Court of Appeals Opinions

Format: 03/27/2020
Format: 03/27/2020
Richard J. Hartigan et al. v. Arnold Brush
E2019-00262-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Frank V. Williams, III

This is an action to recover damages for a purported buyer’s breach of a contract to purchase improved residential real property. The trial court awarded Sellers damages calculated as the difference between the contract price and the amount for which the home sold one year after the breach. It also awarded Sellers and both realty companies prejudgment interest. On appeal, Appellant asserts the trial court erred in its determination of damages. He contends that, under the circumstances, an appraisal of the property performed at the time of breach demonstrates a substantially greater real market value than the sales price. Appellant also appeals the trial court’s calculation of the amount of prejudgment interest awarded to Sellers and the realty companies. Because the trial court made no findings of fact with respect to the fair market value of the property at the time of breach, we remand this matter for further findings and, if necessary, recalculation of the damages and prejudgment interest awarded to Sellers. We also remand this matter to the trial court to recalculate the amount of prejudgment interest to be awarded to the realty companies.

Roane County Court of Appeals 02/04/20
The Electric Employees' Civil Service and Pension Board of Metropolitan Government of Nashville and Davidson County, Tennessee v. Brian Mansell
M2019-00413-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clements Jr.
Trial Court Judge: Chancellor Russell T. Perkins

This appeal arises from the decision of the Metropolitan Government of Nashville and Davidson County Electric Power Board to terminate a Nashville Electric Service (“NES”) cable splicer/working foreman. The foreman allegedly approved fraudulent timesheets for a Metropolitan Nashville Police Department officer, who performed traffic control at NES jobsites for a private contractor. After NES preferred charges against the foreman and suspended him without pay, the board referred the matter to an administrative law judge (“the ALJ”) for adjudication. Following a two-day administrative hearing, the ALJ made numerous findings of fact and conclusions of law in a 55-page report. The ALJ found that the foreman’s job description did not include verifying the accuracy of the timesheets, NES had not trained the foreman on how to verify the accuracy of the timesheets, and a majority of the inaccurate timesheets could be explained by NES’s common practice of rounding up hours at the end of an officer’s shift. Although there was evidence that the officer overstated his hours, the ALJ found the evidence was insufficient to establish the foreman knowingly approved any false timesheets. Accordingly, the ALJ recommended that the charges of termination be denied and that the foreman be reinstated without back pay. After reviewing the ALJ’s report, the board rejected his recommendation and approved NES’s termination of the foreman. However, the board did not make its own findings of fact or express disagreement with the ALJ’s findings. After the foreman filed his petition for judicial review, the trial court reviewed the administrative record and heard arguments of counsel. In its final order, the trial court concluded that “NES’s lack of proof and the apparent acceptance of time-approval practices combine here to demonstrate a lack of substantial and material evidence to uphold the Board’s decision to terminate.” Thus, the trial court reversed the board’s decision, adopted the ALJ’s Report in toto, and directed that the foreman “be reinstated, without backpay.” On appeal, the board contends the trial court applied incorrect principles of law and reweighed the evidence. We disagree. The Charter of the Metropolitan Government of Nashville and Davidson County requires the Electric Power Board to reduce its findings to writing when taking disciplinary action against an employee. In this case, the board rejected the recommendation of the ALJ without making alternative findings of fact to support or explain its reasoning. Thus, the only findings of fact, credibility determinations, and conclusions of law in the administrative record are those of the ALJ. Because the ALJ’s findings are supported by substantial and material evidence, we conclude that NES failed to prove by a preponderance of the evidence that the foreman knowingly approved false timesheets for the police officer. We also conclude that a reasoning mind could not have reached the same conclusion as the board under a proper application of the controlling legal principles. Accordingly, we affirm the decision of the trial court.

Davidson County Court of Appeals 02/04/20
In Re Benjamin P. et al.
E2019-01022-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert D. Philyaw

This action involves the termination of a mother’s parental rights to her two minor children. Following a bench trial, the trial court found that clear and convincing evidence existed to support the statutory ground of the persistence of conditions which led to removal. The court also found that termination was in the best interest of the children. We affirm the trial court.

