Court of Appeals Opinions

Format: 08/19/2019
Format: 08/19/2019
Theophilus Ebulueme v. Fred E. Onoh
M2018-00742-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Ross H. Hicks

The Circuit Court for Montgomery County (“the Trial Court”) entered a default judgment in favor of Theophilus Ebulueme (“Plaintiff”) in this breach of contract action. Fred E. Onoh (“Defendant”) filed a motion pursuant to Tenn. R. Civ. P. 60 to vacate the judgment asserting that Defendant was not properly served and never received notice of the suit. The Trial Court denied the Rule 60 motion. Defendant appealed to this Court. We find and hold that Plaintiff did not achieve personal service and that the service by publication that was attempted was improper. As such, Plaintiff failed to properly serve Defendant rendering the default judgment void. We, therefore, vacate the Trial Court’s August 7, 2017 order granting a default judgment and the Trial Court’s order denying Defendant’s Rule 60 motion.

Montgomery County Court of Appeals 05/24/19
Ralph Salas Et Al. v. Marshall Steven Cole, Jr.
E2018-01082-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Frank V. Williams, III

Eight owners of real property in the Daniels Estates Subdivision in Roane County, filed suit seeking equitable relief and money damages from defendants, Marshall Steven Cole, Jr. and his wife, Sarah Cole, after defendants allegedly blocked and/or otherwise made impassable a disputed drive known as “Kudzu Drive.” In a later-filed separate action, two additional owners of property in the subdivision filed suit seeking equitable relief and money damages from Mr. Cole individually. Collectively, plaintiffs claim Kudzu Drive is part of a “joint private permanent easement” dedicated to the use of all of the tract owners in the subdivision. Defendants, on the other hand, claim that the easement consists of a road known as “Daniel Road,” of which Kudzu Drive is not a part. Kudzu Drive, defendants allege, is an independent drive situated exclusively on their property. After a bench trial, the court held that Daniel Road and Kudzu Drive encompass one subdivision road dedicated to the use of all subdivision residents. It held that all right, title, and interest in the disputed drive is vested in the homeowner’s association by virtue of an 1 These two matters were consolidated at trial and for the purpose of oral argument before us. 2 The last name of the subdivision’s creator is “Daniel.” However, the subdivision’s designation took on the plural “Daniels.” 05/24/2019 -2- after-the-fact quitclaim deed executed to it by the subdivision’s previous owner and developer, Mrs. Melvia Mae “Peggy” Daniel. The court enjoined defendants from preventing the homeowner’s association from improving or opening “Kudzu Drive.” The court ordered defendants to remove two gates, a berm, and any other obstructions preventing ingress and egress along Kudzu Drive. The court awarded “damages to all of the [p]laintiffs for [s]lander of [t]itle.” The court awarded $14,133.79 in attorney’s fees and expenses to each set of plaintiffs in the consolidated matters. The court awarded an additional $750 to plaintiffs in Eric Lovett et al. v. Marshall Steven Cole, Jr. et al. for attorney’s fees and expenses incurred in preparing the final order for the trial court’s signature. Defendants appeal. We reverse the trial court’s judgment in which the court decreed that the property referred to as Kudzu Drive is a part of the joint private permanent easement dedicated to the use of all of the tract owners. We hold, instead, that Kudzu Drive is an independent drive situated exclusively on the defendants’ property. In view of our decision, we also reverse all monetary awards of the trial court.

Roane County Court of Appeals 05/24/19
Eric Lovett Et Al. v. Marshall Steven Cole, Jr. Et Al.
E2018-00719-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Frank V. Williams, III

