David R. Fitzgerald v. Hickman County Government, Et Al.
Former county employee appeals the dismissal of his claims against the county and the county mayor related to the termination of his employment. In his complaint, the employee raised claims of violations of due process, indemnification, restitution, negligence, invasion of privacy, workplace harassment, intentional infliction of emotional distress, and misrepresentation. After the county and county mayor filed a motion to dismiss, the trial court ruled that it would decide the motion without the benefit of a hearing. The trial court eventually dismissed all the claims; some claims, however, were dismissed on the basis of summary judgment after the trial court considered a county personnel manual. We conclude that the trial court was entitled to consider the personnel manual as part of the pleadings for purposes of the motion to dismiss under Rule 10.03 of the Tennessee Rules of Civil Procedure. Consequently, we affirm the dismissal of all claims raised by the employee under the motion to dismiss standard, with the exception of the employee’s claim against the county mayor for false light invasion of privacy. Affirmed in part, reversed in part, and remanded. |
Hickman | Court of Appeals | |
Charles Michael Kincade v. Amanda Wooldridge Kincade
This appeal arises from a divorce; the primary issues on appeal pertain to the permanent parenting plan. During the pendency of the divorce and following a successful mediation, the parties entered into a Marital Dissolution Agreement and a Permanent Parenting Plan. Six weeks later, Father filed a notice of withdrawal of his consent to the mediated parenting plan. Subsequently, an order was entered approving the Marital Dissolution Agreement and declaring the parties divorced, reserving the issue of a permanent parenting plan for trial. Following the trial, the court established a permanent parenting plan similar to the mediated plan with four modifications. When Mother’s counsel submitted the final order for the court’s approval, it contained three alternatives for the “right-of-first-refusal” provision, which was one of the four modifications. The trial court approved one of the “right-of-first-refusal” alternatives and entered the final order. Father appeals, arguing the trial court abused its discretion in its formulation of the parenting plan and in awarding Mother her attorney’s fees. Finding no abuse of discretion, we affirm. We also award Mother the reasonable and necessary attorney’s fees she incurred on appeal. |
Williamson | Court of Appeals | |
In Re: Authur R.
This is a termination of parental rights case focusing on the minor child, Authur R. (“the Child”), of Lola R. (“Mother”) and Authur D. (“Father”). The Child was placed in protective custody on June 13, 2013, after Mother was discovered to be under the influence of illegal drugs while the Child was in her custody. The Hamilton County Juvenile Court (“trial court”) adjudicated the Child dependent and neglected on November 26, 2013. On November 25, 2015, the Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate the parental rights of both Mother and Father. An amended petition to terminate was subsequently filed on May 6, 2016. DCS alleged as a basis for termination against both parents the statutory grounds of (1) abandonment by willful failure to visit, (2) abandonment by willful failure to support, (3) abandonment by an incarcerated parent, and (4) substantial noncompliance with the reasonable requirements of the permanency plans. Concerning Mother only, DCS also alleged the additional statutory grounds of (1) abandonment by failure to provide a suitable home and (2) persistence of the conditions leading to removal of the Child. Following a bench trial, the trial court granted the petition upon its determination by clear and convincing evidence that DCS had proven as to both parents the statutory grounds of abandonment by an incarcerated parent and substantial noncompliance with the reasonable requirements of the permanency plan. With regard to Mother only, the trial court determined that DCS had also proven by clear and convincing evidence the ground of persistence of the conditions leading to the Child’s removal. The trial court further determined by clear and convincing evidence that termination of Mother’s and Father’s parental rights was in the Child’s best interest. Mother and Father have appealed. Discerning no reversible error, we affirm. |
Hamilton | Court of Appeals | |
Converging Capital, LLC v. Michael Matthews
This appeal involves the attempt of Converging Capital, LLC, to collect an alleged credit card debt of Michael Matthews. Converging Capital alleged that it owned the debt as a result of a sale of certain accounts receivable from Pilot Receivables Management, LLC, which had earlier bought the debt from Citibank, the issuer of Matthews’s alleged MasterCard account. During the trial, Converging Capital presented the testimony of its records administrator. Matthews objected to the introduction of the bills of sale and assignment, and several credit card statements, on hearsay grounds. He also argued that Converging Capital failed to establish that his debt, if any, was included in the sales of the accounts receivable. The trial court overruled these objections and entered judgment against Matthews in the amount of the alleged debt, $55,684.88. We find that Converging Capital failed to meet its burden of proving that it owned the debt. Consequently, we reverse the judgment of the trial court and dismiss Converging Capital’s complaint with prejudice. Costs are assessed against Converging Capital. |
Davidson | Court of Appeals | |
Maureen Davis v. Wells Fargo Home Mortgage, et al.
