McKayla Taylor v. Miriam's Promise

01/31/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 7, 2018 Session

MCKAYLA TAYLOR v. MIRIAM’S PROMISE ET AL.

Appeal from the Circuit Court for Putnam County

No. 2017-CV-123 Amy V. Hollars, Judge

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No. M2017-01908-COA-R3-CV

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This action arises from an agreed-upon adoption that the birth mother revoked within 30

days of the child’s birth. The defendants include three adoption agencies, three social

workers, two attorneys, a hospital, and the prospective adoptive parents. Generally stated,

the complaint alleges that the defendants acted in concert to abduct the mother’s child by

inducing the mother to surrender her parental rights, consent to the adoption, and waive

her right of revocation. The articulated claims include conspiracy to commit fraud and

tortious civil kidnapping, negligence, professional negligence, healthcare liability, and

conversion of her child. All defendants filed motions to dismiss the complaint under

Tennessee Rule of Civil Procedure 12.02 for some or all of the following reasons: (1) the

adoption documents were valid under Tennessee law and not fraudulent; (2) Tennessee

does not recognize the torts of civil kidnapping and conversion of a child; (3) the claims

are time-barred; (4) the mother’s first certificate of good faith was non-compliant because

it did not disclose a prior violation of Tennessee Code Annotated § 29-26-122; (5) the

Tennessee Governmental Tort Liability Act barred the mother’s intentional tort claims

against the hospital; and (6) the mother released some of the defendants from liability by

signing a release agreement. Additionally, the healthcare providers contended the

complaint should be dismissed because the mother failed to comply with the pre-suit

notice requirement of the Tennessee Health Care Liability Act. The trial court granted the

motions on various grounds and dismissed the complaint with prejudice for all

defendants. Having determined that Tennessee does not recognize a tort of conversion of

a child or tortious civil kidnapping and that conspiracy to commit fraud is not a stand-

alone claim, we affirm the dismissal of these claims. We also affirm the dismissal of all

remaining claims as time-barred. Therefore, the judgment of the trial court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and W. NEAL MCBRAYER, JJ., joined.

Connie Reguli, Brentwood, Tennessee, for the appellant, McKayla Alexis Taylor.

Michael Gregory Derrick, Memphis, Tennessee, for the appellees, AdoptHelp, Inc.,

Adoption Planners, Inc., Mark Goldman, Gabby Rivette, and Steve Wang.

Samantha Erin Bennett, Raleigh Kent Francis, Peter Benjamin Winterburn, Memphis,

Tennessee, for the appellees, Allison Balthrop, Sarah Groth, and Miriam’s Promise.

Cynthia A. Wilson, Cookeville, Tennessee, for the appellees Cookeville Regional

Medical Center Authority and Kellye Ann Reid.

Rachel Thomas, Nashville, Tennessee, for the appellees Paul and Roberta Paetzke.

OPINION

FACTUAL AND PROCEDURAL HISTORY

Because this case was dismissed by the trial court upon the defendants’ motions

under Tennessee Rule of Civil Procedure 12.02(6), our only source of the relevant facts is

the Complaint. Therefore, the factual history stated below is taken from the allegations in

the Complaint. The procedural history is taken from the record provided by the trial

court.

I. PLAINTIFF’S PREGNANCY

McKayla Taylor (“Plaintiff”) has been a Tennessee resident at all times material to

this action. In the spring of 2015, Plaintiff learned that she was pregnant. Plaintiff was

willing to complete the pregnancy and raise the child, but the biological father

discouraged this path. Over the next few months, and after numerous conferences with

the biological father and his mother, Plaintiff agreed to consider adoption.1

Following a Google search for adoption options, Plaintiff sent an email to Gabby

Rivette, the director and caseworker at Adoption Planners, Inc., an adoption agency in

California. After some communications with Ms. Rivette, Plaintiff approved California

residents Paul and Roberta Paetzke to be the adoptive parents. The Complaint alleges that

1

Plaintiff was not residing with the father when she became pregnant; however, she moved in

with the father during the last few months before the birth of the child.

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the Paetzkes were represented by California attorney Mark Goldman, who was the

principal of Adoption Planners and an affiliated entity, AdoptHelp, Inc.2

On October 26, 2015, Ms. Rivette sent Plaintiff an email stating that she would be

contacting a “TN attorney and social worker” to set up an “advisement” meeting for

Plaintiff. Ms. Rivette then contacted a Tennessee adoption agency, Miriam’s Promise, to

set up the advisement meeting.

On October 31, 2015, the child’s father executed a Waiver of Right of Further

Notice of Adoption Planning that stated, “[T]he court may enter an order terminating my

parental rights without further notice to me.” The Complaint alleges that the Paetzkes’

California attorney, either personally or through Ms. Rivette, provided Miriam’s Promise

with this and other legal documents published by the State of California to obtain the

surrender of parental rights and consent to the adoption.

On November 2, 2015, Ms. Rivette sent Plaintiff an email stating, “I am working

with the TN agency Miriam’s Promise to set up your [advisement] meeting.” On

November 11, 2015, Ms. Rivette sent Plaintiff another email asking her to meet with

Sarah Groth, a Miriam’s Promise employee and licensed social worker in Tennessee:

I wanted to check in to see if you are able to meet with Sarah tomorrow or

Friday during the day (maybe in between classes or on a lunch break)? The

advisement (your meeting with her) is the next step in the adoption process

and it is a very crucial one. This is where you’ll learn your rights as a birth

mother, learn the specific information about [the adoptive parents] that you

legally need to know and receive a copy of the documents that you’ll be

signing after the baby is born.

