Court of Appeals Opinions

Format: 04/16/2021
Format: 04/16/2021
David Nichols v. Metropolitan Nashville Airport Authority
M2020-00593-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This case concerns the civil rights exception to government liability for an employee’s negligent acts under the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 20-29-205(2). The plaintiff filed a complaint against the Metropolitan Nashville Airport Authority, asserting three negligence claims. He alleged that airport officers injured him by using an “arm bar restraint” during an arrest. The trial court dismissed the complaint upon finding the allegations amounted to a claim that the officers violated his civil rights by using excessive force. On appeal, the plaintiff argues that the civil rights exception does not apply because he alleged that the officers negligently assessed the amount of force necessary rather than alleging that they intentionally used excessive force. We agree with the trial court’s determination that the plaintiff’s allegations sound squarely in civil rights and are barred by § 20-29-205(2). Accordingly, we affirm the judgment of the trial court.

Davidson County Court of Appeals 04/15/21
William Maurice West, Jr. v. Julie A. West
E2020-00780-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kristi M. Davis

A decedent’s son brought an action for unlawful detainer against the decedent’s widow in general sessions court in an effort to take possession of property left to the son in the decedent’s will. After the general sessions court dismissed the son’s case, he requested a de novo appeal in circuit court. The son prevailed in the circuit court proceeding, and the widow appealed. Because the widow did not occupy the property pursuant to a landlord-tenant contract, the son does not have a cause of action for unlawful detainer. We, therefore, conclude that the circuit court erred in awarding possession of the property to the son. The judgment of the circuit court is reversed and the case is remanded for entry of an order of dismissal.

Knox County Court of Appeals 04/15/21
Nulife Ventures, LLC v. Avacen, Inc., F/K/A Avacen Medical, Inc.
E2020-01157-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge W. Jeffrey Hollingsworth

The trial court declined to grant injunctive relief to the plaintiff, NuLife Ventures, LLC (“NuLife”), regarding its claims that the defendant, AVACEN, Inc., f/k/a AVACEN Medical, Inc. (“AVACEN”), had been competing with NuLife and soliciting NuLife’s affiliated sellers to do the same in violation of the parties’ written agreements. NuLife has appealed. Determining that NuLife demonstrated sufficient evidence of a threat of irreparable injury warranting injunctive relief, we reverse the trial court’s judgment and remand this matter to the trial court for further proceedings.

Hamilton County Court of Appeals 04/15/21
Candes Prewitt v. Saint Thomas Health
M2020-00858-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amanda Jane McClendon

The plaintiff commenced this action against Saint Thomas Health alleging negligence per se and invasion of privacy through the unauthorized access and disclosure of her confidential medical records relating to the birth of her child at Saint Thomas Midtown Hospital (“Midtown Hospital”) in violation of Tennessee’s Patient’s Privacy Protection Act. Saint Thomas Health responded by filing a motion to dismiss under Tenn. R. Civ. P. 8.01 for failure to plead facts stating a claim with particularity. Specifically, it argued the claims should be dismissed because the complaint failed to address how Saint Thomas Health could be held liable for unauthorized access and use of the plaintiff’s medical information from a separate and distinct entity, Midtown Hospital, when the complaint did not allege that an employee or agent of Saint Thomas Medical engaged in such conduct. Alternatively, relying on Tenn. R. Civ. P. 12.02(6), Saint Thomas Health claimed the action was barred by the statute of limitations under Tenn. Code Ann. § 28-3-104. The trial court granted the motion on both grounds and dismissed all claims. This appeal followed. In her appellate brief, Plaintiff takes issue with the trial court’s application of the statute of limitations but ignores the trial court’s dismissal of her claims under Tenn. R. Civ. P. 8.01. Tennessee Rule of Appellate Procedure 27 provides that the appellant’s brief shall contain “[a] statement of facts, setting forth the facts relevant to the issues presented for review with appropriate references to the record” as well as “an argument” setting forth the contentions of the appellant with respect to the issues presented. Tenn. R. App. P. 27(a)(6) and (7). Additionally, Rule 6(a)(4) of the Rules of the Court of Appeals requires the appellant provide a written argument in regard to each issue on appeal that includes “[a] statement of each determinative fact relied upon with citation to the record where evidence of such fact may be found.” A party’s failure to comply with these rules “waives the issues for review.” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000). Plaintiff’s brief fails to comply with these rules by, inter alia, failing to set forth an argument or facts relevant to the trial court’s dismissal of her complaint under Tenn. R. Civ. P. 8.01, which was an independent basis for dismissal. As a consequence, the issue is waived. Accordingly, we affirm.

