COURT OF APPEALS OPINIONS

State of Tennessee, ex rel., Stephany V. Lopez v. Justin M. Finch
W2024-01824-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Michael Mansfield

Appellant filed this petition for recusal appeal without including either the motion to recuse filed in the trial court or the trial court’s order denying the motion to recuse. As such, we dismiss this appeal.

SCOTT BAKER ET AL. v. LARRY BASKIN ET AL.
M2023-00433-COA-R3-CV
Authoring Judge: Frank G. Clement, Jr.
Trial Court Judge: Patricia Head Moskal

Buyers of a residential home brought action against sellers for 1) breach of contract, 2)
negligent misrepresentation, 3) negligence, 4) negligence per se, 5) gross negligence, 6)
residential disclosures violations, and 7) fraud. The claims arise from the discovery of a
sinkhole months after the sale. The sinkhole was not indicated “through the contour lines
on the property’s recorded plat,” see Tenn. Code Ann. § 66-5-212(c) (2015), and the sellers
insist they had no knowledge of a sinkhole on the property. For these reasons, they did not
disclose the existence of the sinkhole on the Tennessee Residential Property Condition
Disclosure form. Nevertheless, the proof at trial established that one of the sellers, Larry
Baskin, while mowing the lawn, discovered a depression in the yard six months prior to
listing the property for sale, which he believed to be caused by rotting roots from a tree that
had been removed years earlier. He filled the depression with two four-by-four, pressuretreated,
rot-resistant posts and topsoil. Because it was near a downspout, he also placed the
plastic bag from the topsoil over the posts, which he covered with more soil and grass. The
property was sold seven months later, during which time Mr. Baskin did not notice the area
“concaving or dipping in any way” even though he mowed regularly over the area with his
500-pound riding mower. Following a bench trial, the court dismissed all claims except the
negligence claim. Significantly, the court dismissed the claim for negligent
misrepresentation because the purchase agreement contained an “as is” clause. However,
the court held that Larry Baskin was liable under the claim for common law negligence,
finding that he “breached the duty of reasonable care by not informing the Buyers of the
existence of the hole prior to their purchase of the Property. The harm resulting from Mr.
Baskin’s breach was damage to the value of the Property.” The court awarded the buyers
compensatory damages of $55,000 for the diminution in value of the property.
Additionally, finding the buyers to be the prevailing parties according to the purchase
agreement, the trial court awarded them attorney’s fees and costs. This appeal followed,
with the sellers challenging Mr. Baskin’s liability under the negligence claim and the
buyers challenging the dismissal of the gross negligence claim. For the reasons explained
below, we affirm the dismissal of the claim for gross negligence; however, we reverse the
finding of Mr. Baskin’s liability based on the claim of negligence because “a seller’s
liability for the failure to disclose such material facts in a real estate transaction is
coextensive with a party’s liability for fraudulent or negligent misrepresentation.” Fayne
v. Vincent, 301 S.W.3d 162, 177 (Tenn. 2009). Because we have affirmed the dismissal of
the claim for gross negligence and reversed the ruling concerning the negligence claim, we
also vacate the award of damages and attorney’s fees to the buyers. In that the sellers are
now the prevailing parties, we remand with instructions to award the sellers the reasonable
and necessary attorney’s fees and costs they are entitled to recover pursuant to the parties’
contract.

In Re Estate of Clifton Dates, Jr.
W2024-00488-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Joe Townsend

This is an appeal from a dispute over a piece of real estate in Shelby County, Tennessee. The property owner executed a quit claim deed transferring ownership of the property to his daughter, who was also his attorney-in-fact, shortly before he died in 2023. After his death, the man’s surviving spouse filed a petition to set the deed aside, claiming that the daughter obtained the deed by undue influence. The trial court held a bench trial and entered an order setting the deed aside. The daughter timely appeals to this Court. Discerning no error, we affirm.

State of Tennessee, ex rel., Jabrunkaka R. Franklin v. Justin M. Finch
W2024-01822-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Michael Mansfield

Appellant filed this petition for recusal appeal without including either the motion to recuse filed in the trial court or the trial court’s order denying the motion to recuse. As such, we dismiss this appeal.

Robert Ferguson v. M. Brown Construction, Inc. et al.
M2022-01637-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Larry J. Wallace

A property owner hired a local contractor to build a custom-designed home. A payment dispute arose midway through construction, and the contractor stopped working. The owner paid others to repair and complete the home. Then he filed suit against the contractor asserting multiple theories of recovery. Among other things, the trial court found the contractor liable for breach of contract and fraudulent misrepresentation. As compensatory damages, it awarded the owner the additional costs he incurred to repair and complete the home above the contract price. We affirm in part, vacate in part, and remand for recalculation of compensatory damages.

