Court of Appeals Opinions

Format: 05/26/2020
Format: 05/26/2020
In Re Kyland F.
E2019-01058-COA-R3-PT
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Brad Lewis Davidson

The parents of a severely abused child appeal the termination of their parental rights. When the child was less than five months old, his primary care physician became alarmed upon discovering that his head circumference had grown at an abnormal rate. Upon being admitted to the hospital for tests, the medical staff noted retinal hemorrhaging and the presence of blood in his cerebrospinal fluid, both of which indicated inflicted trauma. A pediatrician with a subspecialty in child abuse examined xrays that revealed healing fractures in the anterior lateral aspect of multiple ribs, which also indicated child abuse. When investigators from the Tennessee Department of Children’s Services (“DCS”) interviewed the parents, the father admitted to observing the mother hitting the child in the head and covering his face with a blanket to muffle his cries. The mother told investigators she squeezed and shook the child, but it was the father who struck the child in the head. DCS placed the child in foster care, and both parents were charged with aggravated child abuse. While the parents remained incarcerated, DCS filed a petition to terminate their parental rights on two grounds, severe child abuse pursuant to Tenn. Code Ann. §§ 36-1-113(g)(4) and 37-1-102(b)(27) and failure to manifest an ability and willingness to assume custody or financial responsibility pursuant to Tenn. Code Ann. § 36-1-113(g)(14). Following a trial, the court found that both grounds had been proven and that termination of the parents’ rights was in the child’s best interest. We reverse the trial court’s ruling that DCS proved the ground of failure to manifest an ability and willingness to assume custody or financial responsibility; however, we affirm the trial court in all other respects. Accordingly, we affirm the termination of both parents’ parental rights.

Cocke County Court of Appeals 02/27/20
In Re Jadarian C. Et AL.
E2019-01710-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Timothy E. Irwin

The trial court terminated Mother’s parental rights on grounds of abandonment by failure to establish a suitable home, substantial noncompliance with permanency plans, persistence of conditions, and willingness and ability to assume legal and physical custody or financial responsibility of the children. Mother appeals both the grounds for termination and that termination was in her children’s best interest. Discerning no error, we affirm.

Knox County Court of Appeals 02/27/20
Joe V. Williams v. Dennis Epperson Et Al.
E2019-00319-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jerri S. Bryant

This case involves an appeal to the Bradley County Chancery Court (“trial court”) of an administrative decision by the Building Board of Adjustment and Appeals for the City of Cleveland (“the Board”) to uphold the City of Cleveland’s chief building official’s decision to condemn and order the demolition of a commercial building. Upon a notice of condemnation issued by the chief building official based on the allegedly dilapidated and unsafe condition of the building, the building’s owner appealed to the Board. Following a hearing, the Board upheld the condemnation and demolition order. The owner then filed a petition for writ of certiorari with the trial court, requesting, inter alia, that the demolition order be vacated. Following a hearing, the trial court found that the Board’s decision had been supported by substantial and material evidence and accordingly upheld the Board’s affirmance of the condemnation and demolition order. The owner filed a motion to alter or amend the judgment, which the trial court denied. The owner timely appealed to this Court. Discerning no reversible error, we affirm.

Bradley County Court of Appeals 02/27/20
Michelle Henry v. Richard H. Henry
M2019-01029-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ronald Thurman

In this divorce proceeding, Husband appeals the trial court’s award of 60 percent of the marital assets to Wife, the holding that he had gifted his mother’s ring to Wife, and the award of transitional alimony and alimony in futuro to Wife. Upon our review, we affirm the award of alimony and the holding that Husband gifted the ring to Wife, and hold that the issue of the division of the marital estate is waived. 

Putnam County Court of Appeals 02/26/20
Brianna Danielle King v. Aaron Jefferson Daily
M2019-02203-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Darrell Scarlett

The mother has filed a notice of appeal from an order granting the father’s motion to continue the trial. Because the order appealed does not resolve all the claims between the parties, we dismiss the appeal for lack of a final judgment.

