APPELLATE COURT OPINIONS

This action involves a tragic accident resulting in the death of Tommy Smith (“Decedent”), who was working as a plumber connecting a sewer line when the trench he was in collapsed and crushed him. Decedent’s children (“Plaintiffs”) sued, among others, Focus Design Builders, LLC, general contractors for the building project, alleging negligence. The trial court granted Focus Design’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Tenn. R. Civ. P. 12.02(6). The trial court held that Focus Design did not owe a duty of reasonable care under the circumstances because Decedent’s death was unforeseeable. We hold the complaint states a cause of action for negligence and consequently reverse the judgment of the trial court.

This appeal involves the termination of a mother’s parental rights to two children. The trial court found by clear and convincing evidence that four grounds for termination had been proven and that it was in the best interest of the children to terminate Mother’s parental rights. Mother appeals. For the following reasons, we reverse the trial court’s ruling on two grounds for termination but otherwise affirm the order terminating Mother’s parental rights.

Although I concur with the end result reached by the majority in this case, I write separately to address two issues. First, while the majority correctly concludes that Mother’s parental rights should be terminated based upon the persistent conditions ground, more analysis is warranted in light of the sparseness of DCS’s case. Second, I must dissent from the majority’s decision to conclude, based on In re Amynn K., No. E2017-01866-COAR3-PT, 2018 WL 3058280 (Tenn. Ct. App. June 20, 2018), that DCS satisfied its burden of proving that Mother failed to manifest a willingness and ability to assume legal or physical custody of her children.  

An internecine conflict led to a suit asserting breach of contract and a variety of torts. The defendants moved to compel arbitration, but the trial court deferred ruling on the motion. Instead, the court granted the plaintiff’s request for a temporary injunction and ordered the parties to mediate their dispute. When the defendants refused to participate in mediation, the court held them in contempt. We granted the application of the defendants for an extraordinary appeal to determine whether the trial court erred in not proceeding summarily to the determination of whether there was an agreement to arbitrate. Upon review, we vacate the three orders issued after the motion to compel arbitration was filed and remand for the court to determine whether a valid agreement to arbitrate exists.

Appellant was injured in an automobile accident, and a jury found that an unknown motorist was 100% at fault and awarded damages in favor of Appellant. Thereafter, the trial court denied Appellant prejudgment interest on its finding that Appellant’s uninsured automobile insurance policy with Appellee State Farm Mutual Automobile Insurance Company precludes an award of prejudgment interest. We conclude that the policy language “all damages” is sufficiently broad to include prejudgment interest. However, because the award of prejudgment interest is an equitable consideration within the discretion of the trial court, we decline to address Appellant’s issue concerning whether prejudgment interest is necessary and equitable in this case. This question is remanded to the trial court. Vacated and remanded.

This is a health care liability case. The trial court granted summary judgment in favor of Appellee/doctor finding that Appellant’s expert witness failed to connect the decedent’s death to Appellee’s alleged deviation from the standard of care. We conclude that Appellant presented sufficient evidence, at the summary judgment stage, to create a dispute of fact concerning deviation from the standard of care and causation. Accordingly, we reverse the trial court’s grant of summary judgment.

The plaintiff, Daphne Saunders, filed a complaint against Y-12 Federal Credit Union (“Y-12”), alleging breach of the parties’ banking contract. Ms. Saunders asserted that Y- 12 had charged excessive fees for items presented for payment from Ms. Saunders’s account that were returned due to insufficient funds. Ms. Saunders also alleged breach of the covenant of good faith and fair dealing and asserted that Y-12 had been unjustly enriched by charging excessive fees. The trial court dismissed Ms. Saunders’s claims with prejudice, finding that Ms. Saunders had failed to state a claim upon which relief could be granted. Ms. Saunders has appealed. Discerning no reversible error, we affirm.

On the day of trial, the parties to this action, through counsel, settled the case amongst themselves and testified in open court as to the specific terms of the settlement and their consent thereto. One party filed a motion pursuant to Tennessee Rule of Civil Procedure 60.02, seeking to repudiate the settlement agreement before the trial court entered an order adopting the settlement and ordering judgment. We affirm the trial court’s decision. We also conclude the appeal is frivolous and remand for an assessment of damages.

