Maureen Davis v. Wells Fargo Home Mortgage, et al.
Homeowner brought a lawsuit asserting multiple challenges to the bank’s administration of her mortgage and initiation of foreclosure proceedings. The bank filed a motion to dismiss, which was ultimately granted by the trial court, despite several post-judgment motions filed by the homeowner. On appeal, the bank argues that the homeowner’s notice of appeal was not timely. Although we find that the homeowner’s notice of appeal was timely, we conclude that the trial court did not err in granting the bank’s motion to dismiss the homeowner’s complaint because it fails to state a claim upon which relief may be granted. |
Shelby | Court of Appeals | |
Carolyn Crisp v. Michael Nelms, Et Al.
This appeal arises from a lawsuit over a fatal cycling accident. Carolyn Crisp (“Plaintiff”), surviving spouse of William Andrew Crisp (“Decedent”), sued Michael Nelms (“Nelms”) and George Long (“Long”) (“Defendants,” collectively) in the Circuit Court for Blount County (“the Trial Court”) for negligence. Decedent and four others, including Nelms and Long, were riding as part of a “paceline” group when a crash occurred. Nelms asserted comparative fault, stating that Long slowed down suddenly at the head of the line. Long denied he slowed down suddenly. Defendants filed motions for summary judgment. The Trial Court held, among other things, that paceline cycling inherently is dangerous and that Decedent was at least 50% at fault for his accident. Plaintiff appealed to this Court. We hold, inter alia, that there is a genuine issue of material fact as to whether Long slowed down suddenly at the head of the line and whether a reasonable jury could find Decedent less than 50% at fault in his accident. We reverse the judgment of the Trial Court and remand for the case to proceed. |
Blount | Court of Appeals | |
Sabrina Renae Witt v. Erica Christine Witt
Individual members of the 109th Tennessee General Assembly and the 110th Tennessee General Assembly appeal the order of the Circuit Court for Knox County (“the Trial Court”) denying their motion to intervene in this suit involving the divorce of a same-sex couple and specifically involving the issue of whether the spouse who has no biological or other recognized legal relationship to the parties’ minor child may be considered a parent under Tenn. Code Ann. § 68-3-306 (2013). We find and hold that because all of the issues in the divorce now are final the case has been rendered moot as it has lost its justicability and no longer involves a present, ongoing controversy. We further find and hold that no exceptions to the mootness doctrine apply. As the case is moot, we dismiss this appeal. |
Knox | Court of Appeals | |
In Re McKenzie Z.
Unmarried father filed a petition to establish parentage and a residential parenting schedule. After father’s parentage was established, the juvenile court set a residential parenting schedule that awarded equal parenting time and ordered the child’s surname changed to a hyphenated version of both parents’ surnames. Mother appealed, arguing that the court erred in fashioning the parenting schedule and in ordering a change of the child’s surname. Upon review, we affirm the residential parenting schedule but vacate that portion of the order directing a change in the child’s surname. |
Davidson | Court of Appeals | |
Jacinto Machic v. Chrissy M. Machic
This appeal arises from a final decree of divorce. Mother appeals, contending the trial court erred in designating Father as the Primary Residential Parent and awarding the majority of parenting time to Father; she also challenges the division of the martial property. Because the trial court made no findings of fact and the statement of the evidence is inadequate, we have determined that we cannot conduct an appropriate appellate review of the issues raised. Accordingly, the judgment of the trial court is vacated and this matter is remanded for the trial court to, inter alia, comply with the mandate in Tenn. R. Civ. P. 52.01, which states that “the [trial] court shall find the facts specially and shall state separately its conclusions of law and direct the entry of the appropriate judgment.” |
Cumberland | Court of Appeals | |
Joseph Sweat v. City of McMinnville
The plaintiff, a former firefighter with the City of McMinnville Fire Department, brought this retaliatory discharge claim against his previous employer under the Tennessee Public Protection Act. The City filed a motion for summary judgment arguing that the plaintiff was unable to prove that the City’s proffered reason for the discharge was pretextual. Finding no genuine dispute, the trial court granted the motion and dismissed the complaint. We affirm. |
Warren | Court of Appeals | |
Theresa Aileen Blount v. Howard Paul Blount, III
