COURT OF APPEALS OPINIONS

Abigail Lynn Sevigny v. Warren Maxwell Sevigny
M2022-00953-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Philip R. Robinson

In this post-divorce dispute, the wife filed a petition for criminal contempt. After testimony was heard, the parties announced in broad terms that they had reached a settlement. Thereafter, the parties could not agree on the terms of the settlement. At a hearing on the husband’s motion requesting approval of his proposed order, the court dismissed the petition on grounds of double jeopardy. We have determined that the trial court erred in dismissing the case and remand for further proceedings.

In Re Trust of Nellie B. Fontanella
M2022-01822-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joe Thompson

This is an appeal from an order requiring a trustee to provide an updated accounting to a beneficiary at the beneficiary’s expense. Because the order does not resolve all of the claims between the parties, we dismiss the appeal for lack of a final judgment.

Knox Community Development Corporation v. William G. Mitchell
E2023-00714-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Charles A. Cerny Jr.

This is an appeal from a final order entered on January 17, 2023, in the Knox County
General Sessions Court (“Trial Court”). The Notice of Appeal filed by the appellant
incorrectly sought review in this Court instead of the circuit court. Furthermore, the Notice
of Appeal was not filed until May 12, 2023, more than ten days after entry of the Trial
Court’s judgment from which the appellant seeks to appeal. Because the Notice of Appeal
was untimely and was filed in the wrong court, we have no jurisdiction to consider this
appeal. We also determine that transferring the appeal to the correct court would be futile.

John Benbow v. L&S Family Entertainment, LLC, Et Al.
M2022-00491-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Joe Thompson

This case concerns claims of negligence against several people and entities for allegedly serving alcohol to and/or failing to protect a 20-year-old man who died in a car accident while intoxicated. John D. Benbow (“Plaintiff”), individually and as next of kin to his son, Jacob N. Benbow, deceased, filed a wrongful death action in the Sumner County Circuit Court (“the Trial Court”) against the defendants, L&S Family Entertainment, LLC d/b/a Strike & Spare (“L&S”); JPZ, LLC d/b/a Silverado Rivergate Sports Bar & Grill (“Silverado’s”); 1 Rancho Cantina, LLC (“Rancho Cantina”); Jody D. McCutchen; Brandi McCutchen; and Brenon D. McCutchen (“the McCutchens”). Certain of the defendants filed motions for summary judgment. The Trial Court granted summary judgment for Rancho Cantina, L&S, Brandi, and Jody. 2 However, the Trial Court denied summary judgment for Brenon.3 Plaintiff appeals. We affirm the Trial Court’s grant of summary judgment to Jody because Plaintiff failed to create any genuine issue of material fact that Jody took charge of Jacob. However, we reverse the Trial Court’s grants of summary judgment to Rancho Cantina, L&S, and Brandi, as genuine issues of material fact exist with respect to Plaintiff’s claims against those parties. We observe that the standard is comparative fault, not contributory negligence. Whether Jacob was at least 50% at fault for comparative fault purposes is a question not properly resolvable at this summary judgment stage under the facts of this case. We thus affirm, in part, and reverse, in part. We remand to the Trial Court for further proceedings consistent with this Opinion.

Mike Snodgrass v. AHA Mechanical Contractors, LLC
W2022-00105-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert Samual Weiss

Plaintiff, Defendant’s former employee, filed suit under the Fair Labor Standards Act
alleging that he had suffered a loss of overtime wages. The trial court entered a judgment
denying Plaintiff any recovery. For the reasons stated herein, we conclude that the trial
court’s findings are insufficient. Although under the specific circumstances presented here
we would generally remand the case to allow the trial court an opportunity to more clearly
state its findings, as well as offer specific findings and conclusions in reference to the
appropriate legal standards, the judge who tried this case is no longer on the bench.
Accordingly, we are compelled to vacate the judgment and remand for a new trial on the
question of whether Defendant improperly denied Plaintiff overtime pay.

