Court of Appeals Opinions

Format: 05/23/2020
Format: 05/23/2020
Strategic Acquisitions Group, LLC v. Premier Parking Of Tennessee, LLC
E2019-01631-COA-R3-CV
Authoring Judge: J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Carter Scott Moore

Plaintiff lessor appeals the trial court’s decision to grant summary judgment concerning the interpretation of a lease in favor of the defendant lessee. Discerning no error, we affirm.

Sevier County Court of Appeals 05/22/20
In Re Aryana S.
E2019-01267-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Michael S. Pemberton

Lacy B. and Quentin B. (collectively, “Petitioners”) filed a petition for adoption and to terminate the parental rights of the mother, Morgan S. (“Mother”), to the minor child, Aryana S. (“the Child”). The Trial Court found that Petitioners had proven by clear and convincing evidence that the grounds of abandonment by failure to support and severe child abuse existed for termination of Mother’s parental rights but that termination of her rights was not in the Child’s best interest. Discerning no reversible error, we affirm.

Meigs County Court of Appeals 05/21/20
Bruce Gillam v. Destiny Ballew
E2018-01782-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge M. Nichole Cantrell

This appeal concerns the trial court’s designation of the father as the minor children’s primary residential parent after establishing his paternity. During trial, the court granted the father’s motion in limine to exclude testimony from the mother’s expert witness. The mother appeals the trial court’s evidentiary ruling and the designation of primary residential parent. We affirm the trial court’s decision.

Anderson County Court of Appeals 05/21/20
Tennessee State Bank v. Douglas V. Mashek et al.
E2019-00591-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael Moyers

This case involves a home equity line of credit (“HELOC”) extended to the co-defendant, Douglas V. Mashek, by the plaintiff, Tennessee State Bank (“the Bank”), via a promissory note secured by a deed of trust encumbering real property titled to Mr. Mashek and acquired during Mr. Mashek’s marriage to the co-defendant, Deborah A. Mashek. When the Bank subsequently attempted to foreclose on the property, Mr. Mashek objected based on alterations to the deed of trust and a notice of right of rescission that had allegedly occurred after the deed’s execution and prior to recordation. The Bank filed a complaint against the Masheks in the trial court, seeking declaratory judgment that the recorded deed of trust was valid and enforceable, or in the alternative, reformation of the executed deed of trust to conform to the recorded deed. The Bank also named the title company involved in the loan transaction as a third-party defendant, alleging the title company’s liability in the event that the trial court found the deed of trust, either as executed or as recorded, to be unenforceable.1 The Masheks, proceeding pro se, filed various pleadings in response to the complaint, including a counterclaim against the Bank, alleging, inter alia, common law fraud, breach of fiduciary duty, negligence, equitable estoppel, slander of title, statutory estoppel, wrongful foreclosure, and unclean hands. Upon the Bank’s motion for partial summary judgment and following a hearing, the trial court granted the motion as to reformation of the executed deed of trust, declaring the deed, as reformed, to be enforceable and finding that the Bank was entitled to pursue foreclosure proceedings. The trial court found in part that the Bank or its agent(s) had employed “procedurally questionable and perhaps fraudulent” methods that were “at the very least negligent and potentially criminal in nature” to correct mistakes in the executed deed of trust and to, without authorization, affix the Masheks’ initials over a change in a date of signature on the notice of right of rescission. However, having also found that the mistakes corrected were mutual and amounted to scrivener’s errors that were not intended to and did not prejudice the Masheks, the trial court granted the Bank’s request to reform the executed deed of trust. The trial court 1 The title company is not participating in this appeal. 05/21/2020 2 awarded to the Bank a monetary judgment against Mr. Mashek, as the sole debtor named in the loan documents, in the amount of $294,566.39 for unpaid principal and interest. The trial court also awarded to the Bank reasonable attorney’s fees and expenses in the amount of $8,795.84, limiting such fees to those that “would be expected in an ordinary foreclosure action.” The trial court dismissed the Masheks’ various counterclaims and subsequently denied the Bank’s motion to alter or amend language in the judgment. The Masheks have appealed, and the Bank has raised issues regarding the trial court’s denial of its request to alter the court’s findings and denial of its request for additional attorney’s fees and expenses. Having determined that the Bank or its agent(s) made a unilateral mistake in materially altering the deed of trust after the document’s execution and then recording the altered deed of trust with the unilateral mistake incorporated, we reverse the trial court’s judgment as to the reformation and enforceability of the executed deed of trust. Having also determined that the action of the Bank or its agent(s) in affixing the Masheks’ initials over the altered date on the rescission notice without authorization or notice constituted gross negligence, we reverse the trial court’s finding that no gross negligence occurred but affirm the trial court’s implied finding that the Bank could not succeed in its request to reform the effective date of the rescission notice. However, concluding that no alterations were made to the promissory note, we further determine that the trial court properly found Mr. Mashek to be liable for the unpaid principal and interest due under the terms of the note. We therefore affirm the trial court’s $294,566.39 monetary judgment against Mr. Mashek. We vacate the trial court’s award of attorney’s fees and expenses to the Bank and remand for a hearing to determine the amount of attorney’s fees and expenses incurred by the Bank solely to obtain a judgment based on the promissory note. We affirm the trial court’s judgment in all other respects, including its denial of the Bank’s request for additional attorney’s fees and expenses and its denial of the Bank’s motion to alter or amend the language of the judgment. Finally, we clarify that no evidence has been presented in this case to support a finding of the intent necessary for forgery as a cause of action against the Bank or its agent(s).

