COURT OF APPEALS OPINIONS

In re Dustin T., et al.
E2016-00527-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge J. Michael Sharp

The Department of Children's Services (“DCS”) filed a petition to terminate the parental rights of the mother and father to their three children. The father was incarcerated in Georgia when the children were determined to be dependent and neglected, and the mother tested positive for illegal drugs and had illegal drugs and drug paraphernalia in her home when the children were removed. DCS developed three permanency plans over the course of eighteen months, with responsibilities set out for each parent. When it appeared that neither parent was in substantial compliance with the third plan, DCS filed a petition to terminate their rights. The trial court found the evidence clearly and convincingly supported the grounds DCS alleged for terminating the parents' rights and determined it was in the children's best interest that their parents' rights be terminated. Both the mother and father appeal the termination. We affirm the trial court's judgment.

Bradley Court of Appeals

Debbie Tran v. Manila Bui, Et Al.
E2016-00544-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This case concerns a constitutional challenge to Tennessee Code Annotated Section 20-12-119(c). When the trial court grants a motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6) for failure to state a claim upon which relief may be granted, Section 20-12-119(c) provides for an award of reasonable attorneys' fees to the dismissed party. In this case, the trial court granted Appellees the statutory maximum of $10,000 in attorneys' fees. Appellant challenged the constitutionality of the statute on the ground that it violated the separation of powers doctrine. The trial court rejected Appellant's challenge, ruling that Tennessee Code Annotated section 20-12-119(c) is remedial in nature and does not violate Article II, section 2 of the Tennessee Constitution. Discerning no error, we affirm

Knox Court of Appeals

In Re: Dustin T., Et Al. - DISSENT
E2016-00527-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge J. Michael Sharp

J. STEVEN STAFFORD, P.J.,W.S., dissenting in part.
I concur in the majority Opinion with regard to the trial court’s findings on the grounds of substantial noncompliance with the permanency plans, persistent conditions, and abandonment by wanton disregard. I also agree that termination of Mother’s and Father’s parental rights is in the children’s best interests. Because I cannot agree that the State has met its burden to show clear and convincing evidence of Mother’s abandonment by willful failure to support the children, however, I must file this partial dissent.
 

Bradley Court of Appeals

Cheryl Ellen Mouton v. Michael J. Mouton
E2016-00231-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge W. Neil Thomas, III

In this parental relocation case, the trial court erred in finding that the mother did not have a reasonable purpose in relocating to another state for her employment. Furthermore, mother's purpose in relocating was not vindictive. Therefore, the judgment of the trial court is reversed.

Hamilton Court of Appeals

Regions Bank v. Chas A. Sandford
M2015-02215-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Michael Binkley

This appeal arises from the trial court’s entry of a default judgment in favor of the plaintiff. The plaintiff bank filed a complaint seeking a judgment against the defendant on a sworn account. After several attempts, the plaintiff was unable to obtain personal service of process on the defendant and attempted to obtain service of process by mail. The plaintiff’s process server sent the summons by certified mail to the defendant’s residential address, and the mailing was returned marked “unclaimed.” The plaintiff filed proof of service, indicating that service had been properly completed pursuant to Tennessee Rule of Civil Procedure 4.04(11), and filed a motion for default judgment. A copy of the motion for default judgment was sent by mail to the defendant at the same residential address. The defendant filed a response “by special appearance” opposing the bank’s motion for default judgment based on insufficiency of service of process. Following a hearing, the trial court entered a default judgment in favor of the plaintiff. The defendant appealed. On appeal, we conclude that the trial court entered a default judgment in violation of Tennessee Rule of Civil Procedure 4.04(10), which expressly provides, “Service by mail shall not be the basis for the entry of a judgment by default unless the record contains a return receipt showing personal acceptance by the defendant[.]” We therefore vacate the trial court’s order entering a default judgment in favor of the plaintiff and remand this matter for further proceedings.  

Williamson Court of Appeals

In re Dillon E.
M2016-00880-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Tim Barnes

This appeal concerns termination of a mother’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Montgomery County (“the Juvenile Court”) seeking to terminate the parental rights of Autumn N. (“Mother”) to her minor child, Dillon E. (“the Child”). The central issue of this parental rights case is Mother’s alleged prescription drug abuse. After a trial, the Juvenile Court found that four grounds were proven against Mother sufficient to terminate her parental rights to the Child, and that termination of her parental rights was in the Child’s best interest. Mother appeals the termination of her parental rights to this Court. DCS argues that the Juvenile Court erred in declining to find one additional ground for termination. We affirm the judgment of the Juvenile Court in its entirety.

