COURT OF APPEALS OPINIONS

Andrew Hasley v. Harleigh Lott
M2022-01141-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Michael Meise

This appeal arises from a juvenile court’s determination of a permanent parenting plan, in which the trial court found all best interest factors to be equal between the parents, granted Mother and Father equal parenting time, and designated them as “Joint Primary Residential Parents.” Mother raises several issues. Generally, she contends that the evidence preponderated against the trial court’s findings that all applicable best interest factors were equal between Mother and Father and that the trial court abused its discretion in crafting the permanent parenting plan. We find that the evidence preponderates against the trial court’s findings concerning two of the best interest factors. We also find that the court erred, as a matter of law, by designating the parties as joint primary residential parents in the absence of an agreement to do so. In accordance with these findings, we designate Mother as primary residential parent, affirm the trial court’s parenting plan in all other respects, and remand to the trial court for entry of judgment in accordance with this opinion.

Emergency Medical Care Facilities, P.C. v. Bluecross Blueshield of Tennessee, Inc., et al.
M2021-00174-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Anne C. Martin

Plaintiff appeals the trial court’s decision to dismiss its class action allegations against two defendants on the basis of collateral estoppel. Specifically, the trial court ruled that while a prior determination that Appellant was not entitled to class action certification was not a final judgment on the merits, due to a dismissal of that case without prejudice, the ruling was “sufficiently firm” to have preclusive effect, citing the Restatement (Second) Of Judgments. Because Tennessee law requires a final adjudication on the merits for a judgment to be entitled to preclusive effect, we reverse.

Christine L. Manion Et Al. v. The Baldini, Pryor, and Lammert Partnership
M2022-00384-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Joseph A. Woodruff

The owners of certain real property sought a prescriptive easement over the parking lot of an adjacent neighbor. The trial court granted the prescriptive easement over the entirety of the neighbor's parking lot. The neighbor appealed. Discerning that the record contains clear and convincing evidence of all the requirements for a prescriptive easement, we affirm. We modify the trial court's judgment, however, by limiting the scope of easement to the route followed when the route was first established. 

George Gary Ingram v. Dr. Michael Gallagher, Et Al.
E2020-01222-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This is a health care liability case. George Gary Ingram ("Ingram") filed a health care
liability action in the Circuit Court for Hamilton County ("the Trial Court") against, among
others, Dr. Michael Gallagher ("Dr. Gallagher') and Chattanooga-Hamilton County
Hospital Authority d/b/a Erlanger Health System ("Erlanger") ("Defendants,"
collectively). Plaintiff later filed an amended complaint naming Dr. Gallagher as the sole
defendant. He thus removed the other defendants, including Erlanger, from the lawsuit.
Dr. Gallagher then filed an answer asserting, as a defense, that his governmental employer,
Erlanger, was not made a party to the action. Consequently, Plaintiff filed a motion to alter
or amend the Trial Court's order of dismissal as to Erlanger, which was denied. Plaintiff s
claims were dismissed. In Ingram v. Gallagher, No. E2020-01222-COA-R3-CV, 2021
WL 3028161 (Tenn. Ct. App. July 19, 2021) ("Ingram I"), we reversed the Trial Court,
holding that the Trial Court erred in denying Plaintiff s motion to revise the order of
dismissal. We pretermitted all other issues. The Tennessee Supreme Court then reversed
this Court, holding that Erlanger was removed from the lawsuit when Plaintiff filed his
amended complaint and that the order of dismissal had no legal effect so there was no order to amend. Our Supreme Court remanded for us to address the remaining issues. We hold, inter alia, that the savings statute is inapplicable as the Governmental Tort Liability Act
("the GTLA") is implicated; that the Trial Court did not err in dismissing Erlanger for lack
of pre-suit notice and a certificate of good faith; and that the Trial Court did not err in
granting summary judgment to Dr. Gallagher as his governmental employer, Erlanger, was not made a party. We affirm.

In Re N.M.
E2022-01398-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Kenneth N. Bailey, Jr.

