.  I agree with the court’s conclusions on both standing and ripeness.  But I write separately because the scope of the court’s review was too narrow.

Davidson County Court of Appeals 06/20/22
Amy Frogge et al. v. Shawn Joseph et al.
M2020-01422-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Three members of a school board filed this lawsuit after the school board passed a resolution approving a severance agreement with the director of schools that contained a non-disparagement clause preventing the individual school board members from expressing even truthful criticism of the director of schools.  The plaintiff board members named as defendants the school board and the director of schools.  They sought a declaratory judgment that the non-disparagement clause violated their free speech rights under the First and Fourteenth Amendments to the United States Constitution and Article I Section 19 of the Tennessee Constitution, was unconstitutionally overbroad, and was unenforceable as against the public policy of the State of Tennessee.  They also sought a permanent injunction preventing enforcement of the non-disparagement clause and an award of their attorney fees and costs pursuant to 42 U.S.C. § 1988(b).  The plaintiffs moved for summary judgment on numerous alternative grounds.  The defendants filed motions to dismiss for failure to state a claim, lack of standing, and lack of ripeness.  After a hearing, the trial court entered an order denying the defendants’ motions to dismiss and granting the plaintiffs’ motion for summary judgment.  The trial court found that the non-disparagement clause was unenforceable and unconstitutional on several grounds.  It permanently enjoined enforcement of the clause and awarded the plaintiffs their attorney fees.  The defendants appeal, arguing that the case should have been dismissed for lack of standing and ripeness.  We affirm and remand for further proceedings.

Davidson County Court of Appeals 06/20/22
Western Express Inc. d/b/a Western Logistics v. State to State Transport Inc. et al.
M2022-00103-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Kelvin D. Jones

An interstate motor carrier appeals a $35,777.00 judgment. Because the judgment does not resolve all of the claims between all of the parties, we dismiss the appeal for lack of a final judgment.

Davidson County Court of Appeals 06/20/22
In Re Estate of John Bruce Wilson
M2021-01549-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This is an appeal from the dismissal of a petition for a declaratory judgment regarding a will and trust. Because the appellant did not file his notice of appeal within thirty days after entry of the final judgment as required by Rule 4(a) of the Tennessee Rules of Appellate Procedure, we dismiss the appeal.

Montgomery County Court of Appeals 06/20/22
Adam J. Rothberg v. Fridrich & Associates Insurance Agency, Inc. et al.
M2022-00795-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Kelvin D. Jones

This is an expedited appeal pursuant to Tennessee Supreme Court Rule 10B.  Based on the Appellant’s failure to comply with the requirements of Rule 10B, we dismiss the appeal.

Davidson County Court of Appeals 06/17/22
In Re Addisyn P. et al.
M2021-00871-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Lee Bussart

In this case involving termination of the father’s parental rights to his children, the Marshall County Juvenile Court (“trial court”) determined that several statutory grounds for termination had been proven by clear and convincing evidence.  The trial court further determined that clear and convincing evidence demonstrated that termination of the father’s parental rights was in the children’s best interest.  The father has appealed.  Discerning no reversible error, we affirm.

Marshall County Court of Appeals 06/16/22
In Re Khloe O.
M2021-01125-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Larry B. Stanley, Jr.

This appeal involves a petition to terminate parental rights and for adoption.  The chancery court found by clear and convincing evidence that a ground for termination was proven and that termination was in the best interests of the child.  The mother appeals.  We vacate and remand.

Warren County Court of Appeals 06/16/22
Lauren Frontz v. Tristan J. Hall
E2021-00154-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Gregory S. McMillan

Lauren Frontz (“Petitioner”) filed a petition for an order of protection against her ex-boyfriend Tristan J. Hall (“Respondent”) on July 31, 2020. The trial court granted an ex parte order of protection and set a hearing for ten days later. Several bridging orders were subsequently entered by the trial court extending the length of time for the protective order. Petitioner alleged Respondent was guilty of criminal contempt by violating the order of protection. After a hearing, the trial court found Respondent guilty on five counts of criminal contempt and sentenced him to fifty days in jail. The trial court also awarded Petitioner her attorney’s fees in the amount of $77,525.75. Respondent appeals, arguing that the bridging orders were invalid and that the trial court erred in its award of attorney’s fees. We affirm.

Knox County Court of Appeals 06/15/22
James Scarlett v. AA Properties, GP
E2021-00615-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge E. Jerome Melson

In this appeal, the parties have stipulated that the trial court erred in awarding the appellee attorney’s fees incurred in an earlier appeal under Tennessee Code Annotated section 20- 12-119(c)(1). So we reverse.