The issue in this appeal is whether the defendant waived the court’s lack of personal jurisdiction through insufficient service of process by making a general appearance. It is undisputed that service of process on the defendant was insufficient when this case commenced in the general sessions court. Nevertheless, the defendant’s counsel appeared on behalf of the defendant in the general sessions court, and the court set a trial date. Prior to a trial on the merits, the defendant filed a motion to dismiss the civil warrant premised on insufficient service of process. The record does not include any ruling on that motion, and the general sessions court transferred the case to the circuit court by agreement of the parties before a trial on the merits. Shortly thereafter, the defendant filed her second motion to dismiss the action based on insufficient service of process. The circuit court denied the motion ruling that, although service of process was insufficient, the defendant waived the issue by making a general appearance in general sessions court. The court entered a final judgment in favor of the plaintiff for $35,667.42, and this appeal followed. In Tennessee, a party makes a general appearance for the purposes of waiver by seeking affirmative action from the court on an issue related to the merits of the dispute. See Landers v. Jones, 872 S.W.2d 674, 677 (Tenn. 1994); see also Tenn. Code Ann. § 16-15-505 (any issues related to the general sessions court’s jurisdiction must be raised “before the hearing, or they will be considered as waived.”). There is nothing in the record indicating that the defendant sought affirmative action from the court on an issue related to the merits of the dispute in the general sessions court prior to filing her motion to dismiss. Further, the record shows that the defendant promptly filed another motion to dismiss on the same ground when the case was transferred to the circuit court. Therefore, the defendant did not waive the issue of insufficient service of process. Because it is undisputed that service of process was insufficient, we reverse the judgment of the trial court, and this case is remanded with instructions to vacate the judgment and to dismiss the action.

This divorce action concerns the trial court’s classification and division of the marital estate, among other issues concerning the trial. We affirm the trial court’s judgment

This is a health care liability case. The defendants moved to dismiss the complaint due to the plaintiff’s failure to comply with Tennessee Code Annotated section 29-26-121(a)(2)(E), arguing that the plaintiff had not provided them HIPAA compliant medical authorizations allowing them to receive medical records from the other providers being sent statutorily-required pre-suit notice. The trial court agreed with the defendants’ argument and, upon observing that the plaintiff was not entitled to rely on the 120-day extension of the statutory limitation period pursuant to Tennessee Code Annotated section 29-26-121(c), held that the complaint was time-barred and should be dismissed with prejudice. Discerning no error, we affirm.

A mother and father appeal the juvenile court’s decision to terminate their parental rights based on six statutory grounds.  They also challenge the juvenile court’s finding by clear and convincing evidence that termination of their parental rights was in the best interest of the children.  We affirm the juvenile court’s termination of the mother’s and father’s parental rights.

A commercial tenant stopped paying rent on leased space six months before the end of its five-year term. The landlord was unsuccessful in its attempts to find a replacement tenant and sued the tenant for breach of contract. The trial court found in favor of the landlord and awarded it damages, including unpaid rent, late fees, prejudgment interest, and attorney’s fees. The tenant appealed. Other than a change in the amount of late fees awarded and instructions regarding recalculating the prejudgment interest, we affirm the trial court’s judgment.

A mother appeals the termination of her parental rights to her child. The trial court concluded that the paternal grandparents had proven three statutory grounds for terminating the mother’s parental rights: abandonment by failure to visit; abandonment by failure to support; and failure to manifest an ability and willingness to assume custody of her child. The court also concluded that termination of the mother’s parental rights was in the child’s best interest. On appeal, the mother argues that the grandparents’ petition did not sufficiently plead the statutory grounds for termination. And even if sufficiently pled, the mother argues that the evidence of the grounds and the child’s best interest was less than clear and convincing. We affirm. 

Former city employee brought suit for age discrimination under the Tennessee Human Rights Act. Based upon its determination that the city fired the employee because a majority of the city council members disapproved of his job performance and that the employee failed to prove that age was a determining factor in his termination, the trial court dismissed the employee’s complaint. We affirm.  

This action involves the plaintiff’s attempted levy of execution on improved real property in Greeneville, Tennessee, owned by an intervening corporation, HEC-TINA, Inc. (“HECTINA”), and subject to a lease by another corporation, Plastic Innovation, Inc. (collectively, “Intervenors”), to satisfy a judgment against the original defendant/debtor corporation, Hydrogen Engine Center, Inc., of Iowa. The plaintiff alleged that Hydrogen Engine Center, Inc., was the parent corporation of HEC-TINA. Following a hearing and upon Intervenors’ pleadings, the Greene County Circuit Court (“trial court”) entered two orders, one granting Intervenors’ petition to intervene and one granting Intervenors’ motion to quash any levy of execution on assets owned by HEC-TINA. The plaintiff has appealed the latter order. Having determined that the order granting the motion to quash was entered based upon the consent and agreement of both the plaintiff and Intervenors, we affirm. We deny Intervenors’ motions to consider post-judgment facts and Intervenors’ request for attorney’s fees on appeal.

The trial court dismissed a contractor’s amended countercomplaint against a homeowner for failure to state a claim upon which relief could be granted. The court then awarded the homeowner her attorney fees in the amount of $3,600 pursuant to Tenn. Code Ann. § 20-12-119(c). The homeowner appealed arguing that, in limiting her recovery to $3,600, the trial court interpreted the statute too narrowly. Because the trial court properly interpreted the statute, we affirm the trial court’s decision.
 

This appeal concerns the trial court’s dismissal of termination petitions upon remand. We reverse the dismissal of the petition as applied to the father but affirm the dismissal of the petition as applied to the mother.