Davidson County Court of Appeals 04/14/21
Natasha S. Et Al. v. Madison M.
M2020-00668-COa-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge William R. Goodman, III

Adoptive parents filed a petition to terminate their child’s visitation with her biological grandmother on the grounds that the grandmother violated the terms of the agreed order setting visitation. The trial court terminated the grandmother’s visitation based upon its determination that continued visitation presented a risk of substantial harm to the child. Because the trial court failed to analyze the case under the legal standards applicable to a modification of visitation, we vacate the order of the trial court and remand for the entry of an order with the necessary findings of fact and conclusions of law.

Montgomery County Court of Appeals 04/14/21
Kimberly Anne McGrath v. Melissa Powers Hester
M2019-02147-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor C. K. Smith

This appeal arises from an action regarding life insurance proceeds. As part of a permanent parenting plan, both parents were to insure their respective lives for $300,000 until the child support obligation was completed, with the children named as the sole beneficiaries to the policies and the other parent named as trustee for the benefit of the children. The Trial Court granted summary judgment finding that the children had a vested interest in the life insurance policy but that they were only entitled to the portion of the proceeds equivalent to the remaining child support obligation. With the defendant’s concession on appeal that the children had a vested interest in the life insurance proceeds, that a constructive trust was appropriate, and that the most recent permanent parenting plan was controlling, the only issues before this Court involved the amount of life insurance proceeds to which the children were entitled and attorney’s fees. We modify the amount of the Trial Court’s judgment and hold that the children are entitled to the entire $300,000 life insurance proceeds per the agreed permanent parenting plan. We affirm the Trial Court’s denial of attorney’s fees. Additionally, we deny the mother’s request for an award of attorney’s fees incurred on appeal.

Wilson County Court of Appeals 04/14/21
Lisa Ann Woods Neisler v. Guy Wayne Neisler, III
E2020-00761-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Lawrence Howard Puckett

Father appeals the trial court’s order establishing a permanent parenting plan on solely procedural grounds. We affirm the decision of the trial court and award Mother attorney’s fees incurred in this frivolous appeal.

McMinn County Court of Appeals 04/13/21
Helen Shaw as Administrator for the Estate of John Suttle v. Lawrence B. Gross, MD, et al.
W2019-01448-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Valerie L. Smith

Appellant appeals the dismissal of her health care liability complaint on the basis of the expiration of the applicable statute of limitations. Because Appellant did not substantially comply with Tennessee Code Annotated section 29-26-121(a)(2)(E), she was not entitled to an extension on the statute of limitations. The trial court’s decision that her complaint should be dismissed is affirmed.

Shelby County Court of Appeals 04/13/21
Cora M. Haywood v. Trexis Insurance Corporation, et al.
W2020-00418-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Yolanda R. Kight

Following an automobile accident involving Appellant and Appellee, Appellant filed a civil warrant against Appellee’s automobile insurance carrier in the general sessions court. Later, after the statute of limitations had run, Appellant filed an amended civil warrant adding Appellee as a defendant. Together, Appellee and the insurance carrier filed a joint motion to dismiss, alleging that: (1) the statute of limitations barred Appellant’s claims against Appellee; and (2) the automobile insurance carrier was not a proper party to the lawsuit. The general sessions court granted the motion to dismiss. Thereafter, Appellant appealed the dismissal but did not file a new complaint in the trial court. Appellee and his insurance carrier moved to dismiss, and the trial court granted the motion. Discerning no error, we affirm.

Shelby County Court of Appeals 04/12/21
Romey Green, III v. Kasandra Cherry Green
W2019-01416-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Martha B. Brasfield

In this divorce case, Wife takes issue with how the trial court distributed the possessory interest in the marital home and Husband’s Tennessee Consolidated Retirement System (“TCRS”) benefits. Because the trial court did not assign values to all of the relevant property subject to division, we vacate the judgment and remand the case to the trial court for additional findings.

Tipton County Court of Appeals 04/12/21
Watauga Falls Development v. Rivers End Subdivision P.O.A. et al.
E2021-00269-COA-R3-CV
Authoring Judge: Judge Kristi Davis
Trial Court Judge:

The appellee, Watauga Falls Development (“Watauga”), filed a motion to dismiss this appeal alleging that the dismissal of a prior appeal of this case bars the instant appeal. Because the previous appeal was taken from the same judgment as the instant appeal and the dismissal of the previous appeal was with prejudice, this appeal must be dismissed.

