Court of Appeals Opinions

Format: 12/07/2021
Format: 12/07/2021
Julie C. W. v. Frank Mitchell W. Jr.
M2019-01243-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Phillip E. Smith

The Tennessee Supreme Court entered an order vacating our previous judgment in this matter solely with respect to the division of the marital estate and remanding for our further review consistent with its order. We find upon further review that the Circuit Court for Davidson County (“the Trial Court”) abused its discretion in dividing the marital estate as it did. We vacate the judgment of the Trial Court on this one issue and remand for a new and equitable division of the marital estate.

Davidson County Court of Appeals 08/30/21
In Re PrinceKenyan F.
M2020-01306-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Stella L. Harvrome

This appeal concerns the termination of a mother’s parental rights. The trial court found that seven grounds had been established: abandonment for failure to support; abandonment for failure to visit; abandonment for failure to provide a suitable home; substantial noncompliance with the permanency plan; persistence of conditions; mental incompetence; and failure to manifest an ability and willingness to assume custody. It also found that termination was in the child’s best interest for many reasons, including the mother’s failure to provide a safe home, maintain regular visitation, pay child support, and resolve her legal, mental health, and substance abuse issues. The mother contends the trial court incorrectly calculated the period relevant to the ground of abandonment, erred by admitting her mental health records into evidence in violation of Tenn. Code Ann. § 24-7-122, and that the evidence failed to meet the clear and convincing evidence standard. Following a thorough review of the record, we have determined that four of the seven grounds for termination as found by the trial court were established by clear and convincing evidence and that termination of the mother’s parental rights was clearly and convincingly in the child’s best interest. Therefore, we affirm the termination of the mother’s parental rights.

Lawrence County Court of Appeals 08/30/21
Marn Suzanne Larsen-Ball v. William Gordon Ball
E2020-00297-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Gregory S. McMillan

In this post-divorce action concerning enforcement of the trial court’s order distributing the parties’ marital property, the trial court ultimately awarded a judgment to the wife in the amount of $206,868.67. The court also ordered that the wife would be entitled to a certain portion of the proceeds from the sale of the parties’ former marital residence. The court dismissed the wife’s contempt claims and declined to award interest or attorney’s fees. The husband has appealed. Having discerned two relatively minor errors in the judgment, we modify the amount awarded to the wife to increase it by $18,525.24, enlarging the trial court’s award to the wife to the total of $225,393.91 rather than $206,868.67. We affirm the trial court’s judgment in all other respects.

Knox County Court of Appeals 08/30/21
Nigel M. Reid, II v. Colette Jean Wallace
E2021-00181-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Beth Boniface

Following a hearing, the Circuit Court for Hamblen County (“trial court”) entered an order of protection against Nigel Reid II (“Respondent” or “Cross-Petitioner”) and in favor of Collette Jean Wallace (“Petitioner” or “Cross-Respondent”). Respondent appealed to this Court. Because Respondent’s brief fails to comply with Tennessee Rule of Appellate Procedure 27, we dismiss the appeal.

Hamblen County Court of Appeals 08/30/21
In Re L.F., Et Al.
M2020-01663-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Thomas C. Faris

This case involves a petition to terminate parental rights.  The petition was filed by the Tennessee Department of Children’s Services against the biological mother of three minor children.  The petition listed seven grounds for termination of the mother’s parental rights.  After a final hearing on the petition, the trial court terminated Mother’s parental rights, finding five grounds for termination: (1) abandonment by failing to visit; (2) persistence of conditions; (3) substantial noncompliance with a permanency plan; (4) failure to manifest an ability or willingness to parent; and (5) severe child abuse.  We affirm the trial court in part, reverse in part, and remand.

Franklin County Court of Appeals 08/26/21
Irene Howard v. State of Tennessee
M2020-00735-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Commissioner James Haltom

Following a car accident involving an employee of the State of Tennessee, Irene Howard (“Claimant”) sought damages against the State based on alleged injuries arising from the accident. The claim was denied by the Division of Claims and Risk Management (the “DCRM”), and Claimant thereafter appealed to the Claims Commission (the “Commission”). Because Claimant failed to appeal the DCRM’s decision within ninety days, however, the Commission concluded it lacked jurisdiction over the case and dismissed the appeal. We affirm.

Court of Appeals 08/26/21
Delia Ruth Smith Durham v. Karen Stone, Et Al.
E2020-01444-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge John B. Bennett

This appeal involves a complaint filed by a pro se plaintiff. After two hearings, the trial court entered an order granting the defendants’ motions to dismiss. The plaintiff appeals. We affirm.

Hamilton County Court of Appeals 08/25/21
In Re Jackson H.
M2020-01551-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge:

The trial court terminated a father’s parental rights to his child on the grounds of (1) persistence of conditions, (2) failure to manifest an ability and willingness to personally assume custody or financial responsibility, (3) substantial noncompliance with the permanency plan, and (4) abandonment by wanton disregard. The trial court also found that termination of the father’s parental rights was in the child’s best interest. Although we reverse three of the termination grounds, we affirm the trial court’s conclusion that clear and convincing evidence supports a finding of abandonment by wanton disregard. We also affirm the trial court’s determination that the termination of the father’s parental rights is in the best interest of the child.

