Court of Appeals Opinions

Format: 05/29/2020
Format: 05/29/2020
Sandra Ann Pippin v. Christina Michelle Pippin
M2018-00376-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge John Thomas Gwin

The non-biological parent of a child born by artificial insemination to a woman with whom the non-biological parent had maintained a long term relationship and who had lived with the child, holding herself out as one of the child’s parents, filed a petition to establish her parentage of the child and to set a parenting schedule; the petition was dismissed on the basis that she lacked standing; the trial court also awarded the petitioner visitation with the child. Upon our review, we affirm the dismissal of the petition and vacate the order setting visitation.

Wilson County Court of Appeals 05/14/20
Tinin Contracting Company, Inc., et al v. Enviroworks, Inc.
M2019-00763-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Russell Parkes

This is a case involving the breach of an oral contract to provide excavation work and materials for an airport construction project in Bolivar, Tennessee. The trial court awarded $128,058.09 in favor of the subcontractor against the project’s general contractor. On appeal, the general contractor argued that the oral contract existing between the parties included the subcontractor sharing in certain surveying and testing costs incurred on its scope of work on the project, that it was entitled to a credit for these costs, and that, ultimately, the trial court miscalculated its award of damages. We affirm the trial court’s finding that there was no agreement existing between the parties for the subcontractor to incur any surveying or testing costs and that, as a result, the general contractor was not entitled to a credit for these expenses against the balance of the moneys it owed the subcontractor. However, because the order contains insufficient findings of fact and conclusions of law as to why the trial court included an additional $5,593.40 in the final judgment beyond the damages sought in the complaint, we vacate that portion of the final judgment and remand the case to the trial court with instructions to reduce the judgment against the general contractor from $128,058.09 to $122,464.69.

Wayne County Court of Appeals 05/14/20
Alysia Reese McCracken Hancock v. BJR Enterprises, LLC, Et Al. - Concurring
E2019-01158-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Deborah C. Stevens

I concur in the majority’s decision to affirm the Trial Court. I agree the authorization form was so insufficient as not to allow the medical providers to obtain medical records from the other providers. I, however, continue to adhere to the position as stated in my dissent in Parks v. Walker, 585 S.W.3d 895, 900 (Tenn. Ct. App. 2018) that if a medical authorization form along with other information provided to the healthcare providers is sufficient to enable them to obtain a plaintiff’s records simply by asking, then there is substantial compliance with Tenn. Code Ann. § 29-26-121(a)(2)(E).

Knox County Court of Appeals 05/14/20
Alysia Reese McCracken Hancock v. BJR Enterprises, LLC, Et Al.
E2019-01158-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Deborah C. Stevens

This is a healthcare liability action. In her medical authorizations, the plaintiff left blank lines as to who was authorized to receive the patient’s records from the medical providers and others receiving notice. The defendants claimed that the authorizations were not HIPAA1-compliant, as required by Tennessee Code Annotated section 29-26- 121(a)(2)(E). The plaintiff responded that by construing the pre-suit notice packet materials as one cohesive document, all of the elements required by the statute are present and that the defendants had at their disposal all of the information necessary to obtain the patient’s medical records. The plaintiff further asserted that the failure of the defendants to attempt to obtain the records precludes any demonstration of prejudice to them. The trial court determined that the plaintiff’s statutory notice failed to substantially comply with the requirements of Tennessee Code Annotated section 29-26-121. The plaintiff appeals. We affirm.

Knox County Court of Appeals 05/14/20
Tiffany C. Roby v. NationStar Mortgage, LLC, et al.
W2019-00730-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Mary L. Wagner

This appeal stems from a dispute involving real property that Plaintiff acquired online. The property was previously purchased in a foreclosure action by one of the defendants. The previous owners were holdover occupants of the property. After purchasing the property, Plaintiff signed a real estate purchase contract and closed approximately two and one-half months thereafter. Due to delays in litigation involving the holdover occupants, Plaintiff was unable to take possession of the property for nearly two years after purchasing it online. In this case, Plaintiff brought suit against NationStar Mortgage, LLC; U.S. Bank, N.A.; Auction.com, LLC; and WFG National Title Insurance Company on several contract-related claims and alleged violations of the Tennessee Consumer Protection Act. Auction.com and WFG were dismissed prior to trial. The remaining defendants moved for summary judgment on all of the claims, which the trial court granted in part and denied in part. A jury trial was held on the remaining claims. At the close of Plaintiff’s proof at trial, the defendants moved for a directed verdict, which the court again granted in part and denied in part. One claim under the Tennessee Consumer Protection Act went to the jury, which found in favor of Plaintiff and awarded a verdict of $250,000. The parties filed separate post-trial motions. The trial court granted the defendants’ motion for judgment notwithstanding the verdict and denied the other requests of the parties or found them to be moot. For the reasons stated herein, we affirm the decisions of the trial court and remand.

