COURT OF APPEALS OPINIONS

Kenneth Merritt v. Wipro Limited
W2023-00789-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Mary L. Wagner

The notice of appeal in this case was not timely filed. Therefore, this Court lacks
jurisdiction to consider this appeal. The appeal is dismissed.

Dawn Marie Pennington v. Joel David Pennington, III
W2023-01691-COA-T10B-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Bruce Irwin Griffey

This is an accelerated interlocutory appeal as of right pursuant to Rule 10B of the Rules of
the Supreme Court of Tennessee from the chancery court’s denial of a motion to recuse.
An attorney negotiated a settlement on behalf of a client in litigation over the
administration of an estate. The same attorney subsequently assisted his client in the prior
litigation in filing a related suit in which the party obtained default judgment. The Plaintiff
in the present case is seeking to set aside that default judgment and to obtain other relief,
asserting the Defendant acted unscrupulously in filing a suit on matters which had
previously been settled. The trial judge reported the attorney, who is no longer the attorney
representing the Defendant, to the Board of Professional Responsibility based on the filing
of the suit which resulted in the default judgment. The Defendant seeks recusal of the trial
judge, asserting that the judge’s impartiality might reasonably be questioned. The judge
denied the motion for recusal, finding that he could be fair and impartial, had not prejudged
any matters, and that a person of ordinary prudence would find no reasonable basis
for questioning his impartiality. We affirm.

Laurel Tree II Homeowners Association Inc. v. Dora Wilson Moore
W2021-01275-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Valerie L. Smith

This appeal concerns a suit brought by a homeowner’s association to enforce a property
restriction contained in its declarations against a resident subject to the declarations. After
the filing of a motion for judgment on the pleadings by the homeowner’s association, the
trial court granted it relief and entered an injunction against the homeowner. The
homeowner appealed. We conclude that the trial court properly granted the homeowner’s
association’s motion for judgment on the pleadings and affirm the trial court’s judgment.

Kisha Dean Trezevant v. Stanley H. Trezevant, III
W2021-01153-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Mary L. Wagner

This is the second appeal concerning the trial court’s distribution of the divorcing parties’ marital property.  Following a prior appeal, this matter was remanded to the trial court to, inter alia, value and equitably divide the assets and debts contained in the parties’ marital estate.  The trial court appointed a special master to complete these tasks.  At the beginning of the special master’s hearing, the parties entered into a stipulation agreement concerning the values of certain marital properties, including their associated debts.  Upon the conclusion of the special master’s hearing, the parties stipulated to the special master’s findings.  The trial court subsequently conducted an additional hearing and entered its own findings, which it relied upon to formulate an equitable division of the marital estate pursuant to Tennessee Code Annotated § 36-4-121(c).  The husband has appealed the trial court’s division of the marital estate, arguing that the court’s mathematical and other errors rendered the division of the marital estate inequitable.  Discerning no reversible error, we affirm the trial court’s judgment as modified herein.  We decline to award attorney’s fees to the wife on appeal.

Stoneybrooke Investors LLC v. Agness McCurry
E2023-01673-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge D. Kelly Thomas

Because the order from which the appellant has filed an appeal does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal

Matthew Swilley et al v. William Thomas et al
E2022-01801-COA-R3-CV
Authoring Judge: Judge Kristi Davis
Trial Court Judge: Judge Pamela Fleenor

Appellants Matthew Swilley ("Swilley") and Samuel Barr ("Barr") entered into two agreements to purchase mobile home parks from William Thomas ("Thomas"). The buyers had not secured financing in order to close on the originally agreed upon closing date. The seller granted the buyers a number of extensions of the closing date; however, the buyers were ultimately unable to obtain financing in time to close by any of the dates demanded by the seller. As a result, the seller rescinded the agreements and shortly thereafter sold the properties to unrelated third parties for a higher price than provided for in the agreements with Swilley and Barr. Swilley, Barr, and their purported assignee, SB Capital LLC ("SB Capital" or, together with Swilley and Barr,"Plaintiffs"), brought suit against the seller for breach of contract and for a declaratory judgment as to the proper disbursement of the earnest monies held in escrow. The trial court granted summary judgment in favor of the seller on Plaintiffs' breach of contract claim, finding that Plaintiffs were the first to materially breach the agreements. Discerning no error, we affirm the judgment of the trial court.