Knox County Court of Appeals 05/21/20
In Re: Ava M., Et Al.
E2019-01675-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Thomas J. Wright

This appeal concerns the termination of a mother’s parental rights. Janae M. (“Mother”) is the mother of Ava M., Camille W., and Michael W., III (“the Children”).1 Tommy G. (“Grandfather”) and Glenda G. (“Grandmother”) (“Grandparents,” collectively) are the Children’s paternal grandparents. When Mother was incarcerated in 2014, Grandparents received custody of the Children. A few years later, Grandparents filed a petition in the Circuit Court for Hamblen County (“the Trial Court”) seeking to terminate Mother’s parental rights. After a trial, the Trial Court found that the grounds of failure to support and failure to manifest an ability and willingness to assume custody were proven against Mother, and that termination of Mother’s parental rights is in the Children’s best interest. Mother appeals arguing, among other things, that the Trial Court wrongly applied two different four-month periods for the ground of failure to support. Grandparents raise their own separate issue of whether the Trial Court erred in not finding the additional ground of failure to visit. We hold, inter alia, that although the Trial Court erred in applying two different four-month determinative periods for failure to support, the error was harmless in this case. We affirm.

Hamblen County Court of Appeals 05/20/20
Penny Wilson v. Weigel Stores, Inc.
E2019-00605-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge Kristi M. Davis

This is a premises liability action in which the plaintiff filed suit against the defendant convenience store for personal injuries resulting from her slip and fall near the gasoline pump. The trial court granted the defendant’s motion for summary judgment, holding that the plaintiff failed to establish that the defendant caused or created or should have discovered with reasonable diligence the condition that caused her fall. The plaintiff appeals. We reverse the trial court’s decision. We remand this case for proceedings consistent with this opinion.

Knox County Court of Appeals 05/19/20
Deborah Christine Moore v. Larry Gene Moore
E2019-00503-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Gregory S. McMillan

The parties entered into a mediated agreement, which was incorporated into their divorce judgment. Following the entry of the judgment, Husband filed a timely motion to alter or amend the parties’ agreement, alleging a mutual mistake. The trial court granted the motion and reformed the agreement to impose additional obligations on Wife. Following our review, we reverse.

Knox County Court of Appeals 05/15/20
Sandra Ann Pippin v. Christina Michelle Pippin (Dissent)
M2018-00376-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge John Thomas Gwin

This opinion is stuck in the past. In my opinion, Obergefell v. Hodges, ___ U.S. ___, 135 S. Ct. 2584 (2015), altered the way we must interpret many statutes relating to marriage and parentage. In Obergefell, the United State Supreme Court legalized samesex marriage in the entire United States. It has met with resistance, just like Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), and other United States Supreme Court cases that required society to alter its thinking about its institutions.

Wilson County Court of Appeals 05/14/20
Sandra Ann Pippin v. Christina Michelle Pippin
M2018-00376-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge John Thomas Gwin

The non-biological parent of a child born by artificial insemination to a woman with whom the non-biological parent had maintained a long term relationship and who had lived with the child, holding herself out as one of the child’s parents, filed a petition to establish her parentage of the child and to set a parenting schedule; the petition was dismissed on the basis that she lacked standing; the trial court also awarded the petitioner visitation with the child. Upon our review, we affirm the dismissal of the petition and vacate the order setting visitation.

