In Re: Jonathan S. C-B.
This is the second appeal in an ongoing custody dispute. Mother was initially designated primary residential parent of the child. Later, Father filed a petition alleging Mother was interfering with his parenting time and trying to turn the child against him. Mother then alleged Father was abusing their child, which allegations were determined to be unfounded. During that litigation, Father successfully demonstrated a material change in circumstances and became the primary residential parent; following that award, Mother filed the first appeal and this court affirmed the trial court’s ruling. The present appeal arises from Father’s petition requesting a modification of the parenting plan and to, inter alia, suspend Mother’s parenting time; subsequently,Mother filed her counter-petition requesting, inter alia, change of custody, along with renewed allegations that Father was physically and sexually abusing their child.The trial court dismissed Mother’s counter-petition and granted in part and denied in part Father’s petition. Mother appeals contending the trial court erred in dismissing her counter-petition; she also contends the trial court erred in excluding rebuttal testimony from her expert witnesses. Father appeals contending the award of attorney’s fees and expenses was inadequate; he also contends this appeal is frivolous and that he should be awarded damages. We affirm the trial court in all aspects and, although we do not find Mother’s appeal frivolous, we find Father is entitled to recover, pursuant to Tennessee Code Annotated § 36-5-103(c), his reasonable and necessary attorney’s fees and expenses incurred on appeal because this action involves custody of the parties’ child. |
Davidson | Court of Appeals | |
Anna Lois Long v. Sammy Lee Brown
Anna Lois Long (“petitioner”) obtained an ex parte order of protection against Sammy Lee Brown (“respondent”), the man with whom she had lived for approximately 27 years. Following a hearing, the trial court entered a mutual order of protection for a period of one year. Petitioner argues on appeal that the trial court erred in making the order of protection mutual and that the order was unlawful because it did not comport with the requirements of the governing statutory scheme, Tenn. Code Ann. § 36-3-601 et seq. (2010). We hold that the trial court erred when it made the order of protection mutual in view of the fact the respondent did not seek an order of protection. The order should be modified so as to be directed only against respondent. We further hold that the trial court’s order should also be modified to include “the statement of the maximum penalty that may be imposed pursuant to § 36-3-610 for violating [the] order” as required by Tenn. Code Ann. § 36-3-606(c). We conclude that the court’s order in all other respects satisfies the statutory requirements governing an order of protection. Accordingly, we affirm the trial court’s judgment as modified. |
Hamilton | Court of Appeals | |
Laurence R. Dry v. Christi Lenay Fields Steele, et al
The plaintiff, a licensed attorney, filed this pro se third party action two weeks before his death on May 17, 2012. The defendants filed a suggestion of death under Tenn. R. Civ. P. 25.01. When no motion for substitution was filed during the prescribed time period, the defendants filed a motion to dismiss. At the hearing on the motion, the decedent’s surviving spouse, who had practiced law with him, appeared by telephone and informed the trial court that she was not a party and was not representing the decedent or his estate with respect to the plaintiff’s third party complaint. Despite these representations, she asserted that the court should hear her argument as to why her late husband’s action should not be dismissed. The trial court dismissed the action for failure to timely seek substitution of party, and also granted defendants’ motion for judgment on the pleadings. The surviving spouse filed a notice of appeal. We hold that the defendants provided proper notice under Rule 25.01 by mailing a copy of the suggestion of death to the law firm address of decedent and his surviving spouse. We further hold that decedent’s surviving spouse did not have standing to file this appeal because (1) she was not a party, (2) did not represent her decedent husband, and (3) did not represent his estate, which had not been opened when the trial court entered its final judgment. We affirm the judgment of the trial court and dismiss this appeal. |
