COURT OF APPEALS OPINIONS

William Patrick Van Erps v. Heather Jackson
M2012-00249-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Samuel H. Smith

Mother of child appeals the trial court’s designation of Father as primary residential parent and adoption of a residential parenting schedule which gave the parents equal parenting time.   Finding no error, we affirm the trial court.

David A. Paczko et al. v. Suntrust Mortgages, Inc. et al.
M2011-02528-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor D. J. Allissandratos

Plaintiffs filed this action seeking to enjoin the foreclosure of their residence and to quiet title. They also alleged slander of title and violations of the Tennessee Consumer Protection Act. The trial court dismissed the action upon the defendants’ motions to dismiss for failure to state a claim. We have determined that TCPA claims do not apply to allegedly deceptive conduct in foreclosure proceedings, thus the dismissal of the TCPA claim is affirmed. We have also determined that the plaintiffs never denied that they were in default of the Note and Deed of Trust and they admitted that, during the pendency of this action, the property was foreclosed upon and sold, thus they no longer have an interest in the property, which circumstances render the remaining claims moot. We, therefore, affirm the dismissal of this action.

Terry Gupton, et al. v. Gary A. Davis d/b/a Gary A. Davis & Associates, et al.
E2011-02215-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Frank V. Williams, III

This appeal arises from what essentially is a fee dispute between lawyers. A Tennessee Valley Authority (“TVA”) coal ash spill in 2008 damaged the farm of Sandra and Terry Gupton (“the Guptons”). The Guptons signed contingent fee agreements with Gary A. Davis (“Davis”), Stephen Crofford (“Crofford”), and Mary Parker (“Parker”) (“the Defendants,” collectively) to pursue their case. Rebecca Vernetti (“Vernetti”), a lawyer in Davis’s firm who worked on the Guptons’ case, left Davis’s law firm to start her own law firm. The Guptons fired Davis and hired Vernetti. The Guptons later reached an agreement with TVA to sell their farm to TVA, and Vernetti received her fee. The Guptons sued the Defendants in the Chancery Court for Roane County (“the Trial Court”), seeking judgment to the effect that they need not pay any fees to the Defendants. The Defendants counterclaimed and also sued Vernetti, arguing that they should be paid as per their original agreement with the Guptons. The Trial Court declined to award the Defendants their original contingency fee, but instead granted a judgment to the Defendants against Vernetti and her law firm on a quantum meruit theory for their legal services to the Guptons. Vernetti appeals, and the Defendants raise additional issues. We affirm the judgment of the Trial Court in its entirety.

Mark T. Wickham v. Sovereign Homes, LLC
W2011-02508-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Arnold B. Goldin

Plaintiff homeowner brought an action against Defendant builder alleging, inter alia, breach of warranty and violation of the Tennessee Consumer Protection Act. The trial court awarded summary judgment to Defendant builder. We affirm summary judgment on Plaintiff’s breach of warranty claim; reverse summary judgment on Plaintiff’s Consumer Protection Act claim; and remand for further proceedings.

Rebecca Little v. City of Chattanooga, Tennessee
E2011-027-24-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor W. Frank Brown, III

This action involves requests made by the appellant pursuant to the Tennessee Public Records Act, Tennessee Code Annotated sections 10-7-501, et seq. and 6-51-108(b), to the appellee city. After not receiving access to certain records to which she felt entitled, the appellant filed this petition. The trial court ruled that the city never refused to disclose the records but it just had not done much as of the time the petition was filed. However, because appellant did not prove that the city acted in bad faith as a result of its slowness in producing the public record requested the appellant was denied an award of attorney’s fees for the filing of the petition. We reverse the judgment of the trial court.

In The Matter Of Justice A.F.
W2011-02520-COA-R3-PT
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Arnold B. Goldin

This appeal involves the termination of a mother’s parental rights. The father had a history of domestic violence toward the mother, and there was a protection order requiring the father to stay away from the mother’s older children. Nevertheless, the mother went to work and left the child at issue, a toddler, and her younger sibling in the care of the father. While the mother was at work, the father murdered the infant sibling. After that, the child at issue was found to be dependent and neglected and the mother was found to have committed severe abuse based on her failure to protect the child from the father. The mother did not appeal this ruling. Thereafter, the Tennessee Department of Children’s Services filed this petition to terminate the mother’s parental rights, with grounds of severe abuse already established. After a trial, the trial court terminated the mother’s parental rights. The mother now appeals only the finding as to the child’s best interest. We affirm.

