COURT OF APPEALS OPINIONS

Christopher L. Wiesmueller v. Corrine Oliver Et Al.
M2023-00651-COA-T10B-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Senior Judge Roy B. Morgan, Jr.

This is an accelerated interlocutory appeal as of right pursuant to § 2.02 of Tennessee Supreme Court Rule 10B from the trial court’s denial of a motion for recusal. Having reviewed the petition for recusal appeal, pursuant to the de novo standard as required under Rule 10B, § 2.01, we affirm the trial court’s decision to deny the motion for recusal.

Frances P. Owens v. Vanderbilt University Medical Center
M2021-01273-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Thomas W. Brothers

A patient brought a health care liability action against a hospital after she developed a pressure wound during her hospital stay. The hospital moved for summary judgment on the ground that the patient’s standard of care expert was not competent to testify under the Health Care Liability Act. Alternatively, it sought to narrow the remaining claims through a partial summary judgment. The trial court disqualified the expert witness and granted the hospital summary judgment on all claims. The court’s decision was based, in part, on grounds not raised in the hospital’s motion for summary judgment. Because we conclude that the expert was competent to testify and the trial court erred in ruling on additional grounds not raised by the movant, we vacate the judgment in part.

Wheelhouse Partners, LLC v. Wilson & Associates, PLLC Et Al.
M2022-00369-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Anne C. Martin

This case stems from an unpaid promissory note secured by real property that was sold in foreclosure. Wheelhouse Partners, LLC (“Wheelhouse”), the beneficiary under a second deed of trust on the subject property, sued Wilson & Associates, PLLC (“Wilson”), the substitute trustee under the first deed of trust on the subject property, and James G. Akers and Deborah L. Akers (the “property owners” or, together with Wilson, “Defendants”). Wheelhouse alleged that the foreclosure sale produced excess funds sufficient to satisfy its second deed of trust and promissory note after satisfying the first deed of trust, but that Defendants refused to deliver such funds to Wheelhouse. Wheelhouse also alleged breach of contract against the property owners. Wilson interpleaded the surplus funds into the court and, following a successful motion for summary judgment, Wheelhouse was awarded the balance of its promissory note as well as its attorney’s fees. Mr. Akers appeals. Because his appellate brief does not comply with Tennessee Rule of Appellate Procedure 27, his issues are waived and the lower court’s judgment is affirmed. Because Wheelhouse’s deed of trust clearly provides for an award of attorney’s fees and Wheelhouse properly requested its appellate attorney’s fees, we award Wheelhouse said fees.

In Re Abraham S.
M2022-00690-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Sheila Calloway

Keith S. (“Father”) appeals the termination of his parental rights to his son, Abraham S. (“the Child”). The Juvenile Court for Davidson County (“the juvenile court”) terminated Father’s parental rights based on several statutory grounds: abandonment by failure to visit and failure to support; abandonment by failure to establish a suitable home; persistent conditions; and failure to manifest an ability to assume legal and physical custody. The juvenile court concluded that one alleged ground for termination, substantial noncompliance with permanency plan, was not proven by clear and convincing evidence. Following our review of the record, we affirm the trial court’s ruling as to all but one ground for termination. Because the record contains scant evidence of help offered to Father regarding housing, we conclude that abandonment by failure to establish a suitable home was not proven by clear and convincing evidence. We affirm the juvenile court’s ruling as to the other statutory grounds, and we affirm the ruling that termination of Father’s parental rights is in the Child’s best interests.

In Re Riley B. Et Al.
E2022-00684-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jeffrey D. Rader

A mother appeals the trial court’s decision to terminate her parental rights based on the
grounds of (1) abandonment by failure to support; (2) persistence of conditions; and (3)
failure to manifest an ability and willingness to personally assume custody or financial
responsibility of the child. She further challenges the trial court’s finding by clear and
convincing evidence that termination of her parental rights was in the best interest of the
children. We reverse the trial court’s finding of abandonment by failure to provide a
suitable home, but we affirm the trial court in all other respects.

