COURT OF APPEALS OPINIONS

Susan Davis Malone v. Thomas Franklin Malone - DISSENT
W2023-00843-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joe Townsend

I respectfully dissent from the majority's holding that recusal of the trial judge is
not warranted in this case. The majority discusses each of Appellants' allegations
concerning the trial court's bias. However, the majority fails to consider the cumulative
effects of the trial court's actions, and wholly fails to consider the fact that the ultimate
result of these actions is usurpation of the autonomous decisions Ms. Malone made for her
own care when she was cornpetent to do so. Although the trial court negated Ms. Malone's
well-established attorney-client relationship with Mr. Autry, Ms. Bleavins [together with
Mr. Autry, "Attorneys"], and the Williams McDaniel firm, my dissent does not focus on
Judge Townsend's rulings. Rather, in the context of recusal, I focus my dissent on the
disparate treatment the trial judge showed to the Attorneys and the Williams McDaniel
firm in reaching those decisions.

In Re Conservatorship of Susan Davis Malone
W2023-00841-COA-T10B-CV
Authoring Judge: Judge Thomas Frierson, II
Trial Court Judge: Judge Joe Townsend

This is an interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B,
filed by the appellants seeking to recuse the trial judge, Judge Joe Townsend (the "trial
judge") in the underlying conservatorship action. Having reviewed the petition for recusal
appeal filed by the appellants and the answer thereto, and finding that the appellants have
failed to demonstrate that a person of ordinary prudence in Judge Townsend's position,
possessing the same knowledge as Judge Townsend, would find a reasonable basis to
question Judge Townsend's impartiality, we affirm the trial judge's denial of the recusal
petition.

Courtney Logan v. Lisa Helton, et al.
W2023-00063-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Kasey Culbreath

Appellant, Courtney Logan, appealed a December 7, 2022 order of the Hardeman County
Chancery Court. Because the order appealed is not a final judgment, this Court lacks
jurisdiction to consider the appeal. Tenn. R. App. P. 3(a). The appeal is dismissed.

In Re Conservatorship of Susan Davis Malone - DISSENT
W2023-00841-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joe Townsend

I respectfully dissent from the majority's holding that recusal of the trial judge is
not warranted in this case. The majority discusses each of Appellants' allegations
concerning the trial court's bias. However, the majority fails to consider the cumulative
effects of the trial court's actions, and wholly fails to consider the fact that the ultimate
result of these actions is usurpation of the autonomous decisions Ms. Malone made for her
own care when she was competent to do so. Although the trial court negated Ms. Malone's
well-established attorney-client relationship with Mr. Autry, Ms. Bleavins [together with
Mr. Autry, "Attorneys"], and the Williams McDaniel firm, my dissent does not focus on
Judge Townsend's rulings. Rather, in the context of recusal, I focus my dissent on the
disparate treatment the trial judge showed to the Attorneys and the Williams McDaniel
firm in reaching those decisions.

Erick Gordon v. Tennessee Department of Safety and Homeland Security
E2022-01175-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Douglas T. Jenkins

The petitioner’s employment as a Tennessee highway patrolman was terminated for cause
after he attended a training course on breathalyzer machines and, as part of the training,
submitted two breath samples that returned positive numbers for alcohol content in his
blood. The petitioner appealed, but his termination was upheld in the first two steps of the
internal appeals process by the respondent, the Tennessee Department of Safety and
Homeland Security (“the Department”). The petitioner appealed to the Tennessee Board
of Appeals, which conducted a hearing on the matter. Prior to the hearing, Mr. Gordon
filed a motion in limine, seeking to exclude the two breathalyzer test results on grounds
that the tests were not conducted in compliance with the evidentiary requirements for
breathalyzer test results. The Board declined to exclude the breathalyzer test results and
upheld the petitioner’s termination, ending the Department’s internal appeals process. The
petitioner sought judicial review with the trial court. The trial court reversed and modified
the Board’s decision, determining that the Board improperly considered the numeric
breathalyzer test results and that without them there was no substantial and material
evidence remaining to support the Board’s decision to terminate Mr. Gordon’s
employment. Nonetheless, the trial court determined that some discipline was warranted
and accordingly ordered the Department to reinstate the petitioner with back pay and
benefits to one year following his dismissal, in effect sanctioning petitioner with a oneyear
suspension without pay. The Department timely appealed. Discerning no reversible
error, we affirm.