Clayton D. Richards v. Vanderbilt University Medical Center
M2022-00597-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Thomas W. Brothers

This appeal concerns a complaint for health care liability. Although Tennessee Code Annotated section 29-26-121(c) provides for an extension of the applicable statutes of limitations in health care liability actions when pre-suit notice is given, it also specifies that “[i]n no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for health care liability, nor shall more than one (1) extension be applicable to any [health care] provider.” After a prior lawsuit was voluntarily dismissed without prejudice, Plaintiff provided new pre-suit notice and refiled in reliance on the Tennessee saving statute and an extension under Tennessee Code Annotated section 29-26-121(c). The trial court dismissed the refiled complaint with prejudice, however, holding, among other things, that Plaintiff could not utilize the statutory extension in his refiled action because he had already utilized a statutory extension in the first lawsuit. For the reasons discussed herein, we affirm the trial court’s dismissal of Plaintiff’s lawsuit.

Clayton D. Richards v. Vanderbilt University Medical Center - Concurring
M2022-00597-COA-R3-CV
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Judge Thomas W. Brothers

Although I ultimately agree with the majority’s conclusion, I write this separate concurrence to express my concerns with the result in this case.

In Re Paisley J.
W2022-01059-COA-R3- PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor William C. Cole

In this case involving termination of the father’s parental rights to his children, the trial
court found by clear and convincing evidence three statutory grounds for termination of
the father’s parental rights to all three of his children, and the court found by clear and
convincing evidence additional putative father grounds for termination of his parental
rights to his youngest child only. The trial court further determined that clear and
convincing evidence established that termination of the father’s parental rights was in the
children’s best interest. The father has appealed. Having determined that the trial court
found two statutory grounds, abandonment by failure to visit and abandonment by failure
to support, that were not included in the petitioners’ original or amended petitions, we
reverse the court’s findings on these two grounds. We must also reverse the four statutory
grounds applicable to a putative father inasmuch as the petitioners did not present evidence
to establish that the father qualified as a putative father. We affirm the trial court’s
judgment in all other respects, including termination of the father’s parental rights based
upon the remaining ground and best interest analysis.

In Re Zayda C.
E2022-01483-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kenlyn Foster

This action involves the termination of a father’s parental rights to his child. Following a
bench trial, the court found that clear and convincing evidence existed to establish the
following statutory grounds of termination: (1) abandonment by wanton disregard; (2)
incarceration for a period of ten or more years; and (3) the persistence of conditions which
led to removal. The court also found that termination was in the best interest of the child.
We affirm the trial court’s ultimate termination decision.

Travis G. Bumbalough v. Rachel M. Hall
M2022-01003-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Steven D. Qualls

This appeal arises from a petition to establish parentage and a parenting plan pursuant to Tennessee Code Annotated § 36–2–311 for a child born out of wedlock. In finding that the statutory best interest factors set forth in Tennessee Code Annotated § 36-6-106(a) favored the father, the trial court designated the father as the primary residential parent of the parties’ minor child and ruled that the child would live with the father in Tennessee during the school year and spend the majority of the summers and holidays with Mother in Texas. The mother appeals. We affirm.

John Mark Bowers v. Carlton J. Ditto, Et Al.
E2022-01307-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Jeffrey M. Atherton

In this quiet title action, the pro se defendant appeals the trial court’s decision to permit
constructive service by publication in lieu of personal service, pursuant to Tennessee Code
Annotated section 21-1-203(a)(2). Because Plaintiff met the statutory requirements of
service by publication and because constructive service by publication was effective to
establish the trial court’s personal jurisdiction over Defendant, we affirm.

Kimberly Ann King v. Jackie Lee King, Jr.
E2023-00504-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Sharp

This is an appeal from a final order entered on March 6, 2023. The Notice of Appeal was
not filed with the Appellate Court Clerk until April 6, 2023, more than thirty days from the
date of entry of the order from which the appellant is seeking to appeal. Because the Notice
of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

Hayes Family Partnership ET AL. v. Tennessee Farmers Mutual Insurance Company
W2022-01209-COA-R9-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Senior Judge Roy B. Morgan, Jr.