Wilson County Court of Appeals 05/14/20
Tinin Contracting Company, Inc., et al v. Enviroworks, Inc.
M2019-00763-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Russell Parkes

This is a case involving the breach of an oral contract to provide excavation work and materials for an airport construction project in Bolivar, Tennessee. The trial court awarded $128,058.09 in favor of the subcontractor against the project’s general contractor. On appeal, the general contractor argued that the oral contract existing between the parties included the subcontractor sharing in certain surveying and testing costs incurred on its scope of work on the project, that it was entitled to a credit for these costs, and that, ultimately, the trial court miscalculated its award of damages. We affirm the trial court’s finding that there was no agreement existing between the parties for the subcontractor to incur any surveying or testing costs and that, as a result, the general contractor was not entitled to a credit for these expenses against the balance of the moneys it owed the subcontractor. However, because the order contains insufficient findings of fact and conclusions of law as to why the trial court included an additional $5,593.40 in the final judgment beyond the damages sought in the complaint, we vacate that portion of the final judgment and remand the case to the trial court with instructions to reduce the judgment against the general contractor from $128,058.09 to $122,464.69.

Wayne County Court of Appeals 05/14/20
Alysia Reese McCracken Hancock v. BJR Enterprises, LLC, Et Al. - Concurring
E2019-01158-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Deborah C. Stevens

I concur in the majority’s decision to affirm the Trial Court. I agree the authorization form was so insufficient as not to allow the medical providers to obtain medical records from the other providers. I, however, continue to adhere to the position as stated in my dissent in Parks v. Walker, 585 S.W.3d 895, 900 (Tenn. Ct. App. 2018) that if a medical authorization form along with other information provided to the healthcare providers is sufficient to enable them to obtain a plaintiff’s records simply by asking, then there is substantial compliance with Tenn. Code Ann. § 29-26-121(a)(2)(E).

Knox County Court of Appeals 05/14/20
Alysia Reese McCracken Hancock v. BJR Enterprises, LLC, Et Al.
E2019-01158-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Deborah C. Stevens

This is a healthcare liability action. In her medical authorizations, the plaintiff left blank lines as to who was authorized to receive the patient’s records from the medical providers and others receiving notice. The defendants claimed that the authorizations were not HIPAA1-compliant, as required by Tennessee Code Annotated section 29-26- 121(a)(2)(E). The plaintiff responded that by construing the pre-suit notice packet materials as one cohesive document, all of the elements required by the statute are present and that the defendants had at their disposal all of the information necessary to obtain the patient’s medical records. The plaintiff further asserted that the failure of the defendants to attempt to obtain the records precludes any demonstration of prejudice to them. The trial court determined that the plaintiff’s statutory notice failed to substantially comply with the requirements of Tennessee Code Annotated section 29-26-121. The plaintiff appeals. We affirm.

Knox County Court of Appeals 05/14/20
Tiffany C. Roby v. NationStar Mortgage, LLC, et al.
W2019-00730-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Mary L. Wagner

This appeal stems from a dispute involving real property that Plaintiff acquired online. The property was previously purchased in a foreclosure action by one of the defendants. The previous owners were holdover occupants of the property. After purchasing the property, Plaintiff signed a real estate purchase contract and closed approximately two and one-half months thereafter. Due to delays in litigation involving the holdover occupants, Plaintiff was unable to take possession of the property for nearly two years after purchasing it online. In this case, Plaintiff brought suit against NationStar Mortgage, LLC; U.S. Bank, N.A.; Auction.com, LLC; and WFG National Title Insurance Company on several contract-related claims and alleged violations of the Tennessee Consumer Protection Act. Auction.com and WFG were dismissed prior to trial. The remaining defendants moved for summary judgment on all of the claims, which the trial court granted in part and denied in part. A jury trial was held on the remaining claims. At the close of Plaintiff’s proof at trial, the defendants moved for a directed verdict, which the court again granted in part and denied in part. One claim under the Tennessee Consumer Protection Act went to the jury, which found in favor of Plaintiff and awarded a verdict of $250,000. The parties filed separate post-trial motions. The trial court granted the defendants’ motion for judgment notwithstanding the verdict and denied the other requests of the parties or found them to be moot. For the reasons stated herein, we affirm the decisions of the trial court and remand.

