Court of Appeals Opinions

Format: 10/22/2021
Format: 10/22/2021
Kimberly Johnson Dougherty v. M.E. Buck Dougherty, III
W2021-01014-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Martha B. Brasfield

This accelerated interlocutory appeal is taken from the trial court’s order denying Appellant’s motion for recusal. Because there is no evidence of bias that would require recusal under Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial court.

Fayette County Court of Appeals 09/29/21
State of Tennessee Ex Rel. Larry E. Parrish, P.C. v. The Honorable James B. Cox Et Al.
M2021-00029-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Senior Judge Robert E. Lee Davies

Appellant brought a mandamus action in the trial court praying that the court would mandate certain actions related to other litigation involving Appellant. The trial court dismissed the action. We affirm the court’s dismissal and, finding the appeal to be frivolous pursuant to Tennessee Code Annotated section 27-1-122, remand the case for a determination of Appellees’ damages incurred as a result of the appeal.

Lincoln County Court of Appeals 09/29/21
In Re Isabella M., Et Al.
M2020-01616-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ken Witcher

This action involves the termination of a mother’s parental rights to her minor children. Following a bench trial, the trial court found that clear and convincing evidence existed to establish the following statutory grounds of termination: (1) substantial noncompliance with the permanency plan; (2) the persistence of conditions which led to removal; and (3) failure to manifest an ability and willingness to care for the children. The court also found that termination was in the best interest of the children. We affirm the trial court.

Macon County Court of Appeals 09/29/21
In Re Kyler C. Et Al.
M2020-01366-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge William Riley Anderson, III

In this second appeal of the termination of a mother’s and father’s rights to their children, we consider the best interest of four children.  In the previous appeal, we affirmed that clear and convincing proof established the existence of severe abuse and therefore constituted a ground for termination. On remand, the trial court made appropriate findings and determined that it was in the children’s best interest for the rights of the mother and father to be terminated.  On appeal, we conclude that the evidence establishes that termination is in the children’s best interest. Accordingly, we affirm.

Grundy County Court of Appeals 09/29/21
City of Morristown Et Al. v. Michael W. Ball Et Al.
E2020-01567-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Douglas T. Jenkins

The trial court granted the cross-plaintiff’s motion for judgment on the pleadings. Because this case is inappropriate for rendering judgment on the pleadings, we reverse.

Hamblen County Court of Appeals 09/29/21
In Re The Estate of Mary E. Schaumberg
E2019-02030-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Larry M. Warner

In this action to contest a will, the trial court determined that the contestants were estopped from maintaining their action because they had received property from the decedent’s estate pursuant to the will’s provisions and were therefore bound by its terms. The will contestants have appealed. Determining that the elements of estoppel were not proven, we vacate that portion of the trial court’s final order and remand this matter to the trial court for further proceedings.

Cumberland County Court of Appeals 09/29/21
In Re Layton W.
M2021-00084-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Justin C. Angel

For a second time, a father appeals the termination of his parental rights to his child. On remand after the first appeal, the trial court determined that there were two statutory grounds for terminating the father’s parental rights and that termination was in the child’s best interest. We conclude that the record contains clear and convincing evidence to support one ground for termination: incarceration under a sentence of at least ten years when, at sentencing, the child was under the age of eight. But, because the trial court’s order lacks sufficient findings regarding the child’s best interest, we vacate and remand.

Franklin County Court of Appeals 09/28/21
F & M Bank v. George Raymond Fleming, Jr.
M2020-01086-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Ross H. Hicks

Appellant debtor appeals the trial court’s decision to find certain affirmative defenses waived, to deny his motion to continue the summary judgment hearing in order to conduct discovery, and to grant summary judgment to the defendant bank. Discerning no reversible error, we affirm.

Montgomery County Court of Appeals 09/28/21
Kenneth J. Mynatt v. National Treasury Employees Union, Chapter 39 Et Al.
M2020-01285-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Darrell Scarlett

This case involves claims of malicious prosecution and civil conspiracy.  The trial court dismissed the claims pursuant to Tennessee Rule of Civil Procedure 12.02(6), determining that the plaintiff could not prove that the underlying criminal prosecution had terminated in his favor, a necessary element of a malicious prosecution claim.  Regarding the civil conspiracy claim, the court determined that the conspiracy claim was only actionable if the underlying tort were actionable.  Having found that the malicious prosecution claim could not stand, the court concluded that the conspiracy claim had to be dismissed as well.  The plaintiff timely appealed.  Based upon the applicable standard of review, we conclude that the trial court erred in dismissing the plaintiff’s claims, and we accordingly reverse the judgment of dismissal and remand this matter to the trial court for further proceedings.

