Joseph H. Johnston v. Mark Goins

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Joseph H. Johnston v. Mark Goins
M2017-00809-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

Action brought by write-in candidate for tax assessor seeking declaratory judgment relative to the duties of the State Coordinator of Elections in the administration of Tennessee Code Annotated section 2-7-133(i). Upon our review, we affirm the judgment of the chancellor.

 Davidson County Court of Appeals 07/18/18
In Re Ky'Auri M.
E2017-00501-COA-R3-JV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robert D. Philyaw

Relying on due process grounds, the mother of the parties’ child contends the juvenile court erred by modifying the parenting plan and designating the father as the primary residential parent. The only petition before the court was the father’s petition for contempt. The juvenile court magistrate who presided over the initial hearing informed the mother “that the issue before the Court was whether the mother was in contempt of this Court and upon the Court’s own motion, if she should remain custodian of the child.” At the conclusion of the hearing, the magistrate found “that because of the mother’s lack of compliance and cooperation, she was in Contempt of Court and that custody of the child would be granted to the father. . . .” The mother filed a request for rehearing in the juvenile court, and the juvenile court judge affirmed the magistrate’s order. This appeal followed. Because neither party petitioned the court to modify the existing permanent parenting plan or the designation of the primary residential parent and due process requires, at a minimum, “notice reasonably calculated . . . to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections,” Keisling v. Keisling, 92 S.W.3d 374, 377 (Tenn. 2002) (quoting State v. Pearson, 858 S.W.2d 879, 884 (Tenn. 1993)), it was error for the juvenile court to modify the permanent parenting plan and change the primary residential parent. As a result, we vacate the juvenile court’s order modifying the permanent parenting plan and designating the father as the primary residential parent and remand for further proceedings consistent with this opinion.

 Hamilton County Court of Appeals 07/18/18
Carlene Guye Judd, et al v. Carlton Guye, et al
M2017-01791-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement , Jr.
Trial Court Judge: Chancellor William E. Young

Plaintiff, a shareholder in the corporation at issue who obtained a judgment against the corporation in a prior action, now seeks to pierce the corporate veil to hold the other shareholder personally liable for the balance owing on the judgment. The trial court summarily pierced the corporate veil and held the defendant shareholder personally liable for the corporation’s debt to Plaintiff. The defendant shareholder appeals arguing, inter alia, that the trial court erred in allowing Plaintiff to pierce the veil of her own corporation. We affirm.

 Davidson County Court of Appeals 07/17/18
Gerald Largen v. The City Of Harriman
E2017-01501-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael S. Pemberton

This case involves a claim brought by a landowner challenging the validity of certain annexation ordinances that incorporated his property into the City of Harriman (the “City”). In December 2014, the landowner filed a declaratory judgment action against the City in the Roane County Circuit Court (“trial court”), alleging that several 1959 annexation ordinances passed by the City were void ab initio because a river adjacent to the City prevented land on the opposite side of the river from being contiguous with the City’s original boundaries. The landowner alleged that as a result of the first annexation’s purported invalidity, all subsequent annexations based on contiguity with the lands annexed in the 1959 ordinances were void by extension. The landowner sought a judgment voiding the challenged annexation ordinances, recovery of the real estate taxes he had paid to the City for his real property included in the annexed land, and a permanent injunction preventing the City from imposing any charges or taxes against him. The City responded with a motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02, arguing that the landowner’s sole remedy would have been an action in the nature of a quo warranto proceeding pursuant to Tennessee Code Annotated § 6-51- 103 (2015). In the alternative, the City argued that dismissal was proper because the landowner had not joined necessary parties who would be affected by the judgment he sought. Determining that other landowners with title to real property inside the annexed areas in question were indispensable to the landowner’s claim, the trial court denied the motion to dismiss and directed the landowner to join the necessary parties. The trial court also directed the landowner to amend his complaint to specify the challenged ordinances and affected properties. In November 2016, the landowner filed a motion for class action certification, which the trial court denied following a hearing. On March 10, 2017, the trial court dismissed the landowner’s complaint, finding that the court lacked subject matter jurisdiction due to the non-joinder of indispensable parties. The landowner subsequently filed a “Motion to Set Aside Order,” which the trial court denied. The landowner has appealed. Discerning no reversible error, we affirm.

