COURT OF APPEALS OPINIONS

Plants, Inc. v. Fireman's Fund Insurance Company et al.
M2011-02274-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Larry B. Stanley, Jr.

This is the second of two similar but separate civil actions and appeals among the same
parties. At issue is the scope of a binding arbitration clause in a federally-reinsured multiple
peril crop insurance policy and the scope of federal preemption of common law claims. The
insured, a nursery in Warren County, Tennessee, suffered a catastrophic loss of stock,
primarily trees and shrubs, due to a severe freeze in April of 2007. The insured submitted a
claim for indemnity. The adjuster determined, due to “under-reporting of inventory”, that the
insured was only entitled to recover $115,822. Instead of pursuing arbitration pursuant to the
policy of insurance, the insured filed this action asserting common law claims against the
insurer, its adjustment firm, and the independent insurance agency that solicited the policy,
for negligent misrepresentation, breach of duty of care, negligence, breach of contract, and
statutory bad faith. The trial court summarily dismissed the claims against the insurer and its
adjustment firm finding there were no issues of material fact and the insurers were entitled
to summary judgment as a matter of law because the policy mandated arbitration. On appeal,
the insured contends that its state law claims are not barred by the policy. The insurer and its
adjustment firm disagree contending that all claims related to the insurance policy must be
submitted to arbitration and additionally assert that the insured’s common law claims are
preempted by federal law. We have determined the claims for breach of contract, breach of
duty of care, and statutory bad faith are preempted by federal law; however, the claims for
negligence and negligent misrepresentation are not preempted by federal law and these two
claims do not fall within the scope of the arbitration provision. Therefore, we affirm in part,
reverse in part, and remand for further proceedings in accordance with this decision.

Allison Jacob et al. v. Alexis Partee and Tom Bedell, Jr., v. Top Gun Body Shop
W2012-00205-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Robert L. Childers

Appellants attempted to appeal the decision of the General Sessions Court to the Circuit Court without filing an appeal bond, but the Circuit Court dismissed the attempted appeals for lack of subject matter jurisdiction. Appellants claim that an appeal bond need not be filed where an appeal filing fee is paid. We find that, to perfect an appeal from General Sessions Court to Circuit Court, an appeal bond must be filed; payment of the appeal filing fee does not satisfy this jurisdictional requirement. Accordingly, we affirm the trial court’s dismissal of the matter.

In Re $1,683.05 Deposited in Attorney's Trust Account
M2011-02079-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

Attorney representing the husband in a divorce proceeding claimed a statutory lien on funds in his trust account to secure payment of his fee; the attorney filed a separate action seeking a determination of his rights to funds held in his trust account. The trial court dismissed the action for failure to state a claim. Finding that the court dismissed the case employing an erroneous legal standard, we reverse the judgment of the trial court.
 

Almond Reid v. Nigel Reid, Sr.
E2011-02663-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Tom Wright

This appeal involves a dispute between brothers. One brother owned an apartment complex and leased one of the apartments to his brother. The tenant brother allegedly failed to pay rent to the landlord brother. The landlord brother filed a forcible entry and detainer action in general sessions court seeking possession of the property and a judgment for the unpaid rent. The general sessions court entered a judgment in favor of the landlord brother. The tenant brother appealed to circuit court. The circuit court conducted a trial de novo. After the trial, the circuit court awarded the landlord brother possession of the property and a judgment for the unpaid rent. The tenant brother now appeals. We affirm.

Tracy Rose Baker v. Jeffrey D. Baker
M2012-00223-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Senior Judge Donald P. Harris

In this contentious post-divorce dispute, the father has appealed from the trial court’s order
disposing of numerous issues including visitation and contempt. The order appealed does
not, however, address the mother’s request for modification of child support, and we
therefore dismiss the appeal for lack of a final judgment.

