Court of Appeals Opinions

Format: 07/17/2019
Format: 07/17/2019
Deborah Lacy v. Vanderbilt University Medical Center, Et Al.
M2018-00832-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Thomas W. Brothers

The trial court held that Appellant failed to meet her burden to prove her claims of assault and battery. Appellant appealed. Due to the deficiencies in Appellant’s appellate brief, we do not reach Appellant’s substantive issues and dismiss the appeal.  

Davidson County Court of Appeals 04/01/19
Evangeline Webb, et al. v. AMISUB (SFH), Inc.
W2017-02539-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robert Samual Weiss

This appeal arises from a re-filed health care liability action brought by the wife of a hospital patient, individually and on behalf of her now-deceased husband, against the hospital. In the first action, the plaintiffs attempted to rely on the 120-day extension to the statute of limitations provided by Tenn. Code Ann. § 29-26-121, which also required the plaintiffs to provide a HIPAA-compliant medical authorization to potential defendants. The complaint asserted that one of the hospital’s doctors and four of its nurses were negligent in treating the husband in the hospital’s emergency department on July 26, 2009, and that the hospital was vicariously liable. The doctor and nurses, but not Saint Francis, successfully moved for summary judgment based on the plaintiffs’ failure to comply with § 121. On interlocutory appeal, the plaintiffs challenged the constitutionality of § 121’s pre-suit notice requirement. This court affirmed the trial court’s determinations that § 121 was constitutional, was not preempted by HIPAA, and did not violate the equal protection and due process provisions of state and federal law. Accordingly, this court affirmed the dismissal of the claims against the doctor and nurses. Because the claims against the hospital remained, we remanded the case for further proceedings. The plaintiffs voluntarily dismissed the first complaint against the hospital in April 2016. Eight months later, the plaintiffs sent the hospital a new pre-suit notice and medical authorization. Sixty-four days after that, the plaintiffs filed their second complaint against the hospital. The hospital moved to dismiss, asserting the second complaint was timebarred because the plaintiffs failed to provide a HIPAA-compliant medical authorization in the first action and, thus, the 120-day extension was not available and the original complaint was time-barred. The plaintiffs responded by asserting that a HIPAAcompliant medical authorization is unnecessary to obtain the 120-day extension and challenging the constitutionality of § 121, including a challenge based on the right to privacy in medical information. The trial court found that § 121 requires a HIPAAcompliant medical authorization before the 120-day extension applies, the law of the case doctrine barred the plaintiffs from re-litigating all constitutional challenges except that based on the right of privacy, and the right to privacy was not implicated. Based on these findings, the trial court dismissed the second complaint as time-barred. This appeal followed. We affirm.

Shelby County Court of Appeals 03/29/19
In Re A.P.
M2017-00289-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Sheila Calloway

Mother appeals the trial court’s order terminating her parental rights as to her minor child. Because we conclude that the trial court erred in allowing Mother’s counsel to withdraw the morning of trial, without considering whether Mother had notice of the withdrawal, we vacate the trial court’s order and remand for a new trial.

Davidson County Court of Appeals 03/29/19
Adam Boswell v. Young Men's Christian Association of Middle Tennessee
M2018-00180-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement,Jr.
Trial Court Judge: Judge Joseph A. Woodruff

The plaintiff, a health club member, seeks damages from the health club based on its alleged failure to protect him from sexual assaults in the locker room by another club member. The complaint alleges that the health club “knew who the assailant was, and was aware that [the assailant] had engaged in such actions many times prior to” assaulting the plaintiff. The health club denied liability insisting it had no prior knowledge of sexual assaults by the assailant or anyone else. It also contended the claims were barred by the exculpatory provision in its membership agreement, which released the club from liability for injuries “resulting from” the plaintiff’s “use of [the] facilities.” The trial court found the exculpatory provision was unambiguous and summarily dismissed the claims. Thereafter, and while this matter was on appeal, the Tennessee Supreme Court revised the standards by which the enforceability of an exculpatory agreement should be determined. See Copeland v. Healthsouth/Methodist Rehabilitation Hospital, LP, 565 S.W.3d 260 (Tenn. 2018). We have determined that the plaintiff failed to present competent evidence that the health club knew or should have known of prior assaults by the assailant or anyone else. Because there is no genuine dispute of fact, the health club is entitled to judgment as a matter of law, and the issue regarding the enforceability of the exculpatory clause is moot. Accordingly, we affirm the grant of summary judgment, albeit on other grounds than found by the trial court, and remand with instructions to dismiss the complaint.