Ms. Rivette informed Plaintiff that this meeting had to occur ten days before Plaintiff’s

discharge from the hospital.

At the advisement meeting, Sarah Groth with Miriam’s Promise asked Plaintiff to

sign a Statement of Understanding. The Statement of Understanding provided, inter alia,

that Plaintiff had a right to revoke her consent to the adoption for 30 days after signing

the final surrender and consent agreement. Plaintiff signed the Statement of

Understanding, but Ms. Groth did not provide Plaintiff with a copy of the document or

2

The record indicates that Mr. Goldman practiced law with co-defendant Steven Wang under the

firm name of Adoption Law Center. The Complaint incorrectly spells Mr. Wang’s last name as “Want.”

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the final surrender and consent agreements that Plaintiff would be signing after giving

birth.

On November 27, 2015, Plaintiff was admitted to Cookeville Regional Medical

Center (“Cookeville Regional”) to give birth. After Plaintiff was administered

medication, Cookeville Regional employee and licensed social worker, Kellye Reid

asked Plaintiff to execute a Maternal Preference Check Sheet. The Check Sheet gave

Plaintiff options for the care of the child after birth, such as whether she wanted to see the

child or receive information about the child’s condition. After Plaintiff gave birth, but

while still medicated, Ms. Reid asked Plaintiff to execute two more agreements. The first

agreement permitted the Paetzkes to “feed, bathe and bond with” the child. The second

agreement authorized Cookeville Regional to discharge the child into the Paetzkes’

custody and agreed to hold Cookeville Regional harmless from any claims for doing so.

The next day, November 28, 2015, Cookeville Regional discharged the child into

the Paetzkes’ custody.

On November 29, 2015, Plaintiff was discharged from the hospital. On

December 1, 2015, while Plaintiff remained under the influence of pain medication,

another Miriam’s Promise employee and licensed social worker, Allison Balthrop, asked

Plaintiff to execute a second Statement of Understanding, a Waiver of Right to Revoke

Consent, and an Adoption Placement Agreement. The Placement Agreement provided

that Plaintiff was surrendering her parental rights and consenting to the adoption. The

Waiver provided that Plaintiff was waiving her 30-day right to revoke the Placement

Agreement. Ms. Balthrop did not explain the documents to Plaintiff or ask if Plaintiff was

under the influence of medication. Miriam’s Promise did not provide or offer any post-

partum counseling or provide Plaintiff with copies of the signed documents.

On December 4, 2015, Plaintiff decided that she wanted the child returned to her.

When she informed Ms. Rivette of her decision to keep the child, Ms. Rivette advised

Plaintiff there was nothing she could do because Plaintiff waived the 30-day revocation

period. Undeterred, Plaintiff contacted Miriam’s Promise and was told that the original

documents were sent to Adoption Planners in California and that copies of the documents

had been mailed to Plaintiff.

On December 8, 2015, Plaintiff sent a Revocation of Consent to Miriam’s

Promise, the Tennessee Department of Children’s Services, Mr. Goldman, Ms. Rivette,

the Paetzkes, and the California Department of Children and Family Services.

On December 9, 2015, Ms. Rivette called Plaintiff and told her the child would be

returned that day. Before it returned the child, Miriam’s Promise required Plaintiff to sign

an agreement releasing the Paetzkes, Adoption Planners, Miriam’s Promise, AdoptHelp,

Inc., AdoptHelp Law Center, and AdoptHelp’s employees and officers from liability.

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Plaintiff signed the release, and the child was returned to her. The child has been in

Plaintiff’s custody ever since.

II. PRE-SUIT NOTICE AND COMPLAINT

Some eleven months later, on or about November 15, 2016, Plaintiff sent two pre-

suit notices to Miriam’s Promise and two pre-suit notices to Cookeville Regional.

Included with each notice were a draft complaint and a form authorizing Miriam’s

Promise, Cookeville Regional, and any person from Miriam’s Promise or Cookeville

Regional, to use and disclose Plaintiff’s protected health information to investigate

Plaintiff’s claims.

On March 14, 2017, Plaintiff commenced this action by filing a complaint against

AdoptHelp, Adoption Planners, Mr. Goldman, Mr. Wang, Ms. Rivette, Miriam’s

Promise, Ms. Balthrop, Ms. Groth, Cookeville Regional, Ms. Reid, and the Paetzkes

(collectively, “Defendants”). The Complaint asserted claims for conversion and

conspiracy to commit fraud and civil kidnapping against all defendants; claims for

negligence against Miriam’s Promise, Ms. Balthrop, Ms. Groth, Adoption Planners, and

Ms. Rivette; and claims for professional negligence against Ms. Groth and Ms. Balthrop.

The Complaint alleged that the Paetzkes paid Mr. Goldman and Mr. Wang through

Adoption Planners and AdoptHelp to abduct Plaintiff’s child by using invalid documents,

and that Adoption Planners and AdoptHelp provided the “illegal” documents to Ms.