Montgomery Court of Appeals

William Gordon Ball v. Marjorie Happy Hayes Ball
E2016-00326-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael W. Moyers

This is an appeal from a “Final Hearing Order” in a divorce action. That order, however, did not resolve the issue of whether the husband had improperly deducted amounts he expended for moving services and rental of a storage building from his pendente lite alimony obligation due to the wife. Because the order appealed does not resolve all claims presented in the proceedings below, we dismiss this appeal for lack of subject matter jurisdiction.

Knox Court of Appeals

In Re: Walter Peterson, Jr.
E2015-01211-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Pamela A. Fleenor

Wife challenges the trial court's decision authorizing the Department of Human Services to take her husband into protective custody pursuant to the Adult Protection Act. Because, after the trial court's decision, the adult taken into protective custody was released from DHS custody and later died, we have determined that this appeal is moot.

Hamilton Court of Appeals

Donna Nance McLucas v. Shawn Michael Nance
M2016-00959-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Clara W. Byrd

Defendant in an unlawful detainer action filed a counterclaim against the plaintiff. Two days later, the plaintiff filed a notice of voluntary nonsuit, but the certificate of service on the notice indicated it was placed in the mail the same day that the counterclaim was filed. Based on the notice of voluntary dismissal, the trial court entered an order dismissing the action without prejudice. Defendant appeals, arguing that he should be permitted to proceed with his counterclaim. We affirm. 

Macon Court of Appeals

In Re Tamera W., et al.
W2015-02463-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Gina C. Higgins

Mother and Father appeal from the trial court‘s finding that clear and convincing evidence exists to establish that the children at issue are dependent and neglected and the victims of severe abuse at both parents‘ hands. Discerning no error, we affirm.

Shelby Court of Appeals

In re Tamera W., et al.
W2015-01988-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Gina C. Higgins

Upon petition of the Tennessee Department of Children's Services (“the Department”), the trial court terminated the parental rights of Mother and Father. Among other things, the trial court concluded that Mother and Father had committed severe child abuse. The trial court also determined that the termination of parental rights was in the children's best interest. Having reviewed the record transmitted to us on appeal, we reverse the trial court's finding that Mother abandoned the children pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(iv). Moreover, we reverse the trial court's finding that Mother failed to substantially comply with the requirements of the family permanency plans created in this case. However, we conclude that clear and convincing evidence supports the other grounds for termination relied upon by the trial court, as well as the trial court's finding that the termination of Mother and Father's parental rights is in the children's best interest.

Shelby Court of Appeals

Nathan Z. Vinson v. Kristin Denise Ball et al.
E2015-01856-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Larry M. Warner

This is a child custody action involving two minor children. In 2010, the biological parents of the children entered into an agreed order, which provided that the mother would be the primary residential custodian with the father enjoying visitation rights. Thereafter, the mother sent the children to live with their maternal grandfather. In July 2014, the father filed a petition seeking to modify the prior custody order and establish a permanent parenting plan wherein he would be designated the primary residential parent. The mother opposed this change, and the maternal grandfather sought to intervene in the action for the purpose of seeking custody of the children. The trial court awarded primary custody to the maternal grandfather, determining that a risk of substantial harm would result if custody of the children were awarded to the father. The father has appealed. Determining that there is a lack of clear and convincing evidence to support the trial court's finding of a risk of substantial harm, we reverse the custody award to the grandfather. We remand this matter for a hearing regarding whether a material change in circumstance has occurred since the initial custody award and whether modifying the designation of primary residential parent from the mother to the father is in the children's best interest. We also remand this matter for the trial court to revisit the issue of changing the children's surnames. We affirm the trial court's denial of the grandfather's request for retroactive child support.

Cumberland Court of Appeals

In Re: Maddox C.
M2016-01129-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Suzanne Lockert-Marsh

This is a termination of parental rights case. Father/Appellant, who is incarcerated, appeals the termination of his parental rights to the minor child. The trial court terminated Father’s parental rights on two statutory grounds: (1) abandonment, and (2) incarceration for more than ten years, see Tenn. Code Ann. §§ 36-1-113(g)(1) and (6), and on its finding that termination of Father’s parental rights is in the child’s best interest. Discerning no error, we affirm and remand.  