Annie J. Jones, by and through her conservatorship, Joyce Sons a/k/a Calisa Joyce Sons v. Life Care Centers of America d/b/a Life Care Center of Tullahoma
M2022-00471-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge William A. Lockhart

This appeal arises from an incident in which the nude body of a resident at an assisted living facility was exposed on a video call via telephone when an employee of the healthcare facility engaged in a personal call while assisting the resident in the shower. The resident, by and through her conservator/daughter (“Plaintiff”), sued the owner and operator of the healthcare facility, Life Care Centers of America d/b/a Life Care Center of Tullahoma (“Defendant”), asserting a claim of “Negligence Pursuant to the Tennessee Medical Malpractice Act” and a generalized claim for invasion of privacy with allegations of “Gross Negligence, Willful, Wanton, Reckless, Malicious and/or Intentional Misconduct.” Relying on the undisputed fact that the resident was unaware and never informed that the incident occurred, Defendant moved for summary judgment due to the lack of a cognizable injury or recoverable damages. Plaintiff opposed the motion, contending that actual damages were not an essential element of her claims and, in the alternative, moved to amend the complaint to specifically assert a claim for invasion of privacy based on intrusion upon the resident’s seclusion and a claim for negligent supervision. The trial court summarily dismissed the complaint on the ground “that damages for invasion of privacy . . . cannot be proven as it would be impossible to suffer from personal humiliation, mental anguish or similar damages since [the resident] is unaware that the incident happened” and denied the motion to amend the complaint on the basis of futility. Plaintiff appealed. We have determined that the gravamen of the complaint states a claim for invasion of privacy based upon the distinct tort of intrusion upon seclusion. We have also determined that actual damages are not an essential element of a claim for invasion of privacy based on the distinct tort of intrusion upon seclusion. Thus, Defendant was not entitled to summary judgment. Moreover, granting leave to amend the complaint would not have been futile. Accordingly, we reverse the trial court’s decision to summarily dismiss the complaint, reverse the decision to deny the motion to amend the complaint, and remand with instruction to reinstate the complaint, grant the motion to amend the complaint, and for further proceedings consistent with this opinion.

Clifton W. Wright, Jr. v. Joseph K. Reid, II Et Al.
E2021-01258-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor John C. Rambo

This case arises from the demise of a short-lived business venture. For three years, two of
the parties owned and operated a wellness center from the same location as an existing
medical clinic. When disputes arose, the plaintiff (co-owner of the wellness center) sued
the defendants, asserting twelve counts in his complaint and seeking judicial dissolution of
the company. The plaintiff died during the course of the proceeding, and the executor of
his estate was substituted as the plaintiff. A special master held a three-day hearing
regarding fifteen issues, and the trial court adopted the majority of his findings. The trial
court then held a seven-day bench trial. Ultimately, the trial court ruled in favor of the
defendants on all counts and judicially dissolved the company upon agreement of the
parties. The plaintiff appeals, raising very limited issues regarding his claims for unjust
enrichment, breach of fiduciary duty, and judicial dissolution. We affirm and remand for
further proceedings.

Emily Moreland v. State of Tennessee
E2022-00623-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: William A. Young, Commissioner

This case involves a complaint before the Tennessee Claims Commission.  After a year of no action on the part of the claimant, the State moved to dismiss the case for failure to prosecute.  The Claims Commission granted the motion, and the claimant now appeals.  For the reasons discussed herein, we affirm the dismissal of the claimant’s case. 

In Re Robert H. Et Al.
E2022-00809-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Jeffrey D. Rader

The Tennessee Department of Children’s Services filed a petition to terminate a father’s parental rights as to two children, based on abandonment by failure to provide a suitable home, substantial noncompliance with permanency plans, failure to remedy persistent conditions, and failure to manifest an ability and willingness to assume custody of the child.  The trial court granted the petition, finding that the Department proved all alleged grounds by clear and convincing evidence and that terminating the father’s parental rights was in the best interests of the children.  We affirm.

