COURT OF APPEALS OPINIONS

In Re Elijah B., et al.
E2010-00387-COA-R3-PT
Authoring Judge: Judge Charles D. Susano Jr.
Trial Court Judge: Judge Kenneth N. Bailey, Jr.

Eric B. (“Father”) appeals the termination of his parental rights with respect to his two minor children. The Department of Children’s Services (“DCS”) petitioned to terminate Father’s rights based upon allegations of abandonment, substantial noncompliance with a permanency plan, and persistence of conditions. Following a hearing, which Father failed to attend, the trial court granted the petition upon finding, by clear and convincing evidence, that all of the alleged grounds were established and that termination was in the best interest of the children. On appeal, Father asserts that his due process rights were violated. He also challenges the weight of the evidence supporting the court’s decision to terminate his parental rights. We reject both challenges. Accordingly, we affirm.

Greene Court of Appeals

In Re Lindsay R.
E2010-00391-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge James A. Nidiffer

This is an action to establish paternity and set child support filed by the State of Tennessee on behalf of Rochelle L. (“Mother”), the mother of a child born August 6, 1988. The putative father is James G. (“Father”). The trial court held Father liable for back child support of $123,334 by a default judgment entered September 3, 2008. Father filed a postjudgment motion challenging the judgment for lack of service of process. The trial court denied the motion upon finding that Father had “notice” of the action. As a consequence of this finding, the court held that the judgment was valid pursuant to Tenn. Code Ann. § 36-2-305(b)(5)(2010). Father appeals. We affirm.

Washington Court of Appeals

Greenbank, f/k/a Greene County Bank v. Barbara J. Thompson, et al.
E2010-00160-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Senior Judge Jon Kerry Blackwood

Bank provided a loan to Borrowers for the purchase of real property and construction of a log cabin home. After Borrowers defaulted on the loan, Bank sold the property at a foreclosure sale. Bank then initiated a lawsuit alleging conversion, negligent business representation, and promissory fraud. Bank also sought a deficiency judgment for the difference in the amount owed on the loan and the foreclosure sale price. After a bench trial, the trial court awarded a judgment for $61,782.12 and a deficiency judgment for $300,644.92 in favor of Bank. Borrowers appeal. We affirm.

Blount Court of Appeals

Sherry Watson v. Beazer Watson
E2010-00577-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John McAfee

This is a divorce action filed by Sherry Watson (“Wife”) against Beazer Watson (“Husband”). Following a bench trial, the court granted the parties a divorce based on stipulated grounds. It also classified and distributed substantial property, some as separate and the rest as marital. Wife secured new counsel and filed motions, with supporting exhibits, challenging the classification and division of property. The motions purport to be pursuant to, respectively, Tenn. R. Civ. P. 59 and 60.02. The trial court denied the motions. Wife appeals the denial of her motions. We affirm.

Claiborne Court of Appeals

William E. Jarvis v. State of Tennessee, ex rel, Janice L. Bane
M2010-00137-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Steve R. Dozier

Father previously convicted of contempt for failure to pay child support appeals the dismissal of his petition seeking habeas corpus relief. Finding that the petition does not allege facts sufficient to support the issuance of a writ of habeas corpus, the judgment is affirmed.

Davidson Court of Appeals

In Re: Matter of Kaitlyn M.W., Nathan A.W. v. Crystal D.S.P.
W2010-00301-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge William A. Peeler

This is a child custody case. The mother and father were never married to each other; the child was born when both were teenagers. Under the parenting plan, the mother was designated as the primary residential parent and the father had parenting time every weekend. After the father married, disputes ensued; many were disputes between the father’s wife and the child’s mother. The father filed a petition to modify the parenting plan to designate him as the child’s primary residential parent. He alleged, among other things, that the child was often tardy or absent from school, that the mother lacked stability, and that mother prevented him from exercising his parenting time. The trial court found no material change in circumstances and declined to change custody. The father appeals. We affirm.

Tipton Court of Appeals

Darren Perry and Mechelle Perry v. All Unknown Parties Having Any Interest in the Property Known as the Mathis Cemetery et al.
W2010-00822-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor George R. Ellis

This appeal arises from a petition to terminate the use of property as a burial ground. The plaintiffs purchased property in which an abandoned cemetery was situated. They filed this complaint for court approval to terminate the use of the property as a burial ground and remove and reinter the remains to another cemetery, pursuant to Tennessee statutes. An attorney ad litem was appointed to represent unknown parties with an interest in the abandoned cemetery. The attorney ad litem investigated and did not oppose the relief sought. The plaintiffs filed a motion for default judgment. The trial court denied the motion for default judgment and dismissed the case. The plaintiffs appeal. We reverse.

