Court of Appeals Opinions

Format: 07/02/2020
Format: 07/02/2020
In Re Jaxon W. H.
E2019-01836-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Douglas T. Jenkins

A father appeals the trial court’s decision terminating his parental rights on the grounds of abandonment by failure to support and failure to visit. Finding clear and convincing evidence to support both grounds and that termination of the father’s parental rights is in the child’s best interest, we affirm the trial court’s decision.

Hamblen County Court of Appeals 07/02/20
Sinan Gider v. Lydia Hubbell
M2018-01941-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Sheila Calloway

The mother of an eight-year-old child petitioned to have the primary residential parent designation changed from the father to herself. The juvenile court found she failed to show that a material change of circumstance warranted such a change, and she appealed. We affirm the juvenile court’s judgment.

Davidson County Court of Appeals 07/01/20
In Re Easton W.
E2018-01883-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert D. Philyaw

This consolidated appeal concerns a father’s action, filed pro se, to be granted custody of his child, or, in the alternative, reasonable visitation without the requirement of paying child support. Following a series of hearings in juvenile court, the father was named the primary residential parent, a permanent parenting plan was adopted, and the child support proceedings were assigned a separate docket number to be handled by Maximus/Child Support Services. Because the action was originally yet mistakenly filed as a dependency and neglect action by the father, the mother appealed the juvenile court’s decision to circuit court. On the father’s motion to alter or amend, the juvenile court struck the dependency and neglect language from its order, and the circuit court then dismissed the action for lack of subject matter jurisdiction. We affirm the juvenile court’s decision in decreeing this matter a paternity and visitation action, and we find that the circuit court correctly held that it lacked subject matter jurisdiction over the appeal.

Hamilton County Court of Appeals 07/01/20
Leo Landry, Et Al. v. Sumner County Board of Education
M2019-01696-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Joe H. Thompson

This is a negligence case arising out of an injury suffered by a middle school student when a chair fell on his finger in his school’s lunchroom. The trial court determined that summary judgment was warranted as a matter of law because there was insufficient evidence to demonstrate that a dangerous condition existed and because the incident was not foreseeable.  We conclude that there is no dispute of material fact and that summary judgment in favor of the school district was properly granted; accordingly, we affirm.

Sumner County Court of Appeals 06/30/20
In Re: Lachlan B., Et Al.
E2019-01698-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge Robert D. Arnold

This appeal concerns the trial court’s decision to change the non-marital children’s surname from that of the mother to the father. We vacate the trial court’s decision and remand for findings of fact to facilitate appellate review.

Washington County Court of Appeals 06/30/20
Lois Irene Davis, Et Al. v. 3M Company, Et Al.
M2018-02029-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Senior Judge Robert E. Lee Davies

In this wrongful death action, the plaintiff, the decedent’s spouse, asserted claims against multiple defendants. The plaintiff settled with all but one of the defendants prior to trial, and the settling defendants were dismissed from the case. At trial, the sole remaining defendant asserted the comparative fault of the decedent and the settling defendants. The jury assigned percentages of fault to the decedent, the defendant, and the settling defendants but returned a verdict in favor of the plaintiff. The jury found noneconomic damages that, when reduced by the percentage of the decedent’s fault, exceeded the statutory cap. So the trial court entered a judgment against the defendant based on its percentage fault as applied to the statutory cap. On appeal, the plaintiff argues that the statutory cap was incorrectly applied. We affirm.

Maury County Court of Appeals 06/30/20
DANA MARLENE PAGLIARA v. TIMOTHY J. PAGLIARA
M2019-01397-COA-R9-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Deanna B. Johnson

This interlocutory appeal arises from a pending divorce action. During discovery, the husband sought certain communications between the wife and her attorneys. During some of these meetings between the wife and her attorneys, a third party was present during discussions of whether the wife should report conduct by the husband to law enforcement. The wife could not identify which of the meetings the third party had been present and which she had not. Because the wife did not meet her burden of proof in demonstrating that attorney-client privilege applied to the communications, we affirm the judgment of the Trial Court.

