Court of Appeals Opinions

Format: 12/05/2019
Format: 12/05/2019
MSM Development, LLC v. William Steward et al.
E2019-00441-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Frank V. Williams, III

A commercial tenant transferred its interest in a lease to two individuals through a document called an assignment. The rental term set forth in the lease was fourteen months longer than the rental term set forth in the assignment. The transferees only paid rent for the term set forth in the assignment, and the landlord filed a complaint in an effort to collect the rent for the additional fourteen months. The trial court concluded that the document transferring the initial tenant’s interest was a sublease rather than an assignment because the term in the assignment was shorter than the term set forth in the lease. The transferor appealed, and we reverse the trial court’s judgment because the assignment specified that in the event of a conflict between the lease and the assignment, the lease controlled.

Roane County Court of Appeals 11/13/19
In Re B.A., et al.
W2019-00129-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Martha B. Brasfield

Father appeals the termination of his parental rights to two children, B.A. and K.A. The trial court considered six grounds for termination: (1) persistent conditions, pursuant to Tenn. Code Ann. § 36-1-113(g)(3)(A); (2) severe child abuse, pursuant to Tenn. Code Ann. § 36-1-113(g)(4); (3) sentencing to more than two years for conduct against a child, pursuant to Tenn. Code Ann. § 36-1-113(g)(5); (4) sentencing to ten years or more and child under eight years of age, pursuant to Tenn. Code Ann. § 36-1-113(g)(6); (5) non-compliance with a permanency plan, pursuant to Tenn. Code Ann. § 36-1-113(g)(2); and (6) abandonment, pursuant to Tenn. Code Ann. § 36-1-113(g)(1). The court did not find sufficient evidence to support termination of father’s parental rights for abandonment. The court found clear and convincing evidence on the other five grounds. By the same quantum of proof, the court also found that termination is in the children’s best interest. Father appeals. We affirm.

McNairy County Court of Appeals 11/12/19
Johnny Nesmith v. Samuel C. Clemmons, Et Al.
M2017-02521-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Michael W. Binkley

Defendants appeal the judgment entered in favor of Plaintiff in this breach of contract action arising out of a failure to pay a promissory note.  Defendants argue that the trial court erred in several pretrial rulings, in concluding that the contract was ambiguous and considering parol evidence, in holding that the attorney that drafted the agreement represented Defendants and construing the ambiguous term against them, and in denying their motion to supplement the appellate record.  Upon our review, we discern no reversible error and affirm the judgment of the trial court.

Williamson County Court of Appeals 11/07/19
Carl Wayne Hixson Et Al. v. American Towers, LLC
E2019-00335-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jeffrey M. Atherton

Wayne Hixson and Eric Hixson (the Hixsons) granted a perpetual, exclusive easement to American Towers, LLC (ATC)1 to operate a telecommunications system at the top of a hill on their property. For many years, the hill experienced progressive slope failures. A recent mudslide caused thousands of dollars in property damage to the Hixsons and All Things Fast Motorsports, LLC (All Things Fast), a metal fabrication business owned by Wayne Hixson’s grandson. ATC spent thousands of dollars to move a generator away from the slope failure. The parties fear that the cell tower could collapse. In the trial court, the Hixsons and All Things Fast filed a complaint seeking a declaratory judgment regarding the parties’ respective maintenance responsibilities under the easement agreement. They also sought damages arising from ATC’s alleged breach of the easement agreement and other tortious conduct. ATC filed a counterclaim alleging similar causes of action. After a bench trial, the court ruled that ATC has a duty to maintain the easement and that the Hixsons have a duty to maintain the surrounding hillside for the benefit of ATC. Because the court found that the Hixsons and ATC were equally at fault for failing to prevent the recent mudslide, the court rejected their claims of negligence and breach of the easement agreement. However, the court awarded $1,245.20 to All Things Fast on its negligence claim. The court also awarded $179.99 to the Hixsons on their trespass claim. Finally, the court ordered the Hixsons and ATC to pay half of the costs necessary to stabilize the hill in accordance with the remediation plan proposed by the Hixsons. ATC appeals. We modify the trial court’s declaratory judgment, vacate the award of damages to All Things Fast, and remand for further proceedings. The judgment is affirmed in all other respects.

