Court of Appeals Opinions

Format: 09/20/2020
Format: 09/20/2020
Potter South East, LLC Et Al. v. Brian Bowling v. Abigail Hudgens, Director Of The Division Of Workers' Compensation, Tennessee Department Of Labor And Workforce Development, Second Injury Fund
E2019-01009-SC-R3-WC
Authoring Judge: Judge Robert E. Lee Davies
Trial Court Judge: Judge William T. Ailor

Brian Bowling (“Employee”) was employed as a laborer for Potter South East (“Employer”). During his employment with Employer, he was constantly exposed to loud noise from jackhammers, sledgehammers, power drivers and heavy equipment. Employee initially developed hearing loss in 2010 or 2011. Employer filed a motion for summary judgment raising the one-year statute of limitations. The motion was supported by the evaluating physician’s C-32 report. The trial court granted Employer’s motion and entered an order dismissing Employee’s claim. Employee has appealed from that order. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.

Knox County Court of Appeals 06/02/20
In Re Jayden E.
E2019-01964-COA-R3-JV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Michael S. Pemberton

The Notice of Appeal filed by the appellant, Regina E., stated that the appellant was appealing the judgment entered on October 4, 2019 and the order of adjudication entered on April 24, 2017. As neither of these orders constitutes a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

Roane County Court of Appeals 06/02/20
GEORGE GRANT ET AL. v. ELAINE ANDERSON, CLERK OF WILLIAMSON COUNTY ET AL.
M2019-01099-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Joseph A. Woodruff

This case is before us for the second time. In the first appeal, we affirmed the dismissal of the case after determining that the plaintiffs lacked standing. After the mandate issued, the plaintiffs moved for relief from the judgment under Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court denied the motion. In this second appeal, the plaintiffs claim the trial court abused its discretion in denying their requested relief. We affirm. We also conclude the appeal is frivolous and remand for an assessment of damages.

Williamson County Court of Appeals 06/02/20
Tracy Robinson v. Chester Ault
E2019-00516-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

A tenant evicted from her home filed a de novo appeal in circuit court from a general sessions judgment for back rent and dismissal of her counterclaim. The circuit court refused to hear any evidence from the pro se tenant as to her counterclaim based on a local court rule requiring litigants to submit a witness list and exhibits ten days prior to trial. Because of the absence of a transcript and the discretion of trial courts to apply local rules, this court must affirm.

Hamilton County Court of Appeals 06/02/20
In Re Cassi J.
E2019-00727-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert D. Philyaw

After experiencing financial difficulties, a mother sent her child to live temporarily with a cousin. The cousin filed a petition in the juvenile court seeking temporary custody of the child. After the juvenile court granted the cousin’s petition, the child’s grandmother filed a petition for custody alleging that the child was dependent and neglected and then filed a motion to dismiss the cousin’s petition for temporary custody. The juvenile court denied the grandmother’s motion to dismiss and ordered that temporary custody of the child remain with the cousin. The grandmother sought and was granted a rehearing. After the rehearing, the juvenile court affirmed its decision and the grandmother appealed. We affirm.

Hamilton County Court of Appeals 06/02/20
Emerachem Power, LLC, ET AL. v. David Gerregano
E2019-00292-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor John F. Weaver

This appeal was filed by the plaintiffs pursuant to the provisions of Tennessee Code Annotated section 67-1-1801 to challenge assessments rendered against them by the Commissioner of Revenue for the State of Tennessee. The dispute involves the plaintiffs’ challenge to Tennessee’s assessments of excise tax for the period 2010 through 2012. After cross motions for summary judgment were filed, the trial court found in favor of the Commissioner. The plaintiffs appeal. We affirm.

Knox County Court of Appeals 06/01/20
David Dykes v. Victor Okorie et al.
M2019-01332-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Barry R. Tidwell

Pro se appellants appeal from the trial court’s judgment in favor of their former landlord. We affirm the trial court.

Rutherford County Court of Appeals 05/29/20
JUSTIN RICE v. BELMONT UNIVERSITY
M2018-01092-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

A private university dismissed a graduate student for poor academic performance. The student sued the university for breach of contract, claiming the university failed to follow its own procedures in considering his grade appeal and other post-dismissal requests. The university moved to dismiss for failure to state a claim upon which relief can be granted, and the trial court dismissed the complaint with prejudice. Because the complaint adequately alleges a claim for breach of contract, we reverse.