Shelby County Court of Appeals 05/11/20
Connie Ellis v. Mike K. Modi
M2019-01161-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Following a jury trial, the plaintiff was awarded a substantial verdict against the defendant for both compensatory and punitive damages. After the defendant’s motion for a new trial was denied, he appealed to this Court. The defendant now argues, among other things, that the trial court erroneously excluded his expert psychologist from testifying at trial and, further, that the trial court erroneously allowed certain prejudicial evidence against him to be admitted. For the reasons stated herein, we vacate the jury’s verdict and the trial court’s judgment entered in this matter and remand the case for a new trial.

Davidson County Court of Appeals 05/11/20
Regions Bank v. Nathan I. Prager - Dissent
W2019-00782-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

I again find myself in disagreement from my learned colleagues as to the application of res judicata. Because I cannot conclude that Defendant met its burden to show all the elements of the defense, I respectfully dissent from the majority opinion.

Shelby County Court of Appeals 05/11/20
Regions Bank v. Nathan I. Prager
W2019-00782-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James F. Russell

This appeal arose from a dispute involving an unpaid promissory note. In May 2014, Plaintiff filed its first suit for breach of contract. The trial court dismissed the case under Rule 41.02 for failure to prosecute. Opposing the dismissal, Plaintiff filed a Motion to Reconsider. The trial court denied Plaintiff’s motion and stated the dismissal was neither “with nor without prejudice” and that Plaintiff was “welcome to refile.” Relying on the trial court’s statements, Plaintiff declined to appeal and filed a second action. Defendant filed a Motion to Dismiss the second suit, arguing it is barred by res judicata. The trial court granted Defendant’s motion and denied Plaintiff’s subsequent Motion to Reconsider. We agree with the trial court’s dismissal of this suit and subsequent denial of Plaintiff’s Motion to Reconsider. We therefore affirm the circuit court’s decision and remand.

Shelby County Court of Appeals 05/11/20
Ronald Ledford, Et Al. v. John Ben Sneed, Et Al.
E2018-00904-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge J. Michael Sharp

This appeal concerns the trial court’s grant of a directed verdict in favor of the plaintiffs concerning their claim for surreptitious recording of their conversations, namely wiretapping. We affirm.

McMinn County Court of Appeals 05/08/20
In Re Eli H.
E2019-01028-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Elizabeth C. Asbury

The grandparents of a minor child filed a petition seeking to terminate the parental rights of the child’s biological mother. Following a bench trial, the trial court terminated the mother’s parental rights, determining that clear and convincing evidence existed to establish two statutory grounds for termination: (1) abandonment by failure to visit and (2) failure to manifest an ability and willingness to assume legal and physical custody of or financial responsibility for the child. The trial court also determined by clear and convincing evidence that termination was in the child’s best interest. The mother has appealed. Following our thorough review of the record, we modify the trial court’s judgment to include a determination of clear and convincing evidence of the additional statutory ground of persistence of the conditions leading to the child’s removal from the mother’s custody. We affirm the trial court’s judgment in all other respects, including the termination of the mother’s parental rights.

Claiborne County Court of Appeals 05/08/20
Downey Oil Company, Inc., Et Al. v. Slyreal Properties, Inc., Et Al.
E2019-01169-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge John F. Weaver

This appeal concerns a dispute over an easement agreement (“the Agreement”). In 1995, Samir F. Mishu and Faud E. Mishu, d/b/a M&M Investments (“M&M”), conveyed the eastern parcel of certain land it owned to Excellent Properties, L.P. (“Excellent”). The parties also entered into the Agreement, which provided for a future easement that would connect their properties. The easement’s precise location and dimensions were undefined. Years passed, both properties put in curbing without cuts on their boundaries, and the easement went unutilized. In 2015, Downey Oil Company, Inc. (“Downey”), then lessee of the western parcel, sought for the first time to construct and use the easement. Slyreal Properties, Inc. (“Slyreal”), then owner of the eastern parcel, refused. Downey and M&M (“Plaintiffs,” collectively) brought suit against Slyreal, Pinnacle Bank and Hugh Queener, trustee (“Defendants,” collectively) in the Chancery Court for Knox County (“the Trial Court”). Defendants asserted adverse possession and abandonment. After a trial, the Trial Court ruled for Defendants. Plaintiffs appeal. We find and hold, inter alia, that Defendants failed to prove by clear and convincing evidence that the easement was extinguished by adverse possession or that it was abandoned by Plaintiffs. We reverse the judgment of the Trial Court, and remand for a determination of the easement’s location and dimensions.

