Court of Appeals Opinions

Format: 08/20/2019
Format: 08/20/2019
Christopher Conrad Fichtel v. Jill Crowell Fichtel (Zirwas)
M2018-01634-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Philip E. Smith

This appeal results from Father’s petition in opposition to relocation. Trial on the petition was held over a period of more than a year. Ultimately, the trial court granted Father’s petition in opposition and modified the parties’ child support obligation to take into account their changed incomes. We vacate the trial court’s determination of Father’s income for child support purposes, but affirm the trial court’s rulings in all other respects.

Davidson County Court of Appeals 07/10/19
Erin Alford Fuller v. Roger Darnell Fuller
E2018-01003-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Jerri S. Bryant

This appeal concerns a redetermination of alimony on remand. Erin Alford Fuller (“Wife”) sued Roger Darnell Fuller (“Husband”) for divorce in the Chancery Court for Bradley County (“the Trial Court”). The case was tried, and Husband appealed the judgment. We determined that the Trial Court properly classified and valued Husband’s trail income from his business in the property division but erred by then including, as part of Husband’s income, the amount of trail income distributed as a marital asset. We thus vacated the Trial Court’s determinations regarding child support and alimony. On remand, the Trial Court found that Husband inflated his business expenses. The Trial Court found that Husband earned approximately $200,000 per year and ordered him to pay Wife $1,500 per month as alimony in futuro. Husband appeals. We hold that the Trial Court, in keeping with our instructions, properly excluded the trail income distributed as a marital asset in making its fresh determination of Husband’s income. We find no reversible error in the Trial Court’s finding as to Husband’s income, nor do we discern any abuse of discretion in the Trial Court’s alimony decision. We affirm the judgment of the Trial Court and remand for an award to Wife of her reasonable attorney’s fees and costs incurred on appeal.

Bradley County Court of Appeals 07/10/19
Rex A. Ferguson v. Tennessee Board of Parole
M2018-01784-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

This is an appeal from the judgment of the trial court denying an inmate’s petition for writ of certiorari challenging the Tennessee Board of Parole’s denial of parole. The inmate contends the Board’s decision to deny parole based solely on the seriousness of the offense was arbitrary and capricious, and the trial court abused its discretion in denying his petition. More specifically, he contends that denying parole on the basis of one factor, the seriousness of the offenses, “in the face of so many positive factors, without an explanation of how these positive factors do not outweigh the seriousness of the offense, constitutes an arbitrary and capricious decision contrary to the weight of the evidence in the record.” Having determined that “‘seriousness of the offense’ is a proper, independent basis to deny parole release,” the trial court denied the petition for writ of certiorari. Because the seriousness of the offense is a proper, independent basis for denying parole under Tenn. Code Ann. § 40-35-503(b)(2), and the trial court did not abuse its discretion in denying the petition, we affirm.

Davidson County Court of Appeals 07/09/19
Larry Daniel Cantey v. Alyson Lindsay Cantey (Violette)
W2018-01331-COA-R3-CV
Authoring Judge: Judge Carma D. McGee
Trial Court Judge: Chancellor George R. Ellis

This appeal involves a petition to modify an agreed permanent parenting plan. The trial court denied the petition. We conclude that the trial court’s order does not contain sufficient findings of fact and conclusions of law. We vacate the order of the trial court and remand for entry of an appropriate order.

Gibson County Court of Appeals 07/09/19
In Re Joshua S.
E2018-01742-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Janice H. Snider

Daniel S. (“Father”) and Kimberly T. (“Mother”) appeal the August 27, 2018 order of the Hamblen County Juvenile Court (“Juvenile Court”) terminating their parental rights to the minor child, Joshua S. (“the Child”). Upon petition of the Tennessee Department of Children’s Services (“DCS”), the Juvenile Court terminated the parents’ rights on the grounds of substantial noncompliance with the permanency plan and failure to manifest an ability and willingness to assume custody or financial responsibility for the Child. The Juvenile Court also terminated Mother’s parental rights on the ground of persistent conditions and Father’s parental rights on the ground of abandonment by wanton disregard. Upon its determination that grounds existed to terminate the parents’ rights to the Child, the Juvenile Court determined that termination of both parents’ rights was in the best interest of the Child. Discerning no error, we affirm.

Hamblen County Court of Appeals 07/08/19
Christina Klepper Neely v. Brian Richard Neely
E2017-01807-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor E.G. Moody

Mother moved to hold Father in criminal contempt for his failure to pay child support in full each month. After finding a failure to pay child support as ordered, the court held father in criminal contempt. Because the order contains insufficient findings of fact, we vacate the judgment and remand for further proceedings.

