COURT OF APPEALS OPINIONS

Jack Helmboldt et al v. Michael R. Jugan et al.
E2015-01664-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor John F. Weaver

This appeal concerns certain declarations of covenants and restrictions (i.e., a buffer easement) on a piece of property. The purchasers of the property filed a motion for summary judgment arguing that the foreclosure by the bank on its superior mortgage extinguished by operation of law any covenants and restrictions recorded after the bank’s deed of trust was recorded. The trial court granted summary judgment in favor of the purchasers. The holders of the buffer easement containing the covenants and restrictions appeal. We affirm.

In re Estate of Alys Harris Lipscomb
W2015-02277-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Karen D. Webster

Appellants appeal from an order that was not final pursuant to Rule 58 of the Tennessee Rules of Civil Procedure. Accordingly, we dismiss this appeal for lack of subject matter jurisdiction.

George Thomas Kirby v. Mable Dean Kirby
M2015-01408-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ross H. Hicks

In this divorce action, the trial court fashioned a division of the parties’ marital property without determining values for several items of personal property and amounts of certain debt and without reference to the statutory factors. The trial court also awarded the wife alimony in futuro in the amount of $1,500 per month and attorney’s fees in the amount of $5,000. The husband has appealed. Due to the lack of factual findings regarding the basis for the trial court’s marital property distribution, we vacate that portion of the judgment and remand the issue to the trial court for entry of appropriate findings of fact and conclusions of law. Because we have vacated the trial court’s distribution of marital property, we must also vacate and remand the issues of alimony and attorney’s fees for reconsideration by the trial court once an equitable distribution of marital property has been fashioned. The wife’s claim seeking attorney’s fees incurred on appeal is denied.

Denver Napier et al v. Gail Howard et al.
E2015-01222-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

Gail Howard purchased at auction a subdivision lot in Grainger County. The deed to Howard’s lot, as well as the deeds to the other lots in the subdivision, contains a restrictive covenant prohibiting “single wide mobile homes.” Howard converted her lot into a campground with sixteen camper trailer sites for rent. Denver Napier, Sheryl Napier, and Jeffrey Bryant (collectively the plaintiffs), each of whom had purchased a lot in the subdivision, filed a complaint against Howard seeking an injunction enjoining her from using her property as a campground. They based their complaint on the restrictive covenant against “single wide mobile homes.” The trial court held that the restrictive covenant prohibited, in the court’s words, “camping trailers and/or single wide mobile homes” in the subdivision. Accordingly, the trial court permanently enjoined Howard and all other owners of lots from having, again in the court’s words, “camping trailers/single wide mobile homes” on their property. Howard appeals. We affirm.

Wilma J. White v. James Dale White, Jr.
M2015-02388-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Kristi M. Davis

This is an appeal of an order denying Husband’s motion to alter or amend the trial court’s judgment modifying Husband’s alimony obligation. Husband argues that he was not provided adequate notice that a hearing held on July 6, 2015 was the final hearing in the matter and was therefore deprived of due process. We affirm.

Amanda Parker Jones v. Parker Jones
W2015-01304-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor George R. Ellis

Because the order appealed is not a final judgment, we dismiss the appeal for lack of subject matter jurisdiction. Tenn. R. App. P. 3(a).

Norman C. Reece, II v. Jennifer Louise Reece
E2015-01915-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Thomas J. Seeley, Jr.

In this post-divorce action, Norman C. Reece, II (“Father”) appeals the June 9, 2015 order of the Circuit Court for Johnson County (“the Trial Court”) which, inter alia dismissed Father's motion for contempt against Jennifer Louise Reece (“Mother”) and adjusted visitation with, and support for, the parties' minor children. Father's brief on appeal severely fails to comply with Tenn. R. App. P. 27. We, therefore, find that Father has waived his issues on appeal. Furthermore, the record on appeal contains no transcript and Father's statement of the evidence contains nothing whatsoever to show what evidence was heard by the Trial Court. As such, the record presented to this Court precludes meaningful review of the issues on appeal. Given all this, we affirm.

