COURT OF APPEALS OPINIONS

Gregory White, et al. v. Jack Miller, et al.
M2016-00888-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Charles K. Smith

Sellers of home and their listing agent brought suit against a real estate brokerage firm and an agent employed by the firm to recover for alleged violations of the Tennessee Consumer Protection Act and Real Estate Broker License Act, undisclosed dual agency, and breach of fiduciary duty, arising from the sale of plaintiffs’ home.  The brokerage firm agent procured a contract whereby the sellers agreed to purchase the buyers’ home, with the purchase price for the buyers’ home to be treated as a credit on the purchase price of the sellers’ home.  Upon learning that the agent was also representing the buyers, the sellers brought suit, seeking forfeiture of the agent’s and brokerage firm’s commission; the sellers’ listing agent joined in the suit to recover the commission the brokerage firm agreed to pay her as a referral fee.  The trial court dismissed all claims filed by the seller husband for lack of standing, granted summary judgment to seller wife on her claim of undisclosed dual agency, and ordered that the brokerage firm and agent forfeit the commission from the sale.  The court awarded the listing agent the commission she sought and granted summary judgment to brokerage firm and agent on the seller wife’s claim under the Tennessee Consumer Protection Act and on the seller wife’s claim that she was entitled to the commission generated by the sale of the buyers’ home.  Upon a thorough review of the record, we affirm the judgment in part and reverse in part, and remand the case for further proceedings.    

Kevin Tate v. Tennessee Department Of Correction
M2016-01611-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Russell T. Perkins

Kevin Tate was convicted of a first degree murder that took place on March 22, 1993. On November 22, 1995, he was sentenced to life in prison. In the current litigation, he filed a petition for declaratory judgment asking the trial court to review his release eligibility date as calculated by the Tennessee Department of Correction (TDOC). Petitioner claimed that TDOC incorrectly calculated his release eligibility date, and, in doing so, violated his rights under the ex post facto provisions of the state and federal constitutions. The trial court found that TDOC correctly calculated his release eligibility date. As a consequence, the court dismissed the petition. We modify the judgment of the trial court by vacating the court’s statement that “as Mr. Tate is serving a sentence of life for first degree murder, in no event can he become eligible for release prior to serving 25 years.” In all other respects, we affirm the trial court’s judgment

In Re Domingo C. L.
M2016-02383-COA-R3-JV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor M. Keith Siskin

Obispo C.L. (“the Minor’s Uncle”) appeals the determination of the Chancery Court for Rutherford County (“the Trial Court”) finding that it lacked jurisdiction to make a finding regarding whether it is in the best interest of Domingo C.L. (“the Minor”) to be returned to his home country of Guatemala. We find and hold that the Trial Court had jurisdiction to make this finding, that the petition specifically requested a finding with regard to this issue, and that it was error to refuse to make a finding with regard to whether it was in the Minor’s best interest to be returned to Guatemala. We, therefore, modify the Trial Court’s October 31, 2016 Order Appointing Guardian Of A Minor by remanding this case to the Trial Court for a determination of whether it is in the Minor’s best interest to be returned to Guatemala. We affirm the remainder of the Trial Court’s order.

In Re Miracle M., et al.
W2017-00068-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Dan H. Michael

This is a termination of parental rights case. The trial court terminated Appellant Father’s parental rights to two minor children. The trial court found that clear and convincing evidence supported termination based on the statutory grounds of abandonment by willful failure to support, abandonment by willful failure to visit, and persistence of the conditions that led to the children’s removal to state custody. The trial court also found, by clear and convincing evidence, that termination of the Father’s parental rights was in the children’s best interests. Father appeals. As to the ground of persistence of conditions, we conclude that the Department of Children’s Services (“DCS”) has not met its burden of proof, and therefore we reverse termination of Father’s parental rights on this ground. The Court affirms the juvenile court’s termination of Father’s parental rights on the grounds of abandonment by willful failure to support and abandonment by willful failure to visit.

