COURT OF APPEALS OPINIONS

In Re Estate of Willie C. Chaney
E2022-01051-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Deborah C. Stevens

This appeal involves a dispute between family members regarding their father’s/grandfather’s estate. Following the filing of an action to probate the decedent’s will by his daughter, the decedent’s son and grandson contested the will. The trial court conducted a bench trial, subsequently entering an order determining that the residuary clause in the decedent’s will was invalid due to undue influence by his daughter. The court also held that the decedent’s son and grandson had proven that a portion of the decedent’s real property should be vested in the son due to a “resulting/constructive” trust. The decedent’s daughter and her son have appealed the trial court’s rulings. Discerning no reversible error, we affirm.

Brenda Smith d/b/a Sugar Creek Carriages v. David Gerregano, Commissioner of the Tennessee Department of Rec
M2022-00941-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Patricia Head Moskal

The Tennessee Department of Revenue issued a tax assessment against a horse-drawn carriage company pursuant to Tenn. Code Ann. § 67-6-212(a)(2). The carriage company filed a complaint in the chancery court challenging the tax assessment on two grounds: (1) that its carriage rides did not constitute a place of amusement under the statute and (2) that its equal protection rights had been violated because no other carriage companies had been assessed the tax. Both parties filed motions for summary judgment. The court granted the Tennessee Department of Revenue’s motion for summary judgment and denied the carriage company’s motion for summary judgment. Discerning no reversible error, we affirm the chancery court’s decision.

Westfield Group Insurance A/S/O David & Carol Neiger v. Tiffany Embry
M2022-01301-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Brinkley, Jr.

In this appeal, a defendant asserts that the trial court erred when it granted the plaintiff’s motion to voluntarily dismiss its complaint while the defendant’s motion to dismiss and for attorneys’ fees was pending.  We hold that a pending motion to dismiss does not preclude the plaintiff from voluntarily dismissing its case pursuant to Tenn. R. Civ. P. 41.01.  Likewise, the defendant’s request for attorneys’ fees did not create a “vested right” preventing the plaintiff from voluntarily dismissing its case.  The ruling of the trial court is affirmed.

In Re Conservatorship of James Steele
E2022-00840-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Pamela A. Fleenor

The appeal arises from a conservatorship proceeding. At issue is whether the trial court
erred by quashing the appellant’s subpoena of the conservator’s records on the basis of res
judicata, rendering the document subpoena moot as a matter of law. We have determined
that a final judgment had not been rendered on the merits concerning the services rendered
by the conservator; thus, res judicata was not applicable. Accordingly, the judgment of the
trial court is reversed, and this matter is remanded for further proceedings.

Janette C. Gates v. Hans M. Switzer
M2021-01552-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Phillip R. Robinson

During the pendency of a divorce, Wife was convicted of one count of criminal contempt. Wife filed a notice of appeal subsequent to this conviction. Before Wife’s initial appeal was heard, the trial court entered its order granting the parties a divorce. Wife filed another notice of appeal challenging the outcome of the divorce. We consolidated the respective appeals, and now, upon our review, we affirm the judgment of the trial court in both the contempt and divorce proceedings.

Jim Hysen v. T.A. Smythe
M2022-00816-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joseph A. Woodruff

Because the notice of appeal was untimely, this Court lacks subject-matter jurisdiction over the appeal. Appeal dismissed.

Judie Snipes v. Skin Cancer & Cosmetic Dermatology Center P.C. Et Al.
E2023-00386-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge John B. Bennett

This is an appeal from a final order entered on February 10, 2023. The Notice of Appeal
was not filed with the Appellate Court Clerk until March 14, 2023, more than thirty days
from the date of entry of the order from which the appellant is seeking to appeal. Because
the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

In Re Estate of Willis Seeber
E2022-01476-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Rex Alan Dale

This appeal arises from a dispute over the estate of Mrs. Willie Seeber. Mrs. Seeber left a purported Last Will and Testament executed in 2021,which the personal representative named therein has offered to the Probate Court for Loudon County for solemn form probate. However, various family members and friends of Mrs. Seeber seek to challenge this will and allege Mrs. Seeber lacked testamentary capacity and was unduly influenced to execute the will. The contestants rely upon earlier testamentary documents to establish standing to bring a will contest. The proponent appeals an order of the probate court holding the contestants have standing to bring a will contest. We hold the probate court did not err in its various findings and affirm the judgment of the probate court. This case is remanded for further proceedings.

