COURT OF APPEALS OPINIONS

Jason M. Peterson v. Jodi L. Carey
E2022-01656-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge John S. McLellan, III

Jason M. Peterson (“Plaintiff”) was the passenger in a vehicle driven by Jodi L. Carey
(“Defendant”) at the time of a motor vehicle accident. Plaintiff filed a personal injury
action against Defendant more than one year after the accident. Plaintiff argues that
Tennessee Code Annotated section 28-3-104(a)(2) extends the statute of limitations for his
action to two years because Defendant was cited for the violation of a traffic ordinance
contained in the Kingsport Municipal Code in relation to the accident. The Circuit Court
for Sullivan County (“trial court”) applied the one-year statute of limitations set forth in
section 28-3-104(a)(1) and granted summary judgment in favor of Defendant. Finding no
error, we affirm the judgment of the trial court.

In Re Aaliyah P.
M2022-01645-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Sheila Calloway

A mother appeals the termination of her parental rights on the grounds of abandonment by failure to support; abandonment by failure to provide a suitable home; substantial noncompliance with the permanency plans; persistent conditions; and failure to manifest an ability and willingness to assume custody of the children. The mother also appeals the trial court’s finding that termination of her parental rights was in the best interest of the children. We reverse the trial court’s finding on the ground of substantial noncompliance with the permanency plans because the initial permanency plan does not appear in the record, but we affirm the trial court in all other respects.

Dustin Balch v. Brittanie Cilley
M2022-01100-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Todd Burnett

A mother appeals from the judgment holding her in criminal contempt of court, denying her motion to dissolve an ex parte no-contact order entered against her, and denying her motion to transfer the case to another county. Upon a thorough review of the record, we affirm the judgment. Due to the passage of time and the position taken by the parties and by the trial court when issuing its ruling, we remand for a new evidentiary hearing on the ex parte order suspending the mother’s contact with the children.

Jeffrey Swinghold, et al. v. The Farm at Clovercroft Homeowners Association, Inc., et al.
M2022-01633-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Deanna B. Johnson

The plaintiffs filed this breach of contract action against their homeowners association for failure to rectify alleged violations of the neighborhood restrictions. The plaintiffs sought a declaratory judgment establishing that the issues complained of were actual violations of the restrictions. The trial court dismissed the action in favor of the homeowners association and the plaintiffs’ neighbors who joined as interested parties. We affirm.

James Paul Burkhart v. Kathryn Jean Burkhart
M2023-01390-COA-T10B-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Joe Thompson

In this accelerated interlocutory appeal, Appellant seeks to appeal from the denial of three separate motions to recuse the trial judge. As to the first motion, we affirm the trial court’s denial of that motion on the basis of Appellant’s failure to comply with Rule 10B of the Rules of the Supreme Court of the State of Tennessee. As the second and third recusal motion, we dismiss this appeal, as no effective order denying those motions has yet been entered by the trial court.

State of Tennessee v. $133,429 In U.S. Currency Seized From Joni Assefa Kilenton, ET AL
W2022-01075-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge J. Weber McCraw

This appeal arises from a forfeiture action regarding funds seized during a traffic stop. In
a prior appeal, this Court vacated and remanded for entry of an order that complied with
Rule 58 and Rule 52.01 of the Tennessee Rules of Civil Procedure. The trial court entered
an additional order on remand, and the appellant has again appealed. Due to deficiencies
in the appellant’s brief on appeal, we conclude that he waived consideration of his issue on
appeal and hereby dismiss the appeal.

Raymond D. Barnes, Jr. v. Marion L. Barnes
M2022-00328-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Philip E. Smith

After a long-term marriage, the parties divorced. The trial court, which found the husband’s testimony not to be credible, set the value of the marital property, divided the marital property, and awarded alimony in futuro to the wife.  The husband appeals, challenging the credibility finding, the trial court’s valuation of the marital property, the division of property, and the alimony award.  We affirm the trial court’s valuation and distribution of the marital property, but we vacate the trial court’s alimony award, remanding for further proceedings consistent with this opinion.

Meredith Garrett v. Hidden Valley Homes, LLC et al.
M2022-01531-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge James G. Martin, III

In this breach of implied warranty of good workmanship and materials case, the trial court awarded Appellee $77,494.36 in damages. Although the parties agree that the proper measure of damages is the cost to repair the defects, the parties dispute the method of repair and its cost. In determining Appellee’s damages, the trial court relied on testimony from Appellee’s expert contractor. Discerning no error, we affirm the trial court’s order. The parties’ respective requests for appellate attorney’s fees are denied.

