COURT OF APPEALS OPINIONS

Janice Newman Krohn v. Kenneth B. Krohn
M2015-01280-COA-T10B-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This is a Tennessee Supreme Court Rule 10B interlocutory appeal as of right from the trial court’s denial of a motion for recusal. The appellant contends the trial judge should be disqualified on the ground of bias, which is evident from multiple rulings that were adverse to the appellant. Having reviewed the petition for recusal appeal, we affirm the trial court’s decision to deny the motion for recusal. 

Charles Grogan v. Daniel Uggla, et al.
M2014-01961-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge James G. Martin, III

This appeal concerns a home inspector’s liability for a guest’s injury following the collapse of a homeowner’s second-story deck railing.  The accident occurred just one month after the home inspection was performed.  In his report to the homeowner, the inspector noted that the deck flooring was warped but failed to report the improper construction of the deck railing.  The injured guest filed suit against the homeowner and the home inspector, among others.  The inspector moved for summary judgment.  The trial court granted summary judgment, finding that the inspector did not owe a legal duty to the guest.  We affirm.

Baxter Bailey Investments LLC v. APL Limited Inc.
W2015-00067-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Gina C. Higgins

Plaintiffs, a debt collection company and a motor carrier, filed suit in general sessions court against defendant to collect unpaid transportation and delivery charges. Defendant filed a motion for summary judgment and a motion for sanctions against plaintiffs, arguing that plaintiffs continued to pursue their claims despite knowledge that defendant was not the proper defendant. Plaintiffs eventually voluntarily nonsuited their claim; however, defendants pursued their motion for sanctions. The general sessions court ordered plaintiffs to pay defendants' attorney's fees as sanctions. Plaintiff appealed the award of sanctions to the circuit court, and the circuit court modified the amount of sanctions awarded, but otherwise affirmed the award. On appeal, we reverse, holding the general sessions court did not have the authority to impose attorney's fees as sanctions.

Dana Jo Stricklin v. Jerone Trent Stricklin
W2015-00538-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Daniel L. Smith

This appeal stems from a post-divorce modification proceeding that was commenced by Mother in order to modify the parties' permanent parenting schedule. Following a recess at trial, the parties announced that they had agreed to the terms of a new parenting plan. The agreed-upon terms were announced by the parties' counsel in the presence of the parties in open court. Following the entry of the order approving the modified parenting plan, Father stated that he did not consent to the parenting plan and moved to set the trial court's order aside. The trial court denied his motion. Because the trial court's order does not contain a finding that the modified parenting plan is in the child's best interests, we vacate and remand for further proceedings consistent with this Opinion.

Greg Grant v. The Commercial Appeal, et al.
W2015-00208-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert L. Childers

Plaintiff brought action for defamation and false light invasion of privacy based on an allegedly defamatory newspaper article published by defendant newspaper, reporter, editor, and publisher. Defendants moved to dismiss, claiming that liability was precluded based on the fair report privilege. Defendants also asserted that plaintiff failed to state a cause of action upon which relief may be granted because the article‘s statements were not capable of being defamatory. The trial court granted the motion to dismiss, finding that the article was not capable of defamation and that the fair report privilege applied. We reverse in part as to the determination that the fair report privilege applied; affirm in part as to the dismissal of the defamation and false light claims; and reverse in part as to the defamation by implication claims.

In re: Estate of Teffany Teresa Love
W2014-02507-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Christy R. Little

This case involves a dispute over the name inscribed on the decedent's headstone. The decedents surviving husband and her two adult children had the decedent's headstone inscribed to include her alleged biological father's surname. Appellant, the decedent's adoptive father, brought a petition to replace the headstone selected by the appellees. The appellees moved for judgment on the pleadings. The trial court concluded that the appellant did not have standing to challenge the name on the decedent's headstone selected by the surviving spouse and granted the appellees' motion. We interpret Tennessee Code Annotated Section 62-5-703 to grant the decedent's surviving spouse the right to control the inscription on the decedent's headstone as part of the right of disposition.

