COURT OF APPEALS OPINIONS

University Place S.E., LP v. R. Bosan a/k/a Rick Bosan
W2023-00790-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Yolanda Kight Brown

This case arises from a forcible entry and detainer proceeding. Because Appellant’s
principal brief fails to comply with Rule 27 of the Tennessee Rules of Appellate Procedure
and Rule 6 of the Rules of the Court of Appeals of Tennessee, the appeal is dismissed.

Arthur A. Allen v. Heather S. Allen
E2023-01660-COA-T10B-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Suzanne S. Cook

This is an interlocutory appeal as of right, pursuant to Tenn. Sup. Ct. R. 10B, filed by
Arthur A. Allen (“Father”), seeking to recuse the trial judge in this case. Having reviewed
the petition for recusal appeal filed by Father, and finding no error, we affirm.
Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; Judgment of the
Chancery Court Affirmed; Case Remanded

Tracey Smith, et al. v. Oakwood Subdivision Homeowners Association, Inc.
W2022-00845-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Rhynette N. Hurd

This appeal involves premises liability and negligence claims asserted against a
homeowner’s association after a shooting outside its community clubhouse while it was
rented for a birthday party. The trial court granted summary judgment to the homeowner’s
association, dismissing all claims, on two grounds. First, the trial court found that there
was no foreseeability, and therefore, there was no duty. Second, the trial court concluded
that there was no nexus, or proximate cause, between the allegedly negligent acts or
omissions of the homeowner’s association and the harm that occurred. The plaintiffs filed
a motion to reconsider or clarify the ruling, which the trial court denied. For the following
reasons, we affirm the decision of the circuit court and remand for further proceedings.

Jennifer Lynn Morgan Esposito v. Joseph Diego Esposito
E2022-01784-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Elizabeth C. Asbury

In this divorce action, the trial court entered an order in December 2021, according to the parties’ announced agreement, granting the parties a divorce on stipulated grounds and directing, inter alia, that the marital residence would be sold at auction and that any “marital personal property” upon which the parties could not reach an agreement prior to the auction would be “sold by the court when the [marital residence was] auctioned.” The court also memorialized the parties’ agreement that each would keep the vehicles in his or her possession and be responsible for debts incurred in each of their respective names. In an order entered in April 2022, the court confirmed that the marital residence had been sold at auction to the husband. Following a bench trial, the court found that, with the exception of two personal items belonging to the wife, the marital residence and “the contents located at the property” were all marital property; that the proceeds from “marital property located at the home” were included in the auction sale proceeds; and that the proceeds from the auction should be divided equally between the parties. The wife has appealed. Upon careful consideration, we affirm the trial court’s findings that the marital personal property located at the marital residence had been sold with the marital residence and that the auction sale price reflected the total valuation of both the residence and personal property sold. We also affirm the trial court’s adoption of the parties’ agreement regarding vehicles and debts. However, we vacate the trial court’s classification of the marital residence as marital property and the court’s overall distribution of marital property. We remand for (1) further findings of fact and conclusions of law regarding classification of the marital residence and, if necessary, identification of any increase in value of the marital residence that resulted from the husband’s significant contributions during the marriage; (2) a limited evidentiary hearing to identify, classify, and value the parties’ bank accounts; and (3) reconsideration of the marital property distribution inclusive of the findings on remand and pursuant to the statutory factors provided in Tennessee Code Annotated § 36-4-121(c) (2021). Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Vacated in Part; Case Remanded.

Darrell Tipton, Et Al. v. William J. Wolfenbarger, Et Al.
E2022-01407-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge J. Michael Sharp

This case stems from a dispute over a parcel of real property located in Monroe County,
Tennessee. Following a partition action and sale of the property, the trial court entered an
order dividing the sale proceeds between several parties that the trial court determined had an interest in the property at the time of the sale. One of those parties appeals, arguing that it is entitled to a bigger portion of the sale proceeds. Discerning no error, we affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded

Marquica L. Beasley Et Al. v. Jae Nails Bar, LLC
M2022-01330-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas W. Brothers

This is a premises liability action in which the plaintiff slipped and fell while she was walking to a pedicure station in a nail salon. Two principal issues are presented. First, the plaintiff contends that the trial court erred by denying her Tenn. R. Civ. P. 34A.02 motion for spoliation of evidence by finding that the defendant was not put on notice that a video recording from a surveillance camera in the nail salon was relevant to pending or reasonably foreseeable litigation. Second, the plaintiff contends that the trial court erred by summarily dismissing her complaint on the basis that there was no proof that the defendant had created the allegedly hazardous condition in the nail salon or that the defendant had actual or constructive notice of the condition. We affirm.