Williamson County Court of Appeals 06/29/20
Greg Calfee Builders LLC v. Neill Magee and Diane Magee
E2019-00905-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jerri S. Bryant

This appeal concerns an alleged breach of contract. Greg Calfee (“Mr. Calfee”), on behalf of Greg Calfee Builders LLC (“GCB”), and Neill MaGee (“Mr. MaGee”) signed an agreement (“the Contract”) whereby GCB would custom-build a home for Mr. MaGee and his wife, Diane MaGee (“the MaGees,” collectively). Mr. MaGee, citing a number of construction defects, later terminated GCB from the job and told Mr. Calfee that GCB could not come back despite GCB’s willingness and offer to correct the defects. GCB sued the MaGees in the Chancery Court for Bradley County (“the Trial Court”) seeking to recover money it alleged was still owed to it. Mr. MaGee filed a counterclaim. GCB filed a motion for summary judgment, which the Trial Court granted. The MaGees appeal. We find and hold, inter alia, that under both Tennessee caselaw and the Contract, Mr. MaGee was required to give GCB notice and a reasonable opportunity to cure the defects, yet he failed to do so. GCB is entitled to judgment as a matter of law. We affirm.

Bradley County Court of Appeals 06/29/20
In Re Zaliyah S. et al.
M2019-01241-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Philip E. Smith

This is a dependency and neglect case focusing on twin siblings (collectively, “the Twins”), who are the minor children of Tamika S. (“Mother”). The Twins were taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) upon an investigation prompted by a referral that Mother had given birth to the Twins after she had previously lost custody of one of her other children due to nutritional and medical neglect. Following Mother’s refusal to comply with DCS’s request to perform a health check on the Twins, DCS filed a petition for custody and emergency removal. The Juvenile Court for Davidson County (“juvenile court”) conducted a hearing and adjudicated the Twins dependent and neglected upon its finding that Mother had committed severe child abuse. The juvenile court awarded DCS legal and physical custody of the Twins. Mother appealed to the Circuit Court for Davidson County (“trial court”), which, following a de novo trial, issued a final order determining that Mother had perpetrated severe child abuse upon the Twins while they were in her care. Consequently, the trial court adjudicated the Twins dependent and neglected. The trial court ordered that it would be in the Twins’ best interest to remain in DCS custody. Mother has appealed. Discerning no reversible error, we affirm.

Davidson County Court of Appeals 06/26/20
In re Khrystchan D.
M2018-01107-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Shelia Calloway

In this appeal from Juvenile Court, the Mother of the parties’ child appeals the order holding her in criminal contempt for failing to present the child for Father to exercise parenting time and the order changing the child’s surname to that of the Father; the Father appeals the designation of Mother as primary residential parent. Upon a thorough review of the record, we affirm the judgment holding Mother in contempt and designating Mother as primary residential parent; we vacate the judgment changing the child’s surname and remand the case for the court to make specific findings as to whether the name change is in the child’s best interest.

Davidson County Court of Appeals 06/26/20
Anthony D. Herron v. State of Tennessee
W2020-00776-COA-T10B-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Commissioner James A. Hamilton, II

This is an accelerated interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B, from the trial court’s denial of a motion for recusal. Having reviewed the petition for recusal appeal, pursuant to the de novo standard as required under Rule 10B,
§ 2.01, we affirm the claims commissioner’s decision to deny the motion for recusal.

Court of Appeals 06/25/20
In re Shyanne H. et al.
M2019-02127-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Sharon Guffee

This is a termination of parental rights case brought by the Tennessee Department of Children’s Services. The juvenile court terminated the parental rights of the mother and the father on the grounds of persistence of conditions and severe child abuse, pursuant to Tennessee Code Annotated sections 36-1-113(g)(3) and 36-1-113(g)(4), respectively. The juvenile court also terminated the father’s parental rights on the additional ground of severe child abuse pursuant to Tennessee Code Annotated section 36-1-113(g)(5). The Mother appealed the grounds for termination as well as the juvenile court’s finding that termination was in the children’s best interests, while the father only appealed the juvenile court’s best interests finding. Discerning no reversible error, we affirm.

Williamson County Court of Appeals 06/25/20
In Re Estate of Doris Marie Sublett Dorning
M2020-00787-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Michael E. Spitzer

A Tennessee Supreme Court Rule 10B petition for recusal appeal was filed in this Court following the trial court’s denial of a motion for recusal. For the reasons stated herein, we affirm the trial court’s denial of the motion.

