APPELLATE COURT OPINIONS

This appeal arose from a dispute involving an unpaid promissory note. In May 2014, Plaintiff filed its first suit for breach of contract. The trial court dismissed the case under Rule 41.02 for failure to prosecute. Opposing the dismissal, Plaintiff filed a Motion to Reconsider. The trial court denied Plaintiff’s motion and stated the dismissal was neither “with nor without prejudice” and that Plaintiff was “welcome to refile.” Relying on the trial court’s statements, Plaintiff declined to appeal and filed a second action. Defendant filed a Motion to Dismiss the second suit, arguing it is barred by res judicata. The trial court granted Defendant’s motion and denied Plaintiff’s subsequent Motion to Reconsider. We agree with the trial court’s dismissal of this suit and subsequent denial of Plaintiff’s Motion to Reconsider. We therefore affirm the circuit court’s decision and remand.

I again find myself in disagreement from my learned colleagues as to the application of res judicata. Because I cannot conclude that Defendant met its burden to show all the elements of the defense, I respectfully dissent from the majority opinion.

Following a jury trial, the plaintiff was awarded a substantial verdict against the defendant for both compensatory and punitive damages. After the defendant’s motion for a new trial was denied, he appealed to this Court. The defendant now argues, among other things, that the trial court erroneously excluded his expert psychologist from testifying at trial and, further, that the trial court erroneously allowed certain prejudicial evidence against him to be admitted. For the reasons stated herein, we vacate the jury’s verdict and the trial court’s judgment entered in this matter and remand the case for a new trial.

The grandparents of a minor child filed a petition seeking to terminate the parental rights of the child’s biological mother. Following a bench trial, the trial court terminated the mother’s parental rights, determining that clear and convincing evidence existed to establish two statutory grounds for termination: (1) abandonment by failure to visit and (2) failure to manifest an ability and willingness to assume legal and physical custody of or financial responsibility for the child. The trial court also determined by clear and convincing evidence that termination was in the child’s best interest. The mother has appealed. Following our thorough review of the record, we modify the trial court’s judgment to include a determination of clear and convincing evidence of the additional statutory ground of persistence of the conditions leading to the child’s removal from the mother’s custody. We affirm the trial court’s judgment in all other respects, including the termination of the mother’s parental rights.

This appeal concerns the trial court’s grant of a directed verdict in favor of the plaintiffs concerning their claim for surreptitious recording of their conversations, namely wiretapping. We affirm.

This appeal concerns a dispute over an easement agreement (“the Agreement”). In 1995, Samir F. Mishu and Faud E. Mishu, d/b/a M&M Investments (“M&M”), conveyed the eastern parcel of certain land it owned to Excellent Properties, L.P. (“Excellent”). The parties also entered into the Agreement, which provided for a future easement that would connect their properties. The easement’s precise location and dimensions were undefined. Years passed, both properties put in curbing without cuts on their boundaries, and the easement went unutilized. In 2015, Downey Oil Company, Inc. (“Downey”), then lessee of the western parcel, sought for the first time to construct and use the easement. Slyreal Properties, Inc. (“Slyreal”), then owner of the eastern parcel, refused. Downey and M&M (“Plaintiffs,” collectively) brought suit against Slyreal, Pinnacle Bank and Hugh Queener, trustee (“Defendants,” collectively) in the Chancery Court for Knox County (“the Trial Court”). Defendants asserted adverse possession and abandonment. After a trial, the Trial Court ruled for Defendants. Plaintiffs appeal. We find and hold, inter alia, that Defendants failed to prove by clear and convincing evidence that the easement was extinguished by adverse possession or that it was abandoned by Plaintiffs. We reverse the judgment of the Trial Court, and remand for a determination of the easement’s location and dimensions.

The plaintiffs in this construction defect action appeal the trial court’s dismissal of their case with prejudice for failure to comply with the court’s orders. They also allege error concerning the trial court’s refusal to recuse itself, the disqualification of counsel, and the decision to report counsel’s conduct to the Tennessee Board of Professional Responsibility. We vacate the order of dismissal with prejudice and direct entry of dismissal without prejudice. We affirm the court’s order in all other respects.

This appeal concerns healthcare liability. A husband and wife filed an action against six medical care providers alleging negligence in the medical treatment of the wife. The defendants moved to dismiss the suit on the basis of noncompliance with Tennessee Code Annotated section 29-26-121(a)(2)(E), which requires that pre-suit notice include a HIPAA1 compliant medical authorization allowing a healthcare provider receiving a notice to obtain complete medical records from every other provider that is sent a notice. The plaintiffs’ authorization allowed each provider to disclose complete medical records to each named provider but did not state specifically that each provider could obtain records from each other. The trial court held that the authorization failed to substantially comply with the statute’s requirements. The plaintiffs appealed. We hold that Plaintiffs’ method of permitting Defendants access to Mrs. Combs’s medical records substantially complied with Tennessee Code Annotated section 29-26-121(a)(2)E). We reverse the judgment of the trial court.