Rutherford County Court of Appeals 02/25/20
Sidney W. White, et al. v. State Farm Mutual Automobile Insurance Company
W2019-00918-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Jim Kyle

Appellants were injured in a car accident and, with the permission of their insurance company, Appellee State Farm Mutual Automobile Insurance Company (“State Farm”), settled with the at-fault driver for his policy limits under his coverage with United Services Automobile Association (“USAA”). To fully recover for their injuries, Appellants notified State Farm of their willingness to settle or submit their underinsured motorist (“UIM”) claim to binding arbitration. After evaluating Appellants’ claim, State Farm informed Appellants that it would not offer a settlement for the UIM claim because it believed they had been fully compensated by the payment from USAA. Appellants, in response, demanded that State Farm elect to either participate in binding arbitration or decline arbitration and preserve its subrogation rights under Tennessee Code Annotated section 56-7-1206 (“the Statute”). Believing that its obligation under the Statute was never triggered, State Farm refused to make an election. Appellants filed an action for declaratory judgment asking the trial court to declare that State Farm failed to comply with the Statute. On competing motions for summary judgment, the trial court granted State Farm’s motion and denied Appellants’ motion. Finding no error, we affirm.

Shelby County Court of Appeals 02/24/20
Brenda Gibbs v. Capital Resorts Group, LLC, Et Al.
E2019-00295-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This appeal involves the denial of a motion to dismiss and to compel mediation and arbitration. The Trial Court determined that the plaintiff had properly challenged the mandatory arbitration provisions of the contract, including the delegation clause, on the basis of fraudulent inducement of the contract including the delegation clause. The Trial Court, therefore, denied the defendants’ motion to dismiss and to compel mediation and arbitration. Discerning no reversible error, we affirm.

Sevier County Court of Appeals 02/24/20
Khaled Eleiwa, et al. v. Suzanne Abutaa f/k/a Izdihar Jabr
W2019-00954-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Walter L. Evans

Petitioners appeal the dismissal of a petition for civil and criminal contempt related to alleged violations of a permanent injunction against the Respondent. In response, the Respondent appeals the dismissal of two protective orders she concurrently sought against the Petitioners. As the trial court’s order failed to provide sufficient findings of fact and conclusions of law for review, we vacate the trial court’s ruling and remand the matter for further consideration.

Shelby County Court of Appeals 02/24/20
Christina Lee Cain-Swope v. Robert David Swope
M2018-02212-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Philip E. Smith

This is the second appeal stemming from the divorce of the parties. After a remand from this Court, the trial court established the amount of alimony in futuro that Wife owed to Husband based on Wife’s ability to pay and Husband’s need for alimony. The trial court also declined to grant a downward deviation in Wife’s child support payments based on her payment of extraordinary educational expenses. The trial court’s ruling was based on a proposed parenting plan never agreed upon by the parties yet referenced by this Court in its initial opinion. We affirm the trial court’s award of alimony in futuro. However, we vacate the trial court’s denial of a downward deviation and remand the decision to the trial court for further consideration.

Davidson County Court of Appeals 02/21/20
Tennessee Democratic Party v. Hamilton County Election Commission; Mark Goins In His Official Capacity As State Election Coordinator; And Robin Smith
E2018-01721-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Jeffrey M. Atherton

Political party filed suit against the county election commission and the State election coordinator requesting injunctive relief to prevent a county election commission from allowing a replacement for a candidate in another party’s primary election for the office of state representative who had withdrawn from the race after the qualifying deadline; the plaintiff party also sought a declaration that the withdrawal of the original candidate did not allow for a replacement under the circumstances presented. The primary election ensued, and the replacement candidate advanced to the general election; thereafter, the trial court denied the injunction and granted the defendants’ motions to dismiss the action. After the appeal was filed but before argument, the general election was held and the other party’s candidate was elected. We have determined that this case is moot and, accordingly, dismiss the appeal; we deny the request for damages for a frivolous appeal.

Hamilton County Court of Appeals 02/21/20
Tyler Cole Deaton v. Katlyn Nicole Williams
W2018-00564-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Nathan B. Pride

This appeal involves a contentious dispute over the designation of the primary residential parent for a child born to the unmarried parties. Having carefully reviewed the voluminous record before us, we reverse the decision of the trial court and designate the mother as the primary residential parent. The case is remanded for entry of a permanent parenting plan consistent with this court’s opinion.

