COURT OF APPEALS OPINIONS

Kemetria Yarbrough v. Darryl Mitchell
W2021-01174-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Felicia Corbin Johnson

In this contract action, the defendant appeals the trial court’s judgment in favor of the
plaintiff for failure to comply with Rule 52.01 of the Tennessee Rule of Civil Procedure.
Upon review, we conclude that the trial court has failed to include in its final order
appropriate findings of fact and conclusions of law as required by Rule 52.01. Thus, we
vacate the trial court’s judgment and remand this case to the trial court for the entry of a
more detailed order.

Shay Lynn Jeanette Starnes v. Olukayode Akinlaja, M.D., Et Al.
E2021-01308-COA-R10-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge W. Jeffrey Hollingsworth

In this health care liability action, the trial court granted the defendants’ motions to
compel the plaintiff to produce expert witness materials despite the plaintiff’s claim of
the work product doctrine. The trial court subsequently denied the plaintiff’s motion for
interlocutory appeal. Upon the plaintiff’s application, this Court granted leave for an
extraordinary appeal. Determining that the plaintiff has waived any privilege or
protection for specific materials requested by the defendants, including expert witnesses’
notes, draft reports, and communications with counsel, we affirm the trial court’s grant of
the defendants’ motions to compel, inclusive of the trial court’s proviso allowing the
plaintiff to present specific materials for review if she believes they contain mental
impressions of her counsel. However, also determining the trial court’s order to be
overly broad, we modify the language of the order to more closely track the language of
Tennessee Rule of Civil Procedure 26.02(4)(A)(i) and the defendants’ specific requests.

Shay Lynn Jeanette Starnes v. Olukayode Akinlaja, M.D., Et Al.
E2021-01308-COA-R10-CV
Authoring Judge: Chief Judge D. Michael Swiney and Judge Kristi M. Davis
Trial Court Judge: Judge W. Jeffrey Hollingsworth

I concur in the decision to affirm the judgment of the trial court as modified. I do
so because Tennessee law requires the result reached in the Court’s opinion. However, I
write separately to state my view that the 2010 amendment to Federal Rule of Civil
Procedure 26(b)(4), which protects draft reports and communications of expert witnesses
from discovery, is a better approach than that set out in Tennessee Rule of Civil Procedure
26.02 as it is currently written. Tennessee does not offer the same sort of protection from
discovery of draft reports and communications of expert witnesses that is provided under
the federal rules. As a result, and certainly after this Court’s opinion, counsel for both
defendants and plaintiffs likely will decline to write down their communications with
experts and instead rely exclusively on oral communication. Even more concerning, the
experts will communicate with counsel only by oral means leaving counsel, likely not a
healthcare provider, not having the benefit of what she is told being in a more detailed
writing. Counsel for Dr. Akinlaja candidly acknowledged as much at oral arguments,
saying “that is the way that it’s done practically.”

Jay R. Wilfong v. Charles R. Kaelin, Jr.
M2021-01007-COA-R9-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Chancellor Charles K. Smith

This matter is before this court on a Tennessee Rule of Appellate Procedure Rule 9 interlocutory appeal to determine “whether the trial court erred in determining that it cannot order a new trial on the issue of punitive damages only.” Under Tennessee Rule of Civil Procedure 59.07, “[a] new trial may be granted to all or any of the parties and on all or part of the issues in an action . . . .” Accordingly, this court concludes that trial courts may order new trials addressing the limited matter of punitive damages without need of retrying the entirety of the parties’ dispute.

In Re Aniyah W.
W2021-01369-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Special Judge Harold W. Horne

After Mother filed a notice of appeal of the termination of her parental rights, her appointed
counsel filed what was characterized as a brief, but which contained no statement of facts,
no statement of the case, and no argument. The Tennessee Department of Children’s
Services argues that Mother’s appeal should be waived under these circumstances. Based
on the Tennessee Supreme Court’s opinion in In re Carrington H., 483 S.W.3d 507 (Tenn.
2016), we are not at liberty to waive consideration of either the grounds for termination or
the best interests of the child despite the deplorable state of Mother’s “brief.” Following
our review, we reverse the trial court’s finding of the ground of abandonment based on the
Tennessee Department of Children’s Services’ decision not to defend that ground. We
affirm the remaining grounds, as well as the trial court’s finding that termination was in
the child’s best interest.