Rivette, who contracted with Miriam’s Promise for the execution of the documents

through Ms. Groth and Ms. Balthrop, who failed to advise Plaintiff about the illegal

nature of the documents and induced her into signing them. The Complaint asserted the

documents were void under Tennessee law because they purported to terminate

Plaintiff’s parental rights and waive Plaintiff’s right of revocation when Tennessee’s

adoption statute requires termination of parental rights through adjudication in strict

accordance with statutory procedures. The Complaint also asserts that Miriam’s Promise,

Ms. Groth, Ms. Balthrop, Adoption Planners, Mr. Goldman, and Ms. Rivette owed

Plaintiff “a special duty of care,” including the “duty to inform [Plaintiff] that the

documents she executed were not valid in the State of Tennessee,” because they

represented themselves as having a “confidential relationship” with Plaintiff and

possessed “greater knowledge of the legalities of her parental rights.”

Along with the Complaint, Plaintiff filed a certificate of good faith and an affidavit

of compliance purportedly in compliance with Tennessee Code Annotated §§ 29-26-121

and 122 of the Tennessee Health Care Liability Act (“THCLA”).

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On March 24 and 31, 2017, Plaintiff filed a second certificate of good faith and a

motion to adopt the second certificate. The second certificate included the disclosure, as

required by § 122, that Plaintiff’s attorney had one prior violation of that section.3

Plaintiff also requested the court to grant an extension of time and accept the amended

certificate.

III. MOTIONS TO DISMISS

On or about June 15, 2017, Defendants filed motions to dismiss under Tennessee

Rule of Civil Procedure 12.02(6). All defendants asserted, in one fashion or another, that

Plaintiff’s Complaint should be dismissed because (1) the adoption documents were valid

under Tennessee law and not fraudulent; (2) Tennessee does not recognize the torts of

civil kidnapping and conversion of a child; (3) Plaintiff filed her Complaint after the

expiration of the applicable statutes of limitations; and (4) Plaintiff released Defendants

from liability by signing the December 9, 2015 release agreement. Additionally, the

defendants who asserted that the THCLA applied contended that Plaintiff’s first

certificate of good faith was non-compliant because it did not disclose the prior violation

of § 122. Cookeville Regional also asserted that the Tennessee Governmental Tort

Liability Act (“GTLA”) barred Plaintiff’s intentional tort claims.

After hearing arguments on Plaintiff’s Motion to Adopt and Defendants’ motions

to dismiss, the court entered an order denying Plaintiff’s Motion to Adopt and granting

all of Defendants’ motions to dismiss. In pertinent part, the trial court ruled that

Tennessee law permits parents to surrender their parental rights under the rules of another

state:

9) In terms of Tennessee surrender, it appears that the procedures

employed here are contemplated under the [Interstate Compact for

the Placement of Children] and that Tennessee law allows for the

election to be governed by the laws of another state with regard to

this process of relinquishing rights, as well as to the process of

adoption.

10) As a predicate of all the claims against all the Defendants, the

Plaintiff has asserted that, in this adoption, this process of surrender

or “consent” (as it is termed under California law) was illegal under

3

Tennessee Code Annotated § 29-26-122(d)(4) provides, “A certificate of good faith shall

disclose the number of prior violations of this section by the executing party.”

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Tennessee law. The Court finds that that is not the case. The Court

finds that Plaintiff’s Complaint is incorrect and that this is a basis for

dismissal of [Plaintiff’s] entire suit, including all claims therein.

The court also made findings on the other grounds for dismissing the various

claims, including (1) Tennessee does not recognize claims for “conversion of a child” or

“tortious civil kidnapping”; (2) Plaintiff failed to plead her fraud claims with specificity;

(3) Plaintiff’s first certificate of good faith failed to comply with § 122 of the THCLA;

(4) the GTLA and the statute of limitations barred Plaintiff’s intentional tort claims

against Cookeville Regional; and (5) the statute of limitations barred Plaintiff’s claims

against the remaining defendants. The court also found that Plaintiff’s claims did not

qualify for a 120-day extension of the statute of limitations under the THCLA because

(a) she failed to provide Ms. Reid, Ms. Balthrop, and Ms. Groth with pre-suit notice

under § 121, and (b) AdoptHelp, Adoption Planners, Mr. Goldman, Mr. Wang, Ms.

Rivette, and the Paetzkes (collectively, “the AdoptHelp Defendants”) were not “health

care providers.” Accordingly, the trial court dismissed the Complaint with prejudice. This

appeal followed.

Plaintiff raises five issues on appeal that we restate as follows: (1) whether the trial

court erred by finding that Plaintiff’s surrender of her parental rights was valid under

Tennessee law; (2) whether the trial court erred by finding that Plaintiff’s claims were

barred by the applicable statutes of limitations; (3) whether the trial court erred by failing

to recognize claims for civil kidnapping and conversion of a child; (4) whether the trial

court erred by finding that Plaintiff failed to state a claim for fraud and conspiracy; and

(5) whether the trial court erred by dismissing the Complaint based on its finding that

Plaintiff’s certificate of good faith was deficient.4

STANDARD OF REVIEW

A Tenn. R. Civ. P. 12.02(6) motion to dismiss challenges only the legal

sufficiency of the complaint, not the strength of the plaintiff’s proof or evidence. Webb v.

Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011) (citations

omitted). The resolution of a Rule 12.02(6) motion to dismiss is determined by an

examination of the pleadings alone. Id. A defendant who files a motion to dismiss

“admits the truth of all of the relevant and material allegations contained in the

complaint, but . . . asserts that the allegations fail to establish a cause of action.” Webb,

4

Plaintiff did not appeal the trial court’s determination that the GTLA bars her intentional tort

claims against Cookeville Regional.

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346 S.W.3d at 426. (quoting Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 854

(Tenn. 2010)).