Teresa Thompson Locke et al. v. Jason D. Aston, M.D. et al.
M2022-01820-COA-R9-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Amanda J. McClendon

This is a health care liability action filed by a patient and her husband alleging serious injury as a result of surgery. The plaintiffs learned that the defendants had taken surveillance videos and sought discovery of those videos. The trial court allowed discovery of only the videos that the defendants intended to use at trial for impeachment purposes. The trial court gave the plaintiffs permission to seek an appeal under Tenn. R. Civ. P. 9. This Court granted the appeal. We affirm the trial court’s decision.

Gresham, Smith and Partners v. Middleburg Real Estate Partners, LLC
M2021-01459-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Patricia Head Moskal

In this breach of contract dispute between an engineering consulting firm and a real estate development company, we review the trial court’s holding that the real estate development company breached the contract between the parties as well as the court’s award of attorneys’ fees to the engineering consulting firm. We affirm the court’s decision in all respects. Because the parties’ agreement states that the prevailing party in litigation arising from or related to the contract shall be entitled to attorneys’ fees and costs, we remand the case to the trial court with instructions for the trial court to award the engineering firm its reasonable and necessary attorneys’ fees and costs incurred in this appeal.

Michael Briars, et al. v. John Irving, et al.
W2022-01159-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge A. Blake Neill

Plaintiffs sued for injuries and damages allegedly resulting from an automobile accident.
The trial court dismissed one of two defendants based on the statute of limitations.
Although the complaint was filed within one year of the accident, the original summons
went unserved, and plaintiffs did not obtain issuance of new process until over a year after
the issuance of the previous process. On appeal, plaintiffs contend that, because the
automobile accident resulted in a criminal prosecution, the time period for issuance of new
process under Tennessee Rule of Civil Procedure 3 was extended. We affirm.

Samuel Adam Reese v. Lynette Erin Reese
E2022-01116-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Dennis W. Humphrey

This appeal arises from a divorce. After trial, the trial court entered a final decree of
divorce with an attached Permanent Parenting Plan regarding the parties’ minor child. The
determination of child support was left blank. A supplemental order purported to
“bifurcate” the issue of child support and transfer the case from the Roane County IV-D
office to the Anderson County IV-D office. The father appeals. Since the issue of child
support was never resolved or adjudicated, there is no final, appealable judgment. The
appeal is dismissed for lack of subject matter jurisdiction.

Jon Vazeen v. Martin Sir
M2022-00273-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Don R. Ash

Former client sued his former attorney for legal malpractice and fraud. The trial court initially dismissed all claims, but was reversed on appeal as to the fraud claims. The trial court then held a bench trial and found in favor of the defendant attorney. In a second appeal, this Court affirmed the dismissal of all fraud claims except a fraud claim related to the hourly rate charged under the parties’ written contract. That claim was remanded to the trial court for purposes of consideration of the factors outlined in in Alexander v. Inman, 974 S.W.2d 689 (Tenn. 1998). On remand, the trial judge denied the plaintiff’s efforts to disqualify him from the case and to enlarge the scope of the trial. A bench trial was eventually held, despite the plaintiff’s multiple efforts to postpone. After a late motion to continue was denied, the plaintiff did not attend trial. Following the bench trial, the trial court once again ruled in favor of the defendant attorney, resulting in the dismissal of all claims against him. Discerning no reversible error, we affirm.

State of Tennessee, ex rel., Nene Gloria Ananaba v. Okebugwu Sunju Ananaba
W2022-00443-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Magistrate Nancy Percer Kessler

Mother filed a petition alleging civil and criminal contempt against the father of her child
due to unpaid child support. After several continuances, including based on Mother’s
request for an in-person hearing, the juvenile court heard the matter remotely via ZOOM.
At the start of the hearing, the trial court denied Mother’s request for a continuance for an
in-person hearing. The trial court also ruled that it had the authority to choose whether
Mother would prosecute her action as civil contempt or criminal contempt. The trial court
ruled that Mother’s petition would be treated solely as a civil contempt matter, but then
refused to punish Father for his past willful failure to pay child support because he had
made a purge payment. We vacate the judgment of the trial court and remand for further
proceedings.

