Court of Appeals Opinions

Format: 10/15/2021
Format: 10/15/2021
Penny Lawson et al. v. Hawkins County, TN et al.
E2020-01529-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Alex Pearson

This appeal arises from litigation concerning a fatal road accident. Steven W. Lawson (“Decedent”), by and through his wife, Penny Lawson, and on behalf of Corey Lawson, Decedent’s child (“Plaintiffs,” collectively), sued the Hawkins County Emergency Communications District Board (“ECD-911”), Hawkins County, Tennessee and Hawkins County Emergency Management Agency (“the EMA”) (“Defendants,” collectively) in the Circuit Court for Hawkins County (“the Trial Court”) alleging negligence, gross negligence, and recklessness in Defendants’ response to a road washout that led to Decedent’s death. Plaintiffs specifically alleged nepotism in Defendants’ hiring practices and a failure to train. Defendants filed motions for judgment on the pleadings, which the Trial Court granted partly on grounds that claims of recklessness could not proceed against the Defendant entities under the Governmental Tort Liability Act (“the GTLA”). Plaintiffs appeal. We hold that Plaintiffs could, in fact, proceed with their claims of recklessness and gross negligence under the GTLA, and the facts pled by Plaintiffs were sufficient to state claims based upon recklessness and gross negligence. We hold further that, based on the facts alleged at this stage, the third special duty exception to the public duty doctrine applies so as to remove Defendants’ immunity. We reverse the judgment of the Trial Court.

Hawkins County Court of Appeals 07/14/21
In Re Miley D.
M2020-01416-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge N. Andy Myrick

This is an appeal from a termination of parental rights case. The trial court determined that two grounds for termination had been established as to Father: abandonment by an incarcerated parent pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(iv) and a sentence for child abuse pursuant to Tennessee Code Annotated section 36-1-113(g)(5). The trial court further found the termination of Father’s parental rights to be in the best interests of the two minor children at issue. Although we reverse one ground for termination found by the trial court, we otherwise affirm its order terminating Father’s parental rights. 

Lincoln County Court of Appeals 07/14/21
Perry Allen Et Al. v. William B. Lee Et Al.
M2020-00918-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Phillip R. Robinson

The Plaintiffs brought this lawsuit to challenge a series of executive orders issued by the Governor of Tennessee in response to the COVID-19 pandemic. Namely, the Plaintiffs challenged the Governor’s legal authority to close entertainment and recreational gathering venues, arguing, among other things, that the executive orders were a constitutionally-prohibited implementation of martial law. Although the trial court dismissed the Plaintiffs’ complaint for failure to state a claim, we conclude that the underlying matter is moot given the repeal of the complained of closure requirements. Accordingly, we vacate the trial court’s judgment and remand the case for dismissal of the complaint in light of its mootness. 

Davidson County Court of Appeals 07/14/21
Travis Payne v. Jessica Payne
E2020-01083-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Douglas T. Jenkins

This is an appeal from a dismissal of Mother’s petition to modify the parties’ permanent parenting plan. The trial court found that Mother failed to carry her burden of proof in showing a material change of circumstances had occurred. Mother now appeals. Because we find that the evidence does not preponderate against the trial court’s findings, we affirm its denial of Mother’s petition.

Greene County Court of Appeals 07/14/21
In Re Manning H.
M2020-00663-COA-r3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Louis W. Oliver

