The dispositive issue in this appeal is whether a third promissory note constituted a novation of two earlier promissory notes. Following a bench trial, the court found the defendant “carried her burden of proof to establish that the third note was a novation and cancelation of the previous two notes.” Plaintiffs appealed. We affirm.
Court of Appeals
In Re Houston D. W2021-00979-COA-R3-JV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge William A. Peeler
This appeal involves a petition for grandparent visitation filed by the paternal grandparents. The juvenile court granted the petition and the parents appeal. We reverse and dismiss the case.
Court of Appeals
In Re Alessa H. M2021-01403-COA-R3-PT
Authoring Judge: Judge John W,. McClarty
Trial Court Judge: Chancellor Stella L. Hargrove
Following the entry of a default judgment against a mother who failed to answer the petition to terminate her parental rights, the trial court terminated the mother’s parental rights to her child on the grounds of (1) abandonment by failure to establish a suitable home; (2) substantial noncompliance with the permanency plan; (3) persistence of conditions; and (4) failure to manifest an ability and willingness to personally assume custody or financial responsibility. The trial court further found that termination of the mother’s parental rights was in the child’s best interest. The mother moved to set aside the default judgment. We affirm the trial court’s denial of the motion to set aside the default judgment. We affirm the trial court’s conclusion that clear and convincing evidence supports the aforementioned grounds for termination. However, we remand for the trial court to determine whether the termination of the mother’s parental rights is in the best interest of the child pursuant to the new statutory factors which became effective on the date the petition was filed.
This appeal is a landlord-tenant dispute involving issues of liquidated damages and material breach of contract. The landlord filed a civil warrant in general sessions court to recover an early termination fee and other related fees pursuant to the parties’ lease agreement. The general sessions court entered a judgment in favor of the landlord finding that the early termination fee was reasonable and was not a penalty. The tenants appealed the judgment to the circuit court. The circuit court also entered a judgment in favor of the landlord finding that the early termination fee was reasonable and was not a penalty and that the landlord did not breach the lease agreement. The tenants appeal. We affirm as modified and remand to the circuit court for calculation of damages.
This appeal involves an award of attorney’s fees pursuant to Tenn. Code Ann. § 20-12-119(c). The trial court dismissed two of the plaintiff’s three claims for relief pled in his amended complaint pursuant to Tenn. R. Civ. P. 12.02(6), upon its finding that the plaintiff had failed to state a claim for which relief could be granted on the two claims. The third claim also was included in the defendant’s motion to dismiss, as well as arguments for improper venue and lack of subject matter jurisdiction, all of which were denied by the trial court. More than thirty days after a final judgment was entered, the defendant requested an award of attorney’s fees and discretionary costs. In his supporting affidavit, the defendant’s counsel included attorney’s fees as relevant to the entire motion to dismiss instead of distinguishing the time spent regarding the claims that were dismissed pursuant to Rule 12.02(6). The trial court awarded the defendant attorney’s fees in the amount of $10,000, which is the maximum amount of attorney’s fees a trial court can award under Tenn. Code Ann. § 20-12-119(c). The trial court denied the defendant’s request for discretionary costs as untimely. We affirm the trial court’s denial of discretionary costs, vacate the award of attorney’s fees, and remand for the Trial Court to reconsider the attorney’s fees award as consistent with this opinion and the Tennessee Supreme Court’s opinion in Donovan v. Hastings, No. M2019-01396-SC-R11-CV, -- S.W.3d -- , 2022 WL 2301177 (Tenn. June 27, 2022).
This appeal involves a multitude of challenges brought to the orders of the trial court in a post-divorce dispute involving minor children. We vacate the trial court’s decision to sua sponte order a new parenting plan, as well as to enter a temporary and permanent injunction against Mother. We also reverse the trial court’s decision to award Father discretionary costs for expert fees regarding an issue on which he did not prevail. Otherwise, we affirm the rulings of the trial court.
This appeal concerns the interpretation of a last will and testament, which provided for the creation of a trust. The decedent’s wife is the current income beneficiary of the trust, with the decedent’s son being a remainder beneficiary. The son requested an accounting of the trust financials, to which the trustees of the trust responded that the son was not entitled to receive them. The trustees filed a complaint for declaratory judgment asking the trial court to instruct the parties whether the son was entitled to the information he requested. The son subsequently filed a counterclaim asking that the trustees be required to provide him with the information he requested and alleging breach of trust by the trustees. The Trial Court granted the trustees’ motion for judgment on the pleadings after finding that the son was a remainder beneficiary and not a current income beneficiary of the trust and, therefore, was not entitled to financial information regarding the trust. The Trial Court found that the language in the decedent’s last will and testament was intended to override the reporting requirements of Tenn. Code Ann. § 35-15-813(a) and limit the trustees’ statutory obligation of reporting to qualified beneficiaries. In doing so, the Trial Court determined that the trustees were not required to provide the son with reports or other financial information concerning the trust. The Trial Court denied the son’s motion for judgment on the pleadings. Discerning no error, we affirm.
