COURT OF APPEALS OPINIONS

John Schmeeckle v. Hamilton County, TN, Et Al.
E2023-01533-COA-T10B-CV
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Chancellor Pamela A. Fleenor

Appellant appeals the denial of his motion to recuse the trial judge on the grounds that the trial judge refused to explain the reasons other judges recused from the case, refused to hear evidence of misconduct against an attorney involved in the case, and allegedly ruled erroneously in several respects. Because we conclude that an ordinary person knowing all the facts known to the judge would not question the judge’s impartiality, we affirm.

T.J. Martell Foundation for Cancer Research v. KraftCPAs PLLC et al.
M2022-01821-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Amanda J. McClendon

This appeal followed the trial court’s certification of a final judgment pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Because we conclude that the trial court’s certification was improvidently granted, we dismiss the appeal.

Angellette Batts-Richardson v. Jeremiah Richardson
M2023-00395-COA-R3-CV
Authoring Judge: PER CURIAM
Trial Court Judge: Judge Bonita J. Atwood

This appeal involves a mother’s post-divorce petition for modification of alimony and child support. Because the trial court has not disposed of all of the claims raised in the mother’s petition, we dismiss the appeal for lack of a final judgment.

Christopher Gray Wallace v. Jessica Tomlin Wallace
M2022-01279-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Adrienne Gilliam Fry

Husband and Wife divorced; the trial court divided their property. Husband appeals, asserting five errors. Two of those purported errors are related to continuances, and three are related to the trial court’s division of the couple’s property. With regard the property division, one purported error relates to the trial court’s division of certain vehicles and two purported errors relate to the trial court’s division of two parcels of real property. We conclude that both of Husband’s continuance arguments are waived. We also conclude that his property division argument as to the vehicles is waived. With regard to the real property division, we conclude the trial court made inadequate findings of fact and conclusions of law to explain its decision as to both parcels, and we vacate and remand for the trial court to render further findings of fact and conclusions of law.

Philips North America, LLC v. KPI Healthcare, Inc. et al.
M2022-01688-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joseph A. Woodruff

To collect on its judgment, Appellant judgment creditor served a levy on Appellee garnishee bank. Judgment creditor sought to garnish an escrow account that was subject to an escrow agreement between a third-party and judgment debtor’s representative. Garnishee bank initially responded that it did not have any funds to remit. Thereafter, garnishee bank filed an amended response and enclosed a cashier’s check for $731,598.51, the amount of funds in the escrow account; the check was made payable to the Williamson County Circuit Court. A few days later, garnishee bank filed a motion to return funds deposited into the Clerk’s Office. At trial, garnishee bank argued that it was not properly served with the levy and that, even if service was proper, judgment creditor had no right to collect the funds held in the escrow account. The trial court agreed. We conclude that garnishee bank waived any objection concerning whether the levy was properly served. The trial court’s order is otherwise affirmed.

Laura S. Christie, et al. v. Baptist Memorial Hospital d/b/a Baptist Memorial Hospital for Women, et al.
W2022-01296-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Jerry Stokes

Plaintiffs appeal the dismissal of their health care liability claims against a hospital and two
doctors who treated their daughter on the day of her birth and tragic death. The trial court
reluctantly ruled that the plaintiffs failed to substantially comply with Tennessee Code
Annotated section 29-26-121(a)(2)(E) and dismissed the claims as untimely. We conclude
that the plaintiffs met their burden to show substantial compliance with section 29-26-
121(a)(2)(E) as to the defendant hospital, but not the defendant doctors. We therefore
affirm in part, reverse in part, and remand for further proceedings.

In Re: Conservatorship of Jessica Abeyta
M2023-00972-COA-R3-CV
Authoring Judge: PER CURIAM
Trial Court Judge: Judge Andra J. Hedrick

This is an appeal from a final judgment in a conservatorship case. Because the appellant did not file her notice of appeal with the clerk of the appellate court within thirty days after entry of the final judgment as required by Tennessee Rule of Appellate Procedure 4(a), we dismiss the appeal.

Sarah Bryant v. State of Tennessee
W2022-00968-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Commissioner James A. Hamilton

This appeal follows the dismissal of the appellant’s claim for damages in the Tennessee
Claims Commission. The appellant, who was injured during a class she participated in
while enrolled as a student in the occupational therapy program at the University of
Tennessee Health Science Center, submits that the Commission’s failure to find her
professor negligent was in error. For the reasons stated herein, we affirm.

