Court of Appeals Opinions

Format: 12/07/2019
Format: 12/07/2019
Takesha Curtiss Nelvis v. Lafayette Baptist, Jr.
W2018-01763-COA-R3-JV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Special Judge Harold W. Horne

Father appeals the juvenile court’s decision to deny him equal parenting time. Because the trial court’s order does not contain sufficient findings of fact and conclusions of law as to the statutory best interest factors contained in Tennessee Code Annotated section 36-6-106(a), we vacate the judgment of the trial court and remand for the entry of a proper order.

Shelby County Court of Appeals 10/29/19
Sonya Lee Westbrooks v. Earl Lavon Westbrooks
E2018-01993-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Marie Williams

Appellant/Husband appeals the trial court’s denial of his Tennessee Rule of Civil Procedure 59.04 motion to reopen proof in this divorce case. By his motion, Husband sought to introduce allegedly “newly discovered evidence” concerning the premarital value of his retirement account. The trial court denied the motion, finding that the evidence, which consisted of Husband’s previous divorce decree, was a matter of public record and was available to Husband during discovery in the instant divorce matter. We conclude that the trial court did not abuse its discretion in denying Husband’s motion. Affirmed and remanded.

Hamilton County Court of Appeals 10/29/19
Dr. Victor W. McLaughlin, M.D. v. Elizabeth King McLaughlin a/k/a Rev. Elizabeth King
E2018-01319-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor M. Nichole Cantrell

The plaintiff filed this action on a sworn account, seeking to recover $20,451.00 that he had allegedly loaned in several money transfers to the defendant, plus prejudgment interest and costs. In her answer to the complaint, the defendant denied all substantive allegations but failed to raise any affirmative defenses. At trial, the defendant stipulated to having received the money transfers. However, she requested that the court allow her to orally swear under oath that the transfers did not constitute a valid debt. The trial court found that the defendant was attempting to assert an affirmative defense that the transfers constituted gifts rather than loans and that she had waived such a defense pursuant to Tennessee Rule of Civil Procedure 8.03 by failing to raise it in her responsive pleading. The trial court entered a judgment in favor of the plaintiff in the total amount of $33,942.69, including prejudgment interest. The defendant filed a motion to alter or amend, requesting that the judgment be vacated on the ground that under Tennessee Code Annotated § 24-5-107 (2017), she should have been allowed to raise any defense orally at trial. Following a hearing, the trial court found that because the defendant had elected to file a responsive pleading, she was required to raise the affirmative defense in the pleading. The trial court thereby declined to vacate the judgment. The defendant has appealed. Discerning no reversible error, we affirm.

Anderson County Court of Appeals 10/28/19
B. Nathan Hunt et al. v. David Lowery, et al.
M2019-00203-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ross H. Hicks

This is an unlawful detainer action in which the owner permitted the defendants to live in her house rent-free.  The owner was later declared incompetent, and her daughters/co-conservators sought to evict the defendants.  The general sessions court awarded the co-conservators possession, and the defendants appealed to circuit court.  Once the owner died, an administrator was substituted for the co-conservators as the plaintiff.  The circuit court awarded the administrator rent for the period between the date the detainer summons was filed and the date the owner died.  The defendants appealed, and we reverse the trial court’s judgment.  Neither the
co-conservators nor the administrator ever filed a pleading seeking an award of rent from the defendants; therefore, the trial court erred when it awarded rent to the administrator.

Montgomery County Court of Appeals 10/24/19
Apexworks Restoration v. Derek Scott, Et Al.
M2019-00067-COA-R3-CV
Authoring Judge: Judge Arnold B. Golden
Trial Court Judge: Judge Kelvin D. Jones

This case involves statutory interpretation of the requirements for service by private process servers in the General Sessions Courts and whether or not a party has been properly served.  Plaintiff obtained default judgments in General Sessions Court against two individuals, a man and a woman, who were living together.  Although the process server stated on the return that both parties had been served, only the man had been served.  Three years later, in an effort to aid in the execution on the default judgments, the plaintiff had subpoenas issued against both defendants, but only the woman was served.  The defendants then moved to quash the subpoena as against her and, additionally, to void the default judgments, alleging that the plaintiff had failed to properly serve them with the civil warrant and the subpoenas.  The General Sessions Court denied the motion, and the defendants thereafter appealed to the trial court.  Having found that only the man had been properly served with the civil warrant, the trial court affirmed the default judgment as against him and voided the default judgment as against the woman.  Additionally, the trial court found that, while the judgment was void as against the woman, she had been properly served with the subpoena and was thus required to respond to it.  Defendants appealed.  We affirm the judgment of the trial court as modified.

