Margaret Smith v. HSBC Mortgage Services, Inc., et al.
This appeal arises out of protracted litigation following a foreclosure sale. The plaintiff asserted claims against the mortgage holder and the purchaser at the foreclosure sale for breach of contract, breach of the implied duty of good faith and fair dealing, improper foreclosure, and fraud. The trial court dismissed each of the claims, and the plaintiff appeals. Due to the deficiencies in the plaintiff’s brief on appeal, we conclude that she has waived consideration of any issues and hereby dismiss the appeal. |
Shelby | Court of Appeals | |
Michelle Kay (Clark) Love v. James Terrill Clark
A mother obtained a default judgment against her former spouse for child support arrearages and other amounts. At the mother’s request, the trial court entered orders of income assignment to the former spouse’s employers, each directing them to deduct a set amount from the former spouse’s salary to satisfy the default judgment. Nearly fourteen and one-half years later, the former spouse asked the court to terminate the wage assignment, claiming the culmulative amount deducted from his income exceeded the amount of judgment plus interest. The former spouse also sought a judgment against the mother to the extent she had received more than she was entitled to under the default judgment. The mother argued that the voluntary payment doctrine barred recovery. The trial court found that the former spouse’s “overpayments were made with full knowledge of the facts chargeable to him” but that they “were not voluntary payments.” Accordingly, the court entered judgment against mother plus statutory post-judgment interest. |
Loudon | Court of Appeals | |
Michelle Kay (Clark) Love v. James Terrill Clark - Dissenting
Originally, I was assigned the task of drafting an opinion in this case. I circulated my draft to the other panel judges, the Honorable W. Neal McBrayer and the Honorable Arnold B. Goldin. Judges McBrayer and Goldin do not agree with me “that the voluntary payment doctrine barred recovery.” I have read the majority opinion drafted by Judge McBrayer and concurred in by Judge Goldin. I now formally dissent from that majority opinion. |
Loudon | Court of Appeals | |
In re Estate of John Tyler McKelvey
This appeal arises from a declaratory judgment action seeking to determine whether the decedent died intestate. The decedent executed a will in 2005 and executed another will in 2011, which expressly revoked all prior wills and codicils. Following the decedent’s death in 2016, the original of the 2011 will could not be located; however, the original of the 2005 will was found in the decedent’s personal filing cabinet. The decedent’s children then filed a Petition to Open Estate and [for] Declaratory Relief, seeking a declaration that the decedent died intestate. The decedent’s live-in companion of approximately 30 years, and a beneficiary under both wills, filed an answer, contending that the decedent died testate under either the 2005 or the 2011 will. At the trial, the decedent’s companion conceded that she did not have evidence to overcome the presumption that the decedent revoked the 2011 will; thus, the trial focused on whether the decedent intended to revive his 2005 will upon revoking the 2011 will. The trial court found “there is no proof Decedent revoked the 2011 Will with the intent to execute a later will,” and “[g]iven the preservation and nearby-safekeeping of the 2005 Will following revocation of the 2011 Will and the lack of evidence indicating a contrary intent, the Court concludes Decedent intended to revive his 2005 Will.” We affirm. |
Franklin | Court of Appeals | |
Debbie H. Morrow v. Gault Financial, LLC
This case was originally filed in general sessions court. The general sessions court entered a default judgment against Appellant in the amount of $8,066.04 on January 27, 2012. In September of 2015, Appellant filed a motion for relief from the general sessions judgment, alleging that the judgment was void because she was not properly served with the civil warrant. The general sessions court denied the motion, and Appellant appealed to the circuit court. The circuit court vacated the general sessions’ default judgment finding that Appellant was not properly served but remanded the case to general sessions for a trial on the merits. Because the general sessions court lacked personal jurisdiction over Appellant, we conclude that the default judgment entered in the general sessions court is void. Accordingly, we affirm the circuit court’s order vacating the default judgment, but reverse the circuit court’s remand of the case to general sessions court, and instead we remand to the circuit court with instructions to dismiss the case. |
Davidson | Court of Appeals | |
Dana Looper v. City of Algood
Former police officer appeals the denial of her petition for a writ of certiorari and the denial of her motion for relief from a final judgment related to the termination of her employment. Here, the evidence was undisputed that the former police officer neglected her duties, failed to follow the directive of a “superior” and was repeatedly informed about various instances of misconduct. As such, the city administrator’s decision to uphold Appellant’s dismissal was supported by material evidence and was neither arbitrary, illegal, nor capricious. |