Lewis County Court of Appeals 06/25/20
James V. Holleman v. Barbara J. Holleman
E2019-02163-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

This is the second appeal of this case. In Holleman v. Holleman, No. E2018-00451- COA-R3-CV, 2019 WL 2308066 (Tenn. Ct. App. May 30, 2019), this Court remanded the case to the trial court for the sole purpose of determining the amount of Husband’s reasonable attorney’s fees and expenses under the parties’ Marital Dissolution Agreement. On remand, Appellee/Husband provided an attorney affidavit and timesheets to support his request for $11,260.00 in fees. Appellant/Wife provided no evidence to dispute the amount, and the trial court entered judgment for Husband for the full amount. Wife contends that she did not receive proper notice of the hearing on Husband’s motion and further contends that the trial court erred in awarding Husband his attorney’s fees and expenses. Discerning no error, we affirm.

Knox County Court of Appeals 06/25/20
Janet Tidwell v. Holston Methodist Federal Credit Union, et al.
E2019-01111-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kristi M. Davis

Former CEO brought an action for libel, false light invasion of privacy, and retaliatory discharge pursuant to the Tennessee Public Protection Act. In this appeal from the trial court’s dismissal of the amended complaint pursuant to Tennessee Rule of Civil Procedure 12.02(6), we affirm the trial court.

Knox County Court of Appeals 06/25/20
Thomas Robert Blakemore v. Lynn Ann Blakemore
W2018-01391-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Carma Dennis McGee

This divorce action concerns the trial court’s division of the marital estate, calculation of child support, and its denial of alimony and attorney fees. We affirm in part, vacate in part, and remand for proceedings consistent with this opinion.

Henry County Court of Appeals 06/25/20
In Re Conservatorship of John Martin Muldoon
E2019-01621-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Larry Michael Warner

This appeal arises from a petition to appoint a conservator under Tennessee Code Annotated section 34-1-121. The petitioner/wife was originally appointed as conservator of respondent/husband in October 2018. Thereafter, the parties could not agree on an appropriate Statement of Evidence. The trial court ordered a new hearing so a court reporter could be present to provide a Transcript of Evidence. The respondent filed an appeal to this Court, which was dismissed for lack of appellate jurisdiction due to the non-final order. A new hearing took place in July 2019. The trial court found petitioner met her burden under Tennessee Code Annotated sections 34-1-101(7) and 34-1-126 and appointed the petitioner as conservator over the respondent’s person and property. The respondent appealed.

Cumberland County Court of Appeals 06/25/20
Anthea Hendrix Toutges v. Jennifer McKaig
E2019-01538-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor M. Nichole Cantrell

The Notice of Appeal filed by the appellant, Anthea Hendrix Toutges, stated that the appellant was appealing the judgment entered on August 19, 2019. As the August 19, 2019 order does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

Anderson County Court of Appeals 06/25/20
Kayla Rawson v. William A. Monroe
M2019-00472-COA-R3-JV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Donna Scott Davenport

This case involves modification of a permanent parenting plan. The father has appealed, arguing that the trial court’s order does not contain a sufficient best interest analysis or the requisite factual findings to support its decision. We have concluded that the order contains sufficient factual findings and the required best interest analysis. The father did not provide a transcript or statement of the evidence presented before the trial court that would enable us to review the evidentiary basis for the trial court’s findings. As such, we must affirm the decision of the juvenile court. We grant Mother’s request for an award of attorney’s fees on appeal.

Rutherford County Court of Appeals 06/24/20
Steven Sudbury v. Sumner County Regional Airport Authority
M2019-01322-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Judge Kathryn Wall Olita

The plaintiff filed this action against his employer for breach of contract by failing to provide the plaintiff with severance pay after the employer terminated the contract without cause. The trial court granted summary judgment to the plaintiff, determining that it was undisputed that the plaintiff was terminated without cause, which entitled him to severance pay pursuant to the employment contract. On appeal, the defendant argues that a genuine issue of material fact exists and that the trial court erred in granting the plaintiff’s motion for summary judgment by failing to conduct an objective inquiry as to whether cause was present to terminate the plaintiff’s employment. We affirm the judgment of the trial court.

Sumner County Court of Appeals 06/24/20
JENNIFER BLAIR DEMATTEO TURK v. MICHAEL JOSEPH TURK, JR.
M2019-00869-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge J. Mark Rogers

This divorce action concerns the trial court’s setting of the residential schedule and calculation of child support. We affirm the trial court’s judgment on both issues and also deny the competing requests for attorney fees on appeal.

