COURT OF APPEALS OPINIONS

Bethany Michelle Lovelady v. Nicholas Heath Lovelady
E2023-00020-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Tammy M. Harrington

Because the order appealed from does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

William Foehring, Et Al. v. Town of Monteagle, Tennessee, Et Al.
M2022-00917-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Melissa Thomas Willis

This appeal concerns whether a municipality must have a general plan for development before it can exercise its zoning power. William Foehring, Janice Foehring, William Best, Mary Beth Best, Ron Terrill, and Sandra Terrill (collectively, “Plaintiffs”) sued the Town of Monteagle, Tennessee (“the Town”) and RBT Enterprises, LLC (“RBT”)1 (collectively, “Defendants”) for declaratory judgment in the Chancery Court for Marion County (“the Trial Court”). Plaintiffs challenged the rezoning of a certain parcel which allowed for the development of a truck stop near their homes. Plaintiffs argued that the zoning ordinances at issue, 05-21 and 12-21, were invalid because the Town had no comprehensive or general plan in effect. The Trial Court ruled in favor of Defendants. Plaintiffs appeal. We hold, inter alia, that no comprehensive or general plan was required before the Town could exercise its zoning powers. It was sufficient that the Monteagle Regional Planning Commission (“the Commission”) transmitted to the Town Board of Mayor and Aldermen (“the Board”), the Town’s chief legislative body, the text of a zoning ordinance and zoning maps, which comprised the zoning plan. We affirm the judgment of the Trial Court.

In Re Ciara O., Et Al.
E2022-01179-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James Cotton

This is an appeal involving the termination of parental rights.  The trial court terminated the parental rights of the mother and the fathers of the children on the following grounds: (1) abandonment by failure to support; (2) substantial noncompliance with a permanency plan; (3) persistent conditions; and (4) failure to manifest an ability and willingness to assume custody. The trial court also found that termination was in the best interest of the children.  Only the mother appeals. We affirm.

In Re A.W. Et Al.
E2022-01088-COA-R3-PT
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Brian J. Hunt

Mother appeals the trial court’s termination of her parental rights as to two of her children.
The trial court found as grounds for termination abandonment for failure to provide a
suitable home, persistent conditions, and failure to manifest an ability and willingness to
assume legal and physical custody of the children. The trial court also found that
termination was in the best interest of both children. We find clear and convincing
evidence supports the trial court’s findings as to the grounds for termination and the best
interests of the children. Accordingly, we affirm the trial court’s judgment.

Katrina Greer ET AL. v. Fayette County, Tennessee Board of Zoning Appeals ET AL.
W2022-00783-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge William C. Cole

Appellants filed a petition for common law writ of certiorari, seeking judicial review of
Appellee Fayette County Board of Zoning Appeals’ grant of a special exception to other
Appellees for the construction of a solar farm. The trial court denied the writ of certiorari.
Discerning no error, we affirm.

Automotive Performance Technologies, LLC v. State of Tennessee
W2023-00186-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Commissioner James A. Hamilton, III

The notice of appeal in this case was not timely filed. Therefore, this Court lacks
jurisdiction to consider this appeal.

Sevier County, Tennessee, Et Al. v. Tennessee State Board of Equalization, Et Al.
E2022-00773-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This is an administrative property tax appeal concerning the classification of real property
for ad valorem tax purposes. This action originated with a taxpayer appeal of the property
valuation by the Sevier County property assessor. On appeal, the administrative law judge
re-classified the property as commercial, resulting in a tax assessment of 40% of the fair
market property value. The Assessment Appeals Commission reversed the classification.
The trial court affirmed the reversal. We now reinstate the commercial classification.

Sevier County, Tennessee, Et Al. v. Tennessee State Board of Equalization, Et Al.
E2022-00777-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This is an administrative property tax appeal concerning the classification of real property
for ad valorem tax purposes. This action originated with a taxpayer appeal of the property
valuation by the Sevier County property assessor. On appeal, the administrative law judge
re-classified the property as commercial, resulting in a tax assessment of 40% of the fair
market property value. The Assessment Appeals Commission reversed the classification.
The trial court affirmed the reversal. We now reinstate the commercial classification.