Anderson | Court of Appeals | |
In Re: E.K. et al
D.K., Sr., (“Father”) appeals the termination of his rights to his three minor daughters E.K., H.K., and H.K. (collectively, “the Children”). The Department of Children’s Services (“DCS”) had a history of involvement with Father, the Children, and another older minor child, D.K., Jr.2 In 2007, all four children were taken into protective custody following an incident of domestic violence between Father and his then-wife, C.K. (“Stepmother”). In the earlier matter, custody of the four children was awarded to Stepmother; Father was allowed supervised visitation. In 2012, the Children were placed in the protective custody of DCS following allegations of physical and psychological abuse by Stepmother. Father was not a placement option because of “ongoing Juvenile Court matters” concerning D.K. Jr. as well as a lack of space in his home. Stepmother waived her right to a hearing and the Children were adjudicated dependent and neglected by an agreed order. They entered DCS custody and were placed in foster care.3 A year later, DCS initiated termination proceedings. |
Monroe | Court of Appeals | |
In Re: S.J.W. et al
T.R.D. (“Mother”) and S.M.W. (“Father”) appeal the termination of their rights to four minor children, S.J.W., B.H.D., J.E.W., and J.C.D. (“the Children”). The Department of Children’s Services (“DCS”) had been involved with the family since 2006. DCS received multiple referrals regarding environmental neglect and lack of proper care of the Children. DCS made efforts to assist the parents in providing the Children with suitable housing and basic physical and medical care. In August 2010, DCS received another referral alleging environmental, medical, and nutritional neglect. New services were provided without substantial improvement. In October 2010, the Children were removed from the parents’ home and taken into temporary, protective custody. The following month, they were adjudicated dependent and neglected and placed in foster care. A year later, DCS filed a petition to terminate the parents’ rights. Following a bench trial, the court found, by clear and convincing evidence, that multiple grounds for termination exist as to both parents and that termination is in the Children’s best interest. Both Mother and Father appeal. We affirm. |
Sullivan | Court of Appeals | |
William Paul Luttrell v. Beverly Parker Luttrell
In this divorce action, the trial court awarded Wife an absolute divorce, classified and distributed the marital property, and ordered Husband to make child support payments of $1,112 per month. Husband appealed. We affirm the judgment of the trial court. |
Shelby | Court of Appeals | |
Beverly Beal, et al. v. Benton County, et al.
This case results from a county employee’s assertion that the county’s decision to require some employees to contribute to their insurance premiums, while not requiring a contribution from others, violates equal protection. The trial court granted summary judgment to the county, concluding that the legislation was rationally related to a legitimate government interest. After a thorough review of the record, we affirm and remand. |
Benton | Court of Appeals | |
In Re: Jocilyn M.P.
In August of 2012, Chloe S.K. (“Mother”) and Timothy A.K. (“Step-father”) filed a petition seeking to terminate the parental rights of Joshua A.P. (“Father”) to the minor child Jocilyn M.P. (“the Child”) and to allow Step-father to adopt the Child. After a trial, the Trial Court entered its Final Order Terminating Parental Rights on August 19, 2013 terminating Father’s parental rights to the Child after finding and holding, inter alia, that clear and convincing evidence existed of grounds to terminate Father’s parental rights to the Child pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102 (1)(A)(iv) for both willful failure to support and for wanton disregard, and that clear and convincing evidence was proven that it was in the Child’s best interest for Father’s parental rights to be terminated. Father appeals the termination of his parental rights. We affirm the termination of Father’s parental rights to the Child. |
Knox | Court of Appeals | |
Teresa Vincent v. Jerry S. Johnston, Sr.