Homeowner brought a lawsuit asserting multiple challenges to the bank’s administration of her mortgage and initiation of foreclosure proceedings. The bank filed a motion to dismiss, which was ultimately granted by the trial court, despite several post-judgment motions filed by the homeowner. On appeal, the bank argues that the homeowner’s notice of appeal was not timely. Although we find that the homeowner’s notice of appeal was timely, we conclude that the trial court did not err in granting the bank’s motion to dismiss the homeowner’s complaint because it fails to state a claim upon which relief may be granted. |
Shelby | Court of Appeals | |
MJM Real Estate Investments, LLC v. Metropolitan Government Of Nashville And Davidson County, Tennessee, Et Al.
This appeal arises from a statutory writ of certiorari. The petitioner filed an application with the Metropolitan Historic Zoning Commission (“the Commission”) to obtain a permit to renovate a 1935 industrial building in the Broadway Historic Preservation District in downtown Nashville. The Commission partially approved the application but required modifications before a permit would be issued. In pertinent part, the Commission denied the request to install vertically operable windows (similar to “roll up” garage doors) because they were not consistent with the style of the original 1935 windows. The Commission also required the construction of a parapet wall around the fifth story rooftop deck, rather than a railing proposed by the petitioner, to hide the building’s rooftop additions because the additions were not compliant with the design guidelines for the district. Following an evidentiary hearing, the chancery court affirmed the Commission’s decision. We affirm the chancery court. |
Court of Appeals | ||
In Re Haley S. Et Al.
This appeal arises from a juvenile proceeding wherein the mother, Heather P. (“Mother”) filed a petition to modify her visitation with her two children, Haley S. and Leila P. (“the Children”), who were eleven and four years old, respectively, at the time of trial. Haley’s father, Michael S. (“Father”), remained incarcerated during the entire action. Leila’s father was deceased prior to the commencement of this proceeding. The paternal grandparents of Leila, Leroy W. and Tammie W. (“Grandparents”), who had legal custody of both children, subsequently filed a counter-petition to terminate Mother’s parental rights to the Children and Father’s parental rights to Haley. The magistrate of the juvenile court entered a pre-trial order, stating, inter alia, that if Grandparents were successful in terminating the parents’ rights, Mother’s petition to modify visitation would be dismissed but that if Grandparents were not successful, Mother’s petition would be scheduled for hearing. The magistrate’s order further allowed Mother to amend her original petition to modify visitation. Following a bench trial regarding the termination action, the trial court granted Grandparents’ petition to terminate the parents’ parental rights to the Children. The trial court found by clear and convincing evidence that the conditions leading to the removal of the children from Mother’s custody still persisted. The trial court further found that grounds existed regarding Father because he had abandoned Haley by failing to visit her and because he had failed to establish parentage. Mother appealed the trial court’s decision. Because no adjudicatory hearing order exists in the record finding the Children to be dependent, neglected, or abused, we reverse the ground of persistence of conditions as to Mother. We further determine that the trial court failed to make sufficient findings of fact to support its determination that statutory grounds for termination existed regarding Father. Therefore, we vacate the portion of the judgment terminating Father’s parental rights and remand to the trial court for sufficient findings of fact and conclusions of law pursuant to Tennessee Code Annotated § 36-1-113(k) (2017). |
Rutherford | Court of Appeals | |
John Pierce Lankford v. City of Hendersonville, Tennessee
This case involves the seizure of the plaintiff’s cellular telephone and other items of personal property by police officers employed by the defendant city during a criminal investigation in October 2012. The plaintiff pled guilty in August 2013 to one count of aggravated assault and three counts of simple assault before the criminal division of the Sumner County Circuit Court (“criminal court”). While subsequently incarcerated, the plaintiff initiated this action on March 2, 2016, by filing a motion requesting, inter alia, a “property hearing” in the civil division of the Sumner County Circuit Court (“trial court”), averring that his cellular telephone and other personal property had been illegally seized without notice and that his telephone had ultimately been destroyed by order of the criminal court. The plaintiff asserted that city police officers had violated his Fourth Amendment right to be free from unreasonable search and seizure. The trial court subsequently entered an order, inter alia, determining that the plaintiff’s pleading was in substance a complaint alleging conversion. The city filed a motion to dismiss, asserting that it had governmental immunity from the plaintiff’s constitutional and conversion claims. The city also asserted that any negligence claim was time-barred under the Tennessee Governmental Tort Liability Act (“GTLA”). See Tenn. Code Ann. § 29-20-305(b) (2012). Upon consideration of additional pleadings filed by the parties, the trial court dismissed the plaintiff’s complaint, finding that the city possessed immunity from claims that its employees had violated the plaintiff’s constitutional rights or committed conversion. The trial court further determined that any negligence claim against the city was time-barred by the applicable statute of limitations. The plaintiff has appealed. Discerning no reversible error, we affirm. |