Thomas Stephen Goughenour, Jr. v. Marion Michelle Goughenour
M2022-00297-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Bonita Jo Atwood

This is an appeal from a final decree of divorce involving the trial court’s award of parenting time and requiring parental restrictions. The trial court entered a permanent parenting plan in which Mother and Father were awarded equal parenting time, with Father being named the primary residential parent. The trial court also ordered that neither Father nor Mother were to consume alcohol in the presence of Child. Father appeals. Having carefully reviewed the record, we affirm the trial court’s order. We further award Mother her attorney’s fees on appeal and remand to the trial court for a determination of the amount awarded.

In Re Parker F. Et Al.
M2022-01110-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Kathryn Wall Olita

A father appeals the termination of his parental rights to two children. The trial court concluded that the petitioners proved four statutory grounds for termination by clear and convincing evidence. The court also concluded that there was clear and convincing evidence that termination was in the children’s best interest. After a thorough review, we agree and affirm.

Torrance Taylor v. Board of Administration, City of Memphis Retirement System
W2022-00896-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Gadson W. Perry

This appeal concerns a Memphis police officer’s application for a line-of-duty disability
pension. Torrance Taylor (“Taylor”) filed a petition in the Chancery Court for Shelby
County (“the Trial Court”) seeking judicial review of a decision by the Administrative Law
Judge (“the ALJ”) for the Board of Administration of the City of Memphis Retirement
System denying his application for a line-of-duty disability pension. In 2016, Taylor
injured his left knee in the course of his duty while detaining a suspect. Afterwards, Taylor
retired from the police force and was recommended for ordinary disability benefits. The
ALJ ruled that, based on the opinions of physicians, Taylor’s disability stemmed from a
chronic condition in his left knee and not from his employment. Thus, the ALJ denied
Taylor’s application for a line-of-duty disability pension. The Trial Court upheld the ALJ’s
decision. Taylor appeals to this Court. He argues among other things that, but for his 2016
injury in the line of duty, he would not be disabled. The evidence reflects that Taylor
worked without restriction before the injury in 2016, which ended his police career. We
find that the ALJ’s decision was unsupported by substantial and material evidence. We
further find that the ALJ’s decision was arbitrary and capricious. Taylor is entitled to a
line-of-duty disability pension. We reverse the judgment of the Trial Court.

Torrance Taylor v. Board of Administration, City of Memphis Retirement System -Dissent
W2022-00896-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Chancellor Gadson W. Perry

The majority thoughtfully examines the evidence in the present case and may even
have reached a better understanding of the actual cause of Officer Torrance Taylor’s injury
than was arrived at by the City of Memphis Pension Board and the hearing officer.
However, in its analysis, the majority has engaged, at least in my view, in a reweighing of
the evidence that exceeds the scope of this court’s authority when reviewing such decisions
under the Uniform Administrative Procedures Act. Therefore, I respectfully dissent.

Stephen Charles Johnson v. Elizabeth Kay Johnson
E2022-01635-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Richard B. Armstrong, Jr.

Because the order appealed from does not constitute a final appealable judgment, this Court
lacks jurisdiction to consider this appeal.

In Re Isaiah W. Et Al.
E2022-00575-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge William Erwin Phillips, II

This is a dependency and neglect case concerning two minor children. Appellee Tennessee
Department of Children’s Services received a referral of potential child abuse. Following
a brief investigation, the oldest child was taken into DCS custody after he admitted to
sexually assaulting Appellant, his mother. Three days later the juvenile court sua sponte
ordered the younger child into DCS custody due to allegations of domestic violence and
sexual abuse in the home. Later, the juvenile court adjudicated both children dependent
and neglected. On de novo review, the circuit court found the older child dependent and
neglected under Tennessee Code Annotated section 37-1-102(b)(13)(A) and found both
children dependent and neglected under section 37-1-102(b)(13)(F) and (G). Mother
appeals. Discerning no error, we affirm.

