Court of Appeals Opinions

Format: 05/19/2022
Format: 05/19/2022
State of Tennessee ex rel. Aaliyah Butler v. Patrick Ross
M2022-00079-COA-R3-JV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Douglas K. Chapman

A father has appealed from an order setting his child support obligation. Because the father did not file his notice of appeal with the clerk of the appellate court within the time permitted by Rule 4(a) of the Tennessee Rules of Appellate Procedure, we dismiss the appeal.  

Maury County Court of Appeals 02/16/22
In Re Haven-Lee S., et al.
W2022-00124-COA-T10B-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Magistrate Alycia Chism

Appellants seek accelerated review of a juvenile court magistrate’s denial of their motion for recusal. Because the magistrate’s decision is not subject to an accelerated interlocutory appeal under Tenn. Sup. Ct. R. 10B, § 2, we dismiss the petition and transfer the matter to the juvenile court for the juvenile judge to review the decision under Tenn. Sup. Ct. R. 10B, § 4.04 and Tenn. Code Ann. § 37-1-107.

Shelby County Court of Appeals 02/16/22
Kendra C. Killian v. Aubrey D. Moore
M2020-01283-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Clara W. Byrd

In this post-divorce proceeding, a father sought to modify a parenting plan to increase his parenting time and reduce his child support obligation. He later sought to be designated as primary residential parent for the parties’ daughter due to threats made by the mother’s then-husband. The father was designated as such on a temporary basis, and the mother filed numerous motions seeking to be restored as the primary residential parent. After a trial, the court named Father primary residential parent, finding that a material change in circumstances had occurred and that the change was in the best interest of the child. The trial court entered a new parenting plan and set Mother’s support obligation. The mother appeals the designation and raises many other issues. We affirm the judgment of the trial court.

Wilson County Court of Appeals 02/15/22
In Re Erin N. ET. AL.
E2021-00516-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Mark Toohey

In this case involving termination of the father’s parental rights to his children, the Sullivan County Juvenile Court (“trial court”) determined that several statutory grounds for termination had been proven by clear and convincing evidence. The trial court further determined that clear and convincing evidence demonstrated that termination of the father’s parental rights was in the children’s best interest. The father has appealed. Discerning no reversible error, we affirm.

Sullivan County Court of Appeals 02/14/22
Old Republic Life Insurance Company Et Al. v. Roberta Woody Et Al.
E2019-01475-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge J. Michael Sharp

This appeal concerns a subrogation action. Roberta Woody (“Woody”) accidentally backed her tractor-trailer into one driven by Darrell King (“King”). King had an insurance policy through Old Republic Life Insurance Company (“Old Republic”). Old Republic, as King’s subrogee, sued Woody and her employer, Osborn Transportation, Inc. (“Osborn”) (“Defendants,” collectively), in the Circuit Court for McMinn County (“the Trial Court”). King later joined as a plaintiff. The Trial Court allowed Old Republic to participate at trial alongside King’s counsel, but did not allow Old Republic to reveal its identity to the jury. After trial, the jury awarded King damages. Old Republic appeals, arguing among other things that it should have been permitted to identify itself so as to make a case for its own unique and specific damages. We hold, inter alia, that in this subrogation action, Old Republic could recover damages from Defendants only to the extent King could, and the Trial Court did not commit reversible error in preventing Old Republic from identifying itself to the jury. We affirm the judgment of the Trial Court in its entirety.