Mary Wagoner-Angelin v. Randall Jon Angelin
E2016-01850-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge L. Marie Williams

This appeal concerns post-divorce matters pertaining to a marital dissolution agreement (“the MDA”) and a parenting plan. Mary Wagoner-Angelin (“Mother”) filed a petition seeking modification of the parenting plan against ex-husband Randall Jon Angelin (“Father”) in the Circuit Court for Hamilton County (“the Trial Court”). Father filed an answer and counterclaim challenging the alimony provision in the MDA. Mother later amended her petition to include allegations of civil contempt for Husband’s alleged failures to abide by the MDA and parenting plan. After a trial, the Trial Court, inter alia, found Father in contempt. Father appeals to this Court. We affirm the Trial Court in its determination that Father is bound by the provisions of the MDA. We affirm the Trial Court in its finding an upward deviation for the parties’ daughter Rachel’s private school tuition. Regarding the other issues, we remand with instructions. The judgment of the Trial Court therefore is affirmed, in part, vacated, in part, and remanded for further proceedings consistent with this Opinion.

Dennis Down D/B/A Knoxville Lifestyle v. Steve Hall D/B/A Greater Tennessee Flooring
E2016-00647-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Michael W. Moyers

After the trial court entered a final judgment awarding plaintiff damages and attorney’s fees, defendant filed a timely motion requesting additional findings of fact and conclusions of law. The trial court then entered a second judgment incorporating the requested findings of fact and conclusions of law. After entry of the second judgment, plaintiff filed a motion for an award of additional attorney’s fees, which the trial court treated as a motion to alter or amend. The plaintiff later withdrew his motion for additional attorney’s fees, and the trial court entered an order authorizing the withdrawal. Later, in response to a motion to quash a garnishment, the trial court entered a third judgment, which granted the motion but otherwise incorporated by reference the court’s previous rulings. Defendant filed a notice of appeal within thirty days after entry of the third judgment but more than thirty days after the order granting plaintiff leave to withdraw his motion for additional attorney’s fees. Because we conclude the notice of appeal was untimely, we dismiss the appeal.

Jane Doe, et al. v. P.F. Chang's China Bistro, Inc., et al.
W2016-01817-COA-R9-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Donna M. Fields

This interlocutory appeal arises out of a tort action brought by a restaurant manager against her employer for injuries she received during the course of a robbery and rape by a cook at the restaurant where both were employed. The employer moved for summary judgment, contending that the workers’ compensation law provided the exclusive remedy for the employee. The trial court denied the motion, holding that the injuries the employee sustained did not arise out of the employment. Upon review, we affirm the denial of summary judgment and remand the case for further proceedings.

Wanda Katz v. The Sports Authority Of The Metropolitan Government Of Nashville And Davidson County, TN, et al
M2016-01874-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Plaintiff sued the owner and the operator of a public venue after slipping on liquid on the floor and injuring herself. Defendants moved for summary judgment. In granting summary judgment, the trial court concluded, based upon the undisputed facts, that defendants did not have actual or constructive notice of the liquid on the floor. Plaintiff appeals, arguing that wet spills throughout the venue and two other slip and fall incidents on the concourse area constituted a pattern of conduct, a recurring incident, or a general or continuing condition sufficient to put defendants on constructive notice of the liquid causing Plaintiff’s fall. Because Plaintiff failed to provide sufficient evidence of constructive notice, we affirm the grant of summary judgment.  

Wanda Katz v. The Sports Authority Of The Metropolitan Government Of Nashville And Davidson County, TN, et al - Dissent
M2016-01874-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

The majority opinion affirms the grant of summary judgment in this slip and fall case based on the determination that Wanda Katz (“Plaintiff”) failed to provide sufficient evidence of constructive notice. I respectfully disagree, having concluded that there exists a genuine issue of material fact as to whether Defendants had constructive notice of the dangerous condition.
 

Lisa Marie Krogman v. Bob Goodall, et al
M2016-01292-COA-R3--CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

In this appeal, the plaintiff sued her former real estate agent and his real estate company for malpractice and negligence in the attempted sale of her home. The trial court granted summary judgment to the defendants upon holding (1) that the plaintiff failed to effectuate service of process on the defendants; (2) that the defendants did not waive the affirmative defense by filing their answers more than 30 days after the complaint was filed, by filing a notice of appearance, and by participating in the litigation; and (3) that the defendants properly pled the affirmative defense in their answers. We affirm the judgment of the trial court.

David Chase v. Chris Stewart, et al.
M2017-01192-COA-T10B-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Michael Binkley

Appellants sought disqualification of the trial court judge pursuant to Tennessee Supreme court Rule 10B based primarily on an order entered by the trial court in March 2016. Because Appellants waited approximately one year to seek disqualification of the trial court judge, they have waived their rights under Rule 10B.