In Re Charles B.
M2024-00360-COA-R3-PT
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Ryan J. Moore

Mother and Father appeal the termination of their parental rights. As to Mother, the trial court found three grounds for termination: substantial noncompliance with a parenting plan, persistent conditions, and failure to manifest an ability and willingness to assume custody. Regarding Father, the trial court found four grounds for termination: severe child abuse, imprisonment for two years for conduct qualifying as severe child abuse, imprisonment for ten years when the child is under eight years of age, and failure to manifest an ability and willingness to assume custody. The trial court also determined that terminating each parent’s rights was in the child’s best interest. The trial court properly determined that a termination ground existed as to each parent and that terminating each parent’s rights was in the child’s best interest. We affirm.

Deborah Fly et al. v. Haley Rae Fly et al.
M2022-01089-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Charles B. Tatum

A grandparent petitioned for visitation with her grandchild. The juvenile court found that the loss or severe reduction of visitation with the grandparent would cause severe emotional harm. The child’s mother appeals. Because the evidence preponderates against the court’s finding that denial of grandparent visitation would cause severe emotional harm, we reverse.

John E. Sullivan, Jr. GST Exempt Trust, et al. v. Frank G. Sullivan, et al.
W2023-01600-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Kathleen N. Gomes

Testator created a generation-skipping trust and instructed the eventual trustee to distribute all remaining trust funds to the “then living descendants of the child per stirpes” upon the death of Testator’s child. Testator’s child later died, leaving two generations of descendants. Each first-generation descendant is the parent of a corresponding second-generation descendant, and neither predeceased the Testator’s child. Trustee brought a declaratory judgment action, seeking to ascertain whether only the first generation of the child’s descendants should inherit trust funds or if, instead, members of both generations should take equally. Relying on Testator’s choice of a per stirpes distribution system, the probate court concluded that trust funds should be split equally between the first-generation descendants, reasoning that the funds do not go any further under a traditional per stirpes framework. We affirm.

In Re Dorothy A. et al.
M2023-01511-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jerred A. Creasy

In this case involving termination of the father’s and mother’s parental rights to two of their minor children, the trial court determined that two statutory grounds had been proven as to each parent by clear and convincing evidence. The trial court further determined that clear and convincing evidence demonstrated that termination of the father’s and mother’s parental rights was in the children’s best interest. The father and mother have each appealed. Discerning no reversible error, we affirm.

Abdolhossain Motealleh v. Remax Tristar Realty Et Al.
E2023-01407-COA-R3-CV
Authoring Judge: Judge Frank G. Clement Jr.
Trial Court Judge: Judge William T. Ailor

This appeal arises from a complaint filed by Abdolhossain Motealleh (“Plaintiff”) entitled, “Petition for Criminal Conspiracy to Petition David Margulies for Representations.” The trial court dismissed the complaint upon the defendants’ Tennessee Rule of Civil Procedure 12.06(b) motion to dismiss for failing to state a claim upon which relief could be granted. Plaintiff appeals that decision. Due to profound deficiencies with Plaintiff’s brief, particularly his failure to comply with Rule 27(a)(4) and (7) of the Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals of Tennessee in several material respects, Plaintiff has waived his right to an appeal. Accordingly, the judgment of the trial court is affirmed. The defendants, ReMax Tri Star Realty and Jarrod Cruz, (“Defendants”) contend this is a frivolous appeal and seek an award of damages pursuant to Tennessee Code Annotated § 27-1-122. Having determined that this appeal is devoid of merit, we find the appeal to be frivolous. Therefore, Defendants are entitled to recover their reasonable and necessary attorney’s fees and expenses incurred in defending this frivolous appeal. Accordingly, we remand this case to the trial court to make the appropriate award.

Melissa Salmon v. Fellowship Bible Church of Williamson County
M2024-00377-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Deanna B. Johnson

The plaintiff filed a declaratory judgment action seeking a declaration on whether a settlement agreement she signed in 2016 and amended in 2017 still requires her silence on the details of the alleged sexual abuse of her son in light of the 2018 enactment of Tenn. Code Ann. § 29-34-103, which makes such agreements “void and unenforceable as contrary to the public policy of this state.” The trial court granted the defendant’s motion to dismiss, issued a blanket sealing order, and held that the Attorney General and Reporter did not have to be notified of the action and that the plaintiff’s interpretation of the statute would lead to unconstitutional retrospective application. We reverse the trial court’s grant of the motion to dismiss, vacate the decisions on the remaining issues, and remand the matter for further proceedings consistent with this opinion.

