Court of Appeals Opinions

Format: 01/20/2021
Format: 01/20/2021
Bernard Keith Richardson v. Cassandra Yvette Richardson
E2019-02108-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

Husband appeals the trial court’s decisions regarding the classification and division of property relative to divorce. We affirm the decision of the trial court in all respects.

Hamilton County Court of Appeals 12/14/20
In Re Estate of Henry C. Ellis, III
W2019-02121-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Gina C. Higgins

Appellant appeals the circuit court’s decision to allow a law firm to intervene in an estate matter. Because we conclude that the circuit court lacked subject matter jurisdiction over this estate matter, we vacate the decision of the circuit court and remand with instructions to transfer this matter back to probate court.

Shelby County Court of Appeals 12/14/20
Kimberly Johnson Dougherty v. M.E. Buck Dougherty, III
W2020-01606-COA-T10B-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor William C. Cole

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, filed by M.E. Buck Dougherty, III (“Petitioner” or “Father”), seeking to recuse the trial judge in this case involving modification of a parenting plan. Having reviewed the petition for recusal appeal filed by Petitioner, and finding that the Chancery Court for Fayette County (“the Trial Court”) properly recused but erred in entering further orders, we vacate, in part, the November 5, 2020 order and affirm the order as so modified.

Fayette County Court of Appeals 12/14/20
In Re: Collwynn J.
E2020-00726-COA-R3-PT
Authoring Judge: Judge Kristi M Davis
Trial Court Judge: Judge J. Michael Sharp

This appeal involves the termination of the parental rights of a mother and father to their child. The trial court found clear and convincing evidence to support two grounds for termination: persistence of conditions and severe abuse. The trial court also found that termination was in the best interests of the child. We affirm.

Bradley County Court of Appeals 12/11/20
In Re: Avagaline S.
E2020-00222-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Douglas T. Jenkins

In this termination of parental rights case, Appellant Mother appeals the trial court’s termination of her parental rights to the minor child on the ground of failure to manifest an ability and willingness to parent the child, Tenn. Code Ann. § 36-1-113(g)(14). Similarly, Appellant Father appeals the trial court’s termination of his parental rights on the grounds of: (1) abandonment by failure to visit, Tenn. Code Ann. § 36-1-113(g)(1); (2) abandonment by failure to support, Tenn. Code Ann. § 36-1-113(g)(1); and (3) failure to manifest an ability and willingness to parent the child, Tenn. Code Ann. § 36-1-113(g)(14). Appellants also appeal the trial court’s finding that termination of their parental rights is in the child’s best interest. Because the record does not support grounds for termination of Appellants’ parental rights, we reverse the trial court’s order concerning same. Accordingly, the issue of whether termination is in the Child’s best interest is pretermitted.

Hawkins County Court of Appeals 12/11/20
Benjamin G. Palmer v. Jennifer J. Palmer
M2019-02071-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ross H. Hicks

In this case arising from a divorce, the father of the parties’ minor child petitioned to modify the existing parenting plan which he and the mother had agreed to in mediation approximately eight months earlier. Finding that the petition’s allegations were unsubstantiated and that the father had failed to prove by a preponderance of the evidence that there had been a material change of circumstances that affected the child’s best interest, the trial court dismissed the father’s petition. The trial court awarded the mother attorney fees. Discerning no error, we affirm the trial court’s judgment. 

Montgomery County Court of Appeals 12/10/20
Metro Codes Department v. Farokh Fani
M2020-00038-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Amanda J. McClendon

In a direct appeal from the Environmental Court for Davidson County, Tennessee (“general sessions court”), the Davidson County Circuit Court (“trial court”) granted the plaintiff agency’s motion to dismiss for lack of subject matter jurisdiction upon the trial court’s determination that the defendant, Farokh Fani, had untimely filed his motion for Tennessee Rule of Civil Procedure 60 relief in the general sessions court, rendering his appeal to the trial court untimely. Mr. Fani has appealed. We conclude that the trial court erred by determining that Mr. Fani’s Rule 60 motion and his appeal were untimely. Having further determined that a factual dispute exists concerning whether the plaintiff agency properly served process on Mr. Fani, we vacate and remand for further proceedings consistent with this opinion, including the development of a record concerning service of process.