Loring Justice Et Al. v. Thomas Hanaway
E2022-00447-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge E. Jerome Melson

Plaintiff Loring Justice brought this health care liability action against Thomas Hanaway, Ph.D. (“Defendant”), a psychologist who provided family counseling and therapy to Plaintiff’s minor child and the child’s mother, Kim Nelson (“Mother”). Defendant moved for summary judgment, arguing among other things that he was entitled to immunity as a court-appointed psychologist and testifying witness. Defendant provided therapy as a result of an order by the Roane County Juvenile Court in long-running litigation between Plaintiff and Mother. The Juvenile Court’s order stated that “there will be a transition from the current therapist, Dr. Nancy Brown, to a new therapist to be selected by the Mother.” The issue is whether the trial court correctly deemed Defendant to be a court-appointed therapist and granted Defendant summary judgment on grounds of immunity. We affirm the judgment of the trial court.

In Re Chayson D.
E2022-00718-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Jeffrey D. Rader

Mother was not present when the trial court found that four grounds for termination were
proven by clear and convincing evidence, and that termination was in the best interest of
the child. The trial court denied the oral motion to continue made by Mother’s counsel.
Mother appeals the denial of the continuance, as well as the findings of grounds and best
interests. Discerning no reversible error, we affirm (1) the trial court’s denial of Mother’s
motion for a continuance; (2) the finding that there was clear and convincing evidence of
abandonment by failure to visit, abandonment by failure to establish a suitable home, and
persistence of conditions; and (3) the finding that terminating Mother’s parental rights was
in the best interest of the child. We conclude that the trial court failed to make appropriate
findings of fact and conclusions of law with regard to the ground of failure to manifest an
ability and willingness to assume custody of the child and vacate that ground. Accordingly,
we vacate in part and affirm in part.

Quinn Taylor v. Ionogen LLC Et Al.
E2022-01146-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

The defendant limited liability company terminated the plaintiff’s employment as Chief
Financial Officer and Chief Operating Officer and revoked his 120 voting and common
membership units in the company. The plaintiff brought a claim against individuals
belonging to the company’s board of managers, alleging that the defendant board members
had breached their fiduciary duty of good faith and fair dealing by revoking his 120
membership units. The plaintiff sought no less than $120,000.00 in compensatory
damages, the value of the 120 membership units as of May 5, 2021, and $480,000.00 in
punitive damages. On July 13, 2022, the board of managers adopted a corporate resolution
ratifying the plaintiff’s ownership of 120 membership units in an effort to resolve the
plaintiff’s claim against the individual board members. Consequently, the defendant board
members filed a motion for partial judgment on the pleadings, contending that the
plaintiff’s claim against them was rendered moot by the corporate resolution. The trial
court granted the defendant board members’ motion and dismissed the plaintiff’s claim
against them based on the doctrine of mootness. On appeal, the plaintiff posits that the
board members failed to provide sufficient evidence to establish that they had rendered his
claim moot. Upon reviewing the record, we conclude that the defendant board members
failed to present sufficient evidence to establish that the corporate resolution fully redressed
the plaintiff’s claim for relief against them. We therefore reverse and remand to the trial
court for further proceedings.

Carlton B. Parks v. Adam U. Holland
E2021-01506-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge William B. Acree

This case arose from a legal malpractice action filed against a lawyer who had represented
the plaintiff in an employment discrimination and wrongful termination action. The
plaintiff provided no expert testimony to support his claims against the lawyer.
Determining that the plaintiff had not presented proof to support his claim and that the
defendant had presented evidence to negate an essential element of the plaintiff’s claim,
the trial court granted summary judgment in favor of the defendant. Discerning no error,
we affirm.

