COURT OF APPEALS OPINIONS

Evon Kay Creger v. Daniel William Creger
M2022-00558-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Bonita Jo Atwood

In this divorce action, the trial court distributed the parties’ marital assets and debts,
fashioned a parenting plan naming the mother primary residential parent and providing
the father with fifty-five annual days of co-parenting time, and set the father’s child
support obligation. The father has appealed. Discerning no reversible error, we affirm
the trial court’s judgment. Deeming this to be a frivolous appeal, we grant the mother’s
request for reasonable attorney’s fees and costs incurred on appeal and remand this issue
to the trial court for a determination regarding the amount.

Teal Properties, Inc. v. Dog House Investments, LLC, et al.
M2022-00128-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Kelvin D. Jones

This appeal arises from a series of civil actions between a tenant and its landlord. The first
action resulted in a ruling that the landlord was “merely a sham or dummy corporation”
and “the alter ego” of its sole shareholder. See Dog House Investments, LLC v. Teal
Properties, Inc., et al., 448 S.W.3d 905, 911 (Tenn. Ct. App. 2014). The second action
resulted in a settlement agreement that entitled the prevailing party in future lease disputes
to an award of related attorney’s fees. The third and present action commenced in 2017
with each party suing the other on various grounds in different courts. Following a
consolidation of the pending actions, the case was tried by a jury, which ruled in favor of
the tenant, Dog House Investments, LLC, (“Dog House”) on the merits. Thereafter, Dog
House filed a motion to recover its attorney’s fees and costs as the prevailing party pursuant
to the 2014 settlement agreement, and the trial court awarded Dog House $292,168.84 in
attorney’s fees and costs. This appeal followed. The sole issue on appeal is the amount of
the attorney’s fees awarded. Finding no abuse of discretion, we affirm. Because Dog House
is also entitled to recover the reasonable and necessary attorney’s fees it incurred in
successfully defending this appeal, we remand for further proceedings consistent with this
opinion.

Adriane Allen v. American Yeast Inc. ET AL.
W2021-00956-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Gina C. Higgins

In a prior appeal involving this case, this Court vacated the trial court’s decision to require
the Appellants herein to interplead funds, but we otherwise affirmed the trial court’s
actions, including the dismissal of the underlying case. Following our remand for further
proceedings consistent with the appellate opinion, such as the collection of costs, the trial
court ruled, notwithstanding our prior affirmance of the case’s dismissal, that the case
“shall be Dismissed With Prejudice” but upon the payment of $300,000.00 into the registry
of the court. The trial court further dismissed, without prejudice, a petition to enforce an
attorney’s lien that plaintiff’s former attorneys had attempted to get the trial court to
adjudicate in the present litigation. Because this Court’s prior opinion affirmed the trial
court’s previous dismissal, thus ending the underlying case, we conclude that the trial
court’s efforts to condition dismissal of the case on remand was in error. Regarding the
petition for enforcement of an attorney’s lien, the issue raised for our review on appeal is
whether the trial court should have transferred the matter to another court division as
opposed to dismissing the petition without prejudice. For the reasons stated herein, we
discern no error with the trial court’s disposition on that issue.

Stephen Farber Et Al. v. Nucsafe, Inc. Et Al.
E2022-00428-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr, P.J., M.S.
Trial Court Judge: Chancellor M. Nichole Cantrell

This is a breach of contract action between a lender, borrower, and guarantor on a promissory note. When the borrower ceased payment on the promissory note and the borrower and guarantor failed to cure the default, the lender commenced this action against the borrower and the guarantor. After extensive discovery, the lender passed away, and the personal representatives of the lender’s estate were substituted as the party plaintiffs. The estate filed a motion for summary judgment based on two grounds. The first ground was that in their discovery responses, the defendants admitted that they failed to remit payments as required by the promissory note. Second, the defendants’ discovery responses denied that the defendants had any facts or evidence upon which to support the affirmative defenses that the lender violated the doctrine of good faith and fair dealing and/or that the note was unenforceable. The defendants filed a response in opposition to the summary judgment motion, supported by the affidavit of the president of both defendants. Relying on the affidavit, the defendants asserted, for the first time, that neither defendant was ever liable for the debt because the lender had never remitted the loan proceeds to the borrower. The trial court ruled that the bulk of the affidavit was inadmissible on three grounds. First, it found the officer’s testimony regarding conversations with the deceased lender inadmissible under the Dead Man’s Statute, Tennessee Code Annotated § 24-1-203. Second, it found certain statements were directly contradictory to previous discovery responses, so the court accordingly rejected the evidence under the Cancellation Rule. Third, it found the business records the affiant referenced in his affidavit but did not produce failed to satisfy the best evidence rule. After considering the statement of undisputed facts, discovery responses, and the defendants’ admissions, the trial court concluded that the material facts were undisputed and that the estate was entitled to judgment as a matter of law. Accordingly, it granted the estate’s motion and awarded a judgment for the outstanding principal and interest totaling $260,710.00 and $12,445.28 in attorneys’ fees and expenses. The defendants appealed. We affirm.

