Court of Appeals Opinions

Format: 02/27/2021
Format: 02/27/2021
Regina D. Gensci v. Cyrus W. Wiser
M2019-00442-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Larry B. Stanley

A husband filed a petition to retroactively reduce or terminate his alimony obligation, claiming he had no income during the relevant time period.  The husband also sought to recover payment from his former wife for half of the remaining marital debt based on his interpretation of the final divorce decree.  The trial court denied both requests.  We conclude that the evidence does not preponderate against the trial court’s finding that the husband’s ability to pay remained unchanged.  Based on the clear language of the final divorce decree and a subsequent agreed order, we also conclude that the wife was not responsible for the remaining debt.  So we affirm.

Rutherford County Court of Appeals 02/26/21
Carolyn Payne v. Maxine Bradley
M2019-01453-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kelvin D. Jones

Sisters filed counter-complaints related to the enforcement of a written contract. The trial court ruled that the contract was missing an essential term and therefore could not be enforced. The trial court, however, awarded the plaintiff a judgment in quantum meruit. We affirm.

Davidson County Court of Appeals 02/26/21
Matthew Keith Allyn v. Kathryn Anne Donahue
M2019-02229-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Kathryn Wall Olita

This case involves a petition to modify a parenting plan. Specifically, Father filed a petition to modify the parties’ residential parenting schedule, arguing that a material change of circumstances had occurred. After a hearing on the matter, the trial court found that Father had failed to prove a material change of circumstances by a preponderance of the evidence as required by Tennessee Code Annotated section 36-6-101(a)(2)(C). For the reasons contained herein, we affirm the trial court.

Montgomery County Court of Appeals 02/26/21
Kia Winfrey v. Blue Car, Inc.
M2020-00829-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Kelvin D. Jones

After purchasing an automobile from the defendant, the plaintiff brought suit in the General Sessions Court for Davidson County, alleging fraud and deception. The defendant filed a counterclaim for breach of contract. The general sessions court dismissed both parties’ claims and the plaintiff appealed to the circuit court. The case was dormant for nearly six months. Eventually, the plaintiff moved to set a trial date with the circuit court. In response, the defendant moved to dismiss the case under Rule 20(b) of the Davidson County Local Rules of Court. The circuit court granted the defendant’s motion to dismiss and denied the plaintiff’s subsequent motion to set aside. The plaintiff appealed. We reverse the trial court’s denial of the plaintiff’s motion to set aside and remand.

Court of Appeals 02/26/21
In Re Jeremy C. Et Al.
M2020-00803-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael W. Binkley

This is a termination of parental rights case, focusing on Jeremy C. and Jessica C., the minor children (“the Children”) of Grace C. (“Mother”) and Jonathan H. (“Father”). The Children were originally removed from Mother’s home in December 2014 upon an emergency petition filed by Mother’s cousin in the Hickman County Juvenile Court (“juvenile court”). At the time of removal, Father had been incarcerated for approximately two years. The Children were then placed with Mother’s cousin and her husband while also receiving services from the Tennessee Department of Children’s Services (“DCS”). In March 2015, the juvenile court adjudicated the Children dependent and neglected. Upon a petition for relinquishment subsequently filed by the cousin and her husband, the Children were taken into DCS’s protective custody via an order entered by the juvenile court in March 2016. Following a hearing and upon DCS’s allegations that the Children had been severely abused while in the care of Mother and while residing with Mother’s former paramour, the juvenile court entered an agreed order in September 2016, adjudicating the Children dependent and neglected and severely abused. In July 2017, DCS filed a petition in the Hickman County Circuit Court (“trial court”) to terminate the parental rights of Mother and Father to the Children. Following a bench trial, the trial court granted the petition as to both parents. As pertinent to this appeal, the trial court found that statutory grounds existed to terminate Mother’s parental rights upon its finding by clear and convincing evidence that Mother had (1) abandoned the Children by willfully failing to visit them, (2) failed to substantially comply with the reasonable responsibilities and requirements of the permanency plans, (3) severely abused the Children, and (4) failed to manifest an ability and willingness to personally assume custody of or financial responsibility for the Children. The trial court further found by clear and convincing evidence that termination of Mother’s parental rights was in the Children’s best interest. Mother has appealed. Discerning no reversible error, we affirm the trial court’s judgment terminating Mother’s parental rights to the Children.