This case involves a post-divorce petition seeking military retirement benefits not allocated at the time of the divorce. The trial court awarded Theresa Aileen Blount (Wife) the requested benefits over the objection of her former spouse, Howard Paul Blount, III (Husband). The trial court also awarded Wife attorney’s fees in the amount of $6,000. Husband appeals. Wife raises her own issues. She seeks additional attorney’s fees; an award of travel expenses; and a remand to the trial court for the purpose of calculating Wife’s entitlement in accordance with the “retained jurisdiction method.” We affirm the trial court’s order granting benefits. We remand the case to the trial court for the purpose of (1) determining the appropriate valuation method for calculating Wife’s benefits and (2) thereafter describing each party’s respective legal interest in Husband’s military pension. |
Roane | Court of Appeals | |
In Re: Estate Of James Hood Nichols
This case involves an order by the trial court directing the personal representative of the Estate of James Hood Nichols (the Estate) to sell a portion of the real property of the Estate. James Hood Nichols (the deceased) died testate. He bequeathed annuities to his daughters, Connie Jane Nichols Cinder and Nan Nichols Jones (the beneficiaries). In the will, the deceased gave a $75,000 annuity to Connie Jane Nichols Cinder and a $50,000 annuity to Nan Nichols Jones. According to the final settlement filed by Richard N. Swanson and Earl Wayne Campbell (the co-executors), the net distributable probate estate is $8,712.01. The co-executors proposed to distribute that amount to the beneficiaries in proportion to the amount left to each beneficiary. The beneficiaries filed an objection to the proposed final settlement, asking the court to order the sale of a portion of the deceased’s real property in order to fund the annuities. Finding that the bequests to the beneficiaries are higher priority than other bequests and devises in the will, the trial court ordered the personal representative to sell a portion of the deceased’s real property sufficient to fund the annuities. The trial court also awarded the beneficiaries their attorney’s fees. The co-executors appeal. We affirm. |
Jefferson | Court of Appeals | |
In Re: Veronica T., Et Al.
This appeal involves the termination of a mother’s parental rights to her four minor children. The trial court found by clear and convincing evidence that four statutory grounds for termination had been proven and that termination is in the best interest of the children. We reverse with respect to two of the grounds for termination but otherwise affirm the trial court’s order terminating the mother’s parental rights. |
Rutherford | Court of Appeals | |
In Re Taj' M.
This is one of several separate appeals filed with this court that arise directly or indirectly out of a dependent and neglect petition, a custody and child support proceeding, and an administrative order by the juvenile court. The administrative order required escort of the appellant by a deputy sheriff any time the appellant was in the building housing the Juvenile Court of Memphis and Shelby County “to enforce order in the court’s immediate presence and as near thereto as is necessary to prevent interruption, disturbance, or hindrance to its proceedings.” The juvenile court case from which this appeal arises, case number BB5203, was a dependent and neglect petition the appellant voluntarily dismissed by court order entered on September 24, 2015. Although the appellant remained a party to one or more separate juvenile court cases involving custody and child support of the same minor child, the order dismissing this case was a final judgment from which an appeal could be taken in 2015. Tenn. R. App. P. 4(a) requires that a notice of appeal be filed with and received by the clerk within thirty days after entry of the judgment appealed. The notice of appeal challenging the judgment entered in this case was not filed until December 17, 2016, more than one year after the 2015 final judgment was entered. Therefore, it is untimely. Because the failure to file a timely notice of appeal deprives this court of jurisdiction to hear the matter, this appeal is dismissed. |
Shelby | Court of Appeals | |
In Re: The Estate of Wanda Jeanne Starkey
Decedent’s daughter filed a notice of will contest, challenging a will that disinherited her and her sisters. According to the contestant, decedent attempted to revoke the will by directing an unnamed person to destroy it in her presence. But the unnamed person allegedly tricked decedent and destroyed another document instead. A beneficiary under the will and the administrator of the estate filed a joint motion to dismiss the contest for failure to state a claim upon which relief can be granted. The beneficiary and the administrator argued that the statutes applicable to revocation of wills required that the will actually be destroyed for an effective revocation. The circuit court granted the motion and dismissed the will contest. Upon review, we conclude that the enactment of Tennessee Code Annotated § 32-1-202 did not abrogate the common-law rule that fraud will not defeat revocation of a will. So the contestant did state a claim for relief. |
Hamilton | Court of Appeals | |
Derwood Stewart v. Armtech Insurance Service, Inc.