Janice Deloach v. Sahara Daycare Center, Inc., ET AL
W2022-01695-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Mary L. Wagner

This is a breach of contract case involving a business partnership. Due to deficiencies in
Appellants’ brief, we do not reach the substantive issues and dismiss the appeal. We grant
Appellee’s motion to declare Appellant’s appeal frivolous and award her damages.

In Re Jonah B.
E2022-01701-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge John D. McAfee

Father appeals the termination of his parental rights to his child, who was nearly three years old at the time of trial. On appeal, Father disputes that termination of his parental rights is in the child’s best interest. We affirm the trial court’s determinations as to both the ground for termination and that termination of Father’s parental rights is in the child’s best interest.

Penny Lawson, et al. v. Hawkins County, TN et al.
E2020-01529-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Alex E. Pearson

This appeal concerns governmental immunity. Steven W. Lawson (“Decedent”), by and through his widow, Penny Lawson, and on behalf of Corey Lawson, Decedent’s child (“Plaintiffs,” collectively), sued the Hawkins County Emergency Communications District Board (“ECD-911”), Hawkins County, Tennessee, and Hawkins County Emergency Management Agency (“the EMA”) (“Defendants,” collectively) in the Circuit Court for
Hawkins County (“the Trial Court”) alleging negligence, gross negligence, and recklessness in Defendants’ response to a road washout that led to Decedent’s death. Defendants filed motions for judgment on the pleadings, which the Trial Court granted partly on grounds that claims of recklessness could not proceed against the Defendant entities under the Governmental Tort Liability Act (“the GTLA”). Plaintiffs appealed. We reversed. The Tennessee Supreme Court reversed this Court, holding that when the GTLA removes immunity for negligence, it does so for ordinary negligence only. The matter was remanded to this Court for further proceedings. We hold, inter alia, that while Defendants’ immunity is removed under the GTLA by Plaintiffs’ ordinary negligence claims, the public duty doctrine bars those claims. However, ECD-911’s immunity also is removed by Plaintiffs’ claim of gross negligence under Tenn. Code Ann. § 29-20-108, and the third special duty exception to the public duty doctrine allows that claim to proceed against ECD-911. We reverse the Trial Court’s grant of judgment on the pleadings to ECD-911 and remand for Plaintiffs’ case to proceed against that entity. Otherwise, we affirm.

Gerrish & McCreary, PC v. Carri Chandler Lane
W2022-01441-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Yolanda Kight Brown

Appellant appeals the trial court’s denial of her Tennessee Rule of Civil Procedure 60.02
motion. In 2003, the trial court entered judgment against Appellant and in favor of
Appellee/law firm. In her role as Appellee’s bookkeeper, Appellant committed fraud,
misrepresentation, conversion, and negligence in stealing funds from the Appellee’s
operating account. The 2003 order of judgment also contains a separate judgment for
conversion against Appellant’s then-husband, who is not a party to this appeal. However,
there is no finding of joint-and-several liability in the 2003 order, and Appellant did not
appeal the order. After receiving an extension of its judgment, in July 2021, Appellee filed
a garnishment against Appellant, claiming that the outstanding balance on the judgment,
with interest, was in excess of $1,000,000.00. After the garnishment was filed, Appellant
sought a finding that she should receive a credit against the judgment based on the payment
made by her then-husband in satisfaction of the 2003 judgment entered against him.
Appellant also sought credit for monies paid by Appellee’s bank under a private settlement.
The bank was never sued. The trial court denied the credits on its finding that the bank and
Appellant’s then-husband were neither joint tortfeasors, nor jointly and severally liable.
The trial court noted that any relief from the 2003 judgment for mistake in the omission of
joint-and-several language was time-barred as Appellant failed to bring her Rule 60.02
motion, under subsection (1) for mistake, within the one-year time period contemplated in
the rule. Having determined that there was no joint-and-several liability, the trial court
determined that Appellant was not entitled to credits for either her then-husband’s payment
or the bank’s payment and denied relief under Rule 60.02(4) for satisfaction of the
judgment. Appellant appeals. Discerning no error, we affirm.