Hickman County Court of Appeals 02/26/21
Julie C. W. v. Frank Mitchell W. Jr. - Concurring
M2019-01243-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Philip E. Smith

I agree with the analysis and result of the majority opinion.  I write separately to address one troubling issue—the Trial Court’s findings regarding Wife’s spending $2,000 per month on food for herself and her two teenagers.

Davidson County Court of Appeals 02/26/21
Julie C. W. v. Frank Mitchell W. Jr.
M2019-01243-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Philip E. Smith

This appeal arises from a divorce.  Julie C. W. (“Wife”) sued Frank Mitchell W. Jr. (“Husband”) for divorce in the Circuit Court for Davidson County (“the Trial Court”).  After a trial, the Trial Court divided the marital estate, set child support and alimony, and entered a parenting plan.  Wife appeals, raising a number of issues.  In one issue, Wife argues that the Trial Court placed inordinate weight on the fact that Husband is 16 years older than her in awarding him roughly 59% of the marital estate, even though his earning power is substantially greater than hers.  We agree.  We vacate the Trial Court’s division of the marital estate and remand for a new and equitable division that is as close to a 50/50 division as possible, based upon the specific facts of this case.  However, on all other issues, we discern no reversible error by the Trial Court.  We thus affirm, in part, and vacate, in part, the Trial Court’s judgment, and remand for further proceedings consistent with this Opinion.

Davidson County Court of Appeals 02/26/21
Shelby County Board of Education, et al. v. Tennessee Secondary School Athletic Association
W2020-00099-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Jim Kyle

In this appeal, we conclude that the original legal controversy was extinguished as moot prior to the trial court’s entry of judgment. As such, we vacate the trial court’s order as advisory and dismiss the appeal.

Shelby County Court of Appeals 02/26/21
Ronald Mercer v. Brandi Chiarella
M2020-00602-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Michael Binkley

This appeal arises from a petition by Father to modify his child support. Mother contested Father’s request, ultimately filing a counter-petition wherein she argued that, based on Father’s income, his child support obligation should be increased. The trial court found in favor of Father, and Mother filed a timely appeal. For the reasons contained herein, we affirm the trial court’s order.

Williamson County Court of Appeals 02/25/21
Hampton Reserve Homeowner's Association, Inc. v. Kirk Leipzig
M2020-00288-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge James G. Martin, III

This appeal concerns a general sessions warrant for unpaid dues owed to the plaintiff homeowner’s association.  The general sessions court dismissed the action based upon a settlement agreement.  The plaintiff appealed to the circuit court, which ultimately entered an agreed order of dismissal during the pendency of this appeal.  We dismiss the appeal.  

Williamson County Court of Appeals 02/25/21
Jennifer Susan Bennett v. Duncan Geoffrey Bennett
E2020-00634-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Jerri Bryant

Because a motion for attorney’s fees and for a timeline within which to pay a court ordered arrearage remain pending, the order appealed from does not constitute a final appealable judgment, and this Court lacks jurisdiction to consider this appeal

McMinn County Court of Appeals 02/25/21
In Re Lucas S.
M2019-01969-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Clara W. Byrd

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 grounds of: (1) persistence of the conditions that led to the child’s removal, Tenn. Code Ann. § 36-1-113(g)(3)(A); (2) abandonment by failure to visit, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(1); (3) abandonment by failure to support, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(1); and (4) failure to manifest a willingness and ability to assume custody of child, Tenn. Code Ann. § 36-1-113(g)(14).  Mother also appeals the trial court’s finding that termination of her parental rights is in the child’s best interest, Tenn. Code Ann. § 36-1-113(i).  Because Appellees did not plead the ground of persistence of conditions and because the threshold requirements for that ground are not met, we reverse the trial court’s termination of Mother’s parental rights on the ground of persistence of conditions.  We affirm the trial court’s termination of Mother’s parental rights on all remaining grounds and on its finding that termination of Mother’s parental rights is in the child’s best interest.

Trousdale County Court of Appeals 02/24/21
Debra A. Irvin v. Green Wise Homes, LLC Et Al.
M2019-02232-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Russell T. Perkins

Debra A. Irvin (“Plaintiff” or “Appellee”) filed a complaint in 2019 alleging real estate fraud against numerous parties. Several defendants, including Green Wise Homes, LLC (“Green Wise”), asserted various counterclaims against Plaintiff and her attorneys, which the trial court dismissed for failure to state a claim for which relief could be granted. The trial court then awarded attorney’s fees to Plaintiff against Green Wise pursuant to Tennessee C