A farmer who participated in the federal crop insurance program appeals the trial court’s confirmation of an arbitration award given when he was retroactively determined to be ineligible to participate in the program for failure to pay the premium and, as a consequence, was required to repay the payment he had received for a loss sustained under another policy. The arbitrator held that the contract upon which the claim was paid was void and that the insurance company was entitled to recover the amount paid on the claim. The trial court affirmed the arbitrator’s award, and the policyholder appeals. Finding no basis upon which to conclude that the arbitrator exceeded its authority, we affirm the judgment. |
Warren | Court of Appeals | |
Tennessee Farmers Mutual Insurance Company v. Southern Damage Appraisals, Inc
Tennessee Farmers Mutual Insurance Company (“TN Farmers”), a/s/o Jared Smalley and Cara Gurszecki (“the Homeowners”) sued Southern Damage Appraisals, LLC a/k/a Willow Works (“SDA”) in connection with a construction project that SDA performed on the Homeowners’ house located in Robertson County, Tennessee. SDA filed a motion for summary judgment alleging that the suit was barred by the statute of repose contained in Tenn. Code Ann. § 28-3-202. After a hearing on the motion for summary judgment, the Circuit Court for Robertson County (“the Trial Court”) entered its order granting summary judgment to SDA after finding and holding, inter alia, that TN Farmers’ claim was for subrogation, the claim was subject to the four year statute of repose contained in Tenn. Code Ann. § 28-3-202, and as the claim had been filed more than four years after substantial completion of the work TN Farmers’ claim was barrred. We find and hold that the claim was one for subrogation asserting a right pursuant to an alleged contract between the Homeowners and SDA, that TN Farmers failed to show the existence of any contract between the Homeowners and SDA, and that even if a contract between the Homeowners and SDA did exist coverage for such a contract would be excluded under the insurance policy between TN Farmers and the Homeowners. We, therefore, find and hold that the Trial Court did not err in granting summary judgment to SDA. |
Robertson | Court of Appeals | |
Cathy Gwen Agee Swafford v. Danny Earl Swafford, Sr.
This is a divorce action involving the classification of the parties’ separate and marital property and equitable division of the marital assets. Because we are unable to discern whether the trial court classified the wife’s retirement accounts as marital or separate property prior to its division of the marital estate and because the trial court failed to make sufficient findings of fact regarding several items of property prior to the distribution, we hereby vacate the trial court’s distribution of marital property. We remand this matter to the trial court for entry of sufficient findings of fact and conclusions of law regarding the classification, valuation, and ultimate distribution of the parties’ marital property. |
Bledsoe | Court of Appeals | |
In Re Bentley D.
Father appeals the trial court’s termination of his parental rights on the ground of wanton disregard for the child’s welfare prior to the father’s incarceration. We affirm. |
Washington | Court of Appeals | |
Luther Smith, Jr., individually and as legal guardian of Luther Smith, III v. ChildLife, Inc., et al.