In Re: Glenn B. et al
M2023-00096-COA-R3-PT
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Branden Bellar

Mother appeals the termination of her parental rights to three of her children. The trial court found six grounds for termination: abandonment by failure to visit, abandonment by failure to support, abandonment by failure to provide a suitable home, substantial noncompliance with a permanency plan, persistent conditions, and failure to manifest an ability and willingness to assume custody. The trial court also found termination of Mother’s parental rights to be in the best interests of the children. Mother raises procedural and substantive challenges to the trial court’s decision. We affirm the judgment of the trial court terminating Mother’s parental rights.

In Re Raylon S. et al
M2023-00573-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Larry B. Stanley, Jr.

A mother and stepfather sued to terminate a father’s parental rights based on the grounds of abandonment by failure to visit and abandonment by failure to support as well as the best interest of the children. The trial court found by clear and convincing evidence that both grounds for termination existed and that it was in the best interest of the children to terminate the father’s parental rights. The father appealed. We affirm.

Greg Gonzales v. Orion Federal Credit Union et al.
M2022-00796-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Patricia Head Moskal

A federally chartered credit union agreed to purchase substantially all assets of a Tennessee-chartered bank. The Commissioner of the Tennessee Department of Financial Institutions objected. He contended that the transaction was prohibited by the Tennessee Banking Act because the credit union was not a bank holding company. So he sought declaratory and injunctive relief to stop the transaction. On cross-motions for summary judgment, the trial court concluded the sale of substantially all of the assets of a bank was not prohibited by the Act. We affirm.

Lewana Castillo Webb v. Gregory Ryan Webb
E2023-00378-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Caroline E. Knight

This case involves the respondent’s pro se appeal from an order of protection granted by
the trial court in favor of the petitioner. The petitioner initially obtained an order of
protection for one year from the general sessions court, which the respondent appealed to
the circuit court. After a de novo hearing, the trial court extended the order of protection
for three years, to expire on January 24, 2026. The respondent timely appealed to this
Court. Because the respondent’s appellate brief does not comply with Tennessee Rule of
Appellate Procedure 27 and Tennessee Court of Appeals Rule 6, we hereby dismiss the
appeal.

Sara Beth Schwab v. Alfred C. Schwab, III
M2022-00590-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Deana C. Hood