When considering a motion to dismiss, courts “must construe the complaint

liberally, presuming all factual allegations to be true and giving the plaintiff the benefit of

all reasonable inferences.” Webb, 346 S.W.3d at 426 (quoting Tigg v. Pirelli Tire Corp.,

232 S.W.3d 28, 31–32 (Tenn. 2007)). A trial court should grant a motion to dismiss “only

when it appears that the plaintiff can prove no set of facts in support of the claim that

would entitle the plaintiff to relief.” Webb, 346 S.W.3d at 426 (quoting Crews v.

Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002)). We review the trial court’s

legal conclusions regarding the adequacy of the complaint de novo. Webb, 346 S.W.3d

at 427 (citing Brown, 328 S.W.3d at 855; Stein v. Davidson Hotel Co., 945 S.W.2d 714,

716 (Tenn. 1997)).

ANALYSIS

We find the dispositive issues to be (1) whether Tennessee recognizes a claim for

conversion of a child, tortious civil kidnapping, or a stand-alone claim of conspiracy to

commit fraud, and (2) whether the actionable claims are time barred. We will address

each issue in turn.

I. CONVERSION, KIDNAPPING & CONSPIRACY TO COMMIT FRAUD

A. Conversion of a Child

The Complaint alleges that Defendants “collectively engaged in a conspiracy to

convert the person of the child to the adoptive parents, illegally and for profit.”5 Plaintiff

argues that her child became “property” when Defendants made the child the subject of a

5

The elements of a conversion claim include: “(1) an appropriation of another’s tangible property

to one’s use and benefit; (2) an intentional exercise of dominion over the chattel alleged to have been

converted; and (3) defiance of the true owner’s rights to the chattel.” White v. Empire Exp., Inc., 395

S.W.3d 696, 720 (Tenn. Ct. App. 2012) (citing River Park Hosp., Inc. v. BlueCross BlueShield of Tenn.,

Inc., 173 S.W.3d 43, 60 (Tenn. Ct. App. 2002). “A wrongful intent on the part of the defendant is not an

element of conversion and, therefore, need not be proved.” Id. (citation omitted). A conversion claim

focuses on “the interference with a property owner’s right.” Id. (quoting Gen. Elec. Credit Corp. of Tenn.

v. Kelly & Dearing Aviation, 765 S.W.2d 750, 754 (Tenn. Ct. App. 1988)). Normally, the appropriate

measure of damages for the conversion of property is “the value of the property converted at the time and

place of conversion, with interest.” Scott v. Houston, No. E2009-01118-COA-R3-CV, 2010 WL 680984,

at *7 (Tenn. Ct. App. Feb. 26, 2010) (quoting Lance Prods., Inc. v. Commerce Union Bank, 764 S.W.2d

207, 213 (Tenn. Ct. App. 1988)).

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commercial transaction. She cites Tennessee Code Annotated § 36-2-303 for the

proposition that a mother is the natural custodian of a child born out of wedlock, and

§ 34-1-102(a) for the proposition that parents are the natural guardians of children during

minority, and argues that she had a constitutional right to the care and custody of her

child. Thus, Plaintiff asserts that Defendants’ intentional exercise of control over her

child for Defendants’ own benefit, and in defiance of Plaintiff’s constitutional rights,

constituted conversion of her property. Defendants counter that the tort of conversion

applies only to the appropriation of tangible, personal property or chattel. They argue that

a parent or guardian’s custody of a child does not vest the child with the legal status of

chattel or property.

Analogizing adoption to the sale of goods is not novel in academic settings. See

Richard A. Posner, The Regulation of the Mkt. in Adoptions, 67 B.U.L. Rev. 59, 64

(1987) (analogizing the “sale of babies to the sale of an ordinary good”). But Tennessee

law is irreconcilable with a notion that children are the “property” of their parents. We

have described the concept of property as a bundle of rights or legally protected interests,

including “(1) the right of possession, enjoyment and use; (2) the unrestricted right of

disposition; and (3) the power of testimonial disposition.” State ex rel. Elvis Presley Int’l

Mem’l Found. v. Crowell, 733 S.W.2d 89, 96 (Tenn. Ct. App. 1987) (citations omitted).

Although parents have a constitutional right to the care and custody of their children, In

re Audrey S., 182 S.W.3d 838, 860 (Tenn. Ct. App. 2005) (citations omitted), they do not

have a right to the disposition of their children.

In Davis v. Davis, the Tennessee Supreme Court considered whether to categorize

preembryos as “persons” or “property” under Tennessee law. 842 S.W.2d 588, 594

(Tenn. 1992). The Court recognized that defining preembryos as “persons” would vest

them “with legally cognizable interests separate from those of their [parents],” but

defining preembryos as “property” would give those with decision-making authority

unlimited discretion in the actions taken with preembryos. Id. at 595–96 (citing Rep. of

the Ethics Comm., 53 J. Am. Fertility Soc’y 34S (June 1990)). The Court ultimately

found that the parties did not have a “true property interest” in the preembryos but did

“have an interest in the nature of ownership, to the extent that they have decision-making

authority concerning disposition of the preembryos.” Davis, 842 S.W.2d at 597. Based on

this finding, the Court recognized that a private agreement about the disposition of the

preembryos would bind the parties. Id. The Court also noted that, if preembryos were

given the legal status of persons, an agreement on their disposition “would be

unenforceable in the event of a later disagreement, because the trial court would have to

make an ad hoc ‘best interest of the child’ determination in every case.” Id.

