Court of Appeals Opinions

Format: 12/07/2022
Format: 12/07/2022
Linda Kindred, et al. v. Evelyn Townsend, et al.
W2021-01481-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Valerie L. Smith

This negligence action arises from the collision of Plaintiff/Appellee’s Mercedes convertible with a tractor-trailer operated by Defendant/Appellant in the scope of her employment. The trial court determined that Appellant was more than 50 percent at fault for the accident and apportioned 75 percent fault to Appellant and 25 percent fault to Plaintiff/Appellee. The trial court also determined that Defendant/Appellant employer was vicariously liable for the damages awarded. Discerning no error, we affirm the judgment of the trial court.

Shelby County Court of Appeals 12/07/22
Deborah Russell v. HSBC, Inc. et al.
M2020-01181-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Anne C. Martin
A pro se plaintiff filed a 543-page complaint containing improper allegations and claims.
The trial court struck the complaint and ordered the plaintiff to refile. The plaintiff then
filed an amended complaint of less than half the length, but containing many of the same
deficiencies as the original complaint. The court again struck the offensive portions and
ordered the plaintiff to refile. The court also dismissed several of the defendants because
the amended complaint failed to state a claim against them for which the court could grant
relief. Rather than file a second amended complaint, the plaintiff moved several times to
recuse the trial judge. Having failed to file a proper complaint within the time specified,
the court dismissed the case. We affirm.
Davidson County Court of Appeals 12/06/22
Anthony Perry v. Tennessee Department of Corrections
M2022-00108-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Ellen Hobbs Lyle
An inmate convicted of first-degree murder in 1999 filed this declaratory judgment action
challenging the Tennessee Department of Correction’s calculation of his release eligibility
date. The trial court granted the Tennessee Department of Correction’s motion for
summary judgment dismissing the petition. Discerning no reversible error, we affirm.
Davidson County Court of Appeals 12/06/22
Wayne Haddix d/b/a 385 Ventures, Inc. v. Jayton Stinson, et al.
W2022-01618-COA-T10B-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor JoeDae L. Jenkins

This is an accelerated interlocutory appeal as of right filed pursuant to Tennessee Supreme Court Rule 10B. Due to numerous deficiencies in the petition, the appeal is hereby dismissed.

Shelby County Court of Appeals 12/05/22
Roger Scott Austermiller v. Penny Smith Austermiller
M2022-01611-COA-T10B-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Deanna Bell Johnson
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 in a pending divorce
action. The husband moved for recusal based on comments the presiding judge made after
the husband failed a court-ordered drug test. The judge stated from the bench, “If I could
put [the husband] in drug court, I would. It’s a two-year program. I would certainly love
for him to be in that. Unfortunately, he doesn’t qualify because it’s not for domestic. It’s
for criminal.” In the order denying the husband’s motion, the judge stated: “the Court made
these suggestions only to help [the husband] get well and beat his addiction so he can be a
father to his two children.” The court also found that the husband filed his motion “for an
improper purpose, i.e., to delay the litigation.” We have concluded that the motion was not
filed for an improper purpose; however, we find the evidence is insufficient to prompt a
reasonable, disinterested person to believe that the judge’s impartiality might reasonably
be questioned. Accordingly, the judgment of the trial court denying the motion for recusal
is affirmed.
Williamson County Court of Appeals 12/05/22
State of Tennessee, ex rel., Kimberly Krepela Hoard v. Richard Lane Barrom
W2022-00085-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Dan H. Michael

In this Title IV-D child support case, the juvenile court modified a father’s child support obligation pursuant to the Child Support Guidelines after the child had reached the age of majority and had graduated high school. We vacate and remand.

