Court of Appeals Opinions

Format: 01/19/2020
Format: 01/19/2020
Donald Eugene Winder, III v. Kara Elizabeth Winder
E2019-01636-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Casey Mark Stokes

This is an accelerated interlocutory appeal pursuant to Tennessee Supreme Court Rule 10B. Wife sought the trial judge’s recusal on the ground of bias, alleging, among other things, that her husband—an attorney—appeared regularly in front of the trial judge and that the two men were friends. The trial judge’s order denied wife’s allegations and their factual basis and denied the motion to recuse. Finding no evidence of bias that would require the trial judge’s recusal under Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial court.

Meigs County Court of Appeals 11/18/19
In Re Deishun M. Et Al.
E2019-00777-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Robert D. Philyaw

Jessica T. (“Mother”) appeals the April 3, 2019 order of the Hamilton County Juvenile Court (“Juvenile Court”) terminating her parental rights to the minor children, Deishun M. and Olivia M. (“the Children”). Upon petition of the Tennessee Department of Children’s Services (“DCS”), the Juvenile Court terminated Mother’s rights on the statutory grounds of severe child abuse and persistent conditions. The Juvenile Court further found that termination of Mother’s parental rights was in the best interest of the Children. Discerning no error, we affirm.

Hamilton County Court of Appeals 11/18/19
Mihir Kishorchandra Patel v. Janki Anil Patel
W2018-00820-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor James F. Butler

The parties divorced after a thirteen year marriage in which the family was initially solely supported by Wife’s $40,000.00 per year income, but ending with Husband earning approximately $850,000.00 per year. The trial court found that long-term alimony was appropriate given Wife’s contribution to Husband’s earning capacity, her inability to achieve his earning capacity despite her efforts at education, and the parties’ relatively high standard of living during the marriage. Both parties take issue with the trial court’s alimony award. Discerning no reversible error, we affirm the trial court in all respects.

Madison County Court of Appeals 11/15/19
John Thomas Ammons v. William C. Longworth, Et Al.
E2018-01004-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge Michael W. Moyers

This appeal involves many attempts to secure repayment of a loan. After the most recent hearing, the trial court denied the plaintiff’s request to revisit the prior rulings. We affirm as modified.

Knox County Court of Appeals 11/14/19
In Re Estate of James Ronald Hunter
M2019-00084-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge David Randall Kennedy

The issue on appeal is whether a codicil to the decedent’s will was effective to revoke or amend two revocable trusts. Just hours prior to his death, the decedent got married and executed a fifth codicil to his will that purportedly devised two residential properties to his new wife. However, the decedent previously conveyed the properties to revocable trusts by deeds that were properly recorded. Therefore, the decedent did not own either of the properties at the time of his death. The principal beneficiary of each trust was the decedent’s minor son from a previous marriage. After the will and five codicils were admitted to probate, the court-appointed guardian ad litem for the decedent’s minor child filed a motion in the probate court to determine the ownership of the two properties. Following briefing of the parties and a hearing, the probate court determined that the method for amendment or revocation of the trusts as specified in the trusts was the exclusive method, and the fifth codicil failed to substantially comply with the method required by the trusts. Therefore, acting pursuant to Tenn. Code Ann. § 35-15-602(c), which does not allow a codicil or any other method to revoke or amend a revocable trust if the terms provide an exclusive method, the court ruled that the codicil was ineffective to amend or revoke either trust. Accordingly, the properties were owned by and remained subject to the terms of each trust. We affirm.

Davidson County Court of Appeals 11/13/19
In Re Travis R.
E2019-01024-COA-R3-PT
Authoring Judge: Judge Frank G. Clement Jr.
Trial Court Judge: Judge Dennis Roach II

The Tennessee Department of Children’s Services (“DCS”) filed this petition to terminate the parental rights of a father to his seven-year-old son. The father was incarcerated for most of the child’s life, and he was serving a three-year sentence in New Jersey at the time of the final hearing. The mother surrendered her parental rights after the child was found dependent and neglected and placed in foster care. Although the father was scheduled to be released from prison, he had not seen the child in over five years. The trial court found that the father had abandoned the child by failing to visit during the four months before his incarceration and exhibiting a wanton disregard for the child’s welfare by engaging in criminal behavior. The trial court also found that the father’s conduct during the child’s life failed to manifest an ability and willingness to assume custody and that placing the child in the father’s custody would pose a risk of substantial harm to the child. Moreover, the court found that terminating the father’s rights would be in the child’s best interests because there was no substantial relationship, and the father had no plans for employment or housing after his release. The father contends that the trial court’s findings did not constitute clear and convincing evidence that termination of his rights was in the child’s best interests. We find the evidence does not preponderate against the trial court’s findings of fact and affirm its conclusion that DCS proved its case by clear and convincing evidence.