Inherent in the Court’s reasoning in Davis is the principle that parties cannot

contract for the disposition of a child. See also Welch v. Welch, 195 S.W.3d 72, 76 (Tenn.

Ct. App. 2005) (stating that a parent’s “duty to support arises out of the parent-child

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relationship and, unlike a property right, ‘cannot be “bargained away” by contract’”

(quoting C.J.H. v. A.K.G., No. M2001-01234-COA-R3-JV, 2002 WL 1827660, at *4

(Tenn. Ct. App. Aug. 9, 2002))). Similarly, a parent’s constitutional right to care for his

or her child is not a “property right” subject to conversion by another.

For the foregoing reasons, we hold that conversion of a child is not a recognized

cause of action; therefore, Plaintiff cannot maintain a cause of action for conversion of a

child.

B. Tortious Civil Kidnapping

As for the claim of tortious civil kidnapping, Tennessee does not recognize this as

a civil cause of action. See Monroe v. McNairy County, 850 F. Supp. 2d 848, 876 (W.D.

Tenn. 2012). Therefore, Plaintiff cannot maintain a cause of action for tortious civil

kidnapping of a child.

C. Conspiracy to Commit Fraud

As for the claims of conspiracy to commit fraud, Tennessee does not recognize

this as a stand-alone claim. See Pusser v. Gordon, 684 S.W.2d 639, 642 (Tenn. Ct. App.

1984). As the court explained:

A mere conspiracy to commit a fraud is never of itself a cause of action; it

must be proved that there was a conspiracy to defraud and a participation in

the fraudulent purpose, either in the scheme or in its execution, which

worked injury as a proximate consequence. It is the civil wrong resulting in

damage and not the conspiracy which constitutes the cause of action for

conspiracy to defraud.

Id. (quoting 15A C.J.S. Conspiracy, § 9).

Moreover, Plaintiff failed to specifically plead the underlying fraud claim as Tenn.

R. Civ. P. 9 requires. “In all averments of fraud or mistake, the circumstances

constituting fraud or mistake shall be stated with particularity.” Tenn. R. Civ. P. 9.02.

Therefore, the trial court acted appropriately by dismissing the claim of conspiracy to

commit fraud.

II. STATUTES OF LIMITATIONS

It is undisputed that the claims at issue accrued, at the latest, on December 9,

2015, when the child was returned to Plaintiff and Plaintiff signed the agreement

releasing Defendants from liability and that this action was commenced more than one

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year later when Plaintiff filed her Complaint. Thus, the question is which statute of

limitations applies to the various claims asserted against the defendants.

“[I]n choosing the applicable statute of limitations, courts must ascertain the

gravamen of each claim, not the gravamen of the complaint in its entirety.” Benz-Elliott

v. Barrett Enterprises, LP, 456 S.W.3d 140, 149 (Tenn. 2015). Likewise, “application of

the THCLA . . . should be considered with respect to each separate claim rather than with

respect to the complaint as a whole.” Lacy v. Mitchell, 541 S.W.3d 55, 62 (Tenn. Ct.

App. 2016). “[G]ravamen is not dependent upon the ‘designation’ or ‘form’ litigants

ascribe to an action.” Benz-Elliott, 456 S.W.3d at 148 (quoting Redwing v. Catholic

Bishop for Diocese of Memphis, 363 S.W.3d 436, 457 (Tenn. 2012)). To ascertain the

gravamen of a claim, “a court must first consider the legal basis of the claim and then

consider the type of injuries for which damages are sought.” Benz-Elliott, 456 S.W.3d

at 151.

Tort claims for “injuries to the person” are subject to a one-year statute of

limitations. Tenn. Code Ann. § 28-3-104(a)(1)(A). Tort claims for injuries to property or

conversion of personal property are subject to a three-year statute of limitations. Id.

§§ 105(1)–(2). Health care liability actions are subject to a one-year statute of limitations,

id. § 29-26-116(a)(1), but the limitations period is extended by 120 days if the plaintiff

provides the defendants with pre-suit notice of her claim in compliance with Tennessee

Code Annotated section 29–26–121(a) before the statute of limitations expires. Woodruff

by & through Cockrell v. Walker, 542 S.W.3d 486, 494 (Tenn. Ct. App. 2017) (citing

Tenn. Code Ann. § 29-26-121(c)).

As for Plaintiff’s claims against the AdoptHelp Defendants,6 Plaintiff contends

these claims are subject to a three-year statute of limitation because her injury arose from

the conversion of her property and conspiracy to commit fraud. Because we have

determined that conversion of property is not applicable, and conspiracy to commit fraud

is not actionable in Tennessee, we affirm the dismissal of these claims without further

discussion.

6

Although Plaintiff additionally asserts that the trial court erred by failing to apply the 120-day

extension to the AdoptHelp Defendants, she concedes that the AdoptHelp Defendants are not health care

providers and does not develop an argument on this issue “[W]here a party fails to develop an argument

in support of his or her contention or merely constructs a skeletal argument, the issue is waived.” Sneed v.

Bd. of Prof’l Responsibility of Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010).

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As for Plaintiff’s claims against Miriam’s Promise, Ms. Groth, Ms. Balthrop,

Cookeville Regional, and Ms. Reid, she contends these are health care liability actions

that qualify for the 120-day extension under § 121(c). We begin with the THCLA claims.

A. Tennessee Health Care Liability Act

“A claim will be subject to the THCLA if the facts of the case show that it

qualifies as a ‘health care liability action’ as that term is statutorily defined.” Osunde v.