This pro se appellant appeals the trial court’s dismissal of his lawsuit. We affirm.

The plaintiff and another individual, as co-personal representatives of an estate, filed a probate action, seeking declaratory relief and recovery of personal property concerning a vehicle that allegedly belonged to the estate. This action was voluntarily nonsuited without prejudice in December 2016. In November 2017, the plaintiff, in his individual capacity only, filed a complaint for declaratory relief and recovery of personal property, requesting that the vehicle be returned not to the estate but instead to the plaintiff. The defendants filed a motion to dismiss the plaintiff’s 2017 complaint as being untimely. The Trial Court granted the defendants’ motion to dismiss, finding that the plaintiff’s individual action was not saved by the Tennessee savings statute, codified at Tennessee Code Annotated
§ 28-1-105(a), and was, therefore, untimely. Discerning no error, we affirm.

A mother and father appeal the termination of their parental rights to their child. The juvenile court determined that there was clear and convincing evidence of five grounds for terminating the father’s parental rights and seven grounds for terminating the mother’s parental rights. The court also determined that there was clear and convincing evidence that termination of the mother’s and the father’s parental rights was in the child’s best interest. Upon our review, of the grounds actually alleged for terminating parental rights, only two against the father were supported by clear and convincing evidence. And five of the six grounds alleged for terminating the mother’s parental rights were supported by clear and convincing evidence. We also conclude that termination of both parent’s rights was in the child’s best interest. So we affirm the termination of the mother’s and the father’s parental rights.

A father appeals the termination of his parental rights to his daughter, asserting that the evidence did not establish the three grounds upon which termination was based and that termination was in his child’s best interest. He also argues that he is entitled to a new trial due to ineffective assistance of his trial counsel, the denial of a continuance in order that he could represent himself, and that the court erred in not finding that he was competent to stand trial. Upon our thorough review, we conclude that the father received fundamentally fair procedures; that he waived the issues related to the continuance and his competence to participate in the trial; we reverse the court’s holding with respect to one ground, affirm the rest, and affirm the termination of his rights.

concur with the majority’s opinion except as to the holding that the ground as to the “failure to manifest an ability and willingness to assume custody” was not satisfied. This Court is split on this issue, and I agree with the line of cases that hold that the parent has to be able and willing rather than just either of the two. See In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *12-14 (Tenn. Ct. App. June 20, 2018). I concur in all the rest of the majority’s opinion including termination of the father’s parental rights. Given this Court’s clear and irreconcilable split as to this question of statutory interpretation, I request the Tennessee Supreme Court accept and resolve this issue once it has the opportunity to do so.

Pro se appellant appeals the trial court’s involuntary dismissal of his action pursuant to Tennessee Rule of Civil Procedure 41.02(2). The appellant’s brief significantly fails to comply with Tennessee Rule of Appellate Procedure 27. Accordingly, we find that any issues on appeal are waived. We affirm the trial court’s dismissal.

This is an appeal from the judgment in a personal injury action in which the plaintiff sought to recover damages incurred in a car accident. The trial court granted summary judgment on the issue of liability. Following a hearing on the measure of damages at which the only proof was the plaintiff’s testimony, the trial court entered a $5,000 judgment against the defendants. This appeal followed. Discerning no error, we affirm.

This appeal involves the termination of a mother’s parental rights. The trial court found by clear and convincing evidence that two grounds for termination were proven and that termination was in the best interest of the child. Mother appeals. We affirm and remand for further proceedings.

This is a termination of parental rights case. Appellants, mother and father, appeal the trial court’s termination of their parental rights on the grounds of: (1) abandonment; (2) failure to substantially comply with the requirements of the parenting plans; (3) persistence of the conditions that led to the child’s removal from their custody; and (4) failure to manifest an ability and willingness to assume custody. Discerning no error, we affirm.

This is an appeal from a final decree of divorce entered on November 4, 2019, and an order denying a motion for a new trial entered on January 17, 2020. Because the husband did not file his notice of appeal within thirty days after entry of the order denying the motion for a new trial, we dismiss the appeal.

