Court of Appeals Opinions

Format: 01/23/2019
Format: 01/23/2019
Steven Fuller, by His Next Friend, Theresa-Vay Smith v. Mark Emkes, Commissioner, Tennessee Department of Finance and Administration
M2010-01590-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Russell T. Perkins

Petitioner, a teenager enrolled in the TennCare program, was denied coverage for orthodontic braces by the Tennessee Department of Finance and Administration (“TDFA”). Petitioner contends he qualifies for orthodontic treatment under Tenn. Comp. R. & Reg. 1200-13-13-.04(1)(b)6 due to a severe misalignment that constitutes a medical necessity. He also contends that Tenn. Comp. R. & Regs. 1200-13-13.04(1)(b)6, which limits orthodontic treatment to persons with “a handicapping malocclusion or another developmental anomaly or injury resulting in severe misalignment or handicapping malocclusion of teeth,” is in conflict with the Early and Periodic Screening, Diagnosis and Treatment program in 42 U.S.C. § 1396d(a)(4)(B) and in violation of the Medicaid Act, 42 U.S.C. § 1396d(r)(5). TDFA contends that TennCare regulations provide orthodontic coverage consistent with federal law, that it correctly interpreted and applied its own regulations regarding Petitioner’s request for orthodontic braces, and that the courts are to defer to the agency’s interpretation of its own rules. The Chancery Court for Davidson County affirmed the administrative decision. We also affirm.

Davidson County Court of Appeals 06/28/11
Venus L. Lowery v. Larry G. Womble, II
M2010-01102-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Vanessa Jackson

In this child-support matter, Father appeals the trial court’s determination of his parenting time and income for the purpose of setting his child support obligation. Finding no error, we affirm.

Coffee County Court of Appeals 06/28/11
Senior Housing Alternatives, Inc. v. Bernard Global Loan Investors, LTD.
E2010-01964-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor W. Frank Brown, III

Senior Housing Alternatives, Inc. (“the Borrower”) filed this action against Bernard Global Loan Investors, Ltd. (“the Secured Party”) asking the trial court to enjoin the Secured Party from foreclosing on a deed of trust that secured several notes on which the Borrower had defaulted. In essence, the Borrower’s complaint alleges that its original lender had defrauded the Borrower and inflated the balance owed on the notes and that the Secured Party had knowledge of the fraud when it took ownership of the notes and deed of trust. The complaint alleges that the merits of the case are at issue in a federal district court in Georgia. Despite expressing reservations about the Borrower’s ability to prevail on the merits, the trial court granted it a temporary injunction to preserve the status quo in an order entered February 15, 2010. The court noted that developments in the federal court action could affect the equities and set a hearing for August 13, 2010, to “review the entire matter.” Two days before the hearing date, the Secured Party filed a brief, with supporting affidavits, asking the court to dissolve the injunction. The court heard proof at a status conference and thereafter issued a memorandum opinion explaining that it was dissolving the injunction because, among other things, the court did not believe the Borrower could prevail on the merits. The Borrower appeals from the order dissolving the injunction and dismissing the complaint. We affirm.

Hamilton County Court of Appeals 06/28/11
Keilah Gonzalez-Bonilla v. Eduardo Mendez
E2010-01707-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Bill Swann

Keilah Gonzalez-Bonilla (“Mother”) and Eduardo Mendez (“Father”) are the divorced parents of a minor child (“the Child”). At the time of the divorce, Mother was named the primary residential parent of the Child, and Father was granted visitation. After the divorce, Mother relocated and a revised permanent parenting plan was entered on August 3, 2007. In December of 2007, Father filed a petition seeking a change in custody of the Child alleging that a material change in circumstances had occurred. After a trial, the Trial Court entered its order on August 4, 2009 finding and holding, inter alia, that there had been a material change in circumstances since February 5, 2007, that custody would be changed with Father to be the primary residential parent, and that the joint decision making would be changed and Father shall have the decision-making authority. Mother appeals to this Court. We find that the proper date from which to determine whether there had been a material change in circumstances is the date the previous order was entered, i.e., August 3, 2007, and that a material change in circumstances sufficient to justify a change in custody had not been proven. We, therefore, reverse the Trial Court’s order changing custody, and remand this case to the Trial Court for reconsideration of its orders regarding child support in light of this Opinion.

Knox County Court of Appeals 06/28/11
In Re T.C.E.
E2010-02031-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Robert M. Estep

This is a biological father’s appeal from a judgment terminating his parental rights. The trial court found by clear and convincing evidence (1) that he had abandoned the child by willfully failing to visit during the four-month period immediately preceding the filing of the petition to terminate; (2) that he had not substantially complied with his obligations under a court-approved permanency plan despite reasonable efforts to reunite him with the child; and (3) that termination is in the best interest of the child. We affirm.

Union County Court of Appeals 06/28/11
Deborah Lynn Davis v. Jack E. Scariano, Jr., M.D. et al.
E2010-00303-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Wheeler A. Rosenbalm

The plaintiff, Deborah Lynn Davis, appeals from a grant of summary judgment to the defendants, Dr. Jack E. Scariano, Jr., and his group, West Knoxville Neurological Associates. Except when the context requires otherwise, we will refer to the defendants collectively as “Dr. Scariano.” Davis sued Dr. Scariano alleging medical malpractice and fraud related to the doctor’s treatment of her and to the billing of her account. Dr. Scariano moved for summary judgment. After granting Davis several continuances, the trial court heard the motion and granted it based on Dr. Scariano’s filings and the plaintiff’s failure to present evidence establishing a disputed issue of material fact. Davis appeals. We affirm.

