Dale Robert Scherzer v. Melissa Marie Scherzer - Concurring
I concur in the result reached by the majority and with its analysis, except in one respect. In my view, Tennessee Code Annotated § 36-5-121 does not authorize an award of attorney fees in these circumstances. |
Williamson | Court of Appeals | |
In Re: Emersyn W.
This is an appeal from an order changing the Child’s surname from that of Mother alone to the double last name of Mother and Father, respectively. The juvenile court determined that the Child’s last name should be changed based on a standardized policy of the court because the parents could not reach an agreement. Mother appeals. We reverse. |
Montgomery | Court of Appeals | |
Sharon K. Yuhasz v. Joseph D. Yuhasz
Husband appeals the trial court’s decision regarding wife’s monthly need for spousal support and its division of the parties’ marital assets. Wife asserts that the trial court erred in failing to hold that husband dissipated marital assets. We affirm the decision of the trial court and conclude that wife is entitled to an award of her attorney fees on appeal. |
Williamson | Court of Appeals | |
Ronald Miller v. Mark Gywn, Director Of The Tennessee Bureau Of Investigation
In 2001, Ronald Miller was convicted, in Maryland, of sexually molesting his eleven-year-old niece. When he moved to Tennessee in 2007, he registered with the sex offender registry (SOR). The Tennessee Bureau of Investigation subsequently reclassified him several times. In 2013, the TBI granted Miller’s request to be removed from the SOR. However, in 2014, the General Assembly amended Tenn. Code Ann. § 40-39-207 (2014 & Supp.2017), to require lifetime registration for an offender whose victim was twelve years old or younger. The TBI reinstated Miller on the SOR pursuant to this amendment. Miller appealed to the trial court under the Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-322 (2015 & Supp.2017). The trial court reversed the TBI’s decision, holding that “TBI is bound by the face of the [Maryland] conviction offense, and since no provision of the offense involves a crime against a child ages twelve (12) years or less, the Petitioner does not have to comply with the lifetime registry requirements.” The Maryland statute at the time of the offense provided that “a person may not engage in . . . sexual contact with another without the consent of the other.” We hold that the TBI demonstrated that Miller was convicted of this offense, and that his victim was eleven years old at the time of the offense. Based on our review of the record, we hold that the TBI’s decision was neither arbitrary nor capricious or unsupported by substantial and material evidence. We reverse the trial court’s judgment and hold that Miller must be registered on the SOR for life. |
Sullivan | Court of Appeals | |
Hershel Sanders Et Al. v. First Tennessee Bank National Association Et Al.
The plaintiffs, Hershel Sanders and his wife, Alma Sanders, secured a construction loan from the defendant, First Tennessee Bank, N. A., for the purpose of building a home in Cumberland County. The first contractor hired by the plaintiffs did not complete the construction in a timely fashion. At the urging of First Tennessee Bank, the plaintiffs dismissed the original contractor and hired a new one, who finished the job. The bank refused to make the plaintiffs a permanent loan. Ultimately, the property went into foreclosure. The plaintiffs sued the bank and others, alleging various theories of recovery. The case proceeded, but only as to one defendant – First Tennessee Bank – and only as to one theory, i.e., breach of contract to make the plaintiffs a permanent loan. First Tennessee Bank filed a motion to dismiss and for judgment on the pleadings. The trial court held that, since there is no written agreement signed by First Tennessee Bank reflecting a promise by it to make the plaintiffs a permanent loan, the plaintiffs’ suit is barred by the Statute of Frauds, Tenn. Code Ann. § 29-2-101 (2012). The trial court also granted the bank’s motion on another ground. The plaintiffs appeal. We affirm |
Cumberland | Court of Appeals | |
In Re: Neamiah R. Et Al.
In this action, the trial court terminated the respondent father’s parental rights to his children, following its finding that clear and convincing evidence existed to establish the statutory grounds of (1) severe child abuse, (2) substantial noncompliance with the reasonable requirements of a permanency plan, and (3) failure to manifest an ability and willingness to personally assume legal and physical custody or financial responsibility of the children. The court also determined by clear and convincing evidence that termination was in the best interest of the children. The father has appealed solely the best interest determination. Discerning no error regarding the statutory grounds for termination found by the trial court or the court’s best interest analysis, we affirm. |
Knox | Court of Appeals | |
Jana Lea Purvis v. Dennis Patrick Purvis, II
In this divorce case, Dennis Patrick Purvis, II (Father) appeals the trial court’s judgment allowing Jana Lea Purvis (Mother), the primary custodial parent, to relocate to California with the parties’ two children. The trial court found that Father had physically abused Mother and emotionally abused her and the children. Mother appeals, challenging, among other things, the trial court’s order expanding Father’s parenting time. She argues that he should be limited to the co-parenting time set forth in her proposed parenting plan. She states that his time should be so limited as mandated by Tenn. Code Ann. § 36-6- 406(a)(2) (2017). We find that the evidence does not preponderate against the trial court’s findings of abuse. Accordingly, we affirm the trial court’s decision allowing Mother to move to California. We modify the parenting plan to vacate the trial court’s decision allowing Father visitation in California for one weekend a month in seven months. We affirm the trial court’s judgment in all other respects. |
Bradley | Court of Appeals | |
John Kinder Et Al. v. Wendell Bryant Et Al.
