COURT OF APPEALS OPINIONS

In Re Estate of James A. Price
W2023-01508-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joe Townsend

In this estate case, appellant, decedent’s son, and appellee, decedent’s partner of twenty-seven years, are the beneficiaries of decedent’s will. The will appointed the parties co-executors, and they served in this capacity for several months until disputes arose between them and this litigation ensued. In its final order, the trial court found in favor of appellee on every disputed issue. On appeal, appellant raises issues concerning the trial court’s: (1) rulings during trial; (2) final order; and (3) award of attorney’s fees to appellee. Both parties ask for an award of appellate attorney’s fees. Because the evidence does not support the attorney’s fee amount awarded to appellee, and because the trial court failed to consider the relevant reasonableness factors, we vacate this award and remand for a new determination of reasonable attorney’s fees owed to appellee. The trial court’s orders are otherwise affirmed. We grant appellee’s request for appellate attorney’s fees, and we deny appellant’s request for same. Appellee’s request for frivolous appeal damages is denied.

Victor Hugo Hernandez v. Jodie L. Land
M2022-01712-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Joseph A. Woodruff

A father moved to set aside two court orders as absolutely void. See TENN. R. CIV. P. 60.02(3). The trial court denied the motion. We affirm.

Jim Spangler et al. v. Mack McClung
M2024-00055-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Chancellor Anne C. Martin

At issue in this appeal are claims for unjust enrichment and breach of a limited liability company’s operating agreement. The plaintiff, individually and on behalf of the LLC, filed the complaint against his business partner. The complaint alleged that the defendant breached the LLC’s operating agreement by executing a promissory note to satisfy a foreclosure deficiency and by securing that note with a deed of trust on the LLC’s remaining real estate. After a bench trial, the court dismissed the plaintiff’s claims with prejudice. The court found that the promissory note was an extension or renewal of the LLC’s existing loan and that the defendant’s actions were authorized by a “written consent,” which allowed the defendant “to do any acts, including but not limited to the assignment, delivery, pledge, or hypothecation . . . of any or all assets of this LLC to secure such Loan, renewals and extensions.” Thus, the court concluded that the defendant did not breach the operating agreement. And because the parties had a valid and enforceable contract, the court determined that the plaintiff had no claim for unjust enrichment. But the court denied the defendant’s request for an award of attorney’s fees under the operating agreement’s fee-shifting provision. The court reasoned that the action was not “to secure enforcement” of the operating agreement, as required by the operating agreement. We affirm the court’s judgment on the plaintiff’s claims, albeit for different reasons with respect to the unjust enrichment claim but reverse the trial court’s denial of the defendant’s request for attorney’s fees.

In Re Colten B.
E2024-00653-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Mark Blaine Strange

This appeal involves a petition to terminate parental rights of a mother and father to their young son. The trial court found by clear and convincing evidence that a ground for termination existed due to a prior finding of severe child abuse and that termination of parental rights was in the best interest of the child. The parents appeal. We affirm.

Natasha C. v. Dustin C.
W2024-00201-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Daniel L. Smith

Mother appeals the trial court’s decision to modify the parties’ parenting plan and name Father primary residential parent of the parties’ two children. Discerning no reversible error, we affirm.

In Re Taiden B.
M2024-00101-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge William Talley Ridley

In this action to terminate parental rights, Mother appeals the trial court’s findings by clear and convincing evidence that she abandoned her child and that the termination of her parental rights was in the child’s best interest. The evidence does not preponderate against the trial court’s determination. Therefore, we affirm the trial court’s decision.

In Re Dilmer S.M. ET AL.
W2024-00632-COA-R3-PT
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge Tarik B. Sugarmon

A mother appeals from an order terminating her parental rights to her four minor children. The trial court held that the evidence presented supported termination of the mother’s rights based on the statutory ground of severe child abuse. The court also found that termination was in the children’s best interests. Discerning no reversible error, we affirm.