Delta Med. Ctr., 505 S.W.3d 875, 884 (Tenn. Ct. App. 2016). The THCLA defines a

“health care liability action” as “any civil action . . . alleging that a health care provider or

providers have caused an injury related to the provision of, or failure to provide, health

care services to a person, regardless of the theory of liability on which the action is

based.” Tenn. Code Ann. § 29-26-101(a). We have interpreted this definition as

composing three requirements: “(1) it is a civil action; (2) the claim is against a health

care provider; and (3) the harm complained of arises from ‘the provision of, or failure to

provide, health care services.’” Igou v. Vanderbilt Univ., No. M2013-02837-COA-R3-

CV, 2015 WL 1517794, at *4 (Tenn. Ct. App. Mar. 27, 2015) (footnotes omitted)

(quoting Tenn. Code Ann. § 29-26-101(a)(1)).

As is relevant here, the THCLA defines “health care provider” as,

(A) a health care practitioner licensed . . . under any chapter of title 63 or title

68 . . . ;

. . .

(E) A professional corporation or professional limited liability company

established pursuant to title 48, a registered limited liability partnership

rendering professional services under title 61 and which consists of one (1)

or more health care practitioners licensed, authorized, certified, registered,

or regulated under any chapter of title 63 or title 68, or any legal entity that

is not itself required to be licensed but which employs one or more health

care practitioners licensed, authorized, certified, registered, or regulated

under any chapter of title 63 or title 68[.]

Tenn. Code Ann. § 29-26-101(a)(2). The THCLA defines “health care services” as care

by health care providers, persons under the supervision of health care providers, and

“includes staffing, custodial or basic care, positioning, hydration and similar patient

services.” Id. § 101(b).

To determine whether a defendant “caused an injury related to the provision, or

failure to provide, health care services,” we have looked at whether the alleged conduct

that caused the injury involved the provision, or failure to provide, health care services.

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See C.D. v. Keystone Continuum, LLC, No. E2016-02528-COA-R3-CV, 2018 WL

503536, at *5 (Tenn. Ct. App. Jan. 22, 2018). “Given the breadth of the statute, it should

not be surprising if most claims now arising within a medical setting constitute health

care liability actions.” Osunde, 505 S.W.3d at 884–85. Nonetheless, “whether a health

care liability action is implicated is entirely dependent on whether the factual allegations

meet the definition outlined in the statute.” Id. at 885 n.6.

The Complaint alleges that Ms. Balthrop, Ms. Groth, and Ms. Reid are social

workers licensed and regulated under title 63 of the Tennessee Code and that Miriam’s

Promise and Cookeville Regional engage “in providing services by licensed social

workers.” As licensed social workers, Ms. Groth, Ms. Balthrop, and Ms. Reid qualify as

health care providers as defined in Tennessee Code Annotated § 29-26-101(a)(2)(A). See

Ellithorpe v. Weismark, 479 S.W.3d 818, 827 (Tenn. 2015) (finding defendant-social

worker was a health care provider because she was licensed under title 63 of the

Tennessee Code). Giving Plaintiff the benefit of all reasonable inferences, Miriam’s

Promise and Cookeville Regional qualify as health care providers under the definitions

contained in § 101(a)(2)(E). Thus, the only question remaining is whether the alleged

conduct of these defendants equates to an allegation of injury caused by the provision of

health care services or lack thereof.

Because the factual allegations against Miriam’s Promise, Ms. Groth, and

Ms. Balthrop (“the Miriam’s Promise Defendants”) do not completely overlap with the

factual allegations against Cookeville Regional and Ms. Reid, we will consider separately

whether the THCLA and its 120-day extension apply to each group of defendants. See

Lacy, 541 S.W.3d at 60 (concluding that a complaint asserted two claims because it

alleged injuries caused by two separate, wrongful acts, and examining each claim

separately).

1. THCLA Claims against Cookeville Regional and Ms. Reid

The Complaint alleges that Ms. Reid owed Plaintiff a special duty of care because

she held herself out as a social worker for Plaintiff; that Ms. Reid presented Plaintiff with

forms published by Cookeville Regional related to the care and release of the child while

Plaintiff was under the influence of medication; that Ms. Reid misrepresented that

Plaintiff could change her mind regarding her choices; that Ms. Reid failed to give

Plaintiff a copy of the forms that Plaintiff signed; and that Ms. Reid participated in a

conspiracy to induce Plaintiff into executing “illegal” documents to kidnap Plaintiff’s

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child. Plaintiff concludes that Ms. Reid’s actions constituted negligence. Plaintiff also

alleges that Cookeville Regional is vicariously liable for Ms. Reid’s acts.7

Tennessee Code Annotated § 29-26-101(b) defines a health care liability action as

including care by “agents, employees and representatives of the provider, and also

includes staffing, custodial or basic care, positioning, hydration and similar patient

services.” Therefore, the allegations in the Complaint relate to the provision of health

care services because the forms that Ms. Reid presented to Plaintiff were related to the

child’s care and release from the hospital. See Mullin v. Rolling Hills Hosp., No. 3:16-

CV-02609, 2017 WL 6523482, at *5 (M.D. Tenn. Apr. 17, 2017) (holding that claims

were governed by the THCLA because the alleged injuries arose from actions taken as

part of plaintiff’s treatment and the application or misapplication of the rules governing

involuntary admission). Thus, Plaintiff’s claims against Cookeville Regional and

Ms. Reid were subject to the one-year statute of limitations under Tennessee Code

Annotated § 29-26-116(a)(1).

