Court of Appeals Opinions

Format: 12/05/2021
Format: 12/05/2021
Kimberly Barrera Et Al. v. Bob Parks Realty, LLC, Et Al.
M2020-01027-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge James G. Martin, III

This appeal concerns the dismissal of a complaint under Tenn. R. Civ. P. 41.02 and denial of a motion to alter or amend under Tenn. R. Civ. P. 59. The court dismissed the complaint after finding the plaintiffs consistently violated court orders and unnecessarily delayed litigation by, inter alia, violating discovery and procedural deadlines. The plaintiffs moved to alter or amend the judgment, arguing that the trial court already excused any past violations and their latest violations were due to circumstances outside of the plaintiffs’ control. The trial court denied the motion, and this appeal followed. We have determined that the court’s basis for dismissing the case is properly supported by evidence in the record, the court identified and applied the appropriate legal principles, and its decision was within the range of acceptable alternatives dispositions. Accordingly, we affirm the trial court’s judgment.

Williamson County Court of Appeals 05/14/21
Clarksville Towers, LLC v. John Straussberger Et Al.
M2020-00756-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This appeal concerns the potential personal liability of the owner of a corporation, which was engaged as the contractor in a multi-million-dollar construction project. The trial court granted summary judgment in favor of the construction company’s owner, determining that the owner could not be held personally liable for the corporation’s alleged violations of either the Tennessee Contractors Licensing Act, the Tennessee Consumer Protection Act, the Tennessee Trust Fund Statute, or the Prompt Pay Act. The plaintiff has appealed. Upon our de novo review, we affirm the grant of summary judgment to the corporation’s owner.

Montgomery County Court of Appeals 05/11/21
In Re Enrique F. Et Al.
M2019-01765-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Stella L. Hargrove

This is an appeal from a termination of parental rights proceeding. Although the trial court found that certain grounds for termination were established against the children’s father, it determined that there was insufficient proof that termination was in the children’s best interests. On appeal, the guardian ad litem and prospective adoptive parents challenge the trial court’s best interests determination, as well as the trial court’s failure to conclude that other grounds for termination were established. Our review of the record reveals that no grounds for termination were properly found by the trial court, and we therefore affirm the trial court’s denial of the petition to terminate on this basis.

Lawrence County Court of Appeals 05/11/21
In Re Anari E., Et Al.
M2020-01051-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Amy cook Puckett

This appeal concerns the termination of a father’s parental rights to his two minor children. Thomas Miller (“Petitioner”), guardian ad litem, filed a petition in the Juvenile Court for Hickman County (“the Juvenile Court”) seeking to terminate the parental rights of Desia E. (“Father”) to Anari E. and Chrifayni O. (“the Children,” collectively). After a trial, the Juvenile Court entered an order terminating Father’s parental rights on six grounds and finding that termination of Father’s parental rights is in the Children’s best interest, all by clear and convincing evidence. Father appeals, arguing Petitioner failed to meet his burden as to any of the grounds and as to best interest. We affirm the judgment of the Juvenile Court.

Hickman County Court of Appeals 05/07/21
Robin Nunley, Et Al. v. James E. Farrar D/B/A Farrar Bonding
M2020-00519-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge M. Wyatt Burk

Appellant filed a civil warrant in general sessions court seeking a refund of her payment to Appellee, a bondsman, because the bondee was never released from public custody. The general sessions court granted judgment in Appellee’s favor, and Appellant appealed to circuit court. Eventually, Appellee filed a motion for summary judgment, arguing that Appellant was not entitled to a refund. In response, Appellant filed a motion to amend her civil warrant to clarify her theories. The trial court granted Appellee’s motion for summary judgment and denied Appellant’s motion to amend her civil warrant. Because Appellee’s failure to comply with Rule 56.03 of the Tennessee Rules of Civil Procedure prevents meaningful review of its motion for summary judgment, we reverse the trial court’s grant of summary judgment. We vacate the trial court’s denial of Appellant’s motion to amend.