Court of Appeals
Barry Charles Blackburn Ex Rel. Briton B. v. Mark A. McLean, M.D. et al. M2021-00417-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Russell Parkes
This is a wrongful death health care liability action. At issue in this appeal are claims that
were asserted against a hospital and an emergency room physician. During the course of
litigation, the trial court permitted the defendants to amend their pleadings to assert a
comparative fault defense but placed certain limitations on any new experts the plaintiff
might retain to address the defense. The trial court also denied the plaintiff’s efforts to
secure a new standard of care expert when one of his retained experts withdrew from the
case and refused to testify. Ultimately, through a series of summary judgment orders, the
claims against the hospital and emergency room physician were dismissed. Although the
plaintiff generically challenges the trial court’s summary judgment dispositions on appeal,
we conclude that the plaintiff’s challenges are all waived except as they relate to the last
summary judgment order that was entered as to the emergency room physician. That
summary judgment order is reversed consistent with the discussion herein, namely in light
of our conclusion that the trial court abused its discretion in refusing to allow the plaintiff
to secure a substitute standard of care expert after his retained expert refused to testify due
to no fault of counsel or his client. Further, although we find no error in the trial court’s
decision to allow the defendants to amend their pleadings to assert comparative fault, we
are of the opinion that the court abused its discretion with respect to the limitations it placed
on any potential expert retained by the plaintiff to address the issues raised in the later
amendment alleging comparative fault.
This appeal concerns a penalty assessed against a company by the Tennessee Bureau of Workers’ Compensation (“the Bureau”). The Bureau assessed a penalty against Jase Enterprises, LLC (“Jase”), a construction company owned by Jason Usery (“Usery”), for failure to secure workers’ compensation insurance coverage. After a contested case hearing, the administrative law judge (“the ALJ”) upheld the penalty assessment but modified its amount. Jase petitioned for judicial review in the Chancery Court for Henderson County (“the Trial Court”). The Trial Court upheld the ALJ’s decision. Jase appeals to this Court, arguing among other things that it was not afforded due process and that the decision to assess a penalty against it was arbitrary. In particular, Jase argues that the evidence did not establish that Joe Sheldon (“Sheldon”) was a Jase employee. We find that Jase was afforded due process; it received adequate notice and had an opportunity to be heard. We find further that the penalty assessment against Jase was supported by substantial and material evidence, including Sheldon’s deposition. We affirm.
The plaintiff was injured when his car was hit by an uninsured driver. The plaintiff was initially paid $5,000.00 from the medical payments coverage of his automobile policy. A jury then found the plaintiff’s compensatory damages to total $80,000.00. The plaintiff’s uninsured motorist carrier then paid the plaintiff $45,000.00, representing the policy limit of $50,000.00 less the prior $5,000.00 payment. The plaintiff then sought to compel the uninsured motorist carrier to pay the additional $5,000.00 owed under the uninsured motorist policy. The trial court agreed and ordered the uninsured motorist carrier to pay the plaintiff an additional $5,000.00, resulting in total payment by the carrier to the plaintiff of $55,000.00. The uninsured motorist carrier appeals. We reverse the decision of the trial court.
This is an appeal from a final order entered on March 28, 2022. Because the appellant did not file her notice of appeal within thirty days after entry of the final order as required by Tennessee Rule Appellate Procedure 4(a), we dismiss the appeal.
Cody W. Bales, Defendant, pled guilty to statutory rape in July of 2019 and received a six-year sentence to be served on supervised probation after the service of 12 months in incarceration. A probation revocation warrant was issued in April of 2021. After a hearing, the trial court revoked probation in full, ordering Defendant to serve his sentence in incarceration. Defendant appeals. After a review, we determine that the trial court did not abuse its discretion in revoking Defendant’s probation. Accordingly, the judgment of the trial court is affirmed.
Court of Appeals
Tony Baker v. Shauna McSherry M2022-01024-COA-T10B-CV
Authoring Judge: Middle Section Presiding Judge, Frank G. Clement, Jr.
Trial Court Judge: Judge Sam Benningfield
This is an accelerated interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B section 2.02 from the trial court’s denial of a motion for recusal. Having reviewed the petition for recusal appeal, we affirm the trial court’s decision to deny the motion for recusal.
Court of Appeals
In Re Skylar M. E2022-00119-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ronald Thurman
The trial court terminated the parental rights of the father upon concluding that the petitioners had proven by clear and convincing evidence the following statutory grounds of termination: (1) abandonment by failure to visit the child, (2) abandonment by failure to support the child, (3) persistence of the conditions that led to the child’s removal from the father’s custody, (4) failure to manifest an ability and willingness to assume legal and physical custody of the child as a putative father, and (5) risk of substantial harm to the child’s physical or psychological welfare if returned to the putative father’s legal and physical custody. The father timely appealed. Upon review of the final order, we conclude that the trial court did not comply with Tennessee Code Annotated § 36-1-113(k) due to its failure to include sufficient findings of fact in its written order. We therefore vacate the trial court’s judgment and remand this matter to the trial court for the expedited entry of sufficient written findings of fact. We deny the petitioners’ request for attorney’s fees on appeal.