April Hunter Rigsby (Edmonds) v. Aaron R. Edmonds
E2011-02265-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Larry Warner

April Hunter Rigsby (Edmonds) (“Mother”) and Aaron R. Edmonds (“Father”) divorced in 2008. Mother and Father are the parents of the minor child, Elijah E. (“the Child”). In the permanent parenting plan entered with the divorce, Mother was designated as the Child’s primary residential parent. Mother and Father were to have equal time with the Child. Mother later petitioned the Probate and Family Court for Cumberland County (“the Trial Court”) to relocate with the Child. The Trial Court granted Mother’s petition. In 2011, Father filed a petition to modify the final decree of divorce, attached to which was his new proposed permanent parenting plan wherein he requested to be designated the Child’s primary residential parent. Father argued, among other things, that because the Child was approaching school age, the child would be better served going to school in Father’s community. Mother filed an answer to Father’s petition, including her own proposed new permanent parenting plan. The Trial Court found in favor of Father, designated Father as the new primary residential parent of the Child, and set a new parenting schedule. The Trial Court also ordered Mother to pay child support. Mother appeals. We hold that no material change of circumstances occurred to justify a change in the Child’s primary residential parent. We affirm, in part, and, reverse, in part.

In the Matter of: S.J., C.J., and J.J.
W2011-01690-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert Weiss

This appeal arises out of dependency and neglect proceedings. The respondent mother has three children, one an infant. The infant suffered numerous unexplained injuries and was diagnosed with failure to thrive. The Tennessee Department of Children’s Services filed a petition to have all three children declared dependent and neglected, and alleged severe child abuse as to the infant. The trial court declared all three children dependent and neglected, but declined to find severe abuse. The respondent mother now appeals the trial court’s finding of dependency and neglect, and the Department of Children’s Services appeals the trial court’s failure to find severe child abuse as to the infant. We affirm the trial court’s finding that all three children were dependent and neglected, but find clear and convincing evidence that the infant suffered severe abuse; therefore, we reverse the trial court’s finding on severe abuse.

David R. Smith v. Tennessee National Guard
M2012-00160-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas G. Brothers

Plaintiff was a full-time employee of the Tennessee National Guard until 2002 when he commenced active duty service in the Active Guard and Reserve. Near the completion of his active duty service in the Active Guard and Reserve, Plaintiff asked the Tennessee National Guard to rehire him pursuant to the Uniformed Service Employment and Reemployment Rights Act of 1994 (USERRA). When the Tennessee National Guard refused, Plaintiff filed this action alleging it violated USERRA. The Tennessee National Guard responded to the complaint by filing a Tenn. R. Civ. P. 12.02(6) motion to dismiss for lack of subject matter jurisdiction based upon sovereign immunity from USERRA claims. The trial court granted the motion to dismiss based on the doctrine of sovereign immunity. Because the Tennessee General Assembly has not passed legislation to expressly waive its sovereign immunity from claims based on USERRA, as other states have done, we affirm.

Anthony Jerome Fuller v. City of Memphis
W2011-02300-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Donna M. Fields

The trial court found that Defendant City of Memphis was not liable for injuries to Plaintiff resulting from an automobile accident in which Plaintiff’s vehicle was struck by a vehicle operated by a third party. Plaintiff appeals. We affirm.

Anthony D. Childs, et al. v. UT Medical Group, Inc., et al.
W2011-01901-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge James F. Russell

Plaintiffs filed a voluntary notice of nonsuit in this medical malpractice action in July 2009.  They refiled their claim in September 2010. The trial court dismissed Plaintiffs’ claim for failure to comply with Tennessee Code Annotated § 29-26-121 Plaintiffs appeal. We affirm.

Susan Elaine Dobbs v. Brooke Anthony Dobbs
M2011-01523-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Tom E. Gray

In appeal from final decree in divorce action, Husband contends that the trial court erred in designating Wife as primary residential parent, in valuing the marital residence which was awarded to Wife, and in failing to require Wife to refinance the marital residence in her name alone. We affirm the designation of Wife as primary residential parent and the court’s valuation of the marital residence and remand the case for the courtto determine a reasonable length of time for Wife to secure Husband’s release from the indebtedness on the marital residence and to amend the final decree accordingly.
 

In Re: Sandra M. and David M.
M2011-01719-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Charles L. Rich

Mother and Father appeal the termination of their parental rights. Finding that two grounds for parental termination have been established and that termination is in the best interests of the children, we affirm.
 

Catherine Lee Poindexter v. John M. Poindexter, Sr.
M2011-02282-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Tom E. Gray

This is a divorce action filed by the wife and counter-complaint by the husband both seeking the divorce. After the trial, the Trial Court divided the marital property, granted the wife a divorce, and granted the wife alimony. The husband has appealed. We affirm the award of alimony, but modify the marital property division.
 

