COURT OF APPEALS OPINIONS

Cathy L. McGowin v. John D. McGowin
E2012-01091-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Ben W. Hooper, II

In this appeal, a show cause order was entered in this case on August 28, 2012, directing counsel for the appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Appellant has responded to the show cause order in a response that does

In Re: Estate of Mina Rhea Martin
E2012-00965-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge J. Reed Dixon

In this action, the Estate has appealed to this Court the denial of an exception to
appellee's claim.

In the Matter of: D.C., Jr., G.C., D.C., and H.C.
W2012-00469-COA-R3-PT
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge James H. Bradberry

This appeal involves the termination of a father’s parental rights. The four children at issue were removed from the father’s home by the Tennessee Department of Children’s Services due to neglect and abuse. After three years, the Department instituted termination proceedings. The juvenile court terminated the father’s parental rights on grounds of abandonment for failure to provide a suitable home, substantial noncompliance with the permanency plan, and persistent conditions, but it declined to find abandonment by failure to support. The father appeals both the grounds for termination and the best interest finding. We reverse the trial court’s holding on abandonment by failure to support, affirm to the remainder, and so affirm the termination of the father’s parental rights.

William R. Adams, et al. v. Maria Walker Gardino
W2011-00773-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Kay S. Robilio

The appellant filed a single-page brief on appeal that fails to comply with the Tennessee Rules of Appellate Procedure. As a result, we dismiss the appeal.

In Re: Emilie A.M.
E2011-02416-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge J. Michael Sharp

This is a termination of parental rights case in which Lisa C. and Michael C. filed a petition to terminate the parental rights of Christopher M. to his child. The paternal grandparents filed an intervening petition to adopt the child. The trial court terminated Christopher M.’s parental rights and granted Lisa C. and Michael C.’s petition to adopt the child. Christopher M. appeals the termination of his parental rights. Following our review, we conclude that the court erred in relying upon Tennessee Code Annotated section 36-1-113(g)(3) in terminating Father’s parental rights and reverse that ground of termination. Additionally, we are unable to review the remainder of the court’s decision because the final order failed to set forth findings of fact as required by section 36-1-113(k) in support of its second ground of termination. Accordingly, we reverse the termination of Father’s parental rights based upon section 36-1-113(g)(3) and vacate the remainder of the final order. The case is remanded for entry of an order that sets forth sufficient findings of fact and conclusions of law regarding the termination of Christopher M.’s parental rights.

John Mark Watkins, Surviving Spouse of Amy Rose Watkins v. Affiliated Internists, P.C., et al.
M2011-00541-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Barbara N. Haynes

Husband of a decedent filed a wrongful death medical malpractice action against the
decedent’s physician and sought to amend his complaint to add a count for negligence per
se based on the physician’s failure to review his physician assistant’s narcotics prescription.
The trial court denied Husband the opportunity to amend his complaint and dismissed the
action on summary judgment. On appeal, the Court of Appeals concluded the trial court
erred in denying Husband’s motion to amend but affirmed the trial court’s other rulings. On
remand, the trial court allowed Husband to amend his complaint to add a count for
negligence per se, but the court then granted the physician’s motion for summary judgment
on the issue of causation. Between the first Court of Appeals decision and this appeal, the
Tennessee Supreme Court decided Estate of French v. Stratford House, 333 S.W.3d 546
(Tenn. 2011), in which it held that negligence per se claims cannot be maintained when
medical malpractice is alleged. The Estate of French holding bars Husband’s negligence per
se claim against the physician. We therefore affirm the trial court’s judgment granting the
physician summary judgment.

In Re: Conservatorship of John Daniel Tate
M2012-01918-COA-10B-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge David Randall Kennedy

This is an interlocutory appeal as of right from the trial court’s denial of a motion for
recusal. Having reviewed the appellant’s petition for recusal appeal pursuant to the de novo
standard as required under Rule 10B, §2.06, we affirm the trial court’s decision to deny the
petitioner’s motion for recusal.

