Court of Appeals Opinions

Format: 12/06/2016
Format: 12/06/2016
George Campbell, Jr. v. Tennessee Department of Correction, et al.
M2015-01674-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Carol L. McCoy

This is a prisoner complaint filed under the Tennessee Governmental Tort Liability Act (TGTLA) against the Tennessee Department of Correction, the Commissioner of Correction, Corrections Corporation of America, the correctional facility where the prisoner was housed, and several prison employees, seeking arrearages for unpaid wages, as well as punitive and compensatory damages.  The complaint was filed in the Chancery Court of Davidson County. The trial court dismissed the prisoner’s complaint because it lacked subject matter jurisdiction to hear the case.  The prisoner now appeals.  Discerning no error, we affirm.

Davidson County Court of Appeals 09/29/16
Dallas K. Hurley, Jr. v. Ryan B. Pickens, M.D., et al
E2015-02089-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge William T. Ailor

Dallas K. Hurley, Jr. (“Plaintiff”) sued Ryan B. Pickens, M.D. and University Urology, P.C. (“Defendants”) alleging claims for health care liability. Defendants filed a motion to dismiss. While the motion to dismiss was pending, Plaintiff filed a notice of and motion for voluntary dismissal pursuant to Tenn. R. Civ. P. 41. The Circuit Court for Knox County (“the Trial Court”) granted Plaintiff a voluntary dismissal without prejudice. Defendants appeal to this Court raising issues regarding whether Plaintiff had the right to take a voluntary dismissal without prejudice when a motion to dismiss was pending and whether Plaintiff failed to comply with Tenn. Code Ann. § 29-26-122 requiring dismissal of Plaintiff’s suit with prejudice. We find and hold that Plaintiff had the right to take a voluntary dismissal even while a motion to dismiss was pending. Our resolution of this issue renders Defendants’ second issue moot. We, therefore, affirm the Trial Court’s order granting Plaintiff a voluntary dismissal.

Knox County Court of Appeals 09/29/16
William S. Nickels, et al v. Metropolitan Government Of Nashville And Davidson County
M2015-01983-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Thomas W. Brothers

Two dentists filed this action against the Metropolitan Government of Nashville and Davidson County (“Metro”) under the Governmental Tort Liability Act to recover damages caused by the allegedly dangerous condition of the sewer and stormwater system behind their office. The trial court dismissed all of the plaintiffs’ claims. We have concluded that the trial court erred in several respects. The trial court erred in concluding that the combined line did not present a dangerous condition pursuant to Tenn. Code Ann. § 29-29-204(a), and in applying Tenn. Code Ann. § 29-20-205(a)(1) to the dentists’ claims. Moreover, the trial court erred in concluding that Metro did not have a duty to repair a known dangerous condition in the combined line. We further find that the trial court erred in concluding that the dentists were not at fault in constructing the addition to their office. We agree with the trial court that some of the plaintiffs’ claims are barred by the statute of limitations and the Act of God defense.

Davidson County Court of Appeals 09/28/16
Dwight Douglas et al v. Charlotte Cornwell
E2016-00124-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Jean A. Stanley

At issue is whether an easement for ingress and egress exists. Plaintiffs commenced this action to enjoin the adjacent property owner from using Plaintiffs’ driveway for ingress and egress. Defendant filed a counterclaim asserting that she had an easement by implication; alternatively, she claimed Plaintiffs purchased the property subject to an easement because the easement was apparent upon inspection. The dispositive issue concerning the alleged easement by implication is whether the easement is essential to Defendant’s beneficial enjoyment of her property. The trial court found that Defendant failed to establish that she would incur an unreasonable expenditure to create another means of ingress and egress to her property; therefore, the easement was not a necessity. The court also found that the claimed easement was not apparent upon inspection. Accordingly, the court enjoined Defendant from using the driveway for ingress and egress. We affirm.

Washington County Court of Appeals 09/28/16
In re Dustin L. et al.
E2015-02265-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Brian J. Hunt

This is a termination of parental rights case focusing on the six minor children of Tonya F. (“Mother”) and Joshua F. (“Father”). On February 9, 2015, the Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate the parental rights of Mother and Father. DCS alleged as a basis for termination the statutory grounds of (1) failure to provide a suitable home, (2) substantial noncompliance with the permanency plans, and (3) persistence of the conditions leading to removal of the children. Following a bench trial, the trial court granted the petition upon its determination by clear and convincing evidence that DCS had proven all three statutory grounds alleged. The court further determined by clear and convincing evidence that termination of Mother’s and Father’s parental rights was in the children’s best interest. Mother and Father have appealed. Inasmuch as DCS has conceded that the elements of abandonment through failure to provide a suitable home were not proven as to either party, we reverse this statutory ground. We affirm the trial court’s judgment in all other respects, including the termination of Mother’s and Father’s parental rights to the children.