In Re Ezmaie F., et al.
M2023-01731-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Markley Preston Runyon

A father and mother appeal from an order terminating their parental rights to their two minor children. The trial court held that the evidence presented supported termination of each parent’s rights based on the statutory grounds of abandonment by failure to provide a suitable home, persistence of conditions which led to removal, severe child abuse, and failure to manifest an ability and willingness to assume custody or financial responsibility. The court also found that termination was in the children’s best interests. Discerning no reversible error, we affirm.

Leslie Burke v. State of Tennessee Department of Children's Services
E2023-00902-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Chancellor Douglas T. Jenkins

This appeal arises from a judgment upholding a decision by the Administrative Procedures Division of the Tennessee Department of Children’s Services denying the appellant an award of reasonable expenses after a contested case hearing pursuant to Tennessee Code Annotated section 4-5-301, et. seq. Upon the appellant seeking judicial review, the trial court affirmed the decision by the Department. We affirm.

Brant Heath Grimm v. Michelle Lester Grimm
E2024-00442-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Douglas T. Jenkins

A husband filed for divorce from his wife in 2022. Just before they were set to go to trial in July of 2023, the parties settled their divorce and announced their agreement to the trial court. Before the written consent judgment could be entered, however, the wife filed a notice revoking her consent to the agreement. The trial court entered the judgment regardless, and the wife later filed a motion to set that judgment aside. The trial court denied the wife’s motion, and she appealed to this Court. Discerning no error, we affirm.

Barbara J. Todd v. Metropolitan Historic Zoning Commission of the Metropolitan Government of Nashville and Davidson County, Tennessee
M2023-01714-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Russell T. Perkins

After a hearing before the Metropolitan Historic Zoning Commission, the appellant homeowner was ordered to remove a covered porch addition that was constructed without a preservation permit, as the Commission determined that the addition did not comply with the applicable design guidelines. The homeowner filed a petition for writ of certiorari, and the chancery court held a de novo hearing on the matter. After the evidentiary hearing, the chancery court likewise determined that the unpermitted covered porch did not meet the applicable design guidelines, and the court ordered its removal. The homeowner appeals, arguing that her due process rights were violated due to untimely notice of the hearing before the Commission and that the chancery court erred in finding that her covered porch was not in compliance with the guidelines. We affirm.

April Hawthorne v. Morgan & Morgan Nashville, PLLC, ET AL.
W2023-01186-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Jim Kyle

This is an appeal from a trial court’s decision to grant class action certification. Discerning no abuse of discretion in the trial court’s decision to certify the class at issue, we affirm.

Codie Lynn Anderson v. Leah Rae Marshall
W2023-00336-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Jason L. Hudson

This appeal concerns the change of custody and the relocation of a parent, as well as an evidentiary issue concerning the denial of the admission of certain psychiatric records. Because the mother failed to provide an offer of proof in connection with the juvenile court’s ruling concerning the inadmissibility of the psychiatric records, we conclude that this evidentiary issue was not properly preserved for appellate review. Regarding the remaining issues, the juvenile court determined that a material change in circumstances had occurred and modified the parenting plan by designating the father as the primary residential parent and providing the father with the majority of the parenting time. Because we conclude that the juvenile court did not abuse its discretion in modifying the parenting plan, we affirm the juvenile court’s modification. Furthermore, as discussed herein, we affirm the juvenile court’s decision permitting the father to relocate.

Mallory Sandridge v. Hollywood Henderson, et al.
W2024-00242-COA-R10-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Damita J. Dandridge

This case arises from a car wreck. Following the accident, the at-fault driver was issued several citations for various violations of the City of Memphis traffic laws. The trial court denied Appellant’s motion for summary judgment, finding that Appellee’s lawsuit was not time barred. In so ruling, the trial court held that the citations given to the at-fault driver were criminal in nature and, thus, triggered the filing extension contemplated in Tennessee Code Annotated section 28-3-104(a)(2)(A). We granted this interlocutory appeal under Tennessee Rule of Appellate Procedure 10. Because the citations in this case were civil in nature, we conclude that the two-year statute of limitations is not applicable, and Appellee’s lawsuit is time-barred. We reverse the trial court’s order and remand for entry of an order granting Appellant’s motion for summary judgment.

Teli White v. Shelby County Board of Education
W2023-01226-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Jim Kyle

This appeal arises from the termination of a tenured schoolteacher. The trial court determined that the termination constituted an impermissible second punishment for conduct for which the schoolteacher had previously been suspended and ordered his reinstatement. Finding that the termination letter charged the schoolteacher with conduct which was not contemplated in the suspension letter, and with conduct which had not occurred at the time of the suspension, we reverse.

