COURT OF APPEALS OPINIONS

Mani Associates Et Al. v. Appalachian Underwriters Inc. Et Al.
E2023-00382-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge David Reed Duggan

This accelerated interlocutory appeal is taken from the trial court’s order denying
appellants’ motion for recusal. After considering the trial court’s ruling under the
Tennessee Supreme Court Rule 10B de novo standard of review, we affirm the judgment
of the trial court denying recusal.

495 Kings Stable, LLC v. Kimberly Pate
W2021-00742-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Jerry Stokes

This appeal concerns a dispute between a landlord and a tenant. 495 Kings Stable, LLC
(“Plaintiff”), through its owner, filed a forcible entry and detainer warrant against Kimberly
Pate (“Defendant”) in the General Sessions Court for Shelby County. Plaintiff prevailed,
and Defendant appealed to the Circuit Court for Shelby County (“the Trial Court”). After
a trial, the Trial Court ruled in Plaintiff’s favor, awarding it damages and attorney’s fees.
Defendant appeals arguing, among other things, that she was constructively evicted
because of conditions such as a raccoon in the house. Plaintiff raises separate issues. We
affirm the Trial Court’s determinations that Defendant was not constructively evicted and
that she breached the lease by failing to pay rent as required. Defendant did not afford
Plaintiff a reasonable opportunity to cure the alleged problems. However, we find that the
Trial Court erred in declining to award Plaintiff damages for the remaining months of the
lease. We vacate the Trial Court’s award of damages and remand for the Trial Court to
award Plaintiff additional damages for the remaining months of the lease. In addition,
although Plaintiff is entitled to an award of attorney’s fees under the lease, the Trial Court
erred by failing to apply the factors used for determining the reasonableness of attorney’s
fees found at Tenn. Sup. Ct. R. 8, RPC 1.5. We vacate the Trial Court’s award of attorney’s
fees to Plaintiff and remand for the Trial Court to award Plaintiff reasonable attorney’s
fees—including reasonable post-trial and appellate attorney’s fees—applying the Tenn.
Sup. Ct. R. 8, RPC 1.5 factors.

In Re Jordan P.
E2022-00499-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge J. Michael Sharp

Father appeals the trial court’s termination of his parental rights. After reviewing the
record, we conclude that there was clear and convincing evidence provided at trial to
support the ground of abandonment by failure to visit, but not the ground of substantial
noncompliance with a permanency plan. We also conclude that the trial court failed to
make appropriate findings of fact and conclusions of law with regard to the ground of
failure to manifest a willingness and ability to assume custody or financial responsibility
of the child. Thus, we (1) affirm the trial court’s finding that the ground of abandonment
by failure to visit was established, (2) reverse the trial court’s finding that the ground of
substantial noncompliance was established, and (3) vacate the trial court’s finding that the
ground of failure to manifest was established. We also affirm the trial court’s finding that
terminating Father’s parental rights was in the best interest of the child.

Waterfront Investments, GP Et Al. v. Lisa Ann Collins Et Al.
E2022-00370-COA_R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Elizabeth C. Asbury

This appeal stems from a disputed strip of land along the edge of Norris Lake in Campbell County, Tennessee. The defendants in this case are lot owners of residential lakefront property in a planned development. The plaintiffs are the neighborhood home owner’s association and the company operating the marina in the development. The plaintiffs claim, based upon a note in the original plat map of the development, that a “one-foot buffer” zone along the defendants’ lots was reserved to the original developer. According to the plaintiffs, the marina company thus controls the shoreline in the area at issue and is at liberty, with permission from the Tennessee Valley Authority, to expand the existing marina. The defendants, on the other hand, dispute the existence of the buffer and claim that their lot boundaries extend right up to the shoreline. The plaintiffs filed a declaratory judgment action, and, following a bench trial, the trial court concluded that the plat note at issue did not reserve any interest in the disputed strip to the original developer. Plaintiffs appeal. Discerning no error, we affirm the trial court.

Robert L. Whitworth, et al. v. City of Memphis, et al.
W2021-01304-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Jim Kyle

Appellant city residents sued the City of Memphis for breach of contract, breach of implied
contract, unjust enrichment, and promissory estoppel related to inadequate garbage
collection services provided by the City. Residents also sought a constructive trust and a
declaratory judgment. The trial court dismissed the breach of contract action upon its
conclusion that the provision of garbage collection services was a government function that
did not create an enforceable contract between the city and its residents. The trial court
dismissed the residents’ other contractual claims on the basis that they were barred by
sovereign immunity. Finally, the trial court dismissed the claims for constructive trust and
declaratory judgment upon its conclusion that they did not state a claim for relief under the
circumstances. We affirm.

