Court of Appeals Opinions

Format: 11/28/2022
Format: 11/28/2022
In Re Cayson C., Et Al.
E2022-00448-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Steven Lane Wolfenbarger

This appeal concerns the termination of a mother’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Grainger County (“the Juvenile Court”) seeking to terminate the parental rights of Pamela C. (“Mother”) to her minor children Cayson S.-C. and Chaston C. (“the Children,” collectively). After a hearing on the termination petition, the Juvenile Court entered an order terminating Mother’s parental rights to the Children. Mother appeals. We vacate the ground of failure to manifest an ability and willingness to assume custody because the Juvenile Court failed to make specific findings regarding the second prong of that ground. We find that all other grounds found by the Juvenile Court were proven by clear and convincing evidence. We find further, as did the Juvenile Court, that termination of Mother’s parental rights is in the Children’s best interest. We affirm as modified.

Grainger County Court of Appeals 11/28/22
Lorenta Hogue v. P&C Investments, Inc. et al.
M2021-01335-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Anne C. Martin

This is an appeal from a jury verdict holding a real estate agent liable for common law negligence, intentional misrepresentation and fraud, negligent misrepresentation, and violation of the Tennessee Real Estate Broker License Act for his failure to disclose flooding and water intrusion issues at a home he had listed for sale. The jury awarded the plaintiff, a first-time home buyer, compensatory and punitive damages. The real estate agent appeals the jury’s verdict holding him liable for intentional misrepresentation and fraud, the admission of certain expert testimony, the admission of opposing counsel’s alleged prejudicial statements during closing argument, the amount of compensatory damages, and the award of and amount of punitive damages. Finding that the trial court failed to follow the appropriate procedures in reviewing the jury’s award of punitive damages, we vacate the award of punitive damages and remand the case for further proceedings. In all other respects, the judgment of the trial court is affirmed.

Davidson County Court of Appeals 11/23/22
In Re Legion S.
E2021-01198-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Brian J. Hunt

The Tennessee Department of Children’s Services filed a petition to terminate a mother’s parental rights to her daughter based on severe child abuse and failure to manifest an ability and willingness to assume custody of the child. The trial court granted the petition, finding that the two statutory grounds were proven by clear and convincing evidence and that terminating the mother’s parental rights is in the best interests of the child. We affirm.

Anderson County Court of Appeals 11/22/22
In Re Masson S.
E2021-01196-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Brian J. Hunt

The Tennessee Department of Children’s Services filed a petition to terminate a mother’s parental rights to her son based on abandonment by failure to provide a suitable home, abandonment by an incarcerated parent, substantial noncompliance with permanency plans, failure to remedy persistent conditions, and failure to manifest an ability and willingness to assume custody of the child. The trial court granted the petition, finding that the five statutory grounds were proven by clear and convincing evidence and that terminating the mother’s parental rights is in the best interests of the child. We affirm.

Anderson County Court of Appeals 11/22/22
Randolyn Laferney v. Kim Livesay Et Al
E2021-00812-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge E. Lauderback

Plaintiff Randolyn Laferney filed a tort action against several defendants, alleging causes of action for, inter alia, libel, civil conspiracy, and malicious prosecution. The allegations arose primarily out of social media comments and posts made by the defendants regarding Ms. Laferney. On December 10, 2020, the trial court dismissed the legal action as to some, but not all, of the defendants pursuant to Tennessee’s anti-SLAPP statute, the Tennessee Public Participation Act (“the TPPA” or “the Act”). Several months later, after the trial court awarded the dismissed defendants their attorney’s fees, Ms. Laferney appealed to this Court. Because we conclude that the notice of appeal was untimely pursuant to the TPPA, the appeal is dismissed.

Washington County Court of Appeals 11/22/22
In Re Estrella A. et al.
M2022-00163-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Tim Barnes
Mother appeals the termination of her parental rights on five grounds, including severe
child abuse. Because we conclude that clear and convincing evidence supports the grounds
for termination and that termination is in the children’s best interests, we affirm.
Montgomery County Court of Appeals 11/21/22
Family Trust Services LLC et al v. Green Wise Homes LLC et al
M2021-01350-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Anne C. Martin
This appeal involves claims by four plaintiffs against an attorney, his business partner,
and the attorney’s and partner’s limited liability company. The plaintiffs claim that the
defendants fraudulently redeemed properties sold via tax sales, utilizing forged or
fraudulent documents. Following a bifurcated jury trial, the plaintiffs’ claims were
dismissed except for the claim of one plaintiff against the attorney defendant, which
resulted in a verdict for damages in the amount of $53,450. The trial court subsequently
denied a motion for new trial filed by the plaintiffs. The plaintiffs have appealed. Upon
thorough review, we conclude that the trial court’s denial of the plaintiffs’ motion for
new trial should be reversed. However, we affirm the trial court’s pre-trial determination
that judgment on the pleadings was appropriate concerning the plaintiffs’ claims of unjust
enrichment and “theft” of the right of redemption. We further affirm (1) the trial court’s
grant of summary judgment in favor of the defendants concerning the plaintiffs’ claim
based on Tennessee Code Annotated § 66-22-113 and (2) the court’s denial of the
defendant company’s motion to dissolve the lien lis pendens on its property. The
remaining issue raised by the defendants is pretermitted as moot. We remand this matter
to the trial court for a new trial.
Davidson County Court of Appeals 11/21/22
Abraham A. Augustin v. Bradley County Sheriff's Office Et Al.
E2021-00345-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Lawrence Howard Puckett

