Court of Appeals Opinions

Format: 10/22/2019
Format: 10/22/2019
In Re Janiyah J. Et Al.
E2018-02006-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert D. Philyaw

This action involves the termination of a father’s parental rights to his minor children. Following a bench trial, the trial court found that clear and convincing evidence existed to support the statutory ground of severe child abuse and that termination was in the best interest of the children. We affirm.

Hamilton County Court of Appeals 09/04/19
Stephny Young, et al. v. Paxton V. Dickson, M.D.
W2019-01442-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Rhynette N. Hurd

A Tennessee Supreme Court Rule 10B petition for recusal appeal was filed in this Court after the trial court denied a motion for recusal. For the reasons stated herein, we reverse the trial court’s denial of the motion and remand the case for reassignment to a different judge.

Shelby County Court of Appeals 09/03/19
Glenn A. Stark v. Jana A. Burks
W2018-01283-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Andrew Brigham

In this action concerning enforcement or modification of a permanent parenting plan, the trial court analyzed the issues in accordance with the provisions of Tennessee Code Annotated Title 36 concerning child custody matters, rather than Title 37, involving dependency and neglect proceedings. Following the trial court’s modification of the parties’ permanent parenting plan, the father filed post-trial motions seeking the appointment of a guardian ad litem and entry of an order providing for joint counseling sessions with the father and the child. The trial court denied these motions and awarded the mother attorney’s fees as the prevailing party pursuant to Tennessee Code Annotated § 36-5-103(c). The father has appealed. Discerning no reversible error, we affirm.

Henry County Court of Appeals 08/30/19
In Re Chivon G.
E2018-02012-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Timothy E. Irwin

This is a termination of parental rights case, focusing on the minor child of the mother/appellant. The child was placed in the legal custody of the petitioner/appellee on November 8, 2016, based upon the trial court’s finding that the child was dependent and neglected while in the mother’s care. On June 7, 2018, the petitioner filed a petition to terminate the parental rights of the mother. Following a bench trial, the trial court found that statutory grounds existed to terminate the parental rights of the mother upon its finding by clear and convincing evidence that (1) the mother had abandoned the child by willfully failing to provide financial support and (2) the conditions leading to the child’s removal from the mother’s home persisted. The court further found by clear and convincing evidence that termination of the mother’s parental rights was in the child’s best interest. The mother has appealed. Having determined that the statutory ground of persistence of the conditions leading to removal was not proven by clear and convincing evidence, we reverse the trial court’s finding as to this ground. We affirm the trial court’s judgment in all other respects, including the termination of the mother’s parental rights to the child.

Knox County Court of Appeals 08/30/19
Nina Villalba Et Al. v. Ciara McCown
E2018-01433-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Kyle E. Hedrick

In this personal injury action arising from an automobile accident, the trial court granted summary judgment in favor of the defendant upon finding that the plaintiffs had failed to demonstrate service of process in the originally filed action, which had been dismissed, such that the plaintiffs’ refiled action was barred by the applicable statute of limitations. The plaintiffs have appealed. Having determined that, pursuant to the version of Tennessee Rule of Civil Procedure 4.04(11) in effect at the time that the initial complaint was filed, the plaintiffs demonstrated valid service of process of the initial complaint, we reverse the grant of summary judgment to the defendant and grant partial summary judgment to the plaintiffs concerning the affirmative defenses of ineffective service of process and expiration of the statute of limitations. We remand this action for further proceedings consistent with this opinion.

Hamilton County Court of Appeals 08/30/19
In Re Matasia R. Et Al.
E2018-01834-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Janice Hope Snider

This action involves the termination of a father’s parental rights to his minor children. Following a bench trial, the trial court found that clear and convincing evidence existed to support the statutory ground of abandonment by an incarcerated parent. The court further found that termination was in the best interest of the children. We affirm.

Hamblen County Court of Appeals 08/30/19
Johnny Alan Howell Et Al. v. Nelson Gray Enterprises Et AL.
E2019-00033-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge James E. Lauderback

This appeal involves a motorcycle/vehicle collision that occurred when a vehicle exited from a restaurant parking lot and collided with the plaintiffs’ motorcycle on a public highway. The plaintiffs filed a negligence and premises liability claim against the property owner, the restaurant owner, and the franchisee. The trial court granted the defendants’ motion for summary judgment and noted that the defendants did not owe a duty of care to the plaintiffs, effectively negating an essential element of the plaintiffs’ claim. The plaintiffs appeal. We affirm the grant of summary judgment by the trial court.

Johnson County Court of Appeals 08/30/19
In Re Brenlee F.
E2018-01498-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor M. Nichole Cantrell

This action involves the termination of a mother’s parental rights to her minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the statutory grounds of abandonment by her (1) failure to visit; (2) failure to support; and (3) conduct that exhibited a wanton disregard for the child’s welfare. The trial court also found that termination was in the best interest of the child. We reverse the trial court on its finding that the mother abandoned the child by failing to remit support. We affirm the trial court on all other rulings.

