Court of Appeals Opinions

Format: 04/08/2020
Format: 04/08/2020
Ricky Lee Johnson v. Knoxville HMA Cardiology PPM, LLC
E2019-00818-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Kristi M. Davis

In this action involving injuries allegedly caused by the defendant medical providers’ failure to provide a safe examination table, the trial court determined that the plaintiff’s negligence claim was actually a health care liability claim and granted the defendants’ motion to dismiss the complaint with prejudice for failure to provide written pre-suit notice to the defendants within the one-year statute of limitations pursuant to Tennessee Code Annotated § 29-26-121(a) (Supp. 2019) of the Tennessee Health Care Liability Act (“THCLA”). The plaintiff has appealed, conceding that he failed to provide written presuit notice but asserting that his claim should not have been dismissed because it was not a health care liability claim. Having determined that the trial court properly found that the plaintiff’s claim was a health care liability action, we affirm the dismissal of this matter. However, having also determined that the proper sanction for the plaintiff’s failure to provide pre-suit notice under the THCLA was dismissal without prejudice, we modify the trial court’s dismissal of the claim to be without prejudice.

Knox County Court of Appeals 03/24/20
Francine S. Labbe v. James Eric Karn II
E2019-01408-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Kyle E. Hedrick

The appeal arises from a divorce. Acting pro se, the former husband seeks review, of what we cannot be certain. Because his brief falls well short of the requirements of both the Tennessee Rules of Appellate Procedure and the rules of this Court, we dismiss the appeal.

Hamilton County Court of Appeals 03/20/20
In Re Connor B.
M2019-00181-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor J. B. Cox

In this termination of parental rights action, the mother has appealed the trial court’s grant of a default judgment to the petitioners following the mother’s filing of an answer that did not contain her signature in accordance with Tennessee Code Annotated § 36-1-117(o). Although we determine that the trial court properly granted a default judgment to the petitioners based upon the mother’s failure to file a proper answer within the time allowed, we vacate the trial court’s termination of the mother’s parental rights, determining that the appellate record is insufficient to afford appropriate review of the statutory grounds for termination and best interest analysis.

Lincoln County Court of Appeals 03/20/20
In Re H.S. - Concurring In Part and Dissenting In Part
M2019-00808-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Sharon Guffee

I fully concur in the majority opinion’s determination by clear and convincing evidence that the grounds of abandonment by failure to provide a suitable home and persistent conditions exist. I also agree that there is clear and convincing evidence supporting a finding that termination of Mother’s parental rights is in the best interest of the child. Therefore, I agree with the ultimate result reached by the majority. However, I do disagree with the treatment of the ground found in Tenn. Code Ann. § 36-1-113(g)(14). The majority opinion follows In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280 (Tenn. Ct. App. June 20, 2018), which engages in a complicated use of statutory construction and grammar rules to essentially conclude that “and” actually means “or” in the language “ability and willingness.” I prefer the interpretation found in In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044 (Tenn. Ct. App. May 31, 2018). I believe the General Assembly purposefully chose the word “and” in order to differentiate this ground from other grounds. Interpreting “and” as “or,” in my opinion, makes Tenn. Code Ann. § 36-1-113(g)(14) a weaker version of other grounds. I do not believe such an interpretation is consistent with the legislative intent. Therefore, I dissent from the majority opinion’s interpretation of Tenn. Code Ann. § 36-1-113(g)(14).

Williamson County Court of Appeals 03/20/20
In Re H. S.
M2019-00808-COA-R3-PT
Authoring Judge: Judge Charles D. Susano.Jr.
Trial Court Judge: Judge Sharon Guffee

The Department of Children’s Services filed a petition to terminate the parental rights of E.R. (mother) and T.S. (father) with respect to H.S. (the child). The trial court found clear and convincing evidence to terminate mother and father’s parental rights on multiple grounds. By the same quantum of proof, the court determined that termination of mother and father’s parental rights is in the best interest of the child. Only mother appeals. We affirm.