Bedford County Court of Appeals 05/06/21
Regions Commercial Equipment Finance, LLC v. Richard Aviation, Inc.
W2020-00408-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Walter L. Evans

In this second appeal, Appellant appeals the trial court’s grant of summary judgment on the basis that the ruling is not the product of the trial court’s independent judgment. Appellee argues that the trial court’s ruling can be affirmed on a different basis, as the trial court erred in denying its motion to alter or amend the judgment to include this additional basis for the judgment in its favor. We agree that the trial court’s order does not comply with Smith v. UHS of Lakeside, 439 S.W.3d 303 (Tenn. 2014), and so we once again vacate the grant of summary judgment. We decline, however, to reverse the trial court’s denial of Appellee’s motion to alter or amend.

Shelby County Court of Appeals 05/06/21
Estate of Pagiel Hall Czoka Et Al v. Life Care Center of Gray Et Al.
E2020-00995-COA-R9-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Jean A. Stanley

This case is about the requisite mental capacity to execute a power of attorney. After the death of Pagiel Hall Czoka (“Decedent”), Decedent’s estate initiated a lawsuit against several defendants affiliated with the Life Care Center of Gray (“Defendants”) in January of 2018. The estate’s claims arose from an alleged assault on Decedent while she resided in Defendants’ residential health-care facility in Gray, Tennessee. In response, Defendants sought to compel arbitration of all issues and claims based upon an arbitration agreement entered into by Defendants and Decedent’s power of attorney when Decedent was admitted to Defendants’ facility in 2015. The estate responded by asserting that Decedent lacked sufficient mental capacity to execute the power of attorney on the day it was signed and that the power of attorney and the arbitration agreement were therefore void. As such, the estate argued that Defendants’ motion to compel arbitration should be denied and that the case should proceed to trial. The Circuit Court for Washington County (the “trial court”) granted Defendants’ motion to compel arbitration and the estate sought and was granted permission for this interlocutory appeal. Because the evidence in the record does not preponderate against the trial court’s finding that Decedent had the requisite capacity to enter into the power of attorney on the date in question, we affirm.

Washington County Court of Appeals 05/06/21
Glenver Ian Smith, et al. v. Stephen L. Hughes, et al.
W2020-01228-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor William C. Cole

This case involves an action filed by heirs of a deceased debtor seeking to set aside a foreclosure sale and their claims for damages against multiple defendants involved with the sale. The trial court granted summary judgment to the substitute trustee who conducted the sale, granted motions to dismiss filed by five other defendants, and dismissed the two remaining defendants sua sponte. The plaintiffs appeal. We affirm and remand for further proceedings.

Fayette County Court of Appeals 05/05/21
Sara Marie Poe Mossbeck v. John Pollard Hoover, Jr.
E2020-00311-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

This case involves a post-divorce action, in which the father filed a petition for contempt against the mother, alleging that the mother failed to pay her portion of the child’s medical expenses pursuant to the permanent parenting plan. The Trial Court denied the father’s request that the mother be held in contempt but awarded the father a judgment for the mother’s portion of the child’s medical expenses. The Trial Court declined to award attorney’s fees to the father and ordered that the mother be permitted to make installment payments to the father. We vacate the Trial Court’s order permitting the installment payments as being premature. We further modify the judgment against Mother to $38,759.11 upon our determination that the amount paid by the father to Mountain Management and Denials Management was only $1,781.76. We affirm the Trial Court’s judgment in all other aspects.