Because Plaintiff filed her Complaint more than a year after her claims arose, the

claim is barred unless Plaintiff complied with the pre-suit notice requirements of

Tennessee Code Annotated § 29-26-121(a).

The requirements of Tennessee Code Annotated § 29-26-121(a) serve “related yet

ultimately distinct goals”:

First, Tenn. Code Ann. § 29-26-121(a)(1) contains an express notice

requirement that requires plaintiffs to give defendants written notice that a

potential healthcare liability claim may be forthcoming. In contrast, Tenn.

Code Ann. §§ 29-26-121(a)(2)(A)–(C) facilitate early resolution of

healthcare liability claims by requiring plaintiffs to advise defendants who

the plaintiff is, how to reach him or her, and how to contact his or her

attorney. Lastly, the requirements of Tenn. Code Ann. § 29-26-

121(a)(2)(D) and Tenn. Code Ann. § 29-26-121(a)(2)(E) serve an

investigatory function, equipping defendants with the actual means to

evaluate the substantive merits of a plaintiff’s claim by enabling early

discovery of potential co-defendants and early access to a plaintiff’s

medical records.

7

As already stated, Plaintiff did not appeal the trial court’s determination that the GTLA bars her

intentional tort claims against Cookeville Regional; thus, her claims against Cookeville Regional are

limited to vicarious liability for the alleged negligence of Ms. Reid.

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Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 554

(Tenn. 2013). Sections 121(a)(3) and (a)(4) contain requirements for “how pre-suit notice

is to be delivered and service of notice proven.” Arden v. Kozawa, 466 S.W.3d 758, 763

(Tenn. 2015).

The trial court found that Plaintiff did not comply with § 121(a) because she did

not provide Ms. Reid “with pre-suit notice addressed to [Ms. Reid].” Plaintiff contends

that she substantially complied with § 121(a)(3)’s requirements because she sent two pre-

suit notices to the address of Ms. Reid’s employer, Cookeville Regional, and Ms. Reid

had notice of the claims.

Section 121(a)(1) requires a plaintiff to “give written notice of the potential claim

to each health care provider that will be named defendant at least sixty (60) days before

the filing of a complaint based upon health care liability in any court of this state.” Tenn.

Code Ann. § 29-26-121(a)(1). Section 121(a)(3)(B) provides that the plaintiff may satisfy

this requirement by showing that written notice was mailed “[t]o the individual health

care provider at both the address listed for the provider on the Tennessee department of

health web site and the provider’s current business address, if different.” Id. §§ 121(a)(3),

(3)(B). Strict compliance with § 121(a)(1) is required. Runions v. Jackson-Madison Cty.

Gen. Hosp. Dist., 549 S.W.3d 77, 86 (Tenn. 2018) (citations omitted). Substantial

compliance, however, is permitted for § 121(a)(3)(B). Arden, 466 S.W.3d at 764.

What is important is that § 121(a)(1) requires a plaintiff to direct the pre-suit

notice to each potential defendant while § 121(a)(3) permits delivery of the notice in a

manner not specified by the statute, so long as the defendant is not prejudiced by the

deviation. Compare Runions, 549 S.W.3d at 87 (holding plaintiff did not comply with

§ 121(a) when he sent pre-suit notice to the correct address but did not direct notice to

defendant) with Hinkle v. Kindred Hosp., No. M2010-02499-COA-R3CV, 2012 WL

3799215, at *7–8 (Tenn. Ct. App. Aug. 31, 2012) (holding plaintiff complied with

§ 121(a) when he directed notice to defendant but addressed notice to defendant’s Chief

Administrator rather than its agent for service of process). That a potential defendant

received indirect notice is irrelevant under § 121(a)(1). “[T]he proper inquiry is whether

the plaintiff gave pre-suit notice to the health care provider to be named a defendant, not

whether the health care provider knew about the claim based on pre-suit notice of the

claim directed to another potential defendant.” Runions, 549 S.W.3d at 87. Thus, a

plaintiff must “communicate in writing directed to the potential defendant about the

claim.” Id. (emphasis added).

Here, Plaintiff did not direct written notice to Ms. Reid. Accordingly, we affirm

the trial court’s determination that Plaintiff failed to comply with the requirements of

§ 121(a).

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Because Plaintiff did not strictly comply with § 121(a), her health care liability

claims against Ms. Reid were barred by the applicable statute of limitations, Tennessee

Code Annotated § 29-26-116(a)(1). Therefore, we affirm the dismissal of the claims

against Ms. Reid.

Although Plaintiff directed written notice to Cookeville Regional, a plaintiff’s

right to pursue a vicarious liability claim against a principal is precluded “when the

plaintiff’s claim against the agent is procedurally barred by operation of law before the

plaintiff asserts a vicarious liability claim against the principal.” Abshure v. Methodist

Healthcare-Memphis Hosps., 325 S.W.3d 98, 106 (Tenn. 2010). Because Plaintiff filed

her complaint against Cookeville Regional after her claims against Ms. Reid were barred,

her claims of vicarious liability against Cookeville Regional are also barred. Therefore,

we affirm the dismissal of the claims against Cookeville Regional.

