COURT OF APPEALS OPINIONS

John Patton Et Al. v. Anita Pearson
M2022-00708-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Amanda McClendon

After a fire at a rental home, suit was brought against the tenant.  During discovery, the tenant sought admissions related to the landlords’ insurance coverage and as to whether the suit was actually a subrogation action by the insurer brought in the names of the insured.  As a result of resistance to disclosure, the tenant moved to compel.  The trial court granted the motion.  Following admissions indicating that this suit is a subrogation action by the insurer brought in the names of the insured, the tenant moved for summary judgment asserting that under the Sutton Rule she is an implied co-insured under the landlords’ insurance policy.  Opposition to summary judgment was advanced based upon the purported inapplicability of the Sutton Rule and the purported applicability of the collateral source rule.  The trial court granted summary judgment to the tenant.  This appeal followed.  We affirm the trial court’s grant of the motion to compel and summary judgment in favor of the tenant.

Thomas Builders, Inc. v. CKF Excavating, LLC
M2021-00843-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Anne C. Martin

An arbitrator awarded a subcontractor damages against a general contractor. In chancery court, the general contractor moved to vacate the award on the basis that the arbitrator exceeded his powers. The chancery court denied the motion to vacate and, at the request of the subcontractor, confirmed the arbitration award. We affirm.

Thomas Builders, Inc. v. CKF Excavating, LLC
M2021-00843-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Anne C. Martin

I respectfully disagree with the majority's holding that the doctrine of prior suit pending is inapplicable here. The majority's discussion of prior suit pending is contained in footnote one of its opinion. Therein, the majority notes that the Rogers Group commenced an action (the "Cheatham County case") in Cheatham County against CKF Excavating and TBI. However, the majority omits the fact that TBI filed a cross-claim against CKF in the Cheatham County case. For the reasons discussed below, it is my opinion that TBI's cross-claim triggered the doctrine of prior suit pending and vested jurisdiction in the Cheatham County court. As such, the Davidson County court did not have authority to conduct a review of the arbitrator's decision.

Leah Gilliam v. David Gerregano, Commissioner of the Tennessee Department of Revenue Et Al.
M2022-00083-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Citizens of Tennessee may apply to the Tennessee Department of Revenue (the “Department”) for license plates featuring unique, personalized messages. Tennessee Code Annotated section 55-4-210(d)(2) provides that “[t]he commissioner shall refuse to issue any combination of letters, numbers or positions that may carry connotations offensive to good taste and decency or that are misleading.” After her personalized plate featuring the message “69PWNDU” was revoked by the Department, Leah Gilliam (“Plaintiff”) filed suit against David Gerregano (the “Commissioner”), commissioner of the Department, as well as the then-Attorney General and Reporter. Plaintiff alleged various constitutional violations including violations of her First Amendment right to Free Speech. The Department and the State of Tennessee (together, the “State”) responded, asserting, inter alia, that the First Amendment does not apply to personalized plate configurations because they are government speech. The lower court, a special three judge panel sitting in Davidson County, agreed with the State. Plaintiff appeals, and we reverse, holding that the personalized alphanumeric configurations on vanity license plates are private, not government, speech. We affirm, however, the panel’s decision not to assess discovery sanctions against the State. Plaintiff’s other constitutional claims are pretermitted and must be evaluated on remand because the panel did not consider any issues other than government speech. This case is remanded for proceedings consistent with this opinion.

Duane Dominy Et Al. v. Davidson County Election Commission
M2022-00427-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Plaintiffs brought an action against the Davidson County Election Commission, asserting that the Election Commission violated the Tennessee Open Meetings Act and Metro Code 2.68.020. The chancery court granted judgment on the pleadings to the Election Commission, concluding no violation occurred and that even if there had been a violation it was cured by a subsequent public meeting. Plaintiffs appealed. Defending the chancery court’s judgment, the Election Commission argues that the trial court’s ruling was correct on the merits and that the Plaintiffs are also not entitled to relief because they lack standing and because the matter has become moot. Because the Election Commission presented a well-developed and well-supported argument in favor of mootness and because the Plaintiffs have failed to respond to that argument, we conclude that opposition to the Election Commission’s mootness argument has been waived. Accordingly, we dismiss this appeal.

In Re Noah B. Et Al.
E2022-00432-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Timothy E. Irwin

A mother appeals the trial court’s decision to terminate her parental rights based on the
grounds of (1) abandonment by failure to support, (2) persistence of conditions, and (3)
failure to manifest an ability and willingness to personally assume custody or financial
responsibility of the children. She further challenges the trial court’s finding by clear and
convincing evidence that termination of her parental rights was in the best interest of the
children. We affirm the trial court in all respects.