In Re Krisley W.
E2022-00312COA-R3-PT
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Magistrate Henry E. Sledge

Mother appeals the trial court’s termination of her parental rights to her minor child. The
trial court found clear and convincing evidence to support five grounds for termination: (1)
abandonment for failure to provide a suitable home; (2) substantial noncompliance with
the permanency plan; (3) persistence of conditions; (4) severe abuse; and (5) failure to
manifest the ability and willingness to assume custody. The trial court also found that
termination was in the best interests of the minor child. Mother appeals the trial court’s
order terminating her rights. The Department of Children’s Services concedes on appeal
one of the grounds, and we find three others to be unsupported by clear and convincing
evidence. We find, however, the termination ground of severe abuse to be supported and
the best interests of the child to favor termination. Accordingly, we affirm the trial court’s
termination of Mother’s parental rights.

Korrie Dulaney v. Aimee Chico
E2022-00047-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Gregory S. McMillan

The appellant in this case challenges the trial court’s entry of an order of protection against
her. She argues that an order of protection should not issue when the sole incident for
which the appellee sought the order of protection occurred more than a year and a half
before appellee filed the petition for an order of protection. Under the circumstances of
this case, we agree with the appellant and reverse the judgment of the trial court.

Jenifer Scharsch v. Cornerstone Financial Credit Union et al.
M2020-01621-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge J. Mark Rogers

After a borrower defaulted on a note and deed of trust, the lender sent a cure notice and, later, a notice of foreclosure. But the borrower did not receive either notice. When the borrower failed to cure the default, the home was sold at foreclosure. The borrower then sued to set aside the sale, arguing that the lender breached the deed of trust and violated Tennessee law by failing to deliver proper notice. The trial court granted summary judgment in favor of the lender, concluding that the notices only needed to be sent to, not received by, the borrower. We agree and affirm.

Merrill Jean Smith v. Built-more, LLC et al.
M2021-00749-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge J. Mark Rogers

In this appeal from a judgment enforcing a settlement agreement, the appellant contends that the trial court erred in granting her counsel leave to withdraw. She further contends that she lacked the capacity to agree to the settlement. We discern no error in granting counsel leave to withdraw. And because the appellant failed to file a transcript or statement of the evidence, we must presume that the trial court’s findings relating to the appellant’s capacity are supported by the evidence. So we affirm.

State of Tennessee v. Kevin Meadows
M2021-01357-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Brody N. Kane

Defendant, Kevin Meadows, was convicted as charged by a Jackson County Criminal Court jury of felony murder, aggravated arson, theft of property valued between $1,000 and $2,500, and two counts of tampering with evidence. The trial court imposed an effective life sentence. On appeal, Defendant argues that the trial court erred in admitting Facebook Messenger communications when the State failed to properly authenticate the messages by establishing that the account belonged to Defendant. Following our review, we affirm the judgments of the trial court.

Marvin Green v. Washington County Sheriff, Et Al.
E2023-00099-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Suzanne Cook

Because the notice of appeal in this case was not timely filed this Court lacks jurisdiction
to consider this appeal.

In Re Skylar K.
E2022-01757-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge John B. Bennett

Upon a review of the notice of appeal and the motion to dismiss filed by the
appellees, Ashley T. and Hunter T., this Court determined that the notice of appeal was not
timely filed in accordance with Rule 4(a) of the Tennessee Rules of Appellate Procedure.
The Trial Court’s judgment was entered on November 9, 2022.

Karen H. Buntin v. David W. Buntin
E2022-00017-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge L. Marie Williams

This divorce action involves a marriage of twenty-one years’ duration wherein the
husband maintained a significantly greater earning capacity than that of the wife. The
trial court ordered the husband to pay transitional alimony to the wife during the time she
sought to obtain her Ph.D. and for two years thereafter, or for seven years from the time
of the divorce, whichever time period was shorter. The amount of the husband’s child
support obligation was reduced to zero because he had agreed to pay the minor children’s
private school tuition. Furthermore, the trial court’s net division of the parties’ marital
assets and liabilities was nearly equal, and the trial court awarded attorney’s fees to the
wife. The husband has appealed. Discerning no reversible error, we affirm the trial
court’s judgment in its entirety. We further determine that the wife is entitled to an
award of attorney’s fees incurred on appeal, and we remand this matter for the trial
court’s determination concerning the proper amount to be awarded.

Estate of Stacey Brian Sane v. Debra Sane
E2021-01525-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This appeal involves a claim by a surviving spouse against the decedent’s estate. After a
bench trial, the trial court concluded that the surviving spouse’s petition for specific
property, year’s support allowance, and elective share filed more than nine months after
the date of the decedent’s death was time barred pursuant to Tennessee Code Annotated
section 31-4-102. Further, the trial court held that the surviving spouse was not prevented
from timely filing for specific property, year’s support allowance, and elective share by
fraud of the personal representative. The surviving spouse appeals. We affirm the ruling
of the trial court.