Davidson County Court of Appeals 10/24/19
Abdighani K. Hashi v. Parkway Xpress, LLC Et Al.
M2018-01469-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Howard W. Wilson

A forklift operator suffered injuries while operating his forklift within the confines of the trailer of a tractor-trailer. He sued the John Doe operator of the tractor-trailer, a trucking company, and a freight broker. Both the trucking company and the freight broker moved for summary judgment. The trial court granted the motions, dismissing the claims against them. On appeal, the forklift operator claims that some of the evidence filed in support of the motions for summary judgment was inadmissible and that there were disputed issues of material fact that precluded summary judgment. We conclude that the trial court properly granted summary judgment. 

Rutherford County Court of Appeals 10/23/19
In Re Dylan S.
E2018-02036-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge J. Michael Sharp

This is a termination of parental rights case. Mother/Appellant appeals the trial court’s termination of her parental rights to the minor child on the grounds of: (1) abandonment by willful failure to visit and to support, Tenn. Code Ann. § 36-1-113(g)(1); (2) persistence of the conditions that led to the child’s removal, Tenn. Code Ann. § 36-1- 113(g)(3); and (3) failure to manifest an ability and willingness to assume custody or financial responsibility for the child, Tenn. Code Ann. § 36-1-113(g)(14). Mother also appeals the trial court’s determination that termination of her parental rights is in the child’s best interest. Because Appellee did not meet her burden to show that Mother willfully failed to support the child, and because Appellee did not meet her burden to show proof of an order in which the child was adjudicated dependent and neglected, we reverse the trial court’s findings as to these grounds. We affirm the trial court’s termination of Mother’s parental rights on the grounds of abandonment by willful failure to visit and failure to manifest an ability and willingness to assume custody or financial responsibility, and on its finding that termination of Appellant’s parental rights is in the child’s best interest.

Monroe County Court of Appeals 10/23/19
In Re Channing M.
E2019-00504-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Douglas T. Jenkins

This is a termination of parental rights case. After the death of the mother, petitioner— the child’s maternal grandmother—sought to terminate the father’s parental rights on four grounds: abandonment by failure to support the child; abandonment by failure to support the mother; abandonment by failure to visit the child; and failure to manifest ability to take custody of the child. The trial court found that clear and convincing evidence existed to terminate father’s parental rights only on the ground of abandonment by failure to support the child. The trial court further found that termination was in the best interests of the child. We affirm.

Hawkins County Court of Appeals 10/23/19
Cornerstone Financial Credit Union v. Joshua Mundy
M2018-01624-COA-R3-CD
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Hamilton V. Gayden, jr.

A credit union initiated this action on December 12, 2007, by filing a civil warrant to recover an amount alleged to be due on an account. On June 14, 2011, after several unsuccessful attempts to serve the warrant, a return on service was filed indicating that the defendant had been served with the warrant; a default judgment in the amount of $13,717.79 was entered on July 25, 2011. The credit union levied on the defendant’s bank account on April 25, 2018, following which the defendant moved the general sessions court to set aside the judgment on the ground that service of the warrant was defective and the judgment was void; the court granted the motion and set the case for trial. Before the trial could be held, the credit union appealed to the circuit court, where the defendant moved for summary judgment to affirm the general sessions court’s order setting aside the judgment. The circuit court dismissed the action pursuant to Tennessee Rule of Civil Procedure Rule 12.02(3), holding that service of the warrant was not in compliance with the applicable statutes. The credit union appeals. Upon our de novo review, we have determined that the record does not show that the defendant was duly served with the warrant that led to the default judgment and, as a result, the judgment entered against him is void. Because of the current proceeding, however, trial on the merits has not been held. Accordingly, we affirm the holding of the circuit court that the judgment of the general sessions court is void, modify the judgment of the circuit court to reinstate the credit union’s cause of action, and remand the case to the circuit court with instruction to remand it to the general sessions court for trial.

Davidson County Court of Appeals 10/23/19
Mathews Construction, Inc. v. Kennedy Omanwa
E2019-00168-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Pamela A. Fleenor

A defendant filed a motion to recuse the trial judge one month prior to trial; the trial judge responded to the motion and entered an order denying it two weeks prior to trial. Defendant appeals, asserting that the court erred in denying the motion and in failing to notify him that the court would proceed with the trial as previously set. Discerning no error, we affirm the judgment.

