Court of Appeals Opinions

Format: 08/16/2018
Format: 08/16/2018
Cindy Hatfield, et al. v. Allenbrooke Nursing and Rehabilitation Center, LLC, et al.
W2017-00957-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Donna M. Fields

This appeal results from a jury trial on claims of negligence, medical malpractice, and violations of the Tennessee Adult Protection Act by a nursing home. In addition to finding the limited liability company nursing home liable for the resident’s injuries, the jury awarded extensive compensatory and punitive damages against the nursing home’s related administrative services provider, the nursing home’s parent companies, and the individual members of the parent companies. Defendants appeal, raising a variety of issues related to the jury impaneled, the evidence presented, and the finding of liability against the non-nursing home defendants. We reverse the jury’s decision finding material evidence to subject the nursing home’s parent companies and their members directly or vicariously liable in this case. We affirm the direct liability of the nursing home’s administrative services provider. Because the amount of punitive damages awarded by the jury appears to be largely predicated on the liability of the non-nursing home defendants, we vacate the award and remand for a new hearing solely as to the amount of punitive damages to be awarded. In all other respects, the verdict is affirmed. Affirmed in part, reversed in part, vacated in part, and remanded.

Shelby County Court of Appeals 08/06/18
Leslie's Poolmart, Inc. v. Blue Wave Pool Supply of Memphis, LLC, et al.
W2017-01894-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Walter L. Evans

This appeal concerns an employee who made preparations to start a competing business while still employed by his old company. Todd Heins (“Heins”) was a manager working for Leslie’s Poolmart, Inc. (“Leslie’s”), a nationwide pool supply business, at its Bartlett Hills location in the Memphis, Tennessee area. Jay Karcher (“Karcher”), while a customer in Leslie’s Bartlett Hills store, approached Heins one day while he was working with an idea about starting a new pool supply business. Heins was intrigued and followed up with Karcher to found Blue Wave Pool Supply of Memphis, LLC (“Blue Wave”). Heins resigned from Leslie’s before Blue Wave opened for business. Heins’ friend and Leslie’s employee Chad Pitcock (“Pitcock”) also resigned and went to work for Blue Wave. Leslie’s sued Blue Wave, Heins, Pitcock, and Karcher (“Defendants,” collectively) in the Chancery Court for Shelby County (“the Trial Court”) for, among other things, breach of contract, breach of fiduciary duty, misappropriation of trade secrets, and inducement to breach contract. After a trial, the Trial Court found in favor of Defendants and dismissed Leslie’s complaint with prejudice. Leslie’s appeals. We affirm the judgment of the Trial Court.

Shelby County Court of Appeals 08/06/18
In Re Leroy H.
M2017-02273-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Clara w. Byrd

This appeal involves the termination of a father’s parental rights to his minor child. The child’s guardians, who had been granted custody of the child, filed a petition to terminate the father’s parental rights. The trial court granted the guardians’ petition after finding, by clear and convincing evidence, that four grounds for termination were proven—willful failure to visit, willful failure to provide child support, failure to provide a suitable home, and persistence of conditions—and that termination was in the child’s best interest. We vacate the trial court’s finding regarding one ground for termination but otherwise affirm the order terminating the father’s parental rights. 

Wilson County Court of Appeals 08/03/18
Gregory Eidson v. City of Portland, ET Al.
M2017-01187-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Joe Thompson

Appellant filed a Rule 60 motion with the trial court while the matter was pending on appeal. The trial court denied the motion finding that it lacked jurisdiction to rule on the matter. Appellant appeals the denial of his Rule 60 motion. We affirm the trial court’s determination that it lacked jurisdiction to rule on the motion at that time.

Sumner County Court of Appeals 08/03/18
Brewers Rentals v. Otto Karl Appelt
E2017-01565-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge J. Michael Sharp

This appeal arises from a detainer action. Brewers Rentals (“Brewers”) obtained a detainer warrant against tenant Otto Karl Appelt (“Appelt”) in the General Sessions Court for Bradley County (“the General Sessions Court”). Appelt thereafter appealed to the Circuit Court for Bradley County (“the Trial Court”). Appelt paid a $500 appeal bond. However, Appelt did not post bond equal to one year’s rent as required by statute in order to retain possession during the appeal. Brewers filed a motion to dismiss and/or for possession in the Trial Court, which was granted. The Trial Court held that, as Appelt had neither surrendered possession nor posted the requisite bond, dismissal was required. Appelt appeals. We hold that Appelt’s failure to post bond equal to one year’s rent enables Brewers to regain possession immediately but does not deprive the Trial Court of subject matter jurisdiction to adjudicate Appelt’s appeal. We vacate the judgment of the Trial Court and remand for this case to proceed.

