Court of Appeals Opinions

Format: 07/01/2022
Format: 07/01/2022
Johnny Ingle v. State of Tennessee
W2020-00334-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee V. Coffee

A Shelby County grand jury indicted the Defendant, Johnny Ingle, for aggravated burglary, aggravated assault, and domestic assault. Before these charges were resolved, the Defendant filed a habeas corpus petition, which the trial court summarily dismissed as inappropriately filed before there was a final conviction. Based upon the Defendant’s frustration with his case, the trial court held a hearing to address the Defendant’s complaints. During the hearing, the trial court found the Defendant in contempt of court and sentenced him to ten days. On appeal, the Defendant asserts that the trial court erred when it found him in contempt of court. Our review of the record revealed that the Defendant failed to timely file his appeal, therefore, we dismiss the appeal.

Shelby County Court of Appeals 12/28/21
In Re Zian L.
M2021-00879-COA-R3-PT
Authoring Judge: Chief Judge, D. Michael Swiney
Trial Court Judge: Judge Sammie E. Benningfield, Jr.

This appeal concerns the termination of a mother’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for White County (“the Juvenile Court”) seeking to terminate the parental rights of Hope H. (“Mother”) to her minor son Zian L. (“the Child”). After a hearing, the Juvenile Court entered an order terminating Mother’s parental rights on three grounds and finding that termination of Mother’s parental rights is in the Child’s best interest, all by the standard of clear and convincing evidence. Mother appeals, arguing that the Juvenile Court erred in its best interest determination. We affirm the judgment of the Juvenile Court in its entirety.

White County Court of Appeals 12/28/21
Marilyn Jones v. Daniel Marshall
M2020-01627-COA-R3-CV
Authoring Judge: Chief Judge, D. Michael Swiney
Trial Court Judge: Judge Joseph P. Binkley, Jr.

In this legal malpractice action, the plaintiff appeals the trial court’s decision granting summary judgment in favor of the defendant and dismissing all of the plaintiff’s claims against the defendant. The trial court found that the plaintiff’s action was untimely and violated the statute of limitations. Discerning no error, we affirm.

Davidson County Court of Appeals 12/28/21
Dillon Brooks v. Heather Avery Andrews
W2021-00106-COA-R10-JV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor JoeDae L. Jenkins

This extraordinary appeal arises from an alleged biological father’s complaint for “emergency custody,” injunctive relief, and to set child support, filed in the Shelby County Chancery Court. The chancery court immediately entered a restraining order requiring that the child either remain in Shelby County or be returned to Shelby County in the event she had been removed. It also entered a temporary injunction requiring the mother to place the child in the custody of the alleged father pending further orders. Counsel for the mother filed a notice of limited appearance and a motion to dismiss the complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, insufficiency of service of process, and failure to state a claim. The mother submitted affidavits and other proof in support of her position that she and the child were residents of California and had not been present in the State of Tennessee when the complaint was filed or since, so there was no basis for asserting temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, Tenn. Code Ann. § 36-6-219. She also argued that the alleged father had no right to custody of the child because he had never obtained an order establishing paternity. At a hearing, the chancellor orally denied the mother’s motion to dismiss. The mother filed an application for an extraordinary appeal to this Court pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure and requested a stay of the trial court proceedings. The alleged father then filed an amended complaint. On the same date, this Court stayed the proceedings in the trial court and directed the mother to obtain the entry of a written order memorializing the chancellor’s oral ruling. Thereafter, the chancery court entered a lengthy written order denying the mother’s motion to dismiss on all grounds asserted. This Court granted the mother’s application for an extraordinary appeal and framed the single issue as whether the alleged father had standing to file the complaint for emergency custody, for injunctive relief, and to set child support in Shelby County Chancery Court. We now vacate the trial court’s orders exercising temporary emergency jurisdiction, reverse in part the order denying the motion to dismiss, and remand for further proceedings.

Shelby County Court of Appeals 12/27/21
Timothy Lee Malone v. Anthony Viele, Et Al.
E2021-00637-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jean A. Stanley

This is a negligence case arising out of an injury suffered by the plaintiff when he fell off a ladder at the defendant’s cabin which was then under construction. The trial court granted the defendant’s motion for summary judgment, holding that there was no genuine issue as to any material fact and that the plaintiff’s evidence was insufficient to establish his claim. The plaintiff appeals. We conclude that there is no dispute of material fact and that summary judgment in favor of the defendant was properly granted. Accordingly, we affirm.