In Re Dilmer S.M. ET AL. - Concurring
W2024-00632-COA-R3-PT
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Tarik B. Sugarmon

The majority thoughtfully addresses the present appeal. I agree with the majority that the record establishes that Mother committed severe child abuse and that the termination of her parental rights is in the best interest of the children. I respectfully diverge from the majority insofar as the majority opinion suggests that the termination petition’s notice — which specifically alleges severe abuse against the children that are named in the petition (which does not include Ervin Leonard) — extends to a finding of severe abuse by Mother of another child, Ervin Leonard. I concur in the majority’s conclusion affirming the termination of Mother’s parental rights based on harmless error.

Alanna Lee Kummer v. Johnny Kummer, III
M2023-00033-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Phillip R. Robinson

A husband never answered his wife’s complaint for divorce, and the trial court entered a default against him. After an evidentiary hearing, the trial court granted the wife a divorce and divided the marital estate. Within thirty days of entry of the final decree, the husband moved for relief from the judgment. On appeal, the husband faults the court for denying his motion. We affirm.

Thomas Marlin Roberts, et al. v. Tennessee Department of Environment and Conservation, et al.
W2023-01577-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kasey Culbreath

Homeowners removed underground storage tanks found on their property. After finding evidence of petroleum contamination where the tanks had been located, the Tennessee Department of Environment and Conservation began an extensive cleanup process. The Department subsequently issued a cost-recovery order against the homeowners to recoup its expenditures. The homeowners petitioned for review of the cost-recovery order to the Underground Storage Tanks and Solid Waste Disposal Control Board, which upheld the order. The homeowners appealed this initial ruling to the Board and the order was again upheld. The homeowners then appealed the Board’s final ruling to the trial court, which reversed the Board’s judgment. The Department and the Board now appeal. Because we determine that the trial court lacked subject matter jurisdiction, we vacate the trial court’s order and remand the matter for transfer to the proper court.

In Re Conservatorship of Sylvia Carlyle Brainard
W2024-00031-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kathleen N. Gomes

After two sets of relatives filed competing petitions for the appointment of a conservator over the respondent, the parties entered into an agreed order and settlement agreement that provided that the respondent was not in need of conservator, but that the parties had certain obligations that were subject to review by the court and guardian ad litem going forward. Months later, appellants filed a petition to set aside the agreed order on the basis that appellees had not complied with its terms; appellees responded with a motion to dismiss appellants’ petition on the basis that they had not alleged proper grounds to set aside the parties’ agreement. After a hearing on the motion to dismiss, the trial court entered an order stating that “[a]ll outstanding orders should be set aside and all petitions and the case dismissed” without explanation. Because we cannot review the trial court’s sua sponte dismissal without an adequate explanation, we vacate the judgment of the trial court and remand for further proceedings.

Claudine Desjardins v. Kelly Wilson et al.
M2023-00745-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Thomas W. Brothers

The appeal arises from a landlord-tenant dispute. Because the appellant’s brief falls well short of the requirements of both the Tennessee Rules of Appellate Procedure and the rules of this Court, we dismiss the appeal.

In Re Remington G.
2021-00680-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Stella L. Hargrove

A father filed a petition to establish parentage of the parties’ child. At the trial on the petition, the trial court limited the evidence to events since a hearing on pendente lite parenting time that took place 47 days before the final hearing. We have determined that the trial court abused its discretion when it limited the evidence in this way. Therefore, we vacate the court’s order in its entirety and remand for a new trial.

James Henry Whitaker, II v. Viktoria Moor
M2022-01721-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor J.B. Cox

Following their divorce, a mother informed her children’s father of her desire to move to Germany with the children. The father filed a petition opposing the move. The court found that the relocation was in the children’s best interest and modified the permanent parenting plan accordingly. On appeal, Father contends the evidence preponderates against some of the factual findings and that the court erred in weighing the statutory best-interest factors. Because the evidence does not preponderate against the court’s finding that relocation was in the children’s best interest, we affirm.

