Court of Appeals Opinions

Format: 05/19/2022
Format: 05/19/2022
Eltricia Laree Cook v. Gary Lynn Fuqua et al.
M2021-00107-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Clara W. Byrd

A woman sued a homeowner for negligence due to injuries she sustained when a pot-bellied pig maintained on the homeowner’s property jumped on her and knocked her off of the homeowner’s front porch. The homeowner filed a motion for summary judgment arguing that he did not owe the woman a duty of reasonable care because she was a trespasser.  The trial court granted the motion for summary judgment, and the woman appealed.  Determining that genuine issues of material fact still exist because the homeowner failed to establish that the woman was a trespasser, we reverse the trial court’s judgment.

Macon County Court of Appeals 01/27/22
Eric Neff et al. v. Dennis Wood et al.
M2020-00748-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

A property owner sued a neighboring property owner for breach of an easement agreement.  The defendant filed a countercomplaint alleging that the plaintiff committed the first material breach.  The trial court found that the defendant had violated the agreement, but the violation did not rise to the level of a material breach.  The court also found that the defendant had not proven that the plaintiff breached the agreement.  So the court dismissed both the complaint and the countercomplaint.  But the court also granted detailed declaratory relief.  On appeal, we conclude that the court erred in failing to award attorney’s fees as mandated by the easement agreement.  The court also erred by imposing a construction deadline on one party that was not included in the easement agreement.  In all other respects, we affirm.

Davidson County Court of Appeals 01/27/22
Charles E. Walker v. State of Tennessee-
M2020-01626-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Commissioner James A. Haltom
A homeowner brought an action for nuisance and unlawful taking against the State of Tennessee for its alleged failure to maintain a drainage facility on an easement the State acquired from a prior owner of the property. On grant of summary judgment, the Tennessee Claims Commission found no evidence to suggest the State constructed the faulty drainage structures the homeowner alleged caused the flooding and, therefore, the State was not required to maintain or repair the faulty structures. Discerning no error, we affirm the Claims Commission’s ruling.
 
Court of Appeals 01/27/22
The City of Cleveland v. The Health Services and Development Agency, State of Tennessee, et al.
M2021-00396-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Patricia Head Moskal

This appeal concerns opposition by the City of Cleveland, Tennessee (“the City”) to an application by Middle Tennessee Treatment Centers, LLC, d/b/a Cleveland Comprehensive Treatment Center (“CCTC”) to operate a nonresidential, substitution-based treatment center for opiate addiction within the City.  The City filed a petition for declaratory judgment in the Chancery Court for Davidson County (“the Trial Court”) against the Tennessee Health Services and Development Agency (“the Agency”) seeking to have the certificate of need granted for CCTC revoked on grounds that CCTC failed to provide proof of service upon the City by certified mail, return receipt requested, in contravention of Tenn. Code Ann. § 68-11-1607(c)(9)(A).  CCTC intervened in the case.  CCTC and the Agency (“Defendants,” collectively) filed motions to dismiss.  After a hearing, the Trial Court granted Defendants’ motions to dismiss for failure to state a claim.  The City appeals.  We hold, inter alia, that the purpose of the notice provision in Tenn. Code Ann. § 68-11-1607(c)(9)(A) is to afford the relevant officials an opportunity to participate in an Agency hearing on whether a certificate of need is granted; proof of receipt is required.  We, therefore, reverse the judgment of the Trial Court and remand for further proceedings consistent with this Opinion. 

Davidson County Court of Appeals 01/27/22
In Re Carlee A.
W2020-01256-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Mary L. Wagner

This appeal follows several related cases involving a now-adopted child. The first case was a surrender proceeding filed in chancery court, the second case was a termination of parental rights proceeding filed in chancery court, and the third case was a proceeding for termination of parental rights and adoption filed in circuit court. Upon the filing of the petition for adoption, the chancery court matters were transferred to circuit court. Three individuals who were parties to the chancery court proceedings jointly filed a motion to intervene in the adoption proceeding, which the circuit court denied. The circuit court also dismissed the claims that had been filed by those three parties in chancery court. The three would-be intervenors appeal the dismissal of their claims filed in chancery court. We affirm and remand for further proceedings.

