Court of Appeals Opinions

Format: 01/20/2021
Format: 01/20/2021
Donna Cooper, Et Al. v. Dr. Mason Wesley Mandy, Et Al.
M2019-01748-COA-R9-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge James G. Martin, III

The principal issue in this interlocutory appeal is whether intentional misrepresentations made by health care providers to induce a prospective patient to engage the health care providers’ services are within the purview of the Tennessee Health Care Liability Act (“the Act”), Tenn. Code Ann. § 29-26-101 to -122. The complaint filed by the patient, Donna Cooper (“Mrs. Cooper”), and her husband alleges that Dr. Mason Wesley Mandy (“Dr. Mandy”) and Rachelle Norris (“Ms. Norris”) with NuBody Concepts, LLC, intentionally misrepresented that Dr. Mandy was a board-certified plastic surgeon and, based on their misrepresentation, Mrs. Cooper gave Dr. Mandy her consent to perform the surgery. Following “painful, disastrous results,” the plaintiffs asserted four claims: (1) intentional misrepresentation; (2) medical battery; (3) civil conspiracy; and (4) loss of consortium. Defendants filed a Tenn. R. Civ. P. 12 motion to dismiss for failure to comply with the presuit notice and filing requirements of the Act, specifically Tenn. Code Ann. §§ 29-26-121 and -122. The trial court denied the motion to dismiss, finding the Act did not apply. This interlocutory appeal followed. We hold that Mrs. Cooper is entitled to proceed on her claims of intentional misrepresentation and civil conspiracy because the alleged misrepresentations were inducements made prior to the existence of a patient-physician relationship; thus, the claims were not related to “the provision of . . . health care services.” See Tenn. Code Ann. § 29-26-101(a)(1). We also affirm its ruling on the medical battery claim because a physician’s misrepresentation of a material fact, if proven, may vitiate consent, and, without consent, the very act of touching Mrs. Cooper may constitute an unlawful and offensive act that is not related to the provision of health care services. See Holt v. Alexander, No. W2003-02541-COA-R3-CV, 2005 WL 94370, at *6 (Tenn. Ct. App. Jan. 13, 2005). Further, we affirm the trial court’s ruling on Mr. Cooper’s claim for loss of consortium because, as the trial court held, his claims relate to Dr. Mandy’s and Ms. Norris’s false representations of Dr. Mandy’s credentials, not to a provision of, or a failure to provide, a health care service. Accordingly, we affirm the trial court in all respects and remand for further proceedings consistent with this opinion.

Williamson County Court of Appeals 11/17/20
Capital Partners Network OT, Inc. v. TNG Contractors, LLC, Et Al.
M2020-00371-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Defendants appeal the trial court’s grant of summary judgment to the plaintiff corporation, the effect of which was to accord full faith and credit to a New York judgment based on a confession of judgment, or cognovit note. Defendants argue that the foreign judgment should not be enrolled in Tennessee because it is contrary to public policy, based on Tennessee Code Annotated section 25-2-101(a), which prohibits the use of prelitigation confessions of judgment and declares void any judgment based upon such a device. After reviewing the record and case law, we hold that the Constitution’s full faith and credit mandate requires enrollment of the foreign judgment so long as Defendants validly waived their due process rights. Accordingly, we affirm.

Davidson County Court of Appeals 11/16/20
Wayne C. Lance v. Alcoa Hotel Hospitatlity, LLC
E2019-01100-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

The plaintiff instituted this action to recover payments allegedly due under an agreement to sell his membership interest in a corporation. Following a bench trial, the trial court agreed with the defendant corporation’s contention that the “additional consideration” provision of the agreement was void and unenforceable because it was not supported by consideration. The trial court determined that the corporation received no consideration in exchange for its promise to make annual payments to the plaintiff. The plaintiff has appealed. Upon thorough review, we conclude that sufficient consideration supported the agreement, and we reverse the trial court’s judgment in that regard. The balance of the trial court’s judgment is affirmed.