McMinn County Court of Appeals 02/14/22
Isaac D. Walker v. Robert L. McMillin et al.
M2020-01507-COA-R3-CV
Authoring Judge: Middle Section Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This appeal arises from the summary dismissal of a negligence action filed by a plaintiff-motorist against a truck driver and the driver’s employer. The plaintiff alleged that he was injured in a single-vehicle accident on Interstate 24 in Nashville, Tennessee,when he swerved to avoid tire debris from the truck driver’s trailer. The plaintiff further alleged that the truck driver and his employer were negligent in the maintenance and inspection of the vehicle, and that the truck driver acted negligently by leaving the debris on the roadway without attempting to retrieve it, warn other motorists, or call law enforcement. After discovery, the defendants moved for summary judgment on all claims. The trial court granted the motion in part, finding no evidence that the tire blowout was caused by a failure in the maintenance and inspection of the tire. The court also found no evidence that the truck driver’s failure to call law enforcement caused the accident. But the court asked for supplemental briefing on whether a driver has a common-law duty to remove from a roadway tire debris that came from his vehicle and/or a duty to warn motorists of the debris. After additional briefing and a second hearing, the court summarily dismissed that claim as well, ruling that the defendant truck driver had no duty as a matter of law to attempt to retrieve the tire from the interstate highway and that there were no facts to support a finding that the defendant driver had sufficient time to do so. The plaintiff subsequently filed a motion to alter or amend, arguing that he was entitled to the benefit of an adverse inference for spoliation of evidence as a discovery sanction because the defendants failed to preserve the blown tire. The trial court denied the motion, reasoning that the plaintiff knew about the potential spoliation issue for six years and failed to raise it in his response to the motion for summary judgment. This appeal followed. We affirm the trial court in all respects.

Davidson County Court of Appeals 02/11/22
Jennifer Susan Bennett v. Duncan Geoffrey Bennett
E2021-01086-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Jerri Bryant

Because the notice of appeal was not timely filed, this Court lacks jurisdiction to consider this appeal.

McMinn County Court of Appeals 02/11/22
Michelle Alexa Herbert v. Fabian Jesse Herbert
E2021-00850-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Larry Michael Warner

A review of the record on appeal reveals that the order appealed from does not constitute a final appealable judgment. As such, this Court lacks jurisdiction to consider this appeal.

Cumberland County Court of Appeals 02/10/22
Rhonda Lawson v. Mark Kleinman
E2022-00055-COA-R3-JV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Randy M. Kennedy

Because appellant did not timely file a Tenn. Sup. Ct. R. 10B recusal appeal, and the order appealed does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

Sullivan County Court of Appeals 02/09/22
Richard Mack, ET AL. v. Cable Equipment Services INC., ET AL.
W2020-00862-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Felicia Corbin Johnson

This appeal arises from litigation involving an incident that occurred in 2010. Suit was originally filed in 2011. After a voluntary nonsuit, the complaint was refiled in 2014. Years later, the plaintiffs moved to amend their complaint to add additional defendants. The trial court granted leave to amend but reserved ruling on whether the claims against the new parties would relate back to the date of the original complaint under the provisions of Tennessee Rule of Civil Procedure 15.03. The amended complaint was filed in 2018. The newly added defendants moved to dismiss on the basis that none of the elements required for relation back under Rule 15.03 had been shown to exist. After a hearing, the trial judge agreed and provided an oral ruling in favor of the defendants. Before a written order was entered to that effect, the plaintiffs filed a notice of voluntary nonsuit without prejudice. The trial court subsequently entered an order granting the defendants’ motion to dismiss. The trial court found that at that point in the proceeding, the allowance of a nonsuit was discretionary, and permitting a nonsuit after its oral ruling would have been unfairly prejudicial to the defendants. As such, it granted the motion to dismiss for failure to state a claim on the basis that the claims were barred by the statute of limitations and did not relate back to the filing of the original or refiled complaint. The plaintiffs filed motions to alter or amend or set aside the order, arguing that the trial court lost jurisdiction at the moment the plaintiffs filed their notice of nonsuit, and therefore, the order of dismissal was void. They also argued that the trial court impermissibly relied on facts that were not found within the amended complaint in resolving the motion to dismiss. The trial court denied both motions. The plaintiffs appeal. We affirm.

