COURT OF APPEALS OPINIONS

Kendall Collier Ex Rel. Chayce C. v. Periculis Roussis, M.D. Et Al.
E2022-00636-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge William T. Ailor

This appeal concerns juror misconduct. Chayce Collier (“Chayce”), a minor, by and through his parent and next friend, Kendall Collier (“Plaintiff”), sued Periclis Roussis, M.D. (“Dr. Roussis”), Fort Sanders Perinatal Center, and Fort Sanders Regional Medical Center (“the Hospital”) (“Defendants,” collectively) in the Circuit Court for Knox County (“the Trial Court”) alleging health care liability in Chayce’s delivery. A major issue at trial was whether Dr. Roussis fell below the standard of care by failing to administer epinephrine to Plaintiff when she had an anaphylactic reaction during labor. The jury found for Defendants. However, it emerged that a juror had gone home and looked at the warning on an epipen which said that epinephrine should only be used when the potential benefit justifies the potential risk to the fetus. The juror shared this information with the rest of the jury. Plaintiff filed a motion for a new trial, which the Trial Court first granted and then denied. Plaintiff appeals. Under Tenn. R. Evid. 606(b), jurors may not be asked what effect, if any, that extraneous information had on them. Instead, courts look to the extraneous information itself to determine whether there is a reasonable possibility that it altered the verdict. We hold that there is a reasonable possibility that the extraneous information shared with the jury in this case altered the verdict, and Defendants failed to rebut the presumption of prejudice. The Trial Court applied an incorrect legal standard and thereby abused its discretion in denying Plaintiff’s motion for a new trial. We reverse the judgment of the Trial Court and remand for further proceedings consistent with this Opinion.

In Re Macee M.
E2023-00985-COA-R3-PT
Authoring Judge: Judge Frank G. Clement Jr.
Trial Court Judge: Chancellor John F. Weaver

The father and stepmother of Macee M. filed a petition to terminate the mother’s parental rights on three grounds. The trial court found that one ground had been proven, abandonment for failure to support, and that termination of the mother’s parental rights was in Macee’s best interest. Based on these findings, the mother’s parental rights were terminated. The mother appeals. We affirm the termination of her parental rights.

In Re Azalea B. et al.
M2023-00656-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John Meadows

In this case involving termination of the father’s and mother’s parental rights to two of their minor children, the trial court determined that three statutory grounds had been proven as to each parent by clear and convincing evidence. The trial court further determined that clear and convincing evidence demonstrated that termination of the father’s and mother’s parental rights was in the children’s best interest. The father and mother have each appealed. Discerning no reversible error, we affirm.

In Re: Freddy P.
E2023-00042-COA-R3-PT
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Chancellor Douglas T. Jenkins

The trial court denied a petition for termination of parental rights as to Mother, despite
finding two grounds for termination, based on petitioner’s failure to establish that
termination was in the best interest of the child. Petitioner appeals the trial court’s
determination that a third ground for termination was not found, as well as the finding that
termination was not in the best interest of the child. Based on the record before us, we (1)
affirm the denial of failure to visit; (2) affirm the finding of failure to support; (3) reverse
the finding of persistence of conditions; and (4) affirm the finding that terminating
Mother’s parental rights is not in the best interest of the child.

Thomas Burrell v. Tipton County Election Commission, et al.
W2023-00312-COA-R10-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kasey Culbreath

Appellant attorney appeals the trial court’s denial of his motion to appear pro hac vice on
procedural grounds. We affirm.

Jessica M. Amarino v. Jarone Amarino
M2023-00340-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Ben Dean

In this divorce case, Husband/Appellant appeals the trial court’s order: (1) awarding a Toyota 4-Runner to Wife/Appellee; (2) dividing the remaining debt on the vehicle between the parties; and (3) awarding Wife one-half of the attorney’s fees she incurred in the trial court. We reverse the trial court’s conclusion that the 4-Runner was Wife’s separate property and conclude that it was transmuted into marital property. We affirm the remainder of the trial court’s order. Wife’s request for appellate attorney’s fees is granted.