In Re: Estate of Joan Uhl Pierce
E2016-00013-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This appeal arises from a dispute over purported wills. Joan Uhl Pierce (“Decedent”) died and was survived by five living children (“Petitioners”). Another of Decedent’s children, Brock Andrus, predeceased her, and he was survived by two adult children of his own (“Respondents”). The Administrator of Decedent’s estate filed a petition for declaratory judgment in the Chancery Court for Knox County (“the Trial Court”) seeking a determination as to whether Decedent died testate or intestate. Petitioners filed a verified petition seeking to admit a purported holographic will of Decedent’s to probate, under which Respondents did not inherit. Respondents asserted that the document, a completed questionnaire, was not a valid holographic will. After a hearing, the Trial Court entered an order in which it held that the questionnaire was not a holographic will, and instead entered into probate an earlier purported will and codicil of Decedent’s in which Respondents did inherit. Petitioners appeal. We hold that the questionnaire is not a valid holographic will. However, we hold also that the Trial Court erred in admitting the putative will and codicil into probate when there was no verified petition before the Trial Court seeking their admission. We vacate the admission of the putative will and codicil and remand for the Trial Court to address the lack of a verified petition. The judgment of the Trial Court is affirmed, in part, and, vacated, in part, and this cause is remanded for further proceedings consistent with this opinion.

Micah Seamus Reynolds, et al v. Bethany Rich, et al
E2015-01245-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Thomas J. Seeley, Jr.

Micah Seamus Reynolds (“Plaintiff”) and Susan Reynolds sued Ted Rich (“Defendant”) and Bethany Rich for negligence after Plaintiff fell while assisting with the installation of a roof on a house. The defendants filed a motion for summary judgment. After a hearing, the Circuit Court for Carter County (“Trial Court”) granted the defendants summary judgment after finding and holding, inter alia, that “[t]he record fails to show any evidence of a violation of any duty to [Plaintiff] that [defendants] owed to him . . . .” Plaintiffs appeal to this Court. We find and hold that the defendants owed a duty to Plaintiff and that there are genuine disputed issues of material fact regarding whether defendants breached this duty. As such, summary judgment was granted improperly. We, therefore, reverse the grant of summary judgment and remand this case to the Trial Court for further proceedings.

Central Bank v. Jeff Wilkes, et al.
W2015-02079-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Donald E. Parish

This case arises from a delinquent loan. Appellee is one of the principals of a development company that obtained a loan in the amount of $250,000 from Appellant bank. Appellee was allegedly unaware of this loan. Subsequent to the $250,000 loan, Appellant bank gave the company another loan in the amount of $300,000, which all of the company's principals, including Appellee, personally guaranteed. The guaranty agreement provided that the principals would personally guarantee all of the company's debts which “may now or at any time hereafter” be owed to the Appellee bank. Appellee paid the $300,000 loan in full in exchange for Appellant bank releasing a lien on 32 acres of land owned by the development company. A year later, Appellant bank brought suit against all three principals for the $250,000 loan. The trial court granted judgment in favor of the Appellee, finding that the Appellee affected an accord and satisfaction with Appellant bank. Appellant appeals. Affirmed and remanded.

Central Bank v. Jeff Wilkes, et al.
W2015-02399-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Donald E. Parish

This case arises from a delinquent loan. Appellant is one of the principals of a development company that obtained a loan in the amount of $250,000 from Appellee bank. Appellant was allegedly unaware of this loan. Subsequent to the $250,000 loan, Appellee bank gave the company another loan in the amount of $300,000, which all of the company’s principals, including Appellant, personally guaranteed. The guaranty agreement provided that the principals would personally guarantee all of the company’s debts which “may now or at any time hereafter” be owed to the Appellee bank. One of the company’s other principals paid the $300,000 loan in full. A year later, Appellee bank brought suit against all three principals for the $250,000 loan. The trial court granted summary judgment in favor of the Appellee bank. Appellant appeals. Affirmed and remanded.

Ram Tool & Supply Company, Inc. v. HD Supply Construction Supply LTD., et al
M2013-02264-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley, Jr.

A construction tools and materials distribution company filed a complaint against one of its former employees for unlawfully recruiting some of the plaintiff company’s other employees to work for a competitor, alleging breach of fiduciary duty/duty of loyalty. The plaintiff company also named as defendants the competing company and one of the competitor’s employees, asserting these defendants aided and abetted its employee’s breach of fiduciary duty/duty of loyalty. The plaintiff company further alleged all the defendants were liable for engaging in a civil conspiracy. All parties moved for summary judgment, and the trial court granted the defendants’ motions on the basis that the plaintiff company’s claims were preempted by the Tennessee Uniform Trade Secrets Act (“TUTSA”). On appeal, we hold that the plaintiff company asserted viable claims against the defendants that do not depend on the company’s trade secrets and are, therefore, not preempted by TUTSA. The trial court’s judgment dismissing the plaintiff company’s claims for breach of fiduciary duty/duty of loyalty, aiding and abetting, and civil conspiracy is reversed, and the case is remanded.