Shelby County Court of Appeals 12/02/22
Jeremy R. Durham v. Tennessee Registry of Election Finance
M2021-01455-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Anne C. Martin
This case involves the imposition of a civil penalty by the Tennessee Registry of Election
Finance as the result of multiple violations of the Campaign Financial Disclosure Act and
the Campaign Contribution Limits Act. An appeal of the Registry’s decision was decided
by an Administrative Law Judge who generally affirmed the decision of the Registry but
significantly reduced the civil penalty. After further review by the Registry, the penalty
was largely reinstated. Upon further appeal, the Chancery Court affirmed the decision of
the Registry. We affirm.
Davidson County Court of Appeals 12/02/22
Brandon Copeland v. Tennessee Department of Correction
M2021-01557-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Ellen Hobbs Lyle

The appellant, a former Tennessee Department of Correction (“TDOC”) employee, challenges the Tennessee Board of Appeals’ decision upholding his dismissal as an employee due to actions allegedly constituting official misconduct and tampering with evidence. The appellant requests that this Court overrule or modify the Tennessee Supreme Court’s holding in Tenn. Dep’t of Corr. v. Pressley, 528 S.W.3d 506 (Tenn. 2017), which this Court lacks authority to do. Although we conclude that the appellant has waived his remaining two issues on appeal by failing to provide legal authority or argument, we further conclude that the Tennessee Board of Appeals’ decision was supported by substantial and material evidence. We therefore affirm the Davidson County Chancery Court’s final judgment dismissing the appellant’s petition for judicial review with prejudice.

Davidson County Court of Appeals 12/02/22
Genevieve Thomas v. Cass Clay Thomas
W2021-01092-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge James F. Russell

This is an appeal of a divorce case involving the awarding of alimony and the division of marital property. The trial court entered an order summarily denying the wife’s various motions, including a motion to alter or amend the judgment. Upon our review of the record, we vacate the trial court’s order and remand for a review pursuant to Rule 63 of the Tennessee Rules of Civil Procedure.

Shelby County Court of Appeals 12/01/22
Jeffrey Lee Self v. Jennifer Dawn Self
E2021-01130-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jerri S. Bryant

In this divorce action the husband raises multiple issues on appeal concerning, inter alia, the factual accuracy of the trial court’s judgment; the trial court’s grant of divorce to the wife on the ground of inappropriate marital conduct; the trial court’s equitable distribution of the marital property, including the trial court’s one-time award to the wife of $50,000 as part of the distribution; the trial court’s findings concerning the husband’s income, expenses, and ability to work; and the trial court’s award to the wife of $3,000 in attorney’s fees as alimony in solido. The husband has not directly raised an issue regarding the trial court’s award to the wife of $850 monthly as alimony in futuro. We determine that with the exception of one issue related to the trial court’s miscalculation of the marriage’s duration, which we deem to have been harmless error, the husband has waived all issues by failing to comply with Tennessee Rule of Appellate Procedure 24(b)-(c) and Tennessee Court of Appeals Rule 7. We accordingly affirm the trial court’s judgment. Deeming this to be a frivolous appeal, we grant the wife’s request for reasonable attorney’s fees on appeal and post-judgment interest on the trial court’s alimony awards.

Bradley County Court of Appeals 12/01/22
Benjamin McCurry v. Agness McCurry
E2022-00635-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge James E. Lauderback

Appellant/Mother filed a post-divorce petition for contempt against Appellee/Father for alleged violations of the parenting plan. Mother also moved to change the child’s primary residential parent from Father to her. The trial court held that there was no contempt and further held that there was not a material change in circumstances to warrant a change in the child’s primary residential parent. Mother appeals. Discerning no error, we affirm.

Washington County Court of Appeals 12/01/22
Molly Leann Green v. Michael Wayne Green
E2022-01518-COA-T10B-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Daryl A. Colson

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, filed by Molly Leann Green (“Mother”), seeking to recuse the judge in this case involving parenting issues. Having reviewed the petition for recusal appeal filed by Mother and the answer filed by Michael Wayne Green (“Father”) pursuant to this Court’s order, and finding no error, we affirm.