Anderson County Court of Appeals 08/30/19
Arnold Cunningham v. Sunice, Inc.
M2018-01129-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Kelvin D. Jones

A Canadian company hired an independent contractor domiciled in Tennessee to market its sportswear to golfers on the PGA Tour. After the Canadian company terminated the contract, the independent contractor filed a breach of contract action in Tennessee. The Canadian company moved to dismiss for lack of personal jurisdiction. Finding insufficient minimum contacts with Tennessee, the trial court dismissed the complaint. On appeal, we conclude that the plaintiff failed to establish sufficient minimum contacts for the exercise of general or specific jurisdiction over the nonresident defendant. So we affirm.

Davidson County Court of Appeals 08/29/19
In Re Estate of Jerry Bradley Espy
M2018-01594-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Tolbert Gilley

The only child of the decedent contests the validity of her father’s will on the grounds that the decedent lacked testamentary capacity, and the will was the result of his step-daughter’s undue influence. When the step-daughter, who was designated as the executrix and sole beneficiary, filed a petition to admit the will to probate, the daughter filed a will contest. Following discovery, the step-daughter filed a motion for summary judgment to dismiss the will contest. The motion was properly supported by a statement of undisputed facts that principally relied on the affidavit of the attorney who prepared the decedent’s will and attended the execution of the will. The attorney’s affidavit stated that the decedent was of sound mind when he executed his will and that the step-daughter, who was the sole beneficiary of the will, was not involved in the preparation of the will and was not present when the will was executed. The motion for summary judgment was also supported by the affidavit of a nurse who cared for the decedent at the veterans’ home and who also witnessed the execution of the will. The nurse testified that he was responsible for the day to day care of the decedent for three years and interacted with him on a daily basis. He also testified that he witnessed the genuine love and affection the decedent and his step-daughter shared, that the decedent wanted to leave everything to her, and that the decedent “was of sound mind and memory when he signed his Will in my presence.” The daughter filed a response to the motion; however, she failed to make specific citations to the record, as Tenn. R. Civ. P. 56.03 requires, of facts that would support her contentions of lack of testamentary capacity or undue influence. She also filed medical records concerning the decedent’s medical history; however, the records were not authenticated. The trial court granted the motion for summary judgment based on the finding that there was no genuine dispute of material facts and the step-daughter was entitled to judgment as a matter of law. We affirm.

Rutherford County Court of Appeals 08/29/19
Allan Bradley Flynn v. Megan Marie Stephenson
E2019-00095-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Larry M. Warner

This action involves the trial court’s establishment of a permanent parenting plan for a child born to the unmarried parties. Allan Bradley Flynn (father) appeals the trial court’s decision ordering a permanent parenting plan giving him less than 80 days per year parenting time. Megan Marie Stephenson (mother) appeals the court’s decision to change the child’s surname to Flynn. The trial court made no findings of fact supporting its ordered parenting plan, which it referenced as providing “standard visitation.” The trial court made no reference to the governing statute, Tenn. Code Ann. § 36-1-106 (2017), nor any of the factors provided in the statute. We vacate the trial court’s judgment and remand with instructions to make sufficient findings of fact and conclusions of law as required by Tenn. R. Civ. P. 52.01. We hold that father failed to carry his burden of proving that a name change will further the best interest of the child, and consequently we reverse the trial court’s judgment ordering the child’s name changed.

Cumberland County Court of Appeals 08/29/19
Deborah Russell v. Household Financial Services, Inc., Et Al.
M2019-01473-COA-T10B-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Anne C. Martin

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, filed by Deborah Russell (“Plaintiff”), seeking to recuse the trial judge in this case which involves a foreclosure action. Having reviewed the petition for recusal appeal filed by Plaintiff, and finding no error in the Trial Court’s order denying recusal, we affirm.

Davidson County Court of Appeals 08/28/19
Corporate Flight Management, Inc. v. Talaviation, S.A. Et Al.
M2018-01492-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Barry R. Tidwell

The issue in this appeal is whether the Tennessee court had personal jurisdiction over the Defendant. A Luxemburg company contracted with a French citizen to provide the citizen with a certain number of flight hours on the company’s private jets; the contract provided that, if the company did not have a jet available, it would procure a private jet from a third party. After providing a jet for the citizen to travel from Luxemburg to Turks and Caicos, the company did not have a jet available to return the citizen to his home, so the company engaged a charter aircraft company based in Tennessee to fly the citizen home in one of the Tennessee company’s jets. When the Luxemburg company did not pay for the flight, the Tennessee company filed this breach of contract action against the Luxemburg company and the French citizen in Rutherford County Chancery Court. The French citizen moved to dismiss the action against him on the ground that the Tennessee court lacked personal jurisdiction over him; the motion was granted. The Tennessee company appeals, contending that the court had personal jurisdiction over the French citizen because the Luxemburg company acted as the citizen’s agent and its contacts with Tennessee were thereby imputed to him for jurisdictional purposes. We conclude that the trial court correctly determined that it did not have personal jurisdiction over the French citizen and accordingly affirm the judgment granting the motion to dismiss.  