George Woodson and Flora Woodson v. MEG Capital Management, Inc., et al.
W2011-02513-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Jerry Stokes

Plaintiff was seriously injured during a dog attack by his neighbors’ two dogs. Plaintiff sued, among others, the neighbors’ landlord and an employee of the landlord. The trial court granted summary judgment to the defendants, determining that although the defendants retained sufficient control over the leased property, they lacked notice or knowledge of the dogs’ vicious propensities. We find a question of fact exists regarding defendants’ notice or knowledge of the dogs’ vicious propensities. We affirm in part and reverse in part and we remand for further proceedings.

Donta S. Smith v. Tennessee Department of Corrections, et al.
M2011-02378-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Timothy L. Easter

Inmate filed a petition for certiorari, seeking a review of a decision of the prison disciplinary review board, affirmed by warden and the Commissioner of the Department of Corrections, finding him guilty of certain prison disciplinary offenses. The trial court dismissed the petition for lack of jurisdiction, finding it was not filed within sixty days of the entry of the order for which review was sought. Finding no error, we affirm the action of the trial court.

Charles Chambers v. Gayle Ray, Commissioner, Tennessee Department of Correction
M2011-01841-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

An inmate in the custody of the Tennessee Department of Correction, filed a petition for declaratory judgment alleging that the Department failed to credit him with 2,511 days of pretrial credits that were awarded him pursuant to a plea agreement. The sole issue in this appeal is whether the trial court properly dismissed the petition based upon a finding that the material facts show Petitioner received all pretrial jail credits awarded and due Petitioner. Finding no error, we affirm.

In the Matter of Melanie T., Bailey T., and Miles R.
M2012-00152-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Timothy R. Brock

Father, who was previously found to have committed severe abuse against his two children, appeals the finding that termination of his parental rights to his biological son was in the son’s best interest. Finding no error, we affirm the termination of his rights.

Club Chalet Homeowners Association, Inc. v. Kimberly Matthews
E2011-02237-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Ben W. Hooper, II

The defendant appeals from a judgment entered on a jury verdict holding her liable to her employer for her involvement in a co-worker’s misappropriation of funds. The jury found that the defendant’s involvement included (1) intentional misrepresentations, (2) concealment of facts relevant to the misappropriation, and (3) breach of contractual duties owed to the employer. The sole issue before us is whether the trial court erred in denying the defendant’s motion for a directed verdict made at the conclusion of the proof. The motion was based upon the defendant’s assertion that the statute of limitations barred the claim. We affirm.

Pam Barnett v. Tennessee Orthopaedic Alliance et al.
M2011-01978-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas W. Brothers

This medical malpractice action, which had been pending for several years, was summarily
dismissed because the plaintiff did not file a response to the defendants’ motion for summary
judgment, the plaintiff’s only expert witness admitted she was not qualified to opine
concerning the standard of care at issue, and the statute of limitations had run. Upon motion
of the defendants pursuant to Tennessee Rule of Civil Procedure 54.04(2), the trial court
awarded the defendants $9,000 in discretionary costs. This appeal followed. We affirm. We
have also determined that this appeal is frivolous and remand to the trial court to determine
the proper amount of damages pursuant to Tennessee Code Annotated § 27-1-122.

Amanda Smith v. William R. Walker et al.
M2012-00593-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Franklin Lee Russell

In this negligence action, the jury awarded the plaintiff a verdict against one of the two
defendants. We find no error in the judgment regarding liability, but we must vacate and
remand as to damages because the trial court erred in excluding testimony and evidence
regarding the plaintiff’s medical expenses.

In Re: Jada C.H., a minor child
W2011-02542-COA-R3-JV
Authoring Judge: J. Steven Stafford
Trial Court Judge: Judge Curtis S. Person, Jr.

