Court of Appeals Opinions

Format: 12/16/2017
Format: 12/16/2017
Judith Husk v. Brandon Thompson
M2016-01481-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Howard W. Wilson

The trial court granted a default judgment against the appellant for claims of conversion, unjust enrichment, and malicious prosecution.  Immediately after granting the default judgment, the trial court awarded the appellee damages without hearing proof.  The appellant filed a motion to set aside the default judgment.  The trial court denied the appellant’s motion.  We affirm the trial court’s decision in all regards except for its award of damages.  The case is remanded for a hearing on damages.

Rutherford County Court of Appeals 08/10/17
Sandra Kay Clary v. Deidra A. Miller, et al
M2016-00794-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Jonathan L.Young

This appeal concerns the dismissal of a health care liability action for noncompliance with the Health Care Liability Act, specifically Tennessee Code Annotated § 29-26-121 (Supp. 2016). Before filing this action, the plaintiff gave timely written pre-suit notice of her health care liability claim, including the required medical authorizations, to all potential defendants. But when she filed her complaint, the plaintiff failed to provide copies of the medical authorizations as required by statute. Both defendants filed motions to dismiss based on the missing documents. The trial court determined that the plaintiff had substantially complied with the statute and that the defendants were not prejudiced by the omission. Even so, the court dismissed the complaint with prejudice after concluding that strict compliance with the statute was required when the defendant was a governmental entity. Upon review, we conclude that substantial compliance with the documentation requirement in Tennessee Code Annotated § 29-26-121(b) is sufficient even when the defendant is a governmental entity. Thus, we reverse the dismissal of the complaint.

Putnam County Court of Appeals 08/08/17
In Re: Ethan R.
W2016-00201-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Jerry Stokes

Mother appeals judgment holding her in criminal contempt of court, contending that the court lacked jurisdiction to enforce the order as to which she was found in contempt, that she was not given the notice required by Tennessee Rules of Criminal Procedure 42(b), and that she was improperly served with the contempt petition. Upon a thorough review of the record, we affirm the judgment.

Shelby County Court of Appeals 08/08/17
Donna Maria Vetrano, et al. v. State of Tennessee
M2015-02474-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Commissioner Robert N. Hibbett

Former inmate and her husband filed a complaint against the State of Tennessee, alleging that state employees negligently supervised and retained a prison guard who sexually assaulted the inmate.  The Tennessee Claims Commission determined it lacked subject matter jurisdiction to hear the claim and dismissed the complaint.  We conclude that the former inmate’s claim falls within a category of claims for which the Claims Commission has exclusive jurisdiction, specifically the “[n]egligent care, custody and control of persons.”  Tenn. Code Ann. § 9-8-307 (Supp. 2016).  We also conclude the complaint does not seek to hold the State liable for the willful, malicious, or criminal act of a state employee.  Accordingly, we reverse.

Court of Appeals 08/08/17
Marcus Johnsonv. Tennessee Department of Correction, et al.
E2016-02260-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jeffrey F. Stewart

An inmate in the custody of the Tennessee Department of Correction filed a petition for writ of certiorari challenging the revocation of his parole. Because the inmate failed to file his petition within the sixty-day period required by statute, the chancery court lacked jurisdiction. We, therefore, affirm the chancery court’s judgment dismissing the case.

Bledsoe County Court of Appeals 08/08/17
Tom Slagle, et al v. The Church Of The First Born Of Tennessee, et al
M2015-00297-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

A dispute among members of a church arose over control of the church. One group of church members incorporated, and then individual members of the church filed suit against the corporation and a second entity that operated a school on church property. On cross-motions for summary judgment, the trial court determined that the organizational structure of the church was “connectional” or “hierarchical” in nature and that all property of the church was under the control of the church’s board of deacons. Because we conclude that there are genuine issues of material fact that preclude entry of summary judgment, we affirm in part and reverse in part.

Robertson County Court of Appeals 08/07/17
Chayce Collier v. Periclis Roussis, M.D., Et Al.
E2016-01591-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge William T. Ailor

Chayce Collier, a minor, by and through his natural parent and next friend, Kendall Collier (“Plaintiff”) sued Periclis Roussis, M.D. and Fort Sanders Perinatal Center and Fort Sanders Regional Medical Center (“the Hospital”) for injuries allegedly suffered by Plaintiff when his mother had an allergic reaction during labor. After trial before a jury, the Circuit Court for Knox County (“the Trial Court”) entered judgment on the jury’s verdict that Dr. Roussis was not negligent and that the nurses employed by the Hospital were not negligent and dismissed the suit. Plaintiff appeals to this Court raising several issues including whether the Trial Court erred in allowing the admission of previously undisclosed testimony from the nurses and a defense expert witness, among other things. We find and hold that the Trial Court erred in allowing the previously undisclosed testimony of the nurses and the defense expert witness. We, therefore, vacate the Trial Court’s judgment and remand this case for a new trial.