Aurora Loan Services, LLC, et al. v. Frederick J. Elam, et al.
W2023-00905-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Kasey Culbreath

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

Corey Andrew Tate v. Andrea Nicole Jones
E2022-01524-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Timothy E. Irwin

This is an appeal by Father of a judgment rendered against him for child support. Because
the final judgment does not provide adequate findings of fact and conclusions of law for
this Court to conduct a proper review, we are unable to adequately address Father’s issues
on appeal. Therefore, we remand the case back to the trial court for the entry of a judgment
compliant with Rule 52.01 of the Tennessee Rules of Civil Procedure.

The State Of Tennessee on behalf of Bledsoe County, Tennessee Et Al v. Whoriskey, Inc.
E2023-00505-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Melissa Thomas Willis

This appeal arises from an action to recover delinquent ad valorem real property taxes.
Whoriskey, Inc., which currently owns the property, raises numerous challenges to the
proposed delinquent tax sale. In principal part, it asserts that the property at issue was not
subject to taxation during the relevant tax period, 2017 and 2018, because it claims that,
during that time, the property was owned by the United States Government through a
federal forfeiture. Further, Whoriskey contends that Bledsoe County and the City of
Pikeville are barred from recovering back taxes because they failed to assert a claim in
federal court. The trial court found no factual or legal basis to support Whoriskey’s
contentions and determined that the County and City could proceed with the delinquent tax sale to recover ad valorem real property taxes on the subject real property for the tax years 2017 and 2018. This appeal followed. We affirm.

In Re Aubria H. et al.
M2023-00329-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Haylee Bradley-Maples

This appeal involves the termination of a mother’s parental rights to two minor children. The trial court concluded that several grounds for termination existed and that the termination of the mother’s parental rights was in the best interests of the children. Although we vacate two grounds for termination, we affirm the trial court’s reliance on the remaining grounds for termination and its best interests determination. The trial court’s termination of the mother’s parental rights is accordingly affirmed.

Lee Ann Polster v. Russell Joseph Polster
M2022-01432-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ted A. Crozier

In the prior appeal of this case, a husband’s argument regarding the division of assets/unconscionability of the marital dissolution agreement was deemed waived because it was not raised in the trial court. The case was remanded for a determination of attorney’s fees. The husband attempted to bring the issue up again on remand, and the trial court refused to consider them. We affirm based on waiver and the narrow scope of the remand.

Susan Davis Malone v. Thomas Franklin Malone - DISSENT
W2023-00843-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joe Townsend

I respectfully dissent from the majority's holding that recusal of the trial judge is
not warranted in this case. The majority discusses each of Appellants' allegations
concerning the trial court's bias. However, the majority fails to consider the cumulative
effects of the trial court's actions, and wholly fails to consider the fact that the ultimate
result of these actions is usurpation of the autonomous decisions Ms. Malone made for her
own care when she was cornpetent to do so. Although the trial court negated Ms. Malone's
well-established attorney-client relationship with Mr. Autry, Ms. Bleavins [together with
Mr. Autry, "Attorneys"], and the Williams McDaniel firm, my dissent does not focus on
Judge Townsend's rulings. Rather, in the context of recusal, I focus my dissent on the
disparate treatment the trial judge showed to the Attorneys and the Williams McDaniel
firm in reaching those decisions.

In Re Conservatorship of Susan Davis Malone
W2023-00841-COA-T10B-CV
Authoring Judge: Judge Thomas Frierson, II
Trial Court Judge: Judge Joe Townsend

This is an interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B,
filed by the appellants seeking to recuse the trial judge, Judge Joe Townsend (the "trial
judge") in the underlying conservatorship action. Having reviewed the petition for recusal
appeal filed by the appellants and the answer thereto, and finding that the appellants have
failed to demonstrate that a person of ordinary prudence in Judge Townsend's position,
possessing the same knowledge as Judge Townsend, would find a reasonable basis to
question Judge Townsend's impartiality, we affirm the trial judge's denial of the recusal
petition.

Susan Davis Malone v. Thomas Franklin Malone
W2023-00843-COA-T10B-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Joe Townsend

This is an interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B,
filed by the appellants seeking to recuse the trial judge, Judge Joe Townsend (the "trial
judge") in the underlying post-divorce contempt action. Having reviewed the petition for
recusal appeal filed by the appellants and the answer thereto, and finding that the appellants
have failed to dernonstrate that a person of ordinary prudence in Judge Townsend's
position, possessing the same knowledge as Judge Townsend, would find a reasonable
basis to question Judge Townsend's impartiality, we affirm the trial judge's denial of the
recusal petition.