Gilbert Lopez Et Al. v. Deidra L. Sharp
M2022-00679-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Michael E. Spitzer

This appeal invoves a claim for adverse possession. Gilbert Lopez and his wife Wendy Lopez claimed ownership of a 1.25 acre parcel of land (“Lot 39”) adjacent to their property under the theory of common law adverse possession. Deidra Sharp, owner of a tract also adjacent to Lot 39, presented evidence of her unencumbered title to Lot 39. Ms. Sharp established that she and her predecessors in title had paid taxes on Lot 39 and argued that the Lopezes did not prove their possession was uninterrupted, continuous, exclusive, or adverse for the requisite twenty year period. After a bench trial, the trial court found that the Lopezes did not “indicate ownership of [Lot 39] nor did [they] do anything that would rise to the level of more than a trespass.” The trial court resolved the conflicting testimony by making explicit credibility determinations in favor of Ms. Sharp and her witnesses. The trial court also held that Tenn. Code Ann. § 28-2-110(a), which generally bars a claim to real estate when the claimant has failed to pay taxes on the claimed property, applies to bar the adverse possession claim. We affirm the judgment of the trial court.

The Wise Group, INC. Et Al. v. Dwight Holland Et Al.
M2020-01646-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Plaintiffs filed suit against the purchaser of real property, alleging that the purchase was a fraudulent conveyance. On a motion for summary judgment, the trial court determined on the undisputed facts that the purchase was in good faith and without notice of Plaintiffs’ claims and for reasonably equivalent value. We conclude that the undisputed facts show that the purchaser was entitled to judgment as a matter of law. We also discern no abuse of discretion in a separate decision by the court to set aside the dismissal of the purchaser’s counterclaim against Plaintiffs. So we affirm.

Shirley V. Quinn v. Shelby County Schools
W2022-00104-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Felicia Corbin Johnson

This is an employment discrimination case. The plaintiff, a female secretary at a high
school, sued the county school board for discrimination alleging that she was terminated
because of her sex in violation of the Tennessee Human Rights Act. Following a bench
trial, the trial court held in favor of the plaintiff and awarded damages. The school board
appeals, asserting that the plaintiff failed to make out a prima facie case of discrimination.
We have determined that the plaintiff failed to identify a “similarly situated” employee and
therefore failed to make out a prima facie case of sex discrimination. We reverse the
judgment of the trial court.

In Re Maddox H.
M2022-00942-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge David R. Howard

This appeal concerns the termination of a mother’s parental rights to one of her children. The trial court found that Tennessee Department of Children’s Services (“DCS”) established four grounds for terminating the mother’s parental rights and that termination of her rights was in the best interest of the child. The mother appeals. We affirm the termination of the mother’s parental rights.

Joe Riley Prichard v. Rhonda Kay Prichard
W2022-00728-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Tony Childress

This appeal arises from a divorce case. The husband filed a petition for divorce, and the
wife filed a counter-petition. The trial court entered a final decree of divorce dividing the
marital estate and granting the divorce in the wife’s favor on the grounds of adultery and
inappropriate marital conduct. The husband appeals. We affirm as modified.

In Re Lucca M. Et Al.
M2021-01534-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge David R. Howard

In this case, prospective adoptive parents Whayne D., Lauren D., James K., and Heather K.1 (“Petitioners”) filed a petition to terminate the parental rights of Miya M. (“Mother”) to two of her minor children. They alleged these grounds: (1) abandonment by failure to visit; (2) abandonment by failure to financially support the children; (3) abandonment by failure to provide a suitable home; (4) persistence of the conditions that led to the children’s removal; and (5) failure to manifest an ability and willingness to assume custody of the children. The trial court found that Petitioners established four of the five alleged grounds for termination by clear and convincing evidence and that termination of parental rights was in the children’s best interest. We reverse the trial court’s holding that Petitioners established the ground of abandonment by failure to provide a suitable home, and affirm the judgment of the trial court in all other respects, including its ultimate ruling terminating Mother’s parental rights.

State Ex Rel. Misti Leigh Haney O'Dell v. Andrew M. O'Dell
E2023-00056-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor John C. Rambo

Because the notice of appeal was not timely filed, this Court lacks jurisdiction to consider
this appeal.