In Re: Conservatorship of Alfonso B. Patton
M2012-01878-COA-10B-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge David Randall Kennedy

This is an interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B
from the trial court’s denial of a motion for recusal. Having reviewed the appellant’s petition
for recusal appeal pursuant to the de novo standard as required under Rule 10B, § 2.06, we
affirm the trial court’s decision to deny the petitioner’s motion for recusal.

In Re: Conservatorship of Alfonso B. Patton
M2012-01880-COA-10B-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge David Randall Kennedy

This is an interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B
from the trial court’s denial of a motion for recusal. Having reviewed the appellant’s petition
for recusal appeal pursuant to the de novo standard as required under Rule 10B, §2.06, we
affirm the trial court’s decision to deny the petitioner’s motion for recusal.

In The Matter Of Abigail F.K.
E2012-00016-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Suzanne Bailey

This appeal concerns the termination of parental rights. The subject child is the eighth born to the appellant mother. The appellant mother failed a prenatal drug screen prior to the birth of the child at issue, so the appellee Tennessee Department of Children’s Services took the child into protective custody three days after birth. A permanency plan was adopted and the mother made efforts to comply with her permanency plan responsibilities. The Department filed a petition to terminate the mother’s parental rights as to this child. The juvenile court terminated the mother’s parental rights based on the grounds of substantial noncompliance with the permanency plan and persistence of conditions. The mother now appeals only as to the grounds for termination. We reverse as to the ground of substantial noncompliance with the permanency plan but affirm as to the ground of persistent conditions. On that basis, we affirm the termination of parental rights.

In Re: Cameron S.H.
E2012-00220-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Tim Irwin

In this parental termination case, the father was appointed counsel at the time the Court held a dependency hearing in the Juvenile Court and the Order appointing counsel in that proceeding also appointed the attorney for the subsequent termination of parental rights trial. When the Petition to terminate the father's parental rights trial was held, neither the father nor counsel appeared at trial and a Judgment was entered terminating the father's parental rights. On appeal, appellant argues that the statue and rule governing this proceeding required notification to the father's attorney. We vacate the Judgment of the Trial Court on the grounds that both the Court and the Department of Children's Services were charged with the knowledge that the appellee was appointed counsel and that the termination Petition's Judgment was prejudicial to the judicial process when the father's lawyer was not notified of the Petition or trial. We vacate and remand for a new trial.

City of Memphis v. Jason Morris, et al.
W2011-02519-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Arnold B. Goldin

A Memphis police officer was terminated after he was involved in a physical altercation with his girlfriend during which she sustained facial injuries. The Civil Service Commission upheld the termination, and the chancery court affirmed. In the initial appeal to this Court, we remanded for the Commission to make  findings of fact and conclusions of law. The Commission issued an amended decision with additional findings. Upon reviewing the amended decision, the chancery court  reversed the termination and reinstated the officer. The City appeals, arguing that the Commission’s decision was supported by substantial and material evidence. The officer presents numerous arguments in support of his assertion that reversal of the Commission was proper. We affirm the order of the chancery court in part, but we vacate the reinstatement of the officer and reinstate the Commission’s decision to uphold termination.

Milledgeville United Methodist Church, et al. v. Jimmy G. Melton, et al.
W2011-01272-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge J. Weber McCraw

This case involves a dispute over the ownership of a parcel of real property. Appellee church purchased the disputed property from the seller bank in 1974, but failed to record its deed. Through a clerical error, the seller bank sold the disputed property to Appellant real estate investor in 2008. Appellant promptly recorded his deed. After the investor demolished a portion of a wall constructed by the church on the disputed property, the church sued to quiet title and for damages. The trial court ruled that the deed to the investor was void as champertous because the church’s possession of the property was open and obvious at the time of conveyance. Thus the trial court ruled that the church was the true owner of the property. Although we affirm the decision of the trial court, we rely on grounds other than those found by the trial court.

Traci Jones v. Bernice Jones et al.
M2011-01791-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Larry B. Stanley, Jr.