Sullivan County Court of Appeals 07/08/19
The Wolf Organization, Inc. v. TNG Contractors, LLC
M2018-00073-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Kelvin D. Jones

Judgment creditor petitioned to enforce Pennsylvania default judgment under the Uniform Enforcement of Foreign Judgments Act. See Tenn. Code Ann. §§ 26-6-101 to -108 (2017). Judgment debtor moved for summary judgment, claiming that the Pennsylvania judgment was void because the court lacked personal jurisdiction. The trial court denied the judgment debtor’s motion for summary judgment and later granted summary judgment to the judgment creditor. The trial court also denied the judgment creditor’s subsequent motion to supplement the balance of the judgment to include post-judgment attorney’s fees and expenses. Both parties raise issues on appeal. We conclude that the judgment debtor waived its personal jurisdiction defense in the Pennsylvania court. We further conclude that the judgment creditor could not seek an award of post-judgment attorney’s fees and expenses in this enforcement action. So we affirm

Davidson County Court of Appeals 07/03/19
Hem Raj Singh v. Neeta Singh
W2017-02091-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge James F. Butler

Wife/Appellant appeals the trial court’s grant of a divorce to Husband/Appellee. Wife argues that the divorce should be set aside because the trial court lacked subject matter jurisdiction and/or lacked personal jurisdiction over Wife. Wife also asserts that she was not properly served with the complaint for divorce. Because Wife filed an answer and counter-complaint for divorce, without objecting to in personam jurisdiction, she submitted to the jurisdiction of the trial court; her filing of an answer also indicates that she was served with the complaint for divorce. Because Husband/Appellee had resided in Tennessee for more than six months before filing his complaint for divorce, Tennessee Code Annotated section 36-4-101(a) conferred subject matter jurisdiction to the trial
court. Affirmed and remanded.

Madison County Court of Appeals 07/03/19
Andres Perez v. Tennessee Board of Medical Examiners
M2018-00960-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Ellen H. Lyle

This case arose out of the Petitioner/Appellant’s attempts to become a licensed physician in Tennessee. Appellant sent an application to the Tennessee Board of Medical Examiners but was ultimately rejected. After a contested hearing, the Board again determined that Appellant’s application should be rejected since Appellant had not engaged in direct patient care in many years. Thereafter, Appellant sought review of the Board’s decision in the Chancery Court of Davidson County pursuant to the Tennessee Uniform Administrative Procedures Act. The chancery court concluded that Appellant was not entitled to relief, and Appellant appealed to this Court. Discerning no error, we affirm. 

Davidson County Court of Appeals 07/03/19
Cynthia P. Lack v. Saint Thomas Rutherford Hospital
M2018-00879-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Senior Judge Robert E. Lee Davies

This appeal involves a visitor at a hospital who was injured when she slipped and fell in an icy parking lot. The visitor filed a claim against the hospital asserting that the hospital was negligent in failing to remedy the dangerous condition created by accumulated ice because the hospital did not take steps to prevent melted snow and ice from refreezing prior to the incident. The hospital filed a motion for summary judgment and, after determining that the hospital did not have a duty to prevent melted snow and ice from refreezing, the trial court granted the hospital’s motion. We affirm in part and reverse in part.

Rutherford County Court of Appeals 07/03/19
Mary Alice Akins v. Griff Elliott Akins
M2017-00594-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Charles K. Smith

In this appeal, the father sought to revise the permanent parenting plan in order to permit him greater participation in the life of his daughter. The trial court denied the requested revision, finding that the father had failed to prove by a preponderance of the evidence that there had been a material change in circumstances that affected the child’s best interest. The father appeals. We affirm the trial court’s ruling regarding the permanent parenting plan, but we vacate the award of attorney’s fees and costs.

Wilson County Court of Appeals 07/03/19
Andy Aylor v. Fred Carr, Et Al.
M2018-01836-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This appeal arises from the trial court’s award of attorneys’ fees to three state employee defendants. The plaintiff, also a state employee, sued the defendants in their individual and official capacities related to the plaintiff’s termination from his employment. The defendants moved to dismiss the plaintiff’s claims for failure to state a claim upon which relief can be granted pursuant to Tenn. R. Civ. P. 12.02(6). The trial court granted the motions and dismissed the plaintiff’s claims with prejudice. The defendants then filed a joint motion for attorneys’ fees, relying on Tenn. Code Ann. § 29-20-113, which permits a state employee to recover attorneys’ fees when the employee is the “prevailing party” on claims filed against the employee in the employee’s individual capacity. The trial court granted this motion and awarded reasonable attorneys’ fees and costs to the defendants. This appeal followed. We affirm.