This appeal arises from the termination of a mother’s parental rights to her minor child
upon the juvenile court’s finding by clear and convincing evidence of the statutory grounds
of abandonment by failure to provide a suitable home, abandonment by failure to visit,
abandonment by failure to support the child, abandonment by wanton disregard for the
child’s welfare, substantial noncompliance with the permanency plan, persistent
conditions, and failure to manifest an ability and willingness to assume custody of the
child.1 The juvenile court further found that termination of the mother’s parental rights
was in the child’s best interest. Discerning no error, we affirm.

Denise Phillips Jones v. Kelvin Dominic Jones
M2022-00624-COA-R3-CV
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Judge Robert E. Lee Davies

This appeal arises from a divorce. Prior to the marriage, the parties signed an antenuptial agreement that included a provision whereby Husband’s son from a prior marriage would be entitled to one-fourth of the value of the marital property upon divorce. During proceedings in the trial court, Husband filed a petition to hold Wife in criminal contempt. The trial court dismissed Husband’s petition for contempt, granted Husband a divorce on the uncontested ground of adultery, found the provision regarding Husband’s son to be unenforceable, and equitably divided the parties’ marital property. The trial court also declined to award Husband his requested discretionary fees. Primarily based on Husband’s failure to follow briefing requirements, we affirm the trial court’s judgment on all issues.

Madeline Luckett Nolan v. Gregory Stewart Nolan
W2021-01018-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Rhynette N. Hurd

The circuit court, finding that Father committed twenty-one counts of criminal contempt,
imposed a jail sentence and awarded Mother attorney’s fees. Father appeals, arguing that
the court’s holding violates the prohibition against double jeopardy, that the evidence is
insufficient to support thirteen of the counts, and that the court erred in awarding attorney’s
fees. We conclude that double jeopardy is not implicated in the findings of contempt and
that Father has not presented an argument entitling him to relief regarding the attorney’s
fees award. However, because the evidence is insufficient to support the finding of
contempt on Counts 9, 16, 36, and 40, we reverse the circuit court’s finding of contempt
on these counts. In addition, we conclude that Count 12 must be vacated because the
factual predicate of the trial court’s findings appears to potentially rest upon an unsupported
basis. The remaining 16 counts are affirmed and the case is remanded for further
proceedings.

Save Our Fairgrounds et al. v. Metropolitan Government of Nashville and Davidson County, Tennessee et al.
M2021-00074-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Citizens sought to stop the construction and operation of a soccer stadium at The Fairgrounds Nashville. The plaintiffs advanced a plethora of legal theories in support of their claims that the soccer development violated the Metro Charter. After a month-long trial, the court dismissed the plaintiffs’ claims with prejudice. On appeal, the plaintiffs raise two issues: (1) whether the trial court’s orders were final; and (2) whether the court erred in ruling that the Metro Charter did not require a public referendum before any demolition and new development could occur at the Fairgrounds. We conclude that the court’s orders were final. But, because the challenged demolition and construction have already happened, we dismiss this appeal as moot.

Kim Williams v. The Lewis Preservation Trust Et Al.
E2022-01034-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Melissa Thomas Willis

In 2012, Robert and Elizabeth Ann Lewis created a revocable trust and transferred thereto
their rental property business as well as real estate. Several years later, after Robert was
deceased and Elizabeth had become incapacitated, one of the Lewis’ sons, acting as
Elizabeth’s attorney-in-fact, created a new trust with terms different from that of the
original. A different Lewis sibling, Kim Williams, disputed the son’s authority to create
the second trust pursuant to both the terms of the original trust and his power of attorney.
Kim Williams claimed, inter alia, that the son breached several fiduciary duties in creating
the second trust. Following discovery and an unsuccessful mediation, the Chancery Court
for Rhea County (the “trial court”) denied Ms. Williams’ motion for summary judgment
and granted the defendants’ cross-motion for summary judgment. Ms. Williams appeals.
Having reviewed the record and arguments of the parties, we conclude that the trial court’s
ruling is affirmed in part, reversed in part, and vacated in part, and the case remanded for
further proceedings.