Williamson County Court of Appeals 03/20/20
In Re Estate of Glenn Allen Atkins
E2018-02018-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Elizabeth C. Asbury

In this estate proceeding, the original petitioner, an adult child of the decedent, filed a petition for letters of administration, averring that the decedent had died intestate. The trial court initially granted the petition, designating the petitioner as the personal representative of the decedent’s estate. The decedent’s surviving spouse subsequently filed a petition requesting the trial court’s acceptance into probate of a holographic will, purportedly executed by the decedent, which the surviving spouse presented to the court. The original petitioner and another adult child of the decedent then filed motions contesting the validity of the holographic will. Following a bench trial, the trial court found the holographic will to be valid, accepted the will into probate, and named the surviving spouse as the personal representative of the decedent’s estate. The adult children contesting the holographic will have appealed. Discerning no reversible error, we affirm.

Union County Court of Appeals 03/19/20
State of Tennessee v. S.L.
E2019-01268-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Tammy M. Harrington

This appeal presents the question of who has the duty to set a case for trial de novo when a defendant appeals a delinquency conviction from juvenile court to circuit court. The then-minor child S.L. (“Defendant”) was charged with rape and incest.1 After a trial, the Blount County Juvenile Court (“the Juvenile Court”) found that Defendant had committed these delinquent offenses. Defendant appealed to the Circuit Court for Blount County (“the Circuit Court”) for trial de novo as provided for by statute. Defendant proceeded to do nothing regarding his appeal for around two years. Eventually, the State of Tennessee (“the State”) filed a motion to dismiss for failure to prosecute, which the Circuit Court granted. Defendant appeals to this Court arguing that, notwithstanding his long stretch of inactivity, he has a right to trial de novo. We hold that under Tenn. Code Ann. § 37-1-159(c) it was the Circuit Court’s duty—not Defendant’s—to set his case for trial. We reverse the judgment of the Circuit Court and remand for Defendant to have his trial de novo, which is to be expedited.

Blount County Court of Appeals 03/18/20
In Re David S. Et Al. - Concurring in Part and Dissenting in Part
E2019-01190-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Amanda Sammons

I concur in the affirmance of the decision to terminate the parental rights of David S. (“Father”). I write separately to address the majority’s decision to vacate the judgment terminating the parental rights of Cecilia S. (“Mother”) despite the fact that no party to the appeal has raised an issue with respect to the judgment against Mother. The issue not being raised is perhaps understandable. As the majority points out, the one person most likely to raise an issue with the termination of the Mother’s parental rights, Mother, may not have been served with process and may be completely unaware that her parental rights were being terminated.

Campbell County Court of Appeals 03/18/20
In Re David S. Et Al.
E2019-01190-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Amanda Sammons

This is an appeal from a termination of parental rights case. In terminating the parental rights of the children’s father, the trial court found that two grounds for termination had been properly established: abandonment by failure to provide a suitable home and persistent conditions. The trial court also determined that it was in the children’s best interest to terminate the father’s parental rights. In addition to terminating the father’s rights, the trial court terminated the parental rights of the children’s mother. On appeal, we conclude that considerations of fundamental due process require us to vacate that portion of the final order terminating the rights of the mother. We also conclude that one of the grounds relied upon for terminating the father’s parental rights, persistent conditions, must be vacated due to the trial court’s failure to consider all required elements of the statutory ground. The termination of the father’s parental rights is otherwise affirmed, however, for the reasons stated herein.

Campbell County Court of Appeals 03/18/20
Paul Zachary Moss v. Shelby County Civil Service Merit Board
W2017-01813-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Chancellor JoeDae L. Jenkins

The issue presented is whether the Shelby County Fire Department provided a firefighter with sufficient notice of the reasons for his termination. The Fire Department advised the firefighter that he was facing possible termination for violating two specific Fire Department rules. After further investigation and a meeting with the firefighter, the Fire Department gave him a termination letter that recited the two rules and detailed the factual basis for his termination. The firefighter appealed, and the Shelby County Civil Service Merit Board upheld the termination in a written decision that stated the facts and reasons supporting the termination. The trial court affirmed the Board’s decision. The Court of Appeals reversed, finding that the firefighter did not receive adequate notice of the reasons for his termination. We hold that the Shelby County Fire Department provided the firefighter with sufficient notice to satisfy the requirements of due process. We reverse the decision of the Court of Appeals and remand for consideration of pretermitted issues.