Eight owners of real property in the Daniels2 Estates Subdivision in Roane County, filed suit seeking equitable relief and money damages from defendants, Marshall Steven Cole, Jr. and his wife, Sarah Cole, after defendants allegedly blocked and/or otherwise made impassable a disputed drive known as “Kudzu Drive.” In a later-filed separate action, two additional owners of property in the subdivision filed suit seeking equitable relief and money damages from Mr. Cole individually. Collectively, plaintiffs claim Kudzu Drive is part of a “joint private permanent easement” dedicated to the use of all of the tract owners in the subdivision. Defendants, on the other hand, claim that the easement consists of a road known as “Daniel Road,” of which Kudzu Drive is not a part. Kudzu Drive, defendants allege, is an independent drive situated exclusively on their property. After a bench trial, the court held that Daniel Road and Kudzu Drive encompass one subdivision road dedicated to the use of all subdivision residents. It held that all right, title, and interest in the disputed drive is vested in the homeowner’s association by virtue of an after-the-fact quitclaim deed executed to it by the subdivision’s previous owner and developer, Mrs. Melvia Mae “Peggy” Daniel. The court enjoined defendants from preventing the homeowner’s association from improving or opening “Kudzu Drive.” The court ordered defendants to remove two gates, a berm, and any other obstructions preventing ingress and egress along Kudzu Drive. The court awarded “damages to all of the [p]laintiffs for [s]lander of [t]itle.” The court awarded $14,133.79 in attorney’s fees and expenses to each set of plaintiffs in the consolidated matters. The court awarded an additional $750 to plaintiffs in Eric Lovett et al. v. Marshall Steven Cole, Jr. et al. for attorney’s fees and expenses incurred in preparing the final order for the trial court’s signature. Defendants appeal. We reverse the trial court’s judgment in which the court decreed that the property referred to as Kudzu Drive is a part of the joint private permanent easement dedicated to the use of all of the tract owners. We hold, instead, that Kudzu Drive is an independent drive situated exclusively on the defendants’ property. In view of our decision, we also reverse all monetary awards of the trial court.

Roane County Court of Appeals 05/24/19
Susan Lynn Slagle v. Robert Wayne Slagle
E2018-01633-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Larry M. Warner

Plaintiff Susan Lynn Slagle (Wife) filed this divorce action in May of 2018. Defendant Robert Wayne Slagle (Husband) did not file an answer or other responsive pleading. Wife moved for a default judgment. A hearing was set for August 2, 2018. Husband appeared pro se at the hearing, still having filed nothing with the trial court. The trial court, without hearing any proof, granted Wife a default judgment on the ground of inappropriate marital conduct. Shortly thereafter, the trial court entered its final judgment dividing the marital property. Husband filed a Tenn. R. Civ. P. 60.02(1) motion for relief, asking the trial court to set aside the judgment. The trial court denied Husband’s motion. On appeal, we hold that Tenn. Code Ann. § 36-4-114 (2017) requires a trial court to hear proof of the facts alleged before granting a divorce on any ground other than irreconcilable differences, in the absence of a valid stipulation between the parties. Because the trial court did not in this case, we vacate the judgment and remand for a trial.

Cumberland County Court of Appeals 05/24/19
Lucas D. Bottorff, Et Al. v. Anne A. Sears, Et Al.
M2018-01232-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge James G. Martin, III

After the administrator of an estate obtained a judgment vesting title to real property in the estate, the administrator filed a detainer summons against the decedent’s daughter in general sessions court seeking possession of the property. The general sessions court determined that the estate was entitled to possession of the property, and the decedent’s daughter appealed to the circuit court. The circuit court granted possession of the property to the estate and ordered the decedent’s daughter to vacate the premises within thirty days. The decedent’s daughter appealed, and we affirm the trial court’s judgment.

Williamson County Court of Appeals 05/23/19
Jack R. Owen Revocable Trust v. City of Germantown Tennessee, et al.
W2018-01662-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Walter L. Evans

Appellee Germantown Planning Commission voted to change the zoning designation of property held by Appellant trust. In response, Appellant filed a petition for common law writ of certiorari seeking review of the Planning Commission’s decision. Appellees moved for dismissal of Appellant’s petition for writ of certiorari under Tennessee Rule of Civil Procedure 12.02(1). Following a hearing on Appellant’s request for temporary injunction to halt Appellee City of Germantown from taking any action on the Planning Commission’s recommendation for rezoning, the trial court granted Appellees’ motion to dismiss finding that it lacked subject-matter jurisdiction because the Planning Commission’s recommendation did not constitute a final judgment for purposes of review under Tennessee Code Annotated Section 27-9-101. On appeal, Appellant argues that the trial court’s adjudication of the motion to dismiss was premature because Appellant had no opportunity to respond to the motion. Appellant also contends that the grant of the motion to dismiss was error because, under Tennessee Code Annotated sections 13-7-203(b) and 13-7-204, the Planning Commission’s decision was a final approval of the rezoning as opposed to a mere recommendation. Discerning no error, we affirm.