Hamilton County Court of Appeals 11/07/19
Kay Armstrong v. Kevin C. Morrison
E2018-01985-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor John C. Rambo

This appeal concerns a clerk and master’s petition for additional staff. Kay Solomon Armstrong, Clerk and Master of Greene County (“Petitioner”), filed a petition against the County Mayor (“Defendant”) in the Chancery Court for Greene County (“the Trial Court”) seeking additional staff for her office. After a trial, the Trial Court entered an order replacing one half-time position in the office with one full-time position. The Trial Court also awarded Petitioner attorney’s fees and expenses to be paid from the fees of the Clerk and Master’s Office. Defendant appeals to this Court, arguing that the evidence preponderates against the Trial Court’s decision to award additional funding for a new full-time assistant to replace a half-time assistant and that Petitioner was not entitled to recover any attorney’s fees. We hold that reasonable attorney’s fees were recoverable by Petitioner pursuant to statute. We hold further that the evidence does not preponderate against the Trial Court’s factual findings, including the Trial Court’s core finding that Petitioner’s workspace is so structurally inefficient that her office requires more staff. We modify the Trial Court’s order on fees and expenses to the extent it failed to award Petitioner expenses she paid out of pocket. On remand, the Trial Court is to determine and enter an award including reimbursing Petitioner for her reasonable out-of-pocket fees and expenses. We affirm, as modified, the judgment of the Trial Court, and remand for further proceedings consistent with this Opinion.

Greene County Court of Appeals 11/07/19
Lytoniona Lee, et al.v. Quince Nursing and Rehabilitation, LLC
W2019-00093-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Rhynette N. Hurd

Nearly three years after the court dismissed the plaintiff’s healthcare liability action against the defendant, Plaintiff filed this breach of contract action based on the same underlying facts and circumstances. The trial court dismissed the plaintiff’s breach of contract claim as barred by the doctrine of res judicata. We affirm.

Shelby County Court of Appeals 11/07/19
Trevor Millmeyer v. Bridget Whitten
W2019-00586-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Van McMahan

Appellant/Father appeals the trial court’s denial of his petition to change the surnames of his minor children. The trial court held that Appellant failed to meet his burden to show that changing the children’s names is in their best interests. Discerning no error, we affirm.

McNairy County Court of Appeals 11/07/19
Belgravia Square, LLC v. Melvin White, et al.
W2018-02196-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge James F. Russell

Appellant appeals the trial court’s dismissal of his appeal from general sessions court in this unlawful detainer action. The general sessions court granted immediate possession of the disputed property to Appellee, and Appellant appealed to the circuit court. Although Appellant remained in possession of the property, he did not post the required possessory bond. Tenn. Code Ann.
§ 29-18-130(b)(2). The trial court dismissed the appeal finding that, in the absence of the required bond, it had no subject matter jurisdiction to hear the case. Because the statutory possessory bond is not jurisdictional, we conclude that the trial court erred in dismissing Appellant’s appeal.

Shelby County Court of Appeals 11/07/19
David Campbell v. City of Chattanooga
E2018-02010-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Jeffrey M. Atherton

David Campbell (“Appellant”) was a police officer with the Chattanooga Police Department (“CPD”). On May 29, 2016, Mr. Campbell was dispatched to an apartment complex on report of a fight there. When Mr. Campbell arrived on scene, there were approximately 20-30 people in the parking lot. Mr. Campbell and other officers directed the crowd to clear the parking lot. While Mr. Campbell was giving these instructions, Hanson Melvin, a resident of the complex, walked by Mr. Campbell, and Mr. Campbell initiated an encounter with him. Mr. Melvin was known to Mr. Campbell because, on several previous occasions, Mr. Campbell had stopped Mr. Melvin for various alleged offenses, including driving without a valid driver’s license. Mr. Melvin was walking toward a silver vehicle with his friend, Coheleach Holmes. During this interaction, Mr. Campbell handcuffed Mr. Melvin and arrested him for disorderly conduct. Mr. Campbell placed Mr. Melvin in the back of his police car and took him to jail.

Hamilton County Court of Appeals 11/06/19
Walter Joshlin, et al. v. Hollis H. Halford, III, M.D., et al.
W2018-02290-COA-R9-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James F. Russell

In this interlocutory appeal, the defendants appeal the trial court’s denial of their motion to dismiss a medical malpractice lawsuit on the ground that the plaintiffs failed to comply with Tennessee Rule of Civil Procedure 25.01. We reverse the decision of the trial court and remand the case for further proceedings.