Sumner | Court of Appeals | |
Janie Marie Marcum-Bush v. Kevin Patrick Quinn
As part of a divorce proceeding, the trial court awarded one party a monetary judgment against the other. The judgment debtor’s obligation to pay the judgment did not arise until the sale of certain real property or after two years from the date of the judgment. Although the real property was sold, the judgment debtor made no payments on the judgment. The judgment creditor later moved to extend the judgment. The motion was filed within ten years of the date of the sale of the real property but more than ten years from the entry of the judgment. The trial court granted the motion to extend, concluding that the judgment creditor’s cause of action on the judgment did not accrue until the real property was sold. Because the motion to extend the judgment was untimely, we reverse. |
Wilson | Court of Appeals | |
Mark W. Givler v. State of Tennessee
This case originated when the plaintiff, who was incarcerated in the Tennessee Department of Correction facility at Mountain City, Tennessee, filed a claim against the State of Tennessee (“the State”), alleging that medical professionals at the correctional facility had provided him with untimely and inadequate medical care for a serious heart condition. Finding that the plaintiff’s allegations concerned individuals who were not employed by the State, the Claims Commission (“Commission”) initially dismissed the claim for lack of subject matter jurisdiction. The plaintiff subsequently attempted to file a proposed amendment naming State employees as defendants and then a second claim, resulting in the instant action. The State filed a motion to dismiss, asserting the defense of res judicata. Finding that the plaintiff had misnumbered his proposed amendment to the original claim, the Commission treated the proposed amendment and second claim together as an amended claim. Ultimately determining that the plaintiff had alleged a health care liability action but failed to comply with the statutory prerequisites for such a suit and that he had failed to establish the Commission’s jurisdiction over intentional or criminal acts allegedly committed by State employees, the Commission entered a final order dismissing the action. The plaintiff has appealed. Determining that the plaintiff has failed to comply with Tennessee Rule of Appellate Procedure 27 and Tennessee Court of Appeals Rule 6, we dismiss this appeal. |
Davidson | Court of Appeals | |
Carolyn Crisp v. Michael Nelms, Et Al.
This appeal arises from a lawsuit over a fatal cycling accident. Carolyn Crisp (“Plaintiff”), surviving spouse of William Andrew Crisp (“Decedent”), sued Michael Nelms (“Nelms”) and George Long (“Long”) (“Defendants,” collectively) in the Circuit Court for Blount County (“the Trial Court”) for negligence. Decedent and four others, including Nelms and Long, were riding as part of a “paceline” group when a crash occurred. Nelms asserted comparative fault, stating that Long slowed down suddenly at the head of the line. Long denied he slowed down suddenly. Defendants filed motions for summary judgment. The Trial Court held, among other things, that paceline cycling inherently is dangerous and that Decedent was at least 50% at fault for his accident. Plaintiff appealed to this Court. We hold, inter alia, that there is a genuine issue of material fact as to whether Long slowed down suddenly at the head of the line and whether a reasonable jury could find Decedent less than 50% at fault in his accident. We reverse the judgment of the Trial Court and remand for the case to proceed. |
Blount | Court of Appeals | |
Sabrina Renae Witt v. Erica Christine Witt
Individual members of the 109th Tennessee General Assembly and the 110th Tennessee General Assembly appeal the order of the Circuit Court for Knox County (“the Trial Court”) denying their motion to intervene in this suit involving the divorce of a same-sex couple and specifically involving the issue of whether the spouse who has no biological or other recognized legal relationship to the parties’ minor child may be considered a parent under Tenn. Code Ann. § 68-3-306 (2013). We find and hold that because all of the issues in the divorce now are final the case has been rendered moot as it has lost its justicability and no longer involves a present, ongoing controversy. We further find and hold that no exceptions to the mootness doctrine apply. As the case is moot, we dismiss this appeal. |
Knox | Court of Appeals | |
In Re McKenzie Z.