In Re Azhianne G.
E2022-00223-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Darryl Edmondson

This case involves the termination of a mother’s parental rights. The trial court’s order
concluded that the child at issue was a victim of severe abuse perpetrated by the mother
and that termination of her parental rights was in the child’s best interest. The mother now
appeals. Having carefully reviewed the record, we affirm.

Michael Rose v. Tennessee Claims Commission
M2022-00453-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Appellant seeks to appeal a decision regarding a Criminal Injuries Compensation Act claim
on the small claims docket of the Tennessee Claims Commission. Because appeals of
decisions from the small claims docket are prohibited by Tenn. Code Ann. § 9-8-403(a)(2),
the chancellor granted the Claims Commission’s motion to dismiss. We affirm.

Stacie Nicole Martin Waddell v. David Sewall Waddell
W2020-00220-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Felicia Corbin Johnson

In this divorce case, Wife/Appellant appeals the trial court’s: (1) pre-trial rulings
concerning certain entities; (2) denial of her motions for leave to amend the complaint for
divorce; (3) pre-trial procedural rulings; (4) evidentiary rulings; (5) designation of
Husband/Appellee as the primary residential parent and parent with sole decision-making
authority over the parties’ child; (6) child support award; (7) alimony award; (8) denial of
retroactive temporary support; and (9) denial of her request for attorney’s fees. Wife also
asks this Court to award her attorney’s fees incurred in this appeal. For the reasons
discussed below, we vacate in part, reverse in part, and affirm in part. Wife’s request for
appellate attorney’s fees is denied.

Janice Newman Krohn v. Kenneth B. Krohn
M2021-01020-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Joseph P. Binkley, Jr.

A mother obtained an order of protection against her son in general sessions court. The
son appealed to circuit court. Through the parties’ inaction, the case languished for more
than five years, leading to the circuit court dismissing the case. In response, the son filed
various motions and documents seeking restoration of the case to the docket and further
relief, which resulted in a hearing and additional orders being entered by the circuit court.
Through these orders, the circuit court ruled in accordance with the son’s position that the
order of protection was no longer in effect and had not been in effect for years. The circuit
court also concluded that, given the parties’ inaction and because the case had become
moot, dismissal rather than restoration to the docket was appropriate. The son appealed.
We conclude that for purposes of this appeal the case is moot.

In Re Khloe B.
M2022-01013-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Larry B. Stanley

This is the second appeal involving the termination of a mother’s parental rights to this
child. Following a bench trial, the court found that clear and convincing evidence existed
to support termination but failed to identify any specific statutory section in support of its
decision. We vacated the trial court’s decision and remanded for sufficient findings of fact
and conclusions of law. Upon remand, the court offered additional findings of fact and
conclusions of law before ultimately holding that the evidence presented established the
following statutory grounds of termination: (1) abandonment and (2) failure to manifest an
ability and willingness to care for the child. The court also found that termination of the
mother’s rights was in the best interest of the child. We now affirm the court’s ultimate
termination decision.

Janet Graham v. UT Regional One Physicians, Inc.
W2020-01736-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Felicia Corbin Johnson

This appeal concerns the trial court’s decision to dismiss an action under Tennessee Rule
of Civil Procedure 34A.02 and the doctrine of unclean hands. The plaintiff is a Certified
Registered Nurse Anesthetist who alleges that she was harassed and discriminated against
while working for the defendant, a prominent physician group in Memphis, Tennessee. The
trial court found that dismissal was warranted because the plaintiff “willfully deleted text
messages from her personal electronic devices after being placed on notice regarding her
preservation obligations, resulting in the deletion, and therefore spoliation, of critical
evidence that cannot be recovered.” This appeal followed. We conclude that the doctrine
of unclean hands does not apply in this case because the plaintiff’s misconduct relates to
the litigation as a whole, not to her claims. Nonetheless, we also conclude that the trial
court did not exceed its discretion by dismissing the case as a sanction for the plaintiff’s
intentional spoliation of evidence under Rule 34A.02.