Abigail Lynn Sevigny v. Warren Maxwell Sevigny
M2022-00953-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Philip R. Robinson

In this post-divorce dispute, the wife filed a petition for criminal contempt. After testimony was heard, the parties announced in broad terms that they had reached a settlement. Thereafter, the parties could not agree on the terms of the settlement. At a hearing on the husband’s motion requesting approval of his proposed order, the court dismissed the petition on grounds of double jeopardy. We have determined that the trial court erred in dismissing the case and remand for further proceedings.

In Re Trust of Nellie B. Fontanella
M2022-01822-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joe Thompson

This is an appeal from an order requiring a trustee to provide an updated accounting to a beneficiary at the beneficiary’s expense. Because the order does not resolve all of the claims between the parties, we dismiss the appeal for lack of a final judgment.

Knox Community Development Corporation v. William G. Mitchell
E2023-00714-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Charles A. Cerny Jr.

This is an appeal from a final order entered on January 17, 2023, in the Knox County
General Sessions Court (“Trial Court”). The Notice of Appeal filed by the appellant
incorrectly sought review in this Court instead of the circuit court. Furthermore, the Notice
of Appeal was not filed until May 12, 2023, more than ten days after entry of the Trial
Court’s judgment from which the appellant seeks to appeal. Because the Notice of Appeal
was untimely and was filed in the wrong court, we have no jurisdiction to consider this
appeal. We also determine that transferring the appeal to the correct court would be futile.

John Benbow v. L&S Family Entertainment, LLC, Et Al.
M2022-00491-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Joe Thompson

This case concerns claims of negligence against several people and entities for allegedly serving alcohol to and/or failing to protect a 20-year-old man who died in a car accident while intoxicated. John D. Benbow (“Plaintiff”), individually and as next of kin to his son, Jacob N. Benbow, deceased, filed a wrongful death action in the Sumner County Circuit Court (“the Trial Court”) against the defendants, L&S Family Entertainment, LLC d/b/a Strike & Spare (“L&S”); JPZ, LLC d/b/a Silverado Rivergate Sports Bar & Grill (“Silverado’s”); 1 Rancho Cantina, LLC (“Rancho Cantina”); Jody D. McCutchen; Brandi McCutchen; and Brenon D. McCutchen (“the McCutchens”). Certain of the defendants filed motions for summary judgment. The Trial Court granted summary judgment for Rancho Cantina, L&S, Brandi, and Jody. 2 However, the Trial Court denied summary judgment for Brenon.3 Plaintiff appeals. We affirm the Trial Court’s grant of summary judgment to Jody because Plaintiff failed to create any genuine issue of material fact that Jody took charge of Jacob. However, we reverse the Trial Court’s grants of summary judgment to Rancho Cantina, L&S, and Brandi, as genuine issues of material fact exist with respect to Plaintiff’s claims against those parties. We observe that the standard is comparative fault, not contributory negligence. Whether Jacob was at least 50% at fault for comparative fault purposes is a question not properly resolvable at this summary judgment stage under the facts of this case. We thus affirm, in part, and reverse, in part. We remand to the Trial Court for further proceedings consistent with this Opinion.

Mike Snodgrass v. AHA Mechanical Contractors, LLC
W2022-00105-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert Samual Weiss

Plaintiff, Defendant’s former employee, filed suit under the Fair Labor Standards Act
alleging that he had suffered a loss of overtime wages. The trial court entered a judgment
denying Plaintiff any recovery. For the reasons stated herein, we conclude that the trial
court’s findings are insufficient. Although under the specific circumstances presented here
we would generally remand the case to allow the trial court an opportunity to more clearly
state its findings, as well as offer specific findings and conclusions in reference to the
appropriate legal standards, the judge who tried this case is no longer on the bench.
Accordingly, we are compelled to vacate the judgment and remand for a new trial on the
question of whether Defendant improperly denied Plaintiff overtime pay.