Davidson County Court of Appeals 02/24/21
Michael Bennett Et Al. v. Chattanooga Properties, LLC
E2019-01790-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge W. Jeffrey Hollingsworth

Buyers filed this breach of contract action alleging that the seller failed to timely complete construction of their custom home. Buyers also sought damages for conversion based on the seller’s failure to return fixtures and other items purchased by the buyers for use in the construction. The seller maintained that construction was complete, as that term was defined in the parties’ agreement. In its counterclaim for breach of contract, the seller alleged that the buyers committed the first material breach by refusing to finalize the purchase. After a bench trial, the trial court found that the buyers had committed the first material breach by refusing to close the purchase after the seller had completed performance. The court dismissed the buyers’ claims and awarded the seller damages and attorney’s fees. The evidence does not preponderate against the trial court’s findings with respect to the parties’ breach of contract claims. But we conclude that the court erred in dismissing the buyers’ conversion claim. All the elements of a conversion claim were established at trial. So we reverse the dismissal of the conversion claim and remand for a determination of damages on that claim. Otherwise, we affirm.

Hamilton County Court of Appeals 02/23/21
Anthony Parker v. ABC Technologies, Inc. Et Al.
M2020-00675-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Joe Thompson

A discharged employee sued his former employer and two managers for (1) retaliatory discharge under the Tennessee Public Protection Act, (2) common law retaliatory discharge, (3) negligent retention, and (4) breach of contract.  The trial court dismissed the employee’s claims pursuant to Tennessee Rule of Civil Procedure 12.02(6).  After our independent examination of the pleadings, we conclude that the employee failed to state a claim upon which relief can be granted and affirm the trial court’s judgment.

Sumner County Court of Appeals 02/23/21
Bradi Baker-Brunkhorst v. Geoffrey B. Brunkhorst
W2020-00154-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Kyle C. Atkins

This appeal arises from a divorce action. The matter in controversy concerns an attorney’s fee lien and abstract of suit filed and recorded by the wife’s former counsel following the entry of the divorce decree. In pertinent part, the decree required the husband to pay the entire equity in jointly owned real property to the wife contemporaneous with the wife quitclaiming her interest in the property to the husband; however, the husband died prior to the conveyance or the payment. Thereafter, the wife’s former counsel filed a motion to perfect and enforce its attorney’s lien on the property, and the court granted the motion. The administrator of the husband’s estate filed a motion to release the attorney’s lien, and the court ruled that the lien was valid and enforceable because neither party performed their respective obligations under the divorce decree. The administrator for the husband’s estate then filed a Tenn. R. Civ. P. 59.04 motion to alter or amend on the grounds (1) there was no legal basis for allowing the wife’s attorneys to file a charging lien against property awarded to the husband and (2) the lien was not valid because the attorneys based the lien on the wrong section of the statute. The court denied the Rule 59.04 motion to alter or amend, and this appeal followed. The singular issue in this appeal is whether the trial court abused its discretion by denying the Rule 59.04 motion. Because the administrator’s motion was not based on a change in controlling law, previously unavailable evidence, or a clear error of law, see In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005), we hold that the trial court did not abuse its discretion in denying it. Therefore, we affirm.

Madison County Court of Appeals 02/22/21
In Re Hadley R.
E2020-00256-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Elizabeth C. Asbury

Scarlett B. (“Mother”) appeals the termination of her parental rights to the minor child, Hadley R. (“the Child”). In April 2019, Christy D. (“Petitioner”) filed a petition to terminate Mother’s parental rights in the Campbell County Chancery Court (“Trial Court”). Following a trial, the Trial Court terminated Mother’s parental rights on three grounds of abandonment due to Mother’s failure to visit the Child, failure to support the Child, and wanton disregard for the Child’s welfare. The Trial Court further found that termination of Mother’s parental rights was in the Child’s best interest. Discerning no error, we affirm.

Campbell County Court of Appeals 02/19/21
David Manor v. Brett Woodroof
M2020-00585-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Phillip R. Robinson, Jr.

