Court of Appeals Opinions

Format: 05/26/2020
Format: 05/26/2020
Paul Zachary Moss v. Shelby County Civil Service Merit Board
W2017-01813-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Chancellor JoeDae L. Jenkins

The issue presented is whether the Shelby County Fire Department provided a firefighter with sufficient notice of the reasons for his termination. The Fire Department advised the firefighter that he was facing possible termination for violating two specific Fire Department rules. After further investigation and a meeting with the firefighter, the Fire Department gave him a termination letter that recited the two rules and detailed the factual basis for his termination. The firefighter appealed, and the Shelby County Civil Service Merit Board upheld the termination in a written decision that stated the facts and reasons supporting the termination. The trial court affirmed the Board’s decision. The Court of Appeals reversed, finding that the firefighter did not receive adequate notice of the reasons for his termination. We hold that the Shelby County Fire Department provided the firefighter with sufficient notice to satisfy the requirements of due process. We reverse the decision of the Court of Appeals and remand for consideration of pretermitted issues.

Shelby County Court of Appeals 03/18/20
150 4th Ave. N. Tenant, LLC D/B/A WeWork v. The Metropolitan Nashville Board of Zoning Appeals, Et Al. - Concurring in Part and Dissenting in Part
M2019-00732-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Claudia Bonnyman

Because I conclude that Regions Bank had standing to challenge the issuance of the sign permit to 150 4th Ave N Tenant LLC (“WeWork”), I respectfully dissent from that portion of the opinion. As did the trial court, I would hold that the Metropolitan Board of Zoning Appeals acted arbitrarily and capriciously in revoking the WeWork sign permit. But like the majority, I agree that the issue of the brightness of the skyline signs was not properly before the BZA, so I concur in that portion of the opinion.
  

Davidson County Court of Appeals 03/17/20
150 4th Ave. N. Tenant, LLC D/B/A WeWork v. The Metropolitan Nashville Board of Zoning Appeals, Et Al.
M2019-00732-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

This dispute arose from the issuance of a skyline sign permit to a high-rise office-building tenant. The permit allowed the tenant to erect two 495-square-foot signs on the building’s northwest and southeast facades. Another tenant with skyline signs on the northeast and southwest facades appealed the issuance of the permit by filing an application with the Board of Zoning Appeals (“BZA”) for interpretation against the zoning administrator. The complaining tenant contended, inter alia, that its brand was harmed because the juxtaposition of the new and existing signs would blur the relationship between the two tenants and asserted that the new signs caused the building to exceed the maximum signage permitted under the zoning code. The BZA determined that the new signs violated the zoning code and revoked the permit. On a Petition for Writ of Certiorari, the Davidson County Chancery Court held that the BZA erred by relying on a zoning map rather than the code’s plain language and found the new signs complied with the code’s requirements. This appeal followed. We have determined the complaining tenant failed to establish standing because it failed to demonstrate that it was aggrieved by the issuance of the permit. There is no competent evidence to show that the signs’ juxtaposition would create public confusion about or signal a business relationship between the two tenants. Accordingly, the record fails to demonstrate that the complaining tenant’s alleged injury “falls within the zone of interests protected or regulated by the [law] in question.” See City of Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 55–56 (Tenn. Ct. App. 2004). Further, based on the facts of this case, the BZA lacked the ability to provide meaningful redress. For these and other reasons, we affirm the trial court’s judgment in part, albeit on different grounds, and remand with instructions for the trial court to order the BZA to dismiss the complaining tenant’s application and to reinstate the new sign permit as issued in June of 2017. As for a separate issue that a neighboring homeowners’ association attempted to raise during the BZA hearing—whether the northwest sign exceeded brightness standards—that issue was not properly before the BZA or the trial court. Thus, we reverse the trial court’s decision to remand the brightness issue to the BZA.

Davidson County Court of Appeals 03/17/20
In Re Gracie H. Y. et al.
M2019-00639-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Stella L. Hargrove

Ashley H. (“Mother”) appeals the March 2019 order of the Lawrence County Chancery Court (“Trial Court”) terminating her parental rights to the minor children, Noah H. and Gracie H. Y. (collectively, “the Children”). Bobby H. (“Father”) surrendered his parental rights to the Children prior to trial and did not revoke his surrender. Upon petition of the Tennessee Department of Children’s Services (“DCS”), the Trial Court terminated Mother’s parental rights to the Children upon the statutory grounds of abandonment by failure to visit prior to her incarceration, abandonment by wanton disregard, abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plans, persistent conditions, and failure to manifest an ability and willingness to assume custody or financial responsibility of the Children. The Trial Court further found that termination of Mother’s parental rights was in the Children’s best interest. Mother timely appealed. We reverse the statutory ground of abandonment by failure to provide a suitable home. We affirm the Trial Court’s judgment in all other respects including the termination of Mother’s parental rights.