Gibson Court of Appeals

Mitchell Dwayne Gentry v. Jerica Renae Gentry
E2010-00943-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Neil Thomas

In this divorce case after lengthy trial, the Trial Court designated the mother as the primary residential parent, awarded the mother alimony, child support, and attorney's fees. The father appealed, asking the Trial Court be reversed on the award of primary care, and the alimony award to the mother. The mother appeals the issue of whether the father was entitled to appeal, since he had been held in contempt of court. Upon consideration of the issues, we affirm the Judgment of the Trial Court.

Hamilton Court of Appeals

Saundra Kay (Pace) Mason v. James E. Mason
W2010-00973-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Daniel L. Smith

This is a divorce case. The parties had a long-term marriage, with one minor child born of the marriage. The wife was designated as the primary residential parent, and the husband was required to pay alimony and child support. The wife appeals the amount of child support, the alimony award, and the trial court’s denial of her request for attorney fees. The husband argues that he was entitled to relief from his pendente lite child support payments while he was out of work recovering from several surgeries. We reverse the trial court’s holding on the husband’s pendente lite child support, affirm the remainder of the trial court’s holding, and remand.

Hardin Court of Appeals

Patricia Mills, et al. v. John H. Booth, II, et al.
E2010-00846-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Russell Simmons, Jr.

On November 8, 2008, James Turlington and his wife, Altha Turlington, were killed in an automobile accident after their car tuned left in front of a vehicle being driven by John H. Booth, II (“Booth”). Initially, it was believed that the Turlington vehicle was being driven by Altha Turlington. It was determined two days later that the Turlington vehicle was being driven by James Turlington. An accident reconstructionist later concluded that while the Turlington vehicle did turn in front of the Booth vehicle, the Turlington vehicle would have had sufficient time to complete its turn without any collision taking place if Booth had not been speeding. A complaint was filed on November 10, 2009, by Altha Turlington’s daughter, Patricia Mills. The Trial Court determined that the statute of limitations began to run on the day of the accident, that the discovery rule could not be used to extend when the statute of limitations began to run, and the complaint had not been filed within the applicable one year statute of limitations. Plaintiff appeals, and we affirm.

Roane Court of Appeals

Robert Joe Lee v. Charles E. Ridenour, Trustee, et al.
E2010-00731-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jerri S. Bryant

In December of 2008, Robert Joe Lee (“Plaintiff”) sued Charles E. Ridenour, Trustee, and FSG Bank National Association (“FSG Bank”) seeking, in part, a declaratory judgment with regard to two trust deeds, and an injunction preventing FSG Bank from foreclosing on the real property named in the trust deeds. After a trial, the Trial Court entered a Final Judgment on February 25, 2010 finding and holding, inter alia, that the trust deeds created a valid enforceable lien on the named real property, and dismissing Plaintiff’s complaint. Plaintiff appeals to this Court. We affirm.

Monroe Court of Appeals

Dawn Ann Davis (Goodwin) v. Daniel Pace Goodwin
W2010-01340-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Kenny W. Armstrong

In this divorce case, Wife appeals the trial court’s division of marital property. She asserts that the parties’ marital residence is her separate property and that the trial court erred in awarding Husband a share of the net proceeds following its court-ordered sale. Wife contends that she purchased the property during the marriage with her separate, premarital funds, that it was titled and financed in her name only, and that she paid the mortgage, taxes, and insurance on the property. We agree that the trial court erred and conclude that the marital residence is Wife’s separate property. However, because the property increased in value during the marriage, we remand to the trial court to determine whether Husband substantially contributed to its preservation and appreciation. Reversed and Remanded.

Shelby Court of Appeals

In the Matter of: Estate of Curtis Rinda, Terry Abernathy, Administrator
W2010-01888-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor William C. Cole

Appellant, the Estate of the Decedent herein, appeals the Chancery Court of McNairy County’s denial of the Estate’s exception to a claim for Decedent’s funeral expenses. Decedent’s brother, the Appellee herein, held a power of attorney for his father (who is also Decedent’s father). Appellee exercised the power of attorney to arrange Decedent’s funeral and to pay for that funeral with the father’s funds. The claim, which was filed in Appellee’s name only, was excepted by the Estate, on grounds that Appellee had no standing to file the claim because he did not, in fact, pay the funeral expenses. The trial court allowed the claim, but held that it was payable to the father. The Estate appeals. We find that the existence and amount of the claim are supported by the record, and that Appellee’s power of attorney authorized him : (1) to bind the father to the funeral contract, (2) to pay the funeral expenses from the father’s funds, and (3) to file a claim against the Estate, on behalf of the father, to recoup those expenses from the Estate. The decision reached by the trial court is affirmed.