Hamilton County Court of Appeals 02/04/20
Pamela Pryor v. City of Memphis
W2018-01353-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Jim Kyle

This appeal involves Appellant City of Memphis’ (“the City”) decision to deny Appellee Pamela Pryor’s application for On-the-Job-Injury (“OJI”) benefits arising from the death of her husband while he was employed as a firefighter. On appeal, the Administrative Law Judge (“ALJ”) upheld the City’s denial of the OJI claim citing the absence of an autopsy report as required by the City’s OJI policy. On review, the trial court reversed the ALJ’s decision on its finding that the City’s OJI Policy PM 74-02(3), which required claimant to procure an autopsy, conflicted with the statutory presumption given firefighters in Tennessee Code Annotated section 7-51-201, and remanded the case to the ALJ to conduct a new hearing on the merits. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 01/31/20
Jonah Paul Anders v. Mayla Anders
W2020-00146-COA-T10B-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Gina C. Higgins

This is an accelerated interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B from the trial court’s denial of a motion for recusal. Petitioner contends the trial judge should have recused herself but fails to state any grounds or facts to support his contention. Moreover, Petitioner failed to comply with Rule 10B by, inter alia, not attaching an affidavit that verified the specific factual grounds supporting disqualification of the trial judge. Due to Petitioner’s failure to comply with Rule 10B, we affirm the trial court’s decision to deny the motion for recusal.

Shelby County Court of Appeals 01/31/20
Hutton Team, LLC v. Ingles Markets, Incorporated Et Al.
E2018-01372-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Douglas T. Jenkins

A grocery store, the anchor tenant of a shopping center, objected to the planned construction of a retail auto parts store on an adjacent property, which fronted the shopping center. In letters to the developer, the grocery store claimed it had approval rights in the adjacent property by virtue of its lease. The developer sought declaratory relief to settle the dispute and sought damages against the grocery story under several theories, including slander of title. The grocery store answered and counterclaimed for attorney’s fees. At the conclusion of trial, the court granted the developer its requested declaratory relief, but it dismissed the developer’s claims for damages. The court also declined to award the grocery store attorney’s fees. On appeal, the grocery store claims error in the finding that it lacked approval rights over development of the adjacent property, either by virtue of its lease or equitable theories. The grocery store additionally challenges the denial of its request for attorney’s fees for successfully defending against the developer’s slander of title claim. Based on our review, the grocery store failed to establish it had approval rights over the adjacent property. We also conclude that attorney’s fees were not recoverable for successfully defending the slander of title claim. So we affirm.

Greene County Court of Appeals 01/31/20
Jerry Cox v. Water and Wastewater Treatment Authority Of Wilson County, Tennessee
M2018-00433-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Clara W. Byrd

While a homeowner was standing on the water meter box in his yard, the concrete cover on the box moved unexpectedly, and the homeowner was injured. The homeowner sought compensation for his injuries from the county water authority. The water authority denied it had prior notice that the water meter box was dangerous or defective and alleged the comparative fault of the homeowner. After a bench trial, the trial court found the water authority had actual notice of the dangerous or defective condition of the water meter box and failed to take appropriate action. The court allocated 100% of the fault to the water authority and awarded the homeowner both economic and noneconomic damages. The water authority challenges the trial court’s findings on liability, comparative fault, and the amount of noneconomic damages. The water authority also claims that the trial court made several procedural errors. We conclude that the evidence does not preponderate against the trial court’s factual findings. Discerning no reversible error, we affirm.  

Wilson County Court of Appeals 01/31/20
In Re Serenity S. Et Al.
E2019-00277-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Brian J. Hunt

This is a termination of parental rights case, focusing on Serenity S., Hezeki S., Azaiah W., and Lyriq S., the minor children (“the Children”) of Angela W. (“Mother”) and William S. (“Father”). The Children were taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) on March 30, 2017, upon investigation into allegations of environmental and educational neglect. The Anderson County Juvenile Court (“trial court”) subsequently adjudicated the Children dependent and neglected as to both parents on May 23, 2017. On July 11, 2018, DCS filed a petition to terminate the parental rights of Mother and Father to the Children. Following a bench trial, the trial court granted the petition as to both parents in an order entered on January 18, 2019.1 As pertinent to this appeal, the trial court found that statutory grounds existed to terminate Mother’s parental rights upon its finding by clear and convincing evidence that (1) Mother had abandoned the Children by failing to visit them, (2) Mother had failed to substantially comply with the reasonable responsibilities and requirements of the permanency plans, (3) the conditions leading to the Children’s removal from Mother’s home persisted, and (4) Mother had failed to manifest an ability and willingness to personally assume custody of or financial responsibility for the Children. The trial court further found by clear and convincing evidence that termination of Mother’s parental rights was in the Children’s best interest. Mother has appealed. Discerning no reversible error, we affirm the trial court’s judgment terminating Mother’s parental rights to the Children.