Father appealed the trial court’s order denying encroachment of minor child’s funds held by the Shelby County Circuit Court Clerk. We affirm. |
Shelby | Court of Appeals | |
In Re: Estate of John J. Burnette
This appeal involves a successor estate administrator’s attempt to collect his attorney’s fees from a prior administrator. John G. McDougal, the prior administrator, gave his coadministrator, John D. Burnette (Burnette), a check representing the proceeds from the sale of the decedent’s real estate. Instead of depositing the check in a Tennessee bank as instructed, Burnette took the check to Florida and deposited it in a bank account there. Afterward, Burnette refused to communicate or cooperate with McDougal. The trial court held that McDougal breached his fiduciary duty to the estate and beneficiaries, and awarded the successor administrator a judgment of $5,523.28. We hold that the undisputed facts establish no negligence or malfeasance on McDougal’s part that warrant an award of attorney’s fees. Accordingly, we reverse the judgment of the trial court. |
Hamilton | Court of Appeals | |
Victor Cole v. Joe Caruso
In this unjust enrichment claim, Plaintiff/Appellee Victor Cole filed a lawsuit alleging, inter alia, a claim for unjust enrichment against Defendant/Appellant Joe Caruso. A jury determined that Mr. Cole had been unjustly enriched. Upon our review, we conclude that Mr. Cole failed to provide any evidence that Mr. Caruso was unjustly enriched, thereby failing to establish a prima facie claim. Because Mr. Cole failed to provide any evidence regarding one of the elements of unjust enrichment, the trial court erred in denying Mr. Caruso’s motion for directed verdict. |
Shelby | Court of Appeals | |
Advanced Security Services Evaluation And Training, LLC v. OHR Partners LTD., Et Al.
The dispositive issue in this case is whether Tennessee may exercise specific personal jurisdiction over the defendants. The plaintiff, a Tennessee company, filed this action against the defendants in Davidson County Chancery Court for breach of contract and unjust enrichment arising from security services it provided to facilitate the transfer of gold worth millions of dollars from Africa to Hong Kong. The defendants filed a motion to dismiss for, inter alia, lack of personal jurisdiction, contending a Tennessee court could not exercise personal jurisdiction over them because their contacts with the forum were too attenuated. The trial court granted the motion and dismissed the case. The plaintiff appealed, arguing the defendants’ apparent agent had numerous and substantial contacts with the forum sufficient to establish specific personal jurisdiction in Tennessee. The defendants assert the individual with whom the plaintiff entered into a contract was an independent contractor, not an agent of the defendants, and that the defendants have not had sufficient contacts with Tennessee to subject them to the jurisdiction of a Tennessee court. The defendants also raise a separate issue, contending the trial court erred in denying their motion to dismiss the complaint for failure to state a claim. We have determined that the individual with whom the plaintiff principally communicated regarding the contract and services rendered by the plaintiff was an apparent agent of the defendants. Having applied the two-step analysis enunciated in State v. NV Sumatra Tobacco Trading Co., 403 S.W.3d 726 (Tenn. 2013), we have also determined that the nature and quality of the apparent agent’s contacts, along with those of an officer of the defendant entities, were purposeful and of sufficient quantity with Tennessee to satisfy the minimum contacts requirement. Furthermore, the defendants failed to establish that it would be unreasonable or unfair for Tennessee to exercise specific personal jurisdiction over them as it pertains to issues deriving from or connected with the controversy that established jurisdiction. Accordingly, we reverse the trial court’s ruling that Tennessee does not have specific personal jurisdiction over the defendants. We affirm the trial court in its denial of the defendants’ motion to dismiss for failure to state a claim for breach of contract. Accordingly, we reverse in part, affirm in part and remand for further proceedings consistent with this opinion. |
Davidson | Court of Appeals | |
HSBC Bank, N.A. v. Verrina Shields
This is an appeal of a routine detainer action. Nevertheless, in her reply brief, the appellant states this case “is a ‘Tax Event’ and a ‘Pre-Paid’ account exempt from levy defendants are in commercial dishonor for non-acceptance and payment under section 3- 505, 510 of Uniform Commercial Code subject to forfeiture & collection under GAP. Verrina Shields Bey herein ‘Responds To Defendants Brief’ against Counsel for this ‘Tax Event’ to have the court rule in her favor and stop, terminate a attempted illegal, unlawful foreclosure.” Contrary to the appellant’s contentions, the real property at issue was sold at foreclosure, and this is merely a detainer action in which the purchaser of the property, the appellee, is seeking possession of the property. Both the general sessions court and the circuit court of Shelby County ruled in favor of the appellee and entered judgment awarding a writ of possession to the appellee. Due to profound deficiencies in the appellant’s brief and reply brief, we dismiss the appeal. |
Shelby | Court of Appeals | |
Jill St. John-Parker v. Virgil Duane Parker
In a prior appeal, this Court remanded to the trial court for reconsideration of its marital property division. The trial court affirmed its previous award and awarded an additional sum to former wife as her equitable portion of the parties’ marital property. The trial court, however, declined to calculate post-judgment interest on the additional award as of the effective date of the divorce, pursuant to this Court’s holding in Watson v. Watson, 309 S.W.3d 483 (Tenn. Ct. App. 2009). On appeal, former wife argues that Watson did not deprive the trial court of discretion to calculate post-judgment interest as of the earlier date. We affirm. |
Bradley | Court of Appeals | |
Wendy Ann Burton v. Robert M. Mooneyham, Deceased, et al.