James L. Henry, Jr., Et Al. v. Elizabeth P. Casey Et Al.
E2022-00933-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Pamela A. Fleenor

This appeal stems from the trial court’s dismissal of two creditors’ claims against the
personal representatives of the decedent debtor’s estate. The creditors claimed that the
personal representatives breached their fiduciary duties to the estate by failing to exercise
the decedent’s statutory right, as a surviving spouse, to take an elective share of his
deceased wife’s estate when the time limit for doing so had not yet expired at the time of
the decedent’s death. The creditors also asserted claims against other parties associated
with the personal representatives for conspiracy and inducement. In dismissing the
creditors’ complaint, the trial court determined that (1) Tennessee statutory law provides
that a personal representative of the surviving spouse’s estate “may” take an elective
share on behalf of the surviving spouse who has died, (2) “may” indicates that the
decision is discretionary, (3) the personal representative maintains the same discretion to
elect that the surviving spouse held, (4) the personal representative owes no duty to
creditors of the estate to make the election, and (5) the right to elect is not an asset of the
estate that can be deemed “wasted” if unexercised. The creditors have appealed.
Discerning no reversible error, we affirm.

Joel C. Riley Et Al. v. Hector G. Jaramillo Et Al.
E2022-01181-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This is a dispute involving the usage and subdivision of real property in McMinn County.
The plaintiffs sought declaratory judgment that a restrictive covenant contained in the
deed to their property applied to other parcels originating from the same parent tract.
Upon competing motions for summary judgment and following a hearing, the trial court
entered an order granting summary judgment in favor of the defendants and dismissing
the plaintiffs’ claims with prejudice. The trial court determined that the language in the
plaintiffs’ deed was not sufficient to create an express restrictive covenant upon the
property subsequently conveyed to the defendants and that the plaintiffs did not produce
sufficient evidence of a “common plan” for the original tract such as would warrant
imposition of an implied negative reciprocal easement. The plaintiffs have appealed.
Discerning no reversible error, we affirm

Alyssa Vandyke v. Lilly Cheek ET AL.
M2022-00938-COA-R10-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Adrienne Gilliam Fry

We granted this extraordinary appeal to determine whether the Governmental Tort Liability Act, Tennessee Code Annotated sections 29-20-307 and 29-20-313(b), requires severance in cases involving both non-governmental and governmental entities.  Following the legislature’s amendment of these statutes in 1994, we conclude that, when a jury is demanded, the entire case against both non-governmental and governmental entities shall be tried to a jury without severance. 

The State of Tennessee Ex Rel. Joan Ross Westerman Et Al. v. Peggy D. Mathes Et Al.
M2022-00611-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Anne C. Martin

The trial court granted Defendants/Appellees’ motion for a directed verdict at the close of Plaintiff/Appellant’s proof. Discerning no error, we affirm.

Emma Glover v. Paul Duckhorn
W2022-00697-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robert Samual Weiss

At issue is whether Tennessee Code Annotated § 28-3-104(a)(2) extends the statute of
limitations for a personal injury action to two years when a traffic citation for the violation
of Memphis City Code Ordinance § 11-16-3 for Failure to Maintain Safe Lookout is issued
to the driver alleged to be at fault. Stated another way, is an exception created to the oneyear
statute of limitations for personal injuries if a person involved in an automobile
accident receives a ticket for the violation of a municipal ordinance from that accident?
The trial court ruled in the negative. We affirm.

Meredith Lee Taylor v. Christopher Bryan Taylor
M2022-00140-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge M. Wyatt Burk

This is a divorce action filed by Meredith Lee Taylor (“Mother”) against Christopher Bryan Taylor (“Father”). The trial court divided the marital estate nearly equally and granted Mother primary residential custody of the parties’ child. Father was granted 130 days per year of parenting time. Father appeals, arguing that the trial court erred in its valuation of several marital assets. He also asserts that the trial court should have awarded him more parenting time. We affirm the judgment of the trial court.