Putnam | Court of Appeals | |
Fredrick Sledge v. Tennessee Department of Corrections, et al
Fredrick Sledge (“Petitioner”) appeals the June 16, 2017 order of the Chancery Court for Nashville and Davidson County (“the Trial Court”) dismissing Petitioner’s October 2016 petition for declaratory judgment (“2016 Petition”) based upon the prior suit pending doctrine. We find and hold that the prior suit pending doctrine applies as Petitioner had a prior suit pending involving the same parties and the same subject matter in a court that had both personal and subject matter jurisdiction. We, therefore, affirm the Trial Court’s June 16, 2017 order dismissing Petitioner’s petition. |
Davidson | Court of Appeals | |
Robert A. Hanks, et al v. First American Title Insurance Company
Robert A. Hanks and Lee E. Hanks (“Plaintiffs”) sued First American Title Insurance Co. (“First American”) for breach of contract with regard to an owner’s title insurance policy (“Title Policy”). First American filed a motion for summary judgment. After a hearing, the Chancery Court for Sumner County (“the Trial Court”) granted summary judgment to First American after finding and holding, inter alia, that the Title Policy excluded any claim pursuant to either federal bankruptcy code or Tennessee law for an alleged fraudulent conveyance, fraudulent transfer, or preferential transfer. Plaintiffs appeal the grant of summary judgment to this Court. We find and hold that First American made a properly supported motion for summary judgment demonstrating that Plaintiffs’ evidence is insufficient to establish an essential element of their claim and that Plaintiffs failed to demonstrate that there are genuine disputed issues of material fact with regard to the claims for fraudulent conveyance or fraudulent transfer. We further find and hold that the claim for post-petition transfer is not excluded from coverage pursuant to exclusion 4 of the Title Policy, and, therefore, summary judgment on the post-petition claim was improper. We, therefore, affirm the grant of summary judgment, in part, and reverse it, in part, and remand this case to the Trial Court for further proceedings consistent with this Opinion. |
Sumner | Court of Appeals | |
John Edwards v. Paula Renee Herman
In this personal injury action arising from an automobile-motorcycle accident, the trial court granted the plaintiff’s motion to enlarge the time allowed to obtain service of process on the defendant upon finding that the plaintiff’s failure to timely obtain service of process had been due to excusable neglect. Consequently, the trial court in the same order denied the defendant’s motion to dismiss the plaintiff’s complaint for lack of service. Upon the defendant’s subsequent motion, the trial court granted permission for an interlocutory appeal, as did this Court. Upon review of the issues certified by the trial court, we affirm the trial court’s utilization of Tennessee Rule of Civil Procedure 6.02 as a method of enlarging the timeframe for issuance and service of process, pursuant to Tennessee Rule of Civil Procedure 3, when the complaint was timely filed and when excusable neglect can be demonstrated. However, having concluded that the trial court made insufficient findings and conclusions regarding excusable neglect in this matter, we vacate the trial court’s determination on that issue and remand this matter to the trial court for further proceedings consistent with this opinion. We also vacate the trial court’s determination that the defendant would be estopped from asserting a defense based on the statute of limitations because the parties had no express agreement waiving service of process in this matter. |
Campbell | Court of Appeals | |
Sandra Buttram v. Kenneth Ramsey
Kenneth Ramsey (“Defendant”), pro se, appeals the April 18, 2017 order of the Circuit Court for Hamilton County (“the Circuit Court”) granting Plaintiff’s motion to dismiss Defendant’s appeal from General Sessions Court to the Circuit Court. Defendant’s brief on appeal severely fails to comply with Tenn. R. App. P. 27. We, therefore, find that Defendant has waived his issues on appeal. We affirm the Trial Court’s April 18, 2017 order. |
Hamilton | Court of Appeals | |
Family Trust Services, LLC, Et Al. v REO Holdings, LLC, Et Al.
This appeal of a conviction for criminal contempt arises out of a civil suit brought by business owners against the owners and employees of a competing business for fraud in the use of the tax-sale and redemption process for real property. The trial court issued a temporary injunction, prohibiting defendants from, inter alia, recording deeds in real estate transactions without an authentic notary seal on the documents and requiring defendants to notify the court and opposing counsel of any documents they intended to record in the Register’s Office. Appellant, the owner of the business which was the subject of the injunction, subsequently formed a trust in which Appellant retained the right to direct the distribution of income and principal and to amend, revoke, or terminate the trust. The trustee of the trust was conveyed real