This boundary line dispute involves a five-acre parcel of real property (“Disputed Property”) in McMinn County to which the petitioner and respondent, who own adjoining parcels, both claim ownership. The petitioner filed a petition to quiet title, requesting that she be declared the owner of the Disputed Property, and for declaratory judgment as to damages she claimed as a result of the respondent’s alleged trespass, encroachment, and harvesting of timber. The respondent filed a counter-petition, alleging that he was the rightful owner of the Disputed Property; raising affirmative defenses of waiver/estoppel, champerty, and adverse possession; and requesting damages for the petitioner’s alleged encroachment and destruction of boundary markers. Following a bench trial, the trial court declared the petitioner the owner of the Disputed Property, dismissed the respondent’s counter-petition, and dismissed all claims for damages. The respondent appeals. We affirm the trial court’s finding that title to the Disputed Property is vested in the petitioner. We determine, however, that the respondent has established the statutory defense of adverse possession, pursuant to Tennessee Code Annotated § 28-2-103 (2000), only to the extent that certain improvements encroach upon the Disputed Property, and we reverse upon this ground. We remand to the trial court for determination as to the extent of the encroachments. We affirm the trial court’s judgment in all other respects. |
McMinn | Court of Appeals | |
Christopher Vance Smalling v. Sarah Rebecca Smalling
We granted Christopher Vance Smalling’s (“Husband”) application for extraordinary appeal pursuant to Tenn. R. App. P. 10 to consider issues related to his suit for divorce from his wife Sarah Rebecca Smalling (“Wife”). This divorce case reached an unexpected impasse when the Chancery Court for Sullivan County (“the Trial Court”) refused to set a hearing in the matter until a Temporary Parenting Plan concerning the parties’ minor child was entered. Husband appeals, arguing both that he had complied with local rules by submitting a suitable Temporary Parenting Plan and that state law does not require the filing of a Temporary Parenting Plan in circumstances like those of this case. We hold that the local rules are in conflict with Tenn. Code Ann. § 36-6-403 because they require the filing of a written Temporary Parenting Plan even though the statute specifically states this is not required if the parties agree, as in this case, to a Temporary Parenting Plan. We also hold that even if we err in our judgment that Tenn. Code Ann. § 36-6-403 conflicts with and overrides the local rules, Husband complied with the local rules by submitting a Temporary Parenting Plan. We reverse the Trial Court. |
Sullivan | Court of Appeals | |
In Re: Caylee R.M.F.
This is a parental termination appeal brought by the incarcerated biological father. The child at issue was placed with the petitioners shortly after her birth five years ago. The trial court found clear and convincing evidence to support the ground for termination and clear and convincing evidence that such termination was in the child’s best interest. The father appeals. We affirm. |
Hawkins | Court of Appeals | |
Donald Harp and Mary Harp v. Metropolitan Government of Nashville And Davidson County, et al
In this governmental tort liability action involving two metropolitan government employees, Employee 1 drove a school bus into Employee 2, resulting in serious injuries. Employee 2 and his wife filed suit under the Governmental Tort Liability Act against metropolitan government alleging that Employee 1 was negligent while acting in the course and scope of her employment and that, therefore, metropolitan government was liable under the doctrine of respondeat superior. Metropolitan government filed a third-party complaint against Employee 1 seeking to recover lost wages and medical expenses paid to Employee 2. The trial court determined that statutory removal of metropolitan government’s immunity for injuries caused by Employee 1’s negligence resulted in Employee 1’s immunity from liability. Accordingly, the trial court entered judgment for Employee 2 and his wife against metropolitan government. We affirm. |
Davidson | Court of Appeals | |
Michael Jeffries, et. al. v. United States Metal Powders, Inc.
This appeal arises from a dispute concerning an employment contract between United States Metal Powders, Inc. and Plaintiffs, who claimed that they were owed vacation and severance pay when the company ceased production and sold its assets. United States Metal Powders, Inc. denied that Plaintiffs were owed vacation and severance pay. Following a bench trial, the trial court awarded severance pay but denied the claim for vacation pay. United States Metal Powders, Inc. appeals. We affirm the decision of the trial court and remand for proceedings consistent with this opinion. |
