Court of Appeals Opinions

Format: 12/07/2019
Format: 12/07/2019
Karen Abrams Malkin v. Reed Lynn Malkin
W2018-01197-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Walter L. Evans

This appeal involves a former husband’s fourth petition to reduce or terminate his alimony in futuro obligation since the parties were divorced. When considering the appeal of husband’s third attempt, in Malkin v. Malkin, 475 S.W.3d 252 (Tenn. Ct. App. 2015), this Court reversed the trial court’s reduction of the award and reinstated the prior alimony obligation. We found that the husband’s retirement was objectively reasonable and constituted a substantial and material change in circumstances, but we concluded that the husband failed to prove that the change in circumstances significantly diminished his financial ability to pay alimony or his former wife’s need for it. Just months after the Tennessee Supreme Court denied the husband’s application for permission to appeal, he filed his fourth petition to reduce or terminate his obligation. The wife filed a counter-petition to increase the award. The trial court granted the husband’s petition, again, and reduced the award to less than half of its previous amount. The wife appeals. We reverse and remand for further proceedings.

Shelby County Court of Appeals 10/07/19
Li Huang Sullivan v. Eric Jason Sullivan
M2018-01776-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James G. Martin, III

This appeal is from a final decree of divorce. The Husband challenges several of the trial court’s rulings regarding the parenting plan, division of the marital estate, calculation of child support, and denial of his motion to amend to file a counterclaim for alimony. For the following reasons, we affirm the judgment of the trial court.

Williamson County Court of Appeals 10/04/19
Thomas J. Elsten, Jr. v. Jeffrey Coker, Et Al.
M2019-00034-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joe H. Thompson

This appeal arises from a defamation action filed by one mayoral candidate against another for statements made during the City of Hendersonville, Tennessee mayoral race. Accordingly, the issues are to be judged based on the more stringent standards that apply in a defamation action brought by a public figure. After engaging in discovery, the defendant filed a motion for summary judgment, contending the plaintiff lacked evidence showing the defendant published the statements with actual malice. To withstand the motion for summary judgment, the plaintiff had the burden to demonstrate he would be able to prove clearly and convincingly that the defendant acted with actual malice, which required proof the defendant had knowledge that the facts he published about the plaintiff were false or that he acted with reckless disregard as to their truth or falsity. The trial court found that the plaintiff “did not produce clear and convincing evidence of actual malice at the summary judgment stage” and summarily dismissed the action. We affirm.

Sumner County Court of Appeals 10/04/19
Latonya Denise Hall v. Sammie Lee Williams, III
M2018-1738-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ted A. Crozier

This post-divorce appeal concerns the trial court’s modification of a permanent parenting plan. We affirm the parenting plan determination and all other rulings by the trial court.  

Montgomery County Court of Appeals 10/04/19
In Re Caroline U.
E2018-01951-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Timothy E. Irwin

This is a modification of residential schedule case. The father requested an increase in parenting time based on a material change in circumstances. The court ruled that the father failed to demonstrate a material change in circumstances. We affirm.

Knox County Court of Appeals 10/04/19
David Mark Sloane v. Tennessee Department of State, Business Services Division
M2019-00126-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Anne C. Martin

On September 30, 2016, Appellee Tennessee Secretary of State, Business Services Division assessed $25,000.00 in civil penalties against Appellant David M. Sloane for his violations of the Athlete Agent Reform Act of 2011. Mr. Sloane requested a hearing to dispute the penalties, and the Administrative Law Judge (“ALJ”) reduced the penalties to $5,000.00 for each violation and $740.00 in investigatory costs. Mr. Sloane then filed a petition for judicial review with the trial court; the trial court affirmed the ALJ’s order. Mr. Sloane appeals. We affirm.  

Davidson County Court of Appeals 10/03/19
Abraham Asley Augustin v. Bradley County Sheriff's Office et al.
E2018-00281-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Lawrence Howard Puckett

Appellant appeals from the dismissal of his complaint seeking damages for the improper forfeiture of his property seized incident to an arrest. The trial court dismissed the action on the basis of lack of subject matter jurisdiction. We affirm the trial court’s dismissal of Appellant’s claim for the return of his seized property, as the trial court lacked subject matter jurisdiction to adjudicate that claim. We reverse, however, the dismissal of Appellant’s claim for damages related to a bad faith seizure under Tennessee Code Annotated section 40-33-215.

Bradley County Court of Appeals 10/02/19
In Re Josiah T.
E2019-00043-COA-R5-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Timothy E. Irwin

A mother appeals the termination of her parental rights to her child. Before trial, the mother moved to dismiss the petition to terminate her parental rights for failure to join the father of the child as a necessary party. The juvenile court denied the motion. And after a trial, the court found six statutory grounds for termination and that termination of the mother's parental rights was in the child's best interest. We discern no error in the trial court's denial of the motion to dismiss. But we conclude that the evidence was less than clear and convincing as to one of the statutory grounds relied on by the trial court for the termination of the mother's parental rights. Still, the record contains clear and convincing evidence to support the remaining five grounds for termination and that termination is in the child's best interest. So we affirm the termination of the mother's parental rights.