Billy Bockelman,et al v. GGNSC Gallatin
M2014-02371-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joe Thompson

This appeal concerns the enforceability of an arbitration agreement signed by a patient’s health care agent in conjunction with the patient’s admission to a nursing home. Within a few months of having been declared to lack capacity, the patient was placed in a nursing home. The agent completed all admission forms and contracts, including an optional, stand-alone arbitration agreement, on the patient’s behalf. After the patient’s death, the agent sued the nursing home for negligence, violations of the Tennessee Adult Protection Act, breach of contractual duties, and alternatively, medical malpractice. The nursing home moved to compel arbitration, and the trial court granted the motion. On appeal from the order compelling arbitration, the agent claims she lacked authority to sign the arbitration agreement because, at the time of admission, the patient was competent to make her own decisions. Even if the patient lacked capacity, the agent argues that the decision to enter into the arbitration agreement was not a “health care decision.” The agent also argues that the arbitration agreement was unconscionable. We affirm the order compelling arbitration.

Bill Bivens v. Randy Dwaine White et al.
E2014-02251-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Senior Judge Don R. Ash

This appeal involves an incumbent candidate's attempt to challenge the election for the office of Sheriff of Monroe County based upon the ineligibility of the other candidate. The incumbent candidate sought to claim the office or void the election. The trial court voided the election following a bench trial. This appeal followed. We affirm.

Carlton C. Holder v. Victor P. Serodino, III, et al.
M2014-00533-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Jeffrey F. Stewart

This appeal arises from a dispute over an easement for a private airstrip. The original owner of the land sub-divided it into six tracts, with the plan of selling them to buyers interested in purchasing property with access to the airstrip. Three of the tracts were sold to Appellant and one was purchased by Appellee. After unsuccessful efforts to sell portions of their land holdings, the original owner and Appellant executed and recorded a purported abandonment of the easement. Upon discovering that the purchasers of the final two tracts sold by the original owner were building fences across the airstrip, Appellee brought suit seeking to assert his easement rights, among other claims. The trial court found that an express and, in the alternative, implied easement for the airstrip had been created. However, because the purchasers of the two tracts had been informed that the easement was abandoned, the court terminated the easement where it crossed those two tracts. In addition, the trial court found that the original owner and Appellant had committed the tort of libel of title in executing and recording an abandonment of easement without joining Appellee as a party to the agreement. We affirm in part, reverse in part, and remand for further proceedings.

Nathaniel Batts v. Antwan L. Cody, et al.
M2015-00070-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Robert E. Corley, III

This appeal arises from the trial court’s grant of a motion for partial summary judgment as a result of the defendant’s failure to file a proper response. The defendant appeals. We reverse.  

In re The Estate of Doyle I. Dukes
E2014-01966-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge John McAfee

Doyle E. Dukes (“Doyle E.”) filed a petition for letters testamentary in the Chancery Court for Union County seeking to have the Last Will and Testament (“the Will”) of Doyle I. Dukes (“Deceased”) admitted to probate. Melbia Cooke (“Melbia”), Mary Lou Anderson (“Mary Lou”), and Ruth Jerline Hickey filed a complaint to contest the Will. The case was transferred from the Chancery Court for Union County to the Circuit Court for Union County (“the Trial Court”). After a bench trial, the Trial Court entered its order on September 19, 2014 finding and holding, inter alia, that a confidential relationship existed between Deceased and Doyle E., that the Will was invalid as the product of undue influence, and that Deceased died intestate. Doyle E. appeals to this Court raising issues regarding whether the Trial Court erred in finding a confidential relationship and whether the Trial Court erred in finding undue influence. We find and hold that the evidence in the record on appeal does not preponderate against the Trial Court’s findings, and we affirm.

Keith Patterson, et al v. Shelter Mutual Insurance Company
M2014-01675-COA-R9-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Robert E. Corlew, III