Madison County Court of Appeals 02/21/20
Aaron Patrick Taylor v. Joseph Winston Harsh
M2019-01129-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Amy V. Hollars

Plaintiff filed claims of slander, defamation, and interference with prospective economic advantage against defendant deputy sheriff in his individual capacity. The defendant filed a motion for summary judgment on the basis that he was entitled to immunity. The trial court granted the motion and dismissed plaintiff’s claims on the basis of immunity. Because we cannot discern whether the trial court relied on the proper law in its ruling, we vacate the trial court’s judgment. 

Putnam County Court of Appeals 02/21/20
Marc Douglas Swindle ET AL. v. Karen Goodlow ET AL.
M2019-00529-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Judge Thomas W. Brothers

This appeal stems from a workplace injury on a construction site. On his first day on the job, Marc Douglas Swindle (“Plaintiff”) fell from the roof of a building that was under construction. It is undisputed that Plaintiff was authorized to work on the job site and that he was working in the course and scope of his employment when injured. What is disputed is the identity of his employer: whether he was in the employ of the general contractor or one of the subcontractors. Plaintiff initially filed a claim with the Tennessee Bureau of Workers’ Compensation, Court of Workers’ Compensation Claims, naming the general contractor as his employer; however, Plaintiff voluntarily dismissed his workers’ compensation claim when the general contractor filed a response stating that Plaintiff was not its employee. Thereafter, Plaintiff and his wife filed this tort action in circuit court to recover damages from the general contractor, two of its subcontractors, and the owner of the property for the injuries he sustained at the construction site. Finding it undisputed that Plaintiff’s injuries were sustained in the course and scope of his employment, the circuit court held that it was without jurisdiction to consider the tort claims because the workers’ compensation exclusive remedy doctrine applied. For these reasons, the court dismissed the complaint. Plaintiffs appeal. We affirm.

Davidson County Court of Appeals 02/20/20
Timothy J. Pagliara v. Marlene Moses et al.
M2018-02188-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Ross H. Hicks

Timothy J. Pagliara (“Plaintiff”) filed suit against Marlene Moses and MTR Family Law, PLLC (collectively, “Defendants”), alleging malicious prosecution, civil conspiracy, intentional infliction of emotional distress, and negligent infliction of emotional distress.  Defendants filed a motion to dismiss, pursuant to Tennessee Rule of Civil Procedure 12.02(6), which the Trial Court granted.  Plaintiff timely appealed to this Court.  Discerning no reversible error, we affirm the Trial Court’s dismissal of Plaintiff’s claims.

Davidson County Court of Appeals 02/20/20
Mona Word v. Knox County, Tennessee, Et AL.
E2018-01843-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge William T. Ailor

This appeal arises from a lawsuit alleging racial discrimination in the workplace. Mona Word (“Word”), an African-American woman who worked in the Knox County Clerk’s Office for 19 years, sued Knox County Clerk Foster D. Arnett, Jr. (“Arnett”) in his individual and official capacity, Knox County, Tennessee (“Knox County”), and the Knox County Clerk’s Office (“Defendants,” collectively) asserting a number of claims, including violations of the Tennessee Human Rights Act (“the THRA”). According to Word, she was denied opportunities for promotion because of her race, and was singled out for discipline because of her race, as well. Defendants filed a motion for judgment on the pleadings, which the Circuit Court for Knox County (“the Trial Court”) granted. Word appealed to this Court. Accepting Word’s factual allegations as true as is required at the motion for judgment on the pleadings stage, we hold that Word alleged enough to withstand Defendants’ motion with respect to certain of her claims against Knox County and Arnett in his individual capacity. However, we affirm the Trial Court’s dismissal of Word’s claims against Arnett in his official capacity and the Knox County Clerk’s Office, as well as Word’s claims for intentional and negligent infliction of emotional distress. The judgment of the Trial Court thus is affirmed, in part, and reversed, in part, and this cause is remanded for further proceedings consistent with this Opinion.

Knox County Court of Appeals 02/20/20
In Re Archer R.
M2019-01353-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ted A. Crozier

A mother and stepfather filed a petition seeking to terminate the parental rights of a father based on abandonment by failure to visit and failure to support his child.  The trial court found the petitioners proved the ground of abandonment by failure to support by clear and convincing evidence but did not prove the ground of abandonment by failure to visit because the mother interfered with the father’s attempts to visit the child.  The trial court then found it was not in the child’s best interest for the father’s parental rights to be terminated and denied the petition to terminate.  The mother and stepfather appealed, and we affirm the trial court’s judgment.