Knox County Court of Appeals 11/16/20
In Re Brooklyn R.
M2020-00596-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Sam Benningfield

The Tennessee Department of Children’s Services filed a petition to terminate a father’s parental rights based on abandonment by failure to support; abandonment by failure to visit; abandonment by wanton disregard; substantial noncompliance with permanency plans; and failure to manifest an ability and willingness to assume custody of the child. The trial court granted the petition, finding that the Department proved the alleged grounds by clear and convincing evidence and that terminating the father’s parental rights was in the best interests of the child. The father appeals the trial court’s conclusion that terminating his parental rights is in the best interests of the child. We affirm. 

White County Court of Appeals 11/13/20
Lisa Livingston v. Gregory Livingston
M2020-01463-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Jonathan L. Young

Following a public reprimand of the trial judge presiding over her divorce, Wife filed a motion to recuse the trial judge pursuant to Tennessee Supreme Court Rule 10B. The trial court denied the motion, and Wife appealed to this Court. Thereafter, the presiding judge of the Thirteenth Judicial District entered an order transferring the case to another judge in order to “equitably distribute the case load[.]” Wife then filed a notice in this Court seeking direction as to whether the appeal is moot. Following our review, we dismiss this appeal as moot.

Putnam County Court of Appeals 11/12/20
Judy Webb v. Trevecca Center For Rehabilitation And Healing, LLC
M2019-01300-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Amanda Jane McClendon

This appeal concerns the dismissal of a health care liability action against a long-term care facility.  The trial court dismissed the complaint without prejudice because the plaintiff did not provide the long-term care facility with pre-suit notice of her claim as required by statute.  The plaintiff argues that the notice she mailed to the facility’s administrator at the facility’s business address satisfied the statutory requirement.  Because her letter was not directed to the facility, we affirm the dismissal of her complaint. 

Davidson County Court of Appeals 11/10/20
Hugh A. Niceley v. Tennessee Department Of Correction
M2019-02156-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Patricia Head Moskal

This appeal arises from the summary dismissal of an inmate’s petition for declaratory judgment on the calculation of his sentence expiration date. The inmate contended that each of his consecutive sentences should have begun automatically upon the expiration of the prior sentence’s period of ineligibility for release. The trial court found the material facts were undisputed and concluded that the Tennessee Department of Correction correctly calculated the sentences. Finding no error, we affirm the judgment of the trial court. 

Davidson County Court of Appeals 11/10/20
Eric Wayne Barton v. Mechelle Schlomer Barton
E2019-01336-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

In this appeal arising out of the parties’ divorce, the Husband raises issues pertaining to the court’s classification, valuation, and division of the marital estate, as well as the court’s award of attorney’s fees to Wife. Upon our review, we vacate those parts of the judgment that awarded a lien on real property belonging to LLCs in which Husband had 100 percent ownership interest as well as an award to Wife of an interest in a contingent contractual claim against the United States Government that is an asset of an LLC in which Husband had 100 percent ownership interest. Additionally, in light of this Court’s determination that the contractual claim is an asset of an LLC owned 100 percent by Husband, we conclude that the record requires the court to reconsider the valuation of the parties’ business interests in the LLC that has the contractual claim. Although the trial court must necessarily consider the impact that the contractual claim has on the parties’ net marital business interests, we note that the court’s current calculations, which are divorced from a proper consideration of the impact of the contractual claim, overvalued the net marital business interests based upon its own findings. In light of the fact that the case is being remanded for further consideration of the valuation of the parties’ net marital business interests, we also vacate the trial court’s equitable division of the estate and its award of attorney’s fees to Wife and remand for further consideration. We also decline to award Wife her attorney’s fees on appeal. The balance of the judgment is affirmed.

Blount County Court of Appeals 11/10/20
In Re Lillian W.
M2019-02225-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Larry B. Stanley, Jr.

Father living in California had his parental rights terminated by default judgment. Father appealed, and we vacate the termination because the trial court failed to conduct a best interest analysis.