In Re Lieselotte H. Rogoish Revocable Living Trust
M2022-01464-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Ben Dean

This appeal arises from a petition filed by a beneficiary of a trust seeking an accounting and removal of the trustee. The trustee asserted the affirmative defense that the beneficiary violated the no-contest clause in the settlor’s trust. The trustee served the beneficiary with requests for admissions, to which the beneficiary responded with objections to the majority of the requests. After the trial court granted his motion for the requests for admissions to be admitted, the trustee filed a motion for partial summary judgment based on the no-contest clauses in the trust and will of the settlor. The trial court granted the motion and dismissed the beneficiary’s petition with prejudice. The beneficiary appealed. We reverse and remand for further proceedings.

Dianne Hamilton, et al. v. Methodist Healthcare Memphis Hospitals
W2022-00054-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Mary L. Wagner

This appeal arises from a health care liability action filed in circuit court by a conservator
on behalf of a ward. After a three-week jury trial resulted in a mistrial, the conservator
took a nonsuit. The conservator refiled the complaint against only one defendant hospital,
asserting that it was vicariously liable for the actions of a doctor based on a theory of
apparent agency. The defendant hospital moved for summary judgment on the basis that
the conservator had entered into a consent agreement agreeing not to sue the doctor in the
refiled suit if the doctor agreed to withdraw his motion for discretionary costs. According
to the defendant hospital, this agreement releasing the alleged agent from liability
extinguished the conservator’s right to pursue a vicarious liability claim against the
principal. In response, the conservator took the position that the consent agreement was
not binding because it was never approved by the probate court that appointed her. The
circuit court granted summary judgment to the defendant hospital, finding that the order
appointing the conservator authorized her to dispose of property, execute instruments, enter
into contracts, pursue legal causes of action, and manage money, thereby authorizing her
to enter into the consent agreement. The circuit court found nothing in the order of
appointment, the relevant statutes, or caselaw that would impose a mandatory requirement
for approval of the settlement by the probate court. Because the conservator had released
the alleged agent from liability, the circuit court found that the conservator could not pursue
vicarious liability claims against the defendant hospital. The conservator filed a motion to
alter or amend, asking the circuit court to consider an “Advisory Opinion” of the probate
court on the matter. The circuit court denied the motion, explaining that it respectfully
disagreed with the Advisory Opinion of the probate court. The conservator appeals. We
affirm and remand for further proceedings.

Akrem Hasan v. Jim Burrow et al.
M2023-01354-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Thomas W. Brothers

This is an appeal from an order denying a motion for relief under Tennessee Rule of Civil Procedure 60.02. Because the appellant did not file his notice of appeal within thirty days after entry of the order as required by Tennessee Rule of Appellate Procedure 4(a), we dismiss the appeal.

In Re Preston H.
M2022-00786-COA-R3-PT
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Sharon Guffee

Courts in both Florida and Ohio denied petitions to terminate Father’s parental rights in favor of the Prospective Adoptive Parents.  While Florida courts were still exercising jurisdiction over the transition of the child from his Prospective Adoptive Parents to his Mother and Father, the Prospective Adoptive Parents sought for the third time to have a court terminate Father’s parental rights, asserting willful failure to support in Tennessee.  The juvenile court dismissed the petition, finding that Father’s failure to support was not willful because the failure to support was tied to the Prospective Adoptive Parents’ representations that they would no longer pursue custody, to Father’s financial outlays related to preparing his home for a transition of custody, and to the complex, multi-jurisdictional nature of the litigation, in which Florida courts were expressly exercising jurisdiction for many months after the filing of the Tennessee petition and during the entirety of the period of non-payment.  The Prospective Adoptive Parents appeal, asserting that the ground for termination was established by clear and convincing evidence, that termination is in the child’s best interest, and that the court erred in assessing fees for the guardian ad litem.  We affirm the judgment of the juvenile court.

In Re Preston H. (Concurring)
M2022-00786-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Sharon Guffee

I concur in the result reached by the Court and in its analysis in all but one respect.  In considering whether the father of Preston H., Christopher W. (“Father”), established an affirmative defense to the claim that he abandoned his child by failure to support, the Court reasons that it is unnecessary to determine “whether willfulness [of Father’s failure to support] presents a question of law, fact, or a mixed question of fact and law.”  In my view, the outcome of the appeal depends on that determination.