Anderson County Court of Appeals 09/28/16
Tom Seaton v. Mona Johnson
E2015-2467-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jean A. Stanley

The appellee brought a detainer warrant against the appellant. The general sessions court granted the warrant and the appellant appealed to the circuit court, but did not post the required bond. The circuit court dismissed the case and the appellant appealed. We find that appellant’s brief does not meet the argument and citation requirements of Tenn. R. App. P. 27(a)(7) and, therefore, consider appellant’s issues waived. The circuit court’s decision is affirmed.

Washington County Court of Appeals 09/28/16
Joseph H. Johnston v. Tennessee State Election Commission, et al.
M2015-01975-COA-R3-CV
Authoring Judge: Judge Andy D.Bennett
Trial Court Judge: Chancellor Carol L. McCoy

This appeal requires us to consider whether the plaintiff can bring a declaratory judgment action against the Tennessee State Election Commission in chancery court.  We have reviewed the relevant authorities and have determined the plaintiff is not entitled to a declaratory judgment under the Uniform Administrative Procedures Act or the Declaratory Judgment Act.

Davidson County Court of Appeals 09/27/16
David H. McCord v. HCA Health Services of Tennessee, Inc.
M2016-00240-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Kelvin D. Jones

Surgeon brought suit against a hospital alleging multiple causes of action, two of which were dismissed upon the hospital’s motion for dismissal for failure to state a claim for relief. Pursuant to Tenn. Code Ann. § 20-12-119(c), the hospital filed a motion seeking recovery of costs and attorneys’ fees related to the dismissal of the two claims; the trial court granted the motion.  Plaintiff appeals.  We find no error in the award and, accordingly, affirm the judgment.

Davidson County Court of Appeals 09/27/16
Robert Clark v. John Werther, et al.
M2014-00844-COA-R3-CV
Authoring Judge: Jude W. Neal McBrayer
Trial Court Judge: Judge Carol Soloman

The plaintiff, acting pro se, filed a complaint in this health care liability action without attaching a certificate of good faith.  Several defendants filed motions to dismiss based on the missing certificate.  The plaintiff responded to the motions and filed a notice of voluntary nonsuit.  Some of the defendants objected to the voluntary dismissal, arguing the complaint should be dismissed with prejudice.  The trial court dismissed the plaintiff’s claims against the non-objecting defendants without prejudice but dismissed the plaintiff’s claims against the objecting defendants with prejudice.  The plaintiff appealed all of the court’s dismissal orders on numerous grounds.  Upon review, we conclude that Rule 41.01 of the Tennessee Rules of Civil Procedure afforded the plaintiff the right to a voluntary dismissal without prejudice as to all defendants.  Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.  

Davidson County Court of Appeals 09/27/16
Penny Arvidson Richards v. Neil Kingsland Richards
E2015-00758-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge R. Jerry Beck

In this divorce action, Penny Arvidson Richards (Wife) argues that the trial court’s judgment granting her a divorce and incorporating the parties’ marital dissolution agreement (MDA) should be set aside. Among other things, Wife alleges that she signed the MDA under duress and/or while she lacked the requisite mental capacity to do so. The trial court ruled that Wife failed to prove her defenses to the enforcement of the MDA. Wife appeals. We affirm.

Sullivan County Court of Appeals 09/26/16
Kimberly E. Lapinsky v. Janice E. Cook et al.
E2015-00735-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

Kimberly E. Lapinsky (“Plaintiff”) appeals the order of the Chancery Court for Sevier County (“the Trial Court”) granting summary judgment to Janice E. Cook, Kevin D. Cook (“the Cooks”) and Brenda Brewster (“Brewster”) in this lawsuit that arose from the sale of a house by the Cooks to Plaintiff. Plaintiff raises issues on appeal with regard to whether the Trial Court erred in granting summary judgment and whether the Trial Court erred in failing to allow Plaintiff to conduct additional discovery prior to ruling on the motions for summary judgment. The Cooks raise an issue regarding whether the Trial Court erred in denying their motion for attorney’s fees pursuant to Tenn. Code Ann. § 47-18-109. We find and hold that the Trial Court did not abuse its discretion in refusing to allow further discovery, that the defendants made properly supported motions for summary judgment, and that Plaintiff failed to show that there is a genuine disputed issue of material fact. As the Cooks and Brewster made properly supported motions for summary judgment and are entitled to summary judgment, we affirm the grants of summary judgment. We further find and hold that the Trial Court did not abuse its discretion in denying the motion for attorney’s fees.