This is an insurance policy coverage dispute between Tennessee Farmers Mutual Insurance
Company (“Tennessee Farmers”) and its insured, Hayes Family Partnership (“Hayes”). At
issue is property damage to a commercial building owned by Hayes and insured by
Tennessee Farmers. The damage, which was in excess of two hundred thousand dollars,
was caused by a third-party tortfeasor, George Hardey, who drove his vehicle into the
insured building. Shortly after the accident and without the knowledge or consent of
Tennessee Farmers, Hayes executed a release of all claims against Hardey and his insurer,
Allstate Property & Casualty Company (“Allstate”), in consideration for the $25,000 policy
limits paid by Allstate. After Hayes submitted its claim to Tennessee Farmers for benefits
under its policy, Tennessee Farmers denied Hayes’ claim based on Hayes’ violations of
material provisions in the insurance policy, including the provision that required Hayes to
“do everything necessary to secure [Tennessee Farmers’] rights” and “do nothing after loss
to impair them.” The trial court denied Tennessee Farmers’ Motion for Summary Judgment
based, in part, on the “made whole” doctrine, and it ruled that “the release executed by
Hayes in favor of the third-party tortfeasor George Hardey does not foreclose Hayes’ right
to pursue recovery from Tennessee Farmers.” The trial court also reasoned that Tennessee
Farmers may not avoid coverage “on the basis of breach of the insurance policy condition
that its insured must do everything necessary to secure its rights and nothing to impair those
rights, and Hayes[’] release of Hardey.” The trial court then granted Tennessee Farmers’
motion for permission to file an interlocutory appeal, which we also granted. The
dispositive issue on appeal is whether Hayes forfeited its right to coverage under the
Tennessee Farmers’ policy by, inter alia, releasing all of Hayes’ claims against the thirdparty
tortfeasor and his insurance company without the knowledge or consent of Tennessee
Farmers. We have determined that Hayes materially breached the insurance policy by
releasing the third-party tortfeasor and his insurer from liability without the consent of Tennessee Farmers; therefore, Tennessee Farmers was entitled to summary judgment as a
matter of law. Accordingly, we reverse the decision of the trial court and remand with
instructions to summarily dismiss the complaint.

State of Tennessee Ex Rel. Herbert H. Slatery, III, Attorney General and Reporter v. LLPS, Inc., Et Al.
M2022-00214-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This is an appeal from a summary judgment dismissal entered in favor of all defendants in a civil enforcement action involving violations of the Tennessee Consumer Protection Act and the Government Imposters and Deceptive Advertising Act. We vacate the dismissal and remand for further proceedings consistent with this opinion.

Adam T. Huffstutter v. Metropolitan Historical Zoning Commission of the Metropolitan Government of Nashville and Davidson County
M2022-00850-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Russel T. Perkins

The appellant is a property owner who sought review of a decision by the Metropolitan Historic Zoning Commission by filing a petition for writ of certiorari in chancery court. The chancery court affirmed the decision of the Historic Zoning Commission. The appellant property owner appeals. We affirm.

David L. Richman, Et Al. v. Joshua Debity, Et Al.
E2022-00908-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Robert Lowell Headrick

This case began with the filing of a “Civil Warrant Restraining Order” in general sessions
court. The defendants then filed a petition to dismiss pursuant to the Tennessee Public
Participation Act, Tenn. Code Ann. § 20-17-101, et seq. The plaintiffs filed a response,
asking the court to deny the TPPA petition to dismiss. After an evidentiary hearing, the
trial court entered an order denying the defendants’ TPPA petition for reasons set forth in
an attached transcript. We vacate the trial court’s order and remand for the trial court to
enter an order setting forth the reason for the trial court’s decision.

Eric Emory Edwards v. Dallis Leeann Edwards
M2022-00614-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge J. Mark Rogers

In this post-divorce action, the trial court modified the permanent parenting plan to provide the father with equal co-parenting time after the father and the mother had, by oral agreement, lived by an alternate plan for approximately sixteen months during the COVID19 pandemic in an effort to adapt to their child’s virtual education from home. The mother has appealed, arguing that the trial court erred by finding a material change in circumstance affecting the child’s best interest and by determining that modification of the parenting plan was in the child’s best interest. Both parties have requested attorney’s fees on appeal. Discerning no reversible error, we affirm. We decline to award attorney’s fees to either party.