Hamilton County Court of Appeals 04/30/21
Kimber Keplinger Bastone v. James Michael Bastone
E2020-00711-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John B. Bennett

This is a consolidated appeal from judgments entered upon two post-divorce petitions filed by the mother, seeking to modify the parties’ permanent parenting plan to require the father to pay an upward deviation in child support to fund private school tuition at Baylor School in Chattanooga (“Baylor”), first for the parties’ eldest of three children in one petition and then for the parties’ middle child in the second petition. The father filed an answer objecting to the expense of Baylor tuition given the parties’ respective financial situations. He also filed a counter-petition alleging that the mother had violated the joint decision-making provision in the permanent parenting plan by unilaterally enrolling the eldest child at Baylor. Although both parties sought essentially equal coparenting time, the father also requested modification of the permanent parenting plan to designate him as the primary residential parent. Each party requested sole educational decision-making authority. Following a bench trial as to the first petition, the trial court, inter alia, approved the parties’ stipulation that a material change in circumstance had occurred since entry of the prior order; maintained the mother as the primary residential parent; maintained joint decision-making authority; found that although the mother had unilaterally enrolled the eldest child at Baylor, it was in the child’s best interest to remain at the school; and found that an upward deviation in the father’s child support obligation was appropriate to fund sixty percent of the Baylor tuition for the eldest child. During a subsequent bench trial on the mother’s second petition, the Baylor financial aid director, who had testified during the first trial concerning typical financial aid awards, testified that neither of the children at issue had been awarded financial aid for the upcoming year. The trial court sua sponte amended its prior order to reduce the upward deviation in the father’s child support obligation to fifty percent of the Baylor tuition for the eldest child and to eliminate the father’s responsibility for any extracurricular expenses at Baylor. The trial court entered a separate judgment dismissing the mother’s petition as to the middle child but including a provision that the mother would be allowed to enroll the middle child at Baylor or another private school provided that the father was not 1 Upon the appellant’s motions, this Court entered an order on August 18, 2020, consolidating the appellant’s appeal in case number E2020-00712-COA-R3-CV with this appeal. 04/30/2021 - 2 - responsible for any portion of the tuition. The trial court incorporated its rulings into a modified permanent parenting plan that included a prohibition against enrollment of the third child in private school absent agreement of the parties or a subsequent court order. The father has appealed both judgments. Having determined that the upward deviation in child support for the eldest child should be capped at no more than fifty percent of the 2020-2021 Baylor tuition amount testified to at the time of trial, we modify the deviation to equal the lesser of (a) $13,200.00 annually or (b) fifty percent of the current annual Baylor tuition each year for the eldest child after deduction of proceeds from scholarships, grants, stipends, or other cost-reducing programs received by or on behalf of the child. We affirm the trial court’s judgments in all other respects and deny the father’s request for attorney’s fees on appeal.

Hamilton County Court of Appeals 04/30/21
Stacey M. Littleton v. James Martin Et Al.
M2020-01462-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

The plaintiff appeals from an order dismissing two of the defendants. Because the order does not resolve all of the claims between all of the parties, we dismiss the appeal for lack of a final judgment

Robertson County Court of Appeals 04/30/21
Sylvia Davis v. Keith Monuments
E2020-00792-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

Plaintiff filed suit for damages alleging that she had been injured when the headstone at her deceased brother’s grave fell on her and broke bones in her hand. After Defendant, the installer of the headstone, moved for summary judgment, the trial court dismissed Plaintiff’s claims with prejudice. On appeal, we reverse that portion of the trial court’s summary judgment order dismissing Plaintiff’s claim which is based on Defendant’s alleged negligence in installing the headstone.

Hamilton County Court of Appeals 04/29/21
William Hunter Babcock v. Sonnia Elizabeth Lambert Babcock
E2020-00459-COA-R3-CV
Authoring Judge: Judge Frank G. Clement Jr.
Trial Court Judge: Chancellor Pamela A. Fleenor