Shelby County Court of Appeals 01/26/22
Kelly R. Russell v. Chattanooga Property Management, LLC
E2020-01661-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge John B. Bennett

This appeal involves a United Postal Service (“UPS”) worker who was injured when her foot went through the porch of a residence at which she was delivering a package. The UPS worker sued the property management company who leased the property, alleging it was liable for her injuries. The trial court dismissed the case on summary judgment, finding the property management company had no duty to the UPS worker. Because the record on appeal does not contain the lease agreement the trial court relied upon in granting the property management company’s motion for summary judgment, we vacate the trial court’s order and remand the case to the trial court.

Hamilton County Court of Appeals 01/25/22
James P. Little M.D. Et Al. v. City of Chattanooga, Tennessee
E2020-01414-COA-R3-CV
Authoring Judge: Judge Frank G. Clement Jr.
Trial Court Judge: Chancellor Jeffrey M. Atherton

This is a mandamus action in which the plaintiffs seek to compel the City of Chattanooga (“the City”), pursuant to Tennessee Code Annotated § 6-51-108(e), to complete the plans of services arising from a 1972 annexation and to publish annual reports of its progress pursuant to Tennessee Code Annotated § 6-51-108(c). Two areas of the 1972 annexation are at issue: (1) an area known as “Tiftonia” or “Area 4” and (2) an area known as “Wauhatchee–Williams Island” or “Area 12.” The plaintiffs also seek a declaration that all annexations by the City since 1981 were void due to the City’s violation of Tennessee Code Annotated § 6-51-102(b)(5), which prohibits a municipality from annexing additional territory while in default on a prior plan of services. After three years of trial preparation, but prior to trial, the court imposed monetary sanctions against the City under Tennessee Rule of Civil Procedure 37.03 in the amount of $263,273.08 for attorneys’ fees, costs, and expenses caused by the City’s failure to supplement discovery responses. Thereafter, the case was tried in three phases. Following the first phase of the trial in 2017, the court found the City complied with its obligations as to Area 4; however, it found the City “materially and substantially failed to comply” with its obligations to provide street paving, street construction, and sanitary sewers in Area 12. Following the second phase of the trial in 2019, the court found the City’s failure to comply with its obligations as to Area 12 was not excused in that it was not caused by “unforeseen circumstances.” As a consequence, the court ordered the City to submit a proposed scope of services to be provided, which would, inter alia, be the subject of the Phase 3 trial. After the third and final phase of the trial in 2020, the court found the City’s proposed scope of services was insufficient and issued a writ of mandamus ordering the City to bring all streets up to current standards and install, inter alia, a gravity-fed sewer system for Area 12 within 48 months. The court also ordered the City to publish annual reports of its progress and enjoined the City from further annexations until the services were provided. Finally, the court found the plaintiffs were not entitled to additional relief for the City’s past violations of §§ 6-51-102(b)(5) and - 108(c). Both parties appealed. The plaintiffs contend, inter alia, that the trial court erred 01/25/2022 - 2 - by finding the City complied with the plan of services for Area 4 and by denying their request for additional relief under §§ 6-51-102(b)(5) and -108(c). The City contends that § 6-51-102(b)(5) and § 6-51-108(c) and (e) do not apply to the annexations of Area 4 and Area 12 because the statutes were enacted after the annexation ordinances were passed. The City also contends that the plaintiffs lack standing, and that their claims are barred by the doctrine of laches and the applicable statute of limitations. In the alternative, the City asserts that the trial court erred by finding it failed to materially and substantially comply with the plan of services for Area 12. The City also appeals the trial court’s award of sanctions for noncompliance with discovery under Rule of Civil Procedure 37.03. Following a thorough review, we reverse and modify the trial court’s judgment regarding the standards that apply to the City’s provision of street paving and construction in Area 12; vacate its judgment regarding the City’s provision of sanitary and storm sewers in Areas 4 and 12; and remand for further proceedings consistent with this opinion. We affirm the court’s judgment in all other respects.

Hamilton County Court of Appeals 01/25/22
In Re Da'Moni J. Et Al.
E2021-00477-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Timothy E. Irwin

This appeal arises from the termination of a mother’s parental rights to her minor children upon the juvenile court’s finding the statutory grounds of abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plan, persistent conditions, and failure to manifest an ability and willingness to assume custody of and financial responsibility for the children. The juvenile court further found that termination of the mother’s parental rights was in the children’s best interest. We vacate the statutory ground of persistent conditions because we are unable to verify that this finding was the independent judgment of the juvenile court. We affirm the remaining grounds for the termination of the mother’s parental rights, as well as the juvenile court’s determination that termination of the mother’s parental rights was in the children’s best interest.