Johnson County Court of Appeals 04/08/21
Erin R. Knight v. Tennessee State Board Of Education
M2020-00770-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Russell T. Perkins

A public school teacher, who allegedly tested positive for alcohol on school premises during school hours, was threatened with revocation of her teaching license by the state board of education. The teacher petitioned the board for declaratory judgment, arguing that the board lacked the authority to promulgate the rule on which the threatened action was based. After a hearing, the administrative law judge concluded that the board did have the power to revoke a teacher’s license for misconduct, and the board subsequently adopted the administrative law judge’s order. The teacher then appealed to the chancery court, as permitted under the UAPA, and the chancery court affirmed the board’s findings. The teacher now appeals the chancery court’s order. We affirm.

Davidson County Court of Appeals 04/08/21
Anthony D. Herron, Jr. v. State of Tennessee
W2019-00595-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Commissioner James A. Hamilton, III

This case involves a breach of contract claim brought against the Tennessee Department of Human Services pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(L). The defendant moved to dismiss for lack of subject matter jurisdiction, claiming the parties never entered into a written agreement. The Tennessee Claims Commission granted the motion and dismissed the complaint for lack of subject matter jurisdiction. We affirm the Commission’s decision and remand.

Court of Appeals 04/07/21
A.W. v. M.N.
W2020-00091-COA-R3-JV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Rachel J. Jackson

This case involves a petition to modify a father’s parenting time. The mother filed the petition against the father, alleging that the father sexually abused their minor child during an unsupervised visitation. After a two-day hearing, the trial court denied the mother’s petition, finding that there was insufficient evidence to show that the father sexually abused the minor child. The mother appealed. We affirm the trial court’s decision and remand.

Tipton County Court of Appeals 04/07/21
Ernest B. Williams IV, PLLC Et Al. v. The Association Of Unit Owners Of The Five Hundred And One Union Building Et Al.
M2019-02114-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Senior Judge Robert E. Lee Davies

This case concerns the termination of a condominium building. At the center of the dispute on appeal is a disagreement over whether the ordered distribution of the proceeds from the sale of the condominium real estate was proper. The Appellant, who was a unit owner in the condominium, takes specific issue with the trial court’s use of a certain appraisal as the basis for a distribution of sale proceeds. The trial court ruled against the Appellant on this issue, holding that the subject appraisal became final because it had not been timely disapproved by unit owners representing at least 25% of the votes in the unit owners’ association as provided in Tennessee Code Annotated section 66-27-318 of the Tennessee Condominium Act of 2008. In holding that the proposed allocation from the appraisal should be used, the trial court also ordered that the Appellant pay certain attorney’s fees and discretionary costs. A request for prejudgment interest against the Appellant, however, was ultimately denied. On appeal, we affirm the trial court’s judgment in all respects.   

Davidson County Court of Appeals 04/07/21
Alice Faye Powers v. Stephen Edwin Powers
M2019-01512-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Suzanne Lockert-Mash

This is an appeal from a contested divorce involving one minor child. The father appeals the trial court’s decision to name the mother as the primary residential parent and its decision to grant the father less than equal parenting time. For the reasons stated herein, we affirm the trial court’s decisions and remand.

Humphreys County Court of Appeals 04/07/21
In Re Greyson D. Et Al.
E2020-00988-COA-R3-PT
Authoring Judge: J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Terry Stevens

A mother appeals the termination of her parental rights on the grounds of severe abuse and failure to manifest a willingness and ability to assume custody and on the determination that termination is in the best interests of her children. Upon our review, we discern no error and affirm the termination.

Roane County Court of Appeals 04/07/21
In Re Estate of Hattie Faye Baker
W2020-00460-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Senior Judge Don R. Ash

The petitioner claims an interest in the estate of the second wife of her uncle, who was originally married to the petitioner’s aunt. Because the property at issue was held by the petitioner’s aunt and uncle as a tenancy by the entireties, the uncle owned the property in fee simple upon the aunt’s death. We conclude that the petitioner’s claim is without merit, and we affirm the decision of the trial court.