This case concerns a Tenn. R. Civ. P. 60.02 motion for relief from a final judgment in a suit for dissolution of a business partnership. The trial court found grounds for dissolving the partnership and ordered the parties to liquidate the partnership’s assets. Each party would be liable for his or her pro-rata share of any outstanding debt. Before any accounting was filed, the defendant began representing herself, and at the instruction of the court, she informed the clerk and opposing counsel of her address. Soon thereafter, Defendant moved to a different address but never informed the clerk or opposing counsel of the change of her address. Consequently, the defendant did not receive notice of the plaintiff’s motion to adopt his proposed final accounting or the order granting such motion. The final order awarded the plaintiff a judgment against the defendant for her share of the outstanding debts that plaintiff had paid. When the defendant discovered the judgment against her, she filed a motion for relief under Tenn. R. Civ. P. 60.02. The trial court denied the motion, finding there was no “mistake” because plaintiff’s counsel sent notice to the defendant’s last known address. This appeal followed. We affirm.

Hamilton County Court of Appeals 04/28/21
Toryiana Louisa Soto, Et Al. v. Presidential Properties, LLC, Et Al.
E2020-00375-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James E. Lauderback

This case involves claims brought under the Tennessee Consumer Protection Act and the Tennessee Real Estate Broker License Act, along with other related claims. After a two-day trial, the trial court found in favor of the plaintiffs and awarded them treble damages and attorney’s fees. The defendants appealed. We affirm in part, vacate in part, and remand.

Washington County Court of Appeals 04/27/21
In Re Alleigh B.
M2020-00116-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Melissa T. Blevins-Willis

A mother appeals the trial court’s decision to terminate her parental rights. She challenges the trial court’s determination by clear and convincing evidence that termination of her parental rights was in the best interest of the child. We affirm the trial court’s termination of the mother’s parental rights.

Grundy County Court of Appeals 04/27/21
In Re Estate of Shelton D. Ramey
E2020-00270-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Rex Alan Dale

This appeal concerns a residual beneficiary’s objection to an estate administrator receiving any fees based upon the latter’s alleged breach of fiduciary duty. David Ramey (“Ramey”) is a beneficiary under his late father’s will. However, Ramey was in Chapter 7 Bankruptcy at the time of his father’s death, and Ramey’s inheritance became part of the bankruptcy estate. Dustin Crouse (“Crouse”) was appointed administrator of the probate estate. Michael Fitzpatrick (“Fitzpatrick”) is the Chapter 7 Trustee. Ramey filed an objection alleging Crouse breached his fiduciary duty by selling the estate’s primary asset, a house, below market value in a private sale. The General Sessions Court for Loudon County, Probate Division (“the Trial Court”) ruled against Ramey, although it found he had standing to bring his claims. Ramey appeals, objecting to fees paid to Crouse. We hold that Ramey lacks standing as any such claims of his to the probate estate belong to the Chapter 7 Trustee rather than him. We, therefore, affirm the Trial Court, although on different grounds. The judgment of the Trial Court is affirmed as modified.

Loudon County Court of Appeals 04/23/21
Metropolitan Government Of Nashville & Davidson County v. Layton Jones
M2020-00248-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Kelvin D. Jones

A local government cited a property owner for operating his property as a short-term rental without a permit. A general sessions court found the property owner violated the shortterm rental ordinance and enjoined him from committing further violations. The government later brought two criminal contempt actions against the property owner, claiming that he violated the court’s injunction by continuing to run a short-term rental without a permit. The first time, the property owner acknowledged his violations, and the general sessions court entered an agreed order. The second time, the court found the property owner guilty of contempt after a hearing. The property owner appealed that finding to the circuit court. The circuit court found that the property owner was in contempt of the general sessions court’s order on eighteen occasions. Finding no error, we affirm.

Davidson County Court of Appeals 04/23/21
Richard Alan Shannon v. Genera Garandang Shannon
M2020-00055-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ross H. Hicks

The trial court granted a wife’s motion to alter or amend a final decree of divorce. The ruling modified the parties’ marital dissolution agreement. On appeal, the husband contends that there was no basis for setting aside an agreement that the parties entered into voluntarily and knowingly. Discerning no abuse of discretion, we affirm. 