This matter arose from a car accident between Traci Jones and Bernice Jones. At trial, the
jury found Bernice Jones 100% at fault and awarded Traci Jones a portion of her requested
relief. On appeal, Traci Jones argues that the trial court erred by reversing its pre-trial ruling
on a motion in limine, denying her motion for mistrial, and denying her motion for directed
verdict. We affirm the trial court’s decision.

Rocky Top Realty, Inc., v. Debra Young, et al
E2011-01966-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Michael W. Moyers

This is the second appeal in this case. In the first appeal we held that the parties did not have a contract for the sale of the property, and we remanded it back to the Trial Court to determine a reasonable fee in quantum meruit for the plaintiff as the facilitator of the sale. Upon remand, the Trial Court heard proof and held that plaintiff was entitled to a 6% commission on the sale price. On appeal, we affirm the Judgment as modified.

Leah Austin v. A-1 Used Restaurant Equipment, Inc.
E2011-02323-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Jean Stanley

Plaintiff purchased a vent hood from defendant. The hood was paid for at the time of purchase and delivered, but was returned to defendant as being unworkable. Plaintiff brought this action for reimbursement of payment for the hood in Sessions Court. Sessions Court entered a Judgment for plaintiff and defendant appealed to the Circuit Court. The Circuit Judge entered Judgment for the plaintiff for $3,500 for the amount paid for the hood to defendant. On appeal, we affirm the Trial Court's Judgment. 

Cass Rye & Associates, Inc. v. Edward Coleman, et al.
M2011-01738-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Robert E. Burch

Plaintiff in suit seeking to have court declare boundaries of fifteen acre tract of land appeals
the declaration of boundaries and award of the tract to Defendants, adjoining landowners.
Defendants appeal finding that Plaintiff adversely possessed a portion of the fifteen acre
tract. Finding no error, we affirm.

Ezra Williams v. Stephen Leon Williams, et al.
E2012-00162-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor E.G. Moody

In January of 2011, Ezra Williams (“Plaintiff”) sued Stephen Leon Williams and Regions Bank . Plaintiff died in May of 2011. Regions Bank filed a Suggestion of Death. No motion for substitution of proper party was made within ninety days after Plaintiff’s death was suggested upon the record. In July of 2011, the attorney who had represented Plaintiff prior to Plaintiff’s death filed a Motion for Voluntary Dismissal. In October of 2011, Regions Bank filed a Motion for Summary Judgment. The Trial Court granted the Motion for Voluntary Dismissal without prejudice. Regions Bank appeals to this Court. We hold that the Trial Court should have dismissed the case pursuant to Tenn. R. Civ. P. 25.01 for failure to timely move for substitution of proper party. We, therefore, vacate the Trial Court’s judgment and dismiss this case pursuant to Tenn. R. Civ. P. 25.01.

Ron Littlefield, et al. v. Hamilton County Election Commission, et al.
E2012-00489-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Jeffery Hollingsworth

This is the second time the attempt to recall Chattanooga’s mayor has been before this court. In the initial appeal, we concluded the trial court acted prematurely and without jurisdiction when it enjoined the election commission from placing the recall issue on the ballot, because the election commission, at that point in time, had not formally decided whether or not to certify the recall petition. After we vacated the void judgment of the trial court, the election commission certified the recall petition and the mayor again filed suit seeking a declaratory judgment that the petition process was flawed and to enjoin the placement of the recall issue on the ballot. The trial court found that the petition seeking the recall of the mayor is invalid and illegal because it does not comply with all the requirements of Tennessee Code Annotated section 2-5-151. The leaders of the recall effort appeal. We affirm in part and reverse in part.

Misty Phillips, on behalf of her minor son Jacob Gentry v. Robertson County Board of Education
M2012-00401-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ross H. Hicks

County appeals the trial court’s decision finding the County liable for injuries sustained by
a student with Asperger’s syndrome in an altercation with another student. Finding that the
evidence does not preponderate against the trial court’s determination, we affirm.