Anderson County Court of Appeals 01/31/20
Susan Scott Davis v. Bobby Tex Henry
E2019-00365-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Michael W. Moyers

This appeal arose from the trial court’s final order denying the father’s motion to set aside a prior agreed parentage order and agreed permanent parenting plan order (“PPP”) entered into by the father and the mother. The trial court determined that under relevant case law, it had “no duty to conduct any further hearing” regarding the parentage order and PPP because the court had on previous occasions conducted multiple hearings. The father subsequently appealed the trial court’s final order, claiming, inter alia, that the trial court failed to make specific findings of fact regarding the best interest of the minor child. Discerning no reversible error, we affirm.

Knox County Court of Appeals 01/31/20
Deborah Jean Walker v. Barry Lyle Walker
M2018-01140-COA-R9-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Joseph A. Woodruff

As part of this divorce action, Husband sought enforcement of an antenuptial agreement. Wife claimed the agreement was unenforceable because Husband failed to disclose a condominium he owned with a former girlfriend. After an evidentiary hearing, the trial court ruled that the antenuptial agreement was unenforceable because Husband did not enter the agreement in good faith. We conclude that Husband failed to meet his burden of proof at the evidentiary hearing. So we affirm.

Williamson County Court of Appeals 01/31/20
Pamela D. Stark v. Joe Edward Stark
W2019-00650-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Robert Samual Weiss

This is an appeal from an order finding the appellant in civil contempt and ordering her incarcerated until she agreed to remove a social media post. The appellant was incarcerated for four hours before she purged herself of contempt by agreeing to remove the post. On appeal, the appellant challenges the civil contempt finding. Because the appellant has purged herself of civil contempt and was released from incarceration, we deem the issue moot and dismiss this appeal.

Shelby County Court of Appeals 01/31/20
In Re Imerald W.
W2019-00490-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Special Judge Harold W. Horne

This is a termination of parental rights case. The trial court found, by clear and convincing evidence, that mother’s parental rights should be terminated on the grounds of abandonment by the willful failure to support the child, substantial noncompliance with the permanency plans, persistence of conditions, severe child abuse, and failure to manifest an ability and willingness to assume custody or financial responsibility of the child. The trial court further found, by clear and convincing evidence, that termination was in the best interests of the child. Having reviewed the record on appeal, we affirm.

Shelby County Court of Appeals 01/31/20
Christopher Maurice Kibbe v. Mary Carolyn Kibbe
E2018-00198-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge James E. Lauderback

This post-divorce appeal concerns the father’s petition to modify his spousal support obligation, to which the mother responded with her own motions concerning the father’s failure to exercise his co-parenting time with their disabled daughter as agreed. Following a hearing, the trial court reduced the father’s spousal support obligation but ordered him to remit payment to the mother for respite care in the event that he failed to exercise his co-parenting time. The father appeals. We affirm.

Washington County Court of Appeals 01/30/20
Jada Sue Cail v. Howard Anthony Meadows
E2019-00689-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Casey Mark Stokes

The appellant in this parenting dispute has appealed the trial court’s order and the incorporated permanent parenting plan, both of which the trial court entered on December 6, 2018. Having determined that the permanent parenting plan at issue is incomplete, we further determine that the order incorporating the parenting plan is not a final order. Therefore, we dismiss this appeal for lack of subject matter jurisdiction.

Meigs County Court of Appeals 01/30/20
The Law Office of Brian T. Boyd v. Daniel Silverman
M2019-00412-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Kelvin D. Jones

Unsatisfied with the judgment it obtained in the general sessions court, the plaintiff appealed to the circuit court.  When the plaintiff failed to file a timely motion to set its appeal for trial, the circuit court adopted the judgment of the general sessions court.  The plaintiff moved to set aside the judgment, claiming excusable neglect.  The court denied the motion.  On appeal, the plaintiff argues that the court abused its discretion in denying the motion to set aside.  We affirm.

Davidson County Court of Appeals 01/29/20
In Re Conservatorship Of Laylon Eugene Perry
M2018-00971-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Howard W. Wilson

In this conservatorship action, the trial court determined that the evidence clearly and convincingly established that the respondent had a disability but did not establish that the respondent needed a conservator. The petitioner appealed. Having reviewed the evidence presented at trial, we affirm the trial court’s decision. 

Cannon County Court of Appeals 01/29/20
Romglobal, Inc. Et Al. v. Steve Miller Et Al.
E2019-00058-COA-R3-Cv
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

The plaintiff corporation filed an action for breach of contract, claiming that the defendants had failed to recognize the plaintiff’s ownership in a limited liability company that was allegedly based on an oral agreement between the plaintiff and defendants. The trial court dismissed the plaintiff’s claims, determining that the plaintiff had failed to present clear and convincing evidence establishing the parties’ agreement that the plaintiff would have an ownership interest in the company. The plaintiff has appealed. Discerning no reversible error, we affirm.