Deanna Lynne Dodd v. Michael Thomas Dodd
M2011-02147-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge John Gwin

In this post-divorce proceeding, the mother of the parties’ only minor child filed two motions to alter or amend the divorce decree in order to clarify the parties’ obligations under the marital dissolution agreement regarding their 2009 income tax returns, and two petitions for civil contempt. The contempt petitions alleged that the father failed to make timely child support payments and failed to reimburse the mother for mortgage payments, medical expenses, and school-related expenses for the parties’ child. The trial court denied the motions to alter or amend,finding that the amendment sought by the mother was unnecessary and that the father breached the tax provision of the MDA as written. The court also denied the petitions for civil contempt, finding that the father purged himself of the contempt prior to hearing on the petitions. The court ordered the father to pay the mother $10,302.36 plus post-judgment interest for the tax liability she incurred due to the father’s refusal to file a joint tax return and $3,500 for the attorney’s fees the mother incurred in filing the petitions for contempt. We affirm.
 

ARI, Inc. v. James G. Neeley, Commissioner of the Tennessee Department of Labor and Workforce Development
M2011-02272-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Senior Judge Walter C. Kurtz

This is an appeal of the Chancery Court’s order upholding the Tennessee Department of
Labor and Workforce Development’s determination that ARI underpaid state unemployment
tax premiums. ARI appeals asserting its due process rights were violated in the
administrative hearing process and that there is not substantial and material evidence to
support the Department’s assessment. Finding no error, we affirm the Department’s
assessment of unpaid unemployment tax premiums.

Westgate Resorts v. James G. Neely, Commissioner, et al
E2011-02538-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This is an unemployment compensation case. Cynthia L. Vukich-Daw filed a claim for unemployment compensation following her termination from Westgate Resorts. The claim was originally granted by the Tennessee Department of Labor and Workforce Development and subsequently upheld by the Appeals Tribunal and the Board of Review. Westgate Resorts filed a petition for judicial review, and the trial court reversed the Board of Review’s decision, finding that Cynthia L. Vukich-Daw was ineligible to receive unemployment compensation benefits because she was a qualified real estate agent pursuant to Tennessee Code Annotated section 50-7-207. Cynthia L. Vukich-Daw and the Tennessee Department of Labor and Workforce Development appeal. We reverse the decision of the trial court.

Gossett Motor Cars, LLC v. Hyundai Motor America, Inc. et al.
M2011-01769-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal concerns a car dealership’s protest of Hyundai’s proposal to enter into a
franchise agreement with another dealership in the same market area. During the pendency
of a contested case proceeding, the Tennessee Motor Vehicle Commission issued a license
to the second dealership, which began doing business. Denied relief at the administrative
level, the protesting dealership filed a petition in chancery court. The chancellor found that
the motor vehicle commission had erred in dismissing the contested case proceeding of the
protesting dealership, but dismissed the petition based upon the conclusion that the matter
was now moot. We agree with the chancellor’s conclusion and affirm.

Anchor Pipe Company, Inc. v. Sweeney-Bronze Development, LLC et al.
M2011-02248-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge C. L. Rogers

This appeal concerns the priority of two liens, a mechanic’s lien and a bank’s deed of trust.
We have determined that the trial court erred in granting summary judgment in favor of the
bank. We have further determined that the mechanic’s lien is entitled to priority and that the
trial court erred in failing to grant summary judgment on that issue.

State of Tennessee ex rel. Robin Lipski v. Jerry Burkes
E2012-01355-COA-R3-CV
Authoring Judge: Per Curiam

The order from which the appellant, Jerry Burkes, seeks to appeal was entered on Monday, October 24, 2011. A notice of appeal was filed by the appellant on Monday, November 28, 2011, the 35th day following the entry of the trial court’s order. Because the notice of appeal was not filed timely, we have no jurisdiction to consider this appeal. Accordingly, this appeal is dismissed.

Elsie Renee Braswell v. Randy Bernard Braswell, Sr.
E2012-01382-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge W. Jeffrey Hollingsworth

The order from which the appellant, Randy Bernard Braswell, Sr., seeks to appeal was entered on Wednesday, April 18, 2012. A notice of appeal was filed by the appellant on Friday, June 29, 2012, the 72nd day following the entry of the trial court’s order. Because the notice of appeal was not filed timely, we have no jurisdiction to consider this appeal. Accordingly, this appeal is dismissed.