Eisai, Inc. v. David Gerregano, Commissioner of Revenue, State of Tennessee
M2021-01408-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Russel T. Perkins

The issues on appeal involve the assessment of state business taxes against a pharmaceutical company that stored and sold its products from a warehouse in Memphis, Tennessee. The trial court granted summary judgment to the taxpayer, Eisai, Inc. (“Eisai”), on the ground that its pharmaceutical sales were not subject to business tax because the pharmaceuticals did not constitute “tangible personal property” as the term is defined in Tennessee Code Annotated § 67-4-702(a)(23), which exempts products that are “inserted or affixed to the human body” by physicians or “dispensed . . . in the treatment of patients by physicians.” The Department of Revenue (“the Department”) appeals. We affirm the judgment of the trial court, but also rule in favor of Eisai on a different ground raised in the trial court and on appeal. In order to prevail in this case, the Department must establish that Eisai made “wholesale sales” to “retailers,” as distinguished from “wholesaler-towholesaler” sales, the latter of which are exempt from business tax. The undisputed facts reveal that Eisai’s sales were “wholesaler-to-wholesaler” sales. Accordingly, Eisai’s sales were not subject to business tax. As such, Eisai need not establish that the exception in § 67-4-702(a)(23) applies. Nevertheless, if Eisai’s sales to its distributors are within the scope of the business tax, we affirm the trial court’s ruling that Eisai’s sales are exempt under Tennessee Code Annotated § 67-4-702(a)(23). For these reasons, we affirm.

In Re Jeremiah B.
E2022-00833-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson
Trial Court Judge: Judge Dwight E. Stokes

In this case involving termination of the mother’s parental rights to her child, the trial court
found that three statutory grounds for termination had been proven by clear and convincing
evidence. The trial court further determined that clear and convincing evidence established
that termination of the mother’s parental rights was in the child’s best interest. The mother
has appealed. Discerning no reversible error, we affirm.

First Covenant Trust Et Al. v. Jeff A. Willis
E2023-00230-COA-T10B-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor John C. Rambo

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, filed by Jeff A. Willis (“Petitioner”), seeking to recuse the judge in this suit to collect a judgment. Having reviewed the petition for recusal appeal filed by Petitioner, and finding no error, we affirm.

Robert E. Lee Flade v. City of Shelbyville, Tennessee et al.
M2022-00553-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge M. Wyatt Burk

This appeal involves application of the Tennessee Public Participation Act (TPPA). Plaintiff filed multiple causes of action against the City of Shelbyville, the Bedford County Listening Project, and several individuals – one of whom is a member of the Shelbyville City Council. Defendants filed motions to dismiss for failure to state a claim under Tennessee Rules of Civil Procedure 12.06, and two of the non-governmental Defendants also filed petitions for dismissal and relief under the TPPA. The non-governmental Defendants also moved the trial court to stay its discovery order with respect to Plaintiff’s action against the City. The trial court denied the motion. The non-governmental Defendants filed applications for permission for extraordinary appeal to this Court and to the Tennessee Supreme Court; those applications were denied. Upon remand to the trial court, Plaintiff voluntarily non-suited his action pursuant to Tennessee Rule of Civil Procedure 41.01. The non-governmental Defendants filed motions to hear their TPPA petitions notwithstanding Plaintiff’s nonsuit. The trial court determined that Defendants’ TPPA petitions to dismiss were not justiciable following Plaintiff’s nonsuit under Rule 41.01. The Bedford County Listening Project and one individual Defendant, who is also a member of the Shelbyville City Council, appeal. We affirm the judgment of the trial court.

Dr. Roland W. Pack ET AL. v. Freed-Hardeman University
W2021-00311-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge James F. Butler

This is a breach of contract action brought by two tenured university professors for
wrongful termination in violation of their respective contracts of employment and the
university’s tenure policy. The university denied breaching the contracts or its tenure
policy. It insists the elimination of the tenured faculty appointments was based on two
permissible grounds, “financial distress” and the “bona fide reduction or discontinuance of
a program or department of instruction.” The trial court found the university proved both
grounds and dismissed the complaints. It also found the university complied with other
relevant provisions of the tenure policy. This appeal followed. We affirm.

In Re Serenity M., Et Al.
E2022-01167-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Raymond C. Conkin

This appeal concerns the termination of a mother’s parental rights. The Tennessee
Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for
Sullivan County (“the Juvenile Court”) seeking to terminate the parental rights of Andrea
A. (“Mother”) to her minor children Serenity M., Alfred M. (“Alfie”), Chloe M., and Zoey
M. (“the Children,” collectively).1 The Children’s father, A.M. (“Father”), surrendered his
parental rights and is not a party to this appeal. After a hearing, the Juvenile Court entered
an order terminating Mother’s parental rights to the Children on four grounds. Mother
appeals. DCS concedes the ground of abandonment by failure to provide a suitable home.
We vacate that ground. However, we find, as did the Juvenile Court, that the other three
grounds found—substantial noncompliance with the permanency plan, persistent
conditions, and failure to manifest an ability and willingness to assume custody—were
proven against Mother by clear and convincing evidence. We further find by clear and
convincing evidence, as did the Juvenile Court, that termination of Mother’s parental rights
is in the Children’s best interest. We affirm as modified, resulting in affirmance of the
termination of Mother’s parental rights to the Children.