Shelby County Court of Appeals 05/23/19
Karen Nisenbaum v. Michael Nisenbaum
M2017-02330-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Joseph Woodruff

In this divorce action, the trial court awarded Wife transitional alimony of $2,000 per month for 24 months and $1,000 per month for the next 24 months; the court denied her requests for alimony in futuro and for alimony in solido to cover the cost of future dental care. Finding no error, we affirm the judgment.  

Williamson County Court of Appeals 05/23/19
In Re Lennon R.
M2018-00541-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Donna Scott Davenport

This is an appeal from the trial court’s order that: (1) designated Father/Appellee as primary residential parent; (2) awarded him sole decision-making authority; and (3) set visitation. Mother/Appellant appeals: (1) the designation of Father as primary residential parent; (2) the award of sole decision-making authority to Father; and (3) her number of parenting days with the child. Because the trial court failed to make any findings regarding decision-making authority, we vacate the trial court’s award of sole decision-making authority to Father and remand for findings of facts and conclusions of law related to same. We also conclude that the trial court abused its discretion when it failed to maximize Mother’s parenting time with the child. Therefore, we reverse the trial court’s visitation award and remand for a more equal award of parenting time. Finally, we reverse the trial court’s order concerning child support and remand for a recalculation of support consistent with the new parenting schedule entered on remand. The trial court’s order is otherwise affirmed.

Rutherford County Court of Appeals 05/23/19
Rocky McElhaney Et Al. v. Hughes & Coleman PLLC Et Al.
M2019-00124-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Charles K. Smith

The defendants have appealed from the trial court’s rulings granting the plaintiffs a partial summary judgment and directing the entry of a final judgment under Tennessee Rule of Civil Procedure 54.02. Because the order appealed was not properly entered under Tennessee Rule of Civil Procedure 58 and because the order is not appropriate for certification as final under Tennessee Rule of Civil Procedure 54.02, we dismiss the appeal

Wilson County Court of Appeals 05/23/19
Stacy Renee Carter v. Antonio Elmore Carter
E2019-00655-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Tammy M. Harrington

This is an appeal from a final order in the parties’ divorce proceeding entered on April 18, 2017. The Notice of Appeal, filed with the Appellate Court Clerk on April 16, 2019, was accompanied by a motion seeking leave to file it late, presumably pursuant to certain provisions in Rule 4(a) of the Tennessee Rules of Appellate Procedure. Because the Notice of Appeal was not timely filed, and because there is no authority in Rule 4(a) for a waiver of the timely filing of a Notice of Appeal in a civil case, we do not have jurisdiction to consider this appeal.

Blount County Court of Appeals 05/23/19
Robert Johnson v. Memphis Guitar Spa, LLC
W2018-00665-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

After losing in general sessions court, Plaintiff attempted to appeal the judgment to the circuit court. Defendant filed a motion to dismiss and a counterclaim in the circuit court. Plaintiff’s appeal was thereafter dismissed for lack of subject matter jurisdiction because it was not perfected in a timely manner. The circuit court then entered a default judgment against the Plaintiff based upon Plaintiff’s failure to respond to the counterclaim. Plaintiff appeals, arguing that the circuit court lost subject matter jurisdiction over the counterclaim upon the dismissal of the appeal. Discerning no error, we affirm.

Shelby County Court of Appeals 05/23/19
Patrick Masserano v. Alyse Masserano
W2018-01592-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Jerry Stokes

Husband and Wife both appeal the trial court’s ruling with regard to alimony. Based on Husband’s failure to adequately support his arguments with legal authority, his issues are waived. We affirm the trial court’s decision to exclude Wife’s affidavit of income and expenses. We vacate the trial court’s alimony award and remand for the entry of an order that contains specific findings of fact as to Wife’s need and Husband’s ability to pay.