Dickson Court of Appeals

Primestar Fund 1 TRS, Inc. v. Clarence Arnold Riggs, et al.
M2016-00245-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Vanessa Jackson

Corporate plaintiff filed an action for possession of real property. An individual claiming to be a partner in a limited partnership with an ownership interest in the real property moved to intervene in the action. The trial court granted plaintiff possession of the real property. The individual appeals the judgment for possession. We conclude that, because he was not aggrieved by the adjudication, the individual lacks standing to appeal. Moreover, because he is not a licensed attorney, he may not represent the limited partnership in this action.

Coffee Court of Appeals

Samuel C. Clemmons, et al v. Johnny Nesmith
M2016-01971-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael Binkley

In this accelerated interlocutory appeal, Appellants appeal from separate orders denying two motions for recusal filed in this case. As to denial of the first motion for recusal, we hold that Appellants failed to file a timely appeal pursuant to Rule 10B of Rules of the Supreme Court of Tennessee. As to the denial of the second recusal motion, we hold that the recusal motion was ineffective because it was not signed by local counsel as required by Rule 19 of the Rules of the Supreme Court of Tennessee. In the absence of a timely filed appeal from an effective recusal motion, we dismiss this appeal.

Williamson Court of Appeals

The Metropolitan Government of Nashville And Davidson County v. Wood Ridge Development, Inc., et al
M2015-01556-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Claudia Bonnyman

The developer of a Nashville subdivision and its surety entered into three performance agreements by which they bound themselves to complete the infrastructure in the subdivision. The Metropolitan Government brought an action to enforce the agreements against both parties when the developer failed to complete the infrastructure. The surety filed an answer as well as a cross claim against the developer and a third-party complaint against a group of investors who had executed a separate agreement to indemnify the surety for any amounts the surety might pay or be held liable. After settling with the Metropolitan Government, the surety sought summary judgment against the developer and investors; the cross and third-party defendants also sought summary judgment asserting that, since the surety did not issue a separate bond, they had no obligation to indemnify the surety. The court granted summary judgment to the surety upon holding that the performance agreement operated as a bond and entitled the surety to indemnification. The developer and investors appeal the grant of the surety’s motion and the denial of their motion. We hold that the surety’s execution of the performance agreements operated as an “undertaking[] or other writing[] obligatory in nature of a bond” as contemplated by the indemnity agreement and, accordingly, affirm the judgment of the trial court.

Davidson Court of Appeals

Christopher A. Hamilton v. Tennessee Board Of Probation And Parole, et al.
M2016-00458-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Russell T. Perkins

This appeal involves an incarcerated inmate’s filing of a petition for writ of certiorari, claiming that the Tennessee Board of Probation and Parole acted arbitrarily and without material evidence in denying his request for parole. The trial court granted the petition but ultimately affirmed the denial of parole. The petitioner appeals. We affirm.

Davidson Court of Appeals

M & M Electrical Contractor, Inc. v. Cumberland Electric Membership Corporation
M2016-00358-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This appeal involves the termination of a contract between an electric power distributor and an independent contractor. After a bench trial, the trial court concluded that the electric power distributor was justified in terminating the contract because the independent contractor materially breached the contract by violating a safety policy and an oral directive from the power distributor. The independent contractor appeals, claiming that the evidence did not support a finding that it violated the safety policy or directive, that such a violation, even if it did occur, did not constitute a material breach of the contract, and that the power distributor was required to give notice and an opportunity to cure any default prior to terminating the contract. We affirm. 

Montgomery Court of Appeals

Paul Thomas Jackson v. Susan Denise Jackson
W2016-00007-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor George R. Ellis

In this divorce action, the trial court granted the wife a divorce, divided the marital assets, and awarded her alimony in solido but denied her request for alimony in futuro. The wife appeals. We reverse and grant a divorce without fault to either party. We also modify the judgment to reflect an award of alimony in futuro in the amount of $2,000 per month.

Crockett Court of Appeals

In Re: Estate of J. Don Brock
E2016-00637-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Jeffrey M. Atherton

This is an appeal of an order dismissing a will contest for lack of standing. The Contestants sought to challenge the testator's will, alleging that it was the product of fraud and/or undue influence. The Estate introduced multiple prior wills that appeared to be facially valid and properly executed in which all or some of the Contestants were disinherited. The chancery court found that the Contestants would not benefit if the testator's will was set aside and dismissed the contest for lack of standing. We affirm.