In Re Avery W. Et Al.
M2022-01057-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Sheila Calloway

A mother and father appeal the termination of their parental rights to two children. The trial court concluded that the petitioner proved five 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 that clear and convincing evidence supports three grounds for termination and that termination was in the children’s best interest. So we affirm.

Christopher Lee Dunn v. Bruce Vukodinovich Et Al.
E2021-00146-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge John S. McLellan, III

This appeal arises from a suit to rescind a contract for the sale of a home due to fraud. The
trial court found clear and convincing evidence of fraud justifying rescission. It ordered
the buyer to convey the property back to the sellers, with the sellers returning the purchase
price, minus the fair rental value of the property, with a credit to the buyer for various
expenses he had incurred. However, the trial court declined to award any offset to the
buyer for improvements he had made to the property. It also declined to award punitive
damages but did award the buyer attorney fees. Taken together, the parties present twentyfive issues for review on appeal. We vacate in part, reverse in part, and remand for further
proceedings.

Linda Mears v. Nashville Center for Rehabilitation and Healing, LLC
M2022-00490-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Thomas W. Brothers

Plaintiff alleges she was injured from a fall at a skilled nursing facility while using a defective shower chair with a broken lock and torn netting. The circuit court concluded the Plaintiff did not need to file a certificate of good faith under the Tennessee Health Care Liability Act because the common knowledge exception is applicable and the complaint’s negligence allegations do not require expert testimony. The nursing facility appeals, arguing expert testimony is required to establish both the standard of care and proximate causation; therefore, a certificate of good faith must be filed. Because the allegations set forth in the complaint do not require expert testimony to maintain the Plaintiff’s claim, we affirm the circuit court’s judgment.

In Re Liberty T.
E2022-00307-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Douglas T. Jenkins

In this case involving a petition to terminate the mother’s parental rights to her child and
to allow the petitioners to adopt the child, the trial court determined that one statutory
ground for termination had been proven by clear and convincing evidence. However, the
trial court further determined that the petitioners had failed to establish clear and
convincing evidence that termination of the mother’s parental rights was in the child’s
best interest. The trial court accordingly dismissed the petition and remanded to the
juvenile court’s protective jurisdiction. The petitioners have appealed the best interest
determination, and the mother has raised an issue regarding the statutory ground. We
affirm the trial court’s finding as to the statutory ground of failure to support. However,
having determined that under the facts of this case the trial court erred in applying the
statutory best interest factors applicable to the initial termination petition rather than
those applicable to the amended petition, we reverse the trial court’s best interest finding
and remand for reconsideration applying the amended best interest factors contained in
Tennessee Code Annotated § 36-1-113(i) (Supp. 2022).

Martina Smith, et al. v. Donna Jean Walker, et al.
W2022-00748-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Kyle C. Atkins

The plaintiffs, Martina and Eddie Smith (“Buyers”), filed suit in the Madison County
Circuit Court (“Trial Court”) regarding their purchase of a piece of real property from the
defendant, Donna Jean Walker (“Seller”). Buyers alleged intentional misrepresentation,
negligent misrepresentation, and failure to disclose the presence of mold within the home.
The Trial Court granted summary judgment in favor of Seller. Buyers previously filed an
appeal to this Court regarding the grant of summary judgment. During that appeal, this
Court held that the Trial Court had not provided a sufficient basis for granting Seller’s
motion for summary judgment and remanded for entry of a new order explaining its
reasoning. Thereafter, the Trial Court entered a revised order providing detailed reasoning
for its grant of summary judgment in favor of Seller on each of Buyers’ claims against her.
Buyers timely appealed the revised order to this Court. During this second appeal, Buyers
filed essentially the same brief as in the previous appeal despite entry of the Trial Court’s
revised order following remand. Because Buyers failed to address the revised order in their
appellate brief and failed to cite to the record submitted to this Court in this appeal, Buyers
waived their issues for appeal by failing to comply with Tenn. R. App. P. 27 and Tenn. Ct.
App. R. 6. We, therefore, affirm the judgment of the Trial Court in its entirety.

W. David Hall v. Zora Humphrey
E2022-00405-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

This is a conservatorship action initiated by University of Tennessee Medical Center with
respect to one of its patients. The trial court granted the hospital’s petition for
conservatorship based in part on a physician’s affidavit and medical examination report
attached to its petition. The respondent has appealed, arguing that the trial court erred by
considering the physician’s affidavit and report, by denying her motion for a continuance,
and by finding clear and convincing evidence that she was disabled and in need of a
conservator. Given that no party introduced the physician’s affidavit and report into
evidence, we conclude that the trial court erred by considering these documents as
evidence. We further conclude that the trial court’s final judgment is deficient due to its
dearth of factual findings. We therefore vacate the trial court’s judgment appointing a
conservator for the respondent and remand for a new hearing on the petition.