Clayton D. Richards v. Vanderbilt University Medical Center
M2022-00597-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Thomas W. Brothers

This appeal concerns a complaint for health care liability. Although Tennessee Code Annotated section 29-26-121(c) provides for an extension of the applicable statutes of limitations in health care liability actions when pre-suit notice is given, it also specifies that “[i]n no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for health care liability, nor shall more than one (1) extension be applicable to any [health care] provider.” After a prior lawsuit was voluntarily dismissed without prejudice, Plaintiff provided new pre-suit notice and refiled in reliance on the Tennessee saving statute and an extension under Tennessee Code Annotated section 29-26-121(c). The trial court dismissed the refiled complaint with prejudice, however, holding, among other things, that Plaintiff could not utilize the statutory extension in his refiled action because he had already utilized a statutory extension in the first lawsuit. For the reasons discussed herein, we affirm the trial court’s dismissal of Plaintiff’s lawsuit.

Clayton D. Richards v. Vanderbilt University Medical Center - Concurring
M2022-00597-COA-R3-CV
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Judge Thomas W. Brothers

Although I ultimately agree with the majority’s conclusion, I write this separate concurrence to express my concerns with the result in this case.

In Re Zayda C.
E2022-01483-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kenlyn Foster

This action involves the termination of a father’s parental rights to his child. Following a
bench trial, the court found that clear and convincing evidence existed to establish the
following statutory grounds of termination: (1) abandonment by wanton disregard; (2)
incarceration for a period of ten or more years; and (3) the persistence of conditions which
led to removal. The court also found that termination was in the best interest of the child.
We affirm the trial court’s ultimate termination decision.

In Re Paisley J.
W2022-01059-COA-R3- PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor William C. Cole

In this case involving termination of the father’s parental rights to his children, the trial
court found by clear and convincing evidence three statutory grounds for termination of
the father’s parental rights to all three of his children, and the court found by clear and
convincing evidence additional putative father grounds for termination of his parental
rights to his youngest child only. The trial court further determined that clear and
convincing evidence established that termination of the father’s parental rights was in the
children’s best interest. The father has appealed. Having determined that the trial court
found two statutory grounds, abandonment by failure to visit and abandonment by failure
to support, that were not included in the petitioners’ original or amended petitions, we
reverse the court’s findings on these two grounds. We must also reverse the four statutory
grounds applicable to a putative father inasmuch as the petitioners did not present evidence
to establish that the father qualified as a putative father. We affirm the trial court’s
judgment in all other respects, including termination of the father’s parental rights based
upon the remaining ground and best interest analysis.

Travis G. Bumbalough v. Rachel M. Hall
M2022-01003-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Steven D. Qualls

This appeal arises from a petition to establish parentage and a parenting plan pursuant to Tennessee Code Annotated § 36–2–311 for a child born out of wedlock. In finding that the statutory best interest factors set forth in Tennessee Code Annotated § 36-6-106(a) favored the father, the trial court designated the father as the primary residential parent of the parties’ minor child and ruled that the child would live with the father in Tennessee during the school year and spend the majority of the summers and holidays with Mother in Texas. The mother appeals. We affirm.

John Mark Bowers v. Carlton J. Ditto, Et Al.
E2022-01307-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Jeffrey M. Atherton

In this quiet title action, the pro se defendant appeals the trial court’s decision to permit
constructive service by publication in lieu of personal service, pursuant to Tennessee Code
Annotated section 21-1-203(a)(2). Because Plaintiff met the statutory requirements of
service by publication and because constructive service by publication was effective to
establish the trial court’s personal jurisdiction over Defendant, we affirm.