Home Service Oil Company v. Thomas Baker
M2021-00586-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Louis W. Oliver

A judgment creditor petitioned to enroll and enforce a Missouri judgment under the Uniform Enforcement of Foreign Judgments Act. The judgment debtor opposed the petition claiming that the doctrine of laches prevented the judgment creditor from enforcing its judgment. Alternatively, the judgment debtor claimed that equitable estoppel prevented the judgment creditor from collecting the full amount remaining on the judgment. The trial court enrolled the judgment but agreed that equitable estoppel applied. We conclude that equitable estoppel does not apply. So we affirm the enrollment of the foreign judgment and vacate the trial court’s decision as to enforceability.

City of Covington v. Terrell Tooten
W2021-00946-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joe H. Walker, III

Appellant was found guilty of violating Tennessee Code Annotated section 55-8-199 for
alleged use of a handheld wireless telecommunication device while driving. The trial court
later dismissed the judgment against Appellant. Appellee City of Covington reached a
settlement with Appellant, Appellant’s driver’s license was reinstated, and the violation
was removed from his record. Accordingly, the legal controversy at the center of this case
has been extinguished, and this Court can offer no meaningful relief to the Appellant. As
such, the appeal is dismissed as moot.

In Re Korey L.
M2022-00487-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Sheila Calloway

Appellant/Father appeals the trial court’s termination of his parental rights to the minor child on the grounds of: (1) failure to establish a suitable home; (2) abandonment by wanton disregard; (3) persistence of the conditions that led to the child’s removal; (4) incarceration for a 10-year sentence; and (5) failure to manifest an ability and willingness to assume legal and physical custody of the child. The trial court failed to make sufficient findings to support the grounds of: (1) failure to establish a suitable home; (2) abandonment by wanton disregard; and (3) failure to manifest an ability and willingness to assume legal and physical custody of the child. Tenn. Code Ann. § 36-1-113(k). Accordingly, we reverse the termination of Father’s parental rights on those grounds. We affirm the trial court’s termination of Father’s parental rights on the remaining grounds and on its finding that termination of Father’s parental rights is in the child’s best interest.

Brad Coen v. Myra (Coen) Horan
W2019-00404-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Carma Dennis McGee

The mother of the parties’ only child filed a pro se appeal of the trial court’s order granting
the father’s Petition to Allow Relocation and for Modification of the Parties’ Permanent
Parenting Plan. The final order was entered on January 25, 2019, and the mother filed a
timely Notice of Appeal; however, the technical record was not filed with this court until
three years later, on June 7, 2022. While the mother’s pro se appellate brief was timely
filed, her brief is profoundly deficient for it fails to comply with Rule 27(a) of the
Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals
of Tennessee in many material respects. Specifically, her Statement of the Case and
Statement of Facts are littered with a series of assertions unrelated to the merits of this
appeal, and she fails to provide the requisite citations to the record as required by Rule
27(a)(6) of the Tennessee Rules of Appellate Procedure. Further, her brief fails to set forth
relevant arguments with respect to the issues presented as required by Rule 27(a) of the
Tennessee Rules of Appellate Procedure, and the few citations to legal authorities she
provides are not on point. Based on her failure to comply with Rule 27(a)(7) of the
Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals
of Tennessee, Mother has waived her right to an appeal. Accordingly, this appeal is
dismissed.

Dover Signature Properties, Inc. v. Customer Service Electric Supply, Inc.
E2022-00461-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor John F. Weaver

The appellant, the developer of a senior living facility in Knoxville, appeals the trial court’s
determination that it breached a joint check agreement that included itself, an electrical
subcontractor, and an electrical supplier as signatories. Although the appellant had initially
denied executing the joint check agreement and had expressed a lack of awareness of the
electrical supplier’s involvement with the subcontractor and senior living project, it
ultimately acknowledged during litigation that its controller had signed the joint check
agreement and that the supplier’s materials were incorporated into the project. The proof
at trial revealed that, notwithstanding its execution of the joint check agreement, the
appellant never issued a joint check that would assure that the supplier received payment.
Instead, the appellant paid only the subcontractor who failed to pay the supplier. Herein,
we affirm the trial court’s judgment awarding the supplier relief against the appellant.