Courtney Logan v. Lisa Helton, et al.
W2023-00063-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Kasey Culbreath

Appellant, Courtney Logan, appealed a December 7, 2022 order of the Hardeman County
Chancery Court. Because the order appealed is not a final judgment, this Court lacks
jurisdiction to consider the appeal. Tenn. R. App. P. 3(a). The appeal is dismissed.

In Re Conservatorship of Susan Davis Malone - DISSENT
W2023-00841-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joe Townsend

I respectfully dissent from the majority's holding that recusal of the trial judge is
not warranted in this case. The majority discusses each of Appellants' allegations
concerning the trial court's bias. However, the majority fails to consider the cumulative
effects of the trial court's actions, and wholly fails to consider the fact that the ultimate
result of these actions is usurpation of the autonomous decisions Ms. Malone made for her
own care when she was competent to do so. Although the trial court negated Ms. Malone's
well-established attorney-client relationship with Mr. Autry, Ms. Bleavins [together with
Mr. Autry, "Attorneys"], and the Williams McDaniel firm, my dissent does not focus on
Judge Townsend's rulings. Rather, in the context of recusal, I focus my dissent on the
disparate treatment the trial judge showed to the Attorneys and the Williams McDaniel
firm in reaching those decisions.

In Re Jonah B.
E2022-01701-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge John D. McAfee

Father appeals the termination of his parental rights to his child, who was nearly three years old at the time of trial. On appeal, Father disputes that termination of his parental rights is in the child’s best interest. We affirm the trial court’s determinations as to both the ground for termination and that termination of Father’s parental rights is in the child’s best interest.

Penny Lawson, et al. v. Hawkins County, TN et al.
E2020-01529-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Alex E. Pearson

This appeal concerns governmental immunity. Steven W. Lawson (“Decedent”), by and through his widow, Penny Lawson, and on behalf of Corey Lawson, Decedent’s child (“Plaintiffs,” collectively), sued the Hawkins County Emergency Communications District Board (“ECD-911”), Hawkins County, Tennessee, and Hawkins County Emergency Management Agency (“the EMA”) (“Defendants,” collectively) in the Circuit Court for
Hawkins County (“the Trial Court”) alleging negligence, gross negligence, and recklessness in Defendants’ response to a road washout that led to Decedent’s death. Defendants filed motions for judgment on the pleadings, which the Trial Court granted partly on grounds that claims of recklessness could not proceed against the Defendant entities under the Governmental Tort Liability Act (“the GTLA”). Plaintiffs appealed. We reversed. The Tennessee Supreme Court reversed this Court, holding that when the GTLA removes immunity for negligence, it does so for ordinary negligence only. The matter was remanded to this Court for further proceedings. We hold, inter alia, that while Defendants’ immunity is removed under the GTLA by Plaintiffs’ ordinary negligence claims, the public duty doctrine bars those claims. However, ECD-911’s immunity also is removed by Plaintiffs’ claim of gross negligence under Tenn. Code Ann. § 29-20-108, and the third special duty exception to the public duty doctrine allows that claim to proceed against ECD-911. We reverse the Trial Court’s grant of judgment on the pleadings to ECD-911 and remand for Plaintiffs’ case to proceed against that entity. Otherwise, we affirm.

Gerrish & McCreary, PC v. Carri Chandler Lane
W2022-01441-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Yolanda Kight Brown

Appellant appeals the trial court’s denial of her Tennessee Rule of Civil Procedure 60.02
motion. In 2003, the trial court entered judgment against Appellant and in favor of
Appellee/law firm. In her role as Appellee’s bookkeeper, Appellant committed fraud,
misrepresentation, conversion, and negligence in stealing funds from the Appellee’s
operating account. The 2003 order of judgment also contains a separate judgment for
conversion against Appellant’s then-husband, who is not a party to this appeal. However,
there is no finding of joint-and-several liability in the 2003 order, and Appellant did not
appeal the order. After receiving an extension of its judgment, in July 2021, Appellee filed
a garnishment against Appellant, claiming that the outstanding balance on the judgment,
with interest, was in excess of $1,000,000.00. After the garnishment was filed, Appellant
sought a finding that she should receive a credit against the judgment based on the payment
made by her then-husband in satisfaction of the 2003 judgment entered against him.
Appellant also sought credit for monies paid by Appellee’s bank under a private settlement.
The bank was never sued. The trial court denied the credits on its finding that the bank and
Appellant’s then-husband were neither joint tortfeasors, nor jointly and severally liable.
The trial court noted that any relief from the 2003 judgment for mistake in the omission of
joint-and-several language was time-barred as Appellant failed to bring her Rule 60.02
motion, under subsection (1) for mistake, within the one-year time period contemplated in
the rule. Having determined that there was no joint-and-several liability, the trial court
determined that Appellant was not entitled to credits for either her then-husband’s payment
or the bank’s payment and denied relief under Rule 60.02(4) for satisfaction of the
judgment. Appellant appeals. Discerning no error, we affirm.