Hamilton County Court of Appeals 10/21/19
SmartBank v. Sandra Stephens
E2018-01900-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jeffrey M. Atherton

Appellant appeals the trial court’s denial of her Tennessee Rule of Civil Procedure 60.02(3) motion for relief from a default judgment. Appellant argues that she was not properly served, thus rendering the default judgment void ab initio. Appellant also appeals the trial court’s order allowing Appellee to execute its judgment on Appellant’s right of survivorship interest in real property held as a tenancy by the entirety. Discerning no error, we affirm and remand.

Hamilton County Court of Appeals 10/21/19
John Mark Porter v. Betsy Hillis Porter
M2018-01411-COA-R3-CV
Authoring Judge: Judge Carma D. McGee
Trial Court Judge: Judge William M. Locke

This appeal is from a final decree of divorce. The wife challenges the trial court’s ruling regarding the ground for divorce and division of the marital estate. Because the trial court failed to make sufficient findings of fact and failed to comply with Tennessee Rule of Appellate Procedure 24, we are unable to conduct a meaningful appellate review. Accordingly, we vacate the decision of the trial court and remand the case for further proceedings.

Warren County Court of Appeals 10/15/19
Donna Jetter v. Piedmont Natural Gas Company, Inc. Et Al.
M2019-00206-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Kelvin D. Jones

This is a negligence action brought by an absentee homeowner against two public utilities to recover compensatory damages. The plaintiff’s unoccupied residence was damaged when frozen water pipes ruptured during the winter and after gas service to the property was terminated. The defendants, Piedmont Natural Gas, Inc. and Duke Energy One, Inc. (collectively, “Defendants”), filed a motion to dismiss pursuant to Tennessee Rules of Civil Procedure 12.02(1) and (3), arguing the court lacked original jurisdiction over the subject matter and that venue was improper because the Tennessee Public Utility Commission (“the Commission” or “the TPUC”) had exclusive and original jurisdiction over the claims at issue. The trial court granted the motion and dismissed the action in its entirety. This appeal followed. We hold that the Commission did not have original or exclusive subject matter jurisdiction over the claims at issue and that the trial court had subject matter jurisdiction over the claims at issue, and it was the proper venue. Therefore, the judgment of the trial court is vacated and this matter is remanded to the trial court with instructions to reinstate the amended complaint filed by the plaintiff, to afford Defendants thirty days to file a responsive pleading, and for further proceedings consistent with this decision.

Davidson County Court of Appeals 10/14/19
In Re Justine J. Et Al.
E2019-00306-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Douglas T. Jenkins

This termination of parental rights case involves two children. Father/Appellant appeals the trial court’s termination of his parental rights on the ground of abandonment by willful failure to support and willful failure to visit. Because Father did not receive sufficient notice of the grounds for termination of his parental rights, we vacate the trial court’s order and remand.

Hawkins County Court of Appeals 10/10/19
James Mulloy, Et Al. v. Eugene G. Mulloy, Jr. Et Al.
M2017-01949-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

Two brothers formed a limited liability company to own and lease a commercial property. When the tenant sought to expand, both brothers sought to find a suitable space for the tenant to lease. The younger of the two brothers found a property that would ideally suit the tenant’s needs, a fact that was communicated to his brother. The older brother purchased the property through a newly created limited liability company without his younger sibling’s involvement. The older brother’s new limited liability company then leased the new property to the tenant. The younger brother brought a derivative suit against his brother and the newly formed limited liability company, claiming usurpation of a corporate opportunity belonging to the limited liability company that the brothers had formed together and tortious interference with business relationships. The younger brother also claimed unjust enrichment. Following a trial, the chancery court found in favor of the older brother and his newly formed limited liability company and dismissed the complaint. After our review of the record, we affirm.

Davidson County Court of Appeals 10/10/19
In Re Estate of Philip Roseman, Et Al.
M2019-00218-COA-R3-CV
Authoring Judge: Judge Carma D. McGee
Trial Court Judge: Judge David Randall Kennedy

This appeal originated from three related cases filed in the Probate Court for Davidson County. The issue on appeal relates to attorney’s fees and expenses. Finding no error, we affirm the decision of the trial court.