Shelby County Court of Appeals 11/06/19
Sara Kelley Poole v. Ronald Ellis Kinslow
M2018-00324-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Clara W. Byrd

In this divorce action, the trial court equitably divided the marital estate, adopted a permanent parenting plan for the parties’ minor child, and set child support. On appeal, the husband challenges the allocation of marital debt, the denial of his request for equal parenting time, and the calculation of child support. We affirm.

Wilson County Court of Appeals 11/05/19
Talat Parveen Et Al. v. ACG South Insurance Agency, LLC Et Al.
E2018-01759-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge J. Eddie Lauderback

This appeal arises from an action commenced by two insured parties against their insurance agent and the insurance agency where he was employed after the insureds’ insurance carrier refused to provide excess uninsured motorist coverage because it was not included in the insureds’ policy. The insureds alleged that their insurance agent failed to procure the requested insurance on their behalf and that they consequently had suffered monetary losses. The Trial Court applied a statutory rebuttable presumption that the insureds had accepted the provided coverage by paying their insurance premiums, pursuant to Tennessee Code Annotated § 56-7-135(b). Upon its finding that the insureds had not rebutted that presumption, the Trial Court dismissed the insureds’ action. The insureds have appealed. Upon our determination that Tennessee Code Annotated § 56-7- 135(b) does not apply to actions against an insurance agent for failure to procure insurance coverage as directed, we reverse the Trial Court’s grant of summary judgment and remand for the action to proceed.

Washington County Court of Appeals 11/05/19
Carla Jo Capps Jones v. Joseph R. Jones
E2019-00037-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Amanda Sammons

In this post-divorce action, the husband sought to modify his alimony obligation to the wife. The trial court denied the husband’s petition to modify, determining that the husband had failed to prove that a substantial and material change in circumstance had occurred since entry of the divorce decree. The husband has appealed. Discerning no reversible error, we affirm.

Campbell County Court of Appeals 11/04/19
In Re Estate of JD Bush
E2018-02192-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor John F. Weaver

Due to the deficiencies in Appellant’s brief, we conclude that he waived consideration of all issues on appeal and hereby dismiss the appeal.

Knox County Court of Appeals 11/01/19
State of Tennessee Ex Rel., Amanda C. Sensing v. Bradley K. Sensing
M2017-02428-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Michael Binkley

The trial court denied Father’s petition to modify child support.  Because Father failed to establish his current gross monthly income, as necessary to prove a significant variance, we affirm the decision of the trial court.

Williamson County Court of Appeals 10/31/19
Shauneille Sharifa (Morton) v. Wells Fargo/ASC
M2018-00178-COA-R3-CV
Authoring Judge: Judge Arnold B. Golden
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This is an appeal from the trial court’s denial of a motion to recuse and award of summary judgment.  Plaintiff-homeowner took out a loan secured by a deed of trust on a parcel of real property.  After defaulting on the loan, plaintiff and defendant-bank entered into a loan modification agreement.  Plaintiff, however, again defaulted on the loan, and, after she failed to make the required acceleration payments, defendant initiated foreclosure proceedings pursuant to the deed of trust.  The real property ultimately was sold at foreclosure for less than the balance owed on the loan.  Plaintiff then sued defendant for breach of contract and wrongful foreclosure.  Defendant moved for summary judgment.  Plaintiff never responded to defendant’s motion for summary judgment.  Three days prior to the hearing on the summary judgment, plaintiff filed a motion for a change of venue, which the trial judge treated as a recusal motion pursuant to Tennessee Supreme Court Rule 10B and which, following a hearing, he denied.  The trial court subsequently granted defendant’s summary judgment motion and dismissed plaintiff’s claims with prejudice.  Plaintiff appeals both the trial court’s denial of the motion to recuse and its granting of the motion for summary judgment.  We affirm.

Davidson County Court of Appeals 10/31/19
Vivian Khah v. Jonathan Capley
M2018-02189-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This appeal arises from the dismissal of a personal injury action in which the alleged tortfeasor died before suit was filed.  Upon a motion to dismiss, the trial court determined that the suit was barred by the applicable statute of limitations.  Because no personal representative was appointed for the deceased tortfeasor and more than a year had elapsed following the accrual of the plaintiff’s cause of action, we affirm the dismissal.  