Melinda K. Fields v. Neil M. Friedman
E2016-00328-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge David W. Tipton

Mother appeals the juvenile court's child support determinations. Because Mother failed to file a brief in compliance with the Tennessee Rules of Appellate Procedure and failed to present arguments to support her contentions, we affirm the decision of the juvenile court.

Geraldine Abbott, et al. v. Mark Abbott, et al.
E2015-01233-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Telford E. Forgety

This appeal involves a dispute concerning a purported right of first refusal in a deed. In a section titled "Right of First Refusal," the deed provided that the purported holders of the right "shall have a right of first refusal to purchase said property and once a price is agreed upon," the holder will have a certain time period in which to raise the funds to pay the purchase price. The trial court found that the provision was enforceable and imposed a "reasonable time" in which the parties could negotiate and agree upon a price. The sellers appealed. We reverse.

In Re: Elias Mc.
M2015-01202-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joe Thompson

Petitioners sought to terminate the parental rights of both parents. After a trial, the court found that the grounds of wanton disregard, abandonment by willful failure to visit, and abandonment by willful failure to pay support did not exist as to the father. Petitioners took a voluntary dismissal as to the mother. Petitioners appealed the trial court’s decision as to the father. We affirm the trial court’s judgment.

Utopia Place, LLC, et al v. Eastern Properties, Inc.-Bellevue, et al
M2014-02196-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Carol L. McCoy

A commercial landlord filed suit against its tenant seeking a declaratory judgment that the purchase option and right of first refusal in their lease were no longer enforceable and damages for tortious interference with business relations. On a motion for summary judgment, the trial court found that all rights of the tenant to purchase the leased premises were void. The landlord subsequently voluntarily dismissed its tortious interference claim, and the trial court entered an order dismissing the claim without prejudice. The order dismissing the claim disposed of the last claim asserted by the landlord. Several months later, the trial court entered an order dismissing the case with prejudice and taxing costs to the landlord. The tenant filed its notice of appeal within thirty days of the order dismissing the case with prejudice. Because we find the notice of appeal untimely, we dismiss the appeal.        

Rosalyn Small v. Memphis-Shelby County Airport Authority
W2015-01090-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Walter L. Evans

This appeal arises from the Memphis-Shelby County Airport Authority's decision to terminate Appellee's employment. Appellee was employed as a police sergeant with the Memphis-Shelby County Airport Authority. Appellee received a nine-day suspension from work for insubordination and conduct unbecoming. The suspension also included a requirement that Appellee undergo a fitness for duty assessment before returning to work. Appellee reported for her fitness for duty assessment, but a disagreement with the psychologist performing the assessment over whether she could record the clinical interview resulted in the interview not being completed that day. The Airport Authority consequently terminated Appellee‟s employment on the basis that she was noncompliant with the order to undergo the fitness for duty assessment. Appellee appealed the decision to the Civil Service Commission, which upheld the termination. Appellee then filed a petition for judicial review to the Shelby County Chancery Court, which overturned the Civil Service Commission‟s decision. The Airport Authority appeals.

In Re: I.E.A., et al.
W2016-00304-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Special Judge David S. Walker

The case involves the termination of Mother‘s parental rights on the ground of severe abuse. The trial court terminated Mother‘s parental rights to the two children at issue based on two previous severe abuse findings against Mother: (1) a finding as to the children at issue during the dependency and neglect portion of the underlying proceedings; and (2) a finding that the children‘s older half-sibling was the victim of severe abuse prior to the children at issue‘s birth. The trial court further found clear and convincing evidence that termination was in the children‘s best interest. Although we conclude that the trial court erred in relying on a non-final order as res judicata of the ground of severe abuse, we find that the trial court did not err in relying on a prior final order of severe abuse as to the children at issue‘s half-sibling. We also affirm the trial court‘s finding that termination of Mother‘s parental rights is in the children‘s best interests.