Bradley County Court of Appeals 08/03/18
In Re Estate of Joe Marce Abbott
W2017-02316-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor George R. Ellis

This case involves the last will and testament of the deceased, Joe Marce Abbott. Upon the death of the deceased, his daughter, Marce Harvey, filed a petition in the trial court seeking to probate the deceased’s will. The validity of the will is not contested by any beneficiary or other person. The court, however, apparently acting sua sponte, held that the will failed to comply with Tenn. Code Ann. §§ 32-1-103 (2015), 32-1-104 (Supp. 2017), and 32-2-110 (Supp. 2017). As a consequence of this determination, the court rescinded its previously-entered order to probate because, as the court stated, the will “does not meet the requirement of the Laws of the State of Tennessee.” The petitioner appeals. We reverse.

Gibson County Court of Appeals 08/02/18
Vicky Lynn Ballard v. Noah Thomas Ballard
M2018-01217-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge John Thomas Gwin

This is an appeal from an Amended Final Decree of Divorce entered on November 15, 2017. Because the appellant did not file his notice of appeal within thirty days after entry of the decree as required by Tenn. R. App. P. 4(a), we dismiss the appeal.

Wilson County Court of Appeals 07/31/18
Michael O'Brian, Et Al. v. Rutherford County Board Of Education
M2017-00527-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Mitchell Keith Siskin

This action arises out of an incident in which an instructor with the Eagleville High School’s Junior Reserve Officer Training Corps pulled a stool from beneath a student participant in a JROTC competition while the student was sitting on it, causing injury to the student. The student’s parents brought suit against the Rutherford County Board of Education under the Tennessee Governmental Tort Liability Act to recover for her injuries. Following a trial, the court dismissed the suit, holding that the instructor’s actions were not within the scope of his employment, and therefore, the Board’s immunity from suit was not removed. Plaintiffs appeal. We conclude that the evidence does not preponderate against the trial court’s holding that the instructor acted outside the scope of his employment, and as a consequence, the Board retained immunity from suit. Accordingly, we affirm the judgment. 

Rutherford County Court of Appeals 07/31/18
David Banks v. University Of Tennessee
M2017-01358-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor William E. Young

The University of Tennessee at Knoxville terminated the employment of Appellant, a tenured faculty member. Appellant appealed his termination to an administrative hearing officer pursuant to the Tennessee Uniform Administrative Procedures Act. Following a contested hearing, the hearing officer upheld the University’s termination of Appellant.  Appellant then petitioned the chancery court to reverse the decision of the hearing officer.  The chancery court upheld the hearing officer’s decision to affirm the termination of Appellant’s employment and tenure. Discerning no error, we affirm the judgment of the chancery court.

Davidson County Court of Appeals 07/30/18
Philip Foxwell Berg v. Keiko Shigeno Berg
M2018-01163-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Philip E. Smith

A Tennessee Supreme Court Rule 10B petition for recusal appeal was filed in this Court after the trial court denied a motion for recusal. For the reasons stated herein, we affirm the trial court’s denial of the motion.

Davidson County Court of Appeals 07/27/18
Steve Perlaky v. Jimmy Chapin, Et Al.
E2017-01995-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jeffrey M. Atherton

The plaintiff filed a claim for trespass against the defendants. The trial court found trespass and awarded nominal damages and attorney’s fees to the plaintiff. After a hearing on the parties’ respective motions to alter or amend the judgment, the trial court vacated the award of attorney’s fees and declined to increase the amount of nominal damages to the plaintiff. The plaintiff appeals. We affirm.

Hamilton County Court of Appeals 07/27/18
Johnson & Associates, LLC, Et Al. v. The Hanover Insurance Group, Inc., Et Al.
E2016-02469-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John S. McLellan, III

This is a case concerning a commercial-property insurance policy dispute. The insured party filed suit upon the insurance company denying theft coverage on a claim. The insurance company claimed that the vacancy clause excluded the theft coverage of the property at issue. The trial court found that the vacancy clause did not apply and that the policy required the insurance company to cover the theft. The insurance company appeals. We affirm the decision of the trial court.

Sullivan County Court of Appeals 07/27/18
Vickie Groves, Et Al. v. Ernst-Western Corporation
M2017-01779-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joe Thompson

This is a jury case. Appellants sued Appellee, hotel, for violation of the Tennessee Consumer Protection Act (“TCPA”) and the Tennessee Identity Theft Deterrence Act (“TITDA”). The trial court granted a pre-trial motion for summary judgment as to Appellants’ TITDA claims. The remaining TCPA claims proceeded to trial, and the trial court delivered a modified jury instruction as a sanction against Appellee for alleged discovery abuse. The jury returned a verdict in favor of Appellee. Appellants appeal.  Appellee appeals the trial court’s denial of its request for attorney’s fees and costs pursuant to Tennessee Rule of Civil Procedure 68. We reverse the trial court’s denial of Appellee’s costs pursuant to Rule 68; the trial court’s order is otherwise affirmed.