Rutherford County Court of Appeals 06/24/20
Geneva Jessica Day v. Beaver Hollow L.P., Et Al.
E2019-01266-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jean A. Stanley

This appeal concerns a jury verdict in a slip and fall case. Geneva Jessica Day (“Plaintiff”), a resident of Beaver Hollow Apartments (“the Apartments”), sued Beaver Hollow L.P. (“BHLP”), which owned the Apartments, as well as Olympia Management, Inc. (“Olympia”) (“Defendants,” collectively), the entity BHLP contracted with to manage the Apartments, in the Circuit Court for Washington County (“the Trial Court”). Plaintiff was injured when she slipped on ice and snow in the Apartments’ parking lot. The jury allocated 49% of the fault to Plaintiff, 50% to Olympia, and 1% to BHLP. Defendants appeal. Defendants argue, among other things, that no material evidence supports the jury’s allocation of fault to BHLP. After a careful review of the record, we find no material evidence to support the jury’s verdict regarding BHLP, which exercised no actual control of the premises whatsoever. The Trial Court erred in denying Defendants’ motion for a directed verdict with respect to BHLP. As we may not reallocate fault, we vacate the judgment of the Trial Court, and remand for a new trial.

Washington County Court of Appeals 06/22/20
Ski Chalet Village Owners Club, Inc. v. Richard Pate Et Al.
E2019-00982-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert E. Lee Davies

Following a jury trial in the underlying contract action and upon a verdict finding misrepresentation/concealment, the trial court entered a monetary judgment in favor of the plaintiff, Ski Chalet Village Owners Club, Inc. (“Ski Chalet”), and against the defendants, Richard Pate and Clint Bowman d/b/a P&B Construction & Remodeling, and J. Ron Dillmon, jointly and severally, in the amount of $166,401.26 for compensatory damages plus $190,000.00 in punitive damages.1 The trial court also awarded to Ski Chalet a $1,000.00 judgment against Mr. Dillmon on a separate claim of defamation. Upon Mr. Dillmon’s subsequent pro se motion, the trial court denied his request for a new trial, finding, inter alia, that Mr. Dillmon had failed to meet his burden of providing a valid excuse for his failure to appear at trial, failed to file any pleadings stating the reason for his failure to appear, and refused to testify under oath when given an opportunity to explain his failure to appear. In addition, the trial court found that an affidavit executed by a physician who had treated Mr. Dillmon, which Mr. Dillmon had filed with his motion for a new trial, did not sufficiently support a valid reason for Mr. Dillmon’s failure to appear. The trial court subsequently denied a motion filed by Mr. Dillmon for production of the trial transcript. Concerning a motion for the trial court judge’s recusal and a motion for contempt against opposing counsel filed by Mr. Dillmon after he had filed a notice of appeal, the trial court entered an order finding that it did not have subject matter jurisdiction to consider either motion. Mr. Dillmon has appealed. Discerning no reversible error, we affirm. Upon an issue raised by Ski Chalet, we decline to find the appeal frivolous and deny Ski Chalet’s request for attorney’s fees and expenses on appeal.

Sevier County Court of Appeals 06/19/20
Kenneth K. Altom, Jr. Et Al. v. Capital Resorts Group, LLC Et Al.
E2019-00739-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor John F. Weaver

This is an appeal from an order denying the defendants’ motions seeking to compel the parties to participate in mandatory arbitration. The trial court denied the motions to compel arbitration with respect to “the issue of the unconscionability of the precise agreement to arbitrate or delegation to arbitration” and “the issue of cancellation of the purchase agreements,” finding that such issues presented questions for the court rather than an arbitrator. The trial court also determined that the defendants had not waived their right to arbitration. The defendants timely appealed. Discerning no reversible error, we affirm the trial court’s judgment.

Knox County Court of Appeals 06/19/20
In Re Johnathan T. Et Al.
E2019-01398-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Amanda Sammons

Jodie T. (“Mother”) appeals the termination of her parental rights to the minor children, Johnathan T., Jaylynn T., Jayla T., Johnna T., and Jaydan T. (collectively, “the Children”). In January 2019, the Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate Mother’s rights to the Children in the Campbell County Juvenile Court (“Juvenile Court”). Following a hearing in June 2019, the Juvenile Court terminated Mother’s parental rights after finding that DCS had proven the statutory ground of substantial noncompliance with the permanency plans and that termination of Mother’s parental rights was in the Children’s best interest. Mother timely appealed. Discerning no reversible error, we affirm.

Campbell County Court of Appeals 06/18/20