Dinah Bostic Norman v. John Arthur Norman, IV
M2015-02364-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor James G. Martin, III

This case arises out of the demise of a long-term marriage. The trial court declared the parties divorced, equitably divided the marital estate, and awarded the wife alimony in solido, rehabilitative alimony, and alimony in futuro. On appeal, the husband raises many issues, including whether the doctrine of unclean hands should bar wife from receiving an award of alimony in solido, whether the court’s division of the marital estate was inequitable, and whether the court’s alimony awards were based on a clearly erroneous assessment of the evidence. Finding no abuse of discretion, we affirm the trial court’s decision in all respects.

Kristin Holloway v. Group Properties, LLC
W2016-02417-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert Samual Weiss

This negligence case was brought by Appellee/Tenant, who suffered injuries when a light fixture and a portion of the rental property ceiling fell due to a water leak. Tenant received a judgment in the general sessions court, and Appellant/Landlord appealed to the circuit court. Following de novo review, the circuit court entered judgment in favor of Tenant. Landlord appeals. Discerning no error, we affirm and remand.

The Germantown Manor Homeowners Association, Inc. v. GGAT Development Corp., et al.
W2016-01461-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Felicia Corbin Johnson

Appellee, homeowner’s association, filed suit against Appellants, owners of lots in the development, to collect association fees. The trial court held that Appellee, a non-profit corporation, was not authorized to formally assess association fees until it elected a board of directors. Tenn. Code Ann. § 48-58-101. The trial court charged Appellants’ with association fees accruing after the election of the board and also denied Appellants’ counter-complaint for quantum meruit damages allegedly accrued for upkeep of certain common areas, which remained under Appellants’ ownership. Discerning no error, we affirm and remand.

Jonah Paul Anders v. Mayla Anders
W2016-02290-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Gina C. Higgins

Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction.

Henriette M. Fisher v. Chandranita Ankton
W2016-02089-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert Samual Weiss

The trial court dismissed this lawsuit because proper service of process was not effectuated on the defendant. Because the defendant waived the specific defense relied upon by the trial court to dismiss this case by failing to comply with Rule 8.03 of the Tennessee Rules of Civil Procedure, we reverse the decision of the trial court and remand for further proceedings.

In Re Homer D., et al.
M2017-00298-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Daryl A. Colson

This is a termination of parental rights case. Upon the trial court’s entry of an order terminating her parental rights, Appellant filed a timely notice of appeal. However, Appellant did not comply with Tennessee Code Annotated Section 36-1-124(d) (Supp. 2016) in that she failed to sign the notice of appeal. Although Appellant attempted to correct the error by filing an amended notice of appeal, the amended notice was filed after the thirty day time period for perfecting appeals had expired. As such, this Court lacks subject-matter jurisdiction to adjudicate the appeal, and it is dismissed with prejudice.

In Re Homer D., et al. - Dissent
M2017-00298-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Daryl A. Colson

The majority opinion dismisses this appeal due to the failure of the appellant, Sarah R. P. B., the child’s mother, to sign the initial notice of appeal as required by Tenn. Code Ann. § 36-1-124(d) or to file an amended notice that included her signature within the thirty-day time period for perfecting appeals. The majority has concluded that although the amended notice of appeal “did contain Appellant’s signature, it was filed . . . more than thirty days after the entry of the trial court’s judgment. As such, it, too, is insufficient to confer subject-matter jurisdiction on this Court.” I recognize that the majority opinion is based on two recent Court of Appeals decisions, but I respectfully disagree with those decisions and with the notion that Tenn. Code Ann. § 36-1-124(d) is jurisdictional. I also disagree with the notion that the statute compels this court to dismiss appeals in parental termination cases without affording the parent the opportunity to cure the defect by subsequently signing an amended notice of appeal even if that occurs after the expiration of the thirty-day time period set out in Tenn. R. App. P. 4(a). 

Roy Zumstein v. Roane County Executive/Mayor, Assessor Of Property, Trustee
E2016-02037-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin, Jr.
Trial Court Judge: Judge Frank V. Williams, III

This appeal arises from a taxpayer’s successful challenge of the appraisal value assigned to his real property by the Roane County Property Assessor. The taxpayer filed a petition for judicial review challenging an administrative decision that affirmed the assessor’s valuation. The trial court ruled in favor of the taxpayer, overturning the administrative decision and ordering Roane County to pay the taxpayer’s attorney’s fees. On appeal, Roane County argues that the trial court had no authority to assess attorney’s fees against it. We agree and reverse the trial court’s award of attorney’s fees.