Knox County Court of Appeals 10/02/19
George E. Miller et al. v. TRH Health Insurance Company et al.
E2017-02049-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Telford E. Forgety

An insured sued his health insurance provider, seeking damages for breach of contract and bad faith refusal to pay valid insurance claims after coverage was denied for medical expenses related to the removal of a kidney stone. The defendants moved for summary judgment based on a benefit exclusion rider to the insurance contract that excluded coverage for treatment, surgery, or expenses related to kidney stones. The trial court rejected the insured’s argument that the exclusion rider did not apply and granted summary judgment to the defendants. Because the defendants were entitled to a judgment of dismissal as a matter of law based on the undisputed facts, we affirm.

Sevier County Court of Appeals 10/02/19
Gloria Juanita Milton v. Donald Powell et al.
E2018-01904-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Elizabeth C. Asbury

This case presents a boundary line dispute between the owners of adjacent properties. Gloria Juanita Milton (plaintiff), owner of a roughly 2.44-acre lot in the Morton Acres subdivsion in Campbell County, brought this action against the owners of the adjacent lot to the north, Donald Powell and Donna Powell Fredricks Carson (defendants). The issue at trial was the location of the boundary line between the properties. Each side hired a surveyor. Plaintiff’s surveyor, William Easter, presented a survey of plaintiff’s property that conformed very closely to the calls and boundaries established by the original subdivision plat. Defendants’ surveyor, Dwight Crutchfield, presented a survey of the boundary line that gave defendants property in the amount of about 0.46 acre more than that described in the subdivison plat and Easter’s survey. The trial court credited the survey presented by plaintiff and established the boundary line as presented in the Easter survey. Defendants appeal, arguing that the trial court erred by disregarding wellestablished principles for determining disputed boundaries as prescribed in Thornburg v. Chase, 606 S.W.2d 672 (Tenn. Ct. App. 1980) and Wood v. Starko, 197 S.W.3d 255 (Tenn. Ct. App. 2006). We affirm.

Campbell County Court of Appeals 10/02/19
Mary Ann Sklar v. Patrick Clancy et al.
E2018-01487-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Telford E. Forgety

This appeal involves a review of the denial of a motion pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. We affirm the ruling of the trial court.

Jefferson County Court of Appeals 10/02/19
Sheila Long Pless v. Robert Eugene Pless, Jr.
M2018-02047-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Joseph A. Woodruff

In this divorce, Wife appeals the trial court’s decision to deny her alimony notwithstanding a previously executed separation agreement that provided a non-modifiable award of alimony in futuro. Wife also appeals the trial court’s denial of a arrearage judgment for school and extracurricular expenses under the separation agreement. Discerning no reversible error, we affirm.

Williamson County Court of Appeals 09/30/19
Colette Elaine Wise v. Daniel Gregory Bercu
M2017-01277-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Deanna Bell Johnson

This appeal arose from the parties’ divorce proceedings. After the husband failed to appear at a motion hearing wherein the wife was seeking to compel discovery and requesting sanctions against the husband, the Trial Court granted a default judgment against the husband. Although requesting sanctions to include default judgment if the husband failed to comply with discovery, the wife had not specifically requested immediate entry of default judgment against him. The Trial Court thereafter scheduled a final trial for the divorce. The husband filed nothing with the Trial Court to attempt to remedy the default judgment against him prior to trial. The husband was provided notice of the trial but failed to appear. On the day of the trial, the Trial Court heard the evidence presented by the wife regarding the grounds for divorce, marital assets, marital debts, property division, and alimony. Based on the wife’s uncontested testimony and evidence presented at trial, the Trial Court granted a divorce, divided the marital estate, and awarded wife alimony in futuro and alimony in solido. Subsequently, the husband filed two motions pursuant to Tennessee Rule of Civil Procedure 60.02, both of which were denied by the Trial Court. The husband appealed. Upon a review of the record before us, we determine no reversible error exists in this matter. We, therefore, affirm the Trial Court’s judgment in all respects.  