This case involves the seizure of a Michael Kors bag containing approximately $95,000 in United States currency by police officers who were executing a search warrant at the petitioner’s property during a criminal investigation in May 2017. The petitioner rented the home to her son and his girlfriend, but the petitioner did not reside there. In addition to the $95,000 at issue, officers also discovered at the residence other paraphernalia, including cocaine, marijuana, prescription drugs, several handguns, electronic scales, a money counter, and additional currency. The total amount of currency discovered by officers at the residence was $153,652. Officers seized all currency and sought a forfeiture warrant on the grounds that the money constituted proceeds considered traceable to a violation of the Tennessee Drug Control Act. See Tenn. Code Ann. § 53-11-451(a)(6)(A) (Supp. 2019). The petitioner’s son subsequently pled guilty to several counts of possession with the intent to distribute controlled substances and being a felon in possession of a firearm. The petitioner filed a petition with the Tennessee Department of Safety and Homeland Security (“the State”), requesting an administrative hearing regarding “the majority of” the amount of currency that was seized by law enforcement. Following a hearing, the administrative law judge (“ALJ”) entered a final order, determining that the personal property in question was properly seized and thereby subject to forfeiture. The petitioner subsequently filed a petition for judicial review with the Circuit Court of Davidson County (“trial court”). Following a hearing, the trial court, employing a substantial and material evidence standard of review, affirmed the ALJ’s determination that the currency was subject to forfeiture. The petitioner has appealed. Discerning no reversible error, we affirm.

This is the second appeal of this case involving a local zoning board’s denial of Appellants’ permit to replace a static billboard with an LED digital billboard. The zoning board denied Appellants’ initial application for a permit, and the chancery court affirmed. In the first appeal, this Court vacated the chancery court’s order on its holding that the chancery court lacked subject-matter jurisdiction. Our holding rendered the board’s decision a final judgment. The instant appeal arises from Appellants’ second application for an LED digital billboard on its property. The board again denied the application, and Appellants appealed to the chancery court. The chancery court held, inter alia, that Appellants’ second application was barred as res judicata. Discerning no error, we affirm.

This is the second appeal of this case involving a dispute between two limited liability companies (and an individual with interest in both companies). In the first appeal, this Court remanded the case for the trial court to consider and make appropriate findings concerning the applicability of the doctrines of unjust enrichment and unclean hands. On remand, the trial court held that Appellee had met its burden to show that Appellant would be unjustly enriched if it were allowed to retain Appellee’s construction costs in addition to the stipulated value of the lots, and the profits from the sales of the homes constructed on those lots. The trial court further held that Appellee was not barred from recovery under the doctrine of unclean hands. The trial court also awarded Appellant a portion of its claimed attorney’s fees and costs. Discerning no error, we affirm.

This is a termination of parental rights case. Appellant mother appeals the trial court’s termination of her parental rights on the grounds of: (1) abandonment by an incarcerated parent for failure to visit and wanton disregard; (2) failure to substantially comply with the requirements of the parenting plans; and (3) failure to manifest an ability and willingness to assume custody. Discerning no error, we affirm.

This appeal concerns a post-divorce proceeding for contempt. Wife filed a petition for scire facias and civil contempt, alleging Husband willfully disobeyed the terms of the parties’ marital dissolution agreement. The trial court granted Wife’s petition, awarding her one-half of Husband’s retirement bonus, and held Husband in civil contempt. The trial court granted Wife attorney’s fees for enforcing the parties’ marital dissolution agreement. For the reasons stated herein, we agree that Wife is entitled to one-half of Husband’s net retirement bonus, that Husband willfully violated the parties’ marital dissolution agreement and should be held in civil contempt for  this violation, and that Wife should be awarded attorney’s fees for having to enforce the agreement. We therefore affirm the decision of the circuit court.

This is a termination of parental rights case. The child at issue was removed after her umbilical cord blood tested positive at birth for methamphetamine and amphetamine. The trial court found, by clear and convincing evidence, that mother’s parental rights should be terminated on the grounds of abandonment by the willful failure to visit and the willful failure to provide a suitable home for the child, substantial noncompliance with the permanency plans, persistence of conditions, and failure to manifest an ability and willingness to assume custody or financial responsibility of the child. The trial court further found, by clear and convincing evidence, that termination was in the best interests of the child. Having reviewed the record on appeal, we affirm.

In this estate matter, the trial court determined that when calculating the value of the decedent’s net estate for purposes of determining his widow’s elective share, insurance proceeds and retirement benefits that were distributed via beneficiary designation forms and were not distributed pursuant to the decedent’s last will and testament would not be included in the net estate value pursuant to Tennessee Code Annotated § 31-4-101(b). The widow’s estate has appealed. We affirm the trial court’s interpretation of Tennessee Code Annotated § 31-4-101(b) (2015) and the court’s method of calculating the widow’s elective share by declining to include any assets that passed outside probate in the value of the decedent’s net estate. We vacate, however, the trial court’s valuation of the decedent’s real property, and we remand this issue to the trial court for further determination. Once such value has been established, it should be incorporated into the trial court’s calculation of the widow’s elective share, utilizing the same methodology as was employed by the court in the original calculation. We decline to award attorney’s fees to the widow’s estate on appeal.