Knox County Court of Appeals 05/07/20
Joel Diemoz, et al. v. Eric Huneycutt, et al.
M2018-0116-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ross H. Hicks

The plaintiffs in this construction defect action appeal the trial court’s dismissal of their case with prejudice for failure to comply with the court’s orders. They also allege error concerning the trial court’s refusal to recuse itself, the disqualification of counsel, and the decision to report counsel’s conduct to the Tennessee Board of Professional Responsibility. We vacate the order of dismissal with prejudice and direct entry of dismissal without prejudice. We affirm the court’s order in all other respects.

Montgomery County Court of Appeals 05/06/20
Tammy Combs Et Al. v. Leslie Milligan, M.D. Et Al.
E2019-00485-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Rex H. Ogle

This appeal concerns healthcare liability. A husband and wife filed an action against six medical care providers alleging negligence in the medical treatment of the wife. The defendants moved to dismiss the suit on the basis of noncompliance with Tennessee Code Annotated section 29-26-121(a)(2)(E), which requires that pre-suit notice include a HIPAA1 compliant medical authorization allowing a healthcare provider receiving a notice to obtain complete medical records from every other provider that is sent a notice. The plaintiffs’ authorization allowed each provider to disclose complete medical records to each named provider but did not state specifically that each provider could obtain records from each other. The trial court held that the authorization failed to substantially comply with the statute’s requirements. The plaintiffs appealed. We hold that Plaintiffs’ method of permitting Defendants access to Mrs. Combs’s medical records substantially complied with Tennessee Code Annotated section 29-26-121(a)(2)E). We reverse the judgment of the trial court.

Jefferson County Court of Appeals 05/01/20
Daniel Eric Cobble v. Erlanger Hospital
E2019-00417-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kyle E. Hedrick

This pro se appellant appeals the trial court’s dismissal of his lawsuit. We affirm.

Hamilton County Court of Appeals 04/30/20
In Re Isabella W. - Concur and Dissent
E2019-01346-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Timothy E. Irwin

concur with the majority’s opinion except as to the holding that the ground as to the “failure to manifest an ability and willingness to assume custody” was not satisfied. This Court is split on this issue, and I agree with the line of cases that hold that the parent has to be able and willing rather than just either of the two. See In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *12-14 (Tenn. Ct. App. June 20, 2018). I concur in all the rest of the majority’s opinion including termination of the father’s parental rights. Given this Court’s clear and irreconcilable split as to this question of statutory interpretation, I request the Tennessee Supreme Court accept and resolve this issue once it has the opportunity to do so.

Knox County Court of Appeals 04/29/20
In Re Isabella W.
E2019-01346-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Timothy E. Irwin

A father appeals the termination of his parental rights to his daughter, asserting that the evidence did not establish the three grounds upon which termination was based and that termination was in his child’s best interest. He also argues that he is entitled to a new trial due to ineffective assistance of his trial counsel, the denial of a continuance in order that he could represent himself, and that the court erred in not finding that he was competent to stand trial. Upon our thorough review, we conclude that the father received fundamentally fair procedures; that he waived the issues related to the continuance and his competence to participate in the trial; we reverse the court’s holding with respect to one ground, affirm the rest, and affirm the termination of his rights.

Knox County Court of Appeals 04/29/20
In Re Boston G.
M2019-00393-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge William M. Locke

A mother and father appeal the termination of their parental rights to their child. The juvenile court determined that there was clear and convincing evidence of five grounds for terminating the father’s parental rights and seven grounds for terminating the mother’s parental rights. The court also determined that there was clear and convincing evidence that termination of the mother’s and the father’s parental rights was in the child’s best interest. Upon our review, of the grounds actually alleged for terminating parental rights, only two against the father were supported by clear and convincing evidence. And five of the six grounds alleged for terminating the mother’s parental rights were supported by clear and convincing evidence. We also conclude that termination of both parent’s rights was in the child’s best interest. So we affirm the termination of the mother’s and the father’s parental rights.

Warren County Court of Appeals 04/29/20
Terry Townsend v. David W. Little Et Al.
E2019-00706-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor John C. Rambo

The plaintiff and another individual, as co-personal representatives of an estate, filed a probate action, seeking declaratory relief and recovery of personal property concerning a vehicle that allegedly belonged to the estate. This action was voluntarily nonsuited without prejudice in December 2016. In November 2017, the plaintiff, in his individual capacity only, filed a complaint for declaratory relief and recovery of personal property, requesting that the vehicle be returned not to the estate but instead to the plaintiff. The defendants filed a motion to dismiss the plaintiff’s 2017 complaint as being untimely. The Trial Court granted the defendants’ motion to dismiss, finding that the plaintiff’s individual action was not saved by the Tennessee savings statute, codified at Tennessee Code Annotated
§ 28-1-105(a), and was, therefore, untimely. Discerning no error, we affirm.