Davidson County Court of Appeals 12/10/20
Kelsey Light v. Pattman, LLC d/b/a Wendy's Restaurant
W2019-02228-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donald E. Parish

This appeal arises from the trial court’s denial of a motion to compel arbitration filed by the Defendant. In its order denying the motion to compel, the trial court failed to make any factual findings. Further, there is no indication that any proof was considered by the trial court. We vacate the trial court’s order and remand for further proceedings.

Henry County Court of Appeals 12/10/20
Julie (Carden) Sexton v. Jason Vincent Carden
E2019-01057-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

This appeal concerns the trial court’s award of attorney fees. The ex-husband appeals. Upon a thorough review of the record, we discern no error and affirm the judgment of the trial court.

Hamilton County Court of Appeals 12/09/20
Elise Hudson, Et Al. v Metropolitan Government of Nashville And Davidson County, Et Al.
M2019-01081-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Anne C. Martin

After a planning commission approved a subdivision request, neighboring property owners filed a petition for common law writ of certiorari. The trial court granted the writ and, upon review, vacated the decision and remanded the case for further consideration. Both the planning commission and the owner of the proposed development appealed. Based on our review, we conclude that the planning commission acted illegally when it misapplied the applicable legal standards. So we affirm.  

Davidson County Court of Appeals 12/08/20
In Re Chantz B. Et Al.
M2019-02139-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Ronald Thurman

The trial court entered an order permitting the use of sealed court records from a dependency and neglect matter in a subsequent federal civil rights lawsuit challenging the dependency and neglect proceedings. The respondent mother, who is also the plaintiff in the related federal action, has appealed. Inasmuch as the collateral federal lawsuit has now been dismissed, we determine that this appeal is moot and nonjusticiable. We therefore dismiss the mother’s appeal.

DeKalb County Court of Appeals 12/08/20
Louise Helen Pack Dover v. Norris Lee Dover
E2019-01891-COA-R3-CV
Authoring Judge: Judge Kristi M Davis
Trial Court Judge: Judge Clarence Pridemore, Jr.

Following a bench trial, the Chancery Court for Knox County (“trial court”) granted the divorce of Louise Helen Pack Dover (“Wife”) from Norris L. Dover (“Husband”) on the basis of inappropriate marital conduct. The trial court classified several real properties, largely purchased by Husband before the marriage, as Husband’s separate assets and concluded that no transmutation occurred during the marriage. The trial court also classified Husband’s 401(k), which was established before the marriage, as a marital asset and ordered the parties to divide it equally. The trial court then awarded Wife alimony in solido in the amount of $5,000.00 per month for thirty-six months. We conclude that the trial court erred in the classification of the real properties at issue as well as its classification of Husband’s 401(k). Because the division of marital property will change substantially as a result of this opinion, we vacate the trial court’s division of the parties’ marital estate and the alimony award. We therefore reverse in part, affirm in part, vacate in part, and remand for further proceedings.

Knox County Court of Appeals 12/08/20
Susan Durham v. Estate of Gus Losleben, et al.
W2019-01623-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Charles C. McGinley

A Hardin County firefighter and Appellant’s husband died after their vehicles collided. Appellant alleged that the firefighter had negligently caused the accident, and thus filed tort claims against Hardin County under a theory of vicarious liability and Tennessee’s Governmental Tort Liability Act. She filed her claims more than one year after the accident, so the trial court dismissed them as barred by the applicable one-year statute of limitations. She appeals, and we affirm.

Hardin County Court of Appeals 12/08/20
American Board of Craniofacial Pain v. American Board Of Orofacial Pain
M2018-01696-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

Two corporations entered into merger discussions. Later, one corporation sued the other claiming that an agreement to merge had been reached through the exchange of emails. The plaintiff corporation requested specific performance of the alleged merger agreement and damages. On cross-motions for summary judgment, the court concluded on the undisputed facts that there was no meeting of the minds and, thus, no agreement to merge. We affirm.