Jefferson County Court of Appeals 11/13/19
Anthony C. Howell v. Noel Ruth Kail Howell
W2019-00061-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert Samual Weiss

In this divorce case, Husband/Appellant appeals the trial court’s award of $30,000 in alimony in solido to Wife and its award of $30,000 for Wife’s attorney’s fees as additional alimony in solido. Discerning no errors, we affirm.

Shelby County Court of Appeals 11/13/19
Rodney Kilgore v State of Tennessee
E2018-01790-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: William A. Young, Commissioner

This appeal arose from a claim filed with the Tennessee Claims Commission against the State of Tennessee (“the State”), seeking an award of damages for defamation allegedly committed by two attorneys employed by the State during the course of a separate federal litigation involving the claimant. The State filed a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a claim upon which relief could be granted, and the claimant filed, inter alia, a response objecting to the motion. Following a hearing, the Claims Commission dismissed the claim upon finding that the litigation privilege applied to protect the statements at issue and that the statements were not defamatory. The claimant has appealed. Having determined that the litigation privilege applies, we affirm.

Court of Appeals 11/13/19
MSM Development, LLC v. William Steward et al.
E2019-00441-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Frank V. Williams, III

A commercial tenant transferred its interest in a lease to two individuals through a document called an assignment. The rental term set forth in the lease was fourteen months longer than the rental term set forth in the assignment. The transferees only paid rent for the term set forth in the assignment, and the landlord filed a complaint in an effort to collect the rent for the additional fourteen months. The trial court concluded that the document transferring the initial tenant’s interest was a sublease rather than an assignment because the term in the assignment was shorter than the term set forth in the lease. The transferor appealed, and we reverse the trial court’s judgment because the assignment specified that in the event of a conflict between the lease and the assignment, the lease controlled.

Roane County Court of Appeals 11/13/19
In Re B.A., et al.
W2019-00129-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Martha B. Brasfield

Father appeals the termination of his parental rights to two children, B.A. and K.A. The trial court considered six grounds for termination: (1) persistent conditions, pursuant to Tenn. Code Ann. § 36-1-113(g)(3)(A); (2) severe child abuse, pursuant to Tenn. Code Ann. § 36-1-113(g)(4); (3) sentencing to more than two years for conduct against a child, pursuant to Tenn. Code Ann. § 36-1-113(g)(5); (4) sentencing to ten years or more and child under eight years of age, pursuant to Tenn. Code Ann. § 36-1-113(g)(6); (5) non-compliance with a permanency plan, pursuant to Tenn. Code Ann. § 36-1-113(g)(2); and (6) abandonment, pursuant to Tenn. Code Ann. § 36-1-113(g)(1). The court did not find sufficient evidence to support termination of father’s parental rights for abandonment. The court found clear and convincing evidence on the other five grounds. By the same quantum of proof, the court also found that termination is in the children’s best interest. Father appeals. We affirm.

McNairy County Court of Appeals 11/12/19
Johnny Nesmith v. Samuel C. Clemmons, Et Al.
M2017-02521-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Michael W. Binkley

Defendants appeal the judgment entered in favor of Plaintiff in this breach of contract action arising out of a failure to pay a promissory note.  Defendants argue that the trial court erred in several pretrial rulings, in concluding that the contract was ambiguous and considering parol evidence, in holding that the attorney that drafted the agreement represented Defendants and construing the ambiguous term against them, and in denying their motion to supplement the appellate record.  Upon our review, we discern no reversible error and affirm the judgment of the trial court.

Williamson County Court of Appeals 11/07/19
Carl Wayne Hixson Et Al. v. American Towers, LLC
E2019-00335-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jeffrey M. Atherton

Wayne Hixson and Eric Hixson (the Hixsons) granted a perpetual, exclusive easement to American Towers, LLC (ATC)1 to operate a telecommunications system at the top of a hill on their property. For many years, the hill experienced progressive slope failures. A recent mudslide caused thousands of dollars in property damage to the Hixsons and All Things Fast Motorsports, LLC (All Things Fast), a metal fabrication business owned by Wayne Hixson’s grandson. ATC spent thousands of dollars to move a generator away from the slope failure. The parties fear that the cell tower could collapse. In the trial court, the Hixsons and All Things Fast filed a complaint seeking a declaratory judgment regarding the parties’ respective maintenance responsibilities under the easement agreement. They also sought damages arising from ATC’s alleged breach of the easement agreement and other tortious conduct. ATC filed a counterclaim alleging similar causes of action. After a bench trial, the court ruled that ATC has a duty to maintain the easement and that the Hixsons have a duty to maintain the surrounding hillside for the benefit of ATC. Because the court found that the Hixsons and ATC were equally at fault for failing to prevent the recent mudslide, the court rejected their claims of negligence and breach of the easement agreement. However, the court awarded $1,245.20 to All Things Fast on its negligence claim. The court also awarded $179.99 to the Hixsons on their trespass claim. Finally, the court ordered the Hixsons and ATC to pay half of the costs necessary to stabilize the hill in accordance with the remediation plan proposed by the Hixsons. ATC appeals. We modify the trial court’s declaratory judgment, vacate the award of damages to All Things Fast, and remand for further proceedings. The judgment is affirmed in all other respects.