Sevier County Court of Appeals 09/26/16
In re: Jason S., et al.
M2016-00226-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ken Witcher

This case involves termination of the parental rights of a mother and father to their three children. Following a report of drug exposure and environmental neglect, the Tennessee Department of Children’s Services (“DCS”) obtained emergency temporary custody of the children. Approximately nine months after the children were removed from the parents’ home, DCS filed a petition to terminate the parental rights of both parents on the grounds of substantial noncompliance with the permanency plan, persistence of conditions, and severe child abuse. The petition also sought to terminate the mother’s parental rights on the additional ground of abandonment by willful failure to visit, and it sought to terminate the father’s parental rights on the ground of abandonment by an incarcerated parent. The juvenile court found all grounds were established by clear and convincing evidence and that termination of both parents’ parental rights was in the children’s best interests. Although we conclude that DCS did not prove by clear and convincing evidence that the mother abandoned the children by willful failure to visit, we affirm the termination of parental rights. 

Macon County Court of Appeals 09/23/16
In re: Beckwith Church Of Christ
M2015-00085-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Charles K. Smith

In this case, two former members of a dissolved church filed a petition seeking permission to sell the improved real property formerly occupied by the church and donate the money to a nonprofit Bible school or, in the alternative, to convey the property directly to the school. The petitioners filed suit against unknown former members of the church and obtained permission to serve the unknown respondents by publication in a local newspaper. After publication of the action, no responsive pleadings were filed, and the petitioners obtained a default judgment. Before the default judgment became final, a descendant of the original owners of the real property filed a motion to set aside the default judgment and dismiss the petition based on insufficient service of process. The court granted the motion, set aside the default judgment, and dismissed the petition with regard to the descendant. On appeal, the petitioners argue: (1) the chancery court erred in finding constructive service insufficient; (2) that the descendant waived his objections to service of process by filing a notice of appearance; and (3) that the descendant should be estopped from setting aside the judgment because he delayed asserting his rights. Upon review of the record, we conclude that service of process on the descendant was insufficient and that the descendant’s conduct did not preclude him from setting aside the void judgment. Therefore, we affirm the decision of the chancery court.  

Wilson County Court of Appeals 09/23/16
Caney Fork Electric Cooperative, Inc., et al. v. Tennessee State Board of Equalization
M2016-00316-COA-R12-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Executive Secretary Kelsie Jones

The Tennessee Attorney General opined that a tax exemption in favor of electric cooperatives found at Tenn. Code Ann. § 65-25-122(a) violates Article II, Section 28 of the Tennessee Constitution. The Board of Equalization began proceedings to recalculate the taxes of the electric cooperatives. Several electric cooperatives objected and maintained that the exemption under Tenn. Code Ann. § 65-25-122(a) was valid. The Board recalculated their taxes anyway. The electric cooperatives appealed. Although the Board of Equalization cannot rule on the constitutionality of the statute, we can. We find that Tenn. Code Ann. § 65-25-122(a) violates Article II, Section 28 of the Tennessee Constitution.