Carter County Court of Appeals 12/27/21
Charlene C. Bradford v. Josh Terry ET AL.
M2019-01340-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge James G. Martin, III

To avoid foreclosure, a homeowner and her daughter made a deal to sell their home. The purchasers paid off the mortgage and, after acquiring title, leased the home back to the daughter with an option to purchase. When the daughter failed to make timely lease payments, the purchasers sued for possession of the home. The (former) homeowner filed her own suit, alleging that the transaction was an equitable mortgage subject to rescission under the Federal Truth in Lending Act. She also alleged that the transaction violated Tennessee’s Foreclosure-Related Rescue Services Act. Following a trial, the court agreed that the transaction created an equitable mortgage that violated the Truth in Lending Act. So, under the federal act, the court rescinded the transaction and awarded damages and attorney’s fees. The court dismissed the claims under the Foreclosure-Related Rescue Services Act after determining it was inapplicable. On appeal, we conclude that the Foreclosure-Related Rescue Services Act, rather than the Truth in Lending Act, applied. We affirm the trial court’s rescission of the transaction under the state act. We reverse the awards under the Truth in Lending Act.

Williamson County Court of Appeals 12/27/21
Amy Elizabeth Luker v. Terry Eugene Luker
M2021-00758-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Senior Judge Robert E. Lee Davies

This appeal involves a finding of civil contempt pursuant to Tennessee Code Annotated section 29-9-104 for Husband’s failure to adhere to an alimony provision in a marital dissolution agreement incorporated in a final decree of divorce. The trial court awarded Wife attorney’s fees and expenses associated with the enforcement of the alimony provision in the marital dissolution agreement and finding of civil contempt pursuant to Tennessee Code Annotated sections 29-9-104 and 36-5-103(c). Husband appeals. We affirm and remand for further proceedings consistent with this opinion.

Williamson County Court of Appeals 12/22/21
Virgie Katherine Stamps v. Vickie Sharon Starnes
M2021-00250-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ronald Thurman

This is a civil action by a widow against her deceased husband’s daughter to set aside a 2013 warranty deed pursuant to which the husband conveyed his childhood home to his adult children from a previous marriage. The real property, located in Putnam County, Tennessee, was acquired by the decedent in 1972, fourteen years prior to the marriage to his widow. In this action against the decedent’s only surviving issue, his daughter, the widow sought to, inter alia, establish a constructive or resulting trust and set aside the deed as a fraudulent conveyance pursuant to Tennessee Code Annotated § 31-1-105. The widow asserted that the conveyance was made fraudulently with an intent to defeat or reduce her claim for a distributive share of his net estate. Upon the motion of the decedent’s daughter, the trial court summarily dismissed all of the widow’s claims. This appeal followed. We affirm.

Putnam County Court of Appeals 12/22/21
In Re Jordyn H., et al.
W2020-01618-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Rachel J. Jackson

This appeal concerns the termination of a mother’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Lauderdale County (“the Juvenile Court”) seeking to terminate the parental rights of Erica H. (“Mother”) to her minor twin sons, Jordyn and Jadyn H. (“the Children,” collectively). After a hearing, the Juvenile Court entered an order terminating Mother’s parental rights on a number of grounds. Mother appeals. We find, by clear and convincing evidence, that five grounds for termination were proven against Mother and that termination of Mother’s parental rights is in the Children’s best interest. However, we vacate certain of the grounds found by the Juvenile Court. We therefore affirm the Juvenile Court’s judgment, as modified, terminating Mother’s parental rights to the Children.

Lauderdale County Court of Appeals 12/21/21
Nicole Marie Neuman v. Paul Phillips
M2021-01162-COA-T10B-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Deanna B. Johnson

A mother seeks accelerated review of the denial of her motion for recusal. In her motion, the mother argued that recusal was warranted because the trial judge’s husband, an elected official, expressed a public opinion on the subject matter of the case. In this appeal, she again argues that the opinion of the judge’s husband justified recusal. But she also argues that the order denying her motion for recusal reflected a bias on the judge’s part. We agree that the opinion of the judge’s husband on a political matter did not warrant recusal. And, while the order denying the recusal request did make findings about the motive behind the request that were unsupported by the record, the erroneous findings alone are insufficient to raise a reasonable question as to the judge’s impartiality. So we affirm.

Williamson County Court of Appeals 12/21/21
Paula Harris, Conservator For Saundra Richey v. Reuben "Royce" Richey et al.
M2021-00331-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael W. Binkley

This appeal arises from a divorce action, in which the wife’s conservator alleged that the husband had been dissipating marital assets and had withdrawn money from joint accounts. As a result, the trial court ordered the husband to deposit the withdrawn funds with the court’s clerk and master. The wife passed away before the trial court could adjudicate the divorce action. The husband filed a motion requesting that the court return the funds to him because the divorce action had abated upon the wife’s death. The trial court dismissed the suit but denied the husband’s motion and ordered the clerk and master to continue holding the funds until they could be transferred to the probate court upon the filing of a petition to probate the wife’s estate. The husband has appealed. Having determined that the trial court erred by exercising subject matter jurisdiction over the disposition of the funds after the divorce action had abated, we reverse the trial court’s decision to withhold the funds from the husband and retain them with the clerk and master.