Sevier County Court of Appeals 01/29/20
Freida Louise Climer v. Stephen Franklin Climer
W2018-01910-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor James F. Butler

This is a divorce action. Husband appeals the trial court’s division of marital property and award of alimony to Wife. Discerning no error, we affirm.

Madison County Court of Appeals 01/29/20
Deborah Balzer v. Joseph Balzer
E2019-00576-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Telford E. Forgety, Jr.

Following a divorce, husband and wife agreed that wife was to receive monthly alimony payments from husband for eight and a half years. The last four years of payments were contingent upon husband attaining the rank of airline captain. The type of alimony awarded was never specified. Wife later remarried and cohabitated with her new husband. Husband filed for a modification alleging that the alimony was transitional alimony and therefore statutorily modifiable upon wife’s cohabitation with a third person. See Tenn. Code Ann. § 36–5–121(g)(2)(C) (2019). Wife instead argued that the alimony awarded was alimony in solido and therefore not modifiable except by agreement of the parties. See Tenn. Code Ann. § 36–5–121(h)(2). The trial court held that the expressly conditional nature of the alimony rendered it more properly classifiable as transitional alimony. The court terminated husband’s alimony obligation based upon wife’s remarriage and cohabitation with her new husband. Wife appeals. Discerning no error, we affirm.

Sevier County Court of Appeals 01/28/20
In Re: Kelsea L.
E2019-00762-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Thomas J. Wright

This appeal involves the termination of a father’s parental rights based on the ground of abandonment by willful failure to visit and willful failure to support. The father appeals. We reverse the trial court’s finding of willful failure to support but affirm the trial court’s finding of willful failure to visit and its determination that termination of parental rights is in the best interest of the child. Accordingly, we affirm termination of the father’s parental rights.

Hawkins County Court of Appeals 01/27/20
Brent G. Pitchford v. Loves Truck Stop
M2019-02262-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This appeal arises out of an inmate’s lawsuit alleging that an employee of Loves Truck Stop filed a false police report. The trial court dismissed the suit on September 4, 2019, for failure to file an affidavit of indigency and failure to comply with Tenn. Code Ann. § 41-21-407. The inmate, Brent G. Pitchford, filed a notice of appeal with the clerk of this court on December 16, 2019. 

Davidson County Court of Appeals 01/24/20
Joel David Cormier v. Pat Hankins Et Al.
E2018-00396-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Beth Boniface

A prisoner filed suit against a fellow inmate and several county defendants. The county defendants filed a motion to dismiss for failure to state a claim. The trial court granted the motion to dismiss and dismissed the prisoner’s cause of action as to the county defendants. The prisoner appealed. Because the order appealed does not dispose of all of the prisoner’s claims against all defendants, we dismiss the appeal for lack of a final judgment.

Greene County Court of Appeals 01/24/20
Pamela Cotham v. Nicholas Jay Yeager Et Al.
E2019-00423-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert E. Lee Davies

The plaintiff filed this action seeking to recover damages on behalf of Anderson County based upon the plaintiff’s allegations that the defendants had submitted false claims for payment by the county. The trial court dismissed the action, determining that the plaintiff’s amended complaint had failed to state a claim upon which relief could be granted. The plaintiff has appealed. Discerning no reversible error, we affirm the trial court’s judgment of dismissal.

Anderson County Court of Appeals 01/24/20
Gary Fisher v. Villages At Henley Station, LLC, Et Al.
M2018-01990-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge J. Mark Rogers

This appeal involves a slip and fall premises liability claim filed by a tenant against his landlord.  The trial court granted summary judgment to the landlord because the tenant’s evidence did not show that the allegedly dangerous condition was in existence as of the date of the lease or that the landlord had actual or constructive notice of the allegedly dangerous condition.  The tenant appeals.  Discerning no error, we affirm.

Rutherford County Court of Appeals 01/24/20
In Re Michael W. Et Al.
E2019-00107-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Ronald Thurman

Mother appeals the termination of her parental rights on grounds of abandonment, substantial noncompliance with permanency plans, and persistence of conditions. Because the record on appeal contains no permanency plans that apply to the children at issue in this case, we reverse the substantial noncompliance with permanency plans ground for termination. We affirm the remaining grounds for termination, as well as the trial court’s best interest finding.

Cumberland County Court of Appeals 01/23/20