Warren County Court of Appeals 11/09/20
In Re Arianna B.
E2020-00487-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor John F. Weaver

This appeal concerns the termination of a mother’s parental rights. Amy B. (“Mother”) is the mother of the minor child Arianna B. (“the Child”). At Mother’s request, Kayla A. (“Petitioner”), the Child’s paternal aunt, assumed temporary custody of the Child. Petitioner later filed a petition in the Chancery Court for Knox County (“the Trial Court”) seeking to terminate Mother’s parental rights. After trial, the Trial Court entered an order finding that Petitioner had proven the ground of failure to support and that termination of Mother’s parental rights is in the Child’s best interest. Mother appeals, arguing among other things that Tenn. Code Ann. § 36-1-102(1), as amended in 2018, is unconstitutional for shifting the burden of proof on willfulness to parents. As Mother failed to raise this issue below and the statute is not obviously unconstitutional on its face, we decline to consider Mother’s tardy constitutional challenge. We find the ground of failure to support was proven by clear and convincing evidence, and, by the same standard, that termination of Mother’s parental rights is in the Child’s best interest. We affirm.

Knox County Court of Appeals 11/09/20
In Re Edward R. - Concurring In Part and Dissenting In Part
M2019-01263-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Douglas K. Chapman

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.  

Maury County Court of Appeals 11/06/20
In Re Edward R.
M2019-01263-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Douglas K. Chapman

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.

Maury County Court of Appeals 11/06/20
Melanie Shea Thompson, Et Al. v. Southland Constructors Et Al.
M2019-02060-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Joe H. Thompson

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.

Sumner County Court of Appeals 11/06/20
In Re Noah A.
E2019-01633-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Henry E. Sledge

This action involves the termination of both parents’ rights to a minor child. Following a trial, the Loudon County Juvenile Court found that clear and convincing evidence existed to support five statutory grounds for termination of both parents’ rights: (1) abandonment by failure to establish a suitable home; (2) abandonment by an incarcerated parent; (3) substantial non-compliance with the permanency plan; (4) persistence of conditions; and (5) failure to manifest an ability and a willingness to assume custody. The court also found that termination was in the best interest of the child. Both parents appealed. We vacate in part and affirm in part.

Loudon County Court of Appeals 11/06/20
Thomas John Pitera v. Samantha Pitera
E2020-00063-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor E. G. Moody

This appeal arises from a divorce proceeding. Husband is a resident of Connecticut with no ties to Tennessee. Wife and minor child, also former residents of Connecticut, have resided in Tennessee since December of 2018. Wife filed for divorce in Tennessee in May of 2019 and personally served Husband in Connecticut. Husband moved to dismiss the complaint for lack of personal jurisdiction. The trial court thereafter entered a final decree of divorce in favor of Wife. Because we find that Wife was not a resident of Tennessee for six months preceding the filing of the complaint for divorce, the trial court did not have subject matter jurisdiction to grant the divorce. The judgment of the trial court is vacated and dismissed.

Sullivan County Court of Appeals 11/06/20
New Phase Investments, LLC, et al. v. Elite RE Investments, LLC, et al.
W2019-00980-COA-R10-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Walter L. Evans

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.

Shelby County Court of Appeals 11/05/20
MC Builders, LLC v. Fuad Reveiz, Et Al.
E2019-01813-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Pamela Fleenor

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.

Hamilton County Court of Appeals 11/05/20
Daphne Saunders v. Y-12 Federal Credit Union
E2020-00046-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Donald R. Elledge

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.

Anderson County Court of Appeals 11/05/20
Kerry Davis v. Garrettson Ellis, MD
W2019-01367-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Rhynette N. Hurd

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.

Shelby County Court of Appeals 11/05/20
Alvin Lewis v. State Farm
W2019-01493-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joe H. Walker, III

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.

Tipton County Court of Appeals 11/05/20
Associates Asset Management, LLC b. Sheila Smith
M2019-02217-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Ross H. Hicks

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.

Robertson County Court of Appeals 11/03/20
Judith Michele Dial v. James Klemis, M.D., et al.
W2019-02115-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Jerry Stokes

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.

Shelby County Court of Appeals 11/02/20
Leslie Burnett Montgomery v. Gary Alan Montgomery
M2020-00314-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Philip E. Smith

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

Davidson County Court of Appeals 11/02/20
Mindy Donovan v. Joshua R. Hastings - Concurring In Part and Dissenting In Part
M2019-01396-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Patricia Head Moskal

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.

Davidson County Court of Appeals 10/30/20
Mindy Donovan v. Joshua R. Hastings
M2019-01396-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Patricia Head Moskal

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.
 

Davidson County Court of Appeals 10/30/20