I concur in the majority’s conclusion that some of the issues raised by the defendant/appellee, Joshua R. Hastings, are untimely. Mr. Hastings was required to raise issues related to the voluntary dismissal of claims and his motions to compel within thirty days of the final judgment. See TENN. R. APP. P. 4(a). After ruling on those issues, the trial court deemed the May 24, 2019 order to be a final judgment. See TENN. R. CIV. P. 58. But Mr. Hastings did not seek an appeal within thirty days of that order. So appellate review is limited to what took place after the time for appeal of the May 24, 2019 order ran, the award of attorney’s fees to plaintiff/appellant Mindy Donovan.

This matter is before the court for a second time. Plaintiffs filed a negligence suit in the Tennessee Claims Commission against the State of Tennessee after their six-year-old son fell from the fifth-floor balcony of the state-owned and -operated Paris Landing State Park Inn. Plaintiffs alleged that the State was negligent in two respects: 1) in allowing their son to gain access to an unoccupied guest room and the attached balcony, and 2) in maintaining balcony railings that were shorter in height than was required by applicable building codes. Following a bench trial, the Tennessee Claims Commissioner concluded that the Plaintiffs failed to establish that the State’s negligence was the proximate cause of their son’s injuries. Plaintiffs appealed to this Court, and we held that the Commissioner’s conclusions of law were deficient and vacated and remanded the case for further consideration. On remand, the Commissioner entered a supplemental order that included additional conclusions of law as to both claims for negligence, and, again, determined that the Plaintiffs failed to meet their burden of proving that the Inn’s acts were the proximate cause of their son’s fall and dismissed the claim in its entirety. Plaintiffs again appeal. We affirm the Commissioner’s holding that Plaintiffs failed to establish that the negligence of the Inn was the proximate cause of their son’s injuries.

This appeal arises from a divorce. Brian Lee Higdon (“Husband”) filed for divorce from Aehui Higdon (“Wife”) in the Chancery Court for Rutherford County (“the Trial Court”). The parties executed a marital dissolution agreement (“the MDA”). The Trial Court approved the MDA and entered a Final Decree of Divorce. Wife later filed a motion pursuant to Tennessee Rule of Civil Procedure 60.02 seeking to have the MDA and Final Decree of Divorce set aside on grounds of mistake of fact, fraud, and fundamental unfairness. After a hearing at which both Husband and Wife testified, the Trial Court denied Wife’s motion. Wife appeals, arguing among other things that she was coerced into signing the MDA. Deferring to the Trial Court’s implicit credibility determinations, we do not find that Wife was coerced into signing the MDA. Wife failed to meet her burden of clear and convincing evidence that there was mistake of fact, fraud, or fundamental unfairness in the execution of the MDA. In sum, we discern no abuse of discretion in the Trial Court’s decision to deny Wife’s Rule 60.02 motion. We affirm. 

The petitioners filed a petition to probate the will of the decedent. The will offered for probate had markings on the provisions concerning the appointment of executors to the will and the payment of the head stone. The petitioners filed an affidavit stating that they had no knowledge concerning who made the markings on the decedent’s will. The Trial Court entered an order denying the petition to probate the will, finding that the markings on the will “negated it from being accepted to Probate” and that the decedent had, therefore, died intestate. The petitioners appealed. We reverse the judgment of the Trial Court and remand for the decedent’s will to be admitted to probate.

The trial court terminated Father’s parental rights on the grounds of abandonment by an incarcerated parent through wanton disregard and failure to manifest an ability and willingness to assume custody of the children. The trial court also found that termination was in the children’s best interests. Father appeals. Because there are significant deficiencies in the trial court’s order, we vacate and remand for further proceedings.

A pro se plaintiff moved to recuse based on comments made by the judge at a hearing. The motion to recuse was denied, and this accelerated interlocutory appeal followed. Because the plaintiff’s filings are deficient, we affirm the denial of the motion for recusal. 

In this appeal regarding the proceeds of the decedent’s life insurance policy, the Interim Clerk and Master of the Shelby County Chancery Court (“trial court”) issued, pursuant to local rule, a “Notice and Recommendation for Sua Sponte Dismissal for Lack of Prosecution” after no activity concerning the case had occurred for over a year. The notice, which directed the parties to appear before the trial court on September 10, 2019, was not mailed to the defendant. Consequently, the defendant did not appear. Following the hearing, the trial court ordered a scheduling conference, at which the defendant also did not appear. During the scheduling conference, the trial court directed the plaintiffs to submit testimony and other evidence concerning the proceeds of the life insurance policy. Upon the plaintiffs’ request for a declaratory judgment, the trial court entered an order finding, inter alia, that the defendant had failed to appear. The court awarded proceeds of the life insurance policy to the plaintiffs and assessed costs against the defendant. The defendant has appealed. On appeal, the parties have stipulated that the defendant did not receive notice of the hearings. We therefore vacate the trial court’s order of final judgment and remand the case for further proceedings consistent with this opinion.