Louise Ann Sexton v. Michael Bryant Sexton
E2023-00136-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Richard Armstrong

The Chancery Court for Knox County ("the Trial Court") found in this divorce action that Michael Bryant Sexton ("Husband") was the sole owner of Furious Properties, LLC and that he had purchased two Knox County real properties and deeded thern to Furious Properties, LLC. The Trial Court accordingly found that the entire interest in Furious Properties, LLC constituted marital property subject to equitable division and awarded
the two Knox County properties to Louise Ann Sexton ("Wife"). The Trial Court ordered Husband or a representative of Furious Properties, LLC to convey the entire interest in the Knox County properties by quitclaim deed to Wife within thirty days of the entry of the judgment. Husband's issues relate primarily to the property division. To the extent the Trial Court awarded property of a non-party LLC to Wife, we reverse and remand for the Trial Court to clarify its award, while acknowledging that the Trial Court may have intended to award Husband's interest in Furious Properties, LLC, rather than the LLC's properties themselves, to Wife. We further modify the Trial Court's judgment to reflect that the Trial Court granted the parties a divorce on stipulated grounds and to remove language granting the parties a divorce on the ground of irreconcilable differences. We affirm the balance of the judgment. We deny Wife's request for attorney's fees on appeal.

In Re Danielle V., et al.
W2023-01023-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Clayburn Peeples

This appeal concerns termination of parental rights. The Tennessee Department of
Children’s Services (“DCS”) filed a petition in the Circuit Court for Gibson County (“the
Trial Court”) seeking to terminate the parental rights of Kristie C. (“Mother”), Jose O.
(“Father”), Jose H., and Giovani C. to the minor children D.V., G.V., J.C., H.V., K.O.,
A.V., C.O., and R.V. (“the Children,” collectively). After a hearing, the Trial Court
entered an order terminating Mother’s and Father’s parental rights to the Children based
on the ground of severe child abuse. The Trial Court found further that termination of
Mother’s and Father’s parental rights is in the Children’s best interest. Mother and Father
appeal. While conceding the ground of severe child abuse, they argue that the Trial Court
erred in its best interest analysis, which they say was inadequate. We find, as did the Trial
Court, that the ground of severe child abuse was proven against Mother and Father by clear
and convincing evidence. In addition, we find that the Trial Court’s findings of fact were
sufficient to underpin its best interest analysis, and that the evidence is clear and convincing
that termination of Mother’s and Father’s parental rights is in the Children’s best interest.
We affirm.

Andrew Francis Tittle v. Deidre Lyn Deyoung Tittle
M2022-01299-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Joseph A. Woodruff

This is a divorce action in which the trial court awarded the wife a divorce based on the husband’s inappropriate marital conduct, divided the marital estate and awarded the wife, inter alia, child support as well as transitional alimony of $2,000 per month for four years, followed by $1,500 per month for two years, then $1,000 per month for two years, and $500 per month for two years. The court also awarded the wife alimony in solido of $50,000 as necessary spousal support and an additional $75,000 to defray the cost of most of her attorney’s fees. The husband appeals. We have determined that the record contains an inconsistency concerning the amount of the work-related childcare expenses the husband is required to pay, and it appears that the trial court failed to consider the husband’s obligation to pay work-related childcare costs in setting transitional alimony at $2,000 per month during the first four years, which additional expense appears to impair the husband’s ability to pay that amount. Accordingly, we vacate the award of child support and that portion of the transitional alimony award and remand these issues for reconsideration, taking into account, inter alia, the allocation of childcare expenses, the wife’s need, and the husband’s ability to pay. We affirm the trial court in all other respects. Both parties seek to recover the attorney’s fees and costs each incurred in this appeal. Exercising our discretion, we deny both requests.