Knox County Court of Appeals 01/25/22
In Re Octavia C., et al.
W2021-00575-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Christy R. Little

This appeal involves a petition to terminate parental rights. The juvenile court found by clear and convincing evidence that several grounds for termination as to the mother were proven: (1) abandonment by failure to support; (2) abandonment by failure to provide a suitable home; (3) abandonment by an incarcerated parent for failure to support; (4) abandonment by an incarcerated parent for wanton disregard; (5) substantial noncompliance with a permanency plan; (6) persistent conditions; (7) severe child abuse; and (8) failure to manifest an ability and willingness to care for the children. The juvenile court also found that termination was in the best interests of the children. The mother appeals. On appeal, the Department of Children’s Services does not defend the grounds of abandonment by failure to support and abandonment by failure to establish a suitable home. We reverse the juvenile court in part and affirm in part.

Madison County Court of Appeals 01/24/22
Susan Greene Garamella v. City of Lebanon, Tennessee et al.
M2021-00262-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Michael Wayne Collins

This is a negligence case arising out of an injury suffered by the plaintiff after she tripped over a sewer cleanout cap and fell on the sidewalk in a residential neighborhood.  She filed suit against the construction company that placed the cleanout cap and the City of Lebanon that assumed ownership of the sidewalk.  The trial court granted summary judgment in favor of the defendants, holding, inter alia, that the applicable statute of repose barred the suit against the construction company and that the City was immune from liability.  The plaintiff appeals.  We affirm.

Wilson County Court of Appeals 01/24/22
Roy Kelly et al. v. Debre Keranio Medhanialem Ethiopian Orthodox Tewahedo Church et al.
M2019-02238-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Thomas W. Brothers

Parents sued a property owner after their child, while playing on the property, received an electrical shock from a downed power line.  The property owner moved for summary judgment.  Based on the undisputed facts, the trial court determined that the property owner was essentially a landlord and had neither actual nor constructive knowledge of the downed power line.  So the court dismissed the parents’ claims against the property owner.  On appeal, the parents argue that the property owner was a
co-possessor of the portion of the property where the child was injured rather than a landlord.  And, as a result, they contend that the property owner owed a duty to inspect the property to discover dangerous conditions such as the downed power line.  At the very least, they contend that the question of constructive notice was for the jury.  We affirm the grant of summary judgment.

Davidson County Court of Appeals 01/24/22
Brent H. Moore v. Karen R. Moore
M2019-01065-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Stella L. Hargrove

Following their divorce, both parents sought modification of a permanent parenting plan.  The parents agreed that there had been a material change in circumstances warranting a modification.  But they disagreed over the parenting schedule and who should be the primary residential parent.  Among other things, the trial court retained the father as the primary residential parent and gave him sole decision making over major decisions.  And the court substantially reduced the mother’s parenting time.  Both parents also filed petitions for contempt against the other.  In part, the father sought to hold the mother in contempt for failure to make certain payments as required by the divorce decree.  Although the court dismissed all of the contempt petitions, it ordered the mother to pay the father for the missed payments anyway.  We vacate the modified plan and remand for a determination of the minor child’s best interest.  Otherwise, we affirm.

Lawrence County Court of Appeals 01/24/22
Jason M. Peterson v. Jodi L. Carey
E2021-00430-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge John S. McClellan, III

This negligence case arises from a one-car accident in which the Plaintiff Jason M. Peterson, a passenger in a car driven by Defendant Jodi L. Carey, was injured. Plaintiff filed his complaint more than one year after he was injured. Defendant moved to dismiss on the ground that the one-year statute of limitations for personal injuries, Tenn. Code Ann. § 28-3-104(a)(1)(A), had run and the case was untimely filed. Plaintiff argued that because Defendant was given a citation for failure to exercise due care, Tenn. Code Ann. § 28-3- 104(a)(2), which provides for a two-year limitations period if “[c]riminal charges are brought against any person alleged to have caused or contributed to the injury,” applies. Defendant responded that because the police issued her citation under the Kingsport Municipal Code, the total fine was fifty dollars, a penalty that was civil and not criminal in nature. The trial court dismissed Plaintiff’s action with prejudice, holding it was filed too late. Because no evidence of the citation was presented to the trial court, and there is no indication in the trial court’s final judgment that it considered the arguments regarding the citation, we vacate and remand for the trial court to consider the evidence and rule on the issue presented.