Rutherford County Court of Appeals 08/28/19
Lexon Insurance Company v. Windhaven Shores, Inc., Et Al.
M2017-00959-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle

In this appeal arising from a suit on an indemnity agreement, the indemnitee plaintiff moved for summary judgment. In response, one of the named indemnitors claimed that she could not determine if the signature on the agreement was hers. Another named indemnitor claimed that he was not sure if the signature on the agreement was his but conceded that it could be. And neither purported indemnitor recalled signing the indemnity agreement. The trial court determined that there was no genuine issue of material fact and granted summary judgment. On appeal, the purported indemnitors claim that, because the authenticity of their signatures was in dispute, summary judgment was improper. Alternatively, if summary judgment was appropriate on the issue of liability, the purported indemnitors claim that the trial court erred in its award of damages by including certain unpaid bond premiums and attorney’s fees. We affirm.   

Davidson County Court of Appeals 08/27/19
In Re Khloe B. Et Al.
E2018-02265-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor John C. Rambo

Kristin B. (“Mother”) appeals the judgment of the Washington County Chancery Court (“Trial Court”) terminating her parental rights to the children, Khloe B. and Madison B. (“the Children”). Upon petition of Matthew B. (“Father”) and Amanda B. (“Stepmother”) (collectively, “Petitioners”), the Trial Court found that Mother had abandoned the Children by her actions exhibiting wanton disregard for the Children’s welfare and that termination of Mother’s parental rights was in the Children’s best interest. The Trial Court, therefore, terminated Mother’s parental rights to the Children. Discerning no error, we affirm.

Washington County Court of Appeals 08/26/19
Troy Love v. Andre McDowell Et Al.
E2019-00177-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Elizabeth C. Asbury

This appeal involves a suit seeking partition of property owned by multiple individuals. The trial court dismissed the suit for failure to join an indispensable party. For the following reasons, we vacate the trial court’s order of dismissal and remand the case for further proceedings.

Union County Court of Appeals 08/26/19
In Re Jayda S.
E2019-00395-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

Mother appeals the trial court’s order terminating her parental rights. Concluding that the record contains clear and convincing evidence to support the trial court’s findings of a ground for termination and that termination is in the child’s best interest, we affirm.

Hamilton County Court of Appeals 08/26/19
C.Bruce Batten v. Community Trust and Banking Company Et Al. - Dissent in Part
E2017-00279-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

This appeal arises from the trial court’s reconsideration and granting of summary judgment motions that had initially been denied by another judge. We affirm the judgment of the trial court.

Hamilton County Court of Appeals 08/26/19
C.Bruce Batten v. Community Trust and Banking Company Et Al. - Dissent in Part
E2017-00279-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

I concur in the majority opinion’s result with regard to Batten’s entitlement to the severance package and with regard to the award of attorney’s fees to Bank. However, I must dissent from the majority’s conclusion that the trial court correctly granted summary judgment to Attorney Edge on Batten’s negligent misrepresentation claim. As discussed by the majority, the alleged representation at issue in this case was that Attorney Edge was unaware of anything that would affect Batten’s ability to receive his negotiated severance benefits if he tendered his resignation in December 2009. According to Batten, Attorney Edge’s representation was false because Attorney Edge was at that time aware of several facts that could undermine Batten’s ability to receive the severance package.

Hamilton County Court of Appeals 08/26/19
Solomon Menche v. White Eagle Property Group, LLC, et al. - Dissent
W2018-01336-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor JoeDae L. Jenkins

I respectfully dissent from the majority’s decision to affirm the trial court’s award of attorney’s fees and expenses to the defendants following the entry of an agreed order granting a voluntary nonsuit to the plaintiff.

Shelby County Court of Appeals 08/26/19
Solomon Menche v. White Eagle Property Group, LLC, et al.
W2018-01336-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor JoeDae L. Jenkins

Plaintiff/Appellant brought suit against Defendants/Appellees over various business disputes. During the course of the discovery process, the trial court granted three motions to compel against Plaintiff, twice reserving Defendants’ request for attorney’s fees. Eventually, Defendants moved for discovery sanctions against Plaintiff, asking the trial court to award Defendants the attorney’s fees and expenses related to prosecuting the three motions to compel as well as the motion for sanctions. Shortly after the third motion to compel was granted, however, Plaintiff requested a voluntary nonsuit pursuant to Rule 41.01. Because Defendants’ motion for partial summary judgment was pending, the Defendants were required to agree to the nonsuit. The trial court granted the nonsuit based on Defendants’ consent, but later held a hearing on the Defendants’ motion for sanctions and awarded the Defendants their attorney’s fees and expenses. Plaintiff appealed to this Court. Discerning no reversible error, we affirm.