This appeal arises from a mother and a stepfather’s petition to terminate the father’s parental rights to his daughter. The mother and father were married and had a son and a daughter. When they divorced, they agreed to a permanent parenting plan allowing the father equal parenting time with their son but no parenting time with their daughter. In the three and a half years preceding the filing of the petition to terminate the father’s rights, the father fully exercised his parenting time with their son, but he had no contact with their daughter and did not request a modification of the permanent parenting plan. The petitioners alleged three grounds for termination of the father’s parental rights to his daughter—abandonment by failure to visit and failure to support, Tenn. Code Ann. §§ 36-1-102(1)(A)(i) and -113(g)(1), and failure to manifest an ability or willingness to assume custody, Tenn. Code Ann. § 36-1-113(g)(14). The trial court determined that the petitioners proved one of the three grounds, abandonment by failure to visit; however, it found that they failed to prove by clear and convincing evidence that it was in the daughter’s best interests to terminate the father’s rights. Accordingly, the court denied the petition to terminate the father’s parental rights to his daughter. On appeal, the petitioners contend the trial court erred in denying their petition because the evidence clearly and convincingly established that termination of the father’s parental rights was in the daughter’s best interests. They also contend the trial court erred in finding that they did not prove the father failed to manifest an ability or willingness to assume physical custody as codified in Tenn. Code Ann. § 36-1-113(g)(14). For his part, the father contends his failure to visit was not willful; therefore, the petitioners failed to prove any ground for termination of his parental rights. We affirm the trial court’s determination that the father abandoned his daughter by failure to visit during the requisite period of time as codified in Tenn. Code Ann. § 36-1-102(1)(A)(i). We affirm its determination that the petitioners failed to prove by clear and convincing evidence all the essential elements of the ground codified in Tenn. Code Ann. § 36-1-113(g)(14). We also affirm the trial court’s determination that the petitioners failed to establish by clear and convincing evidence that termination of the father’s parental rights was in the daughter’s best interest. Therefore, we affirm the trial court’s decision to deny the petition.

Sumner County Court of Appeals 07/13/21
Jerry Moorehead Et Al. v. Tennessee Farmers Mutual Insurance Company
M2020-01319-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge M. Wyatt Burk

In litigation regarding an automobile accident, Appellants Jerry and Debra Moorehead reached a mediation agreement with their uninsured motorist carrier, Appellee Tennessee Farmers Mutual Insurance Company (“Farmers”). Under the mediation agreement, Farmers agreed to pay $50,000 to each of the Mooreheads in full settlement of the dispute. Farmers paid only $25,000 each to Mr. and Mrs. Moorehead, deducting amounts it had previously paid under the policy for medical expenses. The Mooreheads moved the trial court to enforce the agreement, arguing that they were due $50,000 each in “new” money. The trial court held that the mediation agreement was enforceable but that the amount owed to the Mooreheads was properly offset by the previous amounts Farmers paid. On review, we conclude that the plain language of the mediation agreement promised future payment of $50,000 to each of the Mooreheads without reference to or incorporation of either the insurance policy or previous payments made thereunder. Reversed and remanded.

Moore County Court of Appeals 07/13/21
Daryl K. Burford v. Tennessee Department of Correction, Et Al.
M2020-00575-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Anne C. Martin

The petitioner, a state prison inmate, appeals the trial court’s dismissal of his petition for a declaratory judgment, in which he alleged that the respondents, Tennessee Department of Correction (“TDOC”); TDOC Sentence Management; TDOC Commissioner Tony Parker; and CoreCivic, Inc., Records Officials (“CoreCivic”) (collectively, “Respondents”), miscalculated his release eligibility date and sentence expiration date. The trial court dismissed the petition upon finding that the petitioner had failed to comply with the court’s two orders notifying the petitioner that his case would be dismissed if he did not pay the initial partial filing fee required under Tennessee Code Annotated § 41-21-807, file an affidavit of indigency, and submit copies of his petition and summons for each respondent with the court clerk. Discerning no reversible error, we affirm. 

Davidson County Court of Appeals 07/09/21
Tracy Darrell Adkins v. Rhonda Forlaw Adkins
M2021-00384-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Michael Binkley

This accelerated interlocutory appeal is taken from the trial court’s order denying Appellant’s motion for recusal. Because there is no evidence of bias that would require recusal under Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial court.

Williamson County Court of Appeals 07/09/21
Ciara Dawn Beaty v. Adam Scott Beaty
M2020-00476-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ronald Thurman

This is an appeal from a divorce involving one minor child. In fashioning an initial parenting schedule, the trial court named the mother primary residential parent of the parties’ minor child and entered a parenting plan awarding 242 days of parenting time to the mother and 123 days to the father. The father appealed. Because we conclude that the trial court’s order regarding the residential parenting schedule does not contain sufficient findings of fact such that meaningful appellate review is possible, we vacate the order as to the parenting plan and remand for findings of fact and conclusions of law to facilitate appellate review.   