First Community Bank, N.A. v. First Tennessee Bank, N.A., et al.
E2022-00954-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge E. Jerome Melson

This is the third iteration of this action in this court concerning Plaintiff’s claims against Defendant for fraud, constructive fraud, negligent misrepresentation, civil conspiracy, unjust enrichment, and violation of the Tennessee Securities Act, codified at Tennessee Code Annotated section 48-1-101, et seq. The claims arose out of the purchase of asset-backed securities that were later deemed unmarketable, causing a significant financial loss to Plaintiff. This particular appeal concerns the trial court’s granting of summary judgment in favor of Defendant based upon the applicable statute of limitations. We now affirm.

Julie Danielson v. Kimberly Armstrong
M2022-01725-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Amanda J. McClendon

This appeal concerns the validity and enforceability of an oral loan agreement between former business partners. As discussed herein, we discern no error in the trial court’s enforcement of the parties’ agreement. As such, the judgment of the trial court is affirmed.

Tinsley Properties, LLC et al. v. Grundy County, Tennessee
M2022-01562-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Melissa Thomas Willis

This case concerns the validity of a county resolution prohibiting quarries and rock crushers “within five thousand (5,000) feet of a residence, school, licensed daycare facility, park, recreation center, church, retail, commercial, professional or industrial establishment.” The plaintiff landowners argued that the county failed to comply with the requirements in Tennessee’s county zoning statute, Tennessee Code Annotated § 13-7-101 to -115. In the alternative, they argued that state law expressly preempted local regulation of quarries. However, the county argued that it was exercising its authority to protect its citizens’ health, safety, and welfare under the county powers statute, Tennessee Code Annotated § 5-1-118. The trial court granted summary judgment to the county on the ground that it had no comprehensive zoning plan. This appeal followed. We affirm.

Russell W. Rivers Et Al v. Travis Brooks Et Al.
E2023-00506-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor John C. Rambo

This case concerns a “Declaration of Additional Restrictive Covenants” applicable to an unimproved tract in a residential subdivision. In relevant part, the Declaration provides that, if a construction agreement could not be reached, the buyer is required to either (1) obtain a waiver of the exclusive builder provision, or (2) re-convey the property to seller at the original purchase price, excluding fees and costs. Here, Appellant/seller and Appellees/buyers could not agree on the building costs. The trial court determined that Appellant breached the Declaration and waived the right to enforce it when he failed to grant Appellees’ request for waiver of the exclusive builder provision and also refused to re-purchase the lot. Discerning no error, we affirm.

In Re Liam M.
E2023-00370-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Amanda Magan Worley

Mother and Father divorced and Mother was given custody of their child. Mother remarried and eventually she and Stepfather filed a petition to terminate Father’s rights and allow Stepfather to adopt the child. The trial court found that Father had not visited the child within four months of the filing of the petition and that termination of Father’s parental rights was in the best interest of the child. We affirm.

Kristina Collins Ramsey v. Austin A. Ramsey
E2022-01295-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

The mother in this action filed for divorce and sought to relocate to North Carolina with the parties’ son. Following settlement of all issues aside from the matters of parenting time and child support, the trial court designated the mother primary residential parent and allowed her to move back to her home state. The father appealed. We affirm the judgment of the trial court.

Eric Daniel Paschke v. Jessica Ruth Paschke
E2023-00239-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Jerri Bryant

Appellant filed this declaratory judgment action against his sister, seeking to enforce a contract concerning property owned by the siblings’ parents at their deaths. After a bench trial, the trial court found that the contract was unenforceable, as there was no meeting of the minds due to a mutual mistake of fact. The trial court further found that a conveyance of real property was barred by the statute of frauds. Because Appellant has failed to supply this Court with a transcript or statement of the evidence presented at trial, we must affirm the trial court’s finding that there was no meeting of the minds due to a mutual mistake.