2. Purported THCLA Claims against the Miriam’s Promise Defendants

The allegations as to the Miriam Promise Defendants are substantively different

from those against Ms. Reid and Cookeville Regional discussed immediately above. The

Complaint alleges that the Miriam’s Promise Defendants induced Plaintiff “to engage in

an illegal child trafficking scheme for profit to the detriment of the [Plaintiff],” and

“knew or should have known that the documents they were asking [Plaintiff] to execute

were illegal.” The Complaint also alleges that Ms. Balthrop and Ms. Groth breached their

“duty to disclose to [Plaintiff] the illegality of the documents which [they] required

[Plaintiff] to execute” and prevented Plaintiff “from seeking competent counsel.” Like

her allegations against the other defendants, Plaintiff alleges that the Miriam’s Promise

Defendants engaged in a conspiracy to perpetrate “a fraud and illegal act against

[P]laintiff by inducing her into executing documents upon which they knew or should

have known were illegal in the State of Tennessee for the profiteering of child trafficking

and civil child kidnapping.” We find these allegations fail to allege an injury related to

the provision of health care services.

Although some licensed clinical social workers are qualified to provide mental

health services, the practice of a licensed social worker may also involve non-health-

related services. See Tenn. Code Ann. § 63-23-105(a) (stating that the practice of a

licensed clinical social worker may include counseling, psychotherapy, providing

information and referrals, and “the development, implementation, and administration of

policies, programs and activities”). Indeed, title 63 of the Tennessee Code expressly

prohibits some types of licensed social workers from providing counseling services. See

id. § 102(a) (stating that a licensed baccalaureate social worker is “not qualified to

diagnose or treat mental illness nor provide psychotherapy services”). Further,

Tennessee’s adoption statute identifies adoption placement services as a special type of

social work that requires an additional license. See id. § 36-1-102(32) (defining “licensed

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clinical social worker” as an individual holding a license under title 63, chapter 23 of the

Tennessee Code and a license from the Department of Children’s Services to provide

adoption placement services).

In Ellithorpe v. Weismark, the Tennessee Supreme Court held that the plaintiffs’

negligence claims fell under the THCLA when the complaint alleged the plaintiffs

suffered emotional distress after a licensed, clinical social worker provided counseling to

their child without the plaintiffs’ consent or involvement. 479 S.W.3d at 820–22. The

Court reasoned that the complaint alleged an injury related to the provision of health care

services because it alleged specifically that the defendant was “negligent in providing

health services.” Id. at 828 (emphasis omitted).

Unlike the complaint in Ellithorpe, which alleged the defendant-social worker

offered and provided counseling, Plaintiff’s Complaint expressly alleges that Miriam’s

Promise did not provide or offer counseling. In addition, the Complaint does not allege

that Plaintiff engaged the Miriam’s Promise Defendants to provide counseling or that the

Miriam’s Promise Defendants otherwise assumed a duty to provide counseling. The

allegations against the Miriam’s Promise Defendants pertain solely to the provision or

failure to provide information about Plaintiff’s legal rights during the adoption placement

process. See Horak v. Biris, 474 N.E.2d 13, 19 (Ill. App. Ct. 1985) (distinguishing social-

worker malpractice actions based on psychological counseling from social-worker

malpractice actions based on community organization, research, or welfare

administration); Engstrom v. State, 461 N.W.2d 309, 317 n.3 (Iowa 1990) (distinguishing

a social worker’s function in adoption proceedings from a social worker’s function in

providing counseling or therapy, because, in the latter, “there is a clear therapist-patient

relationship analogous to a physician-patient relationship”); cf Goebel v. Arnett,

259 S.W.3d 489, 494 (Ky. Ct. App. 2007) (reversing summary dismissal of biological

mother’s claims for intentional infliction of emotional distress based on adoption

agency’s alleged coercion).

That the adoption would not have been initiated but-for Plaintiff giving birth is too

tenuous a connection to categorize the alleged injury caused by the Miriam’s Promise

Defendants as “related to” health care services. See Lacy v. Vanderbilt Univ. Med. Ctr.,

No. M2016-02014-COA-R3-CV, 2017 WL 6273316, at *6 (Tenn. Ct. App. May 4,

2017), (conjecturing that allegations of “an injury caused by a doctor running over a

person in a hospital parking lot as he or she leaves work” could be described as literally

“related to” the provision of health care services but such an interpretation of the THCLA

“would be absurd”). Similarly, that Plaintiff alleges the Miriam’s Promise Defendants

engaged in a conspiracy with Cookeville Regional and Ms. Reid does not “relate” the

injury to the provision of health care services. The alleged actions of the Miriam’s

Promise Defendants took place before and after Plaintiff’s hospital stay, and the

documents Plaintiff signed were unrelated to the care she received.

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Based on the foregoing, we find Plaintiff’s claims against the Miriam’s Promise

Defendants sound in ordinary negligence rather than health care liability. Consequently,

the 120-day extension under Tennessee Code Annotated § 29-26-121(c) does not apply to

the claims against the Miriam’s Promise Defendants.

B. The Remaining Claims

In addition to the THCLA claims addressed above, Plaintiff asserted a plethora of

claims, all of which sound in tort for personal injury. Because the remaining claims sound

in tort for personal injuries, they are subject to the one-year statute of limitations in

Tennessee Code Annotated § 28-3-104(a)(1). It is undisputed that Plaintiff filed her

Complaint more than a year after her claims accrued. Therefore, these claims are time-

barred as the trial court correctly ruled.

Having found that Plaintiff’s claims were time-barred, we decline to address the

remaining issues raised.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs

of appeal assessed against McKayla Taylor.

________________________________

FRANK G. CLEMENT JR., P.J., M.S.

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