This is a post-divorce dispute in which the former husband seeks to terminate alimony in futuro based on the fact that a third party, not related by blood, resided with the former wife for several months. It is undisputed that the girlfriend of the parties’ son had previously resided in the former wife’s home, but that the girlfriend had moved out before the husband filed his petition to terminate alimony. The parties’ Marital Dissolution Agreement (“MDA”) provides that “alimony shall terminate upon the death of Husband or Wife, the remarriage of Wife, o[r] Wife’s cohabitation with someone to whom she is not related by blood pursuant to Tenn. Code Ann. [§] 36-5-121(f).” The trial court held that the reference to § 36-5-121(f) evinced an intent to rely on the so-called “cohabitation statute” in subsection (f)(2)(B), which creates a rebuttable presumption that an alimony recipient does not need the same level of support when they are living with a third person. However, because the son’s girlfriend was no longer residing in the wife’s home, the trial court summarily dismissed the petition. The trial court relied on a line of cases, including Woodall v. Woodall, No. M2003-02046-COA-R3-CV, 2004 WL 2345814 (Tenn. Ct. App. Oct. 15, 2004) and Wiser v. Wiser, No. M2013-02510-COA-R3-CV, 2015 WL 1955367 (Tenn. Ct. App. Apr. 30, 2015), which stand for the proposition that “[a]n obligor spouse cannot rely on Tennessee Code Annotated § 36-5-121(f)(2)(B) to terminate or suspend alimony payments if the alleged cohabitation ceased before the modification petition was tried.” We affirm the trial court in all respects. The MDA also contains a mandatory attorney fee provision entitling the wife, as the prevailing party, to recover her reasonable expenses incurred in defending this appeal, including attorney’s fees and court costs. Accordingly, on remand, the trial court shall make the appropriate award.

Clata Renee Brewer et al. v. Metropolitan Government of Nashville and Davidson County et al.
M2023-00788-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor I’Ashea L. Myles

This action involves various requests directed to the Metropolitan Government of Nashville and Davidson County (“Metro”) for the release of records, pursuant to the Tennessee Public Records Act (“TPRA”), related to a school shooting that occurred at a private school in Nashville. Before making a determination concerning release of the records, the trial court allowed certain interested parties to intervene in the action pursuant to Tennessee Rule of Civil Procedure 24.02. The parties requesting the records have appealed that ruling pursuant to Tennessee Rule of Civil Procedure 24.05.¹ Discerning no reversible error, we affirm.

JTM Enterprises v. Oddello Industries, LLC
E2022-00855-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Chancellor Douglas T. Jenkins

The parties’ dispute centers upon whether a tenant is required to pay rent for a particular ten-month period. The landlord asserts that it delayed but did not waive payment. The tenant counters that the landlord’s agent waived rent and that the tenant forbore terminating the lease based on the agent’s representations. The trial court, after setting aside a default judgment, concluded that the landlord’s agent did not have the authority to waive rent but had the authority to modify the lease to reduce rent for three of the ten months. The tenant
appeals, arguing that the trial court erred in its determination as to the agent’s authority, the issue of estoppel, and the issue of waiver. The landlord asserts that the trial court erred in setting aside the default judgment and in reducing the rent for the three-month period. After a review of the record, we affirm the setting aside of the default judgment but reverse the trial court’s ruling on the agent’s authority and remand for further proceedings.

In Re Justin N. et al.
E2022-01603-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge J. Michael Sharp

Father appeals the trial court’s termination of his parental rights to two minor children. The trial court found as grounds for termination: (1) abandonment by failure to support, (2) abandonment by failure to visit, and (3) a failure to manifest an ability and willingness to parent. The trial court also found that termination was in the children’s best interests. We affirm as to the finding of abandonment by failure to support and failure to visit. Because the trial court’s order does not contain sufficient findings of fact, we vacate the trial court’s
findings that the father failed to manifest a willingness and ability to parent. We also reverse the trial court’s use of the outdated best interest factors and vacate the trial court’s finding that termination was in the children’s best interests.

Christina N. Lewis v. Walter Fletcher, et al.
W2022-00939-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Clayburn Peeples

This appeal arises out of an incident where the plaintiff fell off a staircase and sustained
injuries. The plaintiff filed a complaint against the defendants, who owned the building,
alleging negligence and negligence per se based on a violation of a building code. The
defendants filed a motion for summary judgment. The trial court granted the motion for
summary judgment and dismissed the plaintiff’s complaint. The plaintiff appealed. We
affirm.