Davidson County Court of Appeals 05/29/20
Shawn Gray, Individually, and as Administrator of the Estate of Angela G. Gray, deceased v. Jeremy G. Baird et al.
M2019-01056-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Barry R. Tidwell

This is an appeal of the trial court’s decision to summarily dismiss a claim of vicarious liability against the owner of the vehicle that was involved in a fatal vehicular accident. The driver of the vehicle was the son and employee of the vehicle owner, and it is alleged that the driver was acting in the course and scope of his employment with the vehicle owner at the time of the collision. The owner of the vehicle filed for summary judgment, and the trial court found the affidavits and deposition testimony of the owner and his son refuted the prima facie evidence of vicarious liability created by Tenn. Code. Ann. §§ 50-10-311 and -312 that the son was acting in the course and scope of his employment at the time of the collision. The plaintiff appeals contending that summary judgment was not proper because the owner and his son were interested witnesses and their credibility was at issue. We agree. It is undisputed that the son’s employment necessitated his travel on the road where the collision occurred, and whether the son had deviated from the defendant’s business prior to the collision is a material fact that is in dispute. For this reason, we reverse the trial court’s grant of summary judgment and remand for further proceedings.

Rutherford County Court of Appeals 05/29/20
Araceli Cordova Ex Rel. Alfredo C. et al. v. Nashville Ready Mix, Inc. et al.
M2018-02002-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Larry J. Wallace

This wrongful-death action arises out of the death of a Lemay Concrete employee who was struck and killed by a third party’s cement-mixer truck while acting in the course and scope of his employment. The issues in this appeal are post-settlement disputes concerning an attorney’s fee lien filed by the plaintiffs’ first attorney, a subrogation lien filed by the employer’s workers’ compensation carrier, and the assessment of postsettlement discretionary costs against the carrier. The employee’s family instituted this action after agreeing to pay their first attorney 33% of the gross recovery or “a reasonable attorney’s fee” if they discharged him before recovering. While the action was pending, the insurance carrier paid workers’ compensation benefits to the family and, after declining a settlement offer of $400,000, the plaintiffs discharged their attorney. The plaintiffs then retained substitute counsel. Months later, the wrongful-death claim was settled for $1,350,000. The plaintiffs then sought to void their first attorney’s fee agreement and requested the trial court deduct a portion of their substitute counsel’s fees from the carrier’s subrogation lien. The trial court referred all issues to a special master. The special master found the fee agreement was valid and recommended a fee of $133,333—or 33% of $400,000, the amount of the last “firm offer” secured during the first attorney’s representation. The special master’s report contained no findings and identified no factors relied upon in determining that $133,333 was a “reasonable fee,” other than finding the amount would be one-third of the last “firm offer” obtained by the first attorney. The special master also found the carrier’s own counsel protected its subrogation lien and, thus, recommended that the carrier not be liable for any portion of the plaintiffs’ attorneys’ fees. The trial court adopted verbatim the special master’s findings and recommendations. Additionally, the court assessed post-settlement discretionary costs against the carrier in lieu of a deduction for plaintiffs’ attorneys’ fees. This appeal followed. We have determined that the fee awarded to the plaintiffs’ first attorney was not based on the relevant legal principles or applicable facts because the trial court’s ruling was based entirely on the special master’s recommendation—which addressed only one of the guidelines in Tennessee Rule of Professional Conduct 1.5(a) for determining what a reasonable fee is. Therefore, we vacate the fee awarded to the plaintiffs’ first attorney and remand this issue to the trial court to award “a reasonable fee” that is based on the relevant facts and factors. We also reverse the trial court’s ruling that the workers’ compensation carrier was not liable for any portion of the plaintiffs’ attorneys’ fees and remand this issue for apportionment of the fees incurred by the plaintiffs’ attorneys. Accordingly, we also reverse the assessment of discretionary costs against the workers’ compensation carrier and remand this issue for reconsideration.

Cheatham County Court of Appeals 05/29/20
Deaudric Halmon v. Lane College
W2019-01224-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donald H. Allen

This case concerns alleged hazing against a student perpetrated by a college fraternity. When suit was brought by the hazed student against the college, the college sought summary judgment regarding the claims asserted against it. Summary judgment was thereafter granted to the college, and the student appealed to this Court. For the reasons that follow, we reverse in part and affirm in part.