Benjamin McCurry v. Agness McCurry
E2023-00995-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Thomas J. Wright

Because the order from which the appellant has filed an appeal does not constitute a final
appealable judgment, this Court lacks jurisdiction to consider this appeal.

Mark T. Stinson, Sr. v. Mr. Cooper
W2023-00161-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor JoeDae L. Jenkins

Appellant, Mark T. Stinson, has appealed an order of the Shelby County Chancery Court
that was entered on January 27, 2023. We determine that the January 27, 2023 order does
not constitute a final appealable judgment. Therefore, this Court lacks jurisdiction to
consider the appeal. The appeal is dismissed.

In Re Amayzha L.
M2023-00044-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Sheila Calloway

This is an appeal of the termination of a father’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Davidson County (“Juvenile Court”) seeking the termination of the parental rights of Horace L. (“Father”) to his minor daughter Amayzha L. (“the Child”). The Juvenile Court found that DCS had established by clear and convincing evidence the following statutory grounds: (1) abandonment by failure to provide a suitable home, (2) persistence of conditions, and (3) failure to manifest an ability and willingness to assume legal and physical custody of or financial responsibility for the Child. Determining that DCS presented insufficient evidence to establish that the Child was removed from Father’s home or physical or legal custody, we reverse the grounds of abandonment by failure to provide a suitable home and persistence of conditions. We affirm the Juvenile Court’s judgment in all other respects, including the termination of Father’s parental rights.

In Re Tinsley L.
E2022-00965-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge J. Michael Sharp

In this appeal from the termination of parental rights, the mother does not challenge the
grounds for terminating her rights. Rather she argues that the evidence was less than clear
and convincing that termination was in the child’s best interest. After a review of both the
statutory grounds for termination and the best interest determination, we affirm.

In Re Conservatorship of Gregory Blake Arvin
M2022-01808-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor J. B. Cox

This appeal arises from a conservatorship proceeding. The issues on appeal concern the assessment of the fees of the attorney ad litem in the amount of $1,060. The trial court assessed the fees against the petitioners and the respondent, jointly and severally. The petitioners appeal, contending that, pursuant to Tennessee Code Annotated § 34-1-125, the court had no discretion but to assess the fees of the attorney ad litem against the respondent. The petitioners and the estate of the respondent also challenge the assessment of the fees against the respondent on other grounds. We have determined that the trial court was statutorily required to assess the fees of the attorney ad litem against the respondent and that it lacked the discretion to assess the fees against the petitioners. We have also determined that the petitioners have no standing to challenge the assessment of the fees against the respondent and that the issues raised by the estate of the respondent lack merit. Thus, we reverse the assessment of the fees of the attorney ad litem against the petitioners but affirm the assessment of the fees against the respondent.

CIC Services, LLC v. Suresh Prabhu, et al.
W2022-01431-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Gina C. Higgins

This case involves a dispute arising from services provided by the appellee, CIC Services, LLC (“CIC”), a creator and manager of “captive” insurance companies, to the appellant corporation, SRM Group, Inc. (“SRM”).  SRM hired CIC to form and manage two captive insurance companies to serve SRM in risk management, and the parties memorialized their relationship in two management agreements, one for each of the newly formed captive insurance companies.  When CIC subsequently ended its contractual relationship with SRM for cause, SRM demanded arbitration pursuant to the arbitration clauses contained in the agreements.  The arbitrator dismissed all of SRM’s claims.  CIC then demanded a second arbitration, seeking attorney’s fees, expenses, and costs incurred during the first arbitration and stating claims for breach of contract and fraudulent inducement against SRM.  The second arbitrator ultimately awarded to CIC $261,487.04 in attorney’s fees, expenses, and costs incurred during the first arbitration proceeding, pursuant to the indemnity clauses in the parties’ management agreements, and $137,337.50 in attorney’s fees, expenses, and costs because CIC was the substantially prevailing party in the second arbitration.  When SRM did not respond to CIC’s demand for payment of this award, CIC moved for confirmation of the award in the Shelby County Circuit Court (“trial court”).   SRM responded by filing a motion with the trial court to modify or vacate the award.  After the parties fully briefed the issues, the trial court confirmed the award in full and concomitantly denied SRM’s motion to modify or vacate.  SRM timely appealed.  Upon review, we  affirm the trial court’s confirmation of the arbitration award, determining that because appellant Suresh Prabhu voluntarily participated in both arbitrations without raising objection to the potential attachment of liability against him as an individual, Mr. Prabhu and SRM have waived objection to the attachment of individual liability to Mr. Prabhu.  We further determine that the trial court properly denied SRM’s motion to vacate the award because the second arbitrator acted within her discretion to direct the arbitration procedure and SRM has failed to show any of the criteria necessary to meet the high standard for vacatur pursuant to the Federal Arbitration Act or the Commercial Rules of the American Arbitration Association.