McNairy Court of Appeals

Anthony C. Brown v. Tennessee Department of Safety
M2010-01040-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Russell T. Perkins

Petitioner filed an appeal to the Commissioner of the Department of Safety to challenge the seizure of his Chevrolet Suburban incident to his arrest for drug related charges and the subsequent forfeiture of his vehicle. An Administrative Judge issued an initial order, finding the Department had carried its burden of proof and established that Petitioner’s vehicle was being used to facilitate the sale of illicit drugs and ordering that Petitioner’s vehicle be forfeited. The Commissioner’s designee affirmed the forfeiture. Petitioner then filed a petition for judicial review with the Davidson County Chancery Court which affirmed the forfeiture by the Department. Finding no error, we affirm.

Davidson Court of Appeals

Calvin Gray Mills, Jr., and wife, Linda Mills v. Fulmarque, Inc.
W2010-00933-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge James F. Russell

Plaintiffs initially filed suit against Royal Group, among others. In its answer, Royal Group alleged the comparative fault of Aaron Rents, Inc. Because the one-year statute of limitations had run, Plaintiffs utilized Tennessee Code Annotated section 20-1-119’s ninetyday window to amend their complaint to add Aaron Rents as a defendant. However, in its answer, Aaron Rents then identified Fulmarque, Inc. as a comparative tortfeasor. Plaintiffs again amended their complaint to add Fulmarque as a defendant, but summary judgment was granted to Fulmarque based upon the running of the statute of limitations. On appeal, the parties disagree as to whether Tennessee Code Annotated section 20-1-119 authorizes successive ninety-day windows in which additional defendants may be named. We are asked to interpret whether the term “applicable statute of limitations” as used in the statute, and appearing in the phrase “or named in an amended complaint filed within the applicable statute of limitations,” refers only to the one-year limitation period for personal injury or to the limitation period as extended by the ninety-day window. We find that the term does not simply refer to the one year limitation period for personal injury, but also to the limitation period as extended by the ninety-day window. Therefore, because Aaron Rents was “named in an a amended complaint filed within the applicable statute of limitations[,]” and  because Plaintiffs amended their  complaint to name Fulmarque within ninety days from Aaron Rents’ identification of Fulmarque in its answer, we find that the trial court erred in granting summary judgment to Fulmarque.  Bearing these principles in mind, we find that the term “applicable statute of limitations” as used in Tennessee Code Annotated section 20-1-119, and appearing in the phrase “or named in an amended complaint filed within the applicable statute of limitation,” does not refer simply to the one-year limitation period for personal injury, but also to the limitation period as extended by the ninety-day window. As such, because Aaron Rents was “named in an amended  complaint filed within the applicable statute of limitations[,]” and because Plaintiffs amended their complaint to name Fulmarque within ninety days from Aaron Rents’ identification of Fulmarque in its answer, we find that the trial court erred in granting summary judgment to Fulmarque based upon a running of the statute of limitations. The trial court’s grant of summary judgment is reversed, and this cause remanded for further proceedings.

Shelby Court of Appeals

Mark Cooper, Individually and of Behalf of the Heirs at Law of Leslie Phillipsen v. Thomas N. Tabb, M.D., Individually, Thomas N. Tabb, P.C., and Perinatal Associates, P.C.
W2009-02271-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert L. Childers

This medical malpractice case involves the reconsideration of an order granting a new trial. The patient, in her second trimester of pregnancy, presented at the hospital with abdominal pain and bleeding. Her treating physician consulted with a maternal-fetal specialist physician. The patient suffered a placental abruption, and the fetus died in utero. Later that day, the patient developed a blood-clotting disorder. She died that evening. The patient’s husband filed this lawsuit against the treating physician, the hospital and its employees, and the maternal-fetal specialist physician. A settlement was reached with all of the defendants except for the maternal-fetal specialist, and a jury trial was held as to only the specialist. The jury returned a verdict in favor of the defendant specialist. The trial court granted the plaintiff husband’s motion for a new trial. Three years later, the defendant specialist filed a motion asking the trial court to reconsider its order granting a new trial. Upon reconsideration, the trial court granted the motion and reinstated the jury verdict. The plaintiff husband now appeals. We reverse, concluding that the trial court had jurisdiction to reconsider its initial order, and that the trial judge’s remarks, taken as a whole, indicate he was not satisfied with the jury verdict. Accordingly, we remand for a new trial.

Shelby Court of Appeals

John F. Johnson v. Tennessee Department of Correction, et al.
M2010-00665-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Jeffrey S. Bivens

Certiorari proceeding in which an inmate seeks reversal of trial court’s affirmance of disciplinary board proceeding finding inmate guilty of solicitation of staff in violation of Tennessee Department of Correction policy and grant of judgment on the record to the Tennessee Department of Corrections. Petitioner asserts that the decision of the disciplinary board was unsupported by material evidence and was procedurally defective. Finding no error, we affirm the decision of the trial court.