Johnna McCall et al. v. United Parcel Service et al.
M2022-01112-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Amanda J. McClendon

A mother and father filed a personal injury action in 2022 on behalf of their adult daughter, who was allegedly injured in a car accident in 2007 when she was four years old. The daughter was not represented by counsel, and her parents purported to represent her. The trial court dismissed the daughter’s claims due to the running of the statute of limitations. On appeal, the daughter argues (through her mother/conservator) that the dismissal was in error because she lacks mental capacity. Because the daughter did not file suit pro se and was not represented by counsel, we conclude that the trial court properly granted the defendants’ motion to dismiss for failure to state a claim upon which relief can be granted.

Regions Bank v. Doctor R. Crants
M2022-01314-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor I'Ashea L. Myles

This case involves enforcement of an arbitration award arising from a defaulted promissory note. The plaintiff brought suit against the defendant for breach of contract and enforcement of a promissory note. Ultimately, the parties participated in binding arbitration per the terms of their agreement. The plaintiff obtained an award in arbitration against the defendant. Thereafter, the plaintiff filed a motion in the trial court to confirm and enforce the arbitration award. The trial court granted the plaintiff’s motion, and the defendant now appeals. Having reviewed the record, we determine that the defendant has waived his argument on appeal and affirm the trial court’s order.

In Re Emmalyn H.
E2022-00710-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge James E. Lauderback

A mother appeals the chancery court’s decision to terminate her parental rights based on
the grounds of abandonment by failure to visit and support and severe child abuse. The
mother also challenges the chancery court’s finding by clear and convincing evidence that
termination of her parental rights was in the best interest of the child. The petitioners
challenge the chancery court’s dismissal of persistence of conditions ground for
termination. We reverse the court’s decision to terminate based on abandonment by failure
to visit and support, but we affirm the court’s decision in all other aspects.

William Foehring Et Al v. Monteagle Regional Planning Commission Et Al.
M2022-00916-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Melissa Thomas Willis

This appeal concerns the approval of a site plan.  William Foehring, Janice Foehring, William Best, Mary Beth Best, Ron Terrill, and Sandra Terrill (“Petitioners”) filed a petition for common law writ of certiorari against the Monteagle Regional Planning Commission (“the Commission”) and RBT Enterprises, LLC (“RBT”) (collectively, “Respondents”) in the Chancery Court for Marion County (“the Trial Court”).  Petitioners alleged that the Commission acted illegally, arbitrarily, and capriciously in approving the site plan at issue because the underlying zoning for one of the parcels is invalid.  The Trial Court ruled in favor of Respondents.  Petitioners appeal.  In a parallel declaratory judgment action case arising out of the same facts, we determined that the underlying zoning is valid, which is dispositive of this appeal.  We affirm the Trial Court.

In Re Ziquavious P. ET AL.
W2022-00743-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Special Judge Harold W. Horne

Mother appeals the termination of her parental rights on five grounds: (1) abandonment by
failure to visit the children; (2) abandonment by failure to financially support the children;
(3) substantial noncompliance with the permanency plans; (4) persistence of conditions;
and (5) failure to manifest an ability and willingness to care for the children. Discerning no
reversible error, we affirm.

Ricky L. Boren ET AL. v. Hill Boren PC ET AL
W2021-00478-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Senior Judge Robert E. Davies

This is an appeal arising from allegations of fraud and breach of contract in a dispute
surrounding a stock transfer agreement that, among other things, provided for the transfer
of controlling interest in a law firm from attorney Robert Hill to attorney Ricky Boren.
Whereas many claims were resolved at summary judgment, others were tried before a jury
and resolved in the Plaintiffs’ favor. The parties present a plethora of issues for our
consideration, and for the reasons stated herein, we affirm the judgment of the trial court
and remand the case for further proceedings consistent with this Opinion.