Wayne C. Lance v. Alcoa Hotel Hospitality
E2022-01430-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

Because the order appealed from does not constitute a final appealable judgment, this Court
lacks jurisdiction to consider this appeal.

In Re Nevaeh S.
E2022-00959-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge J. Michael Sharp

A mother appeals from the termination of her parental rights to her child on the ground of
severe child abuse. She concedes the ground for termination, but challenges the trial
court’s finding that termination of her parental rights was in the child’s best interest. We
affirm the trial court’s conclusion that clear and convincing evidence supports the
aforementioned ground for termination and that termination is in the child’s best interest.

Stacey Lee (Boyett) v. Brett Carr Boyett
M2022-00060-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Phillip R. Robinson

A father appealed an order requiring his children to receive the COVID-19 vaccine.  While the appeal was pending, both children received the vaccine.  Because we determine that the appeal is moot, we dismiss the appeal.

Fred Hayward v. Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System Et Al.
E2022-00488-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Kyle E. Hedrick

This health care liability action was brought against a hospital and a physician. The
plaintiff sent pre-suit notice to three1 potential defendants prior to initiating the action. The
trial court found, however, that the plaintiff failed to include as part of the pre-suit notice
a HIPAA-compliant medical authorization because one of the six core elements was
incorrect on the authorization. Following a motion to dismiss filed pursuant to Tenn. R.
Civ. P. 12.02(6), the trial court granted the motion and dismissed the action against the
defendant hospital due to noncompliance with Tenn. Code Ann. § 29-26-121. The plaintiff
argues, among other things, that he should have been allowed to conduct limited discovery
in order to determine whether the defendant hospital had been prejudiced by his failure to
provide a HIPAA-compliant medical authorization. We vacate the trial court’s grant of the
motion to dismiss and hold that the plaintiff should have been permitted to conduct limited
discovery regarding whether prejudice existed for the trial court to consider in its
determination of whether the plaintiff substantially complied with the pre-suit notice
requirements of Tenn. Code Ann. § 29-26-121.

Jane Doe v. John David Rosdeutscher, M.D., Et Al.
M2022-00834-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Senior Judge William B. Acree

All of the claims asserted in this action arise from a prior healthcare liability action in which Jane Doe (“Plaintiff”) sued Dr. John Rosdeutscher and his medical group for damages resulting from breast reduction surgery. In the action now on appeal, the complaint asserts claims for invasion of privacy, abuse of process, intentional or reckless infliction of emotional distress, and breach of contract against Dr. Rosdeutscher, his medical group, and the attorneys who represented them in the prior healthcare liability action. All of Plaintiff’s claims pertain to the fact that the defendants filed Plaintiff’s medical records in the healthcare liability action, which included nude photographs of Plaintiff and details about her sexual and mental health history—information that Plaintiff contends had “nothing to do” with her healthcare liability claims. The defendants responded to the complaint by serving a Tennessee Rule of Civil Procedure 11 notice on Plaintiff’s counsel. Shortly thereafter, the defendants filed a Tennessee Rule of Civil Procedure 12.02 motion to dismiss all claims on various grounds. The trial court granted the Rule 12 motion, dismissed all claims, and assessed $10,000 in damages pursuant to Tennessee Code Annotated § 20-12-119 against Plaintiff. The trial court also assessed Rule 11 sanctions against Afsoon Hagh, Plaintiff’s attorney, in the additional amount of $32,151.67. Plaintiff appealed; her attorney did not. Finding no error, we affirm. We also find this appeal to be frivolous and remand for further proceedings consistent with this opinion, including a determination of the reasonable and necessary attorney’s fees and expenses incurred by the defendants in defending this appeal and entry of judgment thereon.