Shelby County Court of Appeals 02/09/22
Robert Martin Thompson v. Christie Lee Thompson
M2020-01293-COA-R3-CV
Authoring Judge: Middle Section Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Judge Amy V. Hollars

The sole issue on appeal in this divorce action pertains to the coverture formula employed to fund the husband’s marital interest in the wife’s retirement account via a deferred distribution method. On the morning the case was set for a final hearing, the parties and their attorneys appeared in open court and announced they had agreed to the division of the marital estate with the exception of the implementing language required to fund the husband’s marital interest in the wife’s retirement account. Because the wife had a substantially larger account than the husband but lacked the financial resources to fund a present distribution of her retirement account, the parties announced in open court that they had agreed to an offset of their respective pensions and authorized the court to enter a final judgment using the coverture formula to affect a deferred distribution. Following the entry of the final order, the wife filed a Tennessee Rule of Civil Procedure 59.04 motion to set aside the order, contending that the trial court applied a deferred distribution method that did not reflect the parties’ agreement. The trial court denied the motion, and this appeal followed. Finding no error, we affirm the trial court in all respects.

Putnam County Court of Appeals 02/09/22
Julius T. Malone, et al. v. ASF Intermodal, LLC
W2020-00430-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Mary L. Wagner

Appellant stipulated that its employee was the at-fault driver in a motor vehicle accident involving Appellee. Appellee and his wife filed suit against Appellant for personal injuries and the issue of damages was tried to a jury, which returned a verdict in favor of Appellees. Appellant appeals, arguing that the jury’s award of damages for loss of earning capacity, future medical expenses, permanent injury, and loss of consortium is contrary to the law and evidence. Because there is material evidence to support the jury’s verdict, we affirm the trial court’s judgment on same.

Shelby County Court of Appeals 02/07/22
Ahmed Mote Alzamzami v. Arwa Al-Sulaihi
W2020-01467-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Rhynette N. Hurd

This is an appeal of a divorce involving children, which includes issues of default judgment, jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, the statute of frauds, and attorney’s fees. The trial court granted a motion for default judgment against the husband only as to the wife’s counter-complaint for divorce and subsequently denied the motion to set aside the default judgment. Thereafter, the trial court entered a final decree of divorce holding that the wife was entitled to a divorce on the grounds of inappropriate marital conduct and dismissed the husband’s complaint for divorce. The trial court divided the marital estate and adopted a permanent parenting plan. Additionally, the trial court awarded a judgment against the husband in the amount of $15,000.00 for the wife’s attorney’s fees and litigation expenses incurred. The husband appeals. We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

Shelby County Court of Appeals 02/07/22
Karen L. Hansen v. Jeremy C. Hansen
M2021-01413-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Steven D. Qualls

The father has appealed from an order designating the mother as the primary residential parent and adopting a permanent parenting plan. Because the order does not resolve all of the claims between the parties, we dismiss the appeal for lack of a final judgment.

Putnam County Court of Appeals 02/07/22
Moore Freight Services, Inc. v. Grant Mize et al.
E2021-00590-COA-R9-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor John F. Weaver

This is an interlocutory appeal involving a discovery dispute. The plaintiff corporation initiated this action to enforce a non-competition provision in an employment agreement, naming as defendants the plaintiff’s former chief operating officer and his current employer. Central to the discovery dispute, the plaintiff averred that it had terminated the chief operating officer’s employment for cause based on having learned that he had been involved in a payment scheme involving benefits and favors to an employee of one of the plaintiff’s customers. The defendants averred that the employment termination had actually been due to the plaintiff’s corporate restructuring. Prior to the chief operating officer’s employment termination, the plaintiff had retained outside counsel to conduct an internal investigation, and the customer whose employee had been identified as the recipient of the scheme had likewise conducted an investigation. Upon the defendants’ motion to compel discovery of materials related to the plaintiff’s internal investigation, the plaintiff opposed the motion, asserting that the materials were entitled to protection pursuant to the attorney-client privilege, common interest privilege, and work product doctrine. Following a hearing, the trial court found that the defendants had established, prima facie, that the plaintiff had waived the asserted privileges and protections by placing the internal investigation materials at issue in the litigation. The trial court then conducted an in camera review of specific materials presented to the court during the final day of the hearing. At the time these materials were submitted, it was undisputed that the only attorney work product included in the materials was “fact” or “ordinary” work product with no “opinion” work product included. Following in camera review, the trial court entered an order granting the motion to compel specifically as to the materials it had reviewed. Upon the plaintiff’s motion, the trial court entered an agreed order granting permission for application to this Court for an interlocutory appeal addressing the certified issue of whether the plaintiff had “waived the work product, attorney-client, and common interest privilege or protection by placing the internal investigation ‘at issue’ in this litigation.” This Court subsequently granted permission for interlocutory appeal.