Washington County Court of Appeals 04/29/20
In Re C.S.
E2019-01657-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Douglas T. Jenkins

This appeal involves the termination of a mother’s parental rights. The trial court found by clear and convincing evidence that two grounds for termination were proven and that termination was in the best interest of the child. Mother appeals. We affirm and remand for further proceedings.

Hawkins County Court of Appeals 04/29/20
Shelby K. Marsh v. Angela D. Lowe Et Al.
E2019-00697-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Donald R. Elledge

This is an appeal from the judgment in a personal injury action in which the plaintiff sought to recover damages incurred in a car accident. The trial court granted summary judgment on the issue of liability. Following a hearing on the measure of damages at which the only proof was the plaintiff’s testimony, the trial court entered a $5,000 judgment against the defendants. This appeal followed. Discerning no error, we affirm.

Anderson County Court of Appeals 04/29/20
Walter Payne v. Kroger Limited Partnership I
W2019-00479-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Felicia Corbin Johnson

Pro se appellant appeals the trial court’s involuntary dismissal of his action pursuant to Tennessee Rule of Civil Procedure 41.02(2). The appellant’s brief significantly fails to comply with Tennessee Rule of Appellate Procedure 27. Accordingly, we find that any issues on appeal are waived. We affirm the trial court’s dismissal.

Shelby County Court of Appeals 04/29/20
Wanda Tubbs v. Jeff Long, as Commissioner of Tennessee Department of Safety and Homeland Security
M2019-00627-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Kelvin D. Jones

This case involves the seizure of a Michael Kors bag containing approximately $95,000 in United States currency by police officers who were executing a search warrant at the petitioner’s property during a criminal investigation in May 2017. The petitioner rented the home to her son and his girlfriend, but the petitioner did not reside there. In addition to the $95,000 at issue, officers also discovered at the residence other paraphernalia, including cocaine, marijuana, prescription drugs, several handguns, electronic scales, a money counter, and additional currency. The total amount of currency discovered by officers at the residence was $153,652. Officers seized all currency and sought a forfeiture warrant on the grounds that the money constituted proceeds considered traceable to a violation of the Tennessee Drug Control Act. See Tenn. Code Ann. § 53-11-451(a)(6)(A) (Supp. 2019). The petitioner’s son subsequently pled guilty to several counts of possession with the intent to distribute controlled substances and being a felon in possession of a firearm. The petitioner filed a petition with the Tennessee Department of Safety and Homeland Security (“the State”), requesting an administrative hearing regarding “the majority of” the amount of currency that was seized by law enforcement. Following a hearing, the administrative law judge (“ALJ”) entered a final order, determining that the personal property in question was properly seized and thereby subject to forfeiture. The petitioner subsequently filed a petition for judicial review with the Circuit Court of Davidson County (“trial court”). Following a hearing, the trial court, employing a substantial and material evidence standard of review, affirmed the ALJ’s determination that the currency was subject to forfeiture. The petitioner has appealed. Discerning no reversible error, we affirm.

Davidson County Court of Appeals 04/28/20
Diane Greer v. James Greer
M2020-00434-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Jonathan L. Young

This is an appeal from a final decree of divorce entered on November 4, 2019, and an order denying a motion for a new trial entered on January 17, 2020. Because the husband did not file his notice of appeal within thirty days after entry of the order denying the motion for a new trial, we dismiss the appeal.

Putnam County Court of Appeals 04/28/20
In Re Dustin M.
M2019-01661-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Tim Barnes

This is a termination of parental rights case. Appellants, mother and father, appeal the trial court’s termination of their parental rights on the grounds of: (1) abandonment; (2) failure to substantially comply with the requirements of the parenting plans; (3) persistence of the conditions that led to the child’s removal from their custody; and (4) failure to manifest an ability and willingness to assume custody. Discerning no error, we affirm.

Montgomery County Court of Appeals 04/28/20
Lascassas Land Company v. Jimmy E. Allen, ET Al.
M2019-00870-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This is the second appeal of this case involving a dispute between two limited liability companies (and an individual with interest in both companies). In the first appeal, this Court remanded the case for the trial court to consider and make appropriate findings concerning the applicability of the doctrines of unjust enrichment and unclean hands. On remand, the trial court held that Appellee had met its burden to show that Appellant would be unjustly enriched if it were allowed to retain Appellee’s construction costs in addition to the stipulated value of the lots, and the profits from the sales of the homes constructed on those lots. The trial court further held that Appellee was not barred from recovery under the doctrine of unclean hands. The trial court also awarded Appellant a portion of its claimed attorney’s fees and costs. Discerning no error, we affirm.

Rutherford County Court of Appeals 04/27/20