Davidson County Court of Appeals 07/01/19
Tomeka Douglas v. Covington Crosssing, Inc., et al.
W2018-01513-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Walter L. Evans

This appeal arises from the trial court’s entry of a default judgment against defendants and its denial of defendants’ motion to set aside the judgment. The trial court’s entry of default, however, was not a final judgment because it did not address the plaintiff’s claim for damages. Accordingly, we dismiss the appeal for lack of subject matter jurisdiction.

Shelby County Court of Appeals 06/28/19
Stainmaster Carpet & Restoration, LLC, Et Al. v. Music City Messenger Service, Inc., Et Al.
M2018-01368-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor William E. Young

This appeal arises from an action for declaratory judgment as to the ownership of a business, defamation, and tortious interference with business relations. The plaintiff carpet cleaner alleged that the defendant entrepreneur and his wife loaned money to the plaintiff to expand his carpet cleaning business with the condition that the defendants handle the business’s finances and bookkeeping. The defendants asserted that they started a new carpet cleaning business and the plaintiff was merely an employee. Following a jury verdict for the plaintiff, the trial court denied the defendants’ motion for a new trial and remittitur. On appeal, the defendants contend that the trial judge failed to fulfill his duty as the thirteenth juror and there was no material evidence to support the jury’s verdict or award of damages. After reviewing the record, we find the trial judge fulfilled his role as the thirteenth juror and that there was material evidence to support the jury’s verdict and award of damages. Accordingly, we affirm the judgment against the defendants.

Davidson County Court of Appeals 06/28/19
Jeffrey Heatley, et al. v. David G. Gaither, et al.
M2018-01792-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Amy V. Hollars

This is an appeal from the dismissal of the plaintiffs’ second lawsuit against adjacent property owners arising from the discovery of a leaking septic tank on the plaintiffs’ property. In their first lawsuit, the plaintiffs sued their neighbors in chancery court for negligence and trespass after discovering that the leaking septic tank was connected to a mental health facility on their neighbors’ property. While the first action was still pending, the plaintiffs filed this action against their neighbors for continuing nuisance and trespass arising from the leaking septic tank. The defendants moved for summary judgment based on the doctrine of prior suit pending. The plaintiffs opposed the motion and requested additional time to conduct discovery. After the trial court granted summary judgment to the defendants, the plaintiffs appealed. We conclude that the requested discovery was unnecessary to respond to the defendants’ motion and that all the elements of the defense of prior suit pending were present. So we affirm.

Putnam County Court of Appeals 06/28/19
Vinings Bank v. Homeland Community Bank, Et Al.
M2016-02403-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Jonathan L. Young

The key issue on appeal is the scope of a dragnet clause under Georgia law. Mortgagors refinanced debt secured by their real property with a new lender. Although the new lender sent the original mortgagee the requested payoff amount, the original mortgagee refused to release its deed of trust. The original mortgagee claimed that the real property was also security for other debts by virtue of an unrecorded instrument signed by one of the mortgagors that contained a dragnet clause. The mortgagee sought a declaratory judgment that its unrecorded instrument had priority over the deed of trust recorded by the new lender. The new lender counterclaimed, seeking the statutory penalty for the mortgagee’s failure to release its deed of trust and recovery of attorney’s fees and expenses. The trial court concluded that the unrecorded instrument was unenforceable and not effective as to the new lender due to a lack of actual notice. The court also ordered the original mortgagee to release its deed of trust and awarded the new lender the statutory penalty and attorney’s fees. On appeal by the original mortgagee, we conclude that the unrecorded instrument was enforceable, but under Georgia law, the dragnet clause was limited to the debts of the mortgagor who signed the instrument. Because of the lack of actual notice, the unrecorded instrument was not effective as to the new lender. Despite the new lender being a defendant in the declaratory judgment action, the new lender’s counterclaim for the statutory penalty entitled it to an award of attorney’s fees. We affirm the decision of the trial court as modified.