Montgomery County Court of Appeals 04/23/21
Lisa Ann Crouch v. Calvin Conway Crouch
M2020-00951-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Vanessa A. Jackson

In post-divorce proceedings, a former husband petitioned to reduce or terminate his alimony in futuro payments to his former wife. The trial court denied the former husband’s request, ruling that he failed to show that a substantial and material change of circumstances had occurred since the alimony was awarded. The former husband appealed, and we affirm the trial court’s judgment.

Coffee County Court of Appeals 04/23/21
In Re Jason S.
E2020-01479-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Janice Hope Snider

Appellant/Mother appeals the trial court’s termination of her 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) abandonment by failure to provide a suitable home, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(A)(ii); (3) substantial noncompliance with the requirements of the permanency plan, Tenn. Code Ann. § 36-1-113(g)(2); and (4) persistence of the conditions that led to the child’s removal, Tenn. Code Ann.
§ 36-1-113(g)(3). Appellant also appeals the trial court’s finding that termination of her parental rights is in the child’s best interest. Discerning no error, we affirm.

Hamblen County Court of Appeals 04/22/21
Lindsey Beth Honea v. John William Honea
M2020-00881-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Darrell Scarlett

A mother and father of three children were divorced in 2018, and both parties filed petitions to modify the permanent parenting plan later that year. Both parties also asked the trial court to hold the other party in contempt for violating the parenting plan and engaging in other objectionable conduct. The trial court found the father guilty of two counts of contempt and the mother guilty of three counts of contempt, and it ordered them to spend two days in jail for each count. The court granted the husband’s petition to modify the parenting plan and changed the designation of the primary residential parent from the mother to the father. The mother appeals, and we affirm the trial court’s judgment in all respects.

Rutherford County Court of Appeals 04/22/21
Amber Lyn Rogers v. Joshua Michael Rogers, Sr.
E2020-00913-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Tammy M. Harrington

A wife obtained an ex parte order of protection from her estranged husband. After a hearing, the trial court found that the wife had proven the allegations of domestic abuse by a preponderance of the evidence. So the court extended the order of protection for one year. Because the evidence does not preponderate against the trial court’s abuse finding, we affirm.

Blount County Court of Appeals 04/21/21
Courtney Allison West v. Phillip Ryan Chase Byrd
E2021-00080-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge James Cotton

The Notice of Appeal filed by the appellant, Courtney Allison West, stated that appellant was appealing the judgment entered on January 7, 2021. As the parenting plan entered on January 7, 2021 does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

Scott County Court of Appeals 04/21/21
In Re Brilee E. et al.
M2020-00527-COA-R3-JV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Kathryn Wall Olita

Two children were removed from their grandmother’s custody and subsequently adjudicated dependent and neglected. The grandmother appeals the trial court’s denial of her petition for custody of the children, asserting that granting her custody is in the children’s best interest. We affirm the trial court’s judgment as to one child and dismiss the appeal as moot as to the other. 

Montgomery County Court of Appeals 04/20/21
Randall G. Himes v. Elizabeth Bates Himes
M2019-01344-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge A. Ensley Hagan, Jr.

In this post-divorce dispute, ex-spouses filed competing petitions to modify alimony.  The wife also sought to hold her former husband in civil contempt for failure to maintain the term life insurance policy specified in the parties’ marital dissolution agreement.  The trial court declined to hold the husband in contempt.  Both parties obtained partial relief on their modification petitions.  The court granted the wife a judgment for a retroactive increase in alimony.  The court also reduced the husband’s alimony obligation prospectively based on his inability to pay the current amount during his retirement.  We conclude that the evidence preponderates against a finding that the husband had the ability to pay additional alimony in the first two months of 2019.  We further conclude that the wife is entitled to an award of post-judgment interest.  So we modify the court’s retroactive judgment accordingly.  Otherwise, we affirm.

Wilson County Court of Appeals 04/20/21