Diana Lynn Van Zandbergen v. Scott W. Van Zandbergen
M2022-00886-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Vanessa Jackson

In this divorce case, Husband/Appellant appeals the amount and duration of alimony in futuro awarded to Wife/Appellee. Husband also appeals the trial court’s award of attorney’s fees to Wife for Husband’s alleged failure to comply with discovery. We conclude that the amount of alimony in futuro exceeds Wife’s need. As such, the award of alimony in futuro is modified to $3,451.00 per month and shall terminate upon Wife’s death or remarriage, or Husband’s death in accordance with Tennessee Code Annotated section 36-5-121(f)(3). We vacate the trial court’s award of $20,000.00 in attorney’s fees to Wife and remand for the trial court to enter an order containing sufficient findings of fact and conclusions of law regarding this issue pursuant to Tennessee Rule of Civil Procedure 52.01.

Ashleigh Suarez Smallman v. William H. Smallman
M2022-00592-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Phillip R. Robinson

This is a post-divorce action in which both parents seek to modify the permanent parenting plan and the father seeks to reduce his financial support obligations. The mother filed her Petition to Modify Permanent Parenting Plan in which she requested, inter alia, a reduction of the father’s parenting time and that she be awarded sole decision-making authority for the non-emergency medical and educational decisions for the parties’ two minor children. The father filed his Counter-Petition to Modify the Parenting Plan seeking, inter alia, that he be awarded the tie-breaking vote for all medical decisions for the children; that joint decision-making authority for educational decisions be maintained between the parties; that his financial obligations be modified, including child support as well as previously agreed-upon additional educational and medical expenses; and that he be awarded more parenting time. Following a trial that spanned 10 days, the trial court found in a 53-page memorandum opinion and final order that neither party proved a material change of circumstance that justified modification of the parenting schedule. However, the court found the parents’ inability to successfully co-parent under the existing joint decision-making provision adversely affected the children’s non-emergency healthcare and educational needs. The court also found that it was in the children’s best interests that the “[m]other have sole decision-making authority over their non-emergency healthcare and day-to-day education, free of any interference or delays by the father and without being required to consult with him in advance.” The court denied the father’s request to modify child support as well as his request to modify responsibility for educational, medical, and extracurricular expenses. The father appeals. We affirm the trial court in all respects. We also find that the mother is entitled to recover the reasonable and necessary attorney’s fees and expenses she incurred in defending this appeal and remand this issue to the trial court to make the appropriate award.

In Re: Oriana Y.
E2023-00397-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge John C. Rambo

A father appeals the termination of his parental rights to his child. The trial court terminated parental rights on the grounds of abandonment by wanton disregard and failure to manifest an ability and willingness to assume custody or financial responsibility for the child. The court also determined that termination was in the child’s best interest. We agree and affirm.

Nedra R. Hastings v. Larry Maurice Hastings, Jr.
W2022-00433-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Magistrate Terre Fratesi

This case arises from a protracted and contentious child support action, which began in
2005 with a petition for child support filed on behalf of the mother seeking child support
assistance from the father for care of the parties’ minor son. Over the years, the parties
filed numerous petitions to modify the child support amount, petitions for contempt for
failure to pay medical and other expenses, petitions for changes in visitation with the child,
objections to the appointment of magistrates by the juvenile court judge, and requests to
rehear many of the motions and petitions. All pending matters were ultimately dismissed
for failure to prosecute in an order entered December 1, 2020.1 This appeal arises from
two petitions filed by the mother after the dismissal for failure to prosecute. The first was
a petition for contempt against the father for failure to pay medical and dental expenses for
the child and failure to pay the full child support amount, and the second was a petition
seeking payment of extraordinary expenses for the child related to his senior year of high
school and an extension of the father’s child support obligations until the child reached the
age of twenty-one. Upon thorough review of the record and consideration of the issues
raised by the mother on appeal, we affirm the decisions of the trial court.

Public.Resource.Org, et al. v. Matthew Bender & Company, Inc., et al.
M2022-01260-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This appeal concerns a petition to access public records filed against a private entity. David L. Hudson, Jr. (“Hudson”) and Public.Resource.Org filed a petition against Matthew Bender & Company, Inc., a division of LexisNexis Group (“Lexis”), in the Chancery Court for Davidson County (“the Trial Court”) pursuant to the Tennessee Public Records Act (“the TPRA”) seeking access to and a copy of the complete and current electronic version of the Tennessee Code Annotated (“the TCA.”).1 The Tennessee Code Commission (“the Commission”) intervened on Lexis’s side in part to protect the state’s alleged copyright interest in the TCA. The Trial Court held that the TCA is exempt from disclosure because Tennessee law provides a separate avenue for publication of the TCA. In addition to its dispositive ruling, the Trial Court held that Lexis operates as the functional equivalent of a governmental entity, and that the TCA is disqualified from copyright protection. Hudson appeals. Lexis and the Commission raise issues as well. We hold, inter alia, that Lexis is a private company performing specific services for the state on a contractual basis. It has not assumed responsibility for public functions to such an extent as to become the functional equivalent of a governmental entity. We modify the Trial Court’s judgment in that respect. Otherwise, we affirm.