Knox County Court of Appeals 02/03/22
In Re Hailey C.
M2020-01487-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Wayne C. Shelton

A father filed a petition in Tennessee to domesticate and modify a Kentucky child-custody decree.  The court later entered an agreed order granting the petition, which was not appealed.  Three months later, the mother filed a motion to set aside the final judgment on the grounds of fraud and lack of subject matter jurisdiction.  The court denied her Rule 60.02 motion and her subsequent Rule 59.04 motion.  Because the court did not rule on the mother’s claims of fraud, we vacate the denial of the Rule 60.02 motion and remand for further proceedings.

Montgomery County Court of Appeals 02/03/22
Wanda Cavaliere et al. v. State of Tennessee
M2021-00038-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Commissioner James A. Haltom

This appeal arises from proceedings in the Tennessee Claims Commission and follows a trial concerning care received by the decedent while at the Tennessee State Veterans Home.  The Claims Commission ultimately found that the claimants had failed to establish a health care liability claim and therefore dismissed the case.  For the reasons stated herein, we affirm the judgment of dismissal.

Court of Appeals 02/03/22
In Re Cora W.
M2021-00804-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Ken Witcher

This appeal concerns the termination of parental rights.  The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Macon County (“the Juvenile Court”) seeking to terminate the parental rights of Zackery B. (“Father”) and Anna H. (“Mother”) to their minor child Cora W. (“the Child”).  After a trial, the Juvenile Court entered an order finding by clear and convincing evidence that the grounds of wanton disregard and severe child abuse were proven against both parents.  The Juvenile Court found further, also by clear and convincing evidence, that termination of Mother’s and Father’s parental rights is in the Child’s best interest.  Mother and Father appeal.  Among other things, both parents argue that their pre-incarceration conduct was not part of a broader pattern sufficient to sustain the ground of wanton disregard.  Neither parent disputes the ground of severe child abuse, which was based upon the Child’s massive exposure to drugs including methamphetamine.  We affirm the Juvenile Court.

Macon County Court of Appeals 02/02/22
New Dairy Kentucky, LLC v. Mike Tamarit
M2021-00091-COA-R3-CV
Authoring Judge: Middle Section Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This is an action by a dairy on a sworn account against the former owner of a dairy distributor who signed a personal guaranty that obligated him to pay any past-due debts accrued by the distributorship to the plaintiff dairy. When the former owner signed the personal guaranty, he was the sole member/owner of the distributorship; however, he sold his membership interest in the distributorship in May 2015. At the time of the sale, the distributor owed $60,484.95 to the plaintiff dairy. One month later, when the plaintiff dairy learned of the sale, it created a new account for the distributor and sent both the distributor and the guarantor a demand for payment of the old account balance, the amount owing when the guarantor sold his membership interest in the distributor. Neither the distributor nor the guarantor paid the old account balance, and the dairy sued them both. The dairy later voluntarily nonsuited the distributor, with whom the dairy was continuing to do business under the new account number, leaving the guarantor as the sole defendant. Thereafter, the trial court granted the dairy’s Motion for Summary Judgment as to the guarantor’s liability and held an evidentiary hearing on damages. After the hearing, the court entered a judgment against the guarantor for $130,102.12, including the principal debt, prejudgment interest, and attorney’s fees. On appeal, the guarantor argues that the creditor breached its duty of good faith and fair dealing by not seeking payment from the distribution company. We disagree. The personal guaranty obligated the guarantor to pay all amounts not paid by the distributor, whether or not the dairy sought payment from the distributor. Thus, we affirm the trial court’s judgment.