Pickett County Court of Appeals 07/08/21
Michael Halliburton v. Tennessee Board of Parole
M2020-01657-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Russell T. Perkins

After being denied parole and exhausting all administrative remedies, an inmate filed a petition for writ of certiorari in the Chancery Court of Davidson County. The chancery court dismissed the petition pursuant to Tenn. Code Ann. § 41-21-812 because the inmate had unpaid court costs from previous litigation. Finding no error, we affirm.

Davidson County Court of Appeals 07/07/21
Theresa Doty v. City of Johnson City
E2021-00054-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jean A. Stanley

This is a personal injury action in which the defendant tortfeasor claims that the trial court erroneously excluded evidence concerning plaintiff’s claimed medical expenses. On appeal, we affirm the trial court’s rulings on the admissibility of evidence.

Washington County Court of Appeals 07/07/21
Kimberly Medders v. Landon Newby, Et Al.
M2020-01094-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kelvin D. Jones

An insurance company denied coverage for an accident its insured had with an uninsured/underinsured motorist because the insured had a “non-owner’s” policy, and the car she was driving did not fit the definition of a “non-owned auto.”  The trial court concluded, following a bench trial on the bifurcated issue of coverage, that the insured’s policy did not cover the accident, and the insured appealed.  We affirm the trial court’s judgment.

Davidson County Court of Appeals 07/06/21
Elizabeth Kay Tomes v. Michael Joe Tomes
M2020-00833-COa-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ross H. Hicks

In this post-divorce dispute, the wife challenges the trial court’s determination that she was in contempt of the divorce decree for failing to return certain personal property to the husband. We find no error in the trial court’s contempt ruling or in its denial of the wife’s motion for Rule 60 relief. Therefore, we affirm the trial court’s decision in all respects.

Montgomery County Court of Appeals 07/06/21
In Re James W. et al.
E2020-01440-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Brian J. Hunt

This case involves a petition to terminate parental rights. The petition was filed by the Department of Children’s Services against the biological mother of several minor children. In the petition, the Department alleged five grounds for termination: (1) abandonment by failure to provide a suitable home; (2) abandonment by exhibiting a wanton disregard for the welfare of the children prior to incarceration; (3) substantial noncompliance with a permanency plan; (4) persistence of conditions; and (5) failure to manifest an ability and willingness to parent. After a trial on the petition, the trial court found that the Department established all five grounds and that termination was in the best interest of the children. As a result, the trial court terminated the mother’s parental rights. We affirm the trial court’s decision and remand.

Anderson County Court of Appeals 07/06/21
Gregory Charles Hoppe v. Susan Lynn Hoppe
M2020-00331-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

In this post-divorce visitation dispute, the father appeals the denial of his petition to modify the permanent parenting plan and require the mother’s visitation to be supervised “indefinitely.” Before the divorce, the mother’s visitation was suspended after she falsely accused the father of sexually abusing the parties’ minor son. The mother’s visitation was restored when she presented evidence that she was in mental health therapy for her “obsessive” fears. Two months later, in early 2016, the parties agreed to a permanent parenting plan that required the mother to, inter alia, continue her therapy. The parties also agreed for their son to attend counseling to help him remain psychologically healthy despite the parties’ contentious relationship. The mother did not, however, continue her treatment as agreed, and she soon resumed making allegations against the father. Thus, just three months after the parenting plan was entered, her visitation was suspended again. The mother’s visitation remained restricted for a year, during which she struggled to comply with various court orders. In April 2017, the parties agreed for the mother’s visitation to be restored after she presented evidence she was progressing again in her mental health treatment. The parties also agreed for the son to continue counseling for another 18 months. Then, in November 2018, the mother made additional false allegations against the father. The father then filed a petition to modify the parenting plan and restrict the mother’s visitation “indefinitely.” Finding the mother’s behavior endangered the children, the trial court significantly restricted the mother’s parenting time and allowed only limited supervised visitation pending a final hearing. Due to several procedural delays, the final hearing was not held until January 2020, by which time the mother’s visitation had been severely restricted for a year. After the hearing, the court denied the father’s petition and restored the mother’s visitation. The court was persuaded, in part, by evidence that the mother was progressing again in her therapy. The court credited the opinion of the mother’s clinical psychologist, who stated the mother had “gotten better,” understood “that she cannot say things that would alienate [the father from] the children,” was “a loving and devoted parent,” and would “now follow the rules.” The court also agreed with the psychologist’s opinion that the son needed more counseling because he needed “to be able to talk to somebody [he could] trust.” Based on these and other findings of fact, the trial court found no material change in circumstance existed; however, it ordered that the mother and the parties’ son continue therapy. The court also denied the mother’s request for an award of attorney fees as the “prevailing party” under the marital dissolution agreement and Tenn. Code Ann. § 36-5-103(c). Both parties appealed. Having determined the evidence does not preponderate against the trial court’s finding that no material change of circumstance existed as of the time of trial, we affirm the denial of the father’s petition to modify the parenting plan. We vacate, however, the court’s order requiring the son to continue therapy because the issue was not before the court. We also affirm the denial of the mother’s request to recover her attorney’s fees.