Public.Resource.Org, et al. v. Matthew Bender & Company, Inc., et al. (concurring)
M2022-01260-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle

I would also affirm the dismissal of the petition for access to public records and to obtain judicial review of denial of access. But I would do so only “on the threshold issue” identified by the trial court. The trial court framed the issue as “whether Tennessee Code Annotated constitutes a document required for public access under the Public Records Act.” On that threshold issue, I reach the same conclusion as the trial court and the majority. State law otherwise provides for access to Tennessee Code Annotated, so Tennessee Code Annotated is not a “state record” subject to disclosure under the Public Records Act. See Tenn. Code Ann. § 10-7-503(a)(2)(A) (Supp. 2023) (making all state records “open for personal inspection by any citizen of this state . . . unless otherwise provided by state law”); see also Tennessean v. Metro. Gov’t of Nashville & Davidson Cnty., 485 S.W.3d 857, 865 (Tenn. 2016) (recognizing Tennessee Code Annotated § 10-7- 503(a)(2)(A) as “a general exception to the Public Records Act, based on state law”). The trial court recognized that resolving the threshold issue was “dispositive, making it unnecessary to decide the other two defenses asserted.” Yet, “in the interest of avoiding a time-consuming and expensive remand” in the event of a reversal on the threshold issue, it also ruled on the other defenses.

Nedra R. Hastings v. Larry M. Hastings, Jr.
W2020-01665-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Dan H. Michael

This case involves a protracted and contentious child support action, which began when
the State of Tennessee, acting on behalf of the mother, filed a petition for child support in
2005 against the father for financial support of the parties’ minor son. Over the years, the
parties filed numerous petitions to modify the child support amount, petitions for contempt
for failure to pay medical and other expenses, petitions for changes in visitation for the
child, objections to the appointment of magistrates by the juvenile court judge, and requests
to rehear many of the motions and petitions. The trial court addressed each of these
motions and pleadings as they were filed. On September 1, 2020, a magistrate judge
entered an order ruling on all of the mother’s outstanding motions for rehearing in the case
but reserved the mother’s outstanding petition for contempt against the father for failure to
pay the child’s medical and dental expenses and the mother’s petition for rehearing of a
motion to modify child support. Those matters were set for hearing on November 24, 2020,
before a special judge. At that time, the Tennessee Supreme Court had issued a standing
order that all in-person hearings and trials were suspended due to the COVID-19 pandemic;
therefore, the November 24, 2020 hearing was set to be heard remotely via “Zoom”
technology. The mother objected to the virtual hearing on grounds that the notice was
insufficient and accordingly sought a stay of the pending matters via a motion filed on
November 23, 2020. Neither party appeared for the Zoom hearing on November 24, 2020,
and the special judge dismissed the action for failure to prosecute. The mother then filed
a motion for rehearing and a motion to alter or amend the judgment, both of which were
heard and denied by the special judge. The mother has appealed the trial court’s dismissal
of the child support action. The father has not appeared or filed a responsive brief. Upon
thorough review of the record and consideration of the issues raised by the mother on
appeal, we affirm the decisions of the trial court.

Manola McCain v. Knoxville HMA Physician Management, LLC
E2023-00319-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge E. Jerome Melson

A defendant employer appeals the trial court’s grant of partial summary judgment in this action alleging breach of a plaintiff nurse’s employment contract. We conclude that the contract language is unambiguous and that partial summary judgment in favor of the plaintiff was properly granted. Accordingly, we affirm.

Kim Covarrubias v. Gerald Edward Baker
E2023-00025-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Gregory S. McMillan

This appeal concerns a petition to modify alimony. Gerald Edward Baker (“Petitioner”) filed a petition in the Circuit Court for Knox County (“the Trial Court”) against his ex-wife Kim Covarrubias (“Respondent”) seeking to modify his alimony obligation as a result of a massive post-retirement drop in his income. After a hearing, the Trial Court entered an order declining to modify Petitioner’s alimony obligation despite having found that Petitioner was credible; that his decision to retire was objectively reasonable; and that a substantial and material change in circumstances had occurred. Petitioner appeals. We find, inter alia, that the Trial Court erred by failing to account for Petitioner’s ability to pay in light of all of his expenses. The Trial Court’s decision lacked a factual basis properly supported by evidence in the record; was not based on the most appropriate legal principles applicable to the decision; and was not within the range of acceptable alternative dispositions. Thus, the Trial Court abused its discretion. We reverse the judgment of the Trial Court and remand for the Trial Court to modify Petitioner’s alimony obligation.

Sarah Edge Woodward v. Geoffrey Hamilton Woodward
M2023-01298-COA-T10B-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Phillip R. Robinson

In this ongoing divorce litigation, the father filed an interlocutory appeal from the trial
court’s denial of his motions to recuse the trial judge. Having reviewed father’s petition
under the required de novo standard, we affirm the trial court’s decision.