Williamson County Court of Appeals 12/21/21
Ernest Falls et al. v. Mark Goins et al.
M2020-01510-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This case concerns the restoration of voting rights of a Tennessee citizen who was convicted of a felony in Virginia and subsequently granted clemency by the Governor of Virginia. Because the voting applicant did not provide evidence that he paid outstanding court costs, restitution, and/or child support as is required by Tenn. Code Ann. § 40-29- 202, the election commission denied his application to vote. The voting applicant appealed the election commission’s decision to the circuit court. The circuit court upheld the election commission’s decision as valid. We agree with the trial court and affirm the trial court’s judgment.

Davidson County Court of Appeals 12/21/21
Mike Bedsole D/B/A Tiny House Chattanooga v. Sinclair Broadcast Group, Inc., Et Al.
E2021-00431-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Kyle E. Hedrick

Because the order appealed from does not constitute a final judgment, this Court lacks jurisdiction to consider this appeal.

Hamilton County Court of Appeals 12/16/21
Trevor Seth Adamson et al. v. Sarah E. Grove et al.
M2020-01651-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joe Thompson

This appeal involves the sufficiency of a notice of appeal that arose out of one of two actions that were consolidated at the trial court. Plaintiff listed only one of the case numbers from the consolidated cases in his notice of appeal. Because he articulates no issues stemming from the dismissal of the case number he designated, we dismiss this appeal and affirm the judgment of the trial court. The cause is remanded for calculation of the attorney’s fees incurred by the defendants in defending this appeal. 

Sumner County Court of Appeals 12/15/21
Karen Nisenbaum v. Michael Nisenbaum
M2021-01377-COA-T10B-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joseph A. Woodruff

A petitioner in a divorce case moved to recuse the trial judge.  The trial judge denied the motion, and this accelerated interlocutory appeal followed.  Because the petition for recusal appeal fails to comply with Tennessee Supreme Court Rule 10B, we dismiss the appeal. 

Williamson County Court of Appeals 12/15/21
State of Tennessee v. Sidney Eugene Watkins
W2020-01006-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Kyle C. Atkins

The Defendant, Sidney Eugene Watkins, was convicted by a jury of alternative counts of possession of marijuana with the intent to sell or deliver and possession of a firearm during the commission of those dangerous felonies, as well as simple possession of methamphetamine, simple possession of alprazolam, and possession of drug paraphernalia. Following the jury verdict, the Defendant renewed his motion for judgment of acquittal regarding the two firearm convictions (counts 7 and 8). The trial court granted the Defendant’s motion for judgment of acquittal on the firearm counts, finding the evidence insufficient to support those convictions. The State appeals. Because we conclude that a reasonable jury could have found all of the necessary elements of the crime of possession of a firearm during the commission of a dangerous felony, we reverse the trial court’s decision to grant the Defendant’s motion for judgment of acquittal and reinstate the convictions for those counts. We remand to the trial court for sentencing on those counts, as well as for correction of the judgment form in count 13 for the reasons stated in this opinion.

Madison County Court of Appeals 12/15/21
Rachel Green et al. v. State of Tennessee
M2020-01244-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Commissioner James A. Haltom

In this action filed against the State of Tennessee (“the State”), alleging negligence by employees of the Tennessee Department of Children’s Services (“DCS”), the Claims Commission (“the Commission”) dismissed the plaintiffs’ claims due to lack of subject matter jurisdiction.  Determining that subject matter jurisdiction existed in the Commission, we vacate the Commission’s order and remand this matter to the Commission for further proceedings consistent with this opinion. 

Court of Appeals 12/15/21
In Re Ni'Kaiya R.
E2021-00517-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert D. Philyaw

In this termination of parental rights case, Father/Appellant appeals the termination of his parental rights to the minor child on the grounds of: (1) abandonment by failure to visit, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(i); (2) failure to manifest an ability and willingness to assume custody, Tenn. Code Ann. § 36-1-113(g)(14); and (3) grounds applicable only to putative fathers, Tenn. Code Ann. § 36-1-113(g)(9). Father/Appellant also appeals the trial court determination that termination of his parental rights is in the child’s best interest. Discerning no error, we affirm.

Hamilton County Court of Appeals 12/15/21
In Re Cyric W.
M2021-00410-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Sharon Guffee

This appeal involves a petition to terminate parental rights.  The juvenile court found by clear and convincing evidence that five grounds for termination were proven: (1) abandonment by failure to support; (2) abandonment by failure to provide a suitable home; (3) substantial noncompliance with a permanency plan; (4) persistent conditions; and (5) mental incompetence.  The juvenile court also found that termination was in the best interests of the child.  The mother appeals.  We reverse the trial court in part and affirm in part.