Priscilla Smith v. Sharon Berry Et Al.
E2023-00281-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Douglas T. Jenkins

Priscilla Smith filed a complaint in the Chancery Court for Hawkins County (“the Trial Court”) against multiple neighbors, including Michael and Sharon Berry. She sought access to her property by way of an undeveloped road called Hyder Lane. The Berrys’ garage was on the undeveloped road. After trial, the Trial Court determined that Hyder Lane was a public road and ordered the garage to be removed and the road opened for
Ms. Smith’s use and access to her property. The Berrys appealed. Having concluded thatcertain indispensable parties were never joined to the action, we vacate the Trial Court’s judgment and remand for the joinder of these indispensable parties.

James R. Vandergriff v. Erlanger Health Systems Et Al.
E2022-00706-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

The plaintiff underwent surgery for a severe head injury. Due to various complications and infections, he required multiple follow-up procedures and treatments. The plaintiff filed medical malpractice claims against the hospital and doctors involved in his treatment over the course of an approximately five-month time period. The defendants moved to dismiss based on the statute of limitations. The trial court found that the plaintiff filed his lawsuit more than one year after his cause of action had accrued and that he was not entitled to an extension of the statute of limitations. It therefore dismissed the entire lawsuit. We conclude that the trial court did not err in its determination of the accrual date for the plaintiff’s cause of action as to his initial medical treatment; accordingly, we affirm the dismissal of the plaintiff’s cause of action as to allegations of medical malpractice as it relates to the plaintiff’s initial treatment. We reverse, however, the dismissal insofar as it
extends to later alleged incidents of malpractice, as they fell within the statute of limitations.

Annaliese Potter v. Paul Israel
E2023-00486-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Suzanne S. Cook

In this breach of contract case, the trial court awarded Appellee damages for Appellant’s
failure to perform his obligations under a construction contract in a workmanlike manner.
Appellant appealed. Due to deficiencies in Appellant’s brief, we do not reach the
substantive issues and dismiss the appeal.

Williamson County, Tennessee et al. v. Tennessee State Board of Equalization et al.
M2021-01091-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge James G. Martin, III

A taxpayer appealed a County Board of Equalization’s property valuation to the State Board of Equalization. The State Board reduced the valuation. The County then sought judicial review. After a new hearing in which the trial court heard testimony from competing appraisers, it affirmed the State Board’s valuation. It also determined that the County’s request to reclassify the property was untimely. We affirm.

Christina K. Collins v. Tennessee Department of Health, Et Al
E2022-01501-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Richard B. Armstrong, Jr.

In the Chancery Court for Knox County (“the Trial Court”), Christina K. Collins sought
judicial review of a disciplinary order entered against her by the Tennessee Board of
Nursing (“the Board”). Finding that Ms. Collins’s petition for judicial review was
untimely, the Trial Court determined that it lacked subject matter jurisdiction over the
matter and dismissed her petition. Ms. Collins has appealed the Trial Court’s order of
dismissal. Discerning no reversible error, we affirm.

In Re Christabell B. Et Al.
M2021-01274-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Stella L. Hargrove

Rebecca F. B. ("Mother") appeals the termination of her parental rights to her children Christabell B., Ashtynn B., Colton B., and Elan B. (Colton B. and Elan B. collectively, "Minor Children"; the Minor Children, Christabell B., and Ashtynn B. collectively, "Children").2 The Chancery Court for Maury County ("trial court") granted a default judgment against Mother and terminated her parental rights based on several statutory grounds: abandonment; persistent conditions; and failure to manifest an ability and willingness to assume legal and physical custody. We conclude that the ground of abandonment was not proven by clear and convincing evidence, and therefore reverse the trial court's judgment as to that ground. However, we affirm the trial court's findings as to the other statutory grounds and its finding that termination of Mother's parental rights is in the Minor Children's best interests.

Tennessee Farmers Mutual Insurance v. William Max Ridden
E2023-00932-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Kyle E. Hedrick

The notice of appeal filed by the appellant, William Max Riden, stated that appellants were
appealing the judgment entered on May 24, 2023. As the order appealed from does not
constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.