In Re Estate of Adam Randall Wilson
W2023-00313-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Kyle C. Atkins

This appeal arises from a will contest. The circuit court entered summary judgment
upholding the will, finding no genuine issue of material fact existed as to its validity. The
contestant appeals. We affirm and remand to the probate court for further probate
proceedings.

Lisa Kelley, et al. v. Nathaniel Root, et al.
W2022-01625-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge J. Weber McCraw

The mother of a high school student involved in an altercation with the opposing basketball
team’s coach appeals the trial court’s grant of summary judgment to the coach and the
county board of education. Because the video footage of the altercation is open to more
than one interpretation, a genuine dispute of material fact remains as to the intention behind
the coach’s contact with the student and summary judgment is reversed as to the state law
assault and battery claims against the coach. The grant of summary judgment as to the
remaining claims against both the coach and the board is affirmed.

In Re Conservatorship of David William Milem
W2023-01743-COA-T10B-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Kathleen N. Gomes

This is an interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B,
filed by the ward’s son, Paul Milem, seeking to recuse the trial judge in this case. Having
reviewed the petition for recusal appeal filed by Mr. Milem, and finding no error, we
affirm.

Henri Etta Brooks v. State of Tennessee
W2022-01340-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Commissioner James A. Hamilton, III

The Claims Commissioner dismissed the claimant’s claim due to lack of subject matter
jurisdiction. Discerning no error, we affirm.

Pejhman Ehsani v. Eugenia Michelle Ehsani
M2022-01819-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Phillip R. Robinson

This appeal arises from an order granting, among other discovery sanctions, a default judgment against Husband in a divorce proceeding. Husband questions whether the trial court abused its discretion in entering sanctions against him. Because the trial court did not engage in the necessary analysis regarding its reasoning for granting the discovery sanctions, we vacate the sanctions order, as well as the subsequent orders that followed, including the order granting the parties’ divorce. This disposition pretermits inquiry into issues Husband has raised on appeal with respect to trial court determinations that followed the sanctions. Moreover, as to a remaining matter raised by Husband on appeal, we conclude that the issue is waived due to Husband’s failure to comply with applicable briefing requirements.

Angela Askew v. Nicholas Askew
W2023-01700-COA-R3-CV
Authoring Judge: Per Curium
Trial Court Judge: Judge Mary L. Wagner

The notice of appeal in this case was not timely filed. Therefore, this Court lacks
jurisdiction to consider this appeal. The appeal is dismissed.

Auxin, LLC et al. v. DW Interests, LLC et al.
M2022-01087-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Jonathan L. Young

This appeal concerns a claim for declaratory judgment and counterclaims for intentional misrepresentation and breach of contract arising from a series of agreements related to the development of a hotel and conference center in Cookeville, Tennessee. The developed property was to be owned by a limited liability company, and the plaintiffs sought a declaration that they had a right to buy the defendants’ interest in that company pursuant to an option in the operating agreement, which was to become effective upon a determination that the hotel project could not be completed with two identified, adjoining pieces of property. For their part, the defendants sought awards of compensatory and punitive damages based on allegations that the plaintiffs misrepresented their ability and intent to assist with financing and development tasks and then failed to perform those tasks as required by the parties’ development agreement. After the defendants filed their answer and counter-complaint, the plaintiffs moved for judgment on the pleadings based, in principal part, on the “undisputed” fact that the real estate purchase agreement for one of the two development properties had terminated. The plaintiffs also moved to dismiss the defendants’ intentional misrepresentation counterclaim for failure to state the allegations of fraud with particularity. But after the motions were filed and before they were heard, the defendants filed an amended answer with leave of the court in which they denied that the real estate purchase agreement had been properly terminated and asserted more particularized facts in support of their misrepresentation counterclaim. Nonetheless, the trial court granted the plaintiffs’ motions, declared that the real estate purchase agreement had been terminated, and dismissed the misrepresentation counterclaim. The plaintiffs then filed a motion to dismiss or for summary judgment on the remaining counterclaim for breach of contract, along with a motion for judicial notice of several public records. The trial court granted the motion under Rule 12.02 and, in the alternative, Rule 56. The defendants appeal. We vacate the trial court’s ruling that the plaintiffs were entitled to judgment on the pleadings because the defendants denied that the real estate purchase agreement had been properly terminated. But we affirm the dismissal of the misrepresentation counterclaim because the defendants failed to allege facts to establish the elements of their claim. We also affirm the trial court’s denial of the motion to continue because the record shows that the defendants were dilatory in prosecuting their contract claim. But we disagree with the court’s decision to take judicial notice of two newspaper articles, and we vacate the trial court’s ruling that the plaintiffs were entitled to dismissal of the contract counterclaim under Rule 12.02 and Rule 56. Thus, the decision of the trial court is vacated in part and affirmed in part, and this matter is remanded for further proceedings consistent with this opinion.