This is an action by homeowners against the insurance company that provided their homeowners’ insurance coverage. At issue is whether the insurer violated Tenn. Code Ann. § 56-7-130(b) (2006) by failing to make available coverage for insurable sinkhole losses and whether the physical damage to the home was caused by “sinkhole activity.”
When the insurer denied coverage, Plaintiffs commenced this action alleging, inter alia, that the insurer breached the policy and acted in bad faith when it refused to pay their claim. Plaintiffs also sought to hold the insurer liable for violating Tenn. Code Ann. § 56 7 130(b) because the insurer did not notify Plaintiffs that sinkhole coverage was an available option. At the time of the occurrence, the statute stated: “Every insurer offering homeowner property insurance in this state shall make available coverage for insurable sinkhole losses on any dwelling, including contents of personal property contained in the dwelling, to the extent provided in the policy to which the sinkhole coverage attaches.” Tenn. Code Ann. § 56-7-130(b) (emphasis added). It is undisputed that the insurer did not notify Plaintiffs that sinkhole coverage was available. The insurer filed a motion for summary judgment contending that Tenn. Code Ann. § 56-7-130 did not require it to notify Plaintiffs that sinkhole coverage was an available option. The insurer also denied the factual assertion that sinkhole activity caused the loss and asserted that it was not liable because, if sinkhole activity caused the damage, the policy contained an exclusion for such an occurrence. Plaintiffs filed a cross-motion for summary judgment, arguing that they were entitled to a judgment that the insurer had violated Tenn. Code Ann. § 56 7 130 and that their insurance policy did not exclude coverage for the damage to their home. The trial court granted Plaintiffs’ motion with respect to Tenn. Code Ann. § 56-7-130, concluding it was undisputed that the insurer “did nothing to make the Plaintiffs aware of the sinkhole endorsement and, therefore, did not meet the requirements of [Tenn. Code Ann. § 56-7-130].” The trial court denied summary judgment on all remaining issues concluding that material facts were disputed concerning the cause of the damage to Plaintiffs’ home. On appeal, we reverse the grant of summary judgment to Plaintiffs based on Tenn. Code Ann. § 56-7-130 and remand with instructions to grant summary judgment to the insurer on that issue because the statutory language, “make available,” does not require insurers to give notice that sinkhole coverage is available. We affirm the trial court’s denial of summary judgment concerning whether the loss at issue is excluded from coverage because, as the trial court correctly found, material facts are in dispute.
 

In Re Brayden S.
M2014-02241-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Phillip A. Maxey

This case stems from a proceeding in which the parental rights of the parents of a two year old child were terminated due to severe physical abuse of the child and upon the court’s finding that termination would be in the child’s best interest. Mother appeals the holding that termination of her rights was in the best interest and the court’s admission of the testimony of one witness. Finding no error, we affirm the judgment of the trial court.
 

In re Estate of Warren Elrod
E2014-02205-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor John C. Rambo

This appeal involves a non-probate asset, an individual retirement account. The decedent’s listed beneficiary on the asset predeceased him. The biological son of the decedent moved to collect the proceeds of the asset as the sole heir at law. Two stepchildren sought to be declared the decedent’s “children” in order that they might share in the account with the biological son. The decedent’s will provided for all three individuals to share equally in his real and personal property. The probate court found the term “children” in the retirement account agreement was ambiguous and determined the decedent considered all three individuals to be his “children.” Accordingly, the court ordered that the asset should be distributed equally to Sherry Diane Souder, Terry Ray Palmer, and Gregory Lynn Elrod as “children” of the decedent. The biological son appeals. We affirm.

Treavor E. Warren v. Margie H. Warren
E2015-00471-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor John C. Rambo

The Final Decree of Divorce from which the pro se incarcerated appellant, Treavor E. Warren, seeks to appeal was entered on December 19, 2014. The Notice of Appeal was not timely filed even if the date affixed to the Notice by the appellant (January 30, 2015) is considered. See Tenn. R. App. P. 20(g). Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

In Re Brittany D.
M2015-00179-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge John P. Hudson

In this termination of parental rights case, the minor child was taken into custody by the Tennessee Department of Children’s Services (“DCS”) in February 2014 shortly after Mother’s return to jail following the child’s birth during a furlough. In June 2014, DCS filed a petition to terminate Mother’s parental rights alleging that she was mentally incompetent to parent the child under Tennessee Code Annotated § 36-1-113(g)(8) and that she had abandoned the child pursuant to Tennessee Code Annotated § 36-1-113(g)(1) and Tennessee Code Annotated § 36-1-102(1)(A)(iv). Following a trial, the trial court terminated Mother’s parental rights upon both grounds pled by DCS. Although on appeal we conclude that the abandonment ground was not proven by clear and convincing evidence, we affirm the trial court’s judgment in all other respects.

In re: Kelsey L., et al.
M2014-02416-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Donna Scott Davenport

The Juvenile Court for Rutherford County (“the Juvenile Court”) terminated the parental rights of Joshua L. (“Father”) to the minor children Kelsey L. and Karlie L. (“the Children”) after finding and holding that grounds to terminate had been proven by clear and convincing evidence and that it also had been proven by clear and convincing evidence that the termination was in the Children’s best interest. Father appeals the termination of his parental rights to the Children raising a single issue regarding the Juvenile Court’s finding as to best interest. We find and hold that the evidence does not preponderate against the Juvenile Court’s findings made by clear and convincing evidence that grounds existed to terminate Father’s parental rights to the Children and that it was in the Children’s best interest for Father’s parental rights to be terminated. We, therefore, affirm. 