Court of Appeals 09/23/16
James F. Logan, Jr. et al. v. The Estate of Mildred Cannon et al.
E2015-02254-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Frank V. Williams, III
This case involves a one-quarter ownership interest in an unimproved 7.18-acre tract of real property located in Bradley County, Tennessee (“the Property”). The plaintiff, attorney James F. Logan, Jr., asserts that he purchased a one-quarter interest in the Property from Sam and Mildred Cannon in 1974. Sam and Mildred Cannon were divorced in 1979, and Mr. Cannon remarried. Upon Mr. Cannon’s death in 2002, he was survived by his second wife, Yvonne, and two adult children from his marriage to Mildred Cannon. Prior to commencement of this action, Yvonne Cannon conveyed any interest she had in the disputed property to Mr. Logan via quitclaim deed. Mr. Logan, together with co-plaintiffs, who are co-tenants of the Property not participating in this appeal, subsequently filed this action in February 2011, seeking declaration of ownership in Mr. Logan’s name and clear title concerning his claimed one-quarter interest in the Property. They named as defendants Mildred Cannon; her daughter, both individually and in her capacity as trustee for Sam and Mildred Cannon’s son; and a successor trustee. The plaintiffs acknowledged that no deed reflecting Sam and Mildred Cannon’s purported conveyance to Mr. Logan had been recorded or could be produced. In the alternative, the plaintiffs pled adverse possession. Mildred Cannon died in September 2011, and her estate was substituted as a party in this action. The parties subsequently filed competing motions for summary judgment, with the defendants alleging that Mr. Logan’s claim could not satisfy the requirements of the Statute of Frauds and the plaintiffs amending their complaint to add alternative equitable theories of constructive trust and/or resulting trust. Following hearings, the trial court granted summary judgment in favor of the defendants. Mr. Logan appeals. We affirm the trial court’s findings that the evidence cannot satisfy the requirements of the Statute of Frauds or give rise to a constructive or resulting trust. We determine, however, that genuine issues of material fact exist regarding Mr. Logan’s claim of adverse possession, and we remand for further proceedings concerning this claim. We also determine that the trial court improperly found statements in an affidavit presented by an employee of Mr. Logan’s law firm to be inadmissible. We affirm the trial court’s judgment in all other respects.
 
Bradley County Court of Appeals 09/23/16
Randall E. Pearson, M.D. et al. v. Paul Koczera et al.
E2015-02081-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John D. McAfee

This appeal arises from the trial court’s determination that it was without jurisdiction, following a prior appeal in the same matter, to act upon a motion seeking to alter or vacate an order entered after remand. The administrator ad litem for the third-party plaintiff has appealed from the trial court’s order determining that it lacked jurisdiction to act on her motion following remand. We determine that the trial court did possess jurisdiction to act on pending motions following the remand from the appellate courts. We therefore vacate the trial court’s order and remand this case for further proceedings. We also vacate the trial court’s order granting sanctions against the administrator ad litem for filing her motion to alter or vacate.

Anderson County Court of Appeals 09/23/16
In Re Elizabeth D.
E2015-02097-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Thomas J. Wright

The custodians of a child filed a petition in Greene County Circuit Court to terminate the parental rights of the Father to the child, who had resided with the Custodians since birth; at the time of the hearing on the petition, the Father was incarcerated in Florida. Following a three-day hearing extending over one month, the court entered an order holding that Father failed to visit or support the child within the four months preceding his incarceration and terminating Father’s rights on the grounds of abandonment. Father appeals, asserting that the conduct of the hearing denied him his due process right to meaningfully participate in the termination proceeding and that the record does not support the determination that he willfully failed to visit or support his child. Finding no error, we affirm the judgment of the trial court.

Greene County Court of Appeals 09/23/16
In re Jasmine B., et al.
M2016-00464-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge G. Andrew Brigham

This is a termination of parental rights case. Appellant/mother appeals the termination of her parental rights to two minor children on the statutory grounds of: (1) abandonment by failure to provide a suitable home, Tenn. Code Ann §§36-1-113(g)(1), 36-1-102(1)(A)(ii); (2) substantial noncompliance with the requirements of the permanency plans, Tenn. Code Ann. §36-1-113(g)(2); and (3) persistence of the conditions that led to the children’s removal from Appellant’s home, Tenn. Code Ann.§36-1-113(g)(3). Appellant also appeals the trial court’s finding that termination of her parental rights is in the children’s best interests. Discerning no error, we affirm and remand.

Stewart County Court of Appeals 09/22/16
In re Envy J., et al.
W2015-01197-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Robert L. Childers

Mother appeals the trial court's termination of her parental rights. The trial court terminated her parental rights on the grounds that the children were victims of severe abuse and that mother had failed to financially support the children. The trial court also concluded that termination of parental rights was in the children's best interest. After a thorough review of the record, we conclude that there was not clear and convincing evidence of abandonment by willful failure to support. But, we conclude that there was clear and convincing evidence of severe abuse and that termination was in the best interest of the children. Consequently, we affirm the termination of Mother's parental rights.