Pharma Conference Education, Inc. v. State of Tennessee
W2021-00999-COA-R3-Cv
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Commissioner James A. Hamilton, III

This appeal arises from a breach of contract case that concerned whether the contract at
issue lacked consideration due to an illusory promise. Specifically, the terms of the
contract provided that the plaintiff would produce as many programs “as is feasible.” The
parties filed competing motions for summary judgment. The claims commission granted
the State of Tennessee’s motion for summary judgment finding that the contract between
the parties was devoid of consideration due to an illusory promise and was therefore
unenforceable. Additionally, the claims commission denied the plaintiff’s motion for
summary judgment as to liability and denied the plaintiff’s motion for summary judgment
as to damages finding that the issue was moot. The plaintiff appeals. We affirm.

Ruben Estrada v. DJ Exteriors, LLC et al
M2022-01052-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Michael Binkley

This is an appeal from the granting of a directed verdict on limited issues in a jury trial. At the conclusion of the plaintiff’s proof, the defendant moved for and was granted a directed verdict as to the issues of piercing the corporate veil, fraudulent conveyance, and punitive damages. The trial then continued as to a breach of contract claim asserted by the plaintiff, and the jury ultimately returned a verdict in the plaintiff’s favor. The plaintiff now appeals, arguing that the trial court’s ruling on the motion for directed verdict was in error. Having reviewed the record transmitted to us on appeal, we reverse the trial court’s grant of a directed verdict as to the issues of piercing the corporate veil and fraudulent conveyance, but we affirm as to the issue of punitive damages.

Ruben Estrada v. DJ Exteriors, LLC et al. - Concurring in part and Dissenting in part
M2022-01052-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Michael Binkley

I concur in the majority’s opinion regarding piercing the corporate veil and fraudulent conveyance. I disagree with the majority’s opinion regarding punitive damages. The plaintiff’s argument on this issue is certainly not robust, but I think the intention was simply to rely primarily on the argument regarding fraudulent conveyance to also support the claim for punitive damages. In other words, I read the plaintiff’s brief as arguing that the evidence of an intentional transfer of money to the individual defendants supports both the claim of fraudulent conveyance and punitive damages. Regarding questions of waiver, we should not “exalt form over substance.” Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 511 (Tenn. 2010). Moreover, “the doctrine of waiver generally exists to prevent litigants from raising issues to which their opponents have no opportunity to respond.” Jackson v. Burrell, No. W2018-00057-COA-R3-CV, 2019 WL 237347, at *7 (Tenn. Ct. App. Jan. 16, 2019) (Stafford, J., dissenting). Here, the defendants have been on notice for the entirety of this case that plaintiff seeks punitive damages. For these reasons, I would not consider the issue waived.

Teresa Arlene Simmons Perkins v. Dennis Andrew Perkins
W2021-01246-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Tony Childress

In this divorce case, the wife appeals the trial court’s division of the parties’ marital estate,
while also challenging the amount of the trial court’s award to her of alimony in futuro.
Although the husband contends that the trial court’s division of the marital estate was
equitable, he also raises a challenge to the alimony award, albeit one that submits that the
decision to award any alimony to the wife was in error. For the reasons discussed herein,
we affirm the trial court’s division of the marital estate, modify the alimony award, and
award the wife appellate attorney’s fees for defending against the husband’s raised issue.

In Re Disnie P.
E2022-00662-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Douglas T. Jenkins

This is an appeal involving the termination of parental rights. The trial court entered an
order terminating the parental rights of both the parents on the ground of abandonment by
failure to support pursuant to Tennessee Code Annotated sections 36-1-113(g)(1) and 36-
1-102(1)(A)(i). However, the court found that the petitioners failed to establish the
following grounds for termination: (1) failure to manifest an ability and willingness to
parent; (2) abandonment by incarcerated parent for wanton disregard pursuant to section
36-1-102(1)(A)(iv); (3) substantial noncompliance with a permanency plan; and (4)
persistent conditions. Additionally, the court found that termination was in the best
interests of the child. Both parents appeal, and the petitioners also challenge the trial
court’s findings that two of the grounds were not established. We conclude as follows: (1)
we reverse the court’s finding that the ground of abandonment by failure to support was
established as to both of the parents; (2) we reverse the court’s finding that the ground of
persistent conditions was not established as to the mother but affirm as modified as to the
father; (3) we vacate the ground of failure to manifest an ability and willingness as to both
of the parents but remand only as to the father; and (4) we reverse the court’s finding that
termination of both of the parents’ parental rights was in the best interests of the child and
remand to the trial court for findings on the new best interest factors. Accordingly, we
vacate in part, reverse in part, affirm in part as modified, and remand for further
proceedings consistent with this opinion.