The plaintiffs commenced this declaratory judgment action to establish that their claim to a forty-acre tract of real property is superior to that of the defendants. The plaintiffs claim to have purchased the disputed property in 1980; however, their deed was not recorded until 1995. The defendants’ predecessors in interest purchased the property at a tax sale in 1994, and their deed was duly recorded prior to the plaintiffs’ deed. The plaintiffs’ claims are based, inter alia, on adverse possession and the contention that the 1994 tax deed is void or voidable due to lack of notice of the sale. After hearing cross-motions for summary judgment, the trial court summarily dismissed the complaint finding that the plaintiffs were not entitled to notice of the tax sale because, at the time of the sale, the plaintiffs’ deed had not been recorded and the plaintiffs lacked standing to challenge the lack of notice to their predecessors in title who were the owners of record at the time of the tax sale. The trial court further found that the plaintiffs had not paid any taxes on the property and that the defendants paid the property taxes for more than twenty years, which raised the rebuttable presumption of ownership under Tenn. Code. Ann. § 28-2- 109. Based on these findings, the trial court held that Tenn. Code Ann. § 28-2-110 barred any affirmative action by the plaintiffs to claim an interest in the property and summarily dismissed the complaint. We affirm. |
Bradley | Court of Appeals | |
George Grant Et Al. v. Elaine Anderson, Clerk Of Williamson County, Et Al.
Plaintiffs filed suit seeking declaratory relief to determine the continuing validity of laws relating to the issuance of marriage licenses and to determine whether the issuance of marriage licenses violates the state constitution. Plaintiffs also asked the trial court to enjoin the issuance of all marriage licenses in Williamson County, Tennessee. Upon the county clerk’s motion to dismiss, the trial court concluded, among other things, that the plaintiffs lacked standing. We affirm the dismissal of the complaint. |
Williamson | Court of Appeals | |
Willard P. Wagner, ET AL. v. Eric Martin Novelli
This appeal concerns a dispute over an agreement to install a heating and air conditioning system (“HVAC”) in a house. Eric Martin Novelli (“Novelli”) engaged Willard P. Wagner d/b/a Wagner Heating & Air (“Wagner”) to install an HVAC system at Novelli’s house. There was no written contract. Novelli grew dissatisfied with Wagner’s work and dismissed him from the project. Wagner sued Novelli in the Circuit Court for Hamilton County (“the Trial Court”) for payment on the project. Novelli filed an answer and counterclaim. Novelli alleged, among other things, that the units Wagner installed were too large which created problems. After a trial, the Trial Court found that it could not find any breach of contract with respect to installation. Instead, the Trial Court applied the Uniform Commercial Code (“UCC”) and awarded Wagner $11,400 for payment on the project. Novelli appeals to this Court. We find, as did the Trial Court, that Wagner in sizing the units relied on specifications Novelli gave him, installed the HVAC per their agreement using merchantable, fit for purpose units, and is entitled to judgment as awarded by the Trial Court. We affirm the judgment of the Trial Court. |
Hamilton | Court of Appeals | |
State of Tennessee Ex Rel. Nicole Lytle v. Seneca Webb
This appeal arose from a child support proceeding wherein the father sought modification of his child support obligation. After concluding that an incorrect arrearage amount had been established in a prior order, the trial court determined that the correct arrearage amount, including statutory interest, was $48,574.88. The trial court relied on an affidavit executed by the mother, which reflected the father’s child support payments. The mother’s affidavit, however, is not contained within the record on appeal. Furthermore, the trial court’s order contained no findings of fact demonstrating how the trial court calculated the arrearage or the statutory interest. Because the trial court failed to make adequate findings of fact, we vacate the trial court’s judgment and remand for entry of sufficient findings of fact regarding the method of calculation of the arrearage and interest. |
Davidson | Court of Appeals | |
John Doe, By His Next Friend Jane Doe v. Brentwood Academy Inc., Et Al.