Rutherford County Court of Appeals 09/28/21
In Re Raiden H. Et Al.
E2021-01105-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Daniel G. Boyd

The appellant filed a motion to accept late-filed notice of appeal. Because the notice of appeal was not timely filed, this Court lacks jurisdiction to consider this appeal.

Hawkins County Court of Appeals 09/28/21
In Re Ryat M.
M2020-00156-COA-r3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Clara W. Byrd

In this dependency and neglect case, the juvenile court found the child dependent and neglected and awarded custody to Appellees, maternal grandparents. Appellant/father failed to timely perfect an appeal of the juvenile court’s final order in the dependency and neglect matter. However, father filed a petition to set aside or vacate the same, which the juvenile court denied. On appeal, the circuit court accepted jurisdiction over the dependency and neglect matter, and conducted a de novo hearing; however, the circuit court denied hearing as to “other issues,” including father’s petition to set aside or vacate order. We conclude that the circuit court lacked jurisdiction to review the dependency and neglect petition; as such, we vacate the circuit court’s order on dependency and neglect for lack of jurisdiction. Because there is a question as to whether father’s notice of appeal concerning his motion to set aside or vacate order conferred jurisdiction on the circuit court to review that motion, we vacate the portion of the circuit court’s order wherein it determined that it would hear no other issues on appeal. We remand to the circuit court for determination of whether father perfected an appeal of the juvenile court’s order denying his motion to set aside or vacate order. If the circuit court determines that father perfected the appeal, then the circuit court should proceed with de novo review of father’s motion.

Macon County Court of Appeals 09/27/21
Carolyn Diane Long v. Steven Lawrence Long
E2020-01350-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Larry Michael Warner

Following a bench trial in this divorce action, the trial court entered an order in October 2018, granting the parties a divorce and distributing the marital estate. Upon the wife’s appeal, this Court vacated the trial court’s distribution of marital property and remanded, directing the trial court to make sufficient findings of fact and conclusions of law, pursuant to Tennessee Rule of Civil Procedure 52.01, concerning the classification and valuation of various real estate and real estate partnership assets. Following an evidentiary hearing on remand, the trial court entered a final order in September 2020. Noting that the parties had stipulated that the wife’s interests in a realty company and two property partnerships were separate property, the trial court found that the wife’s partnership interest in a fourth realty enterprise at issue was marital property and also found that several specific realty assets were marital property. The trial court determined its valuation of each property or property interest and, pursuant to the factors provided in Tennessee Code Annotated § 36-4-121(c), set forth what it found to be an equitable distribution of the marital property. Wife has appealed.

Cumberland County Court of Appeals 09/27/21
In Re Artemas A., et al.
W2021-00058-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge John W. Whitworth

This appeal involves a petition to terminate parental rights to four children. The juvenile court found by clear and convincing evidence that six grounds for termination were proven: (1) abandonment by failure to support; (2) abandonment by failure to provide a suitable home; (3) substantial noncompliance with the permanency plan; (4) persistent conditions; (5) severe child abuse; and (6) failure to manifest an ability and willingness to assume legal and physical custody or financial responsibility of the children. The juvenile court also found that termination was in the best interests of the four children. Only the mother appeals. We affirm.

Benton County Court of Appeals 09/24/21
Christina Brooke Tigart v. Charles Shannon Tigart
M2020-01146-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Ted A. Crozier

Appellant/Father and Appellee/Mother’s Marital Dissolution Agreement (“MDA”) and agreed permanent parenting plan (“PPP”) were incorporated into the final decree of divorce. In the PPP, the parties agreed to an upward deviation in Father’s child support obligation. Mother subsequently petitioned the trial court to modify the parenting plan, to hold Father in contempt for failing to comply with certain provisions of the MDA, and to award her attorney’s fees and costs under the MDA. The trial court initially modified the PPP to lower Father’s child support obligations to comport with the child support guidelines; however, the trial court later granted Mother’s Tennessee Rule of Civil Procedure 59 motion to alter or amend the judgment and reinstated the original upward deviation. The trial court denied Mother’s petition for contempt and her request for attorney’s fees. For the reasons discussed herein, we vacate the trial court’s denial of Mother’s contempt petition and reverse the trial court’s denial of Mother’s request for attorney’s fees and costs under the MDA. The trial court’s orders are otherwise affirmed.  