Davidson County Court of Appeals 10/10/19
In Re Omari T.
M2018-02227-COA-R3-JV
Authoring Judge: Chief Judge D. Michel Swiney
Trial Court Judge: Judge Timothy K. Barnes

This appeal results from a custody action. A Missouri court issued an initial custody decision providing Cherita L. (“Mother”) with primary custody of Omari T. (“the Child”). Both parents and the Child later moved out of that state. Both Mother and the Child relocated to Tennessee. The father, Otis T. (“Father”), resided in Tennessee for a time but more recently had been living and working in Germany. In response to a petition to domesticate the foreign decree and modify custody, the Juvenile Court for Montgomery County (“Juvenile Court”) subsequently entered in July 2017 an “agreed order” reflecting that the parties resided in Tennessee and approving an agreed parenting plan designating Father as the primary residential parent of the child. The agreed order was signed only by the Juvenile Court Judge and Father’s counsel. Mother’s signature was not included on the agreed order nor was a certificate of service included showing that the order was provided to Mother. Approximately a year later, Father filed a contempt petition when Mother refused to return the Child to Father’s custody. In response, Mother filed a motion to set aside the agreed order modifying custody, pursuant to Tennessee Rule of Civil Procedure 60.02(3), (4), and (5). The Juvenile Court denied Mother’s Rule 60.02 motion and determined that Mother had violated the Juvenile Court’s July 2017 order and held Mother in contempt. We hold that the Juvenile Court’s July 2017 order had no effective entry date pursuant to Tennessee Rule of Civil Procedure 58, and Mother, therefore, could not have been in contempt of that order. We affirm the Juvenile Court’s order transferring venue to Shelby County, and we vacate the July 2017 order and all other subsequent orders by the Juvenile Court concerning Father’s contempt petition.

Montgomery County Court of Appeals 10/10/19
Kenneth A. Weber, Et Al. v. Harold W. Kroeger, ET Al.
M2019-00406-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Anne C. Martin

Two adjoining property owners disputed their shared boundary line. The contractor who renovated the houses on each of the parcels owned both properties before selling them to the parties, and he erected a privacy fence where he thought the property line was located. A survey conducted years after the parties had purchased the properties placed the boundary line in a somewhat different location than the location of the privacy fence. When one of the property owners began dismantling the fence in an effort to utilize the property that the survey showed belonged to them, the neighboring owners obtained a temporary restraining order to maintain the status quo and filed a declaratory judgment complaint to determine the boundary line. The trial court entered a judgment declaring that the privacy fence was the boundary line and that the parties jointly owned the fence. On appeal, we affirm the trial court’s ruling declaring the location of the boundary line, but we reverse the ruling that the fence is jointly owned.

Davidson County Court of Appeals 10/10/19
Kondaur Capital Corporation v. Keith T. Finley
W2019-00143-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Gina C. Higgins

The mortgage holder on property in Cordova, Tennessee initiated foreclosure proceedings against the mortgagor in general sessions court and obtained a judgment. The mortgagor appealed to circuit court, the mortgage holder moved for summary judgment, and the circuit court ultimately granted summary judgment in favor of the mortgage holder. The circuit court denied the mortgagor’s motion for relief pursuant to Tenn. R. Civ. P. 60.02, and this Court dismissed the mortgagor’s appeal.

In the case at issue in the present appeal, the mortgagor filed another motion for relief pursuant to Tenn. R. Civ. P. 60.02 in the circuit court, and the circuit court again denied the motion. We conclude that the mortgagor has failed to comply with the Tennessee Rules of Appellate Procedure and has waived all issues stated in his brief. Consequently, we dismiss the appeal.

Shelby County Court of Appeals 10/09/19
In Re Brendan G.
M2019-00081-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Larry B. Stanley

This action involves the termination of a father’s parental rights to his minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the statutory grounds of (1) failure to establish or exercise paternity; (2) severe child abuse; and (3) sentence of imprisonment for severe child abuse. The trial court also found that termination was in the best interest of the child. We affirm the trial court.

Warren County Court of Appeals 10/09/19
Denita McMahan v. City of Cleveland, Tennessee
E2018-01719-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge J. Michael Sharp

In this action brought under the Governmental Tort Liability Act, the plaintiff sought damages from the City of Cleveland for injuries received when she fell after tripping on a raised, cracked and uneven section of a public sidewalk. In pertinent part, the plaintiff alleged that the city’s immunity under the Act should be removed based on constructive notice because the city created the dangerous condition by planting trees along the sidewalk in the 1990s and roots from those trees caused the unsafe condition. Alternatively, the plaintiff asserted that immunity should be removed under the common occurrence theory of constructive notice because the tree roots caused numerous and similar defects in other sections of the city’s sidewalks. Following a bench trial, the trial court found that the city did not have actual or constructive notice of the alleged defect in the sidewalk and held that the city was immune from liability under Tennessee Code Annotated § 29-20-203(b). This appeal followed. Because the evidence does not preponderate against the trial judge’s finding that the plaintiff failed to prove that the city had actual or constructive notice of the alleged defect in the sidewalk where she tripped and fell, we hold that immunity under the GTLA was not removed and affirm the judgment of the trial court.