Williamson County Court of Appeals 03/29/19
Levitt, Hamilton, and Rothstein, LLC, Et Al. v. Ghazi Asfour
M2018-00938-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor William E. Young


In appealing a non-final order, Appellant asks this Court to adopt a jurisdictional exception to the final judgment rule that would allow an immediate appeal of a trial court’s decision to grant a motion under Rule 60.02 where the trial court purportedly lacked jurisdiction to do so. We decline to adopt a per se exception to Rule 3(a) of the Tennessee Rules of Appellate Procedure where the trial court grants a Rule 60.02 motion. We likewise decline to suspend the finality requirement in this particular case. As such, this appeal is dismissed for lack of subject matter jurisdiction.

Davidson County Court of Appeals 03/29/19
Bonnie Shaw v. Metropolitan Government Of Nashville And Davidson County, Tennessee
M2018-01157-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Thomas W. Brothers

This premises liability action involves allegations of negligence and negligence per se. The trial court dismissed the case at summary judgment, opining that no duty was owed to the plaintiff and holding that the plaintiff’s negligence per se claims were legally insufficient. For the reasons stated herein, we affirm the judgment of the trial court.

Davidson County Court of Appeals 03/29/19
Dwayne Cochran v. Town Of Jonesborough, Tennessee
E2018-01512-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge James E. Lauderback

After the plaintiff was arrested by a police officer employed by the defendant town, the plaintiff brought suit in federal court alleging that his civil rights were violated during the course of the arrest. Plaintiff further alleged that the town was negligent in its training and supervision of the arresting officer. The federal court dismissed the civil rights claims with prejudice, but declined to exercise supplemental jurisdiction over the plaintiff’s negligence claim against the town. As such, the plaintiff filed a second complaint in the Circuit Court for Washington County, in which the plaintiff again alleged that the town was negligent in its supervision and training of the arresting officer. After the town filed a motion to dismiss, the trial court concluded that immunity under the Tennessee Governmental Tort Liability Act was not removed as to the Plaintiff’s claims because the negligence claim arose out of the alleged violations of Plaintiff’s civil rights; accordingly, the trial court determined that Tennessee Code Annotated section 29-20-205(2) preserved the Defendant’s immunity, and dismissed the case with prejudice. Discerning no error, we affirm.

Washington County Court of Appeals 03/27/19
Mary Beth Harcrow v. Clyde Johnson Harcrow, III
M2019-00353-COA-T10B-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Joe Thompson

This is an interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B (“Rule 10B”), from the trial court’s denial of a motion for judicial recusal filed by the plaintiff wife during the course of the parties’ divorce proceedings. Discerning no reversible error in the trial court judge’s denial of the motion, we affirm. 

Sumner County Court of Appeals 03/27/19
Innerimages, Inc. v. Robert Newman et al.
E2018-00375-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Carter S. Moore