Katherine Mechelle Stooksbury v. Matthew D. Varney
E2021-01449-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Steven Lane Wolfenbarger

This appeal concerns a father’s continued failure to remit payment for his child support
obligation. Following the mother’s contempt petitions, the trial court determined the
father’s current child support obligation and arrearage amount and awarded the mother her
attorney fees. The father appeals arguing that the trial court lacked subject matter
jurisdiction, erred in awarding the mother attorney fees, and erred in setting the arrearage
payment amount. We affirm the trial court’s rulings on these issues.

Kimberly D. Fisher, ET AL. v. Garrison Smith M.D., ET AL.
W2022-00779-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Kyle C. Atkins

This appeal arises from a health care liability action. The plaintiffs filed their complaint
against a physician and a surgical practice after the expiration of the statute of limitations,
relying on the 120-day extension under Tennessee Code Annotated section 29-26-121(c).
However, the physician was not employed by the surgical practice during the treatment at
issue but was employed by a governmental entity that was not named as a defendant. Both
the physician and the surgical practice filed motions to dismiss, which were ultimately
treated as motions for summary judgment due to consideration of matters outside the
pleadings. Afterward, the plaintiffs filed a motion for leave to amend their complaint to
substitute parties. Pursuant to section 29-20-310(b) of the Tennessee Governmental Tort
Liability Act, the trial court found that the plaintiffs had to sue the governmental entity in
order to sue the physician individually. The court found that the motion for leave to amend
the complaint was futile because the statute of limitations had run as to any claim against
the governmental entity. The court explained that any claim against the governmental
entity would be time-barred even if it related back to the date of the filing of the complaint.
The court further explained that the plaintiffs relied on the 120-day extension contained in
section 29-26-121(c) when they filed their complaint and that the extension did not apply
to any potential claim against the governmental entity because they failed to provide presuit
notice to it. The court also noted that the plaintiffs unduly delayed seeking to amend
their complaint despite being explicitly informed before filing their complaint who the
physician did and did not work for. Additionally, the court found that the surgical practice
was not involved in the treatment at issue and did not employ the physician or any of the
medical providers involved. Thus, the court found that the surgical practice negated an
essential element of the plaintiffs’ claim against it and demonstrated the evidence was
insufficient to establish such a claim. Accordingly, the court granted the defendants’
motions and denied the plaintiffs’ motion for leave to amend the complaint to substitute
parties. The plaintiffs appeal. We affirm.

Mark Clayton v. Joseph Dixon et al.
M2021-00521-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Property owner sued owners of an adjacent property for damages allegedly caused by the installation of a pipe culvert. The plaintiff alleged that, due to improper installation, the pipe culvert obstructed the downstream flow of water and caused the plaintiff’s property to flood. Both sides filed cross-motions for summary judgment. The trial court granted summary judgment to the adjacent property owners based on the statute of repose for defective improvements to real property. We conclude that the statute of repose could not be asserted by the adjacent property owners. So we reverse the grant of summary judgment.

Benjamin McCurry Et Al. v. Agness McCurry
E2023-00297-COA-T10B-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Senior Judge Thomas J. Wright

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme
Court of Tennessee, filed by Agness McCurry (“Petitioner”), seeking to recuse the judge
in this case involving post-divorce parenting issues. Having reviewed the petition for
recusal appeal filed by Petitioner, and finding no error, we affirm.

Linda Gail Compton v. Kathy A. Leslie et al.
M2022-00463-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James G. Martin, III

This appeal involves an issue of arbitration. The trial court entered an order declining to
approve for entry the defendants’ proposed notice of intent to arbitrate and order to compel
arbitration. The defendants appeal. We dismiss the appeal.

In Re: Braylin T.
M2022-01256-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Amy V. Hollars

This is a termination of parental rights case. The mother appeals the trial court’s order terminating her parental rights, arguing that it is not in the child’s best interest for her rights to be terminated. For the reasons discussed herein, we affirm.

Tino C. Sutton v. The Westmoreland Law Firm et al.
M2021-01209-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert E. Lee Davies

This action concerns the dismissal of the plaintiff’s claims against his former attorney for breach of contract, malpractice, and violation of the Tennessee Consumer Protection Act. We affirm.