This custody case arises from an agreed order of parentage. After Father’s paternity was established, he filed a petition in juvenile court for custody of the child. At the conclusion of several hearings that took place over a span of years, the juvenile court entered an order naming Father primary residential parent and awarding Mother weekend parenting time. Mother appealed. While awaiting appeal, Mother filed a petition to have the child declared dependent and neglected. The Special Judge presiding over that petition transferred Mother’s petition to Lake County, where Father and the child reside. In response to the allegations in Mother’s petition, Father filed a petition for an injunction and to have Mother’s future parenting time supervised. A different Special Judge granted Father’s request without a full hearing, stating that Mother’s parenting time would remain supervised until further orders of the court. No further orders were ever entered. We affirm the trial court’s order naming Father primary residential parent, but vacate the transfer of Mother’s petition to Lake County and the modification of Mother’s parenting time. Affirmed in part, vacated in part, and remanded for further proceedings.

The University Corporation, A California Nonprofit Corporation v. Bruce Wring
W2011-01126-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Walter L. Evans

This case involves an agreement between the Appellee, a nonprofit corporation, and the Appellant, a real estate agent, whereby the Appellant would acquire foreclosed properties, oversee all necessary repairs and renovations of the properties, and ultimately sell them for the benefit of the Appellee. The Appellee’s executive director was given the authority to act on its behalf in all dealings with the Appellant. As compensation, the Appellant received commissions on the purchase and sale of each property, and a percentage of the repair costs for his oversight of the repairs and renovations of each property. After operating pursuant to the oral agreement for over a year, the parties executed a written agreement for the same purpose. Throughout their relationship, the Appellant acquired approximately eighty-four (84) properties for the Appellee. Subsequently, after discovering that their records did not contain documentation of actual repair costs which the Appellant was required to submit under the written agreement, the Appellee filed a complaint for an accounting. The trial court appointed a Special Master to conduct an accounting. Following an evidentiary hearing, the Special Master filed a report in which he ordered that the Appellant be disgorged of all funds received by virtue of the agreements with the Appellee based on his failure to provide documentation of actual repair costs, and further suggested an award of attorney’s fees and costs in favor of the Appellee. Thereafter, the trial court entered a final order adopting and confirming the Special Master’s findings, and denied the Appellant’s objections to the Special Master’s report. After thoroughly reviewing the record, we conclude that the Appellant was not required to submit documentation of actual repair costs on the properties acquired pursuant to the oral agreement. We further conclude that the course of conduct between the Appellant and the Appellee’s executive director modified the written agreement, such that the Appellant was not required to submit documentation of actual repair costs. As a result, we reverse the judgment of the trial court and remand for further proceedings.

Cathy L. McGowin v. John D. McGowin
E2012-01091-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Ben W. Hooper, II

In this appeal, a show cause order was entered in this case on August 28, 2012, directing counsel for the appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Appellant has responded to the show cause order in a response that does

In Re: Estate of Mina Rhea Martin
E2012-00965-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge J. Reed Dixon

In this action, the Estate has appealed to this Court the denial of an exception to
appellee's claim.

In the Matter of: D.C., Jr., G.C., D.C., and H.C.
W2012-00469-COA-R3-PT
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge James H. Bradberry

This appeal involves the termination of a father’s parental rights. The four children at issue were removed from the father’s home by the Tennessee Department of Children’s Services due to neglect and abuse. After three years, the Department instituted termination proceedings. The juvenile court terminated the father’s parental rights on grounds of abandonment for failure to provide a suitable home, substantial noncompliance with the permanency plan, and persistent conditions, but it declined to find abandonment by failure to support. The father appeals both the grounds for termination and the best interest finding. We reverse the trial court’s holding on abandonment by failure to support, affirm to the remainder, and so affirm the termination of the father’s parental rights.

William R. Adams, et al. v. Maria Walker Gardino
W2011-00773-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Kay S. Robilio

The appellant filed a single-page brief on appeal that fails to comply with the Tennessee Rules of Appellate Procedure. As a result, we dismiss the appeal.