Fentress County Court of Appeals 12/01/22
Olivia May Marcel v. Brad Joseph Marcel
M2021-00594-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Vanessa A. Jackson
This appeal arises from a divorce proceeding. The Coffee County Chancery Court (“Trial
Court”) ordered the husband to pay the wife alimony in futuro of $1,500 per month. The
Trial Court further ordered that the husband’s child support obligation would be calculated
by using his previous four pay stubs, each of which reflected a pay period of one week.
Upon our determination that a period of four weeks is not a reasonable period of time to
calculate child support when the parent has regularly received variable income, we vacate
the Trial Court’s award of child support and remand for recalculation based on the
husband’s income for a reasonable period of time. We affirm the Trial Court’s
determination that alimony in futuro was appropriate in this case but vacate the Trial
Court’s determination of the amount of alimony for reconsideration after its calculation of
the husband’s child support obligation.
Coffee County Court of Appeals 11/30/22
Trevor Adamson v. Sarah E. Grove, et al.
M2020-01651-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Joe Thompson
In this case, the plaintiff filed a complaint alleging defamation and related causes of action.
Before the defendants filed an answer or any other pleading, the plaintiff filed a notice of
voluntary dismissal, and the trial court entered an order of voluntary dismissal without
prejudice. Within thirty days, the defendants filed a combined motion to alter or amend
and petition to dismiss the complaint with prejudice pursuant to the Tennessee Public
Participation Act (TPPA), Tenn. Code Ann. § 20-17-101, et seq., seeking an award of
attorney fees and sanctions. The trial court ultimately entered an order altering or
amending the order of voluntary dismissal without prejudice, granting the defendants’
petition to dismiss with prejudice under the TPPA, and ordering the plaintiff to pay $15,000
in attorney fees in addition to $24,000 in sanctions. The plaintiff has appealed and raised
numerous issues, including a challenge to the trial court’s subject matter jurisdiction after
the nonsuit. For the following reasons, we reverse the trial court’s order granting the
motion to alter or amend, vacate the trial court’s order granting the appellees’ petition to
dismiss with prejudice and awarding attorney fees and sanctions, and remand.
Sumner County Court of Appeals 11/30/22
Angela Marie Heisig v. Andrew Carl Heisig
E2021-00925-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kyle E. Hedrick

This appeal requires interpretation of a clause in the parties’ marital dissolution agreement. The final decree, entered in January 2018, incorporated the parties’ agreement awarding the wife $130,000 from the husband’s 401(k). After several rounds of qualified domestic relation orders and other court orders, the trial court ultimately held that the wife was entitled to $130,000 plus approximately four months of statutory interest. The wife appealed, seeking earnings on the $130,000 in addition to interest. We affirm the judgment of the trial court.

Hamilton County Court of Appeals 11/29/22
Louise Faulkner ET AL. v. Nationstar Mortgage LLC
W2020-01148-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Mary L. Wagner

This case involves a controversy surrounding certain real property located in Memphis. The trial court entered summary judgment in favor of the Defendant on most claims, and after a jury trial and verdict in favor of the Defendant, the remaining claim was also dismissed. Although the homeowner of the property raises a number of issues in this appeal, we affirm the trial court’s judgment.

Shelby County Court of Appeals 11/29/22
Jessica Marie Forsythe, et al. v. Jackson Madison County General Hospital District, et al.
W2021-01228-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Roy B. Morgan, Jr.

The trial court granted the defendant medical providers summary judgment on the basis of the plaintiff s failure to comply with the Tennessee Health Care Liability Act's pre-suit notice and good faith certificate requirements. On appeal, the plaintiff, an employee of the defendants, argues that her claim does not relate to the provision of health care services and that she was therefore not required to give pre-suit notice or file a good faith certificate. Because we conclude that the trial court did not err in determining that the claim is related to the provision of health care services, we affirm.

Madison County Court of Appeals 11/28/22
In Re Melvin M. et al.
M2021-01319-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Sheila Calloway
A father appeals the termination of his parental rights to his two children. The juvenile
court concluded that there was clear and convincing evidence of five statutory grounds for
terminating his parental rights. The court also concluded that there was clear and
convincing evidence that termination of the father’s parental rights was in the children’s
best interest. On appeal, although we conclude that there is not clear and convincing
evidence to support three of the grounds, clear and convincing evidence supports the
remaining grounds for termination and the best interest determination. So we affirm.
Davidson County Court of Appeals 11/28/22
Suzanne R. Vance v. Sally Ann Blue et al.
M2021-00064-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins
Co-owners sought partition of their real property. They agreed that the property, a singlefamily
home, could not be partitioned in kind. But they disagreed on the appropriate
remedy. One owner asked the court to order a public sale and divide the proceeds between
the parties. The other owner sought permission to buy out her co-owner’s interest. The
court declined to order a sale. Instead, based on the equities, it directed one owner to buy
out the other owner’s interest at a fixed price. Because the court’s decision contravened
the partition statutes, we reverse in part, affirm in part, and remand for further proceedings.
Davidson County Court of Appeals 11/28/22
In Re Cayson C., Et Al.
E2022-00448-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Steven Lane Wolfenbarger