Raymond A. Conn v. William M. Donlon Et Al.
E2022-00419-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Jerri Bryant

The developer of a subdivision filed suit seeking to enforce restrictive covenants against
the owners of property within the first phase of a multi-phase subdivision. In response, the
homeowners filed a motion for summary judgment, arguing that the developer had
breached his fiduciary duty to timely turn over control of the homeowners’ association to
the homeowners for the first phase of the subdivision. The developer also filed a motion
for summary judgment, which was denied by the trial court. The trial court granted
summary judgment in favor of the homeowners upon its determination that the developer
could no longer enforce the restrictive covenants against the homeowners in the first phase
of the subdivision because he was required to turn over control of the homeowners’
association for the first phase of the subdivision to the property owners. We affirm the trial
court’s grant of summary judgment in favor of the homeowners.

In Re Bentley J. Et Al.
E2022-00622-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Kenneth N. Bailey, Jr.

The two minor children of the appellant, Ashlyn C. (“Mother”), came into the custody of the Tennessee Department of Children’s Services (“DCS”) in December of 2020. The children remained there until DCS filed a petition to terminate Mother’s parental rights in October of 2021. Following a bench trial, the trial court determined that DCS proved, by clear and convincing evidence, six grounds for termination: 1) abandonment by an incarcerated parent; 2) abandonment by failure to establish a suitable home; 3) substantial noncompliance with the permanency plan; 4) severe abuse; 5) persistence of conditions; and 6) failure to manifest an ability and willingness to assume custody of and financial responsibility for the children. The trial court also found that termination of Mother’s parental rights was in the children’s best interests. We affirm the trial court’s ruling as to five of the six statutory grounds, and we affirm the trial court’s ruling as to best interests. Consequently, we affirm the trial court’s overall ruling that Mother’s parental rights must be terminated.

In Re Serenity M.
E2022-00682-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jeffrey D. Rader

A mother appeals a trial court’s decision to terminate her parental rights based on the
grounds of (1) abandonment by failure to provide a suitable home, (2) persistence of
conditions, (3) severe child abuse, and (4) 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 child. Discerning no error, we affirm the trial court’s
termination of the mother’s parental rights.

In Re Alyssa A. et al.
M2022-00582-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Kathryn W. Olita

This appeal concerns the termination of a father’s parental rights to his children. The trial court found that the petitioner, the children’s grandmother, established several grounds for terminating the father’s parental rights and that termination of his rights was in the best interests of the children. The father appeals, challenging each ground for termination as well as the trial court’s finding that termination of his parental rights was in the children’s best interests. We affirm the termination of the father’s parental rights.

David Seely et al. v. Geico Advantage Insurance Company
M2021-01263-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas W. Brothers

This is a dispute between two insureds, David Seely and Subhadra Guanawardana (“Plaintiffs”), who co-own the insured vehicle, and their automobile insurance carrier, GEICO Advantage Insurance Company. The dispute arises from a vehicular accident in a McDonald’s restaurant parking lot. Following its investigation into the cause of the accident, GEICO determined that Mr. Seely was at fault when his vehicle collided with another. As a consequence, GEICO paid the claim asserted by the other motorist, placed an “at fault designation” on Plaintiffs’ Comprehensive Loss Underwriting Exchange (“CLUE”) reports,1 and raised Plaintiffs’ premium. Thereafter, Plaintiffs commenced this action against GEICO asserting claims for (1) bad faith, (2) unconscionable contract, (3) violation of the Tennessee Consumer Protection Act, (4) violation of the Fair Credit Reporting Act, and (5) defamation. The trial court dismissed all claims, some pursuant to Tennessee Rule of Civil Procedure 12.02(6) for failure to state a claim, and the remaining claims were dismissed on summary judgment. This appeal followed. We affirm.