Shelby County Court of Appeals 05/22/19
Terry Wallace v. City Of Lewisburg, Tennessee
M2018-01572-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge M. Wyatt Burk

Former employee of the City of Lewisburg brought an action pursuant to the Tennessee Human Rights Act challenging his termination. The trial court held a bench trial and, a year and a half later, entered a Memorandum Opinion and Order, finding in favor of defendant and dismissing the action. The judge who tried the case retired shortly thereafter. Five months later, the employee filed a motion under Tennessee Rule of Civil Procedure 60.02, seeking to have the order dismissing the complaint set aside on the grounds that his counsel did not receive the order dismissing the case and that, because the order did not comply with Rule 58, it was not a final order. The motion was heard by a new judge, who ruled that the order substantially complied with Rule 58 and was therefore an effective, final order. The employee appeals. Upon our review, we determine that the order dismissing the case did not comply with Rule 58 and was not a final order. Accordingly, we vacate the judgment and remand the case for entry of a final order that complies with Rule 58.

Marshall County Court of Appeals 05/21/19
Earl Gene Davis v. Civil Service Commission Of The Metropolitan Government Of Nashville And Davidson County, Et Al. - Concurring In Part
M2018-01130-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor William E. Young

The majority opinion concludes that the Commission’s finding that Officer Davis violated both MNPD Policy § 4.20.040(B) and MNPD Policy § 4.20.040(K) was neither arbitrary nor capricious and was supported by substantial and material evidence. In reaching its decision concerning MNPD Policy § 4.20.040(B), the majority essentially concludes that consideration of the public authority defense is irrelevant because the only question involved is whether Officer Davis committed the acts that constitute the offense outlined by Tennessee Code Annotated section 39-16-301(a), not whether Officer Davis would be able to assert any defense to criminal prosecution of that crime. 

Davidson County Court of Appeals 05/21/19
Earl Gene Davis v. Civil Service Commission Of The Metropolitan Government Of Nashville And Davidson County, Et Al.
M2018-01130-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor William E. Young

This appeal arises from the Metropolitan Government of Nashville Civil Service Commission’s decision to suspend and demote Appellant, a police officer with Metropolitan Nashville Police Department. The department’s decision to suspend Appellant was affirmed by the administrative law judge, but the administrative law judge reversed the demotion. The Commission then reviewed the administrative law judge’s order and upheld the suspension but reinstated the demotion. On appeal to the Davidson County Chancery Court, the Commission’s decision was affirmed. Finding no error, we affirm the decision of the Chancery Court.

Davidson County Court of Appeals 05/21/19
April R. Burchfield v. D. Ryan Burchfield
M2017-01326-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Amy V. Hollars

Mother filed a petition for modification of the residential parenting schedule in a permanent parenting plan. Father filed a
counter-petition for modification of the permanent parenting plan seeking designation as the primary residential parent of the parties’ two children. After a hearing, the trial court granted Mother’s petition and reduced Father’s parenting time by thirty-seven days based on conduct by Father that necessitated limiting his residential parenting time. Father appealed. We affirm the trial court’s judgment in all respects.

Overton County Court of Appeals 05/21/19
Lisa Marie Paterson (Potter) v. Scott Paterson
E2018-00599-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John C. Rambo

This appeal involves a request for, inter alia, the modification of child support. Because the trial court failed to provide sufficient findings of fact and conclusions of law, we are unable to effectively review the issues raised on appeal. Therefore, we vacate the judgment of the trial court and remand for further proceedings.

Johnson County Court of Appeals 05/21/19
Jasmine Desiree Wightman v. Joshua Charles Wightman
E2018-01663-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Larry Michael Warner

In this appeal, the father challenges the trial court’s determination of the residential parenting schedule as it relates to visitation during the school term. Upon our review, we find that the trial court did not abuse its discretion.

Cumberland County Court of Appeals 05/21/19
In Re Raeshad B. - Concurring
M2018-00238-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Louis W. Oliver III

I concur in the result reached in this very difficult case.

Our holding that the record does not clearly and convincingly establish the grounds for termination means that we do not reach the question of what is in Raeshad’s best interest. The dismissal of the termination proceeding means that Mother and Raeshad retain the parent-child relationship and does not compel his return to her custody. Neither does it necessarily lead to the lack of involvement by the Guardians in his life; it is clear that Raeshad and the Guardians, along with their other children, have formed familial bonds.