Shelby County Court of Appeals 09/22/16
In re C.C. et al.
E2016-00475-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Dennis (Will) Roach, II
The Department of Children’s Services filed a petition seeking, on the basis of four grounds, to terminate the parental rights of H.C. (Mother) to her four children, C.C., D.C., A.D., and S.D. (collectively the Children). In the same petition, DCS also sought to terminate, on three grounds, the parental rights of B.D., Mother’s long-time boyfriend and father of two of the Children, i.e., A.D. and S.D. (collectively the twins).The trial court found, by clear and convincing evidence, three grounds to terminate Mother’s parental rights and three grounds to terminate B.D.’s parental rights. By the same quantum of proof, the court found that termination is in the Children’s best interest. Mother and B.D. (collectively the parties) appeal. As modified, we affirm the judgment
of the trial court.
 
Jefferson County Court of Appeals 09/22/16
Trevor Travis v. Cookeville Regional Medical Center, et al.
M2015-01989-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Amy V. Hollars

In this health care liability case, the defendants moved to dismiss the complaint on the grounds that the plaintiff failed to comply with Tenn. Code Ann. § 29-26-121, part of Tennessee’s Health Care Liability Act. Specifically, the defendants argue that the plaintiff failed to provide a statement in the pleadings that he complied with Tenn. Code Ann. § 29-26-121(a), failed to file, with the complaint, documentation demonstrating compliance with Tenn. Code Ann. § 29-26-121(a), failed to file, with the complaint, an affidavit of the person who mailed pre-suit notice to the defendants, and failed to provide a HIPAA compliant medical authorization form. The trial court dismissed the case. We have reviewed the record and find that the plaintiff failed to substantially comply with Tenn. Code Ann. § 29-26-121(b). We affirm the judgment of the trial court.

Putnam County Court of Appeals 09/20/16
Lisa E. Burris v. James Morton Burris
M2015-01969-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Mitchell Keith Siskin

Appellant appeals from the denial of her motion to alter or amend the trial court’s judgment finding her guilty of thirty-seven counts of criminal contempt and sentencing her to 403 days incarceration. We affirm the trial court’s denial of Appellant’s post-trial motion on the ground that the trial court erred in finding her non-payment of child support willful. We also affirm the denial of Appellant’s post-trial motion based upon evidence that Appellant obtained a loan to pay her support obligation after the contempt hearing. We vacate the trial court’s denial of Appellant’s post-trial motion, however, on the ground that trial court failed to consider whether Appellant’s sentence was excessive. We therefore remand to the trial court to make appropriate findings of fact and conclusions of law to support its ruling and to consider whether Appellant’s sentence is excessive. Affirmed in part; vacated in part and remanded. 

Rutherford County Court of Appeals 09/20/16
Stephny Denise Young, et al. v. Richard Jordan, MD, et al.
W2015-02453-COA-R9-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Rhynette N. Hurd

This is a healthcare liability case. Appellees, patient and her husband, filed suit against Appellants, physician and employer. Appellants raised the affirmative defense of comparative fault based on the fact that Appellee/patient had been non-compliant with medical advice. Appellees moved for partial summary judgment on the affirmative defense of comparative fault. The trial court granted the motion, and Appellants appeal. Because expert testimony adduced during discovery creates a dispute of material fact as to the question of Appellees’ non-compliance with medical advice and the effect of such non-compliance on Appellees’ injury, the grant of summary judgment was error.

Shelby County Court of Appeals 09/20/16
Scott B. Peatross, as Administrator Ad Litem of the Estate of Dora Birk v. Graceland Nursing Center, LLC, et al.
W2015-01412-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge D'Army Bailey

This is a health care liability action. The plaintiff filed suit against the defendants concerning the inadequate care and treatment received by the decedent. He then amended his complaint to add the defendant hospital as a party after the defendants alleged comparative fault. The defendant hospital moved to dismiss, arguing that the failure to attach a certificate of good faith applicable to it required dismissal. The trial court granted the motion to dismiss, citing this court’s opinion in Sirbaugh v. Vanderbilt University, 469 S.W.3d 46 (Tenn. Ct. App. 2014). The plaintiff appeals. We affirm.

Shelby County Court of Appeals 09/20/16
Hitachi Capital America Corp v. Community Trust & Banking Company, et al.
E2015-02121-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor W. Frank Brown, III

This is a declaratory judgment action in which the intervening plaintiff sought to establish priority lien status over the original plaintiff as well as a Rule 19 defendant. We affirm the decision of the Chancery Court.

Hamilton County Court of Appeals 09/20/16