Court of Appeals Opinions

Format: 09/20/2020
Format: 09/20/2020
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
ANDREW HIRT, ET AL. v. METROPOLITAN BOARD OF ZONING APPEALS OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY
M2019-00775-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Ellen H. Lyle

This is the second appeal of this case involving a local zoning board’s denial of Appellants’ permit to replace a static billboard with an LED digital billboard. The zoning board denied Appellants’ initial application for a permit, and the chancery court affirmed. In the first appeal, this Court vacated the chancery court’s order on its holding that the chancery court lacked subject-matter jurisdiction. Our holding rendered the board’s decision a final judgment. The instant appeal arises from Appellants’ second application for an LED digital billboard on its property. The board again denied the application, and Appellants appealed to the chancery court. The chancery court held, inter alia, that Appellants’ second application was barred as res judicata. Discerning no error, we affirm.

Davidson County Court of Appeals 04/27/20
Josh Cathey v. William Beyer, ET AL.
W2019-01603-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Roy B. Morgan, Jr.

This is a health care liability case. Appellant brought a pro se action against two licensed counselors alleging injuries arising from the altering and concealment of counseling records of Appellant’s minor children. The trial court dismissed the complaint, under Tennessee Rule Civil Procedure 12.02, for failure to comply with the pre-suit notice and certificate of good faith requirements of the Tennessee Health Care Liability Act. Tenn. Code Ann. §§ 29-26-121, 122. We conclude that Appellant’s claims relate to the provision of health care services and are subject to the procedural requirements in Tennessee Code Annotated § 29-26-101 et seq. Therefore, we affirm the trial court’s dismissal of Appellant’s complaint.

Madison County Court of Appeals 04/24/20
In Re: Estate of Edward Alan Ladd Et Al.
E2019-00484-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Melissa T. Blevins-Willis

In this estate matter, the trial court determined that when calculating the value of the decedent’s net estate for purposes of determining his widow’s elective share, insurance proceeds and retirement benefits that were distributed via beneficiary designation forms and were not distributed pursuant to the decedent’s last will and testament would not be included in the net estate value pursuant to Tennessee Code Annotated § 31-4-101(b). The widow’s estate has appealed. We affirm the trial court’s interpretation of Tennessee Code Annotated § 31-4-101(b) (2015) and the court’s method of calculating the widow’s elective share by declining to include any assets that passed outside probate in the value of the decedent’s net estate. We vacate, however, the trial court’s valuation of the decedent’s real property, and we remand this issue to the trial court for further determination. Once such value has been established, it should be incorporated into the trial court’s calculation of the widow’s elective share, utilizing the same methodology as was employed by the court in the original calculation. We decline to award attorney’s fees to the widow’s estate on appeal.

Rhea County Court of Appeals 04/24/20
In Re: Kelty F.
E2019-01383-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Thomas J. Wright

This is a termination of parental rights case. The child at issue was removed after her umbilical cord blood tested positive at birth for methamphetamine and amphetamine. The trial court found, by clear and convincing evidence, that mother’s parental rights should be terminated on the grounds of abandonment by the willful failure to visit and the willful failure to provide a suitable home for the child, substantial noncompliance with the permanency plans, persistence of conditions, and failure to manifest an ability and willingness to assume custody or financial responsibility of the child. The trial court further found, by clear and convincing evidence, that termination was in the best interests of the child. Having reviewed the record on appeal, we affirm.

Hamblen County Court of Appeals 04/24/20
Suzanne Elaine Crawley Cowan v. Robert Elmo Cowan, Jr.
W2019-00179-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Mary L. Wagner

This appeal concerns a post-divorce proceeding for contempt. Wife filed a petition for scire facias and civil contempt, alleging Husband willfully disobeyed the terms of the parties’ marital dissolution agreement. The trial court granted Wife’s petition, awarding her one-half of Husband’s retirement bonus, and held Husband in civil contempt. The trial court granted Wife attorney’s fees for enforcing the parties’ marital dissolution agreement. For the reasons stated herein, we agree that Wife is entitled to one-half of Husband’s net retirement bonus, that Husband willfully violated the parties’ marital dissolution agreement and should be held in civil contempt for  this violation, and that Wife should be awarded attorney’s fees for having to enforce the agreement. We therefore affirm the decision of the circuit court.

