John S. Taylor v. Timothy L. Cloud
In this action seeking to enforce a judgment lien against the debtor‘s real property, the debtor claimed that he was not properly served with process in the underlying lawsuit wherein the judgment was entered. The trial court granted summary judgment to the creditor, and the debtor appealed. We affirm the trial court‘s grant of summary judgment based on the validity of the underlying judgment, determining that such judgment was not void on its face and thus not subject to collateral attack. We reverse the issue of whether the creditor should have been granted an award of attorney‘s fees at trial pursuant to the parties‘ fee agreement and remand for specific findings by the trial court. We decline to award attorney‘s fees to the creditor incurred in defending this appeal. |
Sullivan | Court of Appeals | |
In re C.A.F., et al.
The Department of Children’s Services (“DCS”) and the Guardian ad Litem both filed petitions in the Juvenile Court for Johnson County (“the Juvenile Court”) seeking to terminate the parental rights of D.A.F. (“Father”) and J.D.F. (“Mother”) to four of their minor children: C.A.F., born 08/06; J.A.F., born 01/08; C.R.F., born 01/09; and, S.R.F., born 09/11 (“the Children,” collectively). The ground alleged was severe child abuse, of a sexual nature. After a trial, the Juvenile Court found that clear and convincing evidence established the ground of severe child abuse and that termination of Mother’s and Father’s parental rights was in the Children’s best interest. Mother and Father appeal the termination of their parental rights, arguing, in part, that the ground of severe abuse must be overturned because no medical exam was conducted on the Children. We affirm the judgment of the Juvenile Court. |
Johnson | Court of Appeals | |
William Wayne Cutshaw et al v. Kenton D. Hensley et al.
In 2009, William Wayne Cutshaw and Tincy Faye Cutshaw sold a piece of commercial real property (the property) to Kenton D. Hensley and Pamela F. Hensley. The property was improved with a retail business whose trade name was Glendale Market & Deli. The total purchase price of the property, including its contents, was $215,000. The Hensleys executed two notes, one of which was for $175,000. It was secured by a deed of trust on the property. After the Hensleys defaulted in 2011, the Cutshaws bid in the property at a foreclosure sale for $20,000. The Cutshaws then brought this action seeking a deficiency judgment for the balance owed by the Hensleys. The trial court, applying the governing statute, Tenn. Code Ann. § 35-5-118 (Supp. 2014), found that the property had sold at the foreclosure sale for an amount materially less than its fair market value, which latter amount the court found to be $215,000 as of the time of the foreclosure sale. The trial court relied upon the formula prescribed by Tenn. Code Ann. § 35-5-118(c), which code section provides that ―the deficiency shall be [(1)] the total amount of the indebtedness prior to the sale plus the costs of the foreclosure and sale, less [(2)] the fair market value of the property at the time of the sale.‖ The trial court found concept number one to be $173,620.30 and the second concept to be $215,000. Since the difference is a negative figure, the trial court declined to award the Cutshaws a deficiency judgment in any amount. The Cutshaws appeal. We hold that the evidence preponderates in favor of the conclusion that the fair market value of the property at the time of the foreclosure sale was $89,000. We agree with the trial court‘s determination that the foreclosure sale price – $20,000 – was materially less than fair market value. |
Greene | Court of Appeals | |
Diane R. Wright, et al. v. Shoney's Tenn1 LLC.
Suit was brought for personal injuries allegedly sustained in a slip-and-fall at Defendant’s restaurant. Plaintiffs filed a notice of voluntary non-suit and then re-filed the complaint within a year of dismissal; service of process was not obtained for twenty months. On Defendant’s motion to dismiss the complaint as being ineffective because of Plaintiffs’ alleged intentional delay in securing service of summons in contravention of Tenn. R. Civ. P. 4.01(3), the court held that the delay was intentional and dismissed the complaint. Finding that the evidence does not support the finding that Plaintiffs intentionally delayed service of process, we reverse the judgment and remand the case for further proceedings. |
Davidson | Court of Appeals | |
Mark Evans v. Green Tree Servicing, LLC, et al.
A pro se litigant brought suit in the General Sessions Court for Smith County over a dispute with a neighbor. The general sessions court dismissed the case for lack of subject matter jurisdiction. The plaintiff appealed to the Circuit Court, where his claims were once again dismissed for lack of subject matter jurisdiction. Because in this circumstance we conclude that only a chancery court had subject matter jurisdiction to hear the dispute, we affirm. |
Smith | Court of Appeals | |
In re: Estate of Jane Kathryn Ross, et al.