Ashley Denson Ex Rel. Bobbie J. Denson v. Methodist Medical Center of Oak Ridge Et Al.
E2023-00027-COA-R9-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Ryan M. Spitzer

This appeal arises from a health care liability action following the death of Ashley Denson
from a cardiac event she suffered after being treated and released from Methodist Medical
Center. Ms. Denson was unmarried and had two minor children at the time of her death.
The statutorily-required pre-suit notice listed Ms. Denson’s mother, Bobbie J. Denson, as
the claimant authorizing notice. The minor children were not identified anywhere in the
notice. The subsequent complaint was filed by “ASHLEY DENSON, Deceased, by and
through her Next Friend and Mother BOBBIE JO DENSON, and BOBBIE JO DENSON,
Individually.” The body of the complaint lists, for the first time, Ashley Denson’s children,
and states that Bobbie Denson “brings this action individually, and on behalf of Plaintiff,
decedent’s surviving minor children … as Grandmother and Legal Guardian.” The
defendants filed motions to dismiss, challenging Bobbie Denson’s standing to bring the
action and contending that the pre-suit notice failed to comply with the requirements of the
Tennessee Health Care Liability Act.1

Ashley Denson Ex Rel. Bobbie J. Denson v. Methodist Medical Center of Oak Ridge Et Al. - DISSENT
E2023-00027-COA-R9-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ryan M. Spitzer

I agree with the majority’s secondary conclusion that Grandmother held standing to
file suit on behalf of the minor children. I write separately to address the majority’s
dispositive holding that failure to identify the minor children in the pre-suit notice defeats
this cause of action, thereby precluding their claim for health care liability for judicial
review on its merits.

Virgie Lee Parker v. Paul J. Parker
E2022-00720-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael E. Jenne

In this post-divorce action, the trial court denied the husband’s petition for contempt upon
finding that the wife had satisfied a provision of the parties’ marital dissolution
agreement allowing for the husband to retrieve items of personal property from a home
awarded to the wife. The court initially awarded attorney’s fees to the wife, pursuant to
Tennessee Code Annotated § 36-5-103(c), for her successful defense against the petition.
Upon the husband’s motion to alter or amend and following a hearing and supplemental
briefing, the trial court concluded that the statute did not provide for attorney’s fees in an
action involving enforcement of the distribution of property in a divorce. The trial court
granted the husband’s motion to alter or amend, denying the wife’s request for attorney’s
fees. The wife has appealed. Upon consideration, we hold that Tennessee Code
Annotated § 36-5-103(c) provides for attorney’s fees solely in matters involving alimony,
child support, permanent parenting plan provisions, and custody of children. We
therefore affirm the trial court’s judgment.

Jacob Thomas Cook Et Al v. Jefferson County, Tennessee Et Al
E2022-01537-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge James L. Gass

This case involves an accident between a motor vehicle and a school bus that occurred on
Highway 11E on a foggy December morning in Jefferson County, Tennessee. The
automobile was traveling eastbound on Highway 11E when it struck the bus, which was
stopped across the two eastbound lanes of Highway 11E positioned to make a left turn onto
the westbound lanes. The driver of the car, Jacob Cook, sustained serious injuries as a
result of the impact. Mr. Cook, together with his grandfather, Rickey Macari, who owned
the vehicle, brought an action in tort seeking damages against Jefferson County, the
Jefferson County Board of Education, and the driver of the school bus, Harold Moody. In
their complaint, Mr. Cook and Mr. Macari alleged that Mr. Moody's negligence in stopping
the school bus across the eastbound lanes was the proximate cause of Mr. Cook's injuries.
The defendants filed a counterclaim alleging that Mr. Cook's negligence, and not Mr.
Moody's, was the proximate cause of the accident because Mr. Cook had been speeding
when the accident occurred. During a bench trial, the defendants' expert witness, an
accident reconstructionist, opined that Mr. Cook had been speeding at the time of the
accident but that Mr. Cook's car would have collided with the stopped school bus even had
he been following the speed limit. At the conclusion of the bench trial, the trial court found
that Mr. Cook was indeed speeding at the time of the accident, but that Mr. Moody should
not have attempted to turn left across the eastbound lanes given the traffic and weather
conditions. Accordingly, the trial court determined that Mr. Moody's actions were the
proximate cause of Mr. Cook's injuries and allocated 80% of the fault for the accident to
Mr. Moody, with 20% of the fault assigned to Mr. Cook. The defendants timely appealed.
Discerning no reversible error, we affirm the trial court's judgment with one modification:
we direct the trial court to dismiss Jefferson County as a defendant because the Jefferson
County Board of Education, as the owner of the school bus, is undisputedly the proper
defendant in this action.

Jeremy Nathaniel Greene v. Laura E. Greene et al.
M2022-01171-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor J. B. Cox

This is a divorce case. Husband appeals the trial court’s valuation and division of marital property and its award of attorney’s fees as alimony in solido to Wife. We affirm the trial court’s valuation and division of marital property. We vacate the trial court’s award of attorney’s fees to wife as alimony in solido based on the lack of findings in the trial court’s order. Tenn. R. Civ. P. 52.01. The case is remanded for findings on the issue of whether an award of attorney’s fees is appropriate under the factors prescribed in Tennessee Code Annotated section 36-5-121 and, if so, whether the amount of attorney’s fees is reasonable.

Victor Lee Hyatt v. Suzanne Lee Hyatt
M2023-00037-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Matthew Joel Wallace,

This appeal arises from a post-divorce petition for contempt. Because we conclude that the trial court’s order failed to resolve all the issues before the court, we dismiss the appeal for lack of a final judgment.