McNairy County Court of Appeals 04/06/21
Brenda Naldrett Johnson v. Gary Lee Johnson
E2020-00875-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge John C. Rambo

This case involves an intra-family dispute over a parcel of real property. Because of the profound deficiencies with Appellant’s brief, we decline to reach the merits of this appeal and instead find that Appellant has waived his argument. Thus, we affirm the judgment of the trial court and award Appellee damages, including attorney’s fees incurred on appeal, pursuant to Tennessee Code Annotated section 27-1-122.

Johnson County Court of Appeals 04/06/21
In Re Estate of Juanne Jennings Thompson
E2019-01365-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This consolidated appeal arises from a dispute among various children and grandchildren of B. Ray Thompson, Jr. (“B. Ray Jr.”) and Juanne Jennings Thompson (“Juanne” or together, “Decedents”),1 over the estates of both B. Ray Jr. and Juanne. When three of the Decedents’ children obtained a court order sealing the records for both estates, a different faction of the family filed petitions to intervene in the estate actions and to unseal the records. The Chancery Court for Knox County (the “trial court”) denied the petitions for intervention and left several documents under seal. This appeal followed. We hold that the trial court abused its discretion. The judgment of the trial court is reversed, and the case remanded for further proceedings.

Knox County Court of Appeals 04/06/21
In Re Estate Of B. Ray Thompson, Jr.
E2019-01364-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This consolidated appeal arises from a dispute among various children and grandchildren of B. Ray Thompson, Jr. (“B. Ray Jr.”) and Juanne Jennings Thompson (“Juanne” or together, “Decedents”),1 over the estates of both B. Ray Jr. and Juanne. When three of the Decedents’ children obtained a court order sealing the records for both estates, a different faction of the family filed petitions to intervene in the estate actions and to unseal the records. The Chancery Court for Knox County (the “trial court”) denied the petitions for intervention and left several documents under seal. This appeal followed. We hold that the trial court abused its discretion. The judgment of the trial court is reversed, and the case remanded for further proceedings.

Knox County Court of Appeals 04/06/21
John L. Smith, Jr. v. Giovanni Gonzalez, et al.
W2019-02028-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge James F. Russell

This appeal involves a challenge to the trial court’s dismissal of Plaintiff’s complaint. Specifically, Plaintiff contends that the trial court erred in finding that his complaint was deficient per the signature requirements in Rule 11.01(a) of the Tennessee Rules of Civil Procedure. For the reasons stated herein, we reverse the trial court’s dismissal of Plaintiff’s complaint and conclude it is in compliance with the requirements of Rule 11.01.

Shelby County Court of Appeals 04/01/21
Dennis Harold Ultsch v. HTI Memorial Hospital Corporation
M2020-00341-COA-R9-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This appeal concerns the interplay between the Tennessee Health Care Liability Act (“HCLA”) and the common law on vicarious liability with respect to pre-suit notice in a health care liability claim against the principal only.  We have determined that the provisions of the HCLA take precedence over the common law and that the plaintiff’s claims in this case were timely filed.  Therefore, we reverse the decision of the trial court.

Davidson County Court of Appeals 04/01/21
In Re Estate of Dorothy Jean McMillan
E2020-00413-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

On behalf of the estate of his mother, one son, as substitute personal representative, filed suit against his brother, the previous personal representative, seeking return of funds alleged to be missing from the decedent’s accounts. Upon summary judgment, the trial court found in favor of the defendant, the initial administrator of the estate. We reverse and remand for trial.

Knox County Court of Appeals 04/01/21
Beverly Gardner v. Saint Thomas Midtown Hospital
M2019-02237-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley

A patient filed a health care liability claim against a hospital, asserting the hospital was vicariously liable for injuries she suffered as a result of the anesthesia providers’ conduct.  The hospital moved for summary judgment, arguing that the anesthesia providers were not employed by the hospital and the hospital was, therefore, not liable for the anesthetists’ actions as a matter of law because the statute of limitations had run on the plaintiff’s direct claims against the anesthesia providers by the time the plaintiff filed her complaint against the hospital.  The trial court granted the hospital’s motion and dismissed the plaintiff’s complaint, relying on the common law set forth in Abshure v. Methodist Healthcare-Memphis Hospitals, 325 S.W.3d 98 (Tenn. 2010).  Acknowledging the conflict between provisions of the Tennessee Health Care Liability Act and the common law, we hold that the statute prevails.  Accordingly, we reverse the trial court’s judgment and remand the case for further proceedings.

Davidson County Court of Appeals 04/01/21