The dispositive issue in this appeal is whether the terms of an attorney-client retainer agreement preclude the attorneys from recovering any fees for representation of the decedent’s estate in an action to recover assets from the decedent’s son. Prior to her death, the decedent commenced an action against her son to recover the value of a new home she constructed on her son’s property, which was prior to the engagement of the attorneys whose fees are at issue. After the decedent’s death, the administrator continued to pursue the action, but subsequently concluded that the estate did not have sufficient assets to continue prosecuting the claim; thus, the administrator agreed to a settlement with the decedent’s son. When the motion seeking court approval of the settlement was filed, the decedent’s daughter opposed the settlement. Following discussions, the administrator, the decedent’s daughter, and her attorneys entered into an agreement stating, in pertinent part, that the daughter’s attorneys would “at no cost to the estate, prosecute this matter to trial” and that “all [of the attorneys’] fees and expenses shall be the responsibility of [the daughter].” The attorneys prosecuted the matter to trial, and the estate prevailed; however, the son appealed the judgment, and we reversed and remanded for a new trial. The estate prevailed on remand, and the son appealed again. While the second appeal was pending, the son filed a petition for bankruptcy, a bankruptcy trustee was appointed, and the probate court allowed the trustee to be substituted for the son. Thereafter, the attorneys who represented the estate in the trial of the underlying action and both appeals filed a motion for fees and expenses. The administrator for the estate did not file an objection to the fees based on the retainer agreement or inform the probate court or the trustee of the existence of the retainer agreement. Following a hearing, the trial court awarded $178,598 in attorneys’ fees and expenses and assessed all of the fees against the estate. Soon thereafter, the bankruptcy trustee learned of the retainer agreement. Based on this new information, the trustee filed a Tenn. R. Civ. P. 59.04 motion to set aside the order assessing the attorneys’ fees against the estate. The administrator supported the trustee’s motion, taking the position for the first time that the parties to the retainer agreement intended for the daughter to be responsible for all of the attorneys’ fees. Conversely, the attorneys seeking the fees insisted that the retainer agreement only relieved the estate of liability for the fees incurred through the trial, which concluded on August 15, 2012. The attorneys’ position was supported by the administrator’s prior counsel who negotiated the terms of the retainer agreement on behalf of the estate. She stated that it was not the intent of the parties to preclude the new attorneys from recovering fees for services rendered on behalf of the estate after trial. She also stated that it would be “highly inequitable” for the estate to not be responsible for the fees incurred after the trial because the resulting judgment benefited the estate. Following a hearing on the trustee’s motion, the trial court ruled that it was the intent of the parties for the daughter to be solely responsible for attorneys’ fees and expenses “up to trial,” but all reasonable and necessary fees and expenses incurred after that trial were the responsibility of the estate. Thus, the court assessed the attorneys’ fees incurred through August 15, 2012 to the daughter and all fees incurred thereafter to the estate. This appeal followed. We affirm. |
Davidson | Court of Appeals | |
In re Cassie C.
This case involves a minor's appeal of a criminal court order directing her to pay restitution of over $9,000 at the rate of $50 a month. The minor claims that the amount of restitution is excessive and that the court failed to consider the rehabilitative nature of the juvenile court system and her inability to remit payment. We affirm. |
Knox | Court of Appeals | |
State Bank of Reeseville v. Mary Beth Shea et al.
The plaintiff bank filed this action asserting that defendants fraudulently conveyed real property located in Tennessee in an effort to defraud the bank and to evade the collection of a Wisconsin state court judgment against defendant Mrs. Shea. The trial court granted the bank’s motion for summary judgment, setting aside the conveyance as fraudulent and declaring the deed from Mrs. Shea to her father null and void. The defendants appeal. We affirm. |
Hamilton | Court of Appeals | |
Kingston Neale B/N/F Dion Russell v. United Way of Greater Kingsport et al.
This negligence action arose when a minor child injured his finger while participating in a woodworking shop activity at a facility operated by the Boys and Girls Club of Greater Kingsport. The child's father and mother originally filed a joint action as next friends of the child, naming as defendants the Boys and Girls Club of Greater Kingsport and the United Way of Greater Kingsport (collectively, “Defendants”). The parents eventually nonsuited the original action. The child's father subsequently filed this action as next friend of the child, seeking damages for permanent impairment, pain and suffering, medical expenses, and loss of earning capacity. Defendants filed concomitant motions for summary judgment, each asserting that the father lacked standing to bring this action pursuant to Tennessee Code Annotated § 20-1-105(b). Following a hearing, the trial court granted summary judgment in favor of Defendants. The father has appealed. Having determined that Tennessee Code Annotated § 20-1-105(b) (2009) operates only to bar an action brought by the father on his own behalf to recover medical expenses and loss of the child's service, we affirm the grant of summary judgment to Defendants only as to the father's claim for these damages. We reverse the grant of summary judgment as to the claims brought on behalf of the child and remand to the trial court for further proceedings consistent with this opinion. |
Sullivan | Court of Appeals | |
The Peoples Bank v. Conrad Mark Troutman, et al.