 Roane County Court of Appeals 07/17/18
Dwight Jenkins v. Michael Schmank, ET Al.
E2017-00371-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jerri S. Bryant

This appeal involves the plaintiff’s filing of a complaint for unjust enrichment and conversion against his business partner’s spouse after the plaintiff discovered that his partner converted partnership funds for personal use. The trial court dismissed the complaint following a bench trial. We affirm.

 Bradley County Court of Appeals 07/12/18
Ashley Lee Bunn v. Heath Brandon Bunn
E2017-02491-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin, Jr.
Trial Court Judge: Judge Larry Michael Warner

In a pending divorce proceeding, Wife filed four separate contempt petitions against Husband. After a court appearance on Wife’s third and fourth petitions, without taking evidence and without finding Husband in contempt, the trial court ordered that Husband be taken into custody and confined in jail for a period of thirty days. A mittimus subsequently issued, and Husband appealed. For the reasons stated herein, the trial court’s order is reversed and the issued mittimus is vacated.

 Cumberland County Court of Appeals 07/10/18
Premier Imaging/Medical Systems, Inc. v. Coffey Family Medical Clinic, P.C.
E2017-02186-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge John D. McAfee

This appeal arises from a breach of contract action. Premier Imaging/Medical Systems, Inc. (“Premier”) contracted with Coffey Family Medical Clinic, P.C. (“CFMC”), an organization formed by Dr. D. Bruce Coffey, M.D. (“Dr. Coffey”), for a five year servicing contract (“the Contract”) under which Premier would provide service for a CT Scanner (“the Scanner”). Pioneer Health Services of Oneida (“Pioneer”) and Dr. Coffey later entered into an agreement whereby Pioneer assumed certain obligations, apparently including the Contract. At CFMC’s request, Premier began billing Pioneer. Pioneer eventually stopped making payments under the Contract. Premier sued CFMC in the Circuit Court for Scott County (“the Trial Court”) to recover on the remainder of the Contract. CFMC argued that Pioneer became a substituted obligor under a theory of novation. After trial, the Trial Court held that CFMC failed to prove novation, awarded Premier $89,166.60 for the twenty months remaining on the Contract, and granted prejudgment interest of ten percent from the end of the Contract for a total of $105,534.70. CFMC appeals. We hold, inter alia, that the Trial Court did not err in holding that CFMC was unable to meet its burden of proving that novation, implied or otherwise, occurred. We affirm the judgment of the Trial Court.

 Scott County Court of Appeals 07/10/18
Tennessee Traders Landing, LLC v. Jenkins & Stiles, LLC
E2017-00948-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This case involves a dispute concerning the validity of an oral agreement to rescind a written commercial lease agreement. In May 2011, the plaintiff company entered into a written lease, agreeing to rent a commercial building to the defendant company for a set term of three years and nine months. The lease provided for the first nine months of tenancy without rental payments, setting rental payments at $2,250.00 per month for the remainder of the initial term. At some time during the latter part of 2011, the two companies’ respective presidents purportedly met and mutually agreed to terminate and rescind the lease. The presidents’ agreement was never memorialized in writing, however, and the lease contained a provision that prevented any oral modification to the contract. Neither company thereafter acted in accordance with the lease until November 24, 2015, when the plaintiff’s new president contacted the defendant in writing, demanding thirty-six months of unpaid rent in addition to a five-percent late fee pursuant to the lease, for a total of $85,050.00. The defendant did not tender any payment to the plaintiff as requested. On May 17, 2016, the plaintiff filed a complaint in the Knox County Chancery Court (“trial court”), alleging unpaid rent and requesting an award of rent payments, late fees, and reasonable attorney’s fees. The defendant filed an answer, asserting, inter alia, that the lease was invalid as a result of the oral rescission by mutual agreement in 2011. Upon cross-motions for summary judgment, the trial court granted summary judgment in favor of the plaintiff, awarding a monetary judgment in the amount of $92,208.75, representing an $81,000.00 balance of unpaid rent, $4,050.00 in late fees, and $7,158.75 in reasonable attorney’s fees and expenses. The defendant filed a motion to alter or amend judgment, which the trial court denied. The defendant has appealed. Having determined that the lease did not prohibit an oral rescission by mutual agreement, we reverse the grant of summary judgment to TTL. Having also determined that a genuine issue of material fact remains as to whether TTL’s former president possessed the authority to orally rescind the lease, we affirm the denial of summary judgment to J&S and remand for evidentiary proceedings consistent with this opinion.