Preston Garner Et Al. v. Southern Baptist Convention Et Al.
E2024-00100-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge David R. Duggan

The appellees filed suit against the appellants for defamation, defamation by implication, false light invasion of privacy, and loss of consortium. The appellants moved to dismiss the case, arguing that the ecclesiastical abstention doctrine barred the trial court from exercising subject matter jurisdiction. They also filed petitions seeking to have the case dismissed pursuant to the Tennessee Public Participation Act (“TPPA”). The trial court denied in part the motions to dismiss for lack of subject matter jurisdiction, finding that the ecclesiastical abstention doctrine does not apply to this case. It also denied the TPPA petitions, finding that the TPPA does not apply to this case. Alternatively, it found that the appellees satisfied their prima facie burden under the TPPA burden-shifting framework. We conclude that the trial court erred in finding that the TPPA does not apply to this case and reverse that portion of the judgment. Finding no other error, we otherwise affirm the judgment of the trial court.

James W. Grubb Et Al. v. Joe D. Grubb Et Al.
E2023-01358-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge J. Michael Sharp

This appeal concerns the end of a business relationship between two brothers, Joe D. Grubb (“Joe”) and James W. Grubb (“Jim”).2 After many years of working together in the cash advance and rent-to-own businesses, Jim sued Joe in the Chancery Court for McMinn County (“the Trial Court”), asserting breach of contract, intentional interference with business relationships, breach of fiduciary duty, and equitable relief under the LLC dissolution statute. Joe sued Jim in turn. One of the chief issues concerned Jim’s claim to equal compensation from the brothers’ businesses based on an alleged express oral agreement with Joe. After a trial, the Trial Court found in favor of Jim, awarding him damages based on multiple grounds. Centrally, the Trial Court found that an express oral agreement between Jim and Joe provided for equal compensation, even though Jim testified that the alleged agreement was “unspoken” and “just the way it’s been.” Joe appeals. We hold, inter alia, that notwithstanding the Trial Court’s factual findings and credibility determinations in favor of Jim, what Jim testified to did not constitute an express oral agreement or any other kind of contract as a matter of law. Jim’s alternative theories for relief are unavailing as well. We reverse.

In Re Austynn F.
E2023-01707-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Richard B. Armstrong, Jr.

A father appeals the termination of his parental rights to his child. The court found one ground for termination: abandonment by failure to visit. Because the trial court’s order fails to resolve conflicting testimony concerning the father’s visitation with the child, we vacate the judgment and remand for specific findings of fact and conclusions of law.

Craig William Joel v. Chattanooga Fire and Police Pension Fund
E2024-00681-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Jeffrey M. Atherton

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.

Ladon Relliford v. Jerry Burks, et al.
W2022-00997-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Chancellor Gadson W. Perry

The plaintiff took his car to a body shop for repair. The owner of the body shop, who had obtained title of the vehicle through an unknown means, sold the car to the defendant, CarMax. The plaintiff brought suit against the owner of the body shop and CarMax, seeking the return of his car. The trial court granted summary judgment to CarMax, finding it held valid title as a good faith purchaser for value. Because we find that the undisputed facts do not support a conclusion that CarMax is entitled to judgment as a matter of law, we reverse the judgment of the trial court.

Sandra Easley v. City of Memphis
W2023-00437-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Damita J. Dandridge

Plaintiff was injured after attempting to cross a street outside of a crosswalk and being struck by a city-owned vehicle driven by a city employee. The trial court found that the city was vicariously liable for the employee-driver’s negligence and directly liable for its negligent hiring and retaining of the employee-driver. The trial court ultimately found the plaintiff 10% at fault for her injuries. The city appealed, and this Court reversed, finding that there was no proof of negligent hiring and that the evidence preponderated against the trial court’s allocation of fault. Instead, this Court concluded that the plaintiff was at least 50% at fault, barring recovery. The Tennessee Supreme Court vacated the judgment as failing to afford the trial court’s findings of fact appropriate deference, but acknowledged the plaintiff’s failure to appeal the conclusion that the negligent hiring finding was unsupported. On remand, we affirm in part, reverse in part, vacate in part, and remand the matter to the trial court for the re-allocation of fault and calculation of damages.

Benjamin McCurry v. Agness McCurry
E2024-01719-COA-T10B-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge D. Kelly Thomas, Jr.

Petitioner seeks accelerated review of the denial of two motions to recuse the trial judge. After a de novo review, we affirm the denial of both motions.