Knox County Court of Appeals 08/07/17
Shira Jean Stafford, et al. v. Jackson County, Tennessee, et al.
M2016-01833-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Clara W. Byrd
An arrestee sued the arresting sheriff’s deputy, the sheriff, and the county for assault and battery and intentional infliction of emotional distress. The trial court dismissed the case on summary judgment. We affirm as to the claim for intentional infliction of emotional distress but find that there are genuine issues of material fact precluding summary judgment on the claim for assault and battery.
 
Jackson County Court of Appeals 08/04/17
In Re Demarkus T., et al
M2016-01839-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Kenneth R. Goble, Jr.

This appeal arises from the termination of Mother’s and Father’s parental rights with respect to their two minor children. The children were removed from the parents’ custody by the Department of Children’s Services (“DCS”) in July 2013 after investigators responded to a call where the children’s sibling was found deceased at home. DCS filed a petition to terminate the parental rights of Mother and Father on the grounds of severe abuse and best interests. The trial court found clear and convincing evidence of grounds supporting termination and that termination of their parental rights was in the best interests of the children. Mother and Father separately appealed. After review, we affirm the trial court.

Montgomery County Court of Appeals 08/03/17
Zynia Pua-Vines v. Michael Blane Vines
E2016-02472-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge L. Marie Williams

This case involves a post-divorce modification of a parenting plan. Appellee/Mother filed a petition to modify the parties’ parenting plan, alleging that: (1) Father had moved, requiring a modification in the transportation arrangements; (2) Father had preemptively refused to pay the oldest child’s private school tuition at Girl’s Preparatory School (“GPS”); and (3) Father should be found in contempt for failing to pay the children’s extracurricular expenses, in violation of a prior court order. Father counter-claimed for contempt, stating that, without his consent, Mother had enrolled the older child in a private school. The trial court found Father in civil contempt, entered two monetary judgments against Father, and modified Father’s child support and the parties’ transportation schedule. Determining that the parties agreed to Catholic education for the children, and Father is not liable for private school tuition costs when the parties did not agree on the private school, we reverse the ruling regarding Father’s share of the tuition for the older child. We also reverse the trial court’s judgments against Father for $6,209.40 in extracurricular expenses, $787.59 for out-of-network dental expenses, and its finding of contempt, and its assessment of $150.00 per month prospective piano and dance lesson fees against Father. Finally, we affirm the trial court’s entry of Mother’s child support worksheet and modification of the parties’ transportation arrangements. Affirmed in part, reversed in part, and remanded.

Hamilton County Court of Appeals 08/02/17
Kip Harold Roby v. Teresa Coakley Roby
M2015-01987-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge John H. Gasaway, III

This case arises out of the demise of a long-term marriage. The trial court granted the wife a divorce based on the husband’s inappropriate marital conduct and, after finding the wife economically disadvantaged, awarded her transitional alimony for a duration of 12 years. The husband appeals the final decree of absolute divorce solely on the issue of alimony. Our review of the record leads us to conclude that the trial court did not err in awarding alimony, nor did it err in the amount or duration of its award. However, we modify the court’s award of transitional alimony to an award of alimony in futuro. We affirm in all other respects.  

Montgomery County Court of Appeals 08/01/17
Isiah Hopps, Jr. v. Jacquelyn F. Stinnes
W2016-01982-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Robert L. Childers

This is a health care liability action in which a patient alleged that an emergency room nurse practitioner violated the applicable standard of care in her treatment of him by failing to order proper tests and failing to perform a proper examination. The case was tried before a jury for three days. At the close of proof, the trial court granted a partial directed verdict in favor of the Appellee, dismissing Appellant’s claims that Appellee breached the standard of care by not ordering a CT scan. The court also refused to allow the jury to consider whether Appellant’s vision loss was due to Appellee’s negligence. The jury returned a verdict in favor of Appellee. We affirm.