Following a dispute that spanned several years, the parties, David Manor and Brett Woodroof, filed countervailing petitions for orders of protection in the Metropolitan General Sessions Court for Nashville and Davidson County (“general sessions court”). After separate hearings, the general sessions court granted each petitioner an order of protection. In turn, each party appealed the order of protection entered against him to the Davidson County Circuit Court (“trial court”). Following a hearing with a special master presiding, the trial court entered orders continuing the cases. During a subsequent hearing, the special master announced from the bench that both petitions were being dismissed and that each party would be responsible for his respective attorney’s fees. The trial court entered separate written orders dismissing each petition. Mr. Manor subsequently filed an objection to the dismissal of his petition, averring that the trial court had made an oral finding that Mr. Woodroof had stalked Mr. Manor, which, according to Mr. Manor, led to the continuation of his order of protection against Mr. Woodroof. Mr. Manor argued that the court’s action constituted an “extension” of the order of protection, pursuant to Tennessee Code Annotated § 36-3-617 (2017), thereby entitling him to an award of attorney’s fees. Thereafter, the trial court confirmed the findings of the special master and declined to award attorney’s fees. Upon its consideration of several motions, the trial court conducted a hearing and remanded the matter to the special master for “a finding and Order” concerning the issue of attorney’s fees. Upon remand, the special master denied an award of attorney’s fees to Mr. Manor, and the trial court subsequently confirmed the order. Mr. Manor timely appealed. Discerning no reversible error, we affirm.

Davidson County Court of Appeals 02/12/21
Donald R. Ferguson v. Sarah K. Ferguson
M2019-01630-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Kathryn Wall Olita

In this divorce action, Sarah K. Ferguson (“Mother”) appeals the trial court’s decisions to grant Donald R. Ferguson (“Father”) an absolute divorce and designate him as the primary residential parent for their two minor children. She also challenges the trial court’s award of alimony. Finding no error, we affirm.

Montgomery County Court of Appeals 02/12/21
Elijah "LIJ" Shaw Et Al. v. Metropolitan Government Of Nashville And Davidson County
M2019-01926-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Anne C. Martin

Two homeowners filed suit against a metropolitan government challenging a metropolitan code provision that prevented them from serving customers at their home-based businesses. The trial court granted summary judgment to the metropolitan government. After the homeowners filed this appeal, the metropolitan council repealed the challenged code provision and enacted a new provision allowing certain home-based businesses to serve up to six clients a day. We have determined that, in light of the metropolitan government’s enactment of the new ordinance, this appeal is moot.      

Davidson County Court of Appeals 02/11/21
Tawana S. Wilson v. Timothy L. Wilson
M2019-01275-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Philip E. Smith

A husband never answered his wife’s complaint for divorce, and the trial court entered a default against him. After an evidentiary hearing, the trial court granted the wife a divorce, divided the marital estate, and awarded the wife alimony. On appeal, the husband faults the court for denying his motion to set aside the final decree, for its valuation and division of the marital estate, and for its alimony award. We affirm.

Davidson County Court of Appeals 02/11/21
In Re: Tiffany B.
E2020-00854-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge James E. Lauderback

The trial court terminated a father’s parental rights to his daughter based upon two statutory grounds: persistence of conditions and failure to manifest a willingness and ability to assume custody of the child. We reverse the trial court’s decision as to the first ground, but affirm as to the second. We also affirm the trial court’s finding that termination of the father’s parental rights is in the child’s best interests.

Washington County Court of Appeals 02/11/21
Janieka Ellington v. Cajun Operating Company, et al.
W2020-00087-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Mary L. Wagner

This case involves a claim for personal injuries that were sustained by a customer of a fast food restaurant. The restaurant’s manager burned the customer with hot grease following an altercation between the manager and the customer’s boyfriend. Thereafter, the customer brought a vicarious liability claim against the owner and operator of the restaurant based on the manager’s actions. After initial discovery, the defendants moved for summary judgment, arguing that the manager acted outside of the scope of her employment by throwing the hot grease at the plaintiff. The trial court agreed and granted the defendants’ motion for summary judgment, dismissing the plaintiff’s claims. Plaintiff appealed. We affirm the trial court’s decision and remand.

Shelby County Court of Appeals 02/10/21
Katherine Marie Lugo v. Hector Santiago Lugo
W2020-00312-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James F. Russell

This is an appeal from post-divorce litigation between parents. The only issues raised on appeal relate to the awards of attorney’s fees and guardian ad litem fees. Due to inconsistencies and a lack of findings in the final order, we vacate and remand for additional findings of fact and conclusions of law.

Shelby County Court of Appeals 02/10/21
Tracy Marie Haltom v. Gregory Wayne Haltom
M2019-02261-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge J. Mark Rogers

The trial court granted a wife’s complaint for divorce and divided the marital assets between the parties. The wife appealed, claiming that the trial court erred in classifying and dividing the marital assets. We affirm the trial court’s classification and distribution of the marital property in all respects.

Rutherford County Court of Appeals 02/10/21