In Re: Dae'Jrien T.
E2017-00051-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Frank V. Williams, III

This is an appeal from a final decree of adoption following the entry of an order terminating the parental rights of the appellant to her minor child. The only notice of appeal filed by the appellant within the time provided by Tennessee Rule of Appellate Procedure 4(a) for the filing of a notice of appeal did not comply with Tennessee Code Annotated § 36-1-124(d), which states: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” Because this notice of appeal was insufficient to invoke the jurisdiction of this Court, this appeal is dismissed.

Edward Keith Morelock v. Ruth Ellen Mick Morelock
E2016-00543-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John C. Rambo

In this divorce case, Edward Keith Morelock (Husband) appeals the trial court’s decisions regarding (1) co-parenting time with the parties’ child; (2) division of marital property, (3) valuation of one of the marital assets, and (4) refusal of the court to award him spousal support. Husband argues that the trial court should have designated him primary residential parent and granted him more residential time with the child. He also asserts that the trial court overvalued the business owned by the parties, and that the court should have equally divided the assets and liabilities of that business rather than awarding and assigning all of them to him. Finally, he argues that the trial court should have ordered Ruth Ellen Mick Morelock (Wife) to pay him alimony. Finding no abuse of discretion, we affirm the trial court’s judgment.

Holly Rader, Et Al. v. Ruby Tuesday, Inc.
E2016-01677-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Kristi M. Davis

Holly Rader (“Plaintiff”) appeals the August 4, 2016 order of the Circuit Court for Knox County (“the Trial Court”) granting summary judgment to Ruby Tuesday, Inc. (“Ruby Tuesday”) in this slip and fall action after finding that Ruby Tuesday did not have superior, actual, or constructive knowledge of the condition that caused Plaintiff’s slip and fall. We find and hold that Ruby Tuesday did have superior, actual, or constructive knowledge of the condition that caused the slip and fall and owed a duty to Plaintiff. We, therefore, vacate the grant of summary judgment and remand this case for further proceedings.

Marvin D. Kinsey v. Jacob P. Schwarz, et al
M2016-02028-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley, Jr.

A prison inmate filed a health care liability action against two physicians and a medical center without providing the defendants with pre-suit notice, as required by Tenn. Code Ann. § 29-26-121(a), and without attaching a certificate of good faith to the complaint, as required by Tenn. Code Ann. § 29-26-122. The defendants filed motions to dismiss, which the trial court granted. The inmate appealed, and we affirm the trial court’s judgment.

Franklin-Murray Development Company, L.P. v. Shumacker Thompson, PC, Et Al.
M2015-01968-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Michael Binkley

This is a legal malpractice action in which the trial court granted partial summary judgment to the defendants, a law firm and its owners, on the plaintiff’s claim for lost profits and, in due course, granted summary judgment to the defendants on the remaining claims. The underlying suit arose from a failed real estate transaction in which a judgment for $200,000 for failure to perform a contract to purchase land for development was entered against the plaintiff in this action. The plaintiff appeals, contending that the court erred in various respects in granting the motions for summary judgment. Upon a thorough review of the record, we affirm the judgment of the trial court in all respects.

Carlisa Elmi v. Cheatham County Board of Education, et al.
M2016-02024-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor David D. Wolfe

This is an appeal of the termination of a tenured teacher’s employment pursuant to the Tenure Act, Tenn. Code Ann. §§ 49-5-501
and -515. The Cheatham County Director of Schools initiated these proceedings by filing a notice of charges recommending the termination of the tenured teacher on the grounds of insubordination and inefficiency. Following an administrative hearing, the hearing officer recommended dismissal. When the Cheatham County Board of Education voted to sustain the hearing officer’s decision and to dismiss the tenured teacher, the teacher sought review of the decision in the chancery court. The chancery court affirmed her dismissal, and this appeal followed. We have determined that the evidence preponderates against the chancery court’s factual findings and its conclusion that the teacher was insubordinate and inefficient as those terms are defined in the Tenure Act. We have also determined that the record fails to establish any basis for the dismissal of a tenured teacher. Therefore, we reverse the judgment of the chancery court and remand with instructions for the chancery court to determine the relief to which the tenured teacher is entitled for being dismissed without justification. This includes whether the teacher is entitled to back pay pursuant to Tenn. Code Ann. § 49-5-511(a)(3) and, if so, in what amount.