Loretta Hartman v. Tina Massengill
E2022-01769-COA_R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge James E. Lauderback

This appeal concerns the ownership of property used by the defendant but owned by her
father and stepmother. The plaintiff stepmother secured a writ of possession from the
general sessions court once her husband passed away. The defendant appealed to the
circuit court, which ruled that the property at issue belonged to the plaintiff. We affirm.

In Re Austin S. Et Al.
E2022-01277-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jeffrey D. Rader

Mother appeals the termination of her parental rights to her children. Upon our review, we
conclude that the record contains clear and convincing evidence to support the grounds for
termination and that termination was in the best interest of the children.

Stephen Rushing v. Dawn Rushing (Strickland)
E2022-01229-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Douglas T. Jenkins

This is an appeal of a modification to a permanent parenting plan. Dawn Rushing
Strickland (“Mother”) filed a motion to modify the permanent parenting plan governing
the custody and visitation of two children from her prior marriage to Stephen Rushing
(“Father”). The Chancery Court for Hamblen County (“Trial Court”) granted the motion
and modified the permanent parenting plan to designate Mother the primary residential
parent and grant her 265 co-parenting days and Father 100 co-parenting days. Father has
appealed. Upon our review of the final order, we conclude that the Trial Court
erroneously considered Mother’s gender in determining that a material change in
circumstance had occurred affecting the children’s best interest and that its finding that
the best interest factors did not favor one parent over the other demonstrates that Mother
failed to carry her burden of proof. We accordingly reverse the Trial Court’s
modification of the permanent parenting plan. Mother’s request for attorney’s fees on
appeal is denied.

In Re Estate of Mary Hutcheson Moon Ballard
E2022-01147-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jeffrey M. Atherton

In this matter concerning the interpretation of a will, John Moon and Shannon Moon (“John” and “Shannon”) (“Claimants,” collectively) filed a claim in the Chancery Court for Hamilton County (“the Trial Court”) against the estate of their late sister, Mary Hutcheson Moon Ballard(“Mary”).1 Arthur Ballard (“Arthur”), Mary’s husband, filed an exception to the claim. Mary’s grandmother, Elise Chapin Moon (“Elise”), had established a trust for her grandchildren, including Mary. It is Claimants’ position that a bloodline provision in Elise’s will (“the Moon Will”) excludes spouses of grandchildren from receiving trust proceeds. The Trial Court, having put certain questions to a jury, ruled in favor of Arthur. Claimants appeal. We hold that once Mary received the funds from the trust, which dissolved in 2016, the funds were hers outright and no longer subject to the will’s “bloodline” restriction. We hold further that the Trial Court erred by putting questions to a jury when the case was resolvable as a matter of law. However, the error was harmless. We affirm the judgment of the Trial Court.

Rex Sullivan Ex Rel. Rose Sullivan v. James Carden Et Al.
E2022-01234-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Justin C. Angel

This appeal concerns a claim of negligence. Rex Sullivan, individually and in his capacity as the Administrator Ad Litem for his deceased wife (“Plaintiff”),1filed a complaint in the Rhea County Circuit Court (“the Trial Court”), seeking damages from James Carden and Carden Trucking Company (“Defendants”)for injuries Plaintiff suffered in a November 2018 car accident. Plaintiff alleged that his accident was caused by Defendants’ failure to remove excessive mud they had deposited onto the rural road he drove on. The Trial Court granted summary judgment in favor of Defendants. Plaintiff appeals. We affirm the Trial Court’s grant of summary judgment with respect to Plaintiff’s claim for punitive damages, which Plaintiff has not appealed. Otherwise, given the existence of genuine issues of material fact such as how much mud was deposited on to the road and the foreseeability of the risk of injury, we reverse the judgment of the Trial Court and remand for further proceedings consistent with this Opinion.