In Re: Emilie A.M.
E2011-02416-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge J. Michael Sharp

This is a termination of parental rights case in which Lisa C. and Michael C. filed a petition to terminate the parental rights of Christopher M. to his child. The paternal grandparents filed an intervening petition to adopt the child. The trial court terminated Christopher M.’s parental rights and granted Lisa C. and Michael C.’s petition to adopt the child. Christopher M. appeals the termination of his parental rights. Following our review, we conclude that the court erred in relying upon Tennessee Code Annotated section 36-1-113(g)(3) in terminating Father’s parental rights and reverse that ground of termination. Additionally, we are unable to review the remainder of the court’s decision because the final order failed to set forth findings of fact as required by section 36-1-113(k) in support of its second ground of termination. Accordingly, we reverse the termination of Father’s parental rights based upon section 36-1-113(g)(3) and vacate the remainder of the final order. The case is remanded for entry of an order that sets forth sufficient findings of fact and conclusions of law regarding the termination of Christopher M.’s parental rights.

John Mark Watkins, Surviving Spouse of Amy Rose Watkins v. Affiliated Internists, P.C., et al.
M2011-00541-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Barbara N. Haynes

Husband of a decedent filed a wrongful death medical malpractice action against the
decedent’s physician and sought to amend his complaint to add a count for negligence per
se based on the physician’s failure to review his physician assistant’s narcotics prescription.
The trial court denied Husband the opportunity to amend his complaint and dismissed the
action on summary judgment. On appeal, the Court of Appeals concluded the trial court
erred in denying Husband’s motion to amend but affirmed the trial court’s other rulings. On
remand, the trial court allowed Husband to amend his complaint to add a count for
negligence per se, but the court then granted the physician’s motion for summary judgment
on the issue of causation. Between the first Court of Appeals decision and this appeal, the
Tennessee Supreme Court decided Estate of French v. Stratford House, 333 S.W.3d 546
(Tenn. 2011), in which it held that negligence per se claims cannot be maintained when
medical malpractice is alleged. The Estate of French holding bars Husband’s negligence per
se claim against the physician. We therefore affirm the trial court’s judgment granting the
physician summary judgment.

In Re: Conservatorship of John Daniel Tate
M2012-01918-COA-10B-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge David Randall Kennedy

This is an interlocutory appeal as of right from the trial court’s denial of a motion for
recusal. Having reviewed the appellant’s petition for recusal appeal pursuant to the de novo
standard as required under Rule 10B, §2.06, we affirm the trial court’s decision to deny the
petitioner’s motion for recusal.

In Re: Conservatorship of Alfonso B. Patton
M2012-01878-COA-10B-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge David Randall Kennedy

This is an interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B
from the trial court’s denial of a motion for recusal. Having reviewed the appellant’s petition
for recusal appeal pursuant to the de novo standard as required under Rule 10B, § 2.06, we
affirm the trial court’s decision to deny the petitioner’s motion for recusal.

In Re: Conservatorship of Alfonso B. Patton
M2012-01880-COA-10B-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge David Randall Kennedy

This is an interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B
from the trial court’s denial of a motion for recusal. Having reviewed the appellant’s petition
for recusal appeal pursuant to the de novo standard as required under Rule 10B, §2.06, we
affirm the trial court’s decision to deny the petitioner’s motion for recusal.

In The Matter Of Abigail F.K.
E2012-00016-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Suzanne Bailey

This appeal concerns the termination of parental rights. The subject child is the eighth born to the appellant mother. The appellant mother failed a prenatal drug screen prior to the birth of the child at issue, so the appellee Tennessee Department of Children’s Services took the child into protective custody three days after birth. A permanency plan was adopted and the mother made efforts to comply with her permanency plan responsibilities. The Department filed a petition to terminate the mother’s parental rights as to this child. The juvenile court terminated the mother’s parental rights based on the grounds of substantial noncompliance with the permanency plan and persistence of conditions. The mother now appeals only as to the grounds for termination. We reverse as to the ground of substantial noncompliance with the permanency plan but affirm as to the ground of persistent conditions. On that basis, we affirm the termination of parental rights.