 Knox County Court of Appeals 07/09/18
Ernest Smith v. Wellmont Health System Et Al.
E2017-00850-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge E.G. Moody

This interlocutory appeal involves a health care liability action. Plaintiff gave potential defendants written notice of his malpractice claim. See Tenn. Code Ann. § 29-26-121(c). Plaintiff then filed his complaint. In doing so, he relied upon a 120-day extension of the one year statute of limitations as provided for in § 29-26-121(c). Each defendant moved to dismiss the plaintiff’s complaint. By an order entered April 1, 2015, the trial court granted the joint motion to dismiss of three of the defendants. The court’s order concluded that plaintiff’s complaint was time-barred. Plaintiff did not appeal the court’s judgment and, with the passage of time, it became final. Meanwhile, the motions to dismiss of the other defendants, all of which were essentially based upon the same ground as that of the joint motion of the dismissed defendants, were awaiting resolution by the trial court. Before this could happen, however, the plaintiff voluntarily dismissed his complaint. Nine months later, plaintiff sent a new pre-suit notice. Four months after that, plaintiff filed a second health care liability action against the same defendants, including those dismissed by the trial court in its April 1, 2015 order. All defendants again moved to dismiss the complaint. The trial court denied the motions. Later, the trial court decided that its April 1, 2015 dismissal order was incorrect. It concluded that plaintiff’s first complaint was not time-barred because, according to the court, plaintiff provided proper pre-suit notice. On the defendants’ further motions, the court granted them permission to pursue an interlocutory appeal pursuant to the provisions of Tenn. R. App. P. 9. We did likewise. We now reverse the judgment of the trial court denying defendants’ motions to dismiss.

 Sullivan County Court of Appeals 07/09/18
In Re: Maya M., Et Al.
E2017-01616-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Gregory S. McMillian

This post-divorce appeal concerns the mother’s filing of a petition to find the children dependent and neglected based upon the father’s behavior during his co-parenting time. The juvenile court granted the petition and ordered supervised visitation. The father appealed to the circuit court for a de novo hearing, held approximately one year later. The circuit court dismissed the petition, finding that the children were no longer dependent and neglected. The mother appeals. We affirm

 Knox County Court of Appeals 07/09/18
Daniel C. Woodard v. Joan N. Woodard
E2017-00200-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Larry Michael Warner

This post-divorce appeal concerns the husband’s motion to reduce spousal support and the wife’s request to set permanent child support for their disabled daughter. The court reduced the spousal support obligation based upon a material change in circumstances but found that it was without jurisdiction to enter an order of permanent child support. The wife appeals. We affirm.

 Cumberland County Court of Appeals 07/09/18
Specialtycare IOM Services, LLC v. Medsurant Holdings, LLC, Et Al.
M2017-00309-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Carol L. McCoy

Appellant appeals the trial court’s entry of default judgment as a discovery sanction against it. Because there is insufficient evidence of contumacious conduct on the part of Appellant to justify default, we reverse the trial court’s entry of default judgment on liability. We vacate the trial court’s award of damages on the jury verdict, but affirm the award of attorney’s fees as an initial discovery sanction.

 Davidson County Court of Appeals 07/06/18
Estate of Joyce Elaine Myers Et Al. v. Michael Questell
M2017-01954-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Larry B. Stanley, Jr.

Appellants appeal the trial court’s grant of summary judgment in favor of Appellee, medical doctor. The trial court found that Appellant’s petition for declaratory judgment sounded in health care liability and was barred by the statute of limitations. Tenn. Code Ann. § 29-26-116(a)(1). Discerning no error, we affirm and remand.