In Re: Vysin C.G., Urrye E.G. and Zyren M.G.
E2012-00375-COA-R3-PT
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Jeffrey D. Rader

The trial court terminated Mother’s parental rights based on abandonment for the failure to visit or support. On appeal, Mother asserts the trial court erred by determining that her failure to visit or support her children was willful. We affirm.

Wade Robinson, et al v. State of Tennessee
E2011-01540-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Wheeler A. Rosenbalm

Wade Robinson and Melanie Robinson (“Plaintiffs”) sued the State of Tennessee (“State”) regarding a motor vehicle accident that resulted in the death of Plaintiffs’ son, Zachary L. Robinson. After a bench trial, the Trial Court entered its judgment finding and holding, inter alia, that the State had not violated Tenn. Code Ann. § 9-8-307(a)(1)(I) or § 9-8-307(a)(1)(J), and that the actions of Zachary L. Robinson were the sole proximate cause of the accident. We find and hold that the evidence preponderates against the Trial Court’s findings that the State did not violate Tenn. Code Ann. § 9-8-307(a)(1)(I), that the State did not violate Tenn. Code Ann. § 9-8-307(a)(1)(J), and that Zachary L. Robinson was the sole proximate cause of the accident. We find and hold that Zachary L. Robinson was 50% at fault for the accident and that the State was 50% at fault for the accident.

Rebecca W. Ford v. State of Tennessee
E2011-01072-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Wheeler A. Rosenbalm

Rebecca W. Ford (“Plaintiff”) sued the State of Tennessee (“State”) regarding a motor vehicle accident that resulted in the death of Plaintiff’s daughter, Lynsey M. Ford. After a bench trial, the Trial Court entered its judgment finding and holding, inter alia, that the State had not violated Tenn. Code Ann. § 9-8-307(a)(1)(I) or § 9-8-307(a)(1)(J), and that the actions of Zachary L. Robinson were the sole proximate cause of the accident. Plaintiff appeals to this Court. We reversed the Trial Court’s judgment as to Zachary L. Robinson being solely at fault, and held that the State was 50% at fault for the Accident in our Opinion in Robinson v. State, docket No. E2011-01540-COA-R3-CV (“Robinson v. State”), released contemporaneously with this Opinion. We, therefore, remand this case to the Trial Court for the calculation of damages awarded to Plaintiff from the State for the death of Lynsey M. Ford.

In Re Estate of Willie Juanell Campbell
E2011-02765-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jerri S. Bryant

In this appeal, numerous beneficiaries under a will challenge the trial court’s order awarding attorney’s fees of $9,024.75 out of the funds of the estate to another beneficiary who is their adversary. At an earlier time, the court had entered an order setting the attorney’s fees of that beneficiary at $34,669.25 without specifying who was responsible for the payment of those fees. On the motion of that beneficiary, the court granted a new trial on the subject of attorney’s fees. When the matter came on for the “new trial,” the court announced that it would listen to argument but would not receive substantive evidence on the subject. Following that “hearing,” the court awarded the fees now before us. The court’s order does not articulate any findings with respect to whether the attorney’s services were reasonable, necessary or benefited the estate. The “challenging” beneficiaries filed a notice of appeal. We vacate the order awarding attorney’s fees and remand to the trial court with instructions to conduct an evidentiary hearing and enter an order on attorney’s fees complying with Tenn. R. Civ. P. 52.01.

In the Matter of: Jonathan S. C-B
M2010-02536-COA-R3-JV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Betty K. Adams Green

The mother of a five year old boy alleged that the boy’s father had sexually abused him, and she petitioned the juvenile court to have the father’s visitation privileges revoked. After a long course of proceedings that included an investigation by the Department of Children’s Services, testimony by a number of mental health professionals, and a report by the guardian ad litem, the court concluded that the Mother’s allegations were unfounded, that her hostility against the father was having a detrimental effect on the child, and that it was in the child’s best interest that the father be named as the child’s primary residential parent in place of the mother. The mother raises numerous procedural issues on appeal, and she also contends that her allegations of abuse against the father were true, or at the very least that she had a good faith belief in their truth. Having carefully considered the mother’s allegations and her arguments, we affirm the trial court.