Madison County Court of Appeals 05/29/20
Linda Sue Brown (Hassler) v. Ridley David Hassler
E2019-01801-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Larry Michael Warner

This appeal concerns the responsibilities of the parties, pursuant to the terms of their marital dissolution agreement, following their divorce. Appellant’s ex-wife filed a petition for contempt, contending that Appellant had failed to refinance a debt allegedly owed on a condominium he was awarded in the divorce. Although the trial court did not find Appellant to be in contempt, it did order Appellant to refinance the loan in question and remove his ex-wife’s name from it. We reverse.

Cumberland County Court of Appeals 05/29/20
Cynthia Anne Knop v. Aaron Charles Knop
E2019-01035-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Douglas T. Jenkins

This appeal concerns a post-divorce motion to show cause filed by wife against husband for unpaid child support, extracurricular expenses and medical expenses for the children and a failure to divide certain financial accounts of the parties. Additionally, husband sought credit for premiums he had paid post-divorce toward a life insurance policy awarded to wife as part of the division of marital property. Given the nature of the relief being sought, the parties entered into an agreed order referring the matter to a special master. A hearing was held before the special master who subsequently filed his findings and recommendations with the trial court. Husband filed objections in the trial court to the special master’s findings. Following a hearing on husband’s objections, the trial court approved the special master’s findings and recommendations in their entirety and adopted them as the judgment of the court. The husband appeals. We affirm.

Greene County Court of Appeals 05/29/20
Javier Carrasco v. North Surgery Center, LP, et al.
W2019-00558-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge James F. Russell

This is a healthcare liability action resulting from injuries sustained by a guidewire left in the plaintiff’s neck following a procedure. The defendants moved to dismiss the action for failure to comply with notice requirements in Tennessee Code Annotated section 29-26-121(a)(2)(E). The trial court dismissed the action without prejudice, and the plaintiff appealed. We affirm.

Shelby County Court of Appeals 05/28/20
Cynthia E. Yebuah et al. v. Center for Urological Treatment, PLC
M2018-01652-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Following surgery to remove a cancerous kidney, part of a gelport device was left inside the patient. The patient and her husband brought this health care liability action against multiple defendants, including the surgeon who removed the kidney and the radiologist who initially failed to detect the foreign object. The defendants admitted fault, so the trial focused solely on causation and damages. The jury returned a verdict in favor of the plaintiffs and awarded $4 million in noneconomic damages to the patient for pain and suffering and loss of enjoyment of life and $500,000 in noneconomic damages to her husband for loss of consortium. The trial court initially applied the statutory cap on noneconomic damages to the total damages award and entered a judgment of $750,000 in favor of both plaintiffs. In response to the plaintiffs’ motion to alter or amend, the trial court issued a revised judgment of $750,000 in favor of the patient and $500,000 in favor of the husband. But the court refused to address the plaintiffs’ arguments premised on the constitutionality of the statutory cap, ruling that the issue had been waived. The court also denied the defendant’s motion for a new trial or for a remittitur. Upon review, we conclude that the trial court erred in refusing to consider the plaintiffs’ constitutional issue. But because we also conclude that the statutory cap on noneconomic damages is constitutional and was applied properly and that the defendant is not entitled to a new trial or a remittitur, we affirm.

Davidson County Court of Appeals 05/28/20
Richard Egan v. Rachael Marie Bailey Egan
M2018-01858-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Michael W. Binkley

In this appeal from a final decree of divorce, the husband contends the trial court abused its discretion in awarding spousal support. He challenges the type, amount, and duration of the alimony awarded. Discerning no abuse of discretion, we affirm.

Williamson County Court of Appeals 05/28/20
Adam Paul Jasinskis et al. v. Don R. Cameron, III, et al.
M2019-01417-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor James G. Martin, III

Homeowners sued their builder, asserting claims for violations of the Tennessee Consumer Protection Act of 1977 (“TCPA”), among others. The builder counterclaimed for attorney’s fees, contending that the TCPA claims were frivolous, without legal or factual merit, or brought for the purpose of harassment. The trial court denied the builder’s motions to dismiss and for summary judgment, and the builder moved to amend its counterclaim to add a claim for attorney’s fees based on the parties’ purchase and sale agreement. The homeowners nonsuited their claims against the builder before the trial court heard oral argument on the motion to amend, and the trial court subsequently denied the builder’s motion to amend. The homeowners then moved to dismiss the builder’s counterclaim, and the trial court granted the motion. The builder appeals the trial court’s denial of its motions to dismiss and for summary judgment, the denial of its motion to alter or amend, and the dismissal of its counterclaim. We dismiss the appeal of the denial of the builder’s motions to dismiss and for summary judgment, and we affirm the trial court’s denial of the builder’s motion to amend and its dismissal of the builder’s counterclaim for attorney’s fees.