This appeal concerns the termination of a mother’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Grainger County (“the Juvenile Court”) seeking to terminate the parental rights of Pamela C. (“Mother”) to her minor children Cayson S.-C. and Chaston C. (“the Children,” collectively). After a hearing on the termination petition, the Juvenile Court entered an order terminating Mother’s parental rights to the Children. Mother appeals. We vacate the ground of failure to manifest an ability and willingness to assume custody because the Juvenile Court failed to make specific findings regarding the second prong of that ground. We find that all other grounds found by the Juvenile Court were proven by clear and convincing evidence. We find further, as did the Juvenile Court, that termination of Mother’s parental rights is in the Children’s best interest. We affirm as modified.

Grainger County Court of Appeals 11/28/22
Lorenta Hogue v. P&C Investments, Inc. et al.
M2021-01335-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Anne C. Martin

This is an appeal from a jury verdict holding a real estate agent liable for common law negligence, intentional misrepresentation and fraud, negligent misrepresentation, and violation of the Tennessee Real Estate Broker License Act for his failure to disclose flooding and water intrusion issues at a home he had listed for sale. The jury awarded the plaintiff, a first-time home buyer, compensatory and punitive damages. The real estate agent appeals the jury’s verdict holding him liable for intentional misrepresentation and fraud, the admission of certain expert testimony, the admission of opposing counsel’s alleged prejudicial statements during closing argument, the amount of compensatory damages, and the award of and amount of punitive damages. Finding that the trial court failed to follow the appropriate procedures in reviewing the jury’s award of punitive damages, we vacate the award of punitive damages and remand the case for further proceedings. In all other respects, the judgment of the trial court is affirmed.

Davidson County Court of Appeals 11/23/22
In Re Legion S.
E2021-01198-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Brian J. Hunt

The Tennessee Department of Children’s Services filed a petition to terminate a mother’s parental rights to her daughter based on severe child abuse and failure to manifest an ability and willingness to assume custody of the child. The trial court granted the petition, finding that the two statutory grounds were proven by clear and convincing evidence and that terminating the mother’s parental rights is in the best interests of the child. We affirm.

Anderson County Court of Appeals 11/22/22
In Re Masson S.
E2021-01196-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Brian J. Hunt

The Tennessee Department of Children’s Services filed a petition to terminate a mother’s parental rights to her son based on abandonment by failure to provide a suitable home, abandonment by an incarcerated parent, substantial noncompliance with permanency plans, failure to remedy persistent conditions, and failure to manifest an ability and willingness to assume custody of the child. The trial court granted the petition, finding that the five statutory grounds were proven by clear and convincing evidence and that terminating the mother’s parental rights is in the best interests of the child. We affirm.

Anderson County Court of Appeals 11/22/22
Randolyn Laferney v. Kim Livesay Et Al
E2021-00812-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge E. Lauderback

Plaintiff Randolyn Laferney filed a tort action against several defendants, alleging causes of action for, inter alia, libel, civil conspiracy, and malicious prosecution. The allegations arose primarily out of social media comments and posts made by the defendants regarding Ms. Laferney. On December 10, 2020, the trial court dismissed the legal action as to some, but not all, of the defendants pursuant to Tennessee’s anti-SLAPP statute, the Tennessee Public Participation Act (“the TPPA” or “the Act”). Several months later, after the trial court awarded the dismissed defendants their attorney’s fees, Ms. Laferney appealed to this Court. Because we conclude that the notice of appeal was untimely pursuant to the TPPA, the appeal is dismissed.

Washington County Court of Appeals 11/22/22
In Re Estrella A. et al.
M2022-00163-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Tim Barnes
Mother appeals the termination of her parental rights on five grounds, including severe
child abuse. Because we conclude that clear and convincing evidence supports the grounds
for termination and that termination is in the children’s best interests, we affirm.
Montgomery County Court of Appeals 11/21/22