Kimberly Ann King v. Jackie Lee King, Jr.
E2023-00504-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Sharp

This is an appeal from a final order entered on March 6, 2023. The Notice of Appeal was
not filed with the Appellate Court Clerk until April 6, 2023, more than thirty days from the
date of entry of the order from which the appellant is seeking to appeal. Because the Notice
of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

State of Tennessee Ex Rel. Herbert H. Slatery, III, Attorney General and Reporter v. LLPS, Inc., Et Al.
M2022-00214-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This is an appeal from a summary judgment dismissal entered in favor of all defendants in a civil enforcement action involving violations of the Tennessee Consumer Protection Act and the Government Imposters and Deceptive Advertising Act. We vacate the dismissal and remand for further proceedings consistent with this opinion.

Hayes Family Partnership ET AL. v. Tennessee Farmers Mutual Insurance Company
W2022-01209-COA-R9-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Senior Judge Roy B. Morgan, Jr.

This is an insurance policy coverage dispute between Tennessee Farmers Mutual Insurance
Company (“Tennessee Farmers”) and its insured, Hayes Family Partnership (“Hayes”). At
issue is property damage to a commercial building owned by Hayes and insured by
Tennessee Farmers. The damage, which was in excess of two hundred thousand dollars,
was caused by a third-party tortfeasor, George Hardey, who drove his vehicle into the
insured building. Shortly after the accident and without the knowledge or consent of
Tennessee Farmers, Hayes executed a release of all claims against Hardey and his insurer,
Allstate Property & Casualty Company (“Allstate”), in consideration for the $25,000 policy
limits paid by Allstate. After Hayes submitted its claim to Tennessee Farmers for benefits
under its policy, Tennessee Farmers denied Hayes’ claim based on Hayes’ violations of
material provisions in the insurance policy, including the provision that required Hayes to
“do everything necessary to secure [Tennessee Farmers’] rights” and “do nothing after loss
to impair them.” The trial court denied Tennessee Farmers’ Motion for Summary Judgment
based, in part, on the “made whole” doctrine, and it ruled that “the release executed by
Hayes in favor of the third-party tortfeasor George Hardey does not foreclose Hayes’ right
to pursue recovery from Tennessee Farmers.” The trial court also reasoned that Tennessee
Farmers may not avoid coverage “on the basis of breach of the insurance policy condition
that its insured must do everything necessary to secure its rights and nothing to impair those
rights, and Hayes[’] release of Hardey.” The trial court then granted Tennessee Farmers’
motion for permission to file an interlocutory appeal, which we also granted. The
dispositive issue on appeal is whether Hayes forfeited its right to coverage under the
Tennessee Farmers’ policy by, inter alia, releasing all of Hayes’ claims against the thirdparty
tortfeasor and his insurance company without the knowledge or consent of Tennessee
Farmers. We have determined that Hayes materially breached the insurance policy by
releasing the third-party tortfeasor and his insurer from liability without the consent of Tennessee Farmers; therefore, Tennessee Farmers was entitled to summary judgment as a
matter of law. Accordingly, we reverse the decision of the trial court and remand with
instructions to summarily dismiss the complaint.

Adam T. Huffstutter v. Metropolitan Historical Zoning Commission of the Metropolitan Government of Nashville and Davidson County
M2022-00850-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Russel T. Perkins

The appellant is a property owner who sought review of a decision by the Metropolitan Historic Zoning Commission by filing a petition for writ of certiorari in chancery court. The chancery court affirmed the decision of the Historic Zoning Commission. The appellant property owner appeals. We affirm.

In Re A.H. Et Al.
M2022-01066-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Michael Wayne Collins

This is a dependency and neglect case predicated on an allegation of severe abuse. The juvenile court adjudicated the children dependent and neglected and found that one of the children had been subject to severe child abuse at the hands of the children’s father. The father appealed to circuit court. After a de novo hearing, the circuit court found the allegations of severe abuse were not substantiated by clear and convincing evidence and declined to find the children dependent and neglected. The Department of Children’s Services, the children’s guardian ad litem, and the children’s mother appeal, arguing that the circuit court erred in concluding that the evidence of severe abuse was not clear and convincing. Based on our review of the entire record, we find there was not clear and convincing evidence to support a finding of severe abuse. Therefore, we affirm the trial court.