This action involves a commercial loan in the amount of $765,000.00. Prior to closing on the loan, the lender received a commitment for title insurance requiring that a prior lien on title to the real property as collateral be released or subordinated. The lender went forward with the closing after receiving assurance from the title insurance company's agent and attorney that the prior lien had been subordinated. Thereafter, the title insurance company issued a policy that excepted the prior lien from coverage. Following default by the borrowers, the prior lienholder foreclosed on the property, causing the lender to file the present action against the title insurance company and the attorney who prepared the commitment for title insurance, as well as the attorney's law firm. The title insurance company and the attorney, together with his law firm, filed separate motions for summary judgment. The trial court denied the motion filed by the attorney and his firm. The lender subsequently took a voluntary nonsuit of its claims against those parties. The trial court granted summary judgment in favor of the title insurance company. The attorney, his firm, and the lender have appealed. Discerning no reversible error, we affirm the trial court's grant of summary judgment to the title insurance company. We dismiss the joint appeal filed by the attorney and his law firm as not justiciable. |
Campbell | Court of Appeals | |
Michael Carnahan v. Jeffrey Carnahan
Money judgment was entered in suit to recover personal property which had been instituted in general sessions court. Defendant sought relief pursuant to Tenn. R. Civ. P. 60.02 more than ten days after judgment was entered and general sessions court denied relief. On appeal, the circuit court granted plaintiff’s motion to dismiss the appeal for lack of jurisdiction because motion for relief was not timely, as required by Tenn. Code Ann. § 16-15-727. Discerning no error, we affirm the judgment of the trial court. |
Wilson | Court of Appeals | |
Leslie Ann Cremeens v. Eric Scott Cremeens
Mother challenges the modification of the parenting plan, specifically the designation of Father as the primary residential parent and the new parenting schedule. Mother contends that the trial court’s best interest determination was flawed because the trial court failed to consider the expert testimony of a psychologist who examined the child in Tennessee. She also contends the court erred by failing to require the guardian ad litem to investigate the records of a psychologist who examined the child in Georgia. Because Mother failed to provide a transcript of the evidence or a statement of the evidence, we must assume there was sufficient evidence to support the trial court’s factual determinations. We find no error with the investigation by the guardian ad litem because he was not required to investigate the records of every medical professional that examined the child; instead, by rule, the guardian ad litem is to “conduct an investigation to the extent that the guardian ad litem considers necessary to determine the best interests of the child. . . .” Tenn. Sup. Ct. R. 40A, § 8(b)(1). Further, Mother failed to proffer a summary of the Georgia psychologist’s records or testimony; therefore, there is no factual basis for us to conclude that testimony of the Georgia psychologist would have affected the court’s decision. As for the Tennessee psychologist, the record reveals that the trial court did consider the expert’s testimony. As a result, we affirm the judgment of the trial court. We also declare this a frivolous appeal pursuant to Tenn. Code Ann. § 27-1-122. |
White | Court of Appeals | |
In re Marcell W.
In this parental termination case, Mother appeals the termination of her parental rights to the minor child at issue. We affirm. |
Shelby | Court of Appeals | |
In re Domingo W., et al.
In this termination of parental rights case, Mother appeals the trial court's findings of incompetency and persistence of conditions as grounds for termination. Mother also appeals the trial court's conclusion that termination was in the children's best interest. We affirm the trial court's findings as to both grounds for termination. We also affirm the trial court's finding that termination is in the best interest of the children. Accordingly, we affirm the termination of Mother's parental rights. |
Shelby | Court of Appeals | |
In re Serenity W. M.
This case involves a dispute regarding the custody of Serenity W.M. (the Child), the minor daughter of Matthew Ryan Martin (Father) and Natasha Amber Nichole Martin (Mother). Shortly after the Child’s birth, a state district court in the Commonwealth of Kentucky entered an order granting temporary custody of the Child to her maternal uncle, Christopher Mayo, and his wife, Natasha Cima (collectively Petitioners). Later, Petitioners filed a petition in the Tennessee trial court seeking (1) enforcement of the Kentucky order and (2) emergency custody of the Child. Following a hearing in Tennessee, the trial court granted the petition and ordered that custody would remain with Petitioners pending further proceedings in Kentucky. Father and Mother appeal. We affirm. |
Campbell | Court of Appeals | |
Robert McCollum, et al. v. Darrell Peters
Robert and Kimberly McCollum (Plaintiffs) sued Darrell Peters (Defendant) for damages incurred after a garage he built partially collapsed. Their complaint alleged multiple claims for relief including breach of contract, violations of the Tennessee Consumer Protection Act (the TCPA), various forms of fraud and/or intentional misrepresentation and negligence. Following a bench trial, the court ruled in favor of the Plaintiffs. The court held that, with respect to his construction of the garage, Defendant was guilty of promissory fraud, made fraudulent misrepresentations in violation of the TCPA, and acted recklessly by consciously acting contrary to his representations. The trial court entered judgment awarding Plaintiffs a sum total of $56,103.50 including compensatory damages, punitive damages, and attorney's fees. Defendant appeals. We affirm. |
Washington | Court of Appeals | |
Andrew C. Clarke v. City of Memphis
This appeal stems from a public records dispute, pursuant to the Tennessee Public Records Act, Tennessee Code Annotated |
Shelby | Court of Appeals | |
Jeffery G. Douglas v. Francine C.S., et al.