Davidson County Court of Appeals 12/07/20
Jace Pennington v. Kawani J. White
E2019-02005-COA-R3-CV
Authoring Judge: Judge Frank G. Clement Jr., P.J., M.S.
Trial Court Judge: Judge Gregory S. McMillan

This appeal arises from a judgment finding the defendant violated a protective order and a subsequent judgment extending the protective order for one year. Specifically, the defendant seeks to set aside these judgments based on inadequate notice. Although the defendant appeared in court for a related hearing and admits that all notices were sent to her at the proper address, she contends on appeal that, because she was a frequent traveler, she was unaware of the two hearings at issue in this appeal until after they occurred. We have determined the defendant waived the notice issue by failing to bring it to the attention of the trial court and by failing to comply with Rule 27 of the Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals. Accordingly, we affirm the judgment of the trial court. Additionally, we have determined the appeal was frivolous; therefore, the plaintiff is entitled to recover the reasonable and necessary expenses and attorney’s fees incurred in this appeal in accordance with Tenn. Code Ann.
§ 27-1-122. Accordingly, we remand for the trial court to make the appropriate award.

Knox County Court of Appeals 12/04/20
In Re Brayden E. Et Al.
M2020-00622-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas C. Faris

The father of two children appeals the termination of his parental rights, contending the petitioner failed to prove a ground for termination or that termination was in the children’s best interests by clear and convincing evidence. In 2018, the juvenile court placed the children in foster care and declared them dependent and neglected upon the petition of the Department of Children’s Services. The court then ratified a permanency plan that had several requirements for the father, including submitting to and passing random drug screens, resolving pending legal issues, and avoiding new criminal charges. Over the next two years, the father only completed some of the action steps and incurred new criminal charges for which he was incarcerated. In September 2019, the Department filed a petition to terminate the father’s rights on the grounds of abandonment by exhibiting a wanton disregard for the children’s welfare and by failure to visit, failure to comply with the permanency plan, and failure to manifest an ability and willingness to assume custody of and financial responsibility for the children. After the final hearing, the court found that the Department proved all four grounds and that termination was in the children’s best interests. This appeal followed. Following a detailed review of the record, we affirm the trial court’s findings in all respects and affirm the termination of the father’s parental rights.

Franklin County Court of Appeals 12/04/20
Federal National Mortgage Association v. Fasil Kebede
W2019-00227-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Yolanda R. Kight

The transferee of real property following a foreclosure sale filed a forcible entry and detainer action against the occupier. After the transferee prevailed in the general sessions court, the occupier appealed to circuit court. The transferee then filed a motion for summary judgment, which the trial court granted. Because the undisputed facts demonstrate that the transferee is entitled to judgment as a matter of law, we affirm.

Shelby County Court of Appeals 12/02/20
Kevin E. Evans, Et Al. v. Ricki K. Croxdale, Et Al.
E2019-01880-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge O. Duane Slone

This appeal concerns the trial court’s summary judgment dismissal of the plaintiff’s uninsured motorist insurance claim filed against his employer following a car accident. We affirm the judgment of the trial court.

Sevier County Court of Appeals 12/02/20
REI Nation, LLC v. Latasha Tennial
W2020-00223-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Felicia Corbin-Johnson

In this forcible entry and detainer case, REI Nation, LLC (“REI”) filed a detainer warrant against LaTasha Chanta Tennial (“Tennial”) in the General Sessions Court for Shelby County (“the General Sessions Court”) to obtain possession of certain foreclosed-upon real estate (“the Property”) it had purchased. The General Sessions Court entered judgment for REI. Tennial appealed to the Circuit Court for Shelby County (“the Circuit Court”) for trial de novo. The Circuit Court found for REI, as well. Tennial appeals to this Court. Discerning no reversible error in the Circuit Court’s judgment, we affirm.

Shelby County Court of Appeals 12/01/20
Joe David Erwin, et al. v. Great River Road Supercross, LLC
W2019-01005-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Tony A. Childress

In this dispute over the sale of real and personal property, the buyers complain that they did not receive all the personal property described in the bill of sale and that the real property was encumbered. Their complaint asserted claims for intentional misrepresentation, breach of the covenant against encumbrances, and breach of contract. After a bench trial, the trial court awarded the buyers damages for breach of contract and intentional misrepresentation. Both sides appealed. We conclude that the evidence preponderates against the trial court’s finding that the buyers’ reliance on the misrepresentation in the warranty deed was reasonable. In all other respects, we affirm.