This is the second appeal of this forfeiture action. Appellant seeks the return of seized property and damages under Tennessee Code Annotated section 40-33-215(b). In Augustin v. Bradley County Sheriff’s Office, et al., 598 S.W.3d 220 (Tenn. Ct. App. Oct. 10, 2019), this Court affirmed the trial court’s dismissal of Mr. Augustin’s claim for return of the seized property but remanded the case for further proceedings on the section 40-33- 215(b) question. The trial court denied Appellant’s request for damages under section 40- 33-215(b). Because Appellant is not a prevailing party, he does not meet the threshold requirement for an award of damages under section 40-33-215(b). Affirmed and remanded.

 

Bradley County Court of Appeals 11/21/22
Balmoral Shopping Center, LLC v. City of Memphis ET AL.
W2022-01488-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Carol J. Chumney

This is an appeal of a trial judge’s denial of a Tennessee Supreme Court Rule 10B motion for the recusal of the trial judge from the case. We affirm the trial court’s denial of the recusal motion.

Shelby County Court of Appeals 11/18/22
Sarah Boren v. David Wade, Jr.
W2020-01560-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jerry Stokes

This case involves a post-divorce modification of the parties’ parenting plan for their minor child. The trial court suspended Appellant/Father’s visitation. Because the trial court failed to make any findings concerning the child’s best interest, Tenn. R. Civ. P. 52.01, Tenn. Code Ann. §§ 36-6-404(b), 36-6-106(a), we vacate the trial court’s order.

Shelby County Court of Appeals 11/18/22
Jennifer Gaby v. Tony Gaby
E2022-00217-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Thomas J. Wright

This is the second appeal of this action concerning the father’s petition to modify the permanent parenting plan for his two children. In the first appeal, we remanded the case back to the trial court for submission of additional findings of fact and conclusions of law. The father now appeals the decision on remand. We vacate the order of the trial court and remand for entry of a new permanent parenting plan for the remaining minor child.

Hamilton County Court of Appeals 11/17/22
Vanessa Colley v. John S. Colley, III
M2021-00731-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Philip E. Smith

Appellant/Husband voluntarily nonsuited his post-divorce lawsuit involving issues of alimony and the parties’ alleged settlement of an IRS debt. Appellee/Wife moved for an award of her attorney’s fees on alternative grounds, i.e., the abusive lawsuit statute, Tenn. Code Ann. § 29-41-106; the parties’ MDA; and Tennessee Code Annotated section 36-5- 103(c). The trial court granted Wife’s motion and entered judgment for her attorney’s fees and costs. The trial court specifically held that Husband’s lawsuit was not abusive, and Wife does not raise this as an issue on appeal. As such, we conclude that she is not entitled to her attorney’s fees under the abusive lawsuit statute. As to her claim for attorney’s fees and costs under the MDA and Tennessee Code Annotated section 36-5-103(c), both grounds require that Wife be a “prevailing party” in the underlying lawsuit. Because Husband took a voluntary nonsuit, neither party prevailed in the action, and Wife is not entitled to her attorney’s fees and costs. Reversed and remanded.