Blount | Court of Appeals | |
In Re: Robert D., et al
This is a termination of parental rights action focusing on the two minor children (“the Children”) of mother, Sandra W. (“Mother”). A termination petition was filed by the Tennessee Department of Children’s Services (“DCS”) after the third custody proceeding involving the Children. The petition alleges the statutory grounds of abandonment, substantial noncompliance with the permanency plans, and persistent conditions. Following a bench trial, the trial court granted the petition upon its findings, by clear and convincing evidence, that (1) Mother had abandoned the Children, (2) Mother had failed to substantially comply with the permanency plans, and (3) the conditions leading to removal still persisted. The court further found, by clear and convincing evidence, that termination of Mother’s parental rights was in the Children’s best interest. Mother has appealed. We affirm. |
Cumberland | Court of Appeals | |
Carey P. Merrell v. The City of Memphis, Tennessee
This is a Governmental Tort Liability action. Plaintiff/Appellant was injured when his motorcycle hit a pothole. Appellant sued the Appellee The City of Memphis for negligence. Following a bench trial, the trial court found that Appellant had failed to rove that the City had actual or constructive notice of the dangerous condition on its roadway so as to lift immunity under ennessee Code Annotated §29-20-203(b). Accordingly, the court dismissed the lawsuit. We conclude that the evidence does not preponderate against the trial court’s finding that the City had no notice of this dangerous condition. Affirmed and remanded. |
Shelby | Court of Appeals | |
Lisa Womble v. University Health System, Inc. d/b/a University of Tennessee Regional Medical Center, et al
In the wake of her firing from the University of Tennessee Regional Medical Center in Knoxville, Tennessee, a nurse brought an employment action raising numerous claims. At the time the nurse originally began working at the medical center, it was owned and managed by the University of Tennessee and she was considered an employee of the university. In 1999, the university executed a lease and transfer agreement pursuant to Tennessee Code Annotated section 49-9-112, by which the operation of the medical center was transferred to a private, nonprofit corporation. Hospital personnel, like the nurse, who had been university employees prior to the transfer, were thereafter “leased” by the private, nonprofit corporation from the university. This interlocutory appeal stems from the trial court’s sua sponte ruling that Tennessee Code Annotated section 49-9-112(a) is unconstitutional. We reverse the determination of the trial court. |
Knox | Court of Appeals | |
In Re: Kierra B., et al
The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Sullivan County (“the Juvenile Court”) to terminate the parental rights of Amber B. (“Mother”) to the minor children Jayden B. and Kierra B. (“the Children,” collectively, or, “Jayden” and “Kierra” individually). DCS also sought to terminate the parental rights of Miguel C. (“Father”) to Kierra. After a trial, the Juvenile Court entered its order finding and holding, inter alia, that clear and convincing evidence was proven that grounds existed to terminate Mother’s parental rights to the Children pursuant to Tenn. Code Ann. §§ 36-1- 113 (g)(2) and (g)(3), and that clear and convincing evidence was proven that it was in the Children’s best interest for Mother’s parental rights to be terminated. The Juvenile Court also found and held that clear and convincing evidence was proven that grounds existed to terminate Father’s parental rights to Kierra pursuant to Tenn. Code Ann. § 36-1-113 (g)(1) and Tenn. Code Ann. § 36-1-102 (1)(A)(iv), and that clear and convincing evidence was proven that it was in Kierra’s best interest for Father’s parental rights to be terminated. Mother and Father appeal. Apart from certain grounds of abandonment pertaining to Father which we reverse for lack of adequate evidence, we affirm the judgment of the Juvenile Court terminating Mother’s parental rights to the Children and Father’s parental rights to Kierra. |
Sullivan | Court of Appeals | |
Sandra Buckler Hall, Individually and on behalf of her minor son, Felix Hall v. Paul D. Randolph Jr., M.D., Personal Representative and next of kin of Paul D. Randolph, Sr., M.D.
The trial court denied Defendant physician’s motion to recuse following the trial judge’s disclosure of an earlier patient-physician relationship with Defendant’s expert witness. Defendant filed an interlocutory appeal as of right pursuant to Rule 10B of the Tennessee Supreme Court Rules. Finding that the circumstances require recusal, we reverse. |
Shelby | Court of Appeals | |
Continental Casualty Company, et al. v. Theraco, Inc.