Giles County Court of Appeals 08/25/21
W. Scott Johnson v. Tomcat USA, Inc. et al.
E2021-00057-COA-R9-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Michael W. Moyers

This interlocutory appeal concerns the trial court’s refusal to enforce a forum selection clause contained in a stock bonus transfer agreement in this action arising out of the termination of the plaintiff’s employment. The defendants filed a motion to dismiss for improper venue, citing the forum selection clause, which specified New York as the sole venue for litigating claims. The trial court denied the motion to dismiss. The defendants appeal. We affirm the decision of the trial court.

Knox County Court of Appeals 08/24/21
Carlos Rodgers et al v. Nationstar Mortgage et al.
W2020-01022-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Felicia Corbin Johnson

This appeal concerns the dismissal of one of the defendants involved in the underlying case. Because there is no written order evidencing how the operative claims against the subject defendant were resolved, we vacate the trial court’s dismissal of the defendant and remand for further proceedings not inconsistent with this Opinion.

Shelby County Court of Appeals 08/24/21
Rarity Bay Partners v. Rarity Bay Community Association Inc. Et Al.
E2021-00166-COA-R10-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Jerri Bryant

Members of a nonprofit corporation sought to compel production of election records from the election of the corporation’s board of directors. The trial court ordered production of the records pursuant to a protective order. This Court granted the Rule 10 appeal to determine whether production of the election ballots is required under the Tennessee Nonprofit Corporation Act, whether the members have a privacy right with respect to their votes, and whether the trial court’s protective order protects that privacy right. We hold that production of the ballots is required under the statute, members have a limited privacy right with respect to their votes, and the protective order protects that right.

Monroe County Court of Appeals 08/23/21
Rickie Heatherly v. Off The Wagon Tours, LLC
M2019-01582-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Anne C. Martin

Relying on an inapplicable statute, the plaintiff asked the court to order a limited liability company to produce records for his inspection.  Claiming that the plaintiff had never been a member, the LLC denied that he was entitled to access its records.  After a bench trial, the court found that the plaintiff was a member and entitled to inspect and copy the records.  So the court ordered the LLC to allow the inspection and to pay the plaintiff’s costs and attorney’s fees incurred in filing suit.  The evidence does not preponderate against the court’s finding that the plaintiff was a member at formation of the LLC.  But because the relief was sought under an inapplicable statute, we vacate the inspection order and the award of attorney’s fees. 

Davidson County Court of Appeals 08/23/21
Jennifer Pallotta Gaby v. Tony Harold Gaby
E2020-00790-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Thomas J. Wright

In this post-divorce, child custody case, Appellant/Father filed a petition to modify the permanent parenting plan, seeking equal parenting time. Appellee/Mother opposed the petition. The trial court held that there had been a material change of circumstance and awarded Father additional parenting time, but not equal parenting time. On appeal, Father asserts that the trial court failed to consider the statutory best interest factors. Tenn. Code Ann. § 36-6-106(a). Although we leave undisturbed the portion of the trial court’s order concerning a material change of circumstance, the trial court’s failure to make best interest findings in compliance with Tennessee Rule of Civil Procedure 52.01 precludes any meaningful appellate review of that question. Accordingly, we vacate the order and remand for entry of an order that includes the required findings of fact and conclusions of law.

Greene County Court of Appeals 08/23/21
Lola Bernice Robinson v. Leah M. Robinson Et Al.
E2021-00034-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge John C. Rambo

This case involves a dispute over a parcel of real property. The appellant filed suit alleging fraudulent conveyance of the property. The trial court granted a judgment in favor of the appellee, finding that the appellant did not meet her burden of proof to establish fraud, undue influence, or lack of capacity. For the reasons stated herein, we affirm the trial court’s decision. Additionally, we award the appellee her attorney’s fees on appeal.

Washington County Court of Appeals 08/20/21
James Henry Matthew Owens v. Jessica Paige May
E2020-01322-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert M. Estep

This is an appeal from the trial court’s entry of a permanent parenting plan involving one minor child. The trial court named the father primary residential parent of the minor child and entered a parenting plan awarding equal co-parenting time and ordering the child’s enrollment in the father’s school of choice. The mother appealed. Upon our review, we vacate the order of the trial court and remand for entry of sufficient findings of fact and conclusions of law to facilitate appellate review.

Claiborne County Court of Appeals 08/19/21
In Re Tyler A.
E2021-00284-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge J. Michael Sharp

This action involves the termination of a mother’s parental rights to her minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to establish the following statutory grounds of termination: (1) abandonment for failure to establish a suitable home; (2) the persistence of conditions which led to removal; (3) substantial noncompliance with the permanency plan; (4) failure to manifest an ability and willingness to care for the child; and (5) a present mental condition affecting the mother’s ability to adequately parent. The court also found that termination was in the best interest of the child. We affirm the trial court.