Hamilton Court of Appeals

In Re: Knox C.
E2016-00768-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Dennis "Will" Roach, II

Shane L.B. (“Father”) appeals the judgment of the Juvenile Court for Jefferson County (“the Juvenile Court”) terminating his parental rights to the minor child, Knox C. (“the Child”), after finding and holding that grounds for terminating Father's parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(6) were proven by clear and convincing evidence and that it was in the Child's best interest for Father's parental rights to be terminated. We find and hold that the evidence in the record on appeal does not preponderate against the Trial Court's findings made by clear and convincing evidence that grounds were proven to terminate Father's parental rights to the Child and that the termination was in the Child's best interest. We, therefore, affirm.

Jefferson Court of Appeals

Steven Kempson, et al. v. Pamela Casey, et al., - DISSENTING
E2015-02184-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Neil Thomas, III

I cannot concur in the majority’s decision. The issue of whether the collision of the vehicles “caused damage to the Plaintiffs” was fairly presented to the jury. The jury rejected the Plaintiffs’ theory that Mr. Kempson was injured in the accident. I would affirm the jury’s verdict in toto. Accordingly, I respectfully dissent from the majority’s decision to remand for a new trial on damages.

Hamilton Court of Appeals

J.A.C., by and through her next friend and mother, Lesha Carter v. Methodist Healthcare Memphis Hospitals, et al.
W2016-00024-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Rhynette N. Hurd

In this health care liability action, Defendants moved to dismiss based on the Plaintiffs‘ failure to provide the Health Insurance Portability and Accountability Act ("HIPAA") medical authorization required by Tennessee Code Annotated section 29-26-121(a)(2)(E). Based on its determination that the Plaintiffs failed to substantially comply with the foregoing statute, the trial court held that the Plaintiffs were not entitled to an extension of the applicable statutes of limitations and repose under Tennessee Code Annotated section 29-26-121(c) and accordingly concluded that the Plaintiffs‘ claims were time-barred. The trial court also concluded that the Plaintiffs‘ constitutional challenges to the viability of Tennessee Code Annotated section 29-26-121 were without merit. We affirm and remand for further proceedings consistent with this Opinion.

Shelby Court of Appeals

Steven Kempson, et al. v. Pamela Casey, et al.
E2015-02184-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Neil Thomas, III

Pickup truck driver sued to recover for injuries he allegedly sustained when his truck was rear-ended while he was stopped for traffic on the interstate. His wife asserted that she had suffered from the loss of consortium with and services of her husband. The defendant driver acknowledged responsibility for the collision but disputed that the plaintiffs had proven, by a preponderance of the evidence, that the accident in question caused any injury. The jury found that the collision caused no damage to the plaintiffs. On the jury’s verdict, the trial court entered judgment, awarding the plaintiffs no damages and denying the motion for a new trial. The plaintiffs appeal. We vacate the trial court’s judgment and remand for a new trial on damages alone.

Hamilton Court of Appeals

Arianna A. George et al. v. Tessa G. Dunn
E2015-02312-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John F. Weaver

This case involves a trustee's disbursement of funds from two trusts, without authorization of the trusts' respective beneficiaries, in order to pay legal expenses incurred in defending against a prior action filed against the trustee on behalf of the beneficiaries. The trial court had dismissed the prior action with prejudice in an agreed order entered on August 31, 2012, which further provided that the funds at issue would be disbursed by the trustee for the benefit of the beneficiaries. On April 13, 2015, the beneficiaries filed a complaint, alleging that the trustee had violated the terms of the August 2012 order and her fiduciary duty by writing checks against the trust funds in an amount totaling $30,563.16. The trustee filed an answer, asserting that pursuant to Maryland law governing the establishment of the trust accounts, she was entitled to be reimbursed from the trust accounts for legal fees incurred in defense of the prior lawsuit filed on behalf of the beneficiaries and ultimately dismissed. The beneficiaries filed a motion for summary judgment. Following a hearing, the trial court granted summary judgment in favor of the beneficiaries, awarding each beneficiary, respectively, $15,281.58 plus prejudgment interest and attorney's fees. The trustee appeals. Discerning no reversible error, we affirm. Having determined that the trial court did not abuse its discretion by awarding attorney's fees upon the finding that the trustee breached her fiduciary duty, we further determine an award to the beneficiaries of attorney's fees on appeal to be appropriate. We remand for the trial court to determine the amount of reasonable attorney's fees incurred by the beneficiaries during the appellate process.

Knox Court of Appeals