Shelby County Court of Appeals 08/26/19
State of Tennessee Ex Rel. Herbert H. Slatery, III, Attorney General And Reporter v. HRC Medical Centers, Inc., Et Al.
M2017-02559-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Senior Judge Donald R. Ash

This is an action brought by the State of Tennessee pursuant to the Tennessee Consumer Protection Act, Tennessee Code Annotated section 47-18-101, et seq., and seeking judicial dissolution, pursuant to Tennessee Code Annotated section 48-24-301, of HRC Medical Centers, Inc., a for-profit corporation operating approximately 50 hormone replacement therapy centers. The State alleged, inter alia, that the corporation’s advertising for its hormone replacement therapy was deceptive, and sought restitution for consumers. Also sued were the owners of HRC and their spouses; it is alleged that those defendants, as recipients of some of the assets of HRC, are personally liable for violations of the Uniform Fraudulent Transfer Act, Tennessee Code Annotated sections 66-3-305(a) and 66-3-306(a). The defendants filed motions to dismiss, for summary judgment, and to remand the case to the Division of Health Related Boards of the Tennessee Department of Health; all of the motions were denied. The State moved for summary judgment on the issue of liability under the Consumer Protection Act and, after the motion was granted, on the issue of damages. In granting the second motion, the trial court entered an award of $18,141,750, based upon the median amount paid by consumers for the hormone therapy treatment. The defendants appeal, raising issues related to the trial court’s denial of their motion for remand, motions to dismiss, and motions for summary judgment; they also appeal the grant of summary judgment to the State. Upon a thorough review of the record, we affirm the judgment.  

Davidson County Court of Appeals 08/23/19
In Re Brianna B., Et Al.
M2019-00446-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Stella L. Hargrove

This is the second appeal in a case in which the mother of two children appeals the termination of her parental rights to the children. In the first appeal, this Court vacated the trial court’s holdings with respect to the grounds for termination and the determination that termination of the mother’s rights was in the children’s best interest; we remanded the case for the court to make additional factual findings and conclusions of law. On remand, the trial court considered the record and its previous order and entered an order in which it declined to make additional findings, and held “that its ruling is correct and is more than sufficient to find by clear and convincing evidence, that one or more statutory grounds for termination exist, and further, that termination is in the best interest of Lizzie, the remaining minor child.” Upon consideration of the record, we vacate the order entered following the remand from the prior appeal and remand the case for entry of an order that makes the factual findings and conclusions of law previously ordered by this Court.

Maury County Court of Appeals 08/23/19
Carolyn Diane Long v. Steven Lawrence Long
E2018-1868-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Larry M. Warner

This divorce case involves the trial court’s classification and division of the separate and marital property of the parties. The trial court did not place a valuation on any of the property that was contested, nor did it refer to or make any findings regarding the factors provided by the governing statute, Tenn. Code Ann. § 36-4-121 (2017). We vacate the trial court’s order and remand with instructions to make sufficient findings of fact and conclusions of law as required by Tenn. R. Civ. P. 52.01.

Cumberland County Court of Appeals 08/23/19
Carl Short Ex Rel. Allison Hope Short v. Metro Knoxville HMA, LLC Et AL.
E2018-02292-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge William T. Ailor

This appeal concerns healthcare liability. Carl Short (“Plaintiff”), widower of Allison Short (“Decedent”), filed suit in the Circuit Court for Knox County (“the Trial Court”) alleging negligence in his late wife’s medical treatment against a number of physicians (“Physician Defendants”) and Turkey Creek Medical Center (“the Hospital”) (“Defendants,” collectively). Defendants moved to dismiss on the basis of noncompliance with Tenn. Code Ann. § 29-26-121(a)(2)(E), which requires that pre-suit notice include a HIPAA compliant medical authorization allowing the healthcare provider receiving the notice to obtain complete medical records from every other provider that is sent a notice.1 Plaintiff’s authorizations allowed each provider to disclose complete medical records to each named provider although it did not state specifically that each provider could request records from the other. The Trial Court held that Plaintiff’s authorizations failed to substantially comply with the statute’s requirements because of this failure to explicitly allow each provider to obtain records. Plaintiff appeals. We hold that Plaintiff’s method of permitting Defendants access to Decedent’s medical records substantially complied with Tenn. Code Ann. § 29-26-121(a)(2)(E). We reverse the judgment of the Trial Court.

Knox County Court of Appeals 08/23/19