Shelby County Court of Appeals 05/11/20
Connie Ellis v. Mike K. Modi
M2019-01161-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Following a jury trial, the plaintiff was awarded a substantial verdict against the defendant for both compensatory and punitive damages. After the defendant’s motion for a new trial was denied, he appealed to this Court. The defendant now argues, among other things, that the trial court erroneously excluded his expert psychologist from testifying at trial and, further, that the trial court erroneously allowed certain prejudicial evidence against him to be admitted. For the reasons stated herein, we vacate the jury’s verdict and the trial court’s judgment entered in this matter and remand the case for a new trial.

Davidson County Court of Appeals 05/11/20
Regions Bank v. Nathan I. Prager - Dissent
W2019-00782-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

I again find myself in disagreement from my learned colleagues as to the application of res judicata. Because I cannot conclude that Defendant met its burden to show all the elements of the defense, I respectfully dissent from the majority opinion.

Shelby County Court of Appeals 05/11/20
Regions Bank v. Nathan I. Prager
W2019-00782-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James F. Russell

This appeal arose from a dispute involving an unpaid promissory note. In May 2014, Plaintiff filed its first suit for breach of contract. The trial court dismissed the case under Rule 41.02 for failure to prosecute. Opposing the dismissal, Plaintiff filed a Motion to Reconsider. The trial court denied Plaintiff’s motion and stated the dismissal was neither “with nor without prejudice” and that Plaintiff was “welcome to refile.” Relying on the trial court’s statements, Plaintiff declined to appeal and filed a second action. Defendant filed a Motion to Dismiss the second suit, arguing it is barred by res judicata. The trial court granted Defendant’s motion and denied Plaintiff’s subsequent Motion to Reconsider. We agree with the trial court’s dismissal of this suit and subsequent denial of Plaintiff’s Motion to Reconsider. We therefore affirm the circuit court’s decision and remand.

Shelby County Court of Appeals 05/11/20
Ronald Ledford, Et Al. v. John Ben Sneed, Et Al.
E2018-00904-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge J. Michael Sharp

This appeal concerns the trial court’s grant of a directed verdict in favor of the plaintiffs concerning their claim for surreptitious recording of their conversations, namely wiretapping. We affirm.

McMinn County Court of Appeals 05/08/20
In Re Eli H.
E2019-01028-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Elizabeth C. Asbury

The grandparents of a minor child filed a petition seeking to terminate the parental rights of the child’s biological mother. Following a bench trial, the trial court terminated the mother’s parental rights, determining that clear and convincing evidence existed to establish two statutory grounds for termination: (1) abandonment by failure to visit and (2) failure to manifest an ability and willingness to assume legal and physical custody of or financial responsibility for the child. The trial court also determined by clear and convincing evidence that termination was in the child’s best interest. The mother has appealed. Following our thorough review of the record, we modify the trial court’s judgment to include a determination of clear and convincing evidence of the additional statutory ground of persistence of the conditions leading to the child’s removal from the mother’s custody. We affirm the trial court’s judgment in all other respects, including the termination of the mother’s parental rights.

Claiborne County Court of Appeals 05/08/20
Downey Oil Company, Inc., Et Al. v. Slyreal Properties, Inc., Et Al.
E2019-01169-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge John F. Weaver

This appeal concerns a dispute over an easement agreement (“the Agreement”). In 1995, Samir F. Mishu and Faud E. Mishu, d/b/a M&M Investments (“M&M”), conveyed the eastern parcel of certain land it owned to Excellent Properties, L.P. (“Excellent”). The parties also entered into the Agreement, which provided for a future easement that would connect their properties. The easement’s precise location and dimensions were undefined. Years passed, both properties put in curbing without cuts on their boundaries, and the easement went unutilized. In 2015, Downey Oil Company, Inc. (“Downey”), then lessee of the western parcel, sought for the first time to construct and use the easement. Slyreal Properties, Inc. (“Slyreal”), then owner of the eastern parcel, refused. Downey and M&M (“Plaintiffs,” collectively) brought suit against Slyreal, Pinnacle Bank and Hugh Queener, trustee (“Defendants,” collectively) in the Chancery Court for Knox County (“the Trial Court”). Defendants asserted adverse possession and abandonment. After a trial, the Trial Court ruled for Defendants. Plaintiffs appeal. We find and hold, inter alia, that Defendants failed to prove by clear and convincing evidence that the easement was extinguished by adverse possession or that it was abandoned by Plaintiffs. We reverse the judgment of the Trial Court, and remand for a determination of the easement’s location and dimensions.