Sumner County Court of Appeals 05/20/19
In Re Raeshad B.
M2018-00238-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Louis W. Oliver

Nearly three years after a child was placed with them by an unlicensed child placing agency, the child’s guardians petitioned to terminate the parental rights of the child’s parents. The chancery court found two statutory grounds for termination: abandonment by willful failure to visit and abandonment by willful failure to support. The court also found that termination of parental rights was in the child’s best interest. Only the child’s mother appeals. We conclude that the evidence was less than clear and convincing as to each of the alleged statutory grounds. So we reverse the termination of mother’s parental rights.

Sumner County Court of Appeals 05/20/19
Josiah Manual Davis v. Akira Hayes
M2019-00243-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Justin C. Angel

The father has filed a notice of appeal from a final judgment entered on January 7, 2019. Because the father did not file his notice of appeal within thirty days after entry of the judgment as required by Tenn. R. App. P. 4(a), we dismiss the appeal.

Franklin County Court of Appeals 05/20/19
Dialysis Clinic, Inc. Et Al. v. Kevin Medley, Et Al.
M2018-00399-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley, Jr.

The owner of four contiguous properties filed unlawful detainer actions against the entities that were occupying the properties. The owner did not name as defendants the individual who signed the lease or his company. A year and a half after the cases were filed, the lessee moved to intervene, claiming that it was entitled to intervene pursuant to Tenn. Rs. Civ. P. 24.01 and/or 24.02 and that it was a necessary party pursuant to Tenn. R. Civ. P. 19.01. The trial court denied the lessee’s motion on the grounds of prior suit pending and timeliness. The lessee appealed. Because the court failed to address the lessee’s claim that it was a necessary party, we are unable to address that argument on appeal. We vacate the trial court’s judgment and remand the case for further proceedings. 

Davidson County Court of Appeals 05/20/19
Charles Stinson, Et Al. v. David E. Mensel, Et Al.
M2017-02497-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Deanna Johnson

Charles Stinson and Glenda Stinson (“the Stinsons”) appeal the November 17, 2017 order of the Chancery Court for Hickman County (“the Trial Court”) expanding the injunctive relief granted in our Opinion in Stinson v. Mensel, No. M2016-00624-COA-R3-CV, 2017 WL 2972219 (Tenn. Ct. App. July 12, 2017), no appl. perm. appeal filed. We find and hold that the Trial Court lacked the authority to modify or revise the injunction entered by this Court in the first appeal of this case. We, therefore, vacate the portion of the Trial Court’s November 17, 2017 order modifying the injunction.

Hickman County Court of Appeals 05/17/19
Shane Maddox Bruce v. Carolyn Marsh Jackson Et Al.
E2018-01997-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Kristi M. Davis

The petitioner commenced this action in the Knox County Circuit Court (“trial court”), naming as respondents his mother, his brother, and a purported family trust. He alleged, inter alia, that his mother and brother had “brought about” the wrongful death of his father and had mishandled trust funds. Additionally, the petitioner requested “financial separation” from familial assets, a money judgment, and injunctive relief to freeze familial assets. Following a hearing, the trial court entered an order dismissing this action with prejudice upon finding that the trial court lacked jurisdiction because all parties involved in the matter resided in Campbell County and all acts forming the basis for the petitioner’s claims had occurred in Campbell County. The petitioner has appealed. We determine that although the trial court correctly found that it lacked subject matter jurisdiction, the court erred by dismissing this action with prejudice. We further determine that, pursuant to Tennessee Code Annotated § 16-1-116 (2009), this matter should be transferred to the court wherein jurisdiction lies. We therefore vacate the portion of the trial court’s judgment dismissing the case with prejudice and remand for entry of an order transferring this action to the Campbell County Circuit Court.

Knox County Court of Appeals 05/17/19
Stephen Simpson Et Al. v. William B. Simpson
E2018-01686-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Frank V. Williams, III

Siblings appeal the trial court’s refusal to set aside a deed conveying real property from their decedent father to their brother. The siblings also appeal the trial court’s denial of their post-trial motion to consider purported newly discovered evidence. Discerning no error, we affirm.

Loudon County Court of Appeals 05/17/19