State of Tennessee, ex rel., Stephany V. Lopez v. Justin M. Finch
W2024-01824-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Michael Mansfield

Appellant filed this petition for recusal appeal without including either the motion to recuse filed in the trial court or the trial court’s order denying the motion to recuse. As such, we dismiss this appeal.

SCOTT BAKER ET AL. v. LARRY BASKIN ET AL.
M2023-00433-COA-R3-CV
Authoring Judge: Frank G. Clement, Jr.
Trial Court Judge: Patricia Head Moskal

Buyers of a residential home brought action against sellers for 1) breach of contract, 2)
negligent misrepresentation, 3) negligence, 4) negligence per se, 5) gross negligence, 6)
residential disclosures violations, and 7) fraud. The claims arise from the discovery of a
sinkhole months after the sale. The sinkhole was not indicated “through the contour lines
on the property’s recorded plat,” see Tenn. Code Ann. § 66-5-212(c) (2015), and the sellers
insist they had no knowledge of a sinkhole on the property. For these reasons, they did not
disclose the existence of the sinkhole on the Tennessee Residential Property Condition
Disclosure form. Nevertheless, the proof at trial established that one of the sellers, Larry
Baskin, while mowing the lawn, discovered a depression in the yard six months prior to
listing the property for sale, which he believed to be caused by rotting roots from a tree that
had been removed years earlier. He filled the depression with two four-by-four, pressuretreated,
rot-resistant posts and topsoil. Because it was near a downspout, he also placed the
plastic bag from the topsoil over the posts, which he covered with more soil and grass. The
property was sold seven months later, during which time Mr. Baskin did not notice the area
“concaving or dipping in any way” even though he mowed regularly over the area with his
500-pound riding mower. Following a bench trial, the court dismissed all claims except the
negligence claim. Significantly, the court dismissed the claim for negligent
misrepresentation because the purchase agreement contained an “as is” clause. However,
the court held that Larry Baskin was liable under the claim for common law negligence,
finding that he “breached the duty of reasonable care by not informing the Buyers of the
existence of the hole prior to their purchase of the Property. The harm resulting from Mr.
Baskin’s breach was damage to the value of the Property.” The court awarded the buyers
compensatory damages of $55,000 for the diminution in value of the property.
Additionally, finding the buyers to be the prevailing parties according to the purchase
agreement, the trial court awarded them attorney’s fees and costs. This appeal followed,
with the sellers challenging Mr. Baskin’s liability under the negligence claim and the
buyers challenging the dismissal of the gross negligence claim. For the reasons explained
below, we affirm the dismissal of the claim for gross negligence; however, we reverse the
finding of Mr. Baskin’s liability based on the claim of negligence because “a seller’s
liability for the failure to disclose such material facts in a real estate transaction is
coextensive with a party’s liability for fraudulent or negligent misrepresentation.” Fayne
v. Vincent, 301 S.W.3d 162, 177 (Tenn. 2009). Because we have affirmed the dismissal of
the claim for gross negligence and reversed the ruling concerning the negligence claim, we
also vacate the award of damages and attorney’s fees to the buyers. In that the sellers are
now the prevailing parties, we remand with instructions to award the sellers the reasonable
and necessary attorney’s fees and costs they are entitled to recover pursuant to the parties’
contract.

In Re Estate of Clifton Dates, Jr.
W2024-00488-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Joe Townsend

This is an appeal from a dispute over a piece of real estate in Shelby County, Tennessee. The property owner executed a quit claim deed transferring ownership of the property to his daughter, who was also his attorney-in-fact, shortly before he died in 2023. After his death, the man’s surviving spouse filed a petition to set the deed aside, claiming that the daughter obtained the deed by undue influence. The trial court held a bench trial and entered an order setting the deed aside. The daughter timely appeals to this Court. Discerning no error, we affirm.

State of Tennessee, ex rel., Jabrunkaka R. Franklin v. Justin M. Finch
W2024-01822-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Michael Mansfield

Appellant filed this petition for recusal appeal without including either the motion to recuse filed in the trial court or the trial court’s order denying the motion to recuse. As such, we dismiss this appeal.