Williamson County Court of Appeals 09/30/19
Andrea (Messer) Schwager v. Timothy Scott Messer
W2018-01820-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jerry Stokes

In this post-divorce action concerning modification of the father’s child support obligation, the trial court determined that a significant variance existed between the parties’ incomes at the time of the modification hearing and the amount of income the parties earned at the time of the divorce. The trial court modified the father’s child support obligation accordingly. The trial court declined, however, to modify the father’s child support obligation for any time period prior to the filing of the mother’s modification petition in 2015 despite language in the parties’ agreement providing that recalculation would take place in 2011. The trial court also ordered that the father would pay 65% of the children’s private school tuition and the mother would pay 35%. The trial court further awarded to the mother a portion of her attorney’s fees and expert witness fees incurred up to the time of the hearing. The mother has appealed. Discerning no reversible error, we affirm the trial court’s judgment in all respects. We decline to award attorney’s fees to either party on appeal.

Shelby County Court of Appeals 09/27/19
Joeel Byrd Et Al. v. Mrs. Grissom's Salads, Inc.
M2019-01232-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Both the plaintiffs and the defendant have appealed from an order granting in part and denying in part the defendant’s motion for summary judgment. The trial court determined that there was no just reason for delay and directed the entry of a final judgment under Tennessee Rule of Civil Procedure 54.02. Because the partial summary judgment is not appropriate for certification as a final judgment under Tennessee Rule of Civil Procedure 54.02, we dismiss the appeal.

Davidson County Court of Appeals 09/26/19
Bradley Jetmore v. City of Memphis
W2018-01567-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor JoeDae L. Jenkins

In this case involving the Tennessee Public Records Act (“TPRA”), Tenn. Code Ann. §§ 10-7-101 – 10-7-702 (2012 & Supp. 2019), the petitioner filed a petition alleging that the respondent, the City of Memphis (“the City”), had violated the TPRA by failing to promptly disclose unredacted crash reports for all traffic accidents to which the City’s police officers had responded on two specific days in November 2017. The City filed a motion to dismiss the petition or, in the alternative, to stay proceedings pending resolution of what it averred would be a determinative issue in a related federal case. Following a non-evidentiary hearing, the trial court denied the City’s motion to dismiss and motion to stay pending resolution of the federal action. Finding that the City had violated the TPRA by failing to promptly disclose unredacted crash reports for public inspection, the trial court ordered such disclosure; however, upon also finding that a substantial legal issue was to be determined, the trial court stayed its disclosure order pending resolution of this appeal pursuant to Tennessee Code Annotated § 10-7-505(d)-(e) (2012). Upon finding that the City’s violation of the TPRA had not been willful, the trial court denied the petitioner’s request for attorney’s fees. The City timely appealed. During the pendency of this appeal, the federal district court in the related case certified the legal question posed by the City for presentation to the Tennessee Supreme Court, but the High Court subsequently entered an order declining certification. By the time of oral arguments before this Court, the parties acknowledged that the sole issue remaining for adjudication in this appeal was the petitioner’s request for attorney’s fees. We determine that under the version of the TPRA in effect at the time this action was filed, the trial court properly found that the City failed to promptly disclose the public records at issue. We further determine that the City’s violation of the TPRA was willful pursuant to Tennessee Code Annotated § 10-7-505(g) (2012). We therefore reverse the trial court’s finding in this regard. We remand for the trial court to consider, in light of our determination concerning willfulness, whether reasonable attorney’s fees incurred during the trial court proceedings should be awarded to the petitioner. However, because the petitioner has not properly raised an issue concerning attorney’s fees on appeal, we deem the petitioner’s request for attorney’s fees on appeal to be waived.

Shelby County Court of Appeals 09/26/19
PMFS H-VIEW I, LLC v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY ET AL.
M2018-01806-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal concerns a municipality’s authority to order structures demolished pursuant to the Slum Clearance and Redevelopment Act, Tenn. Code Ann. § 13-21-101 et seq., and local ordinances implementing that Act. The trial court vacated a decision of the Metropolitan Board of Property Standards and Appeals that required demolition of the structures at issue. In light of the evidence that the cost to repair the structures exceeds fifty percent of their value, we reverse the decision of the trial court.

Davidson County Court of Appeals 09/26/19
Broderick D. V. Carmen v. Jessica Ann Murray
M2018-00146-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Steven D. Qualls

In this post-divorce dispute, Father petitioned to modify custody, and Mother filed a counter-petition to modify child support. At trial, both parents agreed to specific modifications to the parenting plan and to set child support according to the Child Support Guidelines. But they could not agree on a location for exchanging the children. After hearing limited testimony from the parents, the court chose an exchange location, set child support, and approved the agreed parenting plan. Unhappy with aspects of the new plan, Father filed a motion to alter or amend or for a new trial. The court denied Father’s motion but granted Mother’s motion to recalculate child support to reflect the parents’ actual parenting time. Because the court’s order approving the modified plan does not comply with Tennessee Rule of Civil Procedure 52.01 and the record lacks a sufficient basis to support a best interest determination, we vacate the modification of the parenting plan and remand for the court to conduct a new evidentiary hearing on whether modification of the parenting plan is in the children’s best interest and enter an order compliant with Rule 52.01. In all other respects, the decision of the trial court is affirmed.