James Michael Pylant et al. v. Bill Haslam, Governor of the State of Tennessee
M2011-02341-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

Petitioners appeal from the dismissal of their complaint for declaratory relief, injunctive
relief, and damages wherein they challenged the constitutionality of a now superseded
section of the Tennessee Bail Reform Act, Tennessee Code Annotated § 40-11-118(a).
Petitioners contended that the 2011 statute prohibited night court judges or magistrates from
setting bail for persons charged with a second or higher driving under the influence violation,
thus requiring they be confined until a general sessions court judge or criminal court judge
was available. The trial court dismissed the claims for declaratory and injunctive relief on the
grounds of res judicata and collateral estoppel and dismissed the claim for monetary damages
against Governor Bill Haslam upon the ground of sovereign immunity. We find the challenge
to the constitutionality of the 2011 version of subsection (a) moot as the challenged
provisions of subsection (a) have been deleted and superseded. We also affirm the dismissal
of the claims against Governor Haslam for monetary damages as he has sovereign immunity.

Dan J. Marcum v. Paul F. Caruana, et al.
M2012-01827-COA-10B-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Franklin L. Russell

The defendant in this action filed a motion for recusal with the trial judge alleging bias against both himself and his counsel. The trial judge denied the motion, and the defendant filed this interlocutory appeal as of right pursuant to Tenn. S. Ct. R. 10B. We affirm the trial court’s denial of the motion for recusal.
 

In Re Estate of Nancy L. Josephson
M2011-01792-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor J. B. Cox

Husband and Wife executed wills in which each relinquished the right of survivorship in the
marital residence and ordered that the property be sold and that $152,000 of the sale proceeds
be distributed to Wife’s children. Following the death of Wife, her children brought action
to compel Husband to dispose of the property in accordance with Wife’s will. Husband
appeals the holding that the wills he and Wife executed created a valid, enforceable contract
that required him to sell their residence upon her death. We affirm the judgment of the trial
court.

Bonnie Faith Rodgers v. Thomas Edward Rodgers
E2011-02190-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge L. Marie Williams

This appeal arises from a divorce. Bonnie Faith Rodgers (“Wife”) sued her husband, Thomas Edward Rodgers (“Husband”), for divorce in the Circuit Court for Hamilton County (“the Trial Court”), alleging inappropriate marital conduct and irreconcilable differences. Wife and Husband had been married for more than 40 years. Husband answered and counterclaimed for divorce, also alleging inappropriate marital conduct. After a trial, the Trial Court divided the marital estate and awarded Wife periodic alimony. Husband appeals, arguing that the Trial Court erred in a host of ways, including its classification and division of the marital estate and its award of periodic alimony to Wife. Husband also appeals the Trial Court’s extending Wife’s Order of Protection against him for an additional five years. Wife raises her own issue regarding the allocation of certain vehicles. We affirm the judgment of the Trial Court in its entirety.

Stephanie and Eddie Woodard v. Lawrence B. Gross, M.D., Eduardo V. Basco, M.D., and Methodist Healthcare-Memphis Hospitals
W2011-02316-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Jerry Stokes

This is a medical malpractice case. The plaintiff patient presented at the hospital emergency room with chest pains; a stent replacement was performed. Three months later, the plaintiff’s treating physician told the plaintiff that she had suffered a heart attack during the stent replacement. The plaintiff obtained all her medical records and filed a lawsuit against the surgeon who performed the stent replacement. This lawsuit was later dismissed without prejudice. After the plaintiff substituted counsel and the plaintiff’s substituted attorney reviewed the medical records, the plaintiff filed a new lawsuit against the emergency room physicians, asserting that they were negligent prior to the stent replacement. The emergency room physicians filed a motion for summary judgment, based in part on the three-year statute of repose. The trial court granted summary judgment in favor of the defendant emergency room physicians, finding that the statute of repose had run on the plaintiff’s claim. The plaintiff patient appeals, arguing that there is an issue of disputed fact as to whether the defendant physicians engaged in fraudulent concealment, so as to toll the time limit under the statute of repose. We affirm.