Shelby County Court of Appeals 03/18/20
150 4th Ave. N. Tenant, LLC D/B/A WeWork v. The Metropolitan Nashville Board of Zoning Appeals, Et Al. - Concurring in Part and Dissenting in Part
M2019-00732-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Claudia Bonnyman

Because I conclude that Regions Bank had standing to challenge the issuance of the sign permit to 150 4th Ave N Tenant LLC (“WeWork”), I respectfully dissent from that portion of the opinion. As did the trial court, I would hold that the Metropolitan Board of Zoning Appeals acted arbitrarily and capriciously in revoking the WeWork sign permit. But like the majority, I agree that the issue of the brightness of the skyline signs was not properly before the BZA, so I concur in that portion of the opinion.
  

Davidson County Court of Appeals 03/17/20
150 4th Ave. N. Tenant, LLC D/B/A WeWork v. The Metropolitan Nashville Board of Zoning Appeals, Et Al.
M2019-00732-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

This dispute arose from the issuance of a skyline sign permit to a high-rise office-building tenant. The permit allowed the tenant to erect two 495-square-foot signs on the building’s northwest and southeast facades. Another tenant with skyline signs on the northeast and southwest facades appealed the issuance of the permit by filing an application with the Board of Zoning Appeals (“BZA”) for interpretation against the zoning administrator. The complaining tenant contended, inter alia, that its brand was harmed because the juxtaposition of the new and existing signs would blur the relationship between the two tenants and asserted that the new signs caused the building to exceed the maximum signage permitted under the zoning code. The BZA determined that the new signs violated the zoning code and revoked the permit. On a Petition for Writ of Certiorari, the Davidson County Chancery Court held that the BZA erred by relying on a zoning map rather than the code’s plain language and found the new signs complied with the code’s requirements. This appeal followed. We have determined the complaining tenant failed to establish standing because it failed to demonstrate that it was aggrieved by the issuance of the permit. There is no competent evidence to show that the signs’ juxtaposition would create public confusion about or signal a business relationship between the two tenants. Accordingly, the record fails to demonstrate that the complaining tenant’s alleged injury “falls within the zone of interests protected or regulated by the [law] in question.” See City of Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 55–56 (Tenn. Ct. App. 2004). Further, based on the facts of this case, the BZA lacked the ability to provide meaningful redress. For these and other reasons, we affirm the trial court’s judgment in part, albeit on different grounds, and remand with instructions for the trial court to order the BZA to dismiss the complaining tenant’s application and to reinstate the new sign permit as issued in June of 2017. As for a separate issue that a neighboring homeowners’ association attempted to raise during the BZA hearing—whether the northwest sign exceeded brightness standards—that issue was not properly before the BZA or the trial court. Thus, we reverse the trial court’s decision to remand the brightness issue to the BZA.

Davidson County Court of Appeals 03/17/20
In Re Gracie H. Y. et al.
M2019-00639-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Stella L. Hargrove

Ashley H. (“Mother”) appeals the March 2019 order of the Lawrence County Chancery Court (“Trial Court”) terminating her parental rights to the minor children, Noah H. and Gracie H. Y. (collectively, “the Children”). Bobby H. (“Father”) surrendered his parental rights to the Children prior to trial and did not revoke his surrender. Upon petition of the Tennessee Department of Children’s Services (“DCS”), the Trial Court terminated Mother’s parental rights to the Children upon the statutory grounds of abandonment by failure to visit prior to her incarceration, abandonment by wanton disregard, abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plans, persistent conditions, and failure to manifest an ability and willingness to assume custody or financial responsibility of the Children. The Trial Court further found that termination of Mother’s parental rights was in the Children’s best interest. Mother timely appealed. We reverse the statutory ground of abandonment by failure to provide a suitable home. We affirm the Trial Court’s judgment in all other respects including the termination of Mother’s parental rights.

Lawrence County Court of Appeals 03/16/20
Home Builders Association Of Middle Tennessee Et Al. v. Williamson County, Tennessee, Et Al.
M2019-00698-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor James G. Martin, III

An organization of developers brought suit against Williamson County seeking a declaratory judgment that an impact fee imposed on new developments to fund improvements to schools throughout the county exceeded the authority granted to the county by the legislature, or alternatively, that Tenn. Code Ann. § 13-3-413(b) exempted the organization’s members from paying the impact fee because their property rights vested prior to adoption of the impact fee. The trial court granted summary judgment to the county, concluding that the impact fee did not exceed the authority granted to the county and that Tenn. Code Ann. § 13-3-413(b) did not apply because the impact fee did not constitute a development standard. We affirm.   