Knox County Court of Appeals 05/07/20
Joel Diemoz, et al. v. Eric Huneycutt, et al.
M2018-0116-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ross H. Hicks

The plaintiffs in this construction defect action appeal the trial court’s dismissal of their case with prejudice for failure to comply with the court’s orders. They also allege error concerning the trial court’s refusal to recuse itself, the disqualification of counsel, and the decision to report counsel’s conduct to the Tennessee Board of Professional Responsibility. We vacate the order of dismissal with prejudice and direct entry of dismissal without prejudice. We affirm the court’s order in all other respects.

Montgomery County Court of Appeals 05/06/20
Tammy Combs Et Al. v. Leslie Milligan, M.D. Et Al.
E2019-00485-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Rex H. Ogle

This appeal concerns healthcare liability. A husband and wife filed an action against six medical care providers alleging negligence in the medical treatment of the wife. The defendants moved to dismiss the suit on the basis of noncompliance with Tennessee Code Annotated section 29-26-121(a)(2)(E), which requires that pre-suit notice include a HIPAA1 compliant medical authorization allowing a healthcare provider receiving a notice to obtain complete medical records from every other provider that is sent a notice. The plaintiffs’ authorization allowed each provider to disclose complete medical records to each named provider but did not state specifically that each provider could obtain records from each other. The trial court held that the authorization failed to substantially comply with the statute’s requirements. The plaintiffs appealed. We hold that Plaintiffs’ method of permitting Defendants access to Mrs. Combs’s medical records substantially complied with Tennessee Code Annotated section 29-26-121(a)(2)E). We reverse the judgment of the trial court.

Jefferson County Court of Appeals 05/01/20
Daniel Eric Cobble v. Erlanger Hospital
E2019-00417-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kyle E. Hedrick

This pro se appellant appeals the trial court’s dismissal of his lawsuit. We affirm.

Hamilton County Court of Appeals 04/30/20
In Re Isabella W. - Concur and Dissent
E2019-01346-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Timothy E. Irwin

concur with the majority’s opinion except as to the holding that the ground as to the “failure to manifest an ability and willingness to assume custody” was not satisfied. This Court is split on this issue, and I agree with the line of cases that hold that the parent has to be able and willing rather than just either of the two. See In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *12-14 (Tenn. Ct. App. June 20, 2018). I concur in all the rest of the majority’s opinion including termination of the father’s parental rights. Given this Court’s clear and irreconcilable split as to this question of statutory interpretation, I request the Tennessee Supreme Court accept and resolve this issue once it has the opportunity to do so.

Knox County Court of Appeals 04/29/20
In Re Isabella W.
E2019-01346-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Timothy E. Irwin

A father appeals the termination of his parental rights to his daughter, asserting that the evidence did not establish the three grounds upon which termination was based and that termination was in his child’s best interest. He also argues that he is entitled to a new trial due to ineffective assistance of his trial counsel, the denial of a continuance in order that he could represent himself, and that the court erred in not finding that he was competent to stand trial. Upon our thorough review, we conclude that the father received fundamentally fair procedures; that he waived the issues related to the continuance and his competence to participate in the trial; we reverse the court’s holding with respect to one ground, affirm the rest, and affirm the termination of his rights.

Knox County Court of Appeals 04/29/20
In Re Boston G.
M2019-00393-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge William M. Locke

A mother and father appeal the termination of their parental rights to their child. The juvenile court determined that there was clear and convincing evidence of five grounds for terminating the father’s parental rights and seven grounds for terminating the mother’s parental rights. The court also determined that there was clear and convincing evidence that termination of the mother’s and the father’s parental rights was in the child’s best interest. Upon our review, of the grounds actually alleged for terminating parental rights, only two against the father were supported by clear and convincing evidence. And five of the six grounds alleged for terminating the mother’s parental rights were supported by clear and convincing evidence. We also conclude that termination of both parent’s rights was in the child’s best interest. So we affirm the termination of the mother’s and the father’s parental rights.

Warren County Court of Appeals 04/29/20