Lawrence County Court of Appeals 03/16/20
Home Builders Association Of Middle Tennessee Et Al. v. Williamson County, Tennessee, Et Al.
M2019-00698-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor James G. Martin, III

An organization of developers brought suit against Williamson County seeking a declaratory judgment that an impact fee imposed on new developments to fund improvements to schools throughout the county exceeded the authority granted to the county by the legislature, or alternatively, that Tenn. Code Ann. § 13-3-413(b) exempted the organization’s members from paying the impact fee because their property rights vested prior to adoption of the impact fee. The trial court granted summary judgment to the county, concluding that the impact fee did not exceed the authority granted to the county and that Tenn. Code Ann. § 13-3-413(b) did not apply because the impact fee did not constitute a development standard. We affirm.   

Williamson County Court of Appeals 03/13/20
IN RE Austin J.
M2019-00781-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor J.B. Cox

This appeal arises from a petition to terminate the parental rights of a father to his child for the purposes of adoption. The petitioners, the child’s mother and her new husband, alleged that the father had abandoned the child both by willfully failing to visit and by willfully failing to support. Following a trial, the court concluded that the petitioners had failed to show that the father’s failures to visit or to support were willful. So the court dismissed the petition. On appeal, the petitioners contend that the evidence was clear and convincing that the father willfully failed to support his child. After a review of the record, we affirm.

Marshall County Court of Appeals 03/13/20
Kimberly Johnson Dougherty v. M.E. Buck Dougherty
W2020-00284-COA-T10B-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor William C. Cole

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, filed by M.E. Buck Dougherty (“Father”), seeking to recuse the trial judge in this case involving modification of a parenting plan. Having reviewed the petition for recusal appeal filed by Father we find that the order of the Chancery Court for Fayette County (“Trial Court”) did not sufficiently comply with Rule 10B. We, therefore, vacate the Trial Court’s January 30, 2020 order and remand this case to allow Father to amend his petition and for the Trial Court to either grant the motion or enter an order that states in writing all the grounds upon which the motion is denied.

Fayette County Court of Appeals 03/12/20
Amy Angell Tucker, Et Al. v. Sandra Jackson Iveson, Et Al.
M2018-01501-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

A plaintiff who developed tendonitis after taking medication prescribed by a nurse practitioner filed a malpractice action against the nurse practitioner and the pharmacy that filled the prescription. Two years later, the plaintiff amended her complaint to add the
nurse practitioner’s employer and supervising physician as defendants. The new defendants moved to dismiss, arguing that the claims against them were barred by the applicable statutes of limitations and repose and that the plaintiff failed to provide them
with pre-suit notice of a potential medical malpractice claim. The plaintiff responded that fraudulent concealment tolled the statutes and constituted extraordinary cause to waive pre-suit notice. The trial court agreed and denied the motions. The defendants then moved for summary judgment on other grounds, which the court granted. It is undisputed that the plaintiff’s claims against these defendants were filed beyond the time allowed by the statute of repose for medical malpractice actions. Because we conclude that the plaintiff cannot establish an essential element of the fraudulent concealment exception, the defendants are entitled to judgment as a matter of law based on the statute of repose. So we affirm the dismissal of the claims against these defendants on summary judgment but on different grounds.

Davidson County Court of Appeals 03/11/20
In Re Bentley Q.
E2019-00957-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John S. McLellan, III

In this termination of parental rights action, the father has appealed the trial court’s final order terminating his parental rights based on several statutory grounds. The maternal grandparents of the minor child, Bentley Q. (“the Child”), filed a petition to terminate the mother’s and father’s parental rights and to allow the maternal grandparents to adopt the Child. As pertinent to this appeal, the trial court found by clear and convincing evidence that the father had (1) abandoned the Child by willfully failing to visit the Child and (2) failed to manifest an ability and willingness to assume custody of or financial responsibility for the Child. The trial court also found by clear and convincing evidence that it was in the Child’s best interest that the father’s parental rights be terminated. The father has appealed. Discerning no reversible error, we affirm.

Sullivan County Court of Appeals 03/11/20
In Re Carlie Z. Et Al.
M2020-00274-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Sammie E. Benningfield, Jr.

The is an appeal from an order terminating a father’s parental rights. Because the father did not file his notice of appeal within thirty days after entry of the order as required by Tenn. R. App. P. 4(a), we dismiss the appeal.