Davidson County Court of Appeals 11/17/22
In Re Trust of Katherine D. Graham
M2021-00967-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge David Randall Kennedy
Decedent created a trust and named one of the beneficiaries and Appellee, a third-party
bank, as co-trustees. The trust beneficiaries petitioned for Appellee’s removal and for the
substitution of another beneficiary as co-trustee. The petitioners also sought an order
directing Appellee to reimburse the trust for fees paid to Appellee as co-trustee. The trial
court held that Appellee administered the trust diligently and without any malfeasance,
misfeasance, or non-feasance. As such, the trial court implicitly found that Appellee was
entitled to its fees. The trial court further found that it would violate a material purpose of
the trust to appoint, as co-trustee, another related beneficiary. Ultimately, the trial court
declined to remove Appellee and to substitute another beneficiary as co-trustee. Appellant
is the only petitioner/beneficiary to appeal. Although we conclude that the trial court erred
in its material purpose finding, for reasons discussed below, we affirm the trial court’s
decision not to remove Appellee as co-trustee. Further, we affirm the trial court’s denial
of the petitioners’ request that Appellee reimburse the trust for its fees. Appellee’s motion
for appellate attorney’s fees is denied.
Davidson County Court of Appeals 11/17/22
Lori S. Fernandez v. Tennessee Department of Revenue
M2021-01417-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Thomas W. Brothers

Lori S. Fernandez (“Appellant”) was employed by the Tennessee Department of Revenue from 2014 until March 6, 2020, when she resigned. Following her resignation, Appellant sued the Department and several of its employees (the “Appellees”) for various causes of action including, inter alia, racial and disability discrimination. Appellees filed a motion to dismiss which the trial court granted. Thereafter, Appellant filed a Tenn. R. Civ. P. 59 motion to alter or amend the trial court’s order, as well as an amended complaint. The trial court denied the motion to alter or amend and declined to address the outstanding amended complaint. Appellant timely appealed to this court. We conclude that the order appealed from is non-final. Accordingly, this Court lacks subject matter jurisdiction, and the appeal must be dismissed.

Davidson County Court of Appeals 11/16/22
First Bank F/D/B/A Northwest Georgia Bank v. Mountain Apartments, LLC Et Al.
E2021-01433-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John B. Bennett

The plaintiff bank appeals the trial court’s summary dismissal of its breach of contract action against the defendants pursuant to the law in Georgia. We affirm.

Hamilton County Court of Appeals 11/16/22
Kevin J. McNeill v. Blount Memorial Hospital Incorporated, Et Al.
E2022-00209-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge David R. Duggan

The pro se plaintiff appeals the trial court’s summary judgment dismissal of his action against the defendant hospital and its Chief Executive Officer. The trial court also granted the hospital CEO’s motion for a reasonable award of attorney fees and costs in defending against the lawsuit in his personal capacity pursuant to Tennessee Code Annotated § 29- 20-113. We affirm.

Blount County Court of Appeals 11/16/22
Farm Credit Leasing Services Corp. v. Jeffrey Daniels
W2020-01576-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor William C. Cole

Lessee disputes the trial court’s denial of his emergency motion to continue leasing company’s summary judgment hearing. Lessee also appeals the trial court’s grant of summary judgment for leasing company, despite not responding to discovery requests or submitting evidence in opposition to summary judgment. Discerning no reversible error, we affirm.

Lauderdale County Court of Appeals 11/16/22
John E. Sullivan, Jr. GST Exempt Trust, et al. v. Frank G. Sullivan, et al.
W2022-00518-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kathleen N. Gomes

This case concerns the administration of a generation-skipping exempt trust. On review of the record, we conclude that the trial court’s order is not a final judgment, so as to confer subject matter jurisdiction on this Court. Specifically, the trial court did not adjudicate: (1) the parties’ requests for attorney’s fees; (2) Appellees’ prayer to remove David M. Sullivan as trustee; (3) Appellees’ motion to disqualify David M. Sullivan from acting as legal counsel for the Trust; or (4) Trustee’s motion for sanctions against Appellees and Appellees’ legal counsel. Appeal dismissed.

Shelby County Court of Appeals 11/14/22
In Re Elijah F.
M2022-00191-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Sheila D. J. Calloway

In this case involving termination of the mother’s parental rights to her child, the Davidson County Juvenile Court (“trial court”) determined that several statutory grounds for termination had been proven by clear and convincing evidence. The trial court further determined that clear and convincing evidence established that termination of the mother’s parental rights was in the child’s best interest. The mother has appealed. Having determined that three of the statutory grounds were not supported by sufficient findings of fact and conclusions of law, we reverse the trial court’s judgment with respect to the grounds of abandonment by an incarcerated parent by failure to support, abandonment by exhibiting wanton disregard for the child’s welfare prior to incarceration, and failure to manifest an ability and willingness to assume custody of or financial responsibility for the child. We affirm the trial court’s judgment in all other respects, including the termination of the mother’s parental rights.