White County Court of Appeals 06/28/19
Check Printers, Inc. v. David Gerregano, Et Al.
M2018-01030-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Russell T. Perkins

This case involves the Commissioner of Revenue for the State of Tennessee’s audit and subsequent adjustment of sales tax due from Appellant, Check Printers, under the Tennessee Retailers Sales Tax Act, Tennessee Code Annotated section 67-6-101, et seq. The trial court granted the Commissioner’s motion for summary judgment finding that, although Appellant manufactured the disputed products in Tennessee and ultimately exported the products outside the state, under Appellant’s standard contract language, title passed to the customer in Tennessee at the time the product was tendered for shipping. Based on this intervening taxable event, i.e., the “sale,” as that term is defined in Tennessee Code Annotated section 67-6-102(80)(A), the trial court concluded that the products were not excluded from taxation under either the manufactured-for-export exemption, Tennessee Code Annotated section 67-6-313(a), or the sale-for-resale exemption, Tennessee Code Annotated section 67-6-102(75)(a). Because there is a dispute of material fact concerning whether Appellant’s sale of blow-in cards to its customer, AMI, was consummated in Tennessee, we vacate the trial court’s grant of summary judgment only as to the AMI blow-in cards; the trial court’s order is otherwise affirmed.

Davidson County Court of Appeals 06/28/19
Carol Lee v. Hamilton County, Tennessee
E2018-01531-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Kyle E. Hedrick

The plaintiff in this action is a retired employee of the defendant county. She filed a complaint in October 2009, asserting claims of negligence, breach of contract, intentional or negligent misrepresentation, and breach of fiduciary duty related to a county employee’s alleged faulty advice and lack of disclosure to her concerning the interplay of her disability benefits policy and her retirement plan. Upon the county’s motion, the trial court granted partial summary judgment in favor of the county in July 2016, dismissing the plaintiff’s claims of misrepresentation and breach of fiduciary duty. The trial court subsequently denied the county’s motion for judgment on the pleadings as to the remaining issues. Following a bench trial in July 2018, the trial court entered a judgment awarding to the plaintiff the amount of $13,985.52. The county timely appealed. Having determined that the trial court’s final order does not sufficiently explain the legal basis upon which the money judgment was awarded, we vacate the judgment and remand to the trial court for entry of findings of fact and conclusions of law explaining the basis of the judgment or, in the alternative, reconsideration of the judgment.

Hamilton County Court of Appeals 06/28/19
Roy Edward Bane, Executor of the Estate of Martha Harrison Bane v. John Bane Et Al.
E2018-00790-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

The trial court granted a default judgment to the plaintiff in March 2009, which judgment invalidated a deed for real property transferred from the plaintiff to her son and daughterin- law. The trial court subsequently set aside the default judgment without making sufficient findings of fact and conclusions of law concerning the basis for the ruling. Following a consequent bench trial, the trial court upheld the deed from the plaintiff to her son, although the plaintiff sought to have the deed set aside based on undue influence and fraud. The plaintiff has appealed. Based upon our determination that the trial court failed to make sufficient findings of fact and conclusions of law in its order that set aside the default judgment, we vacate both the trial court’s final order and the order setting aside the default judgment. We remand this matter to the trial court for entry of sufficient findings of fact and conclusions of law regarding the legal basis of the trial court’s decision to set aside the default judgment, or, in the alternative, reconsideration of that judgment.

Cocke County Court of Appeals 06/28/19
In Re Charlie-Lynn P., Et Al.
M2018-02285-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Tim Barnes

This appeal concerns the termination of a mother’s parental rights to her children. 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 Matia P. (“Mother”) to her minor children Charlie-Lynn P. and Pharaoh P. (“the Children”). After a trial, the Juvenile Court entered an order terminating Mother’s parental rights on the grounds of failure to establish a suitable home, substantial noncompliance with the permanency plan, and persistent conditions. The Juvenile Court also found that termination of Mother’s parental rights is in the Children’s best interest. Mother appeals, arguing only that termination of her parental rights is not in the Children’s best interest because she has taken certain steps to address her mental health and domestic violence issues. We find and hold that the Juvenile Court did not err in finding that clear and convincing evidence was shown as to all three grounds. We find and hold further that, notwithstanding Mother’s purported improvements, the Juvenile Court did not err in finding by clear and convincing evidence that termination of Mother’s parental rights is in the Children’s best interest. We affirm the judgment of the Juvenile Court.