Williamson County Court of Appeals 03/13/20
IN RE Austin J.
M2019-00781-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor J.B. Cox

This appeal arises from a petition to terminate the parental rights of a father to his child for the purposes of adoption. The petitioners, the child’s mother and her new husband, alleged that the father had abandoned the child both by willfully failing to visit and by willfully failing to support. Following a trial, the court concluded that the petitioners had failed to show that the father’s failures to visit or to support were willful. So the court dismissed the petition. On appeal, the petitioners contend that the evidence was clear and convincing that the father willfully failed to support his child. After a review of the record, we affirm.

Marshall County Court of Appeals 03/13/20
Kimberly Johnson Dougherty v. M.E. Buck Dougherty
W2020-00284-COA-T10B-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor William C. Cole

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, filed by M.E. Buck Dougherty (“Father”), seeking to recuse the trial judge in this case involving modification of a parenting plan. Having reviewed the petition for recusal appeal filed by Father we find that the order of the Chancery Court for Fayette County (“Trial Court”) did not sufficiently comply with Rule 10B. We, therefore, vacate the Trial Court’s January 30, 2020 order and remand this case to allow Father to amend his petition and for the Trial Court to either grant the motion or enter an order that states in writing all the grounds upon which the motion is denied.

Fayette County Court of Appeals 03/12/20
Amy Angell Tucker, Et Al. v. Sandra Jackson Iveson, Et Al.
M2018-01501-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

A plaintiff who developed tendonitis after taking medication prescribed by a nurse practitioner filed a malpractice action against the nurse practitioner and the pharmacy that filled the prescription. Two years later, the plaintiff amended her complaint to add the
nurse practitioner’s employer and supervising physician as defendants. The new defendants moved to dismiss, arguing that the claims against them were barred by the applicable statutes of limitations and repose and that the plaintiff failed to provide them
with pre-suit notice of a potential medical malpractice claim. The plaintiff responded that fraudulent concealment tolled the statutes and constituted extraordinary cause to waive pre-suit notice. The trial court agreed and denied the motions. The defendants then moved for summary judgment on other grounds, which the court granted. It is undisputed that the plaintiff’s claims against these defendants were filed beyond the time allowed by the statute of repose for medical malpractice actions. Because we conclude that the plaintiff cannot establish an essential element of the fraudulent concealment exception, the defendants are entitled to judgment as a matter of law based on the statute of repose. So we affirm the dismissal of the claims against these defendants on summary judgment but on different grounds.

Davidson County Court of Appeals 03/11/20
In Re Bentley Q.
E2019-00957-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John S. McLellan, III

In this termination of parental rights action, the father has appealed the trial court’s final order terminating his parental rights based on several statutory grounds. The maternal grandparents of the minor child, Bentley Q. (“the Child”), filed a petition to terminate the mother’s and father’s parental rights and to allow the maternal grandparents to adopt the Child. As pertinent to this appeal, the trial court found by clear and convincing evidence that the father had (1) abandoned the Child by willfully failing to visit the Child and (2) failed to manifest an ability and willingness to assume custody of or financial responsibility for the Child. The trial court also found by clear and convincing evidence that it was in the Child’s best interest that the father’s parental rights be terminated. The father has appealed. Discerning no reversible error, we affirm.

Sullivan County Court of Appeals 03/11/20
In Re Carlie Z. Et Al.
M2020-00274-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Sammie E. Benningfield, Jr.

The is an appeal from an order terminating a father’s parental rights. Because the father did not file his notice of appeal within thirty days after entry of the order as required by Tenn. R. App. P. 4(a), we dismiss the appeal.

White County Court of Appeals 03/10/20
Alexis Luttrell Tutor v. Joseph Keith Tutor
W2019-00544-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert Samual Weiss

In this post-divorce dispute, Appellant Mother and Appellee Father filed cross-petitions seeking modification of the permanent parenting plan for their minor child. Father sought a change in primary residential parent, and Mother sought modification of the parenting schedule and decision-making authority. On its finding that the parties stipulated to a material change in circumstance, the trial court granted Father’s petition and denied Mother’s petition. Because the trial court failed to delineate between the burden of proof for modification of custody and the burden of proof for modification of parenting schedule, Tenn. Code Ann. §§ 36-6-101(a)(2)(B), (C), we vacate the trial court’s order and remand.