Hamilton County Court of Appeals 11/07/19
Kay Armstrong v. Kevin C. Morrison
E2018-01985-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor John C. Rambo

This appeal concerns a clerk and master’s petition for additional staff. Kay Solomon Armstrong, Clerk and Master of Greene County (“Petitioner”), filed a petition against the County Mayor (“Defendant”) in the Chancery Court for Greene County (“the Trial Court”) seeking additional staff for her office. After a trial, the Trial Court entered an order replacing one half-time position in the office with one full-time position. The Trial Court also awarded Petitioner attorney’s fees and expenses to be paid from the fees of the Clerk and Master’s Office. Defendant appeals to this Court, arguing that the evidence preponderates against the Trial Court’s decision to award additional funding for a new full-time assistant to replace a half-time assistant and that Petitioner was not entitled to recover any attorney’s fees. We hold that reasonable attorney’s fees were recoverable by Petitioner pursuant to statute. We hold further that the evidence does not preponderate against the Trial Court’s factual findings, including the Trial Court’s core finding that Petitioner’s workspace is so structurally inefficient that her office requires more staff. We modify the Trial Court’s order on fees and expenses to the extent it failed to award Petitioner expenses she paid out of pocket. On remand, the Trial Court is to determine and enter an award including reimbursing Petitioner for her reasonable out-of-pocket fees and expenses. We affirm, as modified, the judgment of the Trial Court, and remand for further proceedings consistent with this Opinion.

Greene County Court of Appeals 11/07/19
Lytoniona Lee, et al.v. Quince Nursing and Rehabilitation, LLC
W2019-00093-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Rhynette N. Hurd

Nearly three years after the court dismissed the plaintiff’s healthcare liability action against the defendant, Plaintiff filed this breach of contract action based on the same underlying facts and circumstances. The trial court dismissed the plaintiff’s breach of contract claim as barred by the doctrine of res judicata. We affirm.

Shelby County Court of Appeals 11/07/19
Trevor Millmeyer v. Bridget Whitten
W2019-00586-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Van McMahan

Appellant/Father appeals the trial court’s denial of his petition to change the surnames of his minor children. The trial court held that Appellant failed to meet his burden to show that changing the children’s names is in their best interests. Discerning no error, we affirm.

McNairy County Court of Appeals 11/07/19
Belgravia Square, LLC v. Melvin White, et al.
W2018-02196-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge James F. Russell

Appellant appeals the trial court’s dismissal of his appeal from general sessions court in this unlawful detainer action. The general sessions court granted immediate possession of the disputed property to Appellee, and Appellant appealed to the circuit court. Although Appellant remained in possession of the property, he did not post the required possessory bond. Tenn. Code Ann.
§ 29-18-130(b)(2). The trial court dismissed the appeal finding that, in the absence of the required bond, it had no subject matter jurisdiction to hear the case. Because the statutory possessory bond is not jurisdictional, we conclude that the trial court erred in dismissing Appellant’s appeal.

Shelby County Court of Appeals 11/07/19
David Campbell v. City of Chattanooga
E2018-02010-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Jeffrey M. Atherton

David Campbell (“Appellant”) was a police officer with the Chattanooga Police Department (“CPD”). On May 29, 2016, Mr. Campbell was dispatched to an apartment complex on report of a fight there. When Mr. Campbell arrived on scene, there were approximately 20-30 people in the parking lot. Mr. Campbell and other officers directed the crowd to clear the parking lot. While Mr. Campbell was giving these instructions, Hanson Melvin, a resident of the complex, walked by Mr. Campbell, and Mr. Campbell initiated an encounter with him. Mr. Melvin was known to Mr. Campbell because, on several previous occasions, Mr. Campbell had stopped Mr. Melvin for various alleged offenses, including driving without a valid driver’s license. Mr. Melvin was walking toward a silver vehicle with his friend, Coheleach Holmes. During this interaction, Mr. Campbell handcuffed Mr. Melvin and arrested him for disorderly conduct. Mr. Campbell placed Mr. Melvin in the back of his police car and took him to jail.