White County Court of Appeals 03/10/20
Alexis Luttrell Tutor v. Joseph Keith Tutor
W2019-00544-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert Samual Weiss

In this post-divorce dispute, Appellant Mother and Appellee Father filed cross-petitions seeking modification of the permanent parenting plan for their minor child. Father sought a change in primary residential parent, and Mother sought modification of the parenting schedule and decision-making authority. On its finding that the parties stipulated to a material change in circumstance, the trial court granted Father’s petition and denied Mother’s petition. Because the trial court failed to delineate between the burden of proof for modification of custody and the burden of proof for modification of parenting schedule, Tenn. Code Ann. §§ 36-6-101(a)(2)(B), (C), we vacate the trial court’s order and remand.

Shelby County Court of Appeals 03/10/20
Susan Hembree (Schumacher) Deluca v. Kerry James Schumacher
M2019-00601-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Philip E. Smith

A husband and wife executed a marital dissolution agreement (“MDA”) providing that the husband would pay the wife alimony in futuro even if she remarried. Following the wife’s remarriage, the husband sought to have his alimony obligation terminated pursuant to Tenn. Code Ann. § 36-5-121(f)(3), which provides that an alimony in futuro award “shall terminate automatically and unconditionally upon the death or remarriage of the recipient.” The trial court terminated the husband’s alimony obligation, and the wife appealed. We reverse the trial court’s judgment because the parties voluntarily agreed to terms outside of the statute, and their contract is enforceable as written.

Davidson County Court of Appeals 03/06/20
Wafa Badawi Hindiyeh v. Waleed Fawzi Abed
M2018-01581-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge J. Mark Rogers

This is the second appeal of a parenting plan. In the first appeal, Father successfully challenged the adoption of a plan that allocated him only 80 days parenting time; the case was remanded with instructions for the trial court to increase Father’s parenting time. Following a hearing, the trial court adopted Father’s proposed parenting plan which granted the parties equal parenting time, and in so doing, addressed other matters. Mother appeals. We affirm the award of equal parenting time and the adjustment to child support and income tax deductions that necessarily followed; we modify the plan to include certain provisions that were in the previous parenting plan.

Rutherford County Court of Appeals 03/06/20
Brandon Burns v. State Farm Fire And Casualty Company
E2019-00044-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge William T. Ailor

This appeal concerns a plaintiff’s effort to amend a civil warrant. Brandon Burns (“Burns”) had homeowners insurance through State Farm Fire and Casualty Company (“SFFCC”). When SFFCC did not repair the progressing damage to his home caused by a sinkhole, Burns sued “State Farm Insurance” in the Knox County General Sessions Court (“the General Sessions Court”). It was the wrong entity. Nevertheless, Burns obtained a $25,000 default judgment against it. SFFCC, a non-party, somehow and for some reason filed an appeal to the Circuit Court for Knox County (“the Circuit Court”). In the Circuit Court, Burns filed a motion to amend. SFFCC filed a motion to dismiss, which the Circuit Court granted as to SFFCC but not as to State Farm Insurance. SFFCC then dismissed its appeal, content to let the General Sessions Court judgment stand against State Farm Insurance. Some months later, Burns made an oral motion to amend in the General Sessions Court, which was granted. The parties agreed to remove the case back to the Circuit Court, which granted summary judgment to SFFCC. Burns appeals. We hold that the General Sessions Court lacked jurisdiction to grant Burns’ motion to amend or otherwise modify its judgment because its judgment became final months before Burns’ motion was noticed for hearing in the General Sessions Court. We affirm the judgment of the Circuit Court.

Knox County Court of Appeals 03/06/20
Belinda Bentley Wright v. John Andrew Wright
W2018-02163-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Gina C. Higgins

This is a divorce case. Appellant Husband appeals the trial court’s: (1) classification of certain property; (2) imputation of income for purposes of child support; (3) denial of the parties’ proposed parenting plan; and (4) award of rehabilitative, transitional, and alimony in solido to Appellee Wife. We conclude that the trial court erred in: (1) the classification of certain marital property; (2) the amount of income imputed to the parties’; (3) denying the parties’ proposed parenting plan absent sufficient findings; (4) its award of rehabilitative alimony; and (5) in the amount of transitional alimony awarded.

Shelby County Court of Appeals 03/06/20
Heather R. Wilder v. Joseph C. Wilder
E2019-00635-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Gregory S. McMillan

This appeal involves questions of post-divorce child support. In the trial court proceedings, both parties prayed for a modification of support. Additionally, mother pursued an extension of support post-majority for two of her children. While the trial court dealt with the question of post-majority support, it did not address the parties’ requests for modification of the ordinary support owed, father for a decrease, or mother for an increase. Although the trial court addressed post-majority support issues, its order was incomplete even as to those matters, as a specific amount of support was never set. It follows that there is not a final judgment in this case, and we must therefore dismiss the appeal for lack of subject matter jurisdiction.