Robertson County Court of Appeals 02/02/22
Adam Garabrant v. Jeffery Chambers Et Al.
E2021-00128-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Elizabeth C. Asbury

In this dispute concerning the ownership of a parcel of unimproved real property, the plaintiff filed a declaratory judgment action seeking to quiet title to the property at issue. Following a bench trial, the trial court entered an order ruling in favor of the defendants. The plaintiff has appealed. Discerning no reversible error, we affirm.

Scott County Court of Appeals 02/01/22
Meghan Conley v. Knox County Sheriff, Et Al.
E2020-01713-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor John F. Weaver

This is a Tennessee Public Records Act case. The trial court found that Appellant willfully denied two of Appellee’s twelve public records requests, but it awarded Appellee attorney’s fees and costs incurred throughout the entire litigation. We affirm the trial court’s findings that Appellant willfully denied two of Appellee’s public records requests. However, we conclude that the trial court abused its discretion in awarding Appellee costs and fees incurred throughout the entire litigation. Accordingly, we vacate that portion of the trial court’s order and remand with instructions. The trial court’s order is otherwise affirmed, and Appellee’s request for appellate attorney’s fees and costs is denied.

Knox County Court of Appeals 02/01/22
Kara Krulewicz v. Joshua Krulewicz
M2021-00190-COA-R3-CV
Authoring Judge: Western Section Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kathryn Wall Olita

The trial court modified the divorced parties’ residential parenting schedule, increasing Father’s parenting time. Mother appeals. Discerning no error, we affirm.

Montgomery County Court of Appeals 02/01/22
Reginald McWilliams v. Shelby County Land Bank, et al.
W2021-00732-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Jim Kyle

This appeal arises from a collateral attack of a tax sale of real property. The action was commenced by a pro se plaintiff against various Shelby County government entities. The plaintiff and his siblings inherited real property from their father, who died in 1992, and subsequently failed to pay property taxes for a number of years. The Shelby County Trustee’s office notified the plaintiff of the tax debt and an impending tax sale. The plaintiff did not pay the debt, and the property was sold. Several years later, the plaintiff commenced this action by filing an “‘Emergency’ Application for a Restraining Order” to prevent Defendants from “stealing” his property. After a hearing, the trial court denied the Application for a Restraining Order and dismissed the action with prejudice. This appeal followed. We affirm.

Shelby County Court of Appeals 01/31/22
Charles Stromsnes et al. v. RRM et al.
E2021-00246-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Michael S. Pemberton

The plaintiffs appeal the trial court’s grant of the defendants’ motion to involuntarily dismiss the action at the conclusion of the plaintiffs’ presentation of their evidence, pursuant to Tennessee Rule of Civil Procedure 41.02. The plaintiffs’ brief on appeal severely fails to comply with Tennessee Rule of Appellate Procedure 27 and Tennessee Court of Appeals Rule 6. We, therefore, find that the plaintiffs have waived their issues on appeal.

Loudon County Court of Appeals 01/28/22
Roger Baskin v. Pierce and Allred Construction, Inc.
M2021-00144-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Russell T. Perkins

Plaintiff Roger Baskin sued Pierce & Allred Construction, Inc. (“Defendant”) for breach of contract and breach of warranty, alleging Defendant failed to construct a house in Muscle Shoals, Alabama, in accordance with the parties’ contract. Plaintiff alleged that although he “paid construction costs totaling more than $1,700,000, [Defendant] failed to complete construction of the house and has left Plaintiff with a home riddled with construction defects that affect every major system of the home.” Defendant moved to dismiss the complaint under Tenn. R. Civ. P. 12.02(2) and (3), asserting that the trial court lacked personal jurisdiction over it, and that venue was improper in Davidson County. The trial court dismissed the complaint for lack of personal jurisdiction and improper venue. We hold that Defendant’s contacts with Tennessee, including its purposeful applications for a certificate of authority to transact business and for a contractor’s license in Tennessee, are such that Defendant should reasonably anticipate being haled into court in this state. Consequently, Tennessee courts may exercise personal jurisdiction over Defendant. We further find that Davidson County is a proper venue for this action, and therefore reverse the judgment of the trial court.

Davidson County Court of Appeals 01/28/22