Knox County Court of Appeals 06/14/22
Steven Simmons v. Mayor Jim Strickland, et al.
W2020-01562-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert Samual Weiss

In this appeal from the trial court’s dismissal of a complaint pursuant to Tennessee Rule of Civil Procedure 12.02 on the defenses of lack of jurisdiction over the person, insufficiency of process, and insufficiency of service of process, we affirm the trial court. We also conclude the appeal is frivolous and remand for an assessment of damages.

Shelby County Court of Appeals 06/13/22
Linda Michelle Watts v. David Wayne Suiter
W2021-00496-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Robert Samual Weiss

This appeal involves unmarried parties who jointly own real property together. After a two-day bench trial, the trial court divided the equity in the jointly owned property equally, stating that it could not “speculate” as to the parties’ agreements or “parse through” their relationship “to determine who paid what or who did what when.” The trial court also dismissed related tort claims and ordered one party to pay a share of the other’s attorney fees. We vacate in part, affirm in part, and remand for further proceedings.

Shelby County Court of Appeals 06/13/22
Joshua Clint Hopper v. Obion County School System
W2021-00805-COA-R9-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Clayburn Peeples

This is an interlocutory appeal from a personal injury case involving a minor who was struck in the eye by a mechanical pencil while attending an afterschool program. The trial court denied the school system’s motion for summary judgment. The trial court granted the school system permission to seek an interlocutory appeal. Thereafter, the school system filed its application for permission to appeal, which we granted. We reverse the decision of the trial court and remand for further proceedings consistent with this opinion.

Obion County Court of Appeals 06/13/22
Estate of Jennifer Diane Vickers v. Diversicare Leasing Corporation et al.
M2021-00894-COA-R3-CV
Authoring Judge: Middle Section Presiding Judge, Frank G. Clement, Jr.
Trial Court Judge: Judge Bonita Jo Atwood

A nursing home resident commenced this health care liability action after she had 18 teeth extracted, after which she suffered excessive bleeding. Before suing, the plaintiff’s daughter, acting as her mother’s attorney in fact, provided each prospective defendant with a form that purported to authorize the release of the plaintiff’s health information as required by Tennessee Code Annotated § 29-26-121(a)(1). Four months later, the plaintiff filed her complaint and a certificate of good faith as required by § 29-26-122(a). The defendants responded by moving to dismiss the complaint, arguing that the pre-suit authorizations were invalid because the daughter lacked the authority to make “health care decisions” for the plaintiff. The trial court denied the motions, finding the general power of attorney authorized the daughter to release the plaintiff’s medical records. After the plaintiff filed an amended complaint to add a claim for lack of informed consent, the defendants moved to dismiss all claims set forth in the amended complaint based on the plaintiff’s failure to file a new certificate of good faith. The plaintiff argued that a new certificate was unnecessary; nevertheless, she moved for an extension of time to comply. Following a hearing, the court found that a new certificate of good faith was required by § 29-26-122(a) because the amended complaint asserted a new claim. The court also denied the plaintiff’s motion for an extension of time to comply on the ground that the plaintiff failed to establish “extraordinary cause” to justify an extension. Based on these findings, the court granted the defendants’ motions to dismiss all claims. This appeal followed. We agree that a new certificate of good faith was required; however, we find that the trial court applied an incorrect legal standard to deny the motion for an extension of time in which to comply. This is because the standard applicable to a motion for an extension of time to comply is “good cause,” not “extraordinary cause,” and good cause is a less exacting standard than extraordinary cause. See Stovall v. UHS Lakeside,LLC, No. W2013-01504-COA-R9-CV, 2014 WL 2155345, at *12 (Tenn. Ct. App. Apr. 22, 2014) (citations omitted), overruled on other grounds by Davis ex rel. Davis v. Ibach, 465 S.W.3d 570 (Tenn. 2015). Accordingly, this issue, along with the trial court’s decision to dismiss the entire amended complaint, are vacated and remanded for further consideration by the trial court. As a result, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

Rutherford County Court of Appeals 06/13/22
State of Tennessee Ex Rel. Herbert H. Slatery, III, Attorney General and Reporter v. HRC Medical Centers, Inc. et al.
M2021-00488-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Senior Judge Don R. Ash

The State appeals the trial court’s holding that Tenn. Code Ann. § 66-8-101(1) applied to the State’s attempt to have the Defendants’ real estate sold in order to collect on its judgment, such that the statutory right of redemption could not be barred. Because we conclude that the sale sought by the State could proceed under subsection (2) of that statute, we vacate the court’s order and remand for further proceedings.

Davidson County Court of Appeals 06/10/22