Knox County Court of Appeals 06/28/11
Richard W. Feldman, M.D. v. Tennessee Board of Medical Examiners
M2010-00831-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Claudia C. Bonnyman

This appeal arises out of disciplinary proceedings against a physician before the Tennessee Board of Medical Examiners. The Board found the physician guilty of numerous statutory and regulatory infractions, and it assessed a monetary penalty against the physician and revoked his license for at least one year. The physician filed a petition for review in chancery court, and the chancery court affirmed the decision of the Board. The physician appeals, challenging the Board’s decision on numerous grounds. We affirm.

Davidson County Court of Appeals 06/27/11
Rachel Lee Ex Rel. Rebecca Lee v. Mark Emkes, Commissioner of the Tennessee Department of Finance and Administration
M2010-01909-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

Petitioner, when she was thirteen years old, was having difficulty eating because of the position of her teeth, which also irritated her lips and cheeks. An orthodontist recommended braces to remedy the problem; however, the Tennessee Department of Finance and Administration denied TennCare coverage for orthodontic braces. Upon review by the Davidson County Chancery Court, the court found that the TennCare regulations impermissibly required both a Salzmann Index score of 28 and an abnormal dental development, i.e., a handicapping malocclusion, to qualify for orthodontic treatment, and that the Salzmann Index was an illegal utilization control because it nullified eligibility based upon an individualized review. The trial court also found that petitioner had not demonstrated a handicapping malocclusion, which is a valid utilization control under the regulations, therefore, she did not qualify for braces. Petitioner appealed. We affirm the trial court’sfinding that the TennCare regulation in effect at the time impermissibly required a Salzmann Index score of at least 28 to qualify for orthodontic treatment. The record does, however, establish that an individualized assessment of Petitioner’s condition to determine whether she had a handicapping malocclusion was conducted by a consulting dentist employed by the agency, which satisfies the federal requirements. Accordingly, we affirm the trial court’s decision to affirm the agency’s denial of orthodontic braces.

Davidson County Court of Appeals 06/27/11
Otter’s Chicken Tender, LLC v. Joey Coppage
M2010-02312-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This appeal arises out of a breach of contract action between a restaurant and its former employee. On cross motions for summary judgment, the court resolved all issues between the parties except whether attorney fees should be awarded and whether a permanent injunction should be issued against the employee. The court subsequently dismissed both parties’ claims for attorney fees and extended a temporary injunction previously entered. Both parties appeal the denial of attorney fees; in addition, defendant asserts that the trial court erred in extending the temporary injunction. Finding that the court erred in determining that plaintiff was not the prevailing party, we reverse the court’s denial of attorneys fees to plaintiff and remand for an award of fees for time spent pursuing injunctive relief; we affirm the court’s action in extending the temporary injunction.

Davidson County Court of Appeals 06/27/11
Michael C. Dressler et al. v. Edward Buford
M2010-00844-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Ronald Thurman

This is an action to establish the common boundary line between adjacent property owners. ollowing a four-day bench trial, the trial court adopted Plaintiffs’ survey to establish the parties’ common boundary line. Defendant appeals arguing that the evidence preponderates against the trial court’s findings. Finding the evidence does not preponderate against the trial court’s numerous findings, we affirm.

Clay County Court of Appeals 06/27/11
John Haynes v. Rutherford County et al.
M2010-01577-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robert E. Corlew

The issue in this matter is whether Tenn. Code Ann. § 16-1-116 (“the Transfer Statute”) tolls the running of the statue of limitations when a claim under the Government Tort Liability Act is filed in a court that lacks subject matter jurisdiction, and the court transfers the case to a court with jurisdiction. Acting pro se, the plaintiff filed a GTLA claim in the general sessions court of Rutherford County; the civil warrant was filed prior to the running of the one-year statute of limitations for a GTLA claim. Because subject matter jurisdiction over GTLA claims is limited to the circuit court, the sessions court transferred the case. The circuit court held that, because the sessions court lacked jurisdiction, the transfer itself was invalid; therefore, the action was not effectively filed until it was transferred to the circuit court. However, the date of transfer was beyond the applicable one-year statute of limitations for GTLA claims; thus, the circuit court dismissed the case as time barred. We have determined this case is not time barred because, under the Transfer Statute, the statute of limitations was tolled when the civil warrant was timely filed in sessions court and, because it was timely filed, the sessions court was authorized to transfer the case to the circuit court. Therefore, we reverse and remand with instructions to reinstate the case and for further proceedings consistent with this opinion.

Rutherford County Court of Appeals 06/27/11
In the Matter of: Scott C.
M2011-00094-COA-R3-PT
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Charles Rich

Mother appeals the termination of her parental rights. The trial court found by clear and convincing evidence that Mother’s parental rights should be terminated on the grounds of mental incompetence, substantial noncompliance with the provisions of the permanency plan, and persistence of conditions, as well as a finding that termination of her rights was in the best interest of the child. Mother appeals. We affirm.

Lincoln County Court of Appeals 06/27/11
Amy Lynn Phelps v. Emerson John Phelps
M2010-00856-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Stella L. Hargrove

The trial court granted the wife a divorce after a marriage of nineteen years, awarded her most of the marital property including the marital home, and made her wholly responsible for the mortgage debt on the residence. The court awarded the wife the husband’s share of the equity in the home in the form of alimony in solido. The husband argues on appeal that the property division was inequitable. He also contends that the trial court should have awarded alimony to him rather than to the wife. We affirm the trial court’s division of marital property and its determination not to award alimony to the husband, but we modify its judgment to include husband’s share of the equity in the marital home in the property division, rather than as a separate award of alimony in solido.

Maury County Court of Appeals 06/24/11