Davidson County Court of Appeals 10/31/19
STATE OF TENNESSEE EX REL. ANGELA HOCKETT v. TRACY JOY
M2018-02004-COA-R3-JV
Authoring Judge: JUDGE ANDY D. BENNETT
Trial Court Judge: JUDGE SHEILA CALLOWAY

The trial court entered an order awarding a mother retroactive child support and calculating the amount of support the father owed.  The father filed a motion for relief from the judgment pursuant to Tenn. R. Civ. P. 60.02.  Several months later, he amended his motion to assert that he was entitled to relief from the judgment because his attorney sustained an injury and died, which prevented the father from timely receiving a copy of the judgment so he could appeal it.  The trial court denied the motion, finding that the father failed to raise the issue within a reasonable time, and then awarded the mother one-half of her attorney fees.  The father appeals.  We affirm the trial court’s denial of the motion, but we vacate the award of attorney fees because the trial court failed to consider their reasonableness.

Davidson County Court of Appeals 10/31/19
101 Construction Company v. Lawrence B. Hammet, II Et Al.
M2018-01321-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Louis W. Oliver

Plaintiff client sued Defendant attorney and law firm for damages tied to a breach of an attorney’s fees contract following the completion of an arbitration matter. Following a jury trial, the jury returned a verdict in favor of defendants.  Plaintiff appeals the denial of its motion for directed verdict and motion for new trial. Because the trial court erred in denying plaintiff’s motion for directed verdict on interpretation of the written contract at issue, we reverse the verdict entered by the trial court and remand with instructions to enter a directed verdict against the attorney and law firm in the amount of $67,335.69 and to determine whether prejudgment interest is warranted in this case.

Davidson County Court of Appeals 10/30/19
E Solutions For Buildings, LLC v. Knestrick Contractor, Inc., Et Al.
M2018-02028-COA-R3-CV
Authoring Judge: Judge Arnold B. Golden
Trial Court Judge: Chancellor Russell T. Perkins

This appeal involves payment disputes arising out of a public construction project.  Among other things, the case involves claims made by an equipment supplier against a subcontractor, the project’s general contractor, and the general contractor’s bonding company, and claims made by the same subcontractor against the general contractor.  Following a trial, the trial court granted the supplier a judgment against the subcontractor and granted the subcontractor a judgment against the general contractor. The supplier’s claim against the general contractor and its bonding company was denied. The propriety of these rulings and numerous other issues are now before this Court.  Having reviewed the record transmitted to us on appeal, we affirm in part, affirm in part as modified, reverse in part, and remand the case for such further proceedings as are necessary and consistent with this Opinion.

Davidson County Court of Appeals 10/30/19
City of Franklin, Tennessee v. W. L. Hailey & Co., Inc. Et Al.
M2018-01535-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Joseph A. Woodruff

Appellant city appeals from the dismissal of its negligent misrepresentation claim on the basis of the economic loss doctrine, arguing that Tennessee law recognizes an exception to the economic loss doctrine for negligent misrepresentations. Because we conclude that Tennessee law does not recognize a negligent misrepresentation exception to the economic loss doctrine, we affirm the decision of the trial court.

Williamson County Court of Appeals 10/30/19
Diane Kikue-Yasutake Winne v. Scott Anderson Winne
E2018-01050-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Jeffrey M. Atherton

Husband petitioned the court to modify his alimony obligation after Wife moved in with her boyfriend. Wife maintained that her new living arrangement did not affect her need for alimony because she and her partner shared expenses equally and her living expenses after the move were unchanged. The trial court disagreed and suspended a portion of Husband’s alimony obligation. Both sides raise issues with the trial court’s decision. Contrary to Wife’s assertion, we conclude that the alimony provision in the parties’ marital dissolution agreement did not preclude modification of the alimony award as authorized by statute. We further conclude that the trial court did not err in basing its modification decision on the evidence of Wife’s financial circumstances at the time of trial. We affirm the alimony modification, but we modify the judgment so that the modification applies retroactively to the date of Husband’s petition.