A Tennessee Supreme Court Rule 10B petition for recusal appeal was filed in this Court after the trial court denied a motion for recusal. Because the petition for recusal appeal was not timely filed in accordance with Tennessee Supreme Court Rule 10B, we dismiss the appeal. |
Williamson | Court of Appeals | |
In Re Estate of Johnny Mack Galbreath
This is a probate case. The chancery court entered an order purporting to close a probate estate. Several months later, the Appellant filed a Tennessee Rule of Civil Procedure 60.02(2) motion to set aside the order closing the estate on the basis of fraud and/or misconduct. The Appellant averred that her “verbal contract” claim which she had timely filed as a claim against the estate remained outstanding. After a hearing, the court denied the motion, having concluded that the Appellant failed to offer sufficient proof to substantiate her allegations and to justify re-opening the decedent’s estate. Because the order closing the estate was not final, we dismiss the appeal for lack of subject matter jurisdiction, and remand to the trial court to enter a final judgment addressing Appellant’s claim |
Maury | Court of Appeals | |
Debbie H. Morrow v. Gault Financial, LLC
This case was originally filed in general sessions court. The general sessions court entered a default judgment against Appellant in the amount of $8,066.04 on January 27, 2012. In September of 2015, Appellant filed a motion for relief from the general sessions judgment, alleging that the judgment was void because she was not properly served with the civil warrant. The general sessions court denied the motion, and Appellant appealed to the circuit court. The circuit court vacated the general sessions’ default judgment finding that Appellant was not properly served but remanded the case to general sessions for a trial on the merits. Because the general sessions court lacked personal jurisdiction over Appellant, we conclude that the default judgment entered in the general sessions court is void. Accordingly, we affirm the circuit court’s order vacating the default judgment, but reverse the circuit court’s remand of the case to general sessions court, and instead we remand to the circuit court with instructions to dismiss the case. |
Davidson | Court of Appeals | |
Michelle Kay (Clark) Love v. James Terrill Clark - Dissenting
Originally, I was assigned the task of drafting an opinion in this case. I circulated my draft to the other panel judges, the Honorable W. Neal McBrayer and the Honorable Arnold B. Goldin. Judges McBrayer and Goldin do not agree with me “that the voluntary payment doctrine barred recovery.” I have read the majority opinion drafted by Judge McBrayer and concurred in by Judge Goldin. I now formally dissent from that majority opinion. |
Loudon | Court of Appeals | |
In re Estate of John Tyler McKelvey
This appeal arises from a declaratory judgment action seeking to determine whether the decedent died intestate. The decedent executed a will in 2005 and executed another will in 2011, which expressly revoked all prior wills and codicils. Following the decedent’s death in 2016, the original of the 2011 will could not be located; however, the original of the 2005 will was found in the decedent’s personal filing cabinet. The decedent’s children then filed a Petition to Open Estate and [for] Declaratory Relief, seeking a declaration that the decedent died intestate. The decedent’s live-in companion of approximately 30 years, and a beneficiary under both wills, filed an answer, contending that the decedent died testate under either the 2005 or the 2011 will. At the trial, the decedent’s companion conceded that she did not have evidence to overcome the presumption that the decedent revoked the 2011 will; thus, the trial focused on whether the decedent intended to revive his 2005 will upon revoking the 2011 will. The trial court found “there is no proof Decedent revoked the 2011 Will with the intent to execute a later will,” and “[g]iven the preservation and nearby-safekeeping of the 2005 Will following revocation of the 2011 Will and the lack of evidence indicating a contrary intent, the Court concludes Decedent intended to revive his 2005 Will.” We affirm. |
Franklin | Court of Appeals | |
In Re: The Estate of Louise J. Aslinger
This action involves a will contest in which the decedent’s daughter alleged that the current will was void due to either undue influence or lack of mental capacity. The case proceeded to a jury trial, after which the jury invalidated the will. We affirm. |
Knox | Court of Appeals | |
Michelle Kay (Clark) Love v. James Terrill Clark
A mother obtained a default judgment against her former spouse for child support arrearages and other amounts. At the mother’s request, the trial court entered orders of income assignment to the former spouse’s employers, each directing them to deduct a set amount from the former spouse’s salary to satisfy the default judgment. Nearly fourteen and one-half years later, the former spouse asked the court to terminate the wage assignment, claiming the culmulative amount deducted from his income exceeded the amount of judgment plus interest. The former spouse also sought a judgment against the mother to the extent she had received more than she was entitled to under the default judgment. The mother argued that the voluntary payment doctrine barred recovery. The trial court found that the former spouse’s “overpayments were made with full knowledge of the facts chargeable to him” but that they “were not voluntary payments.” Accordingly, the court entered judgment against mother plus statutory post-judgment interest. |
Loudon | Court of Appeals | |
State, ex rel., Jana Ruth Alford Nichols v. Randall Nelson Songstad
Father unilaterally modified his child support obligation without submitting a petition to modify to the trial court because his oldest child emancipated. The trial court found that Father had impermissibly modified his child support obligation based, inter alia, on the fact that Father failed to follow the Child Support Guidelines. Discerning no error, we affirm the trial court’s judgment. |
Shelby | Court of Appeals | |
Margaret Smith v. HSBC Mortgage Services, Inc., et al.