Davidson County Court of Appeals 07/02/21
Anthony Parker v. SCG-LH Murfreesboro, LP Et Al.
M2021-00033-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Darrell Scarlett

Plaintiff appeals from the trial court’s decision to deny his motion for discovery sanctions after granting a motion for summary judgment filed by the defendants. Discerning no reversible error, we affirm.

Rutherford County Court of Appeals 07/01/21
Nicole Lynn Colvard v. Wayne Eric Colvard
E2020-01066-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Larry Michael Warner

In this divorce case, Father/Appellant appeals the trial court’s decision regarding custody of the parties’ minor children. Father contends that the trial court committed reversible error when it interviewed the minor children in camera without a court reporter or attorney present. In the absence of a transcript or a valid Tennessee Rule of Appellate Procedure 24(c) statement of the actual evidence adduced in camera or at the hearing, and in view of the fact that the trial court’s order wholly fails to comply with the mandates of Tennessee Rule of Civil Procedure 52.01, we cannot conduct a meaningful review of the trial court’s ultimate custody decision. Vacated and remanded.

Cumberland County Court of Appeals 07/01/21
Brittany Borngne Ex Rel. Miyona Hyter v. Chattanooga-Hamilton County Hospital Authority Et Al. - Concurring
E2020-00158-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge J.B. Bennett

I concur in the majority opinion on all issues except the compulsion of Dr. Seeber’s testimony. I believe the trial court correctly refused to compel this testimony in reliance on Lewis ex rel. Lewis v. Brooks, 66 S.W.3d 883 (Tenn. Ct. App. 2001).

Hamilton County Court of Appeals 07/01/21
Brittany Borngne Ex Rel. Miyona Hyter v. Chattanooga-Hamilton County Hospital Authority Et Al.
E2020-00158-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge J.B. Bennett

This health care liability action arises from injuries suffered by a minor, Miyona Hyter, during her birth. Miyona Hyter, a minor by and through her next friend and mother, Brittany Borngne (“Plaintiff”) sued, among others, Dr. Michael Seeber who delivered the child via cesarean section and certified nurse midwife Jennifer Mercer who assisted with the birthing process. Plaintiff alleged that Nurse Mercer was negligent by failing to recognize concerning signs on the fetal monitoring strip and by failing to call Dr. Seeber for assistance sooner than she did. The Circuit Court for Hamilton County (“the Trial Court”), by agreed order, granted Dr. Seeber partial summary judgment on all claims of direct negligence against him; he remained in the case as a defendant only upon Plaintiff’s theory that he was vicariously liable for Nurse Mercer’s actions as her supervising physician. During his deposition, Dr. Seeber declined to answer questions that he argued required him to render an expert opinion regarding Nurse Mercer’s care during times that Dr. Seeber was not present and had no involvement in Plaintiff’s care. The Trial Court declined to require Dr. Seeber to answer questions that “call[] for an opinion by Dr. Seeber that asks him to comment on the actions of other healthcare providers and does not involve his own actions, as required by Lewis v. Brooks,” 66 S.W.3d 883, 887-88 (Tenn. Ct. App. 2001). After Nurse Mercer’s deposition, she submitted an errata sheet that substantively altered her answers to some of the questions. Plaintiff moved to suppress the errata sheet, arguing that Tenn. R. Civ. P. 30.05 does not allow a witness to make substantive changes to her deposition testimony. The Trial Court denied the motion but allowed Plaintiff the opportunity to reopen Nurse Mercer’s deposition and to fully cross-examine her at trial about the changes. The case proceeded to trial before a jury, which returned a verdict in Defendants’ favor. We hold that the Trial Court erred by refusing to order Dr. Seeber to answer the questions at issue in his deposition. Deeming this case distinguishable from Lewis v. Brooks, we reverse the Trial Court in its declining to compel Dr. Seeber to testify concerning the conduct of his supervisee, Nurse Mercer, and remand for a new trial.