In Re Nation F.
W2023-00510-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John W. Whitworth

This is a termination of parental rights case. The trial court terminated Mother’s and
Father’s parental rights on the ground of severe child abuse, and on its finding that
termination was in the child’s best interest. The trial court also terminated Father’s rights
on the additional ground that he was sentenced to incarceration for more than ten years
when the child was under eight years of age. Mother and Father appeal. Discerning no
error, we affirm.

J.E. Allen Company, LLC v. Progress Construction Inc., ET AL.
W2022-00648-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor JoeDae L. Jenkins

An owner and a contractor executed a standard form construction agreement. The contract
identified the “Contractor” as a corporation and two individuals. Only one of the individuals
signed the contract, but he did so as president of the corporation. After a dispute arose with
a supplier, the owner filed a third-party complaint against the individual who signed on
behalf of the corporation. The individual moved to dismiss and/or for judgment on the
pleadings, arguing that he was not a party to the contract. The court agreed and dismissed
the claims against him with prejudice. We reverse.

Marvin L. Miller v. City of LaFollette et al.
E2023-00197-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Elizabeth C. Asbury

The genesis of this case lies in the investigation into a city’s police department and subsequent termination of the appellant, a former police department employee. After the appellant was terminated, his counsel sent a public records request to the city, one of the appellees herein, pursuant to the Tennessee Public Records Act. Through this public records request, the city was asked for copies of, among other things, “investigative material” related to the appellant. Although some records were initially produced in response to the public records request, other records were not provided until after litigation was initiated by the appellant in chancery court. Certain “investigatory” records that had formerly been in the possession of an attorney hired by the city to investigate the police department were not ever produced. Although the parties dispute whether such “investigatory” records would be subject to disclosure under the Tennessee Public Records Act, such records had, according to the findings of the chancery court, been destroyed by the time the city received the public records request at issue herein. Upon the conclusion of the trial litigation, the chancery court also found that “all requested documents that exist had been provided” and determined that the city “did not willfully refuse to disclose documents and records.” In light of its determination that the city did not act willfully, the chancery court held that attorney’s fees would not be awarded in this case. For the reasons stated herein, the chancery court’s judgment is affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with this Opinion.

William J. Needham et al v. Robert G. Gerwig II
E2023-00394-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John B. Bennett

In this personal injury case, Appellants, Husband and Wife, alleged that Appellee’s dog collided with Husband’s bicycle causing him to crash and sustain injuries. The trial court granted summary judgment in favor of Appellee dog owner, finding that Appellants failed to meet their burden to show that Appellee’s dog was involved in the accident. Discerning no error, we affirm and remand.

Jessica Neal v. Patton & Taylor Enterprises, LLC
W2022-01144-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James F. Russell

This appeal arises from a single-car accident in which the vehicle crashed into a fence,
dumpster, and construction materials in the far-right lane of a city street. The plaintiff,
who was sitting in the front passenger seat of the vehicle at the time of the accident,
executed a release with the driver and the driver’s insurance company. The plaintiff
subsequently filed a complaint against the construction company who placed the
construction materials on the street, alleging negligence and negligence per se. The
defendant filed a motion for summary judgment. The trial court granted the motion on the
ground that the claim against the defendant was precluded by the release. The plaintiff
appealed. We reverse and remand for further proceedings consistent with this opinion.