Montgomery County Court of Appeals 06/27/19
Simmons Bank v. Vastland Development Partnership
M2018-00347-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Russell T. Perkins

This appeal arises from a commercial lease dispute. The trial court summarily ruled that Simmons Bank, which acquired the tenant originally named in the lease in a merger, had the right to exercise a renewal option. The appellant landlord contends this was error because “(1) the plain language of the lease expressly indicated the option could only be exercised by the tenant originally named in the lease and (2) two events of default occurred [as a result of the merger] which precluded the exercise of the option under the plain terms of the lease.” The alleged events of default were that (1) the original tenant failed to “maintain its legal existence,” and (2) the original tenant transferred its interest to Simmons Bank by operation of law. We have determined that regardless of whether the lease was transferred to Simmons Bank by merger pursuant to Tenn. Code Ann. § 48-21-108(a)(2) “without reversion or impairment,” the parties agreed to restrict any transfer of the right to renew the lease to one entity, First State Bank, “the Tenant originally named” in the lease. Accordingly, and relying on the legal principle that a statute shall not be applied to construe a contract when the parties to the contract express a contrary intention, the agreed-upon renewal restriction in the lease controls. As a consequence, Simmons Bank does not have the right to exercise the renewal option. Therefore, we reverse the grant of summary judgment to Simmons Bank and remand this case to the trial court with instructions to enter summary judgment in favor of the landlord.  

Davidson County Court of Appeals 06/27/19
Sharon Kay Middendorf v. Byron Scott Middendorf
M2018-00409-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Phillip R. Robinson

In this appeal, the parties were declared divorced in February 2013 when the trial court approved their marital dissolution agreement and entered a final decree of divorce; at the same time, the parties entered into a separate agreement which was to govern the transfer of the wife’s marital interest in four businesses operated by the husband. In July 2014, the husband filed a motion pursuant to Rule 60.02(5) of the Tennessee Rules of Civil Procedure to have the decree set aside. The court granted the motion and vacated the decree, reinstating the marital relationship; the court also rescinded the agreement transferring the wife’s interest in the businesses on the ground of mutual mistake. Following a trial, the court entered a final decree of divorce in 2017. Both parties appeal. Wife asserts that the trial court erred in vacating the 2013 decree, in rescinding the parties’ agreement, and in failing to award her all of the attorney’s fees she incurred at the trial court level. Husband appeals the division of the marital estate in the 2017 decree, and contends that the trial court erred when it failed to order the return of payments he made to wife pursuant to the agreement that was rescinded and alimony payments he made pursuant to the 2013 decree that was vacated. Both parties seek their attorney’s fees on appeal. Upon our review, we affirm the judgment of the trial court in all respects and decline to award fees on appeal.

Davidson County Court of Appeals 06/27/19
Fiona Eischeid Flodin v. Tan Scott Flodin
E2018-01499-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge L. Marie Williams

This appeal arises from a divorce. Fiona Eischeid Flodin (“Wife”) filed for divorce from Tan Scott Flodin (“Husband”) in the Circuit Court for Hamilton County (“the Trial Court”). Husband, in the latter years of the marriage, was unemployed by his choice. Husband asserted that he contributed by helping Wife with her real estate business. Wife asserted that Husband’s contributions were minimal and that he refused to work despite her urging him to get a job. After a trial, the Trial Court entered an order finding, inter alia, that Husband lived a life of leisure while Wife did the vast majority of the work both for pay and at home. The Trial Court found all the witnesses credible except Husband. The Trial Court proceeded to award Husband around 38% of the marital estate as well as six months of transitional alimony at the rate of $2,000 per month. Husband appealed. Husband argues on appeal that the Trial Court erred in its valuation of certain marital assets, in its division of the marital estate, and in not awarding him more alimony than it did. We find that the evidence does not preponderate against the Trial Court’s factual findings. The values adopted by the Trial Court as to marital assets were within the range of evidence presented. In addition, the Trial Court appropriately considered the relevant factors in its decisions regarding alimony and the marital estate. We discern no abuse of discretion or other error by the Trial Court. We, therefore, affirm the judgment of the Trial Court.

Hamilton County Court of Appeals 06/26/19
In Re Aliyah C.
E2019-00038-COA-R3-PT
Authoring Judge: Judge Carma D. McGee
Trial Court Judge: Chancellor Jerri S. Bryant

This appeal involves the termination of a mother’s parental rights to her daughter. The trial court found by clear and convincing evidence that grounds for termination were proven and that it was in the best interest of the child to terminate parental rights. Mother appeals but only challenges whether the judgment is valid if the guardian ad litem was not present for the termination hearing. After careful review, we conclude that the presence of the guardian ad litem could not be waived by the other parties at the trial on the merits. Therefore, we vacate the judgment of the trial court and remand for further proceedings.

Bradley County Court of Appeals 06/26/19
G.G. Ex Rel Jackie Johnson Et Al. v. Boyd-Buchanan School Et Al. - Dissenting
E2018-01912-COA-R9-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Jeffrey M. Atherton

John W. McClarty, J., dissenting. The majority holds that the trial court abused its discretion by entering an order that would allow the plaintiffs to discover information that is irrelevant to their breach of contract claim.

Hamilton County Court of Appeals 06/26/19