Shelby County Court of Appeals 03/10/20
Susan Hembree (Schumacher) Deluca v. Kerry James Schumacher
M2019-00601-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Philip E. Smith

A husband and wife executed a marital dissolution agreement (“MDA”) providing that the husband would pay the wife alimony in futuro even if she remarried. Following the wife’s remarriage, the husband sought to have his alimony obligation terminated pursuant to Tenn. Code Ann. § 36-5-121(f)(3), which provides that an alimony in futuro award “shall terminate automatically and unconditionally upon the death or remarriage of the recipient.” The trial court terminated the husband’s alimony obligation, and the wife appealed. We reverse the trial court’s judgment because the parties voluntarily agreed to terms outside of the statute, and their contract is enforceable as written.

Davidson County Court of Appeals 03/06/20
Wafa Badawi Hindiyeh v. Waleed Fawzi Abed
M2018-01581-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge J. Mark Rogers

This is the second appeal of a parenting plan. In the first appeal, Father successfully challenged the adoption of a plan that allocated him only 80 days parenting time; the case was remanded with instructions for the trial court to increase Father’s parenting time. Following a hearing, the trial court adopted Father’s proposed parenting plan which granted the parties equal parenting time, and in so doing, addressed other matters. Mother appeals. We affirm the award of equal parenting time and the adjustment to child support and income tax deductions that necessarily followed; we modify the plan to include certain provisions that were in the previous parenting plan.

Rutherford County Court of Appeals 03/06/20
Brandon Burns v. State Farm Fire And Casualty Company
E2019-00044-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge William T. Ailor

This appeal concerns a plaintiff’s effort to amend a civil warrant. Brandon Burns (“Burns”) had homeowners insurance through State Farm Fire and Casualty Company (“SFFCC”). When SFFCC did not repair the progressing damage to his home caused by a sinkhole, Burns sued “State Farm Insurance” in the Knox County General Sessions Court (“the General Sessions Court”). It was the wrong entity. Nevertheless, Burns obtained a $25,000 default judgment against it. SFFCC, a non-party, somehow and for some reason filed an appeal to the Circuit Court for Knox County (“the Circuit Court”). In the Circuit Court, Burns filed a motion to amend. SFFCC filed a motion to dismiss, which the Circuit Court granted as to SFFCC but not as to State Farm Insurance. SFFCC then dismissed its appeal, content to let the General Sessions Court judgment stand against State Farm Insurance. Some months later, Burns made an oral motion to amend in the General Sessions Court, which was granted. The parties agreed to remove the case back to the Circuit Court, which granted summary judgment to SFFCC. Burns appeals. We hold that the General Sessions Court lacked jurisdiction to grant Burns’ motion to amend or otherwise modify its judgment because its judgment became final months before Burns’ motion was noticed for hearing in the General Sessions Court. We affirm the judgment of the Circuit Court.

Knox County Court of Appeals 03/06/20
Belinda Bentley Wright v. John Andrew Wright
W2018-02163-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Gina C. Higgins

This is a divorce case. Appellant Husband appeals the trial court’s: (1) classification of certain property; (2) imputation of income for purposes of child support; (3) denial of the parties’ proposed parenting plan; and (4) award of rehabilitative, transitional, and alimony in solido to Appellee Wife. We conclude that the trial court erred in: (1) the classification of certain marital property; (2) the amount of income imputed to the parties’; (3) denying the parties’ proposed parenting plan absent sufficient findings; (4) its award of rehabilitative alimony; and (5) in the amount of transitional alimony awarded.

Shelby County Court of Appeals 03/06/20
Heather R. Wilder v. Joseph C. Wilder
E2019-00635-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Gregory S. McMillan

This appeal involves questions of post-divorce child support. In the trial court proceedings, both parties prayed for a modification of support. Additionally, mother pursued an extension of support post-majority for two of her children. While the trial court dealt with the question of post-majority support, it did not address the parties’ requests for modification of the ordinary support owed, father for a decrease, or mother for an increase. Although the trial court addressed post-majority support issues, its order was incomplete even as to those matters, as a specific amount of support was never set. It follows that there is not a final judgment in this case, and we must therefore dismiss the appeal for lack of subject matter jurisdiction.

Knox County Court of Appeals 03/06/20