Innerimages, Inc. (“Innerimages” or “the developer”) filed suit against homeowners Robert Newman, David and Melba White, and David and Susan Schilt as trustees for the David Schilt and Susan Schilt Trust. It sought to recover unpaid maintenance fees required by the restrictive covenants governing their real property. The homeowners filed a counterclaim, seeking various forms of relief. The homeowners also joined the following third-party defendants: Sandra Gunn, the president of Innerimages, homeowners David and Joan Barrett, and property owner Cupid’s Rose, LLC.2 After a bench trial, the court dismissed the collection action filed by the developer. The court determined: (1) that the restrictive covenants are unenforceable as to the four homeowners and their successors in title; (2) that the developer is liable for breach of fiduciary duty for its failure to honor its obligations under the restrictive covenants; and (3) that Sandra Gunn is personally liable under an alter ego theory of piercing the corporate veil. Finally, the court awarded the homeowners damages in the amount of all fees paid since taking ownership of their property or, in the case of the Schilt family, fees paid over the last three years. In a subsequent order, the trial court clarified that only Mr. Newman was entitled to money damages because the other homeowners had not paid fees to the developer during the relevant time period. The court also denied the homeowners’ request for attorney’s fees. Innerimages, Sandra Gunn, and Cupid’s Rose, LLC appeal. Because this appeal presents novel issues relating to the enforceability of restrictive covenants, we take this opportunity to adopt the Restatement (Third) of Property: Servitudes § 6.19(1)-(2) (Am. Law Inst. 2000). We modify the trial court’s judgment pursuant to the principles set forth in the Restatement. As modified, we affirm the judgment of the trial court. 

Sevier County Court of Appeals 03/26/19
Lequita Nix Hilliard v. Dolgencorp, LLC
E2018-00312-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jerri S. Bryant

Lequita Nix Hilliard (“Plaintiff”) sued Dolgencorp, LLC (“Defendant”) alleging discrimination in violation of Tenn. Code Ann. § 8-50-103, of the Tennessee Disability Act, and Tenn. Code Ann. § 4-21-311, of the Tennessee Human Rights Act; and retaliatory discharge for filing a worker’s compensation claim. The Chancery Court for Polk County (“the Trial Court”) granted summary judgment to Defendant. Plaintiff appeals. We find and hold that there is no genuine disputed issue of material fact with regard to the fact that due to her medical restrictions Plaintiff is unable to perform the essential job functions of a store manager. Given this, Defendant was entitled to summary judgment on both of Plaintiff’s claims. We, therefore, affirm.

Polk County Court of Appeals 03/26/19
Volha Purswani v. Krish Purswani
E2018-01029-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Beth Boniface

This action involves petitions for orders of protection filed by a wife against her husband. Following a hearing on the merits, the trial court entered an order of protection against the husband and in favor of the wife on May 23, 2018. The order of protection prohibited the husband from having contact with the wife and granted the husband co-parenting time with his four children every other weekend. The husband has appealed. Discerning no reversible error, we affirm.

Hawkins County Court of Appeals 03/26/19
In Re E.Z. et al.
E2018-00930-COA-R3-JV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Gregory S. McMillan

This appeal arises from a finding of dependency and neglect. S.Z. (“Mother”) is the mother of both E.Z. and B.G. (“the Children,” collectively). C.G. (“Father”) is the father of B.G.1 In the wake of certain non-accidental injuries sustained by B.G., Father’s father filed a petition seeking custody of the Children. The Tennessee Department of Children’s Services (“DCS”) intervened, and the Children’s maternal grandfather filed a petition, as well. Mother and Father both denied abusing B.G. The Circuit Court for Knox County (“the Trial Court”) found the Children dependent and neglected. The Trial Court found also that Mother or Father abused B.G. and the other parent knows who committed the abuse, but the Trial Court held it could not determine which parent committed the abuse. Consequently, the Trial Court declined to find severe child abuse. DCS appeals to this Court, and Mother raises additional issues. We find, inter alia, that the evidence does not preponderate against the Trial Court’s factual finding that Mother or Father abused B.G. and the other knows who committed the abuse. Given that and other findings, we hold that the Trial Court erred in concluding that it could not find severe child abuse. We, therefore, reverse that aspect of the Trial Court’s judgment and hold that severe child abuse was proven by clear and convincing evidence. In all other respects, we affirm the judgment of the Trial Court.

Knox County Court of Appeals 03/26/19
Susan Knight as Executrix of the Estate of Elton M. Johnson v. Horse Creek Rock, Inc.
W2018-01014-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Carma Dennis McGee

This is a dispute over a lease agreement for property upon which the lessor permitted the lessee to mine limestone. After the original lessor died, his estate demanded that the lessee provide weight tickets as provided in the lease agreement. When the lessee failed to comply, the estate filed suit and the lessee counterclaimed. The trial court granted summary judgment to the estate on its claim for declaratory judgment and declared that the lease agreement was terminated. The court also granted summary judgment in favor of the estate on the lessee’s counterclaim for intentional interference with a business relationship. We affirm the decision of the trial court in all respects.