Janice Deloach v. Sahara Daycare Center, Inc., ET AL
W2022-01695-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Mary L. Wagner

This is a breach of contract case involving a business partnership. Due to deficiencies in
Appellants’ brief, we do not reach the substantive issues and dismiss the appeal. We grant
Appellee’s motion to declare Appellant’s appeal frivolous and award her damages.

Erick Gordon v. Tennessee Department of Safety and Homeland Security
E2022-01175-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Douglas T. Jenkins

The petitioner’s employment as a Tennessee highway patrolman was terminated for cause
after he attended a training course on breathalyzer machines and, as part of the training,
submitted two breath samples that returned positive numbers for alcohol content in his
blood. The petitioner appealed, but his termination was upheld in the first two steps of the
internal appeals process by the respondent, the Tennessee Department of Safety and
Homeland Security (“the Department”). The petitioner appealed to the Tennessee Board
of Appeals, which conducted a hearing on the matter. Prior to the hearing, Mr. Gordon
filed a motion in limine, seeking to exclude the two breathalyzer test results on grounds
that the tests were not conducted in compliance with the evidentiary requirements for
breathalyzer test results. The Board declined to exclude the breathalyzer test results and
upheld the petitioner’s termination, ending the Department’s internal appeals process. The
petitioner sought judicial review with the trial court. The trial court reversed and modified
the Board’s decision, determining that the Board improperly considered the numeric
breathalyzer test results and that without them there was no substantial and material
evidence remaining to support the Board’s decision to terminate Mr. Gordon’s
employment. Nonetheless, the trial court determined that some discipline was warranted
and accordingly ordered the Department to reinstate the petitioner with back pay and
benefits to one year following his dismissal, in effect sanctioning petitioner with a oneyear
suspension without pay. The Department timely appealed. Discerning no reversible
error, we affirm.

In Re: Glenn B. et al
M2023-00096-COA-R3-PT
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Branden Bellar

Mother appeals the termination of her parental rights to three of her children. The trial court found six grounds for termination: abandonment by failure to visit, abandonment by failure to support, abandonment by failure to provide a suitable home, substantial noncompliance with a permanency plan, persistent conditions, and failure to manifest an ability and willingness to assume custody. The trial court also found termination of Mother’s parental rights to be in the best interests of the children. Mother raises procedural and substantive challenges to the trial court’s decision. We affirm the judgment of the trial court terminating Mother’s parental rights.

In Re Raylon S. et al
M2023-00573-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Larry B. Stanley, Jr.

A mother and stepfather sued to terminate a father’s parental rights based on the grounds of abandonment by failure to visit and abandonment by failure to support as well as the best interest of the children. The trial court found by clear and convincing evidence that both grounds for termination existed and that it was in the best interest of the children to terminate the father’s parental rights. The father appealed. We affirm.

Greg Gonzales v. Orion Federal Credit Union et al.
M2022-00796-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Patricia Head Moskal

A federally chartered credit union agreed to purchase substantially all assets of a Tennessee-chartered bank. The Commissioner of the Tennessee Department of Financial Institutions objected. He contended that the transaction was prohibited by the Tennessee Banking Act because the credit union was not a bank holding company. So he sought declaratory and injunctive relief to stop the transaction. On cross-motions for summary judgment, the trial court concluded the sale of substantially all of the assets of a bank was not prohibited by the Act. We affirm.

Lewana Castillo Webb v. Gregory Ryan Webb
E2023-00378-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Caroline E. Knight

This case involves the respondent’s pro se appeal from an order of protection granted by
the trial court in favor of the petitioner. The petitioner initially obtained an order of
protection for one year from the general sessions court, which the respondent appealed to
the circuit court. After a de novo hearing, the trial court extended the order of protection
for three years, to expire on January 24, 2026. The respondent timely appealed to this
Court. Because the respondent’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.