Williamson County Court of Appeals 05/27/20
KELLY LOVE MCGUFFEY v. BELMONT WEEKDAY SCHOOL ET AL.
M2019-01413-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kelvin D. Jones

A preschool teacher terminated from her employment at a church preschool brought multiple claims against the church, the school, the director of the school, and a church committee. After the teacher presented her evidence to a jury, the court granted motions for a directed verdict as to all defendants except the church and on all claims except common law retaliatory discharge and promissory estoppel. The teacher claimed that the director terminated her employment in retaliation for her complaints about safety issues at the school and that she relied on a promise by the chair of a church committee that a probation report would be removed from her personnel file. The jury found in favor of the church on both counts, and the trial court entered judgment in favor of the church. We affirm the judgment of the trial court in all respects.

Davidson County Court of Appeals 05/27/20
Martha Gilmore, Executrix of the Estate of Nannie Susan Carpenter v. NOL, LLC a/k/a Premier Radiology
M2019-01308-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kelvin D. Jones
A physical therapy patient standing just outside a building was struck by the building’s
automatic door, causing her to fall and suffer broken bones. The patient sued the owner
of the building, asserting negligence and premises liability. The owner asserted the
affirmative defense of comparative fault. The jury returned verdicts finding both parties
negligent and assigned more fault to the patient than to the building owner, thus barring
the patient from any recovery. The patient moved for a new trial, arguing that the jury’s
verdict finding her to be at fault was contrary to the weight of the evidence. The trial
court denied her motion, and the patient appealed. We conclude that the trial judge did
not err in its role as the thirteenth juror, but we vacate the court’s judgment finding the
patient comparatively at fault because no material evidence was introduced at trial to
support this aspect of the jury’s verdict.
Davidson County Court of Appeals 05/27/20
Jennifer Benke Bottorff v. Christian Todd Bottorff
M2019-00676-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Phillip R. Robinson
In this post-divorce custody modification action, the Davidson County Circuit Court
(“trial court”) entered a protective order requiring the return and permanent destruction of
documents, including copies, that were allegedly central to the mother’s separate
professional malpractice action against the father’s testifying expert. The trial court
subsequently denied the mother’s motion for relief from the protective order, wherein she
sought access to the documents for her use in the professional malpractice action.
Although the mother filed a motion seeking to alter or amend the trial court’s order, the
trial court also denied that motion. The mother has appealed. Following our thorough
review of the record and applicable case law, we vacate the trial court’s order denying the
mother’s motion to alter or amend as it pertains to the documents produced during
discovery. We remand this issue to the trial court for further hearing, as necessary, and
determination of the issue based upon the appropriate factors. We reverse the trial
court’s order denying the mother’s motion to alter or amend as it pertains to the trial
transcript and exhibits. We deny the father’s request for an award of attorney’s fees on
appeal.
Davidson County Court of Appeals 05/27/20
Jerry Cunningham, Executor Of The Estate Of Iva Zan Thrall v. Eastman Credit Union, Et Al.
E2019-00987-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor E. G. Moody

In this probate action, Iva Zan Thrall (“Decedent”) had named the original respondent, Marion Dodd, as a payable-on-death (“POD”) beneficiary on several of Decedent’s bank accounts.1 The petitioner, Jerry Cunningham, acting as executor of Decedent’s estate (“Executor”), initiated the instant action by filing a petition to enforce Decedent’s last will and testament in the Sullivan County Chancery Court (“trial court”). Executor named as respondents Ms. Dodd and the two financial institutions where Decedent’s accounts were maintained. Upon notice of Ms. Dodd’s death, her estate (“the Dodd Estate”) was subsequently substituted as a respondent. The two financial institutions were eventually dismissed from this action and are not participating in this appeal. Following a bench trial, the trial court determined that the Dodd Estate must provide to Executor all account funds that Ms. Dodd had received as a POD beneficiary. Following a review of Decedent’s testamentary documents, including a codicil to her last will and testament, the trial court concluded by clear and convincing evidence that Decedent intended for Ms. Dodd, who had originally been named as executrix in the last will and testament, to act in a representative capacity with regard to the account funds. The trial court held that a constructive trust be imposed regarding the funds to give effect to Decedent’s intent, which the court found to be the creation of “a resulting trust and/or implied trust” concerning the account funds. The effect of the constructive trust was that it dispossessed the account funds from the Dodd Estate and transferred those funds to Decedent’s estate via Executor. The trial court further determined that the Dodd Estate would be unjustly enriched if the trial court did not impose equitable principles. The Dodd Estate has appealed. Because we are unable to ascertain whether the trial court’s final order represents the independent judgment of the court, we vacate the order and remand for sufficient findings of facts and conclusions of law that reflect the trial court’s independent analysis and judgment.