Putnam County Court of Appeals 09/25/19
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 interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B, from the trial court’s denial of a motion for judicial recusal filed by the wife during the course of the parties’ divorce proceedings. Having determined that the trial court made insufficient findings in denying the motion as required by Section 1.03 of Rule 10B, we vacate the trial court’s order denying wife’s motion to recuse—as well as any other orders entered subsequent to the filing of Wife’s recusal motion—and remand for further proceedings consistent with this opinion.

Meigs County Court of Appeals 09/25/19
JOANNE ACKERMAN v. SCOTT ACKERMAN
M2019-00211-COA-R3-CV
Authoring Judge: JUDGE ANDY D. BENNETT
Trial Court Judge: JUDGE JUSTIN C. ANGEL

In this divorce appeal, Wife argues that the trial court erred in dividing the equity in the marital home and in calculating her net award. We find no error in the trial court’s division of the equity in the marital home, but we have determined that the court erred in its calculation of the net award by crediting the marital debt against Wife twice. We, therefore, affirm in part and reverse in part.

Sequatchie County Court of Appeals 09/24/19
John Riebsame v. Brad Schemel
E2018-01798-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

The facts before the court on appeal depend upon the procedural posture of the case. John Riebsame, a former employee of Holland Enterprises (“Holland”), filed a complaint in the Circuit Court for Hamilton County, Tennessee on June 18, 2018, against Bradley Schemel, the vice president of Holland, a trucking company headquartered in Mapleton, North Dakota. On July 20, 2018, Mr. Schemel filed a motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(2) and (4) for lack of personal jurisdiction and insufficient service of process. With his motion, Mr. Schemel submitted his own affidavit, the contents of which will be detailed as relevant below.

Hamilton County Court of Appeals 09/24/19
Melanie Lemon v. Williamson County Schools, Et Al.
M2018-01878-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph A. Woodruff

The plaintiff, a former tenured schoolteacher, sued the Williamson County Board of Education and three administrators alleging that she was forced to resign after the defendants “bullied, stalked, intimidated, and defamed” her during the 2015–2016 school year. She asserted claims for wrongful termination, breach of contract, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. The trial court dismissed all of the claims asserted in the original complaint pursuant to Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief could be granted but permitted the plaintiff to file an amended complaint to revise and restate her claims for breach of contract and intentional infliction of emotional distress. Following discovery, the court summarily dismissed the two remaining claims as asserted in the amended complaint. On appeal, the plaintiff challenges the Tenn. R. Civ. P. 12.02(6) dismissal of her wrongful termination and negligence claims, and the summary dismissal of her claims for breach of contract and intentional infliction of emotional distress. We affirm the trial court’s determination the plaintiff’s negligence and intentional infliction of emotional distress claims are barred by the Governmental Tort Liability Act and Teachers’ Tenure Act, respectively. We have also determined that the plaintiff failed to produce evidence of a compensable injury in her claim for breach of contract. As for the plaintiff’s claim of wrongful termination, we respectfully disagree with the trial court’s determination that the doctrine of constructive discharge is inapplicable to wrongful termination claims under the Teachers’ Tenure Act. Therefore, we reverse the dismissal of the plaintiff’s wrongful termination claim and remand this claim for further proceedings. We affirm the trial court in all other respects.

Williamson County Court of Appeals 09/23/19
Travis Morgan, Et Al. v. Land Design Company, Inc., Et Al.
M2019-00563-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph A. Woodruff

The plaintiffs have appealed from an order granting in part and denying in part the defendants’ motion for summary judgment. The trial court also directed the entry of a final judgment under Tennessee Rule of Civil Procedure 54.02. Because the ruling is not appropriate for certification as a final judgment under Tennessee Rule of Civil Procedure 54.02, we dismiss the appeal.

Williamson County Court of Appeals 09/20/19
Don Gatlin, Et Al. v. Linda L. Scott
M2018-02293-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Joe Thompson

This appeal concerns the alleged formation of a contract for the sale of real property. The court ruled that text messages concerning the sale of the property did not constitute a present offer and acceptance sufficient to form a contract for the purchase of the property at issue. We affirm. 

Sumner County Court of Appeals 09/20/19
In Re Estate of Henry C. Ellis, III and In Re Conservatorship of Henry C. Ellis, III
W2019-01431-COA-T10B-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Gina C. Higgins

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, filed by Nancy Neely (“Petitioner”), seeking to recuse the trial judge in these companion cases involving a conservatorship and an estate. Having reviewed the petition for recusal appeal filed by Petitioner, and the answer ordered by this Court, and finding no error in the orders of the Circuit Court for Shelby County (“the Trial Court”) denying recusal, we affirm.

Shelby County Court of Appeals 09/20/19