Shelby County Court of Appeals 08/01/17
Tommy Lynn Lawson et al. v. Knoxville Dermatology Group, P.C. et al.
E2017-00077-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge William T. Ailor

The plaintiffs initiated this health care liability action against two defendant medical providers, a dermatology practice and a certified physician’s assistant employed by the practice. The defendants filed separate motions to dismiss, with each respectively asserting that the plaintiffs’ claims should be dismissed for failure to substantially comply with Tennessee Code Annotated § 29-26-121(a)(2)(E), which provides that a pre-suit medical authorization must be compliant with the Health Insurance Portability and Accountability Act (“HIPAA”). Following a hearing, the trial court dismissed the plaintiffs’ claims without prejudice upon finding that the medical authorization forwarded by the plaintiffs was incomplete and failed to substantially comply with HIPAA’s release requirements. The plaintiffs have appealed solely the dismissal of the health care liability claim against the dermatology practice. Discerning no reversible error, we affirm.

Knox County Court of Appeals 08/01/17
John O. Threadgill v. Wells Fargo Bank, N.A.
E2016-02339-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John F. Weaver

At an earlier time, in 2011, John O. Threadgill brought an action against Wells Fargo Bank, N.A. In doing so, he was acting as the trustee for the owner of real property, upon which mortgagee Wells Fargo intended to foreclose. That case ended in summary judgment against the trustee. When the decision became final following an appeal to this Court and an unsuccessful request for Supreme Court review, Threadgill almost immediately filed this action. For the purpose of the second suit, he admits that the current complaint asserts the same claims and involves the same parties as in the earlier suit. In the second suit, Wells Fargo again moved for summary judgment upon the ground of res judicata. Threadgill acknowledges that res judicata applies to bar his claim. He argues, however, that he is entitled to a judgment declaring that Wells Fargo is estopped from asserting any claim that is based upon the note and deed of trust, because Wells Fargo failed to assert such a claim in the first lawsuit. Threadgill argues that a claim based on the note and deed of trust is a compulsory counterclaim under Tenn. R. Civ. P. 13.01. The trial court disagreed, ruling that Wells Fargo’s “nonjudicial foreclosure is, by definition, nonjudicial and was not required to be raised in the [earlier case] as a counterclaim.” Threadgill appeals. We affirm

Knox County Court of Appeals 08/01/17
In Re B.B., et al.
M2016-01642-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Ross H. Hicks

In this dependency and neglect case, A.L.B. (father) reported to DCS that K.J.B. (mother) had physically abused their daughter, B.E.B. (child 1).  After investigating the alleged abuse, DCS filed a petition to declare child 1 and her brother, B.A.B. (child 2) (collectively the children), dependent and neglected in mother’s care.  The Montgomery County Juvenile Court adjudicated the children dependent and neglected.  Mother appealed to the trial court.  That court found clear and convincing evidence of abuse.  Accordingly, the court adjudicated the children dependent and neglected.  Mother appeals.  We affirm.

Montgomery County Court of Appeals 07/31/17
In Re: Angel M., et al.
E2016-02061-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge William B. Acree

This appeal involves the termination of the parental rights of the mother and father of two minor children. The trial court held that the parents were in substantial noncompliance with three permanency plans, primarily for drug abuse and the failure to seek treatment, and subsequently terminated the parental rights of each. Both parents appeal. We affirm.

Sevier County Court of Appeals 07/31/17
Daniel D. Hall et al. v. Eagle Rock Development, LLC et al.
E2015-01487-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Telford E. Forgety

This case involves misrepresentations allegedly made to a husband and wife, purchasers of real estate. On June 16, 2006, Daniel D. Hall and Julie K. Hall executed a contract to purchase lot 25 in the Preserve at English Mountain (the Preserve). On June 30, 2006, the transaction closed. In November 2009, the Halls learned, for the first time, that public sewage disposal was not available to lot 25. Because of this deficiency, the Halls were restricted, against their wishes, to a dwelling with only two bedrooms. On December 14, 2012, based upon the misrepresentation that lot 25 would have access to public sewage disposal, the Halls filed a complaint against various entities and individuals involved in the sale. Refusing to pierce the corporate veil as to individual defendants Phillip Joseph and Daniel L. Barnett, the trial court dismissed all of the individual defendants and some of the other defendants. The court found material misrepresentations and granted the Halls rescission of the purchase contract and a refund of $123,000. In addition, the court awarded the Halls attorney’s fees under the Tennessee Consumer Protection Act (TCPA) against Blue Ridge Realty, Inc. (Blue Ridge) predicated upon the failure of the Halls’ agent to disclose that he was a member of the entity selling the property. Eagle Rock Development, LLC (Eagle Rock) and Blue Ridge (collectively the entity defendants) appeal. We affirm

Sevier County Court of Appeals 07/31/17
In Re: Mya V.
M2016-02401-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Sammie E. Benningfield, Jr.