Continental Casualty Company (“CNA”) and Travelers Property Casualty Company of America (“Travelers”) filed this suit against Theraco, Inc.(“Theraco”) seeking compensation for additional workers’ compensation premiums. Theraco’s insurance contracts with CNA and Travelers provided that it would pay premiums for employees and all other persons who posed a risk of workers’ compensation liability. Pursuant to the contracts, CNA and Travelers both charged Theraco premiums for physical therapists with whom Theraco had contracted. Theraco disputes that it is liable for paying premiums for the workers. After a hearing, the Department of Commerce and Insurance ruled that Theraco was not liable for the additional premiums because the physical therapists were independent contractors rather than employees. CNA and Travelers appealed the Department’s decision to the Chancery Court for Davidson County. The trial court upheld the Department’s ruling, not only concluding that the physical therapists were independent contractors, but also that they did not pose a risk of workers’ compensation liability. CNA and Travelers appealed to this Court. We affirm in part, reverse in part and remand for entry of a judgment consistent with this opinion. |
Davidson | Court of Appeals | |
Janice Hartline v. Robert Stephen Hartline
In this domestic relations action, the trial court granted Wife a divorce on fault-based grounds against Husband and awarded her alimony in futuro in the amount of $3,800.00 monthly, health insurance costs, and attorney’s fees. Husband appeals the trial court’s awards of alimony and attorney’s fees, as well as the court’s valuation of his dental practice and division of marital assets. Wife raises a threshold issue of whether the trial court erred by granting a Tennessee Rule of Civil Procedure 60.02 motion after the time had elapsed to file a notice of appeal. We affirm the grant of the Rule 60.02 motion. We reverse the valuation of the husband’s dental practice. We remand to the trial court for revaluation of the dental practice without consideration of professional goodwill, adjustment of the equitable division of marital assets based on revaluation of the dental practice, and clarification of the amount of attorney’s fees awarded to Wife in the trial court. We affirm the judgment in all other respects. |
Bradley | Court of Appeals | |
John Shell and Connie Shell v. Sherri Cole Williams v. Rick Shell
The issues in this case involve the proper use and alleged interference with an easement created by express grant. The trial court concluded that the holders of the easement could use the easement for recreational purposes and that the servient landowner had interfered with the use of the easement by planting trees and placing boulders within the easement. We reverse and remand. |
Rutherford | Court of Appeals | |
Estate of Minnie Bell Woodard v. James W. Franklin, et al.
A widow filed a complaint seeking a determination of the proper owner of a tract of real property held in her husband’s name. The widow lived on the property for over twenty years after her husband died. She believed she was the proper owner until she became interested in selling the property and learned her name was not on the deed. The trial court ruled the widow acquired the property by common law adverse possession, and one of the husband’s heirs-at-law appealed. The husband’s great nephew asserted the widow had permission to remain on the property, and, therefore, could not obtain title through adverse possession. We disagree and affirm the trial court’s judgment. The widow possessed and used the property openly and exclusively for over twenty years, thereby putting the world on notice that she claimed ownership of the property. |
Jackson | Court of Appeals | |
Stella May Welch v. Donald Lee Welch
This is a divorce action. Wife appeals the trial court’s judgment naming Husband primary residential parent of the parties’ minor child and classifying real property as Husband’s separate property. Wife also asserts the trial court erred in dividing the parties’ property notwithstanding classification of the real property. We affirm the trial court’s classification and division of property. We vacate the trial court’s judgment with respect to naming Husband primary residential parent of the parties’ minor child and awarding the parties equal parenting time, and remand the matter to the trial court to engage in a comparative fitness analysis as required by Tennessee Code Annotated § 36-6-106, and for findings as required by Rule 52 of the Tennessee Rules of Civil Procedure. |
White | Court of Appeals | |
Heather Michele Cohen and Adam Cohen v. Trisha Clarke and Michelle Julian
This is an appeal of the trial court’s dismissal of Appellants’ defamation lawsuit. The trial court granted Appellees’ motions to dismiss under both Tennessee Rule of Civil Procedure 12.02(6), and under Tennessee Rule of Civil Procedure 41.02, for violation of Tennessee Rules of Civil Procedure 11 and 45. We conclude that the trial court erred in granting the Rule 12.02 motion when the Appellants’ motion to amend their pleadings was still pending. We further conclude that the trial court’s stated reasons for granting the Rule 41.02 motion are not sufficient to justify the drastic sanction of dismissal. Accordingly, we vacate the trial court’s order and remand for further proceedings. Vacated and remanded. |
Williamson | Court of Appeals | |
Dan Hampton v. Macon County Board of Education
A school administrator filed the instant lawsuit,alleging that his employment was terminated in violation of both the Open Meetings Act and his contract of employment. The trial court granted summary judgment to the defendant school board on the Open Meetings Act claims on the basis of laches, finding that the school administrator failed to bring his claim in a timely manner. The trial court also granted summary judgment as to the contract claim, finding that the school administrator could not prove damages. We reverse the trial court’s ruling with regard to the school administrator’s claims for declaratory and injunctive relief pursuant to the Open Meetings Act, but affirm as to the remainder of the trial court’s decision. Reversed in part, affirmed in part, and remanded. |
Macon | Court of Appeals |