Sumner County Court of Appeals 07/26/18
Konah Evangeline Buckman, Mother And Next Of Kin Of Edward Kofi Sasa Lenox Buckman A/K/A Edward Welsely, Deceased v. Mountain States Health Alliance, Et Al. - Concurring
E2017-01766-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge James E. Lauderback

I concur, reluctantly, with the entirety of the opinion of the Court. I concur because this is the result mandated by statute and case law. I do so reluctantly because this case is the latest in a long line of healthcare liability actions dismissed on technical grounds since the enactment of the sections of the Health Care Liability Act governing pre-suit notice adopted by our General Assembly in 2008. This Court has seen healthcare liability case after case brought by Tennessee citizens dismissed without any determination of whether the case has any merit.

Washington County Court of Appeals 07/26/18
Konah Evangeline Buckman, Mother And Next Of Kin Of Edward Kofi Sasa Lenox Buckman A/K/A Edward Welsely, Deceased v. Mountain States Health Alliance, Et Al.
E2017-01766-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge James E. Lauderback

This is a healthcare liability case. Before filing the complaint, the plaintiff gave written notice to the potential defendants of her healthcare liability claim against them. Tennessee Code Annotated section 29-26-121(a)(2)(E) requires that a plaintiff’s pre-suit notice include a HIPAA compliant medical authorization permitting the healthcare provider receiving the notice to obtain complete medical records from every other provider that is being sent a notice. After the plaintiff filed suit, the defendants moved to dismiss the complaint based on noncompliance with the statute, as the defendants alleged that the HIPAA authorization provided by the plaintiff had already expired when they received it. The trial court granted the defendants’ motion to dismiss, concluding that the HIPAA authorization was invalid due to the fact that the listed expiration date had already passed when the authorization was provided to the defendants with pre-suit notice. The plaintiff appeals. We affirm and remand for further proceedings.

Washington County Court of Appeals 07/26/18
Cort Dondero, Et Ux. v. Accuray Incorporated, Et Al.
E2017-01741-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Jeffrey Hollingsworth

This case involves claims asserted by a cancer patient against his radiation oncologist, the hospital where he was treated, and the developer of the radiation therapy system used to treat the patient. The patient alleges that the defendants failed to disclose that the treatment posed a risk of radiation damage to surrounding tissue and organs and misrepresented the safety of the treatment, such that he would not have agreed to undergo the treatment if he had known of the risks. The patient’s wife also asserted a claim for loss of consortium. All three defendants moved for summary judgment on numerous grounds. The trial court granted summary judgment to each of the defendants, and the patient and his wife appeal. We conclude that the plaintiffs’ claims against all three defendants are barred by the statute of limitations. Accordingly, we vacate in part, affirm as modified, and remand for further proceedings.

Hamilton County Court of Appeals 07/26/18
Richard Gary Vincioni v. Vanderbilt University, Et Al.
M2017-01302-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Amanda Jane McClendon

Appellant alleges intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent hiring, supervision, and retention against a University and its employees. The trial court granted Appellees’ motion to dismiss for failure to state a claim upon which relief can be granted. Discerning no error, we affirm.

Davidson County Court of Appeals 07/25/18
Estate of David Lyons v. Latony Baugh, Et Al.
M2017-00094-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Claudia Bonnyman

The parties to a wrongful death action reached a mediated settlement under which the settlement proceeds were divided between the surviving spouse and the deceased’s children. After the settlement agreement was judicially approved and the proceeds disbursed, the trial court ruled that the surviving spouse had waived his right to collect any settlement proceeds. The deceased’s children filed a legal malpractice action against the estate of the attorney who had represented their guardian ad litem in the wrongful death action because he failed to contest the surviving spouse’s standing. As part of the settlement of the legal malpractice action, the children assigned their claims against the surviving spouse to the estate of the attorney. The estate then filed this equitable action
against the surviving spouse and his girlfriend, seeking recovery of the settlement proceeds and a constructive trust on any property purchased with those proceeds. Both the estate and the surviving spouse filed cross-motions for summary judgment. The trial court denied the spouse’s motion but granted the estate summary judgment based on unjust enrichment. We reverse the grant of summary judgment.

Davidson County Court of Appeals 07/25/18
In Re Charles R.
M2017-02387-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Michael Todd Burnett

Parents appeal the termination of their parental rights. On April 24, 2013, the then threeyear- old child was removed from the parents’ home after a visitor to the home notified the Department of Children Services that he saw the child behind what appeared to be a jail-cell, making only grunting noises. The child has been in foster care ever since. After working with the parents for nearly two years, the Department filed a petition to terminate the parents’ parental rights. Following the first trial in October of 2015, both parents’ rights were terminated; however, that decision was vacated and the case remanded “for a new hearing so that a complete transcript may be produced. . . .” Order, In re Charles R., No. M2015-02347-COA-R3-PT (Tenn. Ct. App. Nov. 22, 2016). Following a second trial in September and October of 2017, the trial court entered an order on November 21, 2017, terminating both parents’ rights. We affirm.