Aaron Solomon v. Angelia Solomon et al.
M2021-00958-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge James G. Martin, III

Plaintiff sued several defendants over social media posts and the unauthorized use of his and his child’s name, image, and likeness. Plaintiff requested both damages and injunctive relief. In response, defendants petitioned to dismiss under the Tennessee Public Participation Act. Plaintiff then filed notice of a voluntary nonsuit, which defendants opposed. The trial court dismissed the case without prejudice. Because we conclude that nothing in Tennessee Rule of Civil Procedure 41 precludes the voluntary dismissal, we affirm.

Kristopher McMickens v. Vincent J. Perryman, as Administrator of the Estate of Alfred G. Farmer
W2022-00445-COA-R3-Cv
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Jerry Stokes

The plaintiff filed this personal injury action following an automobile accident in which
the other driver died. The plaintiff originally named the defendant as “John Doe, as
Administrator of the Estate of [the deceased driver].” The trial court dismissed the action
on the basis that the plaintiff failed to timely commence the action against the personal
representative of the estate within the applicable statute of limitations. We affirm and
remand.

Wanda Denise Ware v. Metro Water Services, a Division/Agency of Metropolitan Government of Nashville, Davidson County, Tennessee
M2022-01114-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Plaintiff sued for personal injuries under the Tennessee Governmental Tort Liability Act, alleging she had experienced a fall due to an unsecure water meter valve cover located in her sister’s yard. Following a bench trial, the trial court entered an order finding that Plaintiff had not met her burden of proof. Although Plaintiff appeals the dismissal of her case, we affirm the trial court’s judgment.

Charles Youree, Jr. v. Recovery House of East Tennessee, LLC Et Al.
M2021-01504-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Anne C. Martin

A landlord leased property to company A. When company A breached the lease, the landlord filed suit against the company to recover monetary damages. A default judgment was entered against company A and, when company A failed to make any payments on that judgment, the landlord filed suit against company B and company C. The landlord alleged that the corporate veil should be pierced to hold company B and company C liable for company A’s debt because they were the alter egos of company A. After a default judgment was entered against company B and company C, they motioned to have the judgment set aside because the landlord’s complaint failed to allege sufficient facts to state a claim for piercing the corporate veil. The trial court denied the motion to set aside, and the two companies appealed. Discerning that the complaint does not state sufficient factual allegations to articulate a claim for piercing the corporate veil, we reverse and remand.

Katherine J. Hill v. James D. Hill
E2021-00399-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson
Trial Court Judge: Judge Tammy M. Harrington

This appeal stems from a lengthy and acrimonious divorce, wherein the trial court, inter
alia, divided the parties’ marital assets and debts, established a permanent parenting plan
and child support obligations, and declined to award alimony to the husband. Entry of
the trial court’s divorce decree did not occur for approximately twenty-two months
following the trial, however, which the husband argues on appeal constituted a due
process violation. Husband also appeals the trial court’s valuation of certain assets, its
division of the marital estate, its imputation of income to him for child support purposes,
and its failure to join his mother as a necessary and indispensable party. Following our
review, we affirm the trial court’s classification of the parties’ marital residence as
marital property. We also affirm the trial court’s dismissal of the husband’s contempt
petition, its denial of the husband’s motion to join his mother as a party, and its
imputation of income to the husband due to his voluntary unemployment. We vacate the
trial court’s valuation of the parties’ retirement accounts and its division of marital
property, and we remand those issues to the trial court for further proceedings consistent
with this opinion.

Bradley Allen Garrett v. William Tyler Weiss, Et Al.
D2022-01373-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Pamela A. Fleenor

The pro se plaintiff appeals the trial court’s summary judgment dismissal of his legal
malpractice action against his attorney and the attorney’s law firm. The trial court found
that the action was barred by the applicable one-year statute of limitations. Because the
plaintiff’s action accrued more than one year before he filed the lawsuit, we affirm.

City of Benton v. Glenn Austin Whiting
E2022-01382-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Michael E. Jenne

Defendant/Appellant appealed a speeding ticket from Benton City Municipal Court to the Circuit Court for Polk County, Tennessee (the “circuit court”). The City of Benton (the “City”) filed a motion for summary judgment which the circuit court granted on May 18, 2022. Defendant appeals and, discerning no error, we affirm.

Araceli Cordova et al. v. Robert J. Martin
M2021-01412-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge David D. Wolfe,

This is an action for malicious prosecution of an attorney’s fee claim. The plaintiffs contend
that the trial court improperly granted summary judgment to the defendant under the one-year
statute of limitations in Tennessee Code Annotated § 28-3-104(a)(1). The court held
that the plaintiffs’ cause of action accrued when the allegedly-malicious prosecution
terminated, and it held that the prosecution terminated when the first court denied the
defendant’s motion to alter or amend the judgment under Tennessee Rule of Civil
Procedure 59.04. The plaintiffs contend that this is wrong because the defendant was a
party to and participated in the appeal of those proceedings. They assert that the defendant’s
action did not terminate until he exhausted his appellate remedies. We agree and hold that
the defendant’s cause of action did not terminate until his time for filing an appellate brief
expired. Thus, we reverse the decision of the trial court and remand with instructions to
reinstate the complaint and for further proceedings consistent with this opinion.