Reginol L. Waters v. Tennessee Department of Correction et al.
M2022-00316-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Michael E. Spitzer

This appeal arises from the dismissal of a petition for common law writ of certiorari in which the petitioner, an inmate in the custody of the Tennessee Department of Correction (“TDOC”), appeals a disciplinary conviction for “unauthorized financial transactions activity” by the Disciplinary Board at the Turney Center Industrial Complex. The respondents, the State of Tennessee and several governmental officials, filed a joint motion to dismiss the petition on the grounds that the petition was not properly verified as required by Tennessee Code Annotated § 27-8-104 and the petitioner failed to pay the mandatory initial filing fee pursuant to Tennessee Code Annotated § 41-21-807. The chancery court granted the motion and dismissed the petition with prejudice on the grounds “the statutory requirements of T.C.A. § 27-8-104 and § 41-21-807 are mandatory and have not been met in this case, and failure to comply results in a defective filing by the Petitioner[.]” This appeal followed. We reverse the decision to dismiss based on the filing fee requirements under Tennessee Code Annotated § 41-21-807. Nevertheless, we affirm the dismissal of the petition with prejudice for lack of subject matter jurisdiction based on the petitioner’s failure to file a petition that complied with the verification requirements under Tennessee Code Annotated § 27-8-104 within 60 days of the entry of the judgment of which the petitioner seeks review.

In Re Ciara O., Et Al.
E2022-01179-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James Cotton

This is an appeal involving the termination of parental rights.  The trial court terminated the parental rights of the mother and the fathers of the children on the following grounds: (1) abandonment by failure to support; (2) substantial noncompliance with a permanency plan; (3) persistent conditions; and (4) failure to manifest an ability and willingness to assume custody. The trial court also found that termination was in the best interest of the children.  Only the mother appeals. We affirm.

Bethany Michelle Lovelady v. Nicholas Heath Lovelady
E2023-00020-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Tammy M. Harrington

Because the order appealed from does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

William Foehring, Et Al. v. Town of Monteagle, Tennessee, Et Al.
M2022-00917-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Melissa Thomas Willis

This appeal concerns whether a municipality must have a general plan for development before it can exercise its zoning power. William Foehring, Janice Foehring, William Best, Mary Beth Best, Ron Terrill, and Sandra Terrill (collectively, “Plaintiffs”) sued the Town of Monteagle, Tennessee (“the Town”) and RBT Enterprises, LLC (“RBT”)1 (collectively, “Defendants”) for declaratory judgment in the Chancery Court for Marion County (“the Trial Court”). Plaintiffs challenged the rezoning of a certain parcel which allowed for the development of a truck stop near their homes. Plaintiffs argued that the zoning ordinances at issue, 05-21 and 12-21, were invalid because the Town had no comprehensive or general plan in effect. The Trial Court ruled in favor of Defendants. Plaintiffs appeal. We hold, inter alia, that no comprehensive or general plan was required before the Town could exercise its zoning powers. It was sufficient that the Monteagle Regional Planning Commission (“the Commission”) transmitted to the Town Board of Mayor and Aldermen (“the Board”), the Town’s chief legislative body, the text of a zoning ordinance and zoning maps, which comprised the zoning plan. We affirm the judgment of the Trial Court.

Automotive Performance Technologies, LLC v. State of Tennessee
W2023-00186-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Commissioner James A. Hamilton, III

The notice of appeal in this case was not timely filed. Therefore, this Court lacks
jurisdiction to consider this appeal.

Sevier County, Tennessee, Et Al. v. Tennessee State Board of Equalization, Et Al.
E2022-00773-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This is an administrative property tax appeal concerning the classification of real property
for ad valorem tax purposes. This action originated with a taxpayer appeal of the property
valuation by the Sevier County property assessor. On appeal, the administrative law judge
re-classified the property as commercial, resulting in a tax assessment of 40% of the fair
market property value. The Assessment Appeals Commission reversed the classification.
The trial court affirmed the reversal. We now reinstate the commercial classification.