Fentress County Court of Appeals 07/25/18
Lucas D. Bottorff, Et Al. v. Anne A. Sears, Et Al.
M2017-01363-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joseph Woodruff

The Administrator CTA of Decedent’s estate filed a petition, against Decedent’s daughter, to recoup assets of the estate. In the final year of Decedent’s life, Appellant transferred almost $400,000 of Decedent’s assets to herself using a power of attorney she obtained after her brother’s power of attorney was revoked. The trial court determined that the transfers were self-dealing transactions and that Appellant breached her fiduciary duty to Decedent. The trial court entered a judgment against Appellant in the amount of $116,747.85 plus pre-judgment interest. Additionally, the trial court declared the quit claim deed executed in favor of Appellant to be void ab initio. Discerning no error, we affirm.

Williamson County Court of Appeals 07/25/18
Steve Anthony Contreras v. Kimberly Dawn Contreras (Hinson)
W2018-00093-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor James F. Butler

The father in this post-divorce dispute challenges the trial court’s determinations regarding his child support arrearage, medical insurance premiums, credits against the arrearage, and attorney fees. Finding no merit to father’s arguments, we affirm the trial court’s decision.

Henderson County Court of Appeals 07/25/18
Robert Lee Harris v. Regions Financial Corp. Et Al.
E2017-00838-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Elizabeth C. Asbury

This case involves the plaintiff’s purchase of real property and the alleged fraud by others as to the property’s real value. On December 20, 2016, the plaintiff filed a pro se complaint against several defendants, including Regions Financial Corporation. The plaintiff labeled his six counts as sounding in fraud in the inducement, breach of contract, conspiracy, intentional infliction of emotional distress, negligent infliction of emotional distress, and improper foreclosure of deed of trust. The trial court dismissed the plaintiff’s complaint against the defendants, holding that the complaint is barred by the three year statute of limitations. See Tenn. Code Ann. § 28-3-105 (2017). In so holding, the court determined that the complaint, on its face, shows that the plaintiff, as early as 2006, knew, or should have known, that the property was worth substantially less than the plaintiff paid for it and, as a consequence, he had been injured by the acts of others. In response, the plaintiff argues that the trial court erred when it failed to rely upon the sixyear statute of limitations as to his claim for breach of contract. See Tenn. Code Ann. § 28-3-109(a)(3) (2017). Plaintiff appeals. We affirm

Claiborne County Court of Appeals 07/25/18
Delores Conley v. Tennessee Farmers Insurance Company
W2017-00803-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert Samual Weiss

This appeal involves a dispute between an insurance company and one of its insureds. Following a fire to her home, the insured brought suit requesting that the insurance company be required to pay a claim for personal property damage. The insurance company defended on the ground that the insurance policy was void because a misrepresentation by the insured on her application for insurance increased the “risk of loss.” See Tenn. Code Ann. § 56-7-103. The trial court agreed with the insurance company and granted summary judgment in its favor. For the reasons stated herein, we affirm.

Shelby County Court of Appeals 07/24/18
Judy Morrow Wright, et al. v. Matthew G. Buyer, et al.
W2018-01094-COA-T10B-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Kathleen N. Gomes

This is an accelerated interlocutory appeal as of right from the denial of a motion for recusal. In their petition for recusal appeal, Petitioners admit that they did not promptly file the recusal motion after the facts forming the basis for the motion became known. As such, Petitioners waived their right to challenge the probate judge’s impartiality. The record is also insufficient to support a finding of error on the part of the probate judge because the motion for recusal was unaccompanied by an affidavit as required by the rules. Thus, we affirm the probate court’s denial of the recusal motion.

Shelby County Court of Appeals 07/24/18
In Re: R.S. ET AL.
E2018-00270-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Thomas J. Wright

This is a termination of parental rights case. Appellant/Father appeals the trial court’s termination of his parental rights to the two minor children on the grounds of: (1) abandonment by an incarcerated parent by wanton disregard, Tenn. Code Ann. §§ 36-1- 113(g)(1) and 36-1-102(1)(A)(iv); (2) abandonment by failure to provide a suitable home, Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(ii); (3) substantial noncompliance with the reasonable requirements of the permanency plan, Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2). Appellant also appeals the trial court’s finding that termination of his parental rights is in the children’s best interests. Because there is clear and convincing evidence to support both the grounds for termination of Appellant’s parental rights and the trial court’s finding that termination is in the children’s best interest, we affirm.

Hamblen County Court of Appeals 07/24/18