Unmarried father filed a petition to establish parentage and a residential parenting schedule. After father’s parentage was established, the juvenile court set a residential parenting schedule that awarded equal parenting time and ordered the child’s surname changed to a hyphenated version of both parents’ surnames. Mother appealed, arguing that the court erred in fashioning the parenting schedule and in ordering a change of the child’s surname. Upon review, we affirm the residential parenting schedule but vacate that portion of the order directing a change in the child’s surname. |
Davidson | Court of Appeals | |
Jacinto Machic v. Chrissy M. Machic
This appeal arises from a final decree of divorce. Mother appeals, contending the trial court erred in designating Father as the Primary Residential Parent and awarding the majority of parenting time to Father; she also challenges the division of the martial property. Because the trial court made no findings of fact and the statement of the evidence is inadequate, we have determined that we cannot conduct an appropriate appellate review of the issues raised. Accordingly, the judgment of the trial court is vacated and this matter is remanded for the trial court to, inter alia, comply with the mandate in Tenn. R. Civ. P. 52.01, which states that “the [trial] court shall find the facts specially and shall state separately its conclusions of law and direct the entry of the appropriate judgment.” |
Cumberland | Court of Appeals | |
Joseph Sweat v. City of McMinnville
The plaintiff, a former firefighter with the City of McMinnville Fire Department, brought this retaliatory discharge claim against his previous employer under the Tennessee Public Protection Act. The City filed a motion for summary judgment arguing that the plaintiff was unable to prove that the City’s proffered reason for the discharge was pretextual. Finding no genuine dispute, the trial court granted the motion and dismissed the complaint. We affirm. |
Warren | Court of Appeals | |
Theresa Aileen Blount v. Howard Paul Blount, III
This case involves a post-divorce petition seeking military retirement benefits not allocated at the time of the divorce. The trial court awarded Theresa Aileen Blount (Wife) the requested benefits over the objection of her former spouse, Howard Paul Blount, III (Husband). The trial court also awarded Wife attorney’s fees in the amount of $6,000. Husband appeals. Wife raises her own issues. She seeks additional attorney’s fees; an award of travel expenses; and a remand to the trial court for the purpose of calculating Wife’s entitlement in accordance with the “retained jurisdiction method.” We affirm the trial court’s order granting benefits. We remand the case to the trial court for the purpose of (1) determining the appropriate valuation method for calculating Wife’s benefits and (2) thereafter describing each party’s respective legal interest in Husband’s military pension. |
Roane | Court of Appeals | |
In Re: Estate Of James Hood Nichols
This case involves an order by the trial court directing the personal representative of the Estate of James Hood Nichols (the Estate) to sell a portion of the real property of the Estate. James Hood Nichols (the deceased) died testate. He bequeathed annuities to his daughters, Connie Jane Nichols Cinder and Nan Nichols Jones (the beneficiaries). In the will, the deceased gave a $75,000 annuity to Connie Jane Nichols Cinder and a $50,000 annuity to Nan Nichols Jones. According to the final settlement filed by Richard N. Swanson and Earl Wayne Campbell (the co-executors), the net distributable probate estate is $8,712.01. The co-executors proposed to distribute that amount to the beneficiaries in proportion to the amount left to each beneficiary. The beneficiaries filed an objection to the proposed final settlement, asking the court to order the sale of a portion of the deceased’s real property in order to fund the annuities. Finding that the bequests to the beneficiaries are higher priority than other bequests and devises in the will, the trial court ordered the personal representative to sell a portion of the deceased’s real property sufficient to fund the annuities. The trial court also awarded the beneficiaries their attorney’s fees. The co-executors appeal. We affirm. |
Jefferson | Court of Appeals | |
Luther Smith, Jr., individually and as legal guardian of Luther Smith, III v. ChildLife, Inc., et al.
Father appealed the trial court’s order denying encroachment of minor child’s funds held by the Shelby County Circuit Court Clerk. We affirm. |
Shelby | Court of Appeals | |
In Re: Estate of John J. Burnette
This appeal involves a successor estate administrator’s attempt to collect his attorney’s fees from a prior administrator. John G. McDougal, the prior administrator, gave his coadministrator, John D. Burnette (Burnette), a check representing the proceeds from the sale of the decedent’s real estate. Instead of depositing the check in a Tennessee bank as instructed, Burnette took the check to Florida and deposited it in a bank account there. Afterward, Burnette refused to communicate or cooperate with McDougal. The trial court held that McDougal breached his fiduciary duty to the estate and beneficiaries, and awarded the successor administrator a judgment of $5,523.28. We hold that the undisputed facts establish no negligence or malfeasance on McDougal’s part that warrant an award of attorney’s fees. Accordingly, we reverse the judgment of the trial court. |
Hamilton | Court of Appeals | |
Cathy Gwen Agee Swafford v. Danny Earl Swafford, Sr.