Hardin County Court of Appeals 03/26/19
Lisa Lyon Williams v. Lane Edward Williams
W2018-00800-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

This is a divorce case. Husband/Appellant appeals the trial court’s: (1) award of alimony in futuro to Wife; (2) award of alimony in solido for Wife’s attorney’s fees; and (3) classification of certain jewelry as Wife’s separate property. We affirm.

Madison County Court of Appeals 03/26/19
Christy Keller Elrod Church v. Darrell Gene Elrod
M2018-01064-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Deanna B. Johnson

In this post-divorce petition to modify, the Appellant (former Husband) contends that the trial court erred in concluding that his obligation to provide life insurance for the benefit of Appellee (former Wife) was part of a property settlement and therefore not subject to modification.  The trial court’s order included an upward deviation for support of the parties’ youngest child for the twelve month period prior to her emancipation.  The trial court also ordered Appellant to pay college tuition equal to that of the University of Tennessee at Knoxville without providing any allowance for scholarships and sponsor fees received by the parties’ daughter.  The trial court further found that Appellant was not guilty of civil contempt for failure to make payments into Appellee’s retirement account under the terms of the parties’ Agreed Order of Legal Separation (AOLS).  However, the trial court refused to relieve Appellant of his obligation to continue funding Appellee’s retirement account at the same level as he funds his own retirement account.  We conclude from our review that the life insurance policy obligation constitutes spousal support, which is subject to modification.  We vacate the trial court’s judgment concerning college tuition and hold that Appellant is obligated to pay the cost of tuition and books, less scholarships and sponsor fees received by the parties’ daughter.  All other aspects of the trial court’s order are affirmed.  Accordingly, we affirm in part, reverse in part, and remand for further proceedings in accordance with this opinion.

Williamson County Court of Appeals 03/25/19
John Gunn Et Al. v. Jefferson County Economic Development Oversight Committee, Inc.
E2018-01345-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Don R. Ash, Senior Judge

Because appellants’ notice of appeal was filed more than thirty days following the trial court’s final, appealable judgment, we dismiss this appeal for lack of subject matter jurisdiction.

Jefferson County Court of Appeals 03/25/19
Penklor Properties, LLC v. Jo Ellen Buehler, et al.
W2018-00630-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Jim Kyle

Appellant Mid South Title Services, LLC agreed to act as escrow agent for a real estate transaction in which Appellee Penklor Properties, LLC was the buyer. Appellee tendered earnest money, which, under the Purchase and Sale Agreement, was to be held by Appellant unless and until the parties to the Purchase and Sale Agreement submitted a signed written agreement changing the terms of the escrow. Very shortly after the Purchase and Sale Agreement was signed, Appellant received a purported amendment from the seller’s former attorney and real estate broker. The amendment requested that Appellant release $53,000.00 of the escrowed funds in satisfaction of the attorney/broker’s “former legal fees.” Without inquiring further, Appellant issued the requested check. Appellant later discovered that the amendment was not, in fact, authorized by the parties to the Purchase and Sale Agreement. Appellee filed suit against Appellant for breach of contract and breach of fiduciary duty, and the trial court entered judgment against Appellant. Appellant appeals. We affirm.

Shelby County Court of Appeals 03/25/19
Rosalyn Small v. Memphis-Shelby County Airport Authority
W2018-01461-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Walter L. Evans

This is the second appeal of this wrongful termination of employment case. Appellant/Employee appeals the amount of post judgment interest awarded. Because the trial court’s order does not comply with Tennessee Rule of Civil Procedure 52.01, we cannot conduct a meaningful review. As such, we vacate and remand.