Shelby County Court of Appeals 04/24/20
In Re: Tucker H. Et Al.
E2019-01970-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge:

This is a termination of parental rights case. Appellant mother appeals the trial court’s termination of her parental rights on the grounds of: (1) abandonment by an incarcerated parent for failure to visit and wanton disregard; (2) failure to substantially comply with the requirements of the parenting plans; and (3) failure to manifest an ability and willingness to assume custody. Discerning no error, we affirm.

Bradley County Court of Appeals 04/24/20
In Re Jeremiah S.
W2019-00610-COA-R3-PT
Authoring Judge: Judge Frank G. Clement
Trial Court Judge: Judge Dan H. Michael

A mother appeals the termination of her parental rights to her two children. Following a bench trial, the trial court found that clear and convincing evidence existed to support the statutory grounds of: (1) severe child abuse, Tenn. Code Ann. § 36-1-113(g)(4); (2) abandonment by willful failure to support, Tenn. Code Ann. § 36-1-113 (g)(14); (3) abandonment by wanton disregard, Tenn. Code Ann. § 36-1-102(1)(A)(iv); and (4) persistence of conditions, Tenn. Code Ann. § 36-1-113(g)(3)(A). The court also found that termination was in the best interest of the children. We affirm the trial court.

Shelby County Court of Appeals 04/23/20
Sandra K. Fisher v. Tennessee Department of Safety and Homeland Security
M2018-02040-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen H. Lyle

A police department seized a car after citing its owner for driving on a revoked license.  Following the issuance of a forfeiture warrant and a contested case hearing, the Tennessee Department of Safety and Homeland Security forfeited the owner’s interest in the car.  The car owner petitioned for judicial review, contending that the forfeiture violated the Due Process Clause of the Fourteenth Amendment and the Excessive Fines Clause of the Eighth Amendment to the United States Constitution.  The chancery court denied the petition after determining that there were no constitutional violations.  We affirm.

Davidson County Court of Appeals 04/21/20
Hertz Knoxville One, LLC v. EdisonLearning, Inc.
E2019-00267-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge William T. Ailor

This is a breach of contract action involving a commercial lease. The plaintiff filed suit for non-payment of rent. The defendant claimed that it was not liable because it provided notice of early termination pursuant to the terms of the contract. The plaintiff moved for summary judgment, claiming that notice was not provided within the time set forth in the contract. The trial court granted summary judgment in favor of the plaintiff. We affirm.

Knox County Court of Appeals 04/20/20
Robert F. Clark v. Tennessee Farmers Mutual Insurance Company
E2019-00746-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge David R. Duggan

This appeal arises from an action filed by Robert F. Clark (“Plaintiff”), seeking a declaratory judgment and damages against Tennessee Farmers Mutual Insurance Company (“Tennessee Farmers”). Plaintiff applied for a homeowner’s insurance policy with Tennessee Farmers upon his purchase of improved real property. The effective date of the policy was to begin on May 29, 2013, the original date of the closing for the sale of the property. The closing of the real property was rescheduled to an earlier date. A leak occurred after the actual closing on the property but before the date of the original closing and the stated effective date of the homeowner’s insurance policy. Determining that Tennessee Farmers had not been notified of the change and that Plaintiff had signed an authorization for work on the property, the Trial Court granted Tennessee Farmers’ motion for summary judgment. We affirm the Trial Court’s finding that the leak occurred prior to the effective date of the policy. However, we reverse the Trial Court’s grant of summary judgment upon our determination that genuine issues of material fact exist to preclude summary judgment on other issues.

Jefferson County Court of Appeals 04/17/20
In Re Daisy A.
E2019-00561-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Brad Lewis Davidson

A mother whose parental rights to her daughter were terminated appeals the court’s best interest determination. Upon our review of the evidence, we affirm the trial court’s holdings that clear and convincing evidence existed to sustain three grounds for termination and that termination is in the child’s best interest.

Cocke County Court of Appeals 04/17/20