Bradley County Court of Appeals 10/09/19
Yolanda Carter v. Maurice Butler
W2019-00175-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Jim Kyle

This appeal involves a dispute related to the interpretation of a lease purchase agreement. However, because the trial court did not make sufficient findings of facts and conclusions of law, we are unable to conduct a meaningful appellate review. Accordingly, we vacate the order and remand for further proceedings.

Shelby County Court of Appeals 10/08/19
Kayla Nicole (White) Blakney v. Justin Taylor White
W2018-00640-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Daniel L. Smith

This is a consolidated appeal concerning a post-divorce action that involves the father’s petition to modify the parties’ existing permanent parenting plan. The trial court named the father as primary residential parent of the parties’ child, increased the father’s
co-parenting time to 271 days per year, reduced the mother’s co-parenting time to 94 days annually, and required that the mother’s co-parenting time be supervised. The court further granted the father sole decision-making authority with respect to the child’s education, non-emergency health care, religious upbringing, and extra-curricular activities. The mother has appealed. Having determined that the trial court failed to settle the differences between the parties’ competing statements of the evidence, we vacate the trial court’s judgment and remand this matter for the trial court to make the necessary findings required by Tennessee Rule of Appellate Procedure 24(e) and transmit a proper supplemental record to this Court.

Hardin County Court of Appeals 10/08/19
Gerald Brown v. Waddell Wright, Et Al.
M2018-01743-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal arises from a dispute over an unorthodox, two-page contract pursuant to which the plaintiff sold his home to the defendant and continued to reside in the home, in accordance with a lease-back provision, for “up to five years” with rent “not to exceed $950 a month.” The contract also included provisions for “equity participation,” including the option for the plaintiff to buy the property back “at prevailing market value.” The plaintiff filed a complaint asserting, inter alia, claims for violations of the Tennessee Consumer Protection Act, quiet title, and breach of contract. The defendant answered and asserted counterclaims, inter alia, for breach of contract and to remove the plaintiff from the property. Following a trial, the trial court dismissed the complaint upon the principal findings that the plaintiff lacked credibility and was the first to materially breach the contract. The trial court also ruled that the defendant owned the property and was entitled to immediate possession but denied the defendant’s claim to recover his attorney’s fees. Both parties appeal. We affirm the dismissal of all of the plaintiff’s claims and the trial court’s determination that the defendant owned the property and was entitled to immediate possession. As for the attorney’s fees, we hold that the defendant was entitled to recover his reasonable attorney’s fees based on Section 6 of the contract which provides that in the event suit is filed to enforce the contract, “the prevailing party shall be entitled to recover all cost of such enforcement including reasonable attorney’s fees as approved by the Court.”

Davidson County Court of Appeals 10/07/19
Teresa M. Daffron, As Daughter, Next of Kin To And As The Administrator Of The Estate Of Wiley E. Daffron v. Memorial Health Care System, Inc.
E2018-02199-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

This appeal arises from a wrongful death action based on health care liability. Wiley E. Daffron (“Decedent”) received medical treatment from Memorial Health Care System, Inc. (“Memorial”) in 2013. During his stay at Memorial, Decedent developed a pressure ulcer. Decedent died a few months after he was discharged from Memorial. Teresa M. Daffron (“Ms. Daffron”), Decedent’s adult daughter, obtained Decedent’s medical records from Memorial. Some 13 months later, Ms. Daffron sent pre-suit notice of her intent to sue Memorial. A few months after that, Ms. Daffron filed suit against Memorial in the Circuit Court for Hamilton County (“the Trial Court”). Memorial filed a motion for summary judgment asserting the statute of limitations, which the Trial Court granted. The Trial Court held that Ms. Daffron knew or should have known of Decedent’s injury and its possible cause more than one year before the pre-suit notice was sent and, therefore, her complaint was filed outside the statute of limitations. On appeal, Ms. Daffron argues that the statute of limitations did not begin to run until an expert informed her that Decedent’s injury was caused by Memorial. We hold that, pursuant to the discovery rule, and, as evidenced by, among other things, her seeking through counsel Decedent’s medical records, Ms. Daffron had constructive knowledge of Decedent’s claim more than one year before she sent pre-suit notice and, therefore, the complaint was not timely filed. Ms. Daffron’s claim brought on behalf of her father is barred by the statute of limitations. We affirm the judgment of the Trial Court.

Hamilton County Court of Appeals 10/07/19