Delain L. Deatherage v. John C. Hailey, et al
M2015-02202-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

At issue in this case is whether the parties entered into a contract that granted Plaintiff a right of first refusal to purchase Defendants’ real property. Defendants leased their property to Plaintiff for a twelve-month period. After the lease was renewed several times, Plaintiff inquired with Defendants’ agent as to whether Defendants would be interested in selling the property. The agent informed Plaintiff via email that Defendants did not wish to sell their property at the time, but should they decide to in the future, Plaintiff “would have the first right of refusal.” Defendants subsequently decided to sell the property to a third party and did not provide Plaintiff the opportunity to purchase the property. Plaintiff then filed this action for specific performance and breach of contract, asserting that Defendants granted Plaintiff an enforceable right of first refusal. After discovery, Defendants filed a motion for summary judgment, arguing that the purported contract fails for lack of mutual assent and consideration. The trial court granted summary judgment, holding that the language in the email correspondence was too indefinite to create a binding contract. We have determined that the agreement to provide Plaintiff with a right of first refusal was not supported by consideration; thus, it did not constitute a binding contract. Accordingly, we affirm.

Nancy Spratt v. Donald Bishop
M2015-01352-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Suzanne Lockert-Marsh

Due to Plaintiff’s failure to reissue summons within one year of the issuance of the original, unserved summons, the trial court granted Defendant’s Motion to Dismiss for Plaintiffs’ failure to comply with Rule 3 of the Tennessee Rules of Civil Procedure. We affirm the judgment of the trial court.

In Re: Bryson C.
M2015-02428-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Sam Benningfield

The Juvenile Court for White County (“Juvenile Court”) terminated the parental rights of Briana M. (“Mother”) to the minor child Bryson C. (“the Child”) after finding and holding that grounds existed to terminate for abandonment by willful failure to visit and by willful failure to provide support pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(i); for failure to comply with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2); and for persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). The Juvenile Court also found that it was in the Child’s best interest for Mother’s parental rights to be terminated. Mother appeals to this Court. We find and hold that clear and convincing evidence was not shown that grounds existed to terminate Mother’s parental rights for abandonment by willful failure to provide support or for failure to comply with the permanency plan, and we reverse that portion of the Juvenile Court’s order terminating Mother’s parental rights for abandonment by willful failure to provide support and for failure to comply with the permanency plan. We further find and hold that the evidence in the record on appeal does not preponderate against the Juvenile Court’s finding by clear and convincing evidence that grounds existed to terminate Mother’s parental rights for abandonment by willful failure to visit and for persistent conditions, and that it was in the Child’s best interest for Mother’s parental rights to be terminated. We, therefore, affirm the termination of Mother’s parental rights to the Child.
 

Blue Sky Painting Company v. Burns Phillips, Commissioner, et al
M2015-01040-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Carol L. McCoy

Company conducting business in Tennessee filed a complaint against the Tennessee Department of Labor and Workforce Development seeking a declaratory judgment that the subpoenas issued by the Department for business records violated the company’s right to due process of law and constituted an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution, and seeking injunctive relief. The trial court granted the Department’s motion to dismiss the complaint for failure to state a claim for relief, and the business appeals. Finding no error, we affirm the judgment.  

Sandra Zoe Jeanette Naylor v. William Lee Naylor
W2016-00038-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor James F. Butler

In this divorce appeal, Husband raises several issues concerning marital property and alimony. We modify the trial court‟s alimony award to award Wife $1,644.00 per month pursuant to Tennessee Code Annotated Section 36-5-121(f), but otherwise affirm the decision of the trial court.

Robert Paul Michaels v. Deana Singleton Drinnon, et al.
E2015-00009-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Douglas T. Jenkins

This is a property line dispute involving adjoining landowners. The plaintiff filed the instant action when the defendants began clearing land that the plaintiff asserted was his. The defendants filed a counter-complaint, claiming ownership of the disputed property. Following a bench trial, the trial court determined the location of a boundary line between the parties, thereby awarding to the plaintiff ownership of most of the disputed area. The defendants have appealed. Discerning no reversible error, we affirm the trial court’s judgment.

In re David C.
E2016-01114-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Jeffrey D. Rader

This is an appeal by the appellant, David C., from an order terminating his parental rights to his minor child of the same name. The order terminating the appellant's parental rights was entered on April 29, 2016. The Notice of Appeal was not filed until June 1, 2016, more than thirty (30) days from the date of entry of the final order. The Attorney General, on behalf of the appellee, Tennessee Department of Children's Services, has filed a motion to dismiss this appeal based upon the untimely filing of the Notice of Appeal. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal and grant the motion to dismiss.