Rachel Poyner Hight v. Billy Hugh Hight
W2024-00017-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Steven W. Maroney

Mother appeals the trial court’s ruling approving her request to relocate with the parties’ older daughter but denying her request with regard to the parties’ younger son. We affirm.

Brittni (Gray) Haggard v. Joe Michael Carroll
W2023-01521-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Angela R. Scott

Appellee filed a petition to modify parenting time and child support, and Appellant filed a countermotion and a Tennessee Supreme Court Rule 10B motion for recusal of the trial judge. The trial court did not enter an order on Appellant’s motion for recusal, and there was no order transferring the case to another judge by interchange. The new judge made substantive rulings, and Appellant filed a motion to alter or amend asserting that the judge lacked subject-matter jurisdiction over the case because the requirements of Tennessee Supreme Court Rules 11 and 10B were not met. We agree. Vacated and remanded.

Hamilton County and F/U/B of the State of Tennessee Et Al. v. Tax Year 2018 Delinquent Taxpayers Et Al.
E2024-00581-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Pamela A. Fleenor

This appeal arises from an action to recover excess proceeds from the tax sale of a parcel of real property. After the redemption period had ended, the appellants, heirs to the decedent whose property was sold at the tax sale, moved to claim the excess proceeds pursuant to Tennessee Code Annotated § 67-5-2702. The appellee, a company that had held a valid judgment lien against the real property at the time of the tax sale, also moved to claim the excess proceeds, arguing that its lien held priority over the heirs’ claim pursuant to § 67-5-2702(c)(2). The heirs objected, asserting that because the company had allowed its judgment lien to lapse after the tax sale, the company no longer maintained priority to claim the excess proceeds from that sale. The trial court granted the company’s motion, determining that because its judgment lien had been valid and enforceable at the time of the tax sale, the company maintained priority over the heirs to receive the excess proceeds pursuant to § 67-5-2702(c)(2). Discerning no reversible error, we affirm.

Thomas Kerry Jordan v. Roxana Bianca Jordan
E2024-01731-COA-T10B-CV
Authoring Judge: Judge Frank G. Clement Jr.
Trial Court Judge: Judge Michael S. Pemberton

This is an accelerated interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B § 2.02 from the trial court’s denial of a motion for recusal. We have determined that the petition must be summarily dismissed because the petition for recusal appeal was untimely and the time for filing a petition for recusal appeal is jurisdictional and cannot be extended by this court. See Tenn. Sup. Ct. R. 10B, § 2.08. We also find that the petition would have to be dismissed due to numerous and substantive failures to comply with Rule 10B § 2.02, including the failure to file a copy of the affidavit in support of the motion for recusal as well as the trial court’s order denying recusal. Accordingly, the appeal is dismissed.

Benjamin Douglas v. Frank Strada, Commissioner of the Tennessee Department of Correction, et al.
W2024-00753-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor William C. Cole

This appeal stems from an inmate’s lawsuit seeking a transfer to another facility due to a claimed imminent risk of violence from other inmates.  Benjamin Douglas (“Plaintiff”) sued Frank Strada, Commissioner of the Tennessee Department of Correction, and the Tennessee Department of Correction (“TDOC”) (“Defendants,” collectively) in the Chancery Court for Hardeman County (“the Trial Court”), asking for injunctive and declaratory relief based on the safe prisons clause of the Tennessee Constitution.  Defendants filed a motion to dismiss, which the Trial Court granted.  The Trial Court found that it lacked jurisdiction because Plaintiff failed to exhaust his administrative remedies.  Plaintiff appeals.  We hold, inter alia, that exhaustion of administrative remedies was not jurisdictional in this case; that the Trial Court abused its discretion in applying the exhaustion doctrine when Defendants failed to properly raise that affirmative defense; and that the Trial Court erred in considering matters outside the complaint at the motion to dismiss stage without converting the motion to one for summary judgment.  We reverse and remand for further proceedings.

Franklin Community Development v. Darlene Lee
M2024-00191-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge David L. Allen

This case involves an unlawful detainer action filed by a community development center against a tenant for failure to pay rent and for unruly conduct.  The detainer action ultimately resulted in the tenant’s eviction and a monetary judgment against the tenant for delinquent rent payments.  The tenant now appeals the judgment of the trial court.  Because the tenant’s appellate brief does not comply with Tennessee Rule of Appellate Procedure 27 and Tennessee Court of Appeals Rule 6, we hereby dismiss the appeal.