 Warren County Court of Appeals 07/06/18
Enoc Miranda v. CSC Sugar, LLC
W2017-01986-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joe H. Walker, III

This is a premises liability case. Appellant, a construction worker, fell from scaffolding while working in Appellee’s factory. Specifically, Appellant ran an extension cord across the warehouse floor to reach an electrical outlet to power a screw gun used to install new sheetrock required in the warehouse renovation. Appellee’s employee drove a forklift over Appellant’s extension cord, entangling the cord and dislodging the scaffolding. The trial court granted summary judgment in favor of Appellee finding that there were no disputes of material fact and that Appellee had no duty to warn Appellant of a dangerous condition that Appellant created. Because there are material factual disputes that preclude the grant of summary judgment, we reverse and remand.

 Tipton County Court of Appeals 07/05/18
Mike Snodgrass v. AHA Mechanical Cont., LLC
W2017-01401-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert Samual Weiss

The trial court denied Appellant, employee, relief under the Fair Labor Standards Act, and employee appeals. Because the trial court’s judgment does not clearly show that it applied the correct legal standard in deciding the case, we vacate and remand.

 Shelby County Court of Appeals 07/05/18
Shay Ryan Doming v. Kelly Deann Doming
M2017-02507-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Deanna B. Johnson

Father appeals the trial court’s denial of his motion to alter, amend, or modify parenting plan and award of attorney’s fees in favor of Mother. Because the appellate record contains neither a transcript nor a statement of the evidence required by Rule 24 of the Tennessee Rules of Appellate Procedure, we are not able to review the trial court’s substantive holdings. Therefore, we conclude that there was sufficient evidence to support the trial court’s findings. Based on the plain language of the permanent parenting plan, Mother is awarded her attorney’s fees and costs incurred in this appeal.  

 Williamson County Court of Appeals 07/05/18
In Re: McKenzie O., Et Al. - Dissenting
E2017-00956-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Mark Toohey

While I understand my learned colleagues’ desire to bring finality and stability to the lives of these children who so desperately deserve it, I must unfortunately conclude that this case cannot be resolved based upon the order entered by the trial court. I therefore respectfully dissent from the majority opinion.

 Sullivan County Court of Appeals 07/05/18
In Re: McKenzie O., Et Al.
E2017-00956-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Mark Toohey

Mother appeals the trial court’s decision to terminate her parental rights to two children on the grounds of (1) substantial noncompliance with the requirements of the permanency plan and (2) persistence of conditions. She further challenges the trial court’s finding by clear and convincing evidence that termination of her parental rights was in the best interest of the children. We affirm the judgment of the trial court.

 Sullivan County Court of Appeals 07/05/18
Desiree Dawn Roberts Et Al. v. Wellmont Health System Et Al.
E2017-00845-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge E.G. Moody

This interlocutory appeal involves a health care liability action. Plaintiff gave written presuit notice of her claim to all potential defendants. See Tenn. Code Ann. § 29-26-121(c) (Supp. 2013). Later, she filed a complaint against the same defendants. In doing so, she relied upon the 120-day extension of the one-year statute of limitation as provided for in Tenn. Code Ann. § 29-26-121(c). Each defendant filed a motion to dismiss. Prior to a hearing on those motions, plaintiff voluntarily dismissed her complaint. Plaintiff subsequently served each defendant with new pre-suit notice and later re-filed her complaint in reliance on the one-year savings statute, Tenn. Code Ann. § 28-1-105, and the 120-day extension pursuant to § 29-26-121(c). Defendants moved to dismiss the second complaint. The trial court denied defendants’ motions. In doing so, the court took “judicial notice” of the practice of some attorneys in the Second Judicial District of providing their adversaries with “blank” authorizations. The court ultimately held that the medical authorizations in the first pre-suit notice were not only HIPAA compliant, but “overly” so. The trial court concluded that, because the first pre-suit notice was, according to the court, valid, the first-filed complaint was timely filed. Upon the request of the defendants, the court granted them permission to pursue an interlocutory appeal pursuant to the provisions of Tenn. R. App. P. 9. We likewise granted defendants permission to file a Rule 9 discretionary appeal. We reverse the judgment of the trial court and dismiss the plaintiff’s suit with full prejudice.