Knox County Court of Appeals 03/06/20
Trina Petty as Administrator of the Estate of Ida Mae Ewing v. Robert Burns, MD, PC d/b/a Robert Burns, MD
W2019-00625-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Felicia Corbin Johnson

This is a health care liability case. The trial court granted Appellee’s motion for summary judgment because, inter alia, Appellant failed to provide Appellee with the proper pre-suit notice under Tennessee Code Annotated section 29-26-121(a)(1). Finding no error, we affirm.

Shelby County Court of Appeals 03/05/20
Alvin Ray, et al. v. Anthony Willougby
W2019-00646-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Robert Samual Weiss

A pro se defendant appeals a judgment entered against him on a promissory note. Because the defendant failed to file a transcript or statement of evidence, we presume that the trial court’s findings are supported by the evidence. In light of that presumption, we affirm the judgment.

Shelby County Court of Appeals 03/05/20
Great American Insurance Company v. Pilot Travel Centers, LLC
E2019-00649-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

This appeal arises out of a negligence lawsuit. TLD Logistics Services, Inc. (“TLD”), an interstate common carrier, sued Pilot Travel Centers, LLC (“Pilot”) in the Chancery Court for Knox County (“the Trial Court”). TLD was a customer of Comdata Network, Inc. (“Comdata”), and Pilot was a Comdata vendor. Upon request from TLD, Comdata issued codes for the creation of Comcheks, negotiable draft instruments TLD used to pay workers. Pilot would print and deliver the Comcheks. TLD alleged that Pilot breached its duty of care by failing to ascertain whether Comchek payees were legitimate, thus causing TLD monetary loss when a rogue TLD employee fraudulently caused numerous Comcheks to be issued that were negotiated by Pilot. Pilot filed a motion for summary judgment. Pilot argued in its motion that TLD should have kept better internal safeguards to prevent what happened with its employee, and that TLD was 50% or more at fault in this matter. The Trial Court granted Pilot’s motion for summary judgment. Great American Insurance Company (“Great American”), subrogee of TLD and substituted as plaintiff mid-proceedings below, appeals to this Court. We hold that reasonable minds could disagree as to whether TLD was 50% or more at fault. We reverse the judgment of the Trial Court, and remand for further proceedings consistent with this Opinion.

Knox County Court of Appeals 03/05/20
In Re Neveah M.
M2019-00313-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Philip E. Smith

Foster parents brought a petition to terminate the parental rights of a biological mother on three grounds, and the trial court granted the petition on all three grounds. Because the foster parents failed to prove any of the grounds by clear and convincing evidence, we reverse the decision of the trial court.

Davidson County Court of Appeals 03/04/20
Mark T. Cross v. River Sound Homeowners Association, Incorporated
E2019-01183-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

This is an appeal from an order of partial summary judgment. Although the trial court attempted to certify its order as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure, we hold that such certification was improvident. There being no final judgment before us, we are compelled to dismiss this appeal for lack of subject matter jurisdiction.

Knox County Court of Appeals 03/04/20
Janet Lynnette McCormick v. Donny Joe McCormick
W2019-00647-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor James F. Butler

Wife appeals the trial court’s judgment, arguing that the trial court erred in treating an obligation contained in the parties’ marital dissolution agreement as an alimony obligation rather than a division of marital debt that was extinguished upon the foreclosure of the subject property. In the alternative, Wife contends that the trial court erred in not further reducing or eliminating her alimony obligation. We conclude that Wife waived her arguments concerning the proper classification of this obligation as a marital debt by not raising this argument in the trial court. As to the trial court’s decision regarding modification of Wife’s alimony, we vacate the trial court’s ruling and remand for an order fully compliant with Rule 52.01 of the Tennessee Rules of Civil Procedure.

Henderson County Court of Appeals 03/04/20
Kristin Edge Hunt-Carden v. Jason Vincent Carden
E2018-00175-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

This appeal involves a marriage of short duration. Following a bench trial, the court granted the wife a divorce and classified and divided the parties’ marital estate. The husband takes issue with the trial court’s classification and division of the marital property, as well as the award of alimony to the wife. The wife seeks attorney fees and costs. We affirm in part as modified and reverse in part.

Hamilton County Court of Appeals 03/03/20
In Re Trinity P.
E2019-01251-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Janice Hope Snider

This action involves the termination of a father’s parental rights to his minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to establish the statutory ground of abandonment for failure to manifest an ability and willingness to personally assume responsibility of the child. The court also found that termination was in the best interest of the child. We affirm the trial court.

Hamblen County Court of Appeals 03/02/20
Doris Mpoyi v. Richard T. Mpoyi
M2018-01816-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge J. Mark Rogers

Ex-Husband appeals from a qualified domestic relations order (“QDRO”), which was entered several years after the final decree of divorce. Ex-Husband complains that the QDRO grants his ex-wife benefits that she was not entitled to under the final decree of divorce. Discerning no reversible error, we affirm.

Rutherford County Court of Appeals 02/27/20