This appeal involves the termination of two parents’ parental rights to their daughter. The trial court found by clear and convincing evidence that four grounds for termination existed with regard to the father and six grounds existed with regard to the mother. The trial court also found it to be in the child’s best interest to terminate parental rights. Mother and Father appealed, raising the issues of whether grounds existed for termination and whether it was in the child’s best interest to terminate. After reviewing the evidence, we reverse the trial court’s finding regarding one ground for termination asserted against Mother, but we otherwise affirm the trial court’s order as to Mother and affirm the termination of Mother’s parental rights. Based on a jurisdictional defect, we dismiss the appeal as to Father.

White County Court of Appeals 07/28/17
Kenneth L. Jakes v. Sumner County Board Of Education - Concurring
M2015-02471-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Dee David Gay
I concur in the decision to affirm the judgment of the Chancery Court for Sumner County. I write separately to address the trial court’s grant of the protective order, which prevented the parties from conducting further discovery, and the court’s decision not to treat the March 31, 2014, email from the appellee, Kenneth Jakes, as a valid public record request under the Tennessee Public Records Act (“TPRA”).
 
Sumner County Court of Appeals 07/28/17
Kenneth L. Jakes v. Sumner County Board Of Education
M2015-02471-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Dee David Gay

This appeal involves a request to inspect public records pursuant to the Tennessee Public Records Act, codified at Tennessee Code Annotated section 10-7-101, et seq. The plaintiff filed suit when his request to inspect the records policy for the Sumner County Board of Education was denied because he failed to make his request by mail or in person. The plaintiff sought attorney fees and requested a show cause hearing and a declaratory judgment, requiring the defendant to accept requests to inspect public records made by email, facsimile, telephone, or other similar methods. The defendant moved for summary judgment. The court denied summary judgment. Following a hearing, the court held that the request, made by email and again by telephone, was compliant with the Tennessee Public Records Act and that the defendant’s refusal to provide said records was unlawful. The court further found the defendant’s policy for accepting public record requests in violation of the Tennessee Public Records Act. The court denied the request for attorney fees. The defendant appeals. We affirm.

Sumner County Court of Appeals 07/28/17
George Hollowell v. David Prater, et al.
W2016-02259-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Senior Judge Paul G. Summers

This case involves a boundary line dispute. The trial court adopted Appellee’s surveyor’s map and set the common boundary between the parties’ property in accordance with the original grantors’ intent to deed Appellants 25 acres to have land that would allow their property to have access to the existing public road. Discerning no error, we affirm and remand.

Carroll County Court of Appeals 07/28/17
Martin Goss v. Frankey Goss
E2017-00682-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Gregory S. McMillian

The Notice of Appeal filed by the appellant, Martin Goss, states that the appellant is appealing from a judgment entered on March 7, 2017. However, there is no final judgment in the proceedings below and the case remains pending in the Trial Court. As such, we lack jurisdiction to consider this appeal.

Court of Appeals 07/28/17
Jennifer L. Al-Athari, et al. v. Luis A. Gamboa, et al.
M2016-01310-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Thomas W. Brothers
Following two appeals, this negligence action was resolved in a jury trial. The jury returned a verdict finding for Defendant; Plaintiffs appealed and, discerning no error, we affirm.
 
Davidson County Court of Appeals 07/28/17
William Cook, II v. State of Tennessee
W2016-01914-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Commissioner James A. Hamilton, III

The claimant initiated this action by filing a complaint in the Tennessee Claims Commission to recover damages for personal injuries from the State of Tennessee resulting from an attack by another inmate at West Tennessee State Penitentiary. Following discovery, the State filed a motion for summary judgment on the ground that the undisputed material facts established the assault was not reasonably foreseeable; therefore, the claimant could not prove proximate cause, which is an essential element of a negligence claim. The trial court agreed and summarily dismissed the complaint. This appeal followed. We affirm.

Court of Appeals 07/27/17
Town & Country Jewelers, Inc., et al. v. Jessica Lynn Trotter aka Jessica Lynn Trotter-Lawson
W2016-02055-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Jim Kyle

Judgment creditors appeal the denial of their motion to extend a judgment pursuant to Rule 69.04 of the Tennessee Rules of Civil Procedure. Although we reverse the trial court’s ruling that it lacked jurisdiction over judgment creditors’ motion, we affirm the trial court’s decision to deny the motion where it was not filed “[w]ithin ten years from the entry of [the underlying] judgment[,]” as required by Rule 69.04.

Shelby County Court of Appeals 07/27/17