The trial court dismissed Appellant's petition for a writ of mandamus. Due to profound deficiencies in Appellant's brief, we dismiss this appeal. |
Madison | Court of Appeals | |
Ede Goza, et al. v. Suntrust Bank
This appeal arises from the dismissal of an action challenging the validity of and distribution of assets from a trust. The trial court held the suit was barred by the doctrine of res judicata. Because the plaintiffs in this action are in privity with previous challengers of the trust for purposes of res judicata, we affirm the dismissal. |
Shelby | Court of Appeals | |
Barbara A. Miller v. Myron B. McClary, II
The final order from which the pro se appellant seeks to appeal was entered on April 20, 2015. The Notice of Appeal was not filed until May 22, 2015, more than thirty (30) days from the date of entry of the final order. The appellees have filed a joint motion to dismiss this appeal based upon the untimely filing of the Notice of Appeal. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal and grant the motion to dismiss. |
Blount | Court of Appeals | |
Stacy Foster-Henderson v. Memphis Health Center, Inc.
This appeal involves a contract for employment entitling the employee to sixty days advance notice of the employer’s decision to terminate the contract and six months additional salary from the date of the termination. The employer argued that the termination was effective in May 2005 and, therefore, that the employee had been fully compensated pursuant to the contract. The trial court ruled that the termination occurred in June 2005 and awarded employee damages equivalent to two months’ salary. We conclude that the evidence preponderates in favor of finding that the employee did not receive the requisite notice of the termination of her employment until September or October 2005 at the earliest. Accordingly, we reverse the judgment of the trial court and award employee damages equivalent to six months’ salary, as well as partial prejudgment interest. Reversed and remanded. |
Shelby | Court of Appeals | |
Susan Lee Phillips, Executrix and Surviving Spouse of Robert Wayne Phillips, Deceased v. Gary Q. Casey, M.D., et al.
This is a health care liability action. The plaintiff's late husband died following a bilateral tonsillectomy surgery. An autopsy determined that the cause of death was angioedema. The plaintiff filed suit against the defendants exactly one year after her husband's death. The complaint did not comply with the pre-suit notice requirements for health care liability suits. The plaintiff voluntarily dismissed the suit without prejudice and re-filed suit. The defendants moved to dismiss, claiming that the re-filed suit was barred. The trial court denied the motion to dismiss and a subsequent motion to reconsider but granted permission to file an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. We granted permission to appeal and now affirm the decision of the trial court. |
Sullivan | Court of Appeals | |
Haddad Family Partnership v. David Pouncey, et al.
This case involves a dispute over the boundary line between two neighboring tracts of farmland. The owner of one farm brought this action alleging that the neighbor crossed the common boundary line between the tracts and harvested or destroyed crops during three consecutive years. At trial, the parties presented conflicting surveys, each purporting to establish the correct boundary line between the properties at issue. The trial court found the appellee’s survey to be more persuasive and established the line as proposed by the appellee. The trial court also awarded damages to the appellee for the lost crops. Because the evidence does not preponderate against the trial court’s findings, we affirm and remand for further proceedings. |
Tipton | Court of Appeals | |
Heather Anne Gulish Gladwell v. Tony Neil Gladwell, Jr.
Husband appeals the trial court's division of property, award of rehabilitative alimony, and allocation of the federal tax deduction applicable to the parties' children in this divorce action. Wife also appeals the trial court's property division and additionally appeals its award of attorney's fees as alimony in solido to Husband. We affirm the trial court's property division, award of rehabilitative alimony to Husband, and allocation of the federal tax deduction to Wife. We reverse the award of alimony in solido to Husband. This matter is remanded to the trial court for entry of an order setting Wife's child support obligation in a definite amount as required by Tennessee Code Annotated § 36-5-101(a)(2). |
Henry | Court of Appeals | |
Heather Anne Gulish Gladwell v. Tony Neil Gladwell, Jr. PARTIAL DISSENT
J. STEVEN STAFFORD, Dissenting in Part. |
Henry | Court of Appeals |