Virginia H. Sanders v. Commissioner of Department of Labor and Workforce Development, et al.
W2015-00796-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Oscar C. Carr, III

Appellant employee appeals from the denial of her claim for unemployment compensation. Because there is substantial and material evidence in the record to establish that the employee was discharged for work-related misconduct, we affirm.

Heather Russell Wilder v. Joseph Chamblee Wilder
E2014-02227-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge John D. McAfee

This appeal involves post-divorce child support matters. Heather Russell Wilder (“Mother”) filed a petition in the Fourth Circuit Court for Knox County (“the Trial Court”) for modification of child support against Joseph Chamblee Wilder (“Father”). Mother later alleged that Father had fraudulently misstated his true income, and that he owed more in support towards the parties' three children (“the Children”) than had been ordered. The Trial Court adopted the Magistrate's findings and recommendations and held that Mother could not obtain Rule 60 relief on her fraud claim as time had expired. Mother appeals to this Court raising a number of issues. We affirm the Trial Court.

Kimberly Urban v. Robin Nichols, individually and d/b/a Willow Brook Lodge
E2014-00907-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Rex H. Ogle

This is a negligence action. The plaintiff sustained injuries to her foot and heel while attempting to use a water slide on the defendants’ property. The plaintiff filed suit against the defendants exactly one year after her injury. The complaint, filed against “Robin Nichols and Willow Brook Lodge,” failed to include the proper name of the company, which is “Accommodations by Willow Brook Lodge, LLC.” Approximately fifteen days after filing the complaint, instead of serving Robin Nichols, the plaintiff served her son, Grant Nichols. The defendants’ answer made the errors known, but the plaintiff’s counsel was dilatory in filing a motion to amend. Upon the defendants filing a motion for summary judgment claiming that the suit was barred by the statute of limitations, the trial court granted the motion. We affirm the decision of the trial court.

Joshua Timothy Canada v. Tonya Marie Canada
W2014-02005-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Tony Childress

This post-divorce appeal arises from the trial court's denial of Father's petition to modify custody. Following a one-day trial, the court found that Father failed to demonstrate a sufficient material change in circumstances and denied his petition. We affirm.

In re: Conservatorship of Horace Duke
M2015-00023-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Laurence M. McMillan, Jr.

Conservator appealed the trial court’s order adopting the special master’s report. We find merit in the conservator’s argument that the trial court was required to hold a hearing before acting on the special master’s report. As we are unable to ascertain from the record whether a hearing was held, we vacate and remand for a determination of whether a hearing was held by the trial court. If no hearing was held, the trial court must hold a hearing on the special master’s report in accordance with Tenn. R. Civ. P. 53.04(2).

Timothy R. Parsons v. Wilson County, Tennessee
M2014-00521-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge John D. Wootten, Jr.

Inmate at Wilson County jail, who fell from top bunk bed and injured his shoulder, sued the County under the Governmental Tort Liability Act for failing to assign him to a bottom bunk or provide him with a ladder to access the top bunk. Following a trial, the court held that the bunk assignment was a discretionary function, and consequently, the County was immune from suit; that the county owed no duty to provide a bottom bunk, and that the inmate was more than 50 percent at fault for his injuries. We reverse the trial court’s ruling that the County was immune and the court’s consideration of comparative fault; determining that the County was not negligent, we affirm the judgment in favor of the County.

Corey Alan Bennett v. State of Tennessee
W2015-00442-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Joe H. Walker, III

The notice of appeal was not timely filed and therefore, this appeal must be dismissed for lack of jurisdiction.

In re Estate of Linda Quasnitschka Kirbus
E2014-02091-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Jerri S. Bryant

This is an estate case involving the division of two properties used as collateral to secure a commercial note. When the decedent‟s beneficiaries sought to partition the properties, her former husband objected, asserting that he assumed sole ownership of the properties by fulfilling the note with proceeds from the decedent's life insurance policies. Following a hearing, the trial court found that the beneficiaries were entitled to a 70 percent share of the properties. The former husband appeals. We affirm the decision of the trial court as modified.