Karl S. Jackson v. City of Memphis, et al.
W2022-00362-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Jim Kyle

This appeal arises from an employment termination case in which an employee of the Division of Fire Services for the City of Memphis was terminated for a second positive drug test.  After receiving notice of his termination, the employee requested an appeal hearing with the City of Memphis Civil Service Commission.  Following the hearing, the Civil Service Commission issued a decision affirming the termination of his employment.  The employee filed a petition for the trial court to review the decision of the Civil Service Commission.  The trial court found that substantial and material evidence did not support the decision and that the decision was arbitrary and capricious.  Accordingly, the trial court granted the employee’s petition and remanded the matter to the Civil Service Commission.  The City of Memphis appeals.  We vacate the decision of the trial court and remand to the trial court for entry of an order to remand to the Civil Service Commission with instructions to issue a decision addressing certain deficiencies.

In Re: Mitchell B.
M2022-01285-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joe Thompson

In this termination of parental rights case, Appellant/Father appeals the trial court’s termination of his parental rights to the minor child on the grounds of abandonment by failure to visit and failure to support. Father also appeals the trial court’s determination that termination of his parental rights is in the child’s best interest. Discerning no reversible error, we affirm.

In Re Emaire E.
E2022-01015-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Gregory S. McMillan

In this termination of parental rights case, Appellants, Mother and stepfather, filed a
petition to terminate Appellee Father’s parental rights on the grounds of abandonment by
failure to support and failure to visit. Father asserted the absence of willfulness as an
affirmative defense. At the close of proof on grounds, the trial court orally found that
abandonment by failure to support was not shown, but abandonment by failure to visit was
proven. At the close of all proof, the trial court reconsidered its oral ruling on grounds and
determined that Father’s failure to visit was not willful. In its written order, the trial court
found that grounds for termination had not been proven and that, even if grounds existed,
termination of Father’s parental rights was not in the child’s best interest. Discerning no
error, we affirm.

Christopher George Pratt v. Tiffani Hearn Pratt, et al.
W2021-01333-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Valerie L. Smith

This appeal involves the interpretation of a provision in a marital dissolution agreement obligating the father to pay for his son’s “college tuition, expenses, room and board.”  The mother filed a petition for contempt and for breach of contract, seeking a judgment for over $15,000 in expenses that the father refused to pay, as he believed that they were not covered by the language of the MDA.  The father filed a motion for declaratory judgment, seeking a declaration of his obligations.  He asked the trial court to interpret the language of the MDA and also declare that he had fulfilled his obligations under the MDA in light of his son’s struggles in college thus far.  After a two-day evidentiary hearing, the trial court entered a series of orders interpreting the language of the MDA and defining the categories of expenses that the father was obligated to pay.  However, none of the trial court’s orders mention or resolve his request for termination of his obligation.  As a result, we vacate the trial court’s orders 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.

In Re Estate of Robert McKeel Bone
M2022-00771-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Haylee Bradley-Maples

At issue is the validity of an amendment to a revocable trust. The specific issue is whether the Settlor’s attorney-in-fact was authorized to execute an amendment to the Robert McKeel Bone Living Trust. The trial court held that the amendment was valid. We agree. Accordingly, we affirm.

Christopher L. Wiesmueller v. Corrine Oliver Et Al.
M2023-00651-COA-T10B-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Senior Judge Roy B. Morgan, Jr.

This is an accelerated interlocutory appeal as of right pursuant to § 2.02 of Tennessee Supreme Court Rule 10B from the trial court’s denial of a motion for recusal. Having reviewed the petition for recusal appeal, pursuant to the de novo standard as required under Rule 10B, § 2.01, we affirm the trial court’s decision to deny the motion for recusal.

Frances P. Owens v. Vanderbilt University Medical Center
M2021-01273-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Thomas W. Brothers

A patient brought a health care liability action against a hospital after she developed a pressure wound during her hospital stay. The hospital moved for summary judgment on the ground that the patient’s standard of care expert was not competent to testify under the Health Care Liability Act. Alternatively, it sought to narrow the remaining claims through a partial summary judgment. The trial court disqualified the expert witness and granted the hospital summary judgment on all claims. The court’s decision was based, in part, on grounds not raised in the hospital’s motion for summary judgment. Because we conclude that the expert was competent to testify and the trial court erred in ruling on additional grounds not raised by the movant, we vacate the judgment in part.