Montgomery County Court of Appeals 09/24/21
Sentry Select Insurance Company v. Tennessee Farmer's Mutual Insurance Company, Et Al.
M2020-00110-COA-R3-CV
Authoring Judge: Presiding Judge frank G. Clement, Jr.
Trial Court Judge: Judge John D. Wootten, Jr.

This is an action to declare the rights and responsibilities of Sentry Select Insurance Company (“Sentry”) and Tennessee Farmer’s Mutual Insurance Company (“Farmer’s Mutual”). At issue is the meaning of the “other insurance” clauses in the respective policies—whether one of the carriers is the primary insurer or whether the coverage should be prorated. When the insured filed claims against both carriers for a loss in excess of one million dollars in farm equipment, each carrier insisted the other was the primary insurer. Following a hearing on cross motions for summary judgment, the trial court reasoned that the two-year gap between the insured’s purchase of the Sentry policies and subsequent purchase of the Farmer’s Mutual policy demonstrated that the Sentry policies were intended to be primary, and the Farmer’s Mutual policy was intended to be excess, “particularly in light of the clear unambiguous language of the [Farmer’s Mutual] ‘Other Insurance’ clause.” Thus, the court granted summary judgment in favor of Farmer’s Mutual and this appeal followed. Having realized, as other courts have, that “other insurance” clauses are problematic, in that, they have elevated hair splitting and nit picking to a new art form, and having done some hair splitting and nit picking ourselves, we affirm the trial court but on other grounds. Reading the Sentry and Farmer’s Mutual “other insurance” clauses together, we have determined that the Sentry policies were intended as primary and the Farmer’s Mutual policy was intended as excess. Accordingly, we affirm the trial court’s ruling that Sentry is the primary carrier.

Macon County Court of Appeals 09/24/21
In Re Kaisona B., et al.
W2020-01308-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jason L. Hudson

This is a termination of parental rights case. Appellant/Mother appeals the trial court’s termination of her parental rights to the two minor children on the grounds of: (1) abandonment by failure to provide a suitable home, Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(ii); (2) substantial non-compliance with the requirements of the permanency plans, Tenn. Code Ann. § 36-1-113(g)(2); (3) persistence of the conditions that led to the children’s removal, Tenn. Code Ann. § 36-1-113(g)(3)(A); and (4) failure to manifest an ability and willingness to assume custody, Tenn. Code Ann. §36-1-113(g)(14). Appellant/Father appeals the termination of his parental rights on the grounds of: (1) substantial non-compliance with the requirements of the permanency plans; and (2) failure to manifest an ability and willingness of ability to assume custody. Both Mother and Father also appeal the trial court’s determination that termination of their respective parental rights is in the children’s best interest. Discerning no error, we affirm.

Dyer County Court of Appeals 09/23/21
Masterfit Medical Supply v. Samuel Bada D/B/A Primecare, D/B/A New Primecare
W2020-01709-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Kyle C. Atkins

This is an appeal from a trial court’s grant of summary judgment. In a dispute involving unpaid invoices for medical supplies, the trial court ruled in favor of the appellee, finding that the appellant was personally liable for the indebtedness. In so doing, the trial court relied upon the unpaid invoices that were previously found to be admitted by the court pursuant to Rule 36.01 of the Tennessee Rules of Civil Procedure after the appellant failed to respond to the appellee’s request for admission. The appellant now appeals. Based on the record on appeal, we affirm the trial court’s grant of summary judgment.