Davidson County Court of Appeals 11/10/22
In Re Joseph D.
M2021-01537-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Amy Cook Puckett

This appeal involves a petition to terminate parental rights. The juvenile court found by clear and convincing evidence that six grounds for termination existed as to the mother: (1) abandonment for failure to provide a suitable home; (2) substantial noncompliance with a permanency plan; (3) persistent conditions; (4) severe child abuse; (5) failure to manifest an ability and willingness to assume custody or financial responsibility; and (6) mental incompetence. The juvenile court also found that termination was in the best interests of the child. The mother appeals. We affirm.

Hickman County Court of Appeals 11/10/22
In Re Kelyahna T.
E2022-01336-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Douglas T. Jenkins

The trial court clerk notified this Court that a final judgment has not been entered. This Court ordered the appellant to show cause why this appeal should not be dismissed. Appellant failed to respond to our show cause order. As no final judgment has been entered, this Court lacks jurisdiction to consider this appeal.

Hamblen County Court of Appeals 11/10/22
Toni Barrios et al. v. Charlie Simpkins et al.
M2021-01347-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Kelvin D. Jones

In this boundary line dispute in which the plaintiffs sought declaratory judgment concerning the boundary between the parties’ adjoining parcels of real property, the trial court, following a bench trial, entered declaratory judgment adopting the boundary line of a survey presented by the plaintiffs over other competing surveys. The court, however, did not adopt a boundary line alternatively propounded by the plaintiffs claiming adverse possession of a disputed portion of land. The court dismissed all other claims with prejudice, including, inter alia, competing trespass claims and the plaintiffs’ claims for intentional infliction of emotional distress and assault. The plaintiffs have appealed, raising issues regarding the trial court’s denial of their adverse possession and trespass claims and requests for damages and injunctive relief. We affirm the trial court’s dismissal of the plaintiffs’ adverse possession claim and the court’s declaration of the parties’ boundary line. However, determining that the trial court erred in applying an intent to trespass as a necessary element of civil trespass, we vacate the trial court’s dismissal of the plaintiffs’ trespass claim. We remand for the trial court to (1) apply the proper intent standard for trespass to determine, with the boundary line as declared by the trial court, whether the defendants trespassed on the plaintiffs’ property; (2) if trespass occurred, determine the type(s) of damages to be awarded; and (3) if trespass occurred, set the amount of damages to be awarded with discretionary costs as appropriate. Discerning that the trial court made no findings regarding the plaintiffs’ request for injunctive relief, we also remand for consideration of that request based on relevant factors and entry of an order granting or denying injunctive relief with appropriate findings of fact. We affirm the trial court’s judgment in all other respects. We deem the plaintiffs’ and the defendants’ respective requests for attorney’s fees on appeal to be waived.

Cheatham County Court of Appeals 11/10/22
In Re Isaiah D.
W2021-01168-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Clayburn Peeples

A mother and stepfather filed a petition to terminate a father’s parental rights. The trial court dismissed the petition after finding that the mother and stepfather failed to prove by clear and convincing evidence the existence of any ground for termination. Because the trial court failed to make specific findings of fact in its order dismissing the petition, we vacate the order and remand for the trial court to enter an order making sufficient findings of fact.

Gibson County Court of Appeals 11/09/22
Alyona Forrest v. Oluseyi Kunnu
M2021-01458-COA-R3-JV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Robert C. Richardson

A father appeals the modification of a parenting plan. Because the order appealed does not resolve all of the claims between the parties, we dismiss the appeal for lack of a final judgment.

Maury County Court of Appeals 11/07/22
Larry Mark Mangum v. Laney Celeste Mangum
E2021-00285-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Douglas T. Jenkins

This appeal concerns a divorce. Larry Mark Mangum (“Husband”) sued Laney Celeste Mangum (“Wife”) for divorce in the Chancery Court for Hamblen County (“the Trial Court”). After a trial, the Trial Court entered its final judgment, which Wife appealed. In Mangum v. Mangum, No. E2018-00024-COA-R3-CV, 2019 WL 1787328 (Tenn. Ct. App. April 24, 2019) (“Mangum I”), we vacated the Trial Court’s judgment except as to the divorce itself. We remanded with instructions for the Trial Court to make findings of fact and conclusions of law that consider all of the relevant and applicable statutory factors guiding child custody and property division matters, respectively. On remand, the Trial Court entered a new final judgment in light of our Opinion in Mangum I. Wife appeals, arguing that the Trial Court erred in fashioning the permanent parenting plan concerning the parties’ two minor sons (“the Children”) as well as in its classification, valuation, and division of the parties’ property. Husband raises the separate issue of whether this appeal is frivolous. We find that the Trial Court, in considering all of the relevant statutory factors, complied with our instructions on remand. We find, inter alia, that the evidence does not preponderate against the Trial Court’s findings with respect to its application of the statutory factors.

Hamblen County Court of Appeals 11/07/22