Matthew Adam Corenswet v. Samantha Marie Corenswet (Rain)
M2023-00642-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Phillip Robinson

This is an appeal from two orders entered by the trial court in this post-divorce action. In
the first order, the trial court found the mother guilty on three counts of criminal contempt,
upon a petition filed by the father, for scheduling and taking the parties’ minor child to two
doctor’s appointments and a walk-in clinic in violation of the parties’ permanent parenting
plan. The parenting plan granted to the father exclusive decision-making authority over all
non-emergency medical decisions for the children. In the second order, the trial court sua
sponte modified the parties’ parenting plan, granting the father “tie-breaking authority” to
schedule non-school-related extracurricular activities during the mother’s co-parenting
time on the condition that if the mother did not agree to a particular activity, the father
would pay for and provide transportation to the activities. Neither party had filed a petition
seeking to modify the parenting plan. The mother appeals this modification on the grounds
that no material change in circumstance existed to justify modification of the parenting
plan and argues further that the modification was not in the best interest of the children
because it would likely create more disputes between the parties going forward. With
regard to the criminal contempt determinations, the mother argues on appeal that her
actions in scheduling the two doctor’s visits were not “willful” as required for a finding of
criminal contempt and that her action in taking the child to the walk-in clinic was
precipitated by a medical emergency, a situation over which the parenting plan did not
grant the father exclusive control. Upon thorough review, we discern no reversible error
in the trial court’s determination that the mother was guilty of three counts of criminal
contempt for violating the permanent parenting plan and accordingly affirm that order in
its entirety. Regarding the second order, we find as a threshold matter that the trial court
did not have subject matter jurisdiction to modify the parties’ parenting plan in the absence
of a petition to modify or motion for relief from judgment. Accordingly, we vacate the
trial court’s order modifying the parties’ permanent parenting plan.

Audrey Korshoff, et al. v. Wesley Financial Group, LLC
M2022-00630-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Deanna B. Johnson

An employer terminated an employee after she requested unpaid commissions pursuant to
her contract. The employee sued her former employer claiming breach of contract, unjust
enrichment, retaliatory discharge, and intentional misrepresentation. She also sought
punitive damages. The jury found in the employee’s favor on all claims and awarded
damages for breach of contract, unjust enrichment, and retaliatory discharge as well as
awarding punitive damages. The former employer sought post-trial relief, arguing the
jury’s verdicts were inconsistent and that the jury’s punitive damages award was in error
and excessive. The trial court concluded the verdicts were consistent but did reduce, while
not eliminating, the punitive damages award. The former employer appeals, challenging
the compensatory and punitive damage awards. We affirm.

Daemon Shaun Key v. Cailey Marjorie Gonzales
W2021-01465-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor James F. Butler

Father appeals the denial of his petition in opposition to a proposed relocation by Mother
and his petition to change custody of the children. After considering the testimony of over
ten witnesses, the trial court ruled that the children’s best interests were served by allowing
Mother to relocate and by her remaining the children’s primary residential parent. The trial
court also awarded Mother considerable attorney’s fees, including fees incurred in
defending against a dependency and neglect action that had eventually been dismissed,
with the related visitation and custody issues transferred to the trial court. Discerning no
abuse of discretion in the trial court’s decisions, we affirm. We deny, however, Mother’s
request for attorney’s fees incurred on appeal.

In Re: Avalee W., Et Al
E2023-00977-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Elizabeth C. Asbury

This appeal involves the termination of a mother’s parental rights. The trial court found
by clear and convincing evidence that six grounds for termination were proven and that
termination was in the best interest of the children. The mother appealed. On appeal, the
Department of Children’s Services “does not defend” three of the grounds that the trial
court concluded were established. We reverse these three grounds. Of the three remaining
grounds, which DCS maintains were sufficiently proven, we conclude that the ground of
substantial noncompliance with a permanency plan was proven by clear and convincing
evidence. We further find that termination of parental rights is in the best interest of the
children. However, due to insufficiencies in the trial court’s findings, we vacate the
grounds of persistent conditions and failure to manifest an ability and willingness to assume custody or financial responsibility against the mother. We reverse in part, with respect to three grounds for termination, and vacate in part, with respect to two grounds for termination, but otherwise we affirm the trial court’s order terminating parental rights.

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.