Hamilton County Court of Appeals 07/01/21
Linda R. Kerley v. George Olin Kerley
E2020-01137-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Thomas W. Graham

As issues regarding contempt and attorney fees remain pending, the order appealed from does not constitute a final appealable judgment. As such, this Court lacks jurisdiction to consider this appeal.

Bledsoe County Court of Appeals 07/01/21
James Justice v. Elizabeth Hyatt
M2019-02105-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge David L. Allen

Two cars collided at a four-way stop. One driver filed a personal injury action against the other. At trial, the two sides presented conflicting descriptions of the accident. The jury found the defendant driver was not at fault. And the trial court, as thirteenth juror, approved the jury verdict. Because the jury verdict is supported by material evidence, we affirm.

Giles County Court of Appeals 06/30/21
Monique Davis v. Willie Thomas
M2021-00303-COA-R3-CV
Authoring Judge: Presiding Judge frank G. Clement, Jr.
Trial Court Judge: Judge Thomas W. Brothers

The plaintiff has appealed from the dismissal of her complaint for property damage stemming from a water leak. Because the plaintiff did not file her notice of appeal within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.

Davidson County Court of Appeals 06/30/21
In Re James H., III
W2020-01423-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor W. Michael Maloan

James H., II (“Father”) appeals the termination of his parental rights to the minor child, James H., III (“the Child”). In April 2017, Ashley P. (“Mother”) and Trinity P. (“Stepfather”) filed a petition to terminate Father’s parental rights in the Weakley County Chancery Court (“Trial Court”). Following a trial, the Trial Court terminated Father’s parental rights on two grounds of abandonment due to Father’s willful failure to visit the Child and willful failure to support the Child prior to Father’s incarceration. The Trial Court further found that termination of Father’s parental rights was in the Child’s best interest. Discerning no error, we affirm.

Weakley County Court of Appeals 06/29/21
Loring Justice v. Vey Michael Nordquest, PH.D.
E2020-01152-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Kristi M. Davis

Loring Justice (“Plaintiff”), individually and as next friend of N.N./N.J. (“the Child”) sued Vey Michael Nordquist, Ph.D. (“Defendant”) in the Circuit Court for Knox County (“the Trial Court”) over Defendant’s actions in connection with paternity litigation to which Plaintiff was a party. Defendant filed a motion to dismiss, but never filed a responsive pleading to the original complaint. The Trial Court granted Defendant’s motion to dismiss. Before time for appeal expired, Plaintiff filed an amended complaint as he was entitled to do under Tenn. R. Civ. P. 15.01 given that Defendant never filed a responsive pleading to the original complaint. However, the Trial Court never ruled on Plaintiff’s amended complaint. The order appealed from is not a final judgment, meaning we lack subject matter jurisdiction to hear this appeal. Therefore, we dismiss this appeal.

Knox County Court of Appeals 06/29/21
Tullahoma Industries, LLC v. Navajo Air, LLC Et Al.
M2019-02036-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Melissa T. Blevins-Willis

To collect on its judgment, a judgment creditor served a garnishment on a bank. The garnishee bank initially responded that it held funds belonging to the judgment debtor, a limited liability company. Later, the bank responded “no accounts found.” The bank had two deposit accounts purportedly belonging to a different entity that shared the same name, address, and principal as the judgment debtor. The bank also had an escrow account of which the judgment debtor was a beneficiary. The judgment creditor argued that these three accounts were subject to the garnishment. The trial court disagreed. We affirm. 

Franklin County Court of Appeals 06/29/21