Sullivan County Court of Appeals 01/24/22
Kim Renae Nelson v. Loring E. Justice
E2020-01172-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Senior Judge William B. Acree

During a previous appeal in this action involving issues of child support and custody, this Court awarded to the mother her attorney’s fees incurred on appeal and remanded the matter to the trial court with instructions to determine the amount of such award. Following remand, the trial court conducted a hearing to consider evidence concerning the mother’s attorney’s fees. The trial court subsequently entered an order setting the mother’s award of reasonable attorney’s fees in the amount of $150,218.02. The father has appealed. Based upon our thorough review of the evidence presented, we modify the amount of attorney’s fees awarded to the mother from $150,218.02 to $123,195.00. Accordingly, the trial court’s judgment is affirmed as modified.

Roane County Court of Appeals 01/24/22
Vanquish Worldwide, LLC v. Sentinel Insurance Company, LTD Et Al.
E2020-01650-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge David Reed Duggan

Vanquish Worldwide, LLC, a Tennessee company that services contracts with the United States government, procured business insurance from Sentinel Insurance Company, Ltd., d/b/a The Hartford (“Sentinel”) and American National Property and Casualty Company (“ANPAC”) through insurance agent Steve Hardin. Vanquish later sought coverage for its payment of an arbitrated settlement with a subcontractor. Despite Mr. Hardin’s assurance that Vanquish would have coverage for the dispute, Vanquish’s claim was denied because it was outside the stated coverage of its insurance policies. Vanquish brought negligent misrepresentation and negligence claims against Mr. Hardin and against Sentinel and ANPAC on the basis of vicarious liability. The trial court granted summary judgment to Mr. Hardin, Sentinel, and ANPAC. Vanquish appeals. Because the unrebutted statutory presumptions of Tennessee Code Annotated § 56-7-135 effectively negate elements of each cause of action, we affirm the trial court’s judgment.

Blount County Court of Appeals 01/21/22
Willie Adams v. Illinois Central Railroad Company
W2020-01290-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Donald H. Allen

Appellee alleges that Appellant abused the discovery process. The trial court agreed, granting Appellee’s motion to exclude Appellant’s expert witnesses and, consequently, granting summary judgment in Appellee’s favor. Because the basis for the imposition of the sanction is unclear and the trial court does not engage in the necessary analysis regarding discovery sanctions, we vacate and remand for further proceedings.

Madison County Court of Appeals 01/19/22
Ebenezer Olusegun George v. Byrle Victoria Smith-George
W2020-01583-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Jerry Stokes

This is an appeal of a post-divorce matter filed by Wife to enforce the parties’ marital dissolution agreement. Primarily at issue was the Wife’s award of alimony in solido, which, pursuant to the parties’ agreement, was to be paid to her out of Husband’s retirement accounts, tax free to Wife. Wife contended that Husband violated the parties’ agreement because she had allegedly been taxed on the amount of alimony in solido. The trial court found no violation of the marital dissolution agreement concerning the alimony in solido payment. We affirm.

Shelby County Court of Appeals 01/19/22
Coffee County, Tennessee v. Carl Spining et al.
M2020-01438-COA-R3-CV
Authoring Judge: Middle Section Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Senior Judge Robert E. Lee Davies

This appeal arises from a Rule 12.02(6) dismissal of a legal malpractice action as time-barred under the one-year statute of limitations in Tennessee Code Annotated § 28-3-104(c)(1). In its September 17, 2019 Complaint, the plaintiff county alleged that its trial counsel in an underlying Public Employee Political Freedom Act (“PEPFA”) action committed malpractice by failing to object to the jury verdict form in conjunction with agreeing to bifurcate the issue of damage. The defendant attorney and his law firm moved to dismiss the complaint as time-barred under § 28-3-104(c)(1), asserting that the county’s claim accrued no later than July 7, 2017—the date on which the court entered the final judgment against the county in the underlying PEPFA case. The county opposed the Motion, asserting that its claim did not accrue until September 18, 2018—the date on which the Court of Appeals issued its opinion in the PEPFA case—because it was on that date the county first reasonably became aware of the alleged malpractice. The trial court granted the Motion to Dismiss on the ground the county knew it had been injured and had sufficient constructive knowledge to trigger accrual of the action more than one year prior to its commencement. This appeal followed. We affirm.