Hamilton County Court of Appeals 10/30/19
Jeanie Morgan Beltz Et Al v. Brett Anthony Heffner
E2018-01962-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Rex H. Ogle

This appeal arises from the denial of a petition based on Tennessee’s Grandparent Visitation Statute. The parents of the deceased mother of a new-born child filed a petition to obtain visitation with their three-month-old granddaughter. The child’s father opposed the petition. Following discovery, the father filed a motion to dismiss or for summary judgment on the ground that there was no danger of substantial harm to the child if visitation was denied because there was no evidence that the grandparents had a significant relationship with the child. The petitioners opposed the motion relying on Tenn. Code Ann. § 36-6-306(b)(4), which established a rebuttable presumption of substantial harm to the child if visitation was denied because their daughter, the child’s mother, was deceased. The trial court found there was no significant existing relationship between the grandparents and the child. After analyzing the child’s best interests under Tenn. Code Ann. § 36-6-307, the court granted summary judgment to the father, finding the petitioners did not meet the requirements of the Grandparent Visitation Statute. We have determined that the trial court misconstrued the statutory scheme. The trial court failed to recognize that because the petitioners are the parents of the child’s deceased mother, they were entitled to the rebuttable presumption of substantial harm to the child if visitation was denied without having to establish that a “significant” relationship with their grandchild existed. Moreover, we have determined that more than one conclusion or inference can reasonably be drawn from the facts, thereby precluding summary judgment. Accordingly, we reverse and remand for further proceedings.

Jefferson County Court of Appeals 10/30/19
In Re Adrian M.-M., et al.
W2019-00931-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor W. Michael Maloan

This appeal concerns termination of parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Chancery Court for Obion County (“the Trial Court”) seeking to terminate the parental rights of Emily M. M.-A. (“Mother”) to her minor children Adrian, Maribel, Alisiana, and Elena (“the Children”). The Children had been exposed to methamphetamine in Mother’s care. After trial, the Trial Court entered an order terminating Mother’s parental rights to the Children on the grounds of abandonment by failure to provide a suitable home; abandonment by failure to visit; substantial noncompliance with the permanency plan; severe child abuse; and, being sentenced to more than two years’ imprisonment for child abuse. The Trial Court also found that termination of Mother’s parental rights is in the Children’s best interest. On appeal, Mother argues that she has made improvements such that termination of her parental rights is not in the Children’s best interest. First, apart from the grounds of failure to visit and failure to provide a suitable home, which we reverse, we affirm the grounds for termination found by the Trial Court. Regarding best interest, we find that Mother has no meaningful relationship with the Children and that her purported improvements are insufficient. The evidence is clear and convincing that termination of Mother’s parental rights is in the Children’s best interest. We affirm, in part, and, reverse, in part, the judgment of the Trial Court.

Obion County Court of Appeals 10/30/19
In Re Alexis S.
E2018-01989-COA-R3-PT
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Alex E. Pearson

This is an appeal from the trial court’s termination of a mother’s parental rights and denial of the maternal grandmother’s petition for grandparent visitation. The court terminated the mother’s rights on the grounds that she abandoned the child by willfully failing to visit and support the child, and failed to manifest an ability or willingness to assume personal custody of the child. The court also found that termination of the mother’s rights was in the child’s best interest. The court awarded guardianship of the child to her paternal grandparents and denied the maternal grandmother’s intervening petition for visitation, finding that the risk of harm in permitting visitation was greater than the risk of harm in denying it. The mother appeals the termination of her parental rights, and the grandmother appeals the denial of her petition for visitation. Because the trial court failed to make sufficient findings as mandated by Tennessee Code Annotated § 36-1-113(k), we reverse the trial court’s determination that the ground of abandonment by willful failure to support the child was established and remand the issue for the trial court to make the requisite findings and to enter judgment accordingly. We reverse the court’s determination that the other two grounds for termination were proven because the record fails to establish either ground by clear and convincing evidence. Because no ground for termination has been proven, we also reverse the court’s determination regarding the child’s best interests. Because the court terminated the father’s parental rights, we affirm the court’s appointment of the paternal grandmother and her husband as the child’s guardians, subject to the mother’s rights, which have not been terminated. We also affirm the denial of the maternal grandmother’s petition for visitation.

Hamblen County Court of Appeals 10/29/19