Williamson County Court of Appeals 12/13/21
Flora Setayesh v. State of Tennessee
M2020-01490-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Commissioner James A. Haltom

This appeal involves the interpretation of a provision in an employment contract executed by a professor and Nashville State Community College.  The appellant, a tenured faculty member, transitioned from a teaching position to an administrative position and back again, and asserts that Nashville State breached the terms of her employment contract when it refused to pay her 80% of her administrative salary when she returned to a faculty position.  The Tennessee Claims Commission held a trial on the breach of contract issue and determined that the contract referred to a Tennessee Board of Regents policy that did not entitle the professor to 80% of her administrative salary, and therefore, the professor’s breach of contract action failed.  The Commissioner recalculated the amount of money the professor was owed for her spring 2018 salary.  The professor appeals, asserting that the Commissioner erred in refusing to consider parol evidence in rendering its decision.  We agree with the professor that parol evidence is helpful to understanding the parties’ intent as expressed in the agreement, and we reverse the Commissioner’s decision.  The case is remanded for calculation of the professor’s faculty salary at no less than 80% of her administrative salary.

Court of Appeals 12/13/21
Brent Landon Carter v. Shannon Dale Carter
M2020-01704-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Ronald Thurman

This divorce action concerns the trial court’s classification and division of the marital estate and award of alimony to the wife.  We affirm the judgment of the trial court.

Overton County Court of Appeals 12/10/21
Robert Welch et al. v. Catherine Welch et al.
M2021-00081-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Amanda Jane McClendon

Prior to his death, the decedent brought suit for personal injury and loss of consortium in the Circuit Court of Kanawha County, West Virginia against more than seventy defendants after being diagnosed with mesothelioma.  Ultimately, the parties in that matter reached a settlement. After informing the West Virginia court of the resolution of the matter, the case was closed by the court. Shortly thereafter, and prior to full disbursement of the settlement proceeds, the decedent died from mesothelioma.  Several of the decedent’s heirs then brought the present action in Tennessee, seeking to have the settlement proceeds received pursuant to the West Virginia litigation characterized as wrongful death proceeds.  The trial court dismissed the heirs’ action, and this appeal followed.  We affirm the trial court’s dismissal.

Davidson County Court of Appeals 12/10/21
In Re: Megan Y
E2021-00837-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge J. Michael Sharp

The Notice of Appeal filed by the appellants, Jason Y. and Katina Y., stated that appellants were appealing the judgment entered on July 1, 2021. As the order appealed from does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

McMinn County Court of Appeals 12/08/21
In Re Trinity P.
M2020-01481-COA-R3-JV
Authoring Judge: Middle Section Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Judge Lee Bussart

The mother of a seven-year-old child appeals the trial court’s decision to grant grandparent visitation. Following an evidentiary hearing, the trial court concluded that a rebuttable presumption of irreparable harm existed under Tennessee Code Annotated § 36-6-306(a)(5), generally referred to as the Grandparent Visitation Statute, because the child lived with the grandparents for more than twelve months, a cessation of the relationship would create a danger of substantial harm, and visitation was in the child’s best interests based on the length and quality of the relationship and the existing emotional ties between the child and the grandparents. The trial court, however, made no finding concerning the threshold issue in -306(a): whether the mother opposed or severely reduced the grandparents’ visitation prior to their filing the petition. Following a de novo review of the record, we have determined that the grandparents failed to establish that the mother opposed or severely reduced their visitation prior to filing the petition. As a consequence, the Grandparent Visitation Statute was not implicated. Therefore, thejudgment of the trial court is reversed, and this matter is remanded with instructions to dismiss the petition.

Marshall County Court of Appeals 12/08/21
Katherine D. Morgan v. Kenneth F. Morgan, Jr.
E2020-00618-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge W. Jeffrey Hollingsworth

In this divorce case, Kenneth F. Morgan, Jr. (“Father”) appeals the trial court’s judgment adopting a permanent parenting plan that designates Katherine D. Ward2 (“Mother”) as primary residential parent of the parties’ child and grants Father parenting time of every other weekend. Father also argues that the trial court erred in (1) allowing the expert psychologist tasked with a parental assessment to testify in the manner in which he did; (2) declining Father’s request to remove the child’s guardian ad litem (“GAL”) for alleged bias; (3) ordering Father to pay two-thirds of the GAL fees awarded by the court; and (4) awarding Mother attorney’s fees and costs. We affirm the judgment of the trial court.

Hamilton County Court of Appeals 12/07/21