This appeal arises out of protracted litigation following a foreclosure sale. The plaintiff asserted claims against the mortgage holder and the purchaser at the foreclosure sale for breach of contract, breach of the implied duty of good faith and fair dealing, improper foreclosure, and fraud. The trial court dismissed each of the claims, and the plaintiff appeals. Due to the deficiencies in the plaintiff’s brief on appeal, we conclude that she has waived consideration of any issues and hereby dismiss the appeal. |
Shelby | Court of Appeals | |
John Edwards v. Paula Renee Herman
In this personal injury action arising from an automobile-motorcycle accident, the trial court granted the plaintiff’s motion to enlarge the time allowed to obtain service of process on the defendant upon finding that the plaintiff’s failure to timely obtain service of process had been due to excusable neglect. Consequently, the trial court in the same order denied the defendant’s motion to dismiss the plaintiff’s complaint for lack of service. Upon the defendant’s subsequent motion, the trial court granted permission for an interlocutory appeal, as did this Court. Upon review of the issues certified by the trial court, we affirm the trial court’s utilization of Tennessee Rule of Civil Procedure 6.02 as a method of enlarging the timeframe for issuance and service of process, pursuant to Tennessee Rule of Civil Procedure 3, when the complaint was timely filed and when excusable neglect can be demonstrated. However, having concluded that the trial court made insufficient findings and conclusions regarding excusable neglect in this matter, we vacate the trial court’s determination on that issue and remand this matter to the trial court for further proceedings consistent with this opinion. We also vacate the trial court’s determination that the defendant would be estopped from asserting a defense based on the statute of limitations because the parties had no express agreement waiving service of process in this matter. |
Campbell | Court of Appeals | |
Dana Looper v. City of Algood
Former police officer appeals the denial of her petition for a writ of certiorari and the denial of her motion for relief from a final judgment related to the termination of her employment. Here, the evidence was undisputed that the former police officer neglected her duties, failed to follow the directive of a “superior” and was repeatedly informed about various instances of misconduct. As such, the city administrator’s decision to uphold Appellant’s dismissal was supported by material evidence and was neither arbitrary, illegal, nor capricious. |
Putnam | Court of Appeals | |
Fredrick Sledge v. Tennessee Department of Corrections, et al
Fredrick Sledge (“Petitioner”) appeals the June 16, 2017 order of the Chancery Court for Nashville and Davidson County (“the Trial Court”) dismissing Petitioner’s October 2016 petition for declaratory judgment (“2016 Petition”) based upon the prior suit pending doctrine. We find and hold that the prior suit pending doctrine applies as Petitioner had a prior suit pending involving the same parties and the same subject matter in a court that had both personal and subject matter jurisdiction. We, therefore, affirm the Trial Court’s June 16, 2017 order dismissing Petitioner’s petition. |
Davidson | Court of Appeals | |
Robert A. Hanks, et al v. First American Title Insurance Company
Robert A. Hanks and Lee E. Hanks (“Plaintiffs”) sued First American Title Insurance Co. (“First American”) for breach of contract with regard to an owner’s title insurance policy (“Title Policy”). First American filed a motion for summary judgment. After a hearing, the Chancery Court for Sumner County (“the Trial Court”) granted summary judgment to First American after finding and holding, inter alia, that the Title Policy excluded any claim pursuant to either federal bankruptcy code or Tennessee law for an alleged fraudulent conveyance, fraudulent transfer, or preferential transfer. Plaintiffs appeal the grant of summary judgment to this Court. We find and hold that First American made a properly supported motion for summary judgment demonstrating that Plaintiffs’ evidence is insufficient to establish an essential element of their claim and that Plaintiffs failed to demonstrate that there are genuine disputed issues of material fact with regard to the claims for fraudulent conveyance or fraudulent transfer. We further find and hold that the claim for post-petition transfer is not excluded from coverage pursuant to exclusion 4 of the Title Policy, and, therefore, summary judgment on the post-petition claim was improper. We, therefore, affirm the grant of summary judgment, in part, and reverse it, in part, and remand this case to the Trial Court for further proceedings consistent with this Opinion. |
Sumner | Court of Appeals | |
Sandra Buttram v. Kenneth Ramsey
Kenneth Ramsey (“Defendant”), pro se, appeals the April 18, 2017 order of the Circuit Court for Hamilton County (“the Circuit Court”) granting Plaintiff’s motion to dismiss Defendant’s appeal from General Sessions Court to the Circuit Court. Defendant’s brief on appeal severely fails to comply with Tenn. R. App. P. 27. We, therefore, find that Defendant has waived his issues on appeal. We affirm the Trial Court’s April 18, 2017 order. |
Hamilton | Court of Appeals |