Court of Appeals
In Re Damium F. et al. M2021-01301-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Sheila Calloway
A mother appeals a trial court’s decision to terminate her parental rights to six of her
children based on five statutory grounds. She also challenges the trial court’s finding by
clear and convincing evidence that termination of her parental rights was in the best interest
of the children. Discerning no error, we affirm the trial court’s termination of the mother’s
Justin R. Allen (“Father”) appeals the trial court’s decision regarding custody of his two minor children. Because the order appealed from is interlocutory, this Court lacks subject matter jurisdiction and the appeal is dismissed.
In this premises liability action, the plaintiffs sued three local governments and a parks and recreation commission, jointly created by the local governments, to recover for injuries suffered by one of the plaintiffs when she stepped into a hole while attending a concert at a park maintained by the commission. The trial court dismissed the action as to the three local governments, concluding that they were immune under the state’s Governmental Tort Liability Act (“GTLA”). Later, the trial court granted the commission’s motion for summary judgment, ruling that the commission enjoyed immunity under both the GTLA and the state statutes known as the Recreational Use Statutes. We dismiss the appeal as to the three local governments, concluding we lack subject matter jurisdiction because plaintiffs failed to timely initiate an appeal against them. We affirm the trial court’s holding that the commission retained immunity under both the GTLA and the Recreational Use Statutes.
Appellant, Frances Diane Weeks Wright, has appealed an order of the Shelby County Probate Court (the “Trial Court”) that was entered on January 3, 2022. We determine that the January 3, 2022 order does not constitute a final appealable judgment. Therefore, this Court lacks jurisdiction to consider the appeal.
This appeal arises from a detainer action filed by a bank following a foreclosure sale. The defendant borrower filed a counterclaim for “Wrongful Foreclosure – Breach of Contract,” alleging that the plaintiff bank breached the deed of trust by failing to provide proper notice prior to acceleration. The trial court originally granted summary judgment in favor of the plaintiff bank, finding that notice was properly sent, but this Court reversed, concluding that genuine issues of material fact existed such that summary judgment could not be awarded to either party. On remand, the trial court permitted both parties to amend their answers. The plaintiff bank then asserted res judicata based on a prior lawsuit in federal court and moved for summary judgment on that basis. The trial court ultimately granted the plaintiff bank summary judgment, concluding that the defendant’s argument regarding lack of notice either was raised or should have been raised in her prior action in federal court in which she attempted to halt the foreclosure. The defendant appeals. We affirm and remand for further proceedings.
A landlord and tenant entered into a lease-purchase agreement. Near the end of the lease term, the tenant sought to exercise the purchase option. The landlord claimed that the tenant could not do so because she defaulted on rent payments. The landlord also argued that he terminated the agreement before the tenant exercised the option. The trial court rejected both arguments and granted the tenant specific performance of the purchase option. We affirm.
This is an interlocutory appeal from the trial court’s decision to deny a motion to compel arbitration. For the reasons stated herein, we affirm the trial court’s order.
Court of Appeals
In Re Lyric N. E2021-00578-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Beth Boniface
Upon competing petitions for adoption of a minor child whose parents are deceased, the trial court conducted a bench trial and a comparative fitness analysis of the petitioner, who is the child’s maternal grandmother, and the intervening petitioner, who is the child’s paternal aunt. The trial court found that it was in the best interest of the child to be adopted by the paternal aunt while also maintaining visitation with the maternal grandmother. Prior to the bench trial, the trial court set aside its own previously entered order granting what had been presented to the trial court by the maternal grandmother as an uncontested petition for adoption of the child despite the paternal aunt’s status as custodian of the child pursuant to a juvenile court order. In the trial court’s final order, it granted the paternal aunt’s petition for adoption and directed that the maternal grandmother would have unsupervised visitation with the child on alternate Sundays. The maternal grandmother has appealed both the order setting aside the initial grant of her adoption petition and the judgment granting the paternal aunt’s petition. Discerning no error in the trial court’s decision to set aside the initial adoption decree, we affirm the set-aside order. However, having determined that under the facts and circumstances of this case, the trial court committed reversible error by conducting an in camera interview with the child without counsel or a court reporter present and then withholding the court’s summary of the testimony until entry of the final judgment, we vacate the court’s judgment granting the paternal aunt’s petition. We remand for the trial court to conduct an evidentiary hearing solely to afford the parties an opportunity to present evidence in response to the child’s testimony and to enter a judgment after consideration of all proof presented during the trial and on remand.
A wife sought relief from a default judgment that granted her husband a divorce and awarded him alimony. The wife argued that the trial court lacked jurisdiction to enter the default because she was not properly served with the complaint and that jurisdiction was not proper under Tenn. Code Ann. § 20-2-214. The trial court denied the wife’s Tenn. R. Civ. P. 60.02 motion. Finding that the wife was entitled to a hearing on her Tenn. R. Civ. P. 60.02 motion, we reverse and remand for further proceedings.