Jacky Bellar, Personal Representative of the Estate of Dewey King Knight v. Dwight Anthony Eatherly, et al.
M2022-00403-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Charles K. Smith

This appeal arises from a petition for declaratory judgment to construe a will. At issue is whether the testator intended to bequeath cash, coins, vehicle titles, certificates of deposit, and other financial documents in a lock box located at the testator’s residence pursuant to paragraph FIFTH, which reads: “I devise and bequeath my house and lot . . . where I live . . . to DWIGHT ANTHONY EATHERLY, and I devise and bequeath to him all personal property and household goods and furniture located thereon.” The trial court held that the rule of ejusdem generis limited the testator’s intended meaning of “all personal property” to items of like kind to “household goods and furniture.” The trial court also relied on the principle that “[i]n the absence of a contrary testatorial intent, as a general rule, a bequest of the contents of a house will not include choses in action or money found therein at the testator’s death.” Based on these and other findings, the trial court summarily ruled that the testator did not intend for the contents of the lock box to be part of the bequest in paragraph FIFTH; instead, they were to pass pursuant to the residuary clause in paragraph NINTH. This appeal followed. We affirm.

Kemetria Yarbrough v. Darryl Mitchell
W2021-01174-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Felicia Corbin Johnson

In this contract action, the defendant appeals the trial court’s judgment in favor of the
plaintiff for failure to comply with Rule 52.01 of the Tennessee Rule of Civil Procedure.
Upon review, we conclude that the trial court has failed to include in its final order
appropriate findings of fact and conclusions of law as required by Rule 52.01. Thus, we
vacate the trial court’s judgment and remand this case to the trial court for the entry of a
more detailed order.

Shay Lynn Jeanette Starnes v. Olukayode Akinlaja, M.D., Et Al.
E2021-01308-COA-R10-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge W. Jeffrey Hollingsworth

In this health care liability action, the trial court granted the defendants’ motions to
compel the plaintiff to produce expert witness materials despite the plaintiff’s claim of
the work product doctrine. The trial court subsequently denied the plaintiff’s motion for
interlocutory appeal. Upon the plaintiff’s application, this Court granted leave for an
extraordinary appeal. Determining that the plaintiff has waived any privilege or
protection for specific materials requested by the defendants, including expert witnesses’
notes, draft reports, and communications with counsel, we affirm the trial court’s grant of
the defendants’ motions to compel, inclusive of the trial court’s proviso allowing the
plaintiff to present specific materials for review if she believes they contain mental
impressions of her counsel. However, also determining the trial court’s order to be
overly broad, we modify the language of the order to more closely track the language of
Tennessee Rule of Civil Procedure 26.02(4)(A)(i) and the defendants’ specific requests.

Shay Lynn Jeanette Starnes v. Olukayode Akinlaja, M.D., Et Al.
E2021-01308-COA-R10-CV
Authoring Judge: Chief Judge D. Michael Swiney and Judge Kristi M. Davis
Trial Court Judge: Judge W. Jeffrey Hollingsworth

I concur in the decision to affirm the judgment of the trial court as modified. I do
so because Tennessee law requires the result reached in the Court’s opinion. However, I
write separately to state my view that the 2010 amendment to Federal Rule of Civil
Procedure 26(b)(4), which protects draft reports and communications of expert witnesses
from discovery, is a better approach than that set out in Tennessee Rule of Civil Procedure
26.02 as it is currently written. Tennessee does not offer the same sort of protection from
discovery of draft reports and communications of expert witnesses that is provided under
the federal rules. As a result, and certainly after this Court’s opinion, counsel for both
defendants and plaintiffs likely will decline to write down their communications with
experts and instead rely exclusively on oral communication. Even more concerning, the
experts will communicate with counsel only by oral means leaving counsel, likely not a
healthcare provider, not having the benefit of what she is told being in a more detailed
writing. Counsel for Dr. Akinlaja candidly acknowledged as much at oral arguments,
saying “that is the way that it’s done practically.”

Jay R. Wilfong v. Charles R. Kaelin, Jr.
M2021-01007-COA-R9-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Chancellor Charles K. Smith

This matter is before this court on a Tennessee Rule of Appellate Procedure Rule 9 interlocutory appeal to determine “whether the trial court erred in determining that it cannot order a new trial on the issue of punitive damages only.” Under Tennessee Rule of Civil Procedure 59.07, “[a] new trial may be granted to all or any of the parties and on all or part of the issues in an action . . . .” Accordingly, this court concludes that trial courts may order new trials addressing the limited matter of punitive damages without need of retrying the entirety of the parties’ dispute.