Montgomery County Court of Appeals 02/19/20
John R. Fuller v. Allianz Life Insurance Company of North America
E2018-02267-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Pamela A. Fleenor

Plaintiff John R. Fuller initially brought this action, on July 15, 2015, for fraud, negligence, and violation of the Tennesee Consumer Protection Act (TCPA). After taking a voluntary nonsuit, he refiled on August 24, 2017. The trial court granted summary judgment to defendant Allianz Life Insurance Company of North America, holding that the fraud and negligence claims were time-barred by operation of Tenn. R. Civ. P. 4.01(3), which provides that “[i]f a plaintiff or counsel for a plaintiff . . . intentionally causes delay of prompt issuance or prompt service of a summons, the filing of the complaint . . . will not toll any applicable statutes of limitation or repose.” It is undisputed that plaintiff’s counsel, despite knowing how to properly serve process on defendant, delayed service for almost seven months, until after the applicable three-year statutes of limitations for fraud and negligence had run. The trial court further held that plaintiff’s TCPA claim was barred by an applicable statute of repose. We affirm.

Hamilton County Court of Appeals 02/19/20
In Re Claire C.
M2019-00986-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge William M. Locke

Paternal great uncle and great aunt of a minor child filed a petition under the grandparent visitation statute, Tenn. Code Ann.
§ 36-6-306, and the trial court dismissed the petition for lack of standing, finding that the petitioners did not meet the statutory definition of “grandparent.”  We affirm the judgment of the trial court.

Warren County Court of Appeals 02/14/20
Anderson County Tennessee, et ql. v. Tennessee State Board of Equalization, et al.
E2018-00142-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge. M. Nichole Cantrell

This appeal concerns the validity of an agreed order entered in a proceeding before the Tennessee Board of Equalization in a contested case between Anderson County, Tennessee, and Toyota Motor Manufacturing, Inc. The order purported to settle a dispute over the value of dies, jigs, and molds used for manufacturing automobile parts. The attorney for the Tennessee Comptroller’s Division of Property Assessments, which intervened in the proceeding, signed the agreed order on behalf of Toyota and the Anderson County Property Assessor “with express permission” of both parties, two months later, the Assessor moved to set the order aside, asserting that he had not agreed to the settlement terms or given the attorney for the Division of Property Assessments permission to sign on his behalf. The administrative judge treated the motion as one for extraordinary relief under the guidance of Tennessee Rule of Civil Procedure 60.02 and held an evidentiary hearing. The administrative judge found the testimony of the Division of Property Assessment’s attorney was more credible than that of the Anderson County Assessor and denied the motion. The County filed a petition for review with the Chancery Court and the trial court reversed the decision of the administrative law judge, finding that the documentary evidence gave more credibility to the Assessor’s testimony. Considering the deference that reviewing courts must give to credibility determinations, we find no basis for reversing the administrative judge’s decision to deny Anderson County’s motion. Accordingly, we reverse the judgment of the trial court, and remand the case with instructions to remand the case to the Tennessee Board of Equalization for further proceedings.

Anderson County Court of Appeals 02/14/20
Cynthia Underwood, et al. v. Margaret Miller d/b/a Nashville Design Center, LLC
M2019-00269-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Judge James G. Martin, III

 This is an action to pierce the corporate veil. In a previous action in which the limited liability company was the only defendant, the plaintiffs received a default judgment for breach of contract in the amount of $709,500. The same plaintiffs subsequently filed this action against the sole member of the now-defunct limited liability company to pierce the corporate veil and hold the defendant personally liable for the unsatisfied judgment. Following discovery, the parties filed cross-motions for summary judgment. The trial court ruled in favor of the defendant, determining that the undisputed facts weighed against piercing the corporate veil, and the plaintiffs appealed. We affirm.