In Re Skylith F. et al.
M2022-01231-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Kathryn Wall Olita

This appeal concerns the termination of a mother’s parental rights. Step-grandparents Joe K. and Lois K. (“Petitioners”) filed a petition in the Circuit Court for Montgomery County (“the Trial Court”) seeking to terminate the parental rights of Vernetta G. (“Mother”) to her minor children, Skylith F., Zelda F., and Celeste G. (“the Children”). After a hearing, the Trial Court entered an order terminating Mother’s parental rights on the grounds of abandonment by failure to support, abandonment by failure to visit, and persistent conditions. Mother appeals. Mother argues, among other things, that she was thwarted by Petitioners from visiting the Children more often than she did. We find by clear and convincing evidence, as did the Trial Court, that Petitioners proved three grounds for termination of Mother’s parental rights. We find further by clear and convincing evidence, as did the Trial Court, that termination of Mother’s parental rights is in the Children’s best interest. We affirm.

In Re Skylith F. et al. (Concurring)
M2022-01231-COA-R3-PT
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Kathryn Wall Olita

I concur in the majority’s thoughtful and well-reasoned opinion, but I write separately to reflect a variance of view with the majority’s determination as to the appropriate four-month statutory time period for assessing the ground for termination for abandonment by failure to support. In assessing abandonment, the General Assembly has directed Tennessee courts to consider “a period of four (4) consecutive months immediately preceding the filing of a proceeding, pleading, petition, or any amended petition to terminate the parental rights . . . .” Tenn. Code Ann. § 36-1-102(1)(A)(i) (West July 1, 2021 to May 8, 2022). The majority concludes that the correct four-month period to examine for the ground of abandonment by failure to support in this case is the four months prior to the granting of the motion to amend, running from July 18, 2021, to November 17, 2021, rather than the four months prior to the time the amended petition was filed on September 24, 2021. I do not necessarily disagree with the majority on this point. Where I respectfully diverge is that I do not think it is necessary to decide between these two time periods in this case and would reserve doing so for a more appropriate case.

Loring Justice Et Al. v. Kim Nelson Et Al.
E2022-01540-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Deborah C. Stevens

This appeal is the latest development in a protracted custody and visitation dispute between
Loring Justice and Kim Nelson. After the Juvenile Court for Roane County (“the Juvenile
Court”) entered a judgment awarding Ms. Nelson custody and severely restricting Mr.
Justice’s parenting time, Mr. Justice filed a complaint in the Circuit Court for Knox County
(“the Trial Court”). He alleged various claims against Ms. Nelson and the lawyers and law
firms that represented her in the Juvenile Court. Ms. Nelson and her attorneys filed motions
for sanctions, alleging that Mr. Justice’s complaint violated Tennessee Rule of Civil
Procedure 11. Months later, Mr. Justice filed a notice of voluntary dismissal. After
entering an order of dismissal, the Trial Court granted Ms. Nelson and her attorneys their
Rule 11 motions and ordered Mr. Justice to pay their attorney’s fees and expenses. Mr.
Justice has appealed. Discerning no reversible error, we affirm the Trial Court’s judgment
in all respects.

RAMA, Inc. d/b/a Discount Liquor v. City of Chattanooga, Tennessee, City Council
E202-01506-COA_R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Pamela A. Fleenor

The appellant applied for a special exception permit allowing it to operate a liquor store in
a location designated as a C-2 Convenience Commercial Zone. The appellee, City Council
for the City of Chattanooga, denied the application based upon a councilmember’s
statements that “the City is turning that area around to meet some different purposes.” The
appellant sought review from the Chancery Court for Hamilton County, which upheld the
decision of City Council. Following careful review, we reverse.

Theresa Barrett v. Justin Garton
M2022-01064-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Thomas W. Brothers

A plaintiff filed suit alleging that the defendant’s negligence caused her to sustain personal injuries in an automobile accident. The plaintiff filed the complaint within one year of the accident, but she failed to have process issued within one year from the filing of the complaint. Thus, the defendant sought summary judgment based on a statute of limitations defense. In response, the plaintiff claimed that the defendant should be estopped from asserting a statute of limitations defense because the parties had agreed that issuance of process was unnecessary. The trial court rejected the plaintiff’s estoppel argument and granted summary judgment to the defendant. Discerning no error, we affirm the trial court’s decision.

Michael Halliburton v. Blake Ballin, et al.
W2023-01304-COA-T10B-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Gina C. Higgins

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme
Court of Tennessee, filed by the plaintiff, Michael Halliburton, seeking to recuse the trial
judge in this case. Having reviewed the petition for recusal appeal filed by Mr. Halliburton,
and finding no error, we affirm.