Hickman Court of Appeals

Tennessee Independent Colleges & Universities Association Benefit Consortium, Inc. v. Tennessee Department of Commerce & Insurance, et al.
M2010-00629-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Claims Commissioner Stephanie Reevers

In this appeal from the Tennessee Claims Commission, taxpayer, a self-funded multiple employer welfare arrangement, seeks a refund of taxes paid under protest, asserting that the tax was preempted by the Employee Retirement Income Security Act and that the tax is uncertain and ambiguous. We affirm.

Court of Appeals

Deana Elizabeth Church v. Thomas Neal Church
M2009-02159-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robbie T. Beal,

This appeal involves post-divorce modification of alimony. When the husband and wife were originally divorced, the husband was ordered to pay alimony in futuro. At the time of the divorce, the wife was undergoing treatment for a life-threatening illness. After the divorce, the wife’s treatment resulted in a dramatic improvement in her health. Meanwhile, the husband lost his job and ultimately found employment at a reduced level of compensation. Citing his decreased income and the wife’s improved circumstances, the husband sought modification or termination of his alimony obligation. The trial court found a material change in circumstances, but nevertheless denied the husband’s petition to modify. The husband appeals. We affirm, finding no abuse of discretion by the trial court.

Williamson Court of Appeals

In Re The Estate of Sepal Flogene Boren Emberton, Deceased
M2010-01125-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Larry B. Stanley, Jr.

This is an appeal from the probate court’s award of $66,107.14 to Decedent’s Estate for the value of property Decedent’s husband did not return to the Estate following her death. The Administrators of the Estate appeal the court’s failure to award the Estate the value of certain jewelry the husband allegedly converted. The husband appeals the court’s valuation of the property he failed to return to the Estate. Because the evidence does not preponderate against the court’s findings, we affirm.

Warren Court of Appeals

Pamela Ann Barnett v. Elite Sports Medicine, et al.
M2010-00619-COA-R3-CV
Authoring Judge: Judge Rirchard H. Dinkins
Trial Court Judge: Judge Barbara N. Haynes

In this case, we are asked to decide whether an amendment to Tenn. Code Ann. § 29-26-122, which became effective July 1, 2009, and requires the plaintiff in a medical malpractice action to file a certificate of good faith at the time of filing suit, was properly applied to an action initiated prior to the effective date of the amendment, voluntarily dismissed and refiled after the effective date. We also consider whether the requirement that the plaintiff file a certificate of good faith applies to an action for medical battery. We affirm the judgment in part, reverse in part, and remand the case for further proceedings.

Davidson Court of Appeals

Tammy Sue Farley v. Ricky Farley
M2010-01120-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge George C. Sexton

Wife filed a complaint for divorce. Husband did not file an answer. Wife sought and received a default judgment. Husband filed a motion to set aside the default judgment based on excusable neglect as a result of depression. The trial court denied the motion. We affirm.

Cheatham Court of Appeals

Soles4Souls, Inc. v. Donelson Cedarstone Associates, LP et al.
M2009-01906-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ellen H. Lyle

In a landlord-tenant dispute, the tenant plaintiff claims that before the parties entered into a lease for commercial property, the landlord defendants misrepresented estimated operating expenses that the plaintiff was expected to pay as part of its rent pursuant to the lease terms. The plaintiff appeals the trial court’s dismissal of its claims for fraud and violation of the Tennessee Consumer Protection Act. We find that the defendants misrepresented estimated operating expenses after entering into the initial lease with the plaintiff but before entering into an agreement for expansion space. We therefore reverse the judgment of the trial court on the plaintiff’s claims for fraud and violation of the TCPA and remand for determination of an appropriate remedy for damage the plaintiff suffered after agreeing to lease the expansion space.

Davidson Court of Appeals

Carl Sutherland v. Cherry Lindamood et al.
M2009-02214-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Stella L. Hargrove

An inmate filed suit, claiming that he was discriminated against in job assignments and that his First Amendment rights were violated in that he was retaliated against for making complaints. The trial court granted the defendants’ motion to dismiss. We affirm.

Wayne Court of Appeals

Jackie Sabaski et al. v. Wilson County Board of Education et al.
M2010-00872-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge John D. Wooten

Parents of disabled child sued county board of education and several employees for assault and battery, false imprisonment, and negligent failure to train employees. The trial court dismissed the complaint on the ground that the plaintiffs failed to exhaust their administrative remedies pursuant to the Individuals with Disabilities Education Act (“IDEA”). We conclude that the IDEA’s exhaustion requirement does not apply to the plaintiffs’ state law claims. We further conclude that the plaintiffs’ complaint fails to state a valid claim for negligent failure to train because the IDEA provides the exclusive remedy for such claims, but their claims for assault and battery and false imprisonment are not precluded by the IDEA.

Wilson Court of Appeals