Dyer County Court of Appeals 12/01/20
Ashley Joell Lindsley v. Philip J. Lindsley
M2019-00767- COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joseph A. Woodruff

This is an appeal from a divorce proceeding involving a short-term marriage with minor children.  In conjunction with its divorce judgment, the trial court designated the mother as the primary residential parent, allowed her to relocate to Mississippi, and awarded her both transitional alimony and alimony in solido.  Father now raises several issues for our review on appeal.  While we affirm the trial court’s judgment pertaining to the parties’ parenting plan and its determination about the children’s best interests, we vacate a component of the in solido award given to the mother in a purported attempt to equalize the division of the marital estate.  We further vacate the award of transitional alimony and remand the case for that issue to be reconsidered by the trial court.  The balance of the judgment is affirmed.  The mother’s request for an award of attorney’s fees on appeal is granted.

Williamson County Court of Appeals 11/30/20
State of Tennessee Ex Rel. Kimberly C. v. Gordon S.
M2019-01499-COA-R
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge David Howard

A legal parent appeals a child support award.  He claims his voluntary acknowledgment of paternity for the child should be rescinded due to a material mistake of fact.  He also claims that requiring him to pay child support would violate public policy because he is not the biological father of the child.  Upon our review, we conclude that the legal parent failed to prove the existence of a material mistake of fact that would warrant rescission of the voluntary acknowledgement of paternity.  We also conclude that ordering a legal parent to pay child support is consistent with public policy.  So we affirm.

Sumner County Court of Appeals 11/30/20
Manchester Hotel Hospitality, LLC Et Al. v. City of Manchester, Tennessee, Et Al
M2019-02061-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Vanessa Jackson

A city board of zoning appeals granted a variance request on September 17, 2018, and the city codes director checked a box on the variance application indicating that the request was approved.  At its next meeting, on October 15, 2018, the board approved the minutes from its September 17, 2018 meeting.  Two companies that opposed the variance filed a sworn petition for writ of certiorari on December 5, 2018, and the defendants filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Tenn. Code Ann.
§ 27-9-102, a statute providing that such actions must be filed within sixty days of the entry of the board decision.  The trial court granted the defendants’ motion to dismiss.  Because we have determined that, under the facts of this case, the board’s decision was not entered until the approval of the minutes at the October 15, 2018 board meeting, we conclude that the petition for certiorari was timely filed.  We, therefore, reverse the decision of the trial court.

Coffee County Court of Appeals 11/30/20
Southeast Diamond Jubilee Investments, LLC, as Successor To Kawal, Inc., D/B/A Gas Express v. UMA Shiv, Inc.
E2019-02141-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge David R. Duggan

In this action involving a commercial lease, the lessor corporation filed an unlawful detainer complaint in the Blount County General Sessions Court (“general sessions court”) seeking termination of the lease and eviction of the lessee corporation, which operated a gas station on the leased premises. Following a bench trial, the general sessions court entered a judgment dismissing the complaint with prejudice. On appeal to the Blount County Circuit Court (“trial court”), the lessor filed an amended complaint alleging several breaches of contract by the lessee. Following a four-day bench trial, the trial court dismissed the lessor’s complaint upon finding, inter alia, that the lessee had not materially breached the lease. Discerning no reversible error, we affirm.

Blount County Court of Appeals 11/30/20
Mr. Appliance, LLC v. Appliance Services Of Tennessee, LLC, Et Al.
M2020-00456-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Michael Binkley

A franchisor sued a franchisee in Texas and obtained a default judgment, which it sought to enroll in Tennessee.  The franchisor moved for summary judgment, and the franchisee asserted there was a genuine issue of material fact with regard to whether it had been served properly in the Texas action.  The trial court granted the franchisor’s motion, concluding that the Texas judgment was entitled to full faith and credit in Tennessee, and awarded the franchisor its attorneys’ fees.  On appeal, we affirm the trial court’s award of summary judgment but reverse the award of attorneys’ fees.

Williamson County Court of Appeals 11/30/20