Shelby County Court of Appeals 03/25/19
Auto Glass Company of Memphis, Inc. d/b/a Jack Morris Auto Glass v. David Gerregano Commissioner, Department of Revenue, State of Tennessee
W2018-01472-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Walter L. Evans

This is a taxation dispute between the Commissioner of the Department of Revenue and a Tennessee corporation. The primary point of contention concerns the proper tax classification of the corporation under Tennessee’s Business Tax Act. After paying an amount of taxes that it deemed improper, the corporation filed a claim for refund. The Department of Revenue subsequently denied the claim for refund, and the corporation thereafter filed suit seeking a refund in the Shelby County Chancery Court. The litigation quickly advanced with the filing of competing cross-motions for summary judgment. After a hearing, the chancery court ruled in the corporation’s favor, specifically rejecting the Commissioner’s tax classification of the business. For the reasons stated herein, we affirm.

Shelby County Court of Appeals 03/25/19
Ernest Ray Laning et al. v. Johnny Lawrence et al.
E2017-02479-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Douglas T. Jenkins

This case arises out of a dispute involving conflicting claims to the charter of a local affiliate of a national veteran’s service organization, the ownership of real property held by the local affiliate, and the right to manage a clubroom being operated on the property. The appellants, plaintiffs in the trial court, seek review of an order setting aside the deed upon which their claim to ownership derives and dismissing their claim for damages. Finding no error, we affirm the judgment.

Hamblen County Court of Appeals 03/22/19
In Re: Cynthia P. Et Al.
E2018-01937-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Janice Hope Snider

In this parental termination case, the juvenile court found four statutory grounds for termination of a mother’s parental rights and that termination of parental rights was in her children’s best interest. We conclude that the record contains clear and convincing evidence to support all four grounds for termination of parental rights and that termination of parental rights is in the children’s best interest. So we affirm.

Hamblen County Court of Appeals 03/22/19
In Re: Conservatorship of Gloriadean S. Porter, et al
W2016-00693-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Karen D. Webster

This action concerns the closing of two estates and a conservatorship. A beneficiary appeals the court’s award of attorney fees and expenses to the attorney of record and the subsequent denial of his motion to continue the settlement of the estates. We affirm.

Shelby County Court of Appeals 03/21/19
United Supreme Council AASR SJ, et al v. Fredrick McWilliams, et al
W2018-00116-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Jim Kyle

This appeal concerns a derivative action brought on behalf of a non-profit corporation. Citing alleged embezzlement and misappropriation of funds by the directors, plaintiffs, members of the non-profit at the time of filing, brought a derivative action on behalf of the fraternal and charitable organization. After filing the derivative suit, plaintiffs established and became members of a competing organization. Pursuant to the original organization’s constitution, this caused the plaintiffs to surrender all their membership rights in the original organization. Defendants moved for summary judgment based on plaintiffs’ lack of standing to maintain the derivative action pursuant to Tennessee Rule of Civil Procedure 23.06. The trial court granted the motion, dismissing all of plaintiffs’ claims against defendants, holding that plaintiffs could not fairly and adequately represent the interest of the organization’s remaining members because they themselves were no longer members and because of the conflict of interest inherent in their establishment of the competing organization. We affirm.

Shelby County Court of Appeals 03/21/19
Candance Gooch Spight v. Deangelo M. Spight
W2018-00666-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

This is an appeal from a final decree of divorce. Father/Appellant appeals the trial court’s ruling regarding retroactive child support. The appellate record contains no transcript or statement of the evidence for our review as required by the Tennessee Rules of Appellate Procedure. However, the trial court’s order contains an inconsistency regarding the amount of the retroactive child support award. Specifically, the amount of arrears ordered does not comport with the accrual date for arrears listed in the trial court’s order. Because there are no findings, to resolve the inconsistency, we vacate the trial court’s award of retroactive child support. The trial court’s order is otherwise affirmed.

Madison County Court of Appeals 03/21/19
Rebecca M. Little v. The City Of Chattanooga, Tennessee
E2018-00870-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Pamela A. Fleenor

Plaintiff appeals the dismissal of her complaint, which ostensibly alleged declaratory judgment, inverse condemnation, and due process violations. We vacate the dismissal of Plaintiff’s procedural due process claim because that claim was not actually addressed in the trial court’s order of dismissal. The trial court’s judgment is affirmed in all other respects

Hamilton County Court of Appeals 03/21/19