In Re Blake V.
M2022-01582-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Tim Barnes

A mother sought to terminate the parental rights of her child’s father pursuant to the grounds of abandonment by failure to visit and abandonment by failure to support.  At the conclusion of the termination hearing, the trial court concluded that the mother failed to prove any termination grounds by clear and convincing evidence and dismissed her termination petition.  Determining that the mother lacked standing to seek termination of the father’s parental rights pursuant to those grounds, we affirm the trial court’s dismissal of the termination petition.

Dorothy Elizabeth Slaughter, Jr. v. Steven William Stillwagon
E2023-01531-COA-T10B-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Suzanne S. Cook

In this matter, the petitioner seeks a reversal of the trial court’s decision not to recuse itself. Due to the failure of the petitioner to meet the mandatory requirements of Tennessee Supreme Court Rule 10B, § 2.03, this appeal is dismissed and the trial court’s decision is affirmed.

Natalie C. Grimsley v. Patterson Company, LLC
M2022-00987-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Michael Binkley

The Plaintiff brought suit against her former employer, alleging sexual harassment by her supervisor and claiming constructive discharge. The Employer moved to compel arbitration based on a provision in the Plaintiff’s employment agreement. The Plaintiff responded by invoking the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which the trial court concluded invalidates the mandatory arbitration provision. We reverse the trial court’s decision because the harassment of the Plaintiff and her constructive discharge occurred prior to the effective date of the Act.

John Doe Et AL. v. Bellevue Baptist Church
W2022-01350-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Jerry Stokes

The parents of a child brought suit to personally recover for negligent infliction of
emotional distress in relation to sexual abuse of their child that had been perpetrated by the
defendant church’s former paid volunteer coordinator. The church filed a motion to
dismiss the parents’ claims and argued that the parents’ attempt to recover for negligent
infliction of emotional distress was not legally cognizable because the parents did not
perceive any injury-producing event. The trial court countenanced this position and
entered an order dismissing the parents’ claims. The parents then filed a motion seeking
relief from the dismissal order and, alternatively, to amend their complaint. The trial court
ultimately denied the parents’ motion, following which the present appeal ensued. For the
reasons stated herein, we affirm the trial court’s judgment.

ALEXANDER STRATIENKO v. LISA STRATIENKO
E2022-01802-COA-R3-CV
Authoring Judge: THOMAS R. FRIERSON, II
Trial Court Judge: L. Marie Williams

This post-divorce action concerns the trial court’s order finding the husband in civil
contempt based on his failure to pay alimony to the wife and to maintain security for his
alimony obligation as ordered. The trial court entered an order on April 29, 2022, finding
the husband in contempt and assigning a punishment. Husband did not file a notice of
appeal, or a specified motion tolling the time for filing a notice of appeal pursuant to
Tennessee Rule of Civil Procedure 59.01, within thirty days of entry of the contempt
order. As such, this Court has no subject matter jurisdiction to adjudicate the husband’s
issues concerning interpretation or alteration of the April 29, 2022 contempt order as
sought in his untimely motion filed pursuant to Tennessee Rules of Civil Procedure 52.02
and 59.04. To the extent that the trial court denied relief to the husband pursuant to his
motion based on Tennessee Rule of Civil Procedure 60.02, we find no abuse of discretion
and affirm that ruling. We award to the wife her reasonable attorney’s fees incurred on
appeal, and we remand this issue to the trial court for determination of a reasonable
amount of attorney’s fees incurred by the wife in defending against the husband’s appeal.

In Re: Airies S.
E2023-00462-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Scarlett Wynne Ellis

This appeal involves a petition to terminate parental rights. The juvenile court found by clear and convincing evidence that three grounds for termination existed as to the mother: (1) abandonment by failure to support; (2) persistent conditions; and (3) failure to manifest an ability and willingness to assume custody or financial responsibility. The juvenile court also found that the termination was in the best interest of the child. The mother appeals. We affirm.

Julie Clark v. Wanda Givens, ET AL.
M2022-00341-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Larry J. Wallace

A homeowner, displeased with the work performed by a handyman, brought suit, seeking
damages and relief under the Tennessee Consumer Protection Act. The handyman
counterclaimed for the value of the oral contract for services, asserting the homeowner
breached the contract by improperly terminating it. The circuit court denied relief to both
parties, and the parties appeal. We conclude that the circuit court did not err in determining
that there was no enforceable contract, precluding relief for the handyman. Likewise, the
homeowner is not entitled to relief because the evidence does not preponderate against the
circuit court’s finding that there was no misrepresentation and that the handyman rendered
services to earn certain prepaid amounts. The judgment of the circuit court is affirmed.