This is an action by the ex-wife of the decedent to establish a constructive trust to the proceeds of a life insurance policy that are payable as a consequence of the death of the plaintiff’s ex-husband. In the 2011 Final Decree, the ex-husband was ordered to maintain a specified life insurance policy in the amount of $500,000 with the plaintiff to be designated as the sole beneficiary. Following the divorce, the ex-husband allowed the specified policy to lapse; however, he maintained a second life insurance policy that had a death benefit of $250,000 with seventy percent of the death benefits payable to the plaintiff and thirty percent to the decedent’s mother. Following the ex-husband’s death, the plaintiff commenced this action against the decedent’s mother and the insurance company. The decedent’s mother filed an answer in which she claimed the plaintiff had no legal rights to the insurance policy at issue. The decedent’s mother also claimed she had a vested right to her share of the death benefits based on an oral contract. The insurance company deposited the insurance proceeds into court and was dismissed from the case. Thereafter, the parties filed cross-motions for summary judgment. The trial court granted summary judgment in favor of the plaintiff, relying principally on the holding in Holt v. Holt, 995 S.W.2d 68 (Tenn. 1999). We affirm, finding the decedent’s mother had no vested interest in the policy. |
Davidson | Court of Appeals | |
Charles Michael Vance, II v. Angela Michelle Taylor Vance
The issues on appeal involve the proper number of days upon which to base the calculation of child support, the propriety of the award of extraordinary educational expenses under the parties’ permanent parenting plan, and attorney’s fees. Having determined that the trial court erred in its determination of child support and extraordinary educational expenses, we affirm in part, and vacate and remand in part. |
Davidson | Court of Appeals | |
Jefferson County Schools v. Tennessee Risk Management Trust, et al.
In this appeal concerning insurance coverage, Jefferson County Schools (“Plaintiff”) sued its insurers, Tennessee Risk Management Trust and Travelers Indemnity Company (“Defendants”), in the Chancery Court for Jefferson County (“the Trial Court”). Building 8 at Jefferson County High School collapsed during a rainstorm. The Tennessee State Fire Marshal’s Office ordered Plaintiff to implement repairs to prevent a future collapse of both the damaged and undamaged portions. Plaintiff asserted that, pursuant to an “ordinance or law” provision in its insurance policy, Defendants were responsible for coverage for additional work in undamaged portions of Building 8 in order to comply with the Fire Marshal’s directive. Defendants argue in response that the additional work was discretionary and went beyond what the insurance policy covered. After a hearing, the Trial Court entered judgment in favor of Defendants. Plaintiff appeals. We hold that the Fire Marshal’s directive, issued under that office’s authority, qualified as an “ordinance or law.” Defendants were, therefore, required to cover the additional work. We reverse the judgment of the Trial Court and remand for determination and entry of a monetary judgment in favor of Plaintiff. |
Jefferson | Court of Appeals | |
Matthew Epps v. Mary Sonjia Thompson, et al.
A landowner hired an individual she supervised at work to paint her house outside of work. The landowner provided the painter with material and ladders for the job. While he was using the folding ladder and painting one of the house’s eaves, the painter fell to the ground and injured his wrist. The painter sued the landowner for damages, asserting the landowner was negligent for providing him with old ladders that were unsafe. The landowner moved for summary judgment, which the trial court granted after finding the painter was unable to prove cause in fact or proximate cause. The painter appealed, and we affirm the trial court’s judgment. |
Davidson | Court of Appeals |