In Re A.H. Et Al.
M2022-01066-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Michael Wayne Collins

This is a dependency and neglect case predicated on an allegation of severe abuse. The juvenile court adjudicated the children dependent and neglected and found that one of the children had been subject to severe child abuse at the hands of the children’s father. The father appealed to circuit court. After a de novo hearing, the circuit court found the allegations of severe abuse were not substantiated by clear and convincing evidence and declined to find the children dependent and neglected. The Department of Children’s Services, the children’s guardian ad litem, and the children’s mother appeal, arguing that the circuit court erred in concluding that the evidence of severe abuse was not clear and convincing. Based on our review of the entire record, we find there was not clear and convincing evidence to support a finding of severe abuse. Therefore, we affirm the trial court.

In Re Kenneth D.
M2022-01466-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Larry B. Stanley, Jr.

In this case involving termination of the father’s parental rights to his child upon a petition filed by the child’s mother and stepfather, the trial court determined that five statutory grounds for termination had been proven by clear and convincing evidence. The trial court further determined that clear and convincing evidence demonstrated that termination of the father’s parental rights was in the child’s best interest. Following the father’s initial appeal, this Court vacated the trial court’s judgment and remanded for entry of specific findings of fact and conclusions of law pursuant to Tennessee Code Annotated § 36-1-113(k). On remand, the trial court entered a judgment confirming its prior determinations with added specific findings and conclusions. The father has again appealed. Discerning no reversible error, we affirm.

Shatyra Johnson v. Romello Love
W2022-00293-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Jerry Stokes

The Appellant challenges the circuit court’s grant of an order of protection, asserting that
the evidence preponderates against the finding that the Appellant stalked the Appellee.
Because the order of protection has expired by its own terms, we dismiss the appeal as
moot.

Marshall Chism v. Romello Love
W2022-00294-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Jerry Stokes

The Appellant challenges the circuit court’s grant of an order of protection, asserting that
the evidence preponderates against the finding that the Appellant stalked the Appellee.
Because the order of protection has expired by its own terms, we dismiss the appeal as
moot.

Charter Communications Operating, LLC v. Madison County, et al.
W2022-01025-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Senior Judge Robert E. Lee Davies

This appeal involves a bid awarded by a county finance department and upheld by the
county’s finance committee after a bid protest hearing. One of the service providers whose
bid was not selected filed a petition for common law writ of certiorari in chancery court.
After reviewing the administrative record, the chancery court concluded that the finance
committee’s decision was arbitrary and capricious and unsupported by material evidence
and remanded for the county to rebid the contract. We reverse and remand for further
proceedings.

Blue Water Bay at Center Hill, LLC Et Al. v. Larry J. Hasty Et Al.
M2020-01336-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Deanna B. Johnson

This appeal concerns the enforceability of a promissory note and a coguarantor’s right to seek contribution from another guarantor. The note and guaranties were assigned several times and, at one point, held by the coguarantor. On a motion for summary judgment, the trial court concluded on the undisputed facts that the promissory note had been discharged and that there was no right to contribution. We conclude that the promissory note was not discharged but agree that there was no right to contribution.

Kim Brown v. Shelby County Schools
W2022-00123-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor JoeDae L. Jenkins

This appeal involves the termination of a tenured teacher for the cause of inefficiency.
After receiving a written charge recommending his dismissal, the teacher requested a
tenure hearing before a hearing officer, who found that there was substantial evidence to
support the charge of inefficiency and that there was just cause for termination. The teacher
appealed, the board of education voted to sustain the decision of the hearing officer, and
the teacher was terminated. The teacher petitioned for judicial review of the decision in
the chancery court. The chancery court reversed and reinstated the teacher with back pay.
The school system appeals. We reverse.

In Re Leah T.
M2022-00839-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge J. Mark Rogers

In this case involving a petition to terminate the mother’s parental rights to her child and to allow the petitioners to adopt the child, the trial court determined that three statutory grounds for termination had been proven by clear and convincing evidence. The trial court further determined that the petitioners had provided clear and convincing evidence that termination of the mother’s parental rights was in the child’s best interest. The mother has appealed the best interest determination. Upon our review, we affirm the trial court’s finding as to the statutory grounds of abandonment through failure to support, abandonment through failure to visit, and severe abuse of the child’s sibling. However, having determined that under the facts of this case, the trial court erred in applying the statutory best interest factors applicable to the initial termination petition rather than those applicable to the amended petition, we reverse the trial court’s best interest finding and remand for reconsideration applying the amended best interest factors contained in Tennessee Code Annotated § 36-1-113(i) (Supp. 2022).