Coffee County Court of Appeals 01/19/22
Jason Britt v. Richard Jason Usery, et al.
W2021-00137-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donald H. Allen

Although the Plaintiff appeals the trial court’s dismissal of his claims, we dismiss the appeal due to the absence of a final appealable judgment.

Henderson County Court of Appeals 01/18/22
James E. Cryer v. The City of Algood, Tennessee
M2020-01063-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Amy V. Hollars

Following a two-vehicle car accident in DeKalb County, Tennessee, between plaintiff James E. Cryer and a police officer, Mr. Cryer filed suit against the City of Algood alleging various acts of negligence. The case proceeded to a bench trial and at the close of Mr. Cryer’s proof, the trial court granted the City’s motion for involuntary dismissal pursuant to Tennessee Rule of Civil Procedure 41.02(2). The trial court ruled that no reasonable trier of fact could conclude Mr. Cryer was less than 50% responsible for the accident and that Mr. Cryer’s claims were therefore barred. Mr. Cryer appeals. Discerning no error, we affirm.

DeKalb County Court of Appeals 01/18/22
Benjamin Jordan Frazier et al. v. Tennessee Department of Children's Services
M2020-00368-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joseph A. Woodruff

The Tennessee Department of Children’s Services denied an application for adoption assistance payments because the adoptive children did not meet federal eligibility criteria.  The adoptive family petitioned for judicial review.  And the chancery court reversed.  We conclude that the administrative agency’s decision was based on an erroneous interpretation of federal law.  So we affirm the chancery court’s decision.

Williamson County Court of Appeals 01/14/22
In Re Riley S.
M2020-01602-COA-R3-PT
Authoring Judge: Middle Section Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Judge Tim Barnes

This appeal concerns the termination of a mother and father’s parental rights to their son, Riley S. The trial court found that DCS established several grounds for terminating both parents’ parental rights and that termination of their rights was in Riley’s best interest. On appeal, neither parent challenges any of the grounds for termination; instead, they contend DCS failed to prove, and that the trial court made insufficient findings to establish, that termination of their parental rights was in Riley’s best interest. Following a careful review of the record, we have determined that DCS proved several grounds for termination as to each parent. We have also determined that DCS proved, and the trial court made sufficient findings to establish, that termination of their parental rights was in the best interest of Riley. Accordingly, we affirm the trial court’s termination of the mother and father’s parental rights.

Montgomery County Court of Appeals 01/14/22
Bonnie S. Bodine v. Long John Silver's LLC
M2021-00168-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Justin C. Angel

This appeal arises from a premises liability action filed by Bonnie S. Bodine (“Plaintiff”) against an incorrect defendant. After learning that she had sued the wrong defendant, Plaintiff waited over four months to file a “Motion to Correct Misnomer,” requesting that she be permitted to “replace” the correct defendant in the action. This motion was not heard until five months later, after the defendant asked the trial court to place the case on the docket for both Plaintiff’s motion and the defendant’s summary judgment motion. The trial court denied Plaintiff’s motion to correct misnomer and subsequent motion to alter or amend, citing Plaintiff’s “extreme lack of due diligence.” Plaintiff appeals. Because the trial court did not abuse its discretion, we affirm.

Marion County Court of Appeals 01/14/22
La Southaphanh v. Tennessee Department of Correction et al.
M2021-00234-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Anne C. Martin

A parolee petitioned for a common law writ of certiorari after the Tennessee Board of Parole revoked his parole and did not credit his sentence with a portion of the time he spent on parole.  The chancery court concluded that the Board did not act arbitrarily, fraudulently, illegally, or in excess of its jurisdiction.  The chancery court dismissed the petition.  We affirm. 

Davidson County Court of Appeals 01/14/22
Kimberly Black v. City of Clarksville, Tennessee
M2020-01580-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ross H. Hicks

An employee sought a reasonable accommodation from her employer when she began experiencing increased difficulties with her debilitating rheumatoid arthritis. The employer was unable to provide a reasonable accommodation and, after concluding that the employee’s disability rendered her physically unable to perform the essential functions of her job, the employer removed the employee from her position and placed her on paid sick leave. The employee then resigned and sued the employer for discriminatory discharge under the Tennessee Disability Act. The trial court granted summary judgment to the employer after determining that the employee was not qualified for the position and that the employee did not suffer an adverse employment action due to her voluntary resignation. Finding no error, we affirm.

Montgomery County Court of Appeals 01/13/22