Williamson County Court of Appeals 02/13/20
Jerry Lee, et al. v. Jana Smith, et al.
M2018-01529-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Charles K. Smith

This is a dispute regarding the ownership of a gravel lane used to access a 95-acre tract of land; Plaintiffs appeal the trial court’s dismissal of their suit to quiet title to the property or, alternatively, for a declaration that they acquired ownership of the road through adverse possession. The trial court held that Tennessee Code Annotated section 28-2-110 barred Plaintiffs from pursuing their claim of ownership because there was no proof that they had paid taxes on the property at issue for twenty years, as required by the statute; finding no error, we affirm the judgment.

Wilson County Court of Appeals 02/13/20
Joanna L. Golden et al. v. Cynthia D. Powers
E2019-00712-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Beth Boniface

This appeal concerns a jury verdict in a personal injury case. Joanna L. Golden (“Golden”) was jogging in the dark early one morning when she was struck accidentally by a car driven by Cynthia D. Powers (“Powers”). Golden and her husband, Douglas K. Rice (“Rice”) (“Plaintiffs,” collectively), sued Powers in the Circuit Court for Hawkins County (“the Trial Court”), asserting various claims including negligence. The matter was tried before a jury. The jury found Golden to be 80% and Powers 20% at fault. Plaintiffs filed a motion for a new trial, which the Trial Court denied. Plaintiffs appeal to this Court arguing that the Trial Court failed to act as thirteenth juror and that the jury’s allocation of fault was unsupported by material evidence. Plaintiffs argue also that the jury was prejudiced against them for their being well-off out-of-towners. We find, first, that the Trial Court independently weighed the evidence and acted properly as thirteenth juror. We find further that the jury’s allocation of fault is supported by material evidence. Finally, Plaintiffs’ claim of jury prejudice is speculative, at best. We affirm the judgment of the Trial Court.

Hawkins County Court of Appeals 02/12/20
Joanna L. Golden, ET Al. v. Cynthia D. Powers
E2019-00712-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Beth Boniface

This appeal concerns a jury verdict in a personal injury case. Joanna L. Golden (“Golden”) was jogging in the dark early one morning when she was struck accidentally by a car driven by Cynthia D. Powers (“Powers”). Golden and her husband, Douglas K. Rice (“Rice”) (“Plaintiffs,” collectively), sued Powers in the Circuit Court for Hawkins County (“the Trial Court”), asserting various claims including negligence. The matter was tried before a jury. The jury found Golden to be 80% and Powers 20% at fault. Plaintiffs filed a motion for a new trial, which the Trial Court denied. Plaintiffs appeal to this Court arguing that the Trial Court failed to act as thirteenth juror and that the jury’s allocation of fault was unsupported by material evidence. Plaintiffs argue also that the jury was prejudiced against them for their being well-off out-of-towners. We find, first, that the Trial Court independently weighed the evidence and acted properly as thirteenth juror. We find further that the jury’s allocation of fault is supported by material evidence. Finally, Plaintiffs’ claim of jury prejudice is speculative, at best. We affirm the judgment of the Trial Court.

Hawkins County Court of Appeals 02/12/20
In Re Nathan C.
E2019-01197-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Larry Michael Warner

This is the second appeal of this termination of parental rights case. Appellants appeal the trial court’s termination of their parental rights on the grounds of: (1) abandonment by willful failure to support, Tenn. Code Ann. § 36-1-113(g)(1); and (2) persistence of the conditions that led to the children’s removal, Tenn. Code Ann. § 36-1-113(g)(3). Because it does not appear that the trial court exercised its independent judgment in reaching its decision, we vacate the judgment and remand for entry of findings of fact and conclusions of law in compliance with Tennessee Code Annotated § 36-1-113(k) (2017). Such findings and conclusions must also be a product of the trial court’s own independent judgment.

Cumberland County Court of Appeals 02/12/20
Nicola Dalili v. Sam Dalili
E2019-00371-COA-R3-CV
Authoring Judge: Judge Clarence E. Pridemore, Jr.
Trial Court Judge: Judge Carma Dennis McGee

This is an appeal from a divorce proceeding. While the case was pending, the trial court ordered the parties to sell commercial property they owned. After a two-day bench trial, the trial court divided the parties’ remaining marital estate. The wife appeals, arguing that the trial court denied her due process by ordering the sale of the commercial property and erred in dividing the marital estate. For the following reasons, we vacate and remand for further proceedings.

Knox County Court of Appeals 02/10/20