Madison County Court of Appeals 09/23/21
Jennifer King v. Delfasco, LLC Et Al.
E2020-01038-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Beth Boniface

This appeal concerns an alleged violation of Tenn. Code Ann. § 50-1-304, the Tennessee Public Protection Act (“TPPA”), as well as common law retaliatory discharge. Jennifer King (“King”), a former shipping and receiving coordinator for Delfasco, LLC, a company that manufactures defense-related products, sued Delfasco, LLC and related entity Delfasco Finance, LLC (“Delfasco” collectively) in the Circuit Court for Greene County (“the Trial Court”) alleging she was wrongfully fired for refusing to share with Delfasco owner Jack Goldenberg (“Goldenberg”) her government-issued password to the Department of Defense (“DOD”) Wide Area Workflow (“WAWF”) system. King had consulted a DOD representative who advised her not to reveal her password. After a trial, the Trial Court found in favor of King and awarded her damages. Delfasco appeals, arguing among other things that King was not asked to perform an illegal act. King raises her own issues concerning damages. We find, inter alia, that the evidence does not preponderate against the Trial Court’s factual findings, and we leave undisturbed the Trial Court’s credibility determinations.

Greene County Court of Appeals 09/22/21
City of Memphis, Tennessee v. Beale Street Development Corporation
W2020-00523-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Jim Kyle

After counsel announced that the parties had settled their differences, the trial court entered a consent judgment dismissing all claims with prejudice. One year later, one of the litigants moved to set aside the judgment arguing lack of consent and fraud. The moving party claimed that it never approved the settlement or consented to entry of the dismissal order. The trial court denied the motion. Because the trial court’s decision was not an abuse of discretion, we affirm.

Shelby County Court of Appeals 09/21/21
Sarah H. Richardson v. Benjamin N. Richardson
M2020-00179-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Ross H. Hicks

Mother appeals the trial court’s decision to change the parties’ permanent parenting plan to designate Father as the primary residential parent of the children. Discerning no reversible error, we affirm. 

Montgomery County Court of Appeals 09/17/21
Ronald Whitford Et Al. v. Village Groomer & Animal Inn, Inc.
M2020-00946-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ted A. Crozier

A property owner filed suit against the owners of a neighboring property, alleging that the neighbors had created a nuisance and trespassed by diverting surface water onto his property and causing a sinkhole to develop. After a trial on the matter, a jury returned a verdict finding that the neighbor had not created a nuisance and had not trespassed. The trial court judge confirmed the jury’s verdict and dismissed all claims against the neighbor with prejudice. Because the record contains material evidence supporting the jury’s verdict, we affirm.

Montgomery County Court of Appeals 09/17/21
In Re Kendall K.
M2021-00204-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Ted A. Crozier

An issue regarding attorney’s fees remains pending.  As such, the order appealed from does not constitute a final appealable judgment, and this Court lacks jurisdiction to consider this appeal.

Robertson County Court of Appeals 09/15/21
County of Sumner, In Its Own Capacity And For The Use And Benefit Of The State Of Tennessee, Et Al. v. Delinquent Taxpayers As Shown On The Real Property Tax Records, Jay Kalbes
M2020-01119-COA-R3-CV
Authoring Judge: Jude Carma Dennis McGee
Trial Court Judge: Chancellor Louis W. Oliver, III

This is an appeal by a pro se appellant. Due to the deficiencies in the appellant’s brief on appeal, we conclude that he waived consideration of any issues on appeal and hereby dismiss the appeal.

Sumner County Court of Appeals 09/15/21
Abraham Best v. City of Memphis
W2021-00020-COA-R3-CV
Authoring Judge: John W. McClarty
Trial Court Judge: Judge Mary L. Wagner

Former firefighter who alleged miscalculation of his Line of Duty disability benefits brought an action for breach of contract, negligence, and negligent infliction of emotional distress against the City of Memphis. In this appeal from the trial court’s dismissal of the complaint pursuant to Tennessee Rule of Civil Procedure 12.02(1) we affirm the trial court.

Shelby County Court of Appeals 09/15/21
Lee Ann Polster v. Russell Joseph Polster
M2020-01150-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ted A. Crozier

In this divorce case, a husband appeals the trial court’s denial of his motion to alter or amend, arguing that the court should not have granted the divorce on the ground of irreconcilable differences or approved the parties’ marital dissolution agreement when the husband purportedly withdrew his consent to the divorce, lacked the capacity to enter into a marital dissolution agreement, and was under duress at the time he executed it. He also argues that his due process rights were infringed. Upon our review, we affirm the judgment of the trial court. We also award the wife her attorney’s fees for this appeal and remand to the trial court for a calculation of those fees.

Montgomery County Court of Appeals 09/14/21