Hamilton County Court of Appeals 11/06/19
Walter Joshlin, et al. v. Hollis H. Halford, III, M.D., et al.
W2018-02290-COA-R9-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James F. Russell

In this interlocutory appeal, the defendants appeal the trial court’s denial of their motion to dismiss a medical malpractice lawsuit on the ground that the plaintiffs failed to comply with Tennessee Rule of Civil Procedure 25.01. We reverse the decision of the trial court and remand the case for further proceedings.

Shelby County Court of Appeals 11/06/19
Sara Kelley Poole v. Ronald Ellis Kinslow
M2018-00324-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Clara W. Byrd

In this divorce action, the trial court equitably divided the marital estate, adopted a permanent parenting plan for the parties’ minor child, and set child support. On appeal, the husband challenges the allocation of marital debt, the denial of his request for equal parenting time, and the calculation of child support. We affirm.

Wilson County Court of Appeals 11/05/19
Talat Parveen Et Al. v. ACG South Insurance Agency, LLC Et Al.
E2018-01759-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge J. Eddie Lauderback

This appeal arises from an action commenced by two insured parties against their insurance agent and the insurance agency where he was employed after the insureds’ insurance carrier refused to provide excess uninsured motorist coverage because it was not included in the insureds’ policy. The insureds alleged that their insurance agent failed to procure the requested insurance on their behalf and that they consequently had suffered monetary losses. The Trial Court applied a statutory rebuttable presumption that the insureds had accepted the provided coverage by paying their insurance premiums, pursuant to Tennessee Code Annotated § 56-7-135(b). Upon its finding that the insureds had not rebutted that presumption, the Trial Court dismissed the insureds’ action. The insureds have appealed. Upon our determination that Tennessee Code Annotated § 56-7- 135(b) does not apply to actions against an insurance agent for failure to procure insurance coverage as directed, we reverse the Trial Court’s grant of summary judgment and remand for the action to proceed.

Washington County Court of Appeals 11/05/19
Carla Jo Capps Jones v. Joseph R. Jones
E2019-00037-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Amanda Sammons

In this post-divorce action, the husband sought to modify his alimony obligation to the wife. The trial court denied the husband’s petition to modify, determining that the husband had failed to prove that a substantial and material change in circumstance had occurred since entry of the divorce decree. The husband has appealed. Discerning no reversible error, we affirm.

Campbell County Court of Appeals 11/04/19
In Re Estate of JD Bush
E2018-02192-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor John F. Weaver

Due to the deficiencies in Appellant’s brief, we conclude that he waived consideration of all issues on appeal and hereby dismiss the appeal.

Knox County Court of Appeals 11/01/19
State of Tennessee Ex Rel., Amanda C. Sensing v. Bradley K. Sensing
M2017-02428-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Michael Binkley

The trial court denied Father’s petition to modify child support.  Because Father failed to establish his current gross monthly income, as necessary to prove a significant variance, we affirm the decision of the trial court.

Williamson County Court of Appeals 10/31/19
Shauneille Sharifa (Morton) v. Wells Fargo/ASC
M2018-00178-COA-R3-CV
Authoring Judge: Judge Arnold B. Golden
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This is an appeal from the trial court’s denial of a motion to recuse and award of summary judgment.  Plaintiff-homeowner took out a loan secured by a deed of trust on a parcel of real property.  After defaulting on the loan, plaintiff and defendant-bank entered into a loan modification agreement.  Plaintiff, however, again defaulted on the loan, and, after she failed to make the required acceleration payments, defendant initiated foreclosure proceedings pursuant to the deed of trust.  The real property ultimately was sold at foreclosure for less than the balance owed on the loan.  Plaintiff then sued defendant for breach of contract and wrongful foreclosure.  Defendant moved for summary judgment.  Plaintiff never responded to defendant’s motion for summary judgment.  Three days prior to the hearing on the summary judgment, plaintiff filed a motion for a change of venue, which the trial judge treated as a recusal motion pursuant to Tennessee Supreme Court Rule 10B and which, following a hearing, he denied.  The trial court subsequently granted defendant’s summary judgment motion and dismissed plaintiff’s claims with prejudice.  Plaintiff appeals both the trial court’s denial of the motion to recuse and its granting of the motion for summary judgment.  We affirm.

Davidson County Court of Appeals 10/31/19
Vivian Khah v. Jonathan Capley
M2018-02189-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This appeal arises from the dismissal of a personal injury action in which the alleged tortfeasor died before suit was filed.  Upon a motion to dismiss, the trial court determined that the suit was barred by the applicable statute of limitations.  Because no personal representative was appointed for the deceased tortfeasor and more than a year had elapsed following the accrual of the plaintiff’s cause of action, we affirm the dismissal.  

Davidson County Court of Appeals 10/31/19