Sullivan County Court of Appeals 05/27/20
Brenda Hamblin Proctor v. Michael Owen Proctor
M2018-01757-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor David D. Wolfe

More than ten years after the final decree was entered in this divorce action, Wife filed a contempt action to enforce a provision in the marital dissolution agreement, which had been incorporated into the final decree. Husband filed a separate breach of contract action to recover amounts that he had paid on Wife’s behalf when the parties resumed living together for a five year period following the entry of the divorce decree; the matters were consolidated for the court to rule on whether the controversy should proceed as a contempt action or as a contract action. The court ruled that the action would continue as an action for contempt and, following a hearing, entered an order granting Wife judgment for the $50,000 Husband had been ordered to pay her in the final decree, subject to set-offs for the cost of an automobile, furniture, and medical and dental expenses Husband provided to Wife or paid on her behalf. Husband appeals. We hold that because Wife’s action was filed more than ten years after entry of the judgment, it is barred by the statute of limitations at Tennessee Code Annotated section 28-3-110(a)(2); accordingly, we reverse the judgment of the trial court.

Dickson County Court of Appeals 05/27/20
Legacy Five Leasing, LLC, et al. v. Busforsale.com, LLC
M2019-01615-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joe Thompson

A bus and a trailer sustained water damage when the lot where they were stored flooded following a rainstorm. The owner of the bus and trailer sued the operator of the lot, alleging negligence, gross negligence, and breach of contract. Before filing the complaint, the owner disposed of the bus and trailer. The trial court granted the lot operator’s motion to dismiss the negligence and breach of contract causes of action. The trial court then dismissed the owner’s claim for gross negligence due to spoliation of evidence. The owner appealed the dismissal of its gross negligence claim, and we affirm the trial court’s judgment.

Sumner County Court of Appeals 05/27/20
JACOB DALTON DICUS ET AL. v. LISA GAYE SMITH
M2019-01495-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James G. Martin III

This is a partition suit. The residential property at issue was purchased approximately three months before Plaintiff’s father died from a terminal condition. The deed to the property listed the owners as Plaintiff’s father and his former girlfriend, and the two of them resided together at the property for the last three months of his life. After Plaintiff’s father died, Plaintiff, his sole heir, brought this partition suit individually and as executor of his father’s estate. Plaintiff asserted that his father’s former girlfriend should not receive any of the proceeds from the sale of the home because she did not financially contribute to its purchase. The former girlfriend took the position that Plaintiff’s father gifted her a one-half interest in the home because she agreed to act as his live-in caregiver in the last three months of his life. The trial court found clear and convincing evidence to establish the elements of a gift and split the proceeds of the sale of the home equally, after accounting for some expenses paid by Plaintiff. Plaintiff appeals, arguing that the proof did not establish a gift. We affirm and remand for further proceedings.

Williamson County Court of Appeals 05/27/20
MITCHELL WHITSON ET AL. v. CITY OF LAVERGNE BOARD OF ZONING APPEALS
M2019-00384-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Darrell L. Scarlett

Property owners applied to the City of La Vergne for a building permit to install new doors on their car wash. Their purpose was to convert the car wash to a car lot. The city issued a building permit to the property owners, who proceeded to perform the work necessary to convert the property to a car lot. Months later, the city informed the property owners that they had to obtain planning commission approval of a site plan before they could operate a car lot on the property. The property owners appealed to the board of zoning appeals, which upheld the city’s decision. The plaintiffs filed a petition for writ of certiorari in the chancery court, and the court upheld the decision of the board of zoning appeals. We affirm the chancery court’s decision.

Rutherford County Court of Appeals 05/27/20