 Sullivan County Court of Appeals 07/05/18
In Re Ashton B. et al.
M2017-00974-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Deanna B. Johnson

The Department of Children’s Services filed a petition for temporary emergency custody under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) after a mother from Alabama who was travelling through Tennessee with her two minor children was arrested on charges including reckless endangerment. The juvenile court determined that the children were dependent and neglected, and the mother appealed for a de novo hearing in circuit court. When an Alabama court entered an order granting custody to the children’s father, the circuit court lost jurisdiction, and the circuit court’s subsequent order finding the children dependent and neglected became null and void. We, therefore, dismiss this appeal.

 Williamson County Court of Appeals 07/03/18
In Re D.N. et al.
E2017-02315-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge J. Michael Sharp

This is a termination of parental rights case. Father/Appellant appeals the trial court’s termination of his parental rights to the minor child on the ground of abandonment by willful failure to visit. Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i). Because there is clear and convincing evidence to support both the ground for termination and the trial court’s finding that termination of Appellant’s parental rights is in the child’s best interest, we affirm and remand.

 Bradley County Court of Appeals 07/03/18
In Re: Philip Roseman 2012 Irrevocable Gift Trust
M2017-01994-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge David Randall Kennedy

Philip Roseman, now deceased, petitioned the trial court to set aside a quitclaim deed, which he admittedly executed, transferring title of his house to his son as trustee of the Philip Roseman 2012 Irrevocable Gift Trust. Philip Roseman averred that he did not have the requisite intent to make a complete gift when he executed the quitclaim deed. The trial court determined that the deed was valid and granted summary judgment to the trustee. We affirm. 

 Davidson County Court of Appeals 07/02/18
Angelina Rae Hubbard Findley, Et Al. v. Richard Odel Hubbard, Et Al.
M2017-01850-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Jeffrey F. Stewart

This appeal arises from a civil action filed in 2016 to establish a constructive trust and/or resulting trust to a share of the $25,500,000 proceeds from a 2005 Tennessee Lottery ticket. The essence of the claim is that the defendants, who are the respective former spouses and mother and father in-law of the plaintiffs, wrongfully deprived the plaintiffs of their rightful shares to the lottery proceeds. The defendants filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss all claims for failure to state a claim on grounds including the statute of limitations. The plaintiffs responded contending, inter alia, that their respective claims did not accrue until 2007 for one of them and 2010 for the other, and that their claims were timely because the “catch all” 10 year statute of limitations in Tenn. Code Ann. § 28-3-110(a)(3) applied to constructive and resulting trusts. The trial court disagreed and dismissed all claims as time barred. We affirm. 

 Marion County Court of Appeals 07/02/18
In Re: Philip Roseman 2012 Irrevocable Gift Trust
M2017-01994-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge David Randall Kennedy

Philip Roseman, now deceased, petitioned the trial court to set aside a quitclaim deed, which he admittedly executed, transferring title of his house to his son as trustee of the Philip Roseman 2012 Irrevocable Gift Trust. Philip Roseman averred that he did not have the requisite intent to make a complete gift when he executed the quitclaim deed. The trial court determined that the deed was valid and granted summary judgment to the trustee. We affirm. 

 Davidson County Court of Appeals 07/02/18
In Re: Estate of Jesse L McCants Sr
E2017-02327-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin, Jr.
Trial Court Judge: Judge Jeffrey M. Atherton

This appeal concerns exceptions that were made to a “final accounting” offered by the personal representative during probate proceedings. After the exceptions were made, an order of reference was entered by the trial court directing the Clerk and Master to hear proof and report her findings. The Clerk and Master determined that a number of expenses incurred by the personal representative in relation to a particular piece of real property should not be allowed because the expenses were made outside the four-month period outlined in Tennessee Code Annotated section 30-2-323. Upon reviewing the Clerk and Master’s report for questions of law arising therefrom, the trial court held that the report had “properly identified” Tennessee Code Annotated section 30-2-323 as limiting what expenses could be charged to the estate. For the reasons stated herein, the trial court’s approval of the Clerk and Master’s report is reversed in part and affirmed in part, and the case is remanded for further proceedings consistent with this Opinion. Specifically, we hold that the trial court erred in disallowing expenses incurred by the personal representative during a period of time when the real property at issue was titled in the name of the estate.

 Hamilton County Court of Appeals 07/02/18
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