Bradley County Court of Appeals 08/18/21
Alexis Stump v. Shirley Stinson
E2020-01139-COA-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Brad Lewis Davidson

This action was initiated by the mother’s filing of a petition for the return of custody of her minor child. The trial court granted the petition. The maternal grandmother moved to set aside the judgment. The court denied the motion by order and later entered an amended order, correcting errors. The mother appeals the final order. We dismiss the appeal.

Court of Appeals 08/18/21
Joseph Christopher Archer, Et Al. v. Ron Noonan
M2020-01266-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Jonathan L. Young

This case involves an action filed by homeowners against their contractor for breach of contract regarding the installation of a swimming pool.  The general sessions court entered judgment for plaintiffs. Defendant appealed to the circuit court which also entered judgment for the plaintiffs.  The defendant appeals.  We affirm.

Putnam County Court of Appeals 08/18/21
Donald Eugene Winder, III v. Kara Elizabeth Winder
E2021-00490-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Casey Mark Stokes

A review of the record on appeal reveals that the order appealed from does not constitute a final appealable judgment. As such, this Court lacks jurisdiction to consider this appeal.

Meigs County Court of Appeals 08/17/21
Albert M. Bender, Jr., Et Al. v. Attorney S. Madison Roberts, Et Al.
M2019-01699-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Russell T. Perkins

The trial court dismissed the plaintiffs’ conversion claim in accordance with Rule 12.02(6) of the Tennessee Rules of Civil Procedure, determining that it was filed outside the applicable three-year statute of limitations. We affirm.

Davidson County Court of Appeals 08/13/21
Christina Lynn McCartney v. Lester Dale McCartney, Et Al.
M2020-00703-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Melissa T. Blevins-Willis

This is a divorce case. Husband/Appellant appeals the trial court’s: (1) pre-trial procedural rulings; (2) characterization of certain assets as marital property; and (3) equitable division of the marital estate. Discerning no reversible error, we affirm.

Sequatchie County Court of Appeals 08/13/21
In Re Matthew K. et al.
E2020-00773-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This consolidated appeal involves termination of parental rights in a case focusing on Zayne R., the minor child of Brittney R. (“Mother”) and Joseph D., and Matthew K., the minor child of Mother and Joshua K. In June 2019, Mother’s parents, Larry R. (“Grandfather”) and Bertha R. (“Grandmother”) (collectively, “Grandparents”), filed two petitions in the Hamilton County Circuit Court (“trial court”), seeking termination of Mother’s parental rights, respectively, to Zayne R. and Matthew K. (collectively, “the Children”). The Children had previously been removed from Mother’s custody and placed in the custody of Grandparents pursuant to an order entered by the Hamilton County Juvenile Court (“juvenile court”). Following a consolidated bench trial, the trial court granted Grandparents’ termination petitions based upon its finding by clear and convincing evidence that Mother had abandoned the Children by failing to visit and by failing to financially support them during the statutorily determinative period. The trial court further found that it was in the Children’s best interest to terminate Mother’s parental rights. Mother has appealed. Discerning no reversible error, we affirm the trial court’s final orders terminating Mother’s parental rights.

Hamilton County Court of Appeals 08/13/21
Damiean Devon Tolson v. John E. Herbison
M2020-01362-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Senior Judge Don R. Ash

Appellant, acting pro se, appeals the trial court’s dismissal of his legal malpractice action against Appellee, the attorney who represented Appellant in post-conviction matters related to his criminal case. The trial court held that Appellant’s lawsuit was barred by the running of the one-year statute of limitations. Tenn. Code Ann § 28-3-104(c)(1). Discerning no error, we affirm and remand. 

Davidson County Court of Appeals 08/12/21
Los Pumas Concrete v. Harmony Hospitality, LLC Et Al.
M2020-00956-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen Hobbs Lyle

A subcontractor that performed concrete and site work on a hotel construction project filed a lien on the property and then commenced this action against the general contractor and the owner of the property to recover sums due on the balance of the subcontract, for additional change order work, and interest. The claims relevant to the issues on appeal are against the owner for unjust enrichment and to enforce the lien. After obtaining a default judgment against the now defunct general contractor, the subcontractor moved for summary judgment on its claims against the owner. The owner contended that summary judgment was not proper because there were genuine issues of material fact concerning the amount owed to the subcontractor and whether the change orders had been approved. The court found it undisputed that the subcontractor performed work, in addition to that paid by the owner to the general contractor, for which the subcontractor was not paid; and that the owner received and appreciated a benefit from the services rendered by the subcontractor. Based on these findings, the trial court held that the subcontractor satisfied its burden of proving that the property owner was unjustly enriched. Accordingly, the trial court granted summary judgment in favor of the subcontractor on its claims of unjust enrichment and to enforce its lien. We affirm the trial court in all respects.

Davidson County Court of Appeals 08/11/21
In Re Mynajah S.
E2021-00040-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Sharon M. Green

Mother appeals the termination of her parental rights on the grounds of severe abuse, abandonment by failure to visit and support, persistence of conditions, and failure to manifest an ability and willingness to assume physical custody or financial responsibility for the child. We affirm the trial court’s rulings as to both grounds for termination and best interest.

Court of Appeals 08/11/21