Jason Britt v. Richard Jason Usery, et al.
W2022-00256-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Donald H. Allen

The Plaintiff hired the Defendant to build a concrete foundation for his new home. The
foundation was allegedly defective. The Plaintiff hired a third party to remove the concrete
and to properly complete the work. The Plaintiff then sued the Defendant, alleging breach
of contract, negligent construction, and fraud. The case languished for several years. The
trial court ordered the Plaintiff to provide dates on which the Defendant could inspect
certain evidence, but the Plaintiff failed to comply. The trial court then orally granted the
Defendant’s motion to dismiss with prejudice for failure to prosecute. Before the trial court
entered a written order, the Plaintiff filed a notice of voluntary dismissal. The trial court
concluded that the Plaintiff’s notice was untimely submitted, coming after the oral ruling
granting the motion to dismiss, and entered a written order dismissing the Plaintiff’s case
with prejudice for failure to prosecute. Concluding that the Plaintiff maintained his right
to a voluntary dismissal under Tennessee Rule of Civil Procedure 41.01(1), we reverse.

State of Tennessee, ex rel., William Goetz v. Donel Autin, et al
W2023-01385-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Rhynette N. Hurd

The notice of appeal in this case was not timely filed. Therefore, this Court lacks
jurisdiction to consider this appeal. The appeal is dismissed.

Lee Ardrey Harris v. Alena Marie Allen
W2023-01794-COA-T10B-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor JoeDae L. Jenkins

The appellant is the Mayor of Shelby County. He filed a complaint for divorce, and the
Shelby County chancellor originally assigned to the case recused herself. The case was
reassigned to another Shelby County chancellor who accepted the case. Six months later,
the appellant filed a motion to recuse the chancellor based on the Mayor’s budgetary duties
regarding Shelby County government, including the chancery court and the chancery court
clerk. The chancellor denied the motion, finding that it was not filed promptly in
accordance with Tennessee Supreme Court Rule 10B. We affirm.

Erica Wayne Barton v. Mechelle Scholmer Barton
E2022-01574-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This is an appeal of a trial court’s valuation of a marital asset, division of a marital estate, and award of alimony in solido as a result of the divorce of Eric Wayne Barton (“Husband”) and Mechelle Scholmer Barton (“Wife”). In its 2018 Final Judgment of Divorce (“2018 Judgment”), the Chancery Court for Blount County (“the Trial Court”) found that Husband’s 100% interest in Vanquish Worldwide, LLC, (“Vanquish Worldwide”) was marital property and that Vanquish Worldwide’s outstanding claim for potentially $32 million against the U.S. Government (“Government Claim”) was marital property. The Trial Court accordingly awarded to Wife a portion of the Government Claim. In Husband’s first appeal, this Court reversed the Trial Court’s finding that the Government Claim was marital property and its awarded portion to Wife. This Court, concluding that the Government Claim was nevertheless relevant to an accurate valuation of Vanquish Worldwide and the total value of the parties’ marital business interests, instructed the Trial Court on remand to revalue Vanquish Worldwide, and in doing so, to consider the Government Claim. On remand, the Trial Court found that Husband had dissipated $12.375 million of the Government Claim proceeds by using the funds to satisfy a personal judgment against him. The Trial Court accordingly added the dissipated $12.375 million to its $4 million valuation of Vanquish Worldwide. Husband has appealed, contesting the Trial Court’s consideration of the Government Claim proceeds in its valuation of Vanquish Worldwide, as well as its overall division of the marital estate, award of alimony in solido, and placement of a lien and an assignment in trust to Wife on Husband’s ownership interests in his numerous LLCs, including Vanquish Worldwide. We affirm the Trial Court’s finding that Husband dissipated marital property and its valuation of Vanquish Worldwide but modify the Trial Court’s judgment to the extent it awarded interest on Wife’s award of alimony in solido. The balance of the Trial Court’s judgment is affirmed, including its division of the marital estate and award of alimony in solido to Wife. We further decline to award Wife attorney’s fees on appeal.