Wheelhouse Partners, LLC v. Wilson & Associates, PLLC Et Al.
M2022-00369-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Anne C. Martin

This case stems from an unpaid promissory note secured by real property that was sold in foreclosure. Wheelhouse Partners, LLC (“Wheelhouse”), the beneficiary under a second deed of trust on the subject property, sued Wilson & Associates, PLLC (“Wilson”), the substitute trustee under the first deed of trust on the subject property, and James G. Akers and Deborah L. Akers (the “property owners” or, together with Wilson, “Defendants”). Wheelhouse alleged that the foreclosure sale produced excess funds sufficient to satisfy its second deed of trust and promissory note after satisfying the first deed of trust, but that Defendants refused to deliver such funds to Wheelhouse. Wheelhouse also alleged breach of contract against the property owners. Wilson interpleaded the surplus funds into the court and, following a successful motion for summary judgment, Wheelhouse was awarded the balance of its promissory note as well as its attorney’s fees. Mr. Akers appeals. Because his appellate brief does not comply with Tennessee Rule of Appellate Procedure 27, his issues are waived and the lower court’s judgment is affirmed. Because Wheelhouse’s deed of trust clearly provides for an award of attorney’s fees and Wheelhouse properly requested its appellate attorney’s fees, we award Wheelhouse said fees.

In Re Abraham S.
M2022-00690-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Sheila Calloway

Keith S. (“Father”) appeals the termination of his parental rights to his son, Abraham S. (“the Child”). The Juvenile Court for Davidson County (“the juvenile court”) terminated Father’s parental rights based on several statutory grounds: abandonment by failure to visit and failure to support; abandonment by failure to establish a suitable home; persistent conditions; and failure to manifest an ability to assume legal and physical custody. The juvenile court concluded that one alleged ground for termination, substantial noncompliance with permanency plan, was not proven by clear and convincing evidence. Following our review of the record, we affirm the trial court’s ruling as to all but one ground for termination. Because the record contains scant evidence of help offered to Father regarding housing, we conclude that abandonment by failure to establish a suitable home was not proven by clear and convincing evidence. We affirm the juvenile court’s ruling as to the other statutory grounds, and we affirm the ruling that termination of Father’s parental rights is in the Child’s best interests.

In Re Riley B. Et Al.
E2022-00684-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jeffrey D. Rader

A mother appeals the trial court’s decision to terminate her parental rights based on the
grounds of (1) abandonment by failure to support; (2) persistence of conditions; and (3)
failure to manifest an ability and willingness to personally assume custody or financial
responsibility of the child. She further challenges the trial court’s finding by clear and
convincing evidence that termination of her parental rights was in the best interest of the
children. We reverse the trial court’s finding of abandonment by failure to provide a
suitable home, but we affirm the trial court in all other respects.

Annie J. Jones, by and through her conservatorship, Joyce Sons a/k/a Calisa Joyce Sons v. Life Care Centers of America d/b/a Life Care Center of Tullahoma
M2022-00471-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge William A. Lockhart

This appeal arises from an incident in which the nude body of a resident at an assisted living facility was exposed on a video call via telephone when an employee of the healthcare facility engaged in a personal call while assisting the resident in the shower. The resident, by and through her conservator/daughter (“Plaintiff”), sued the owner and operator of the healthcare facility, Life Care Centers of America d/b/a Life Care Center of Tullahoma (“Defendant”), asserting a claim of “Negligence Pursuant to the Tennessee Medical Malpractice Act” and a generalized claim for invasion of privacy with allegations of “Gross Negligence, Willful, Wanton, Reckless, Malicious and/or Intentional Misconduct.” Relying on the undisputed fact that the resident was unaware and never informed that the incident occurred, Defendant moved for summary judgment due to the lack of a cognizable injury or recoverable damages. Plaintiff opposed the motion, contending that actual damages were not an essential element of her claims and, in the alternative, moved to amend the complaint to specifically assert a claim for invasion of privacy based on intrusion upon the resident’s seclusion and a claim for negligent supervision. The trial court summarily dismissed the complaint on the ground “that damages for invasion of privacy . . . cannot be proven as it would be impossible to suffer from personal humiliation, mental anguish or similar damages since [the resident] is unaware that the incident happened” and denied the motion to amend the complaint on the basis of futility. Plaintiff appealed. We have determined that the gravamen of the complaint states a claim for invasion of privacy based upon the distinct tort of intrusion upon seclusion. We have also determined that actual damages are not an essential element of a claim for invasion of privacy based on the distinct tort of intrusion upon seclusion. Thus, Defendant was not entitled to summary judgment. Moreover, granting leave to amend the complaint would not have been futile. Accordingly, we reverse the trial court’s decision to summarily dismiss the complaint, reverse the decision to deny the motion to amend the complaint, and remand with instruction to reinstate the complaint, grant the motion to amend the complaint, and for further proceedings consistent with this opinion.