This is a divorce action involving the classification of the parties’ separate and marital property and equitable division of the marital assets. Because we are unable to discern whether the trial court classified the wife’s retirement accounts as marital or separate property prior to its division of the marital estate and because the trial court failed to make sufficient findings of fact regarding several items of property prior to the distribution, we hereby vacate the trial court’s distribution of marital property. We remand this matter to the trial court for entry of sufficient findings of fact and conclusions of law regarding the classification, valuation, and ultimate distribution of the parties’ marital property. |
Bledsoe | Court of Appeals | |
In Re Bentley D.
Father appeals the trial court’s termination of his parental rights on the ground of wanton disregard for the child’s welfare prior to the father’s incarceration. We affirm. |
Washington | Court of Appeals | |
In Re: The Estate of Wanda Jeanne Starkey
Decedent’s daughter filed a notice of will contest, challenging a will that disinherited her and her sisters. According to the contestant, decedent attempted to revoke the will by directing an unnamed person to destroy it in her presence. But the unnamed person allegedly tricked decedent and destroyed another document instead. A beneficiary under the will and the administrator of the estate filed a joint motion to dismiss the contest for failure to state a claim upon which relief can be granted. The beneficiary and the administrator argued that the statutes applicable to revocation of wills required that the will actually be destroyed for an effective revocation. The circuit court granted the motion and dismissed the will contest. Upon review, we conclude that the enactment of Tennessee Code Annotated § 32-1-202 did not abrogate the common-law rule that fraud will not defeat revocation of a will. So the contestant did state a claim for relief. |
Hamilton | Court of Appeals | |
Derwood Stewart v. Armtech Insurance Service, Inc.
A farmer who participated in the federal crop insurance program appeals the trial court’s confirmation of an arbitration award given when he was retroactively determined to be ineligible to participate in the program for failure to pay the premium and, as a consequence, was required to repay the payment he had received for a loss sustained under another policy. The arbitrator held that the contract upon which the claim was paid was void and that the insurance company was entitled to recover the amount paid on the claim. The trial court affirmed the arbitrator’s award, and the policyholder appeals. Finding no basis upon which to conclude that the arbitrator exceeded its authority, we affirm the judgment. |
Warren | Court of Appeals | |
Tennessee Farmers Mutual Insurance Company v. Southern Damage Appraisals, Inc
Tennessee Farmers Mutual Insurance Company (“TN Farmers”), a/s/o Jared Smalley and Cara Gurszecki (“the Homeowners”) sued Southern Damage Appraisals, LLC a/k/a Willow Works (“SDA”) in connection with a construction project that SDA performed on the Homeowners’ house located in Robertson County, Tennessee. SDA filed a motion for summary judgment alleging that the suit was barred by the statute of repose contained in Tenn. Code Ann. § 28-3-202. After a hearing on the motion for summary judgment, the Circuit Court for Robertson County (“the Trial Court”) entered its order granting summary judgment to SDA after finding and holding, inter alia, that TN Farmers’ claim was for subrogation, the claim was subject to the four year statute of repose contained in Tenn. Code Ann. § 28-3-202, and as the claim had been filed more than four years after substantial completion of the work TN Farmers’ claim was barrred. We find and hold that the claim was one for subrogation asserting a right pursuant to an alleged contract between the Homeowners and SDA, that TN Farmers failed to show the existence of any contract between the Homeowners and SDA, and that even if a contract between the Homeowners and SDA did exist coverage for such a contract would be excluded under the insurance policy between TN Farmers and the Homeowners. We, therefore, find and hold that the Trial Court did not err in granting summary judgment to SDA. |
Robertson | Court of Appeals | |
In Re: Veronica T., Et Al.
This appeal involves the termination of a mother’s parental rights to her four minor children. The trial court found by clear and convincing evidence that four statutory grounds for termination had been proven and that termination is in the best interest of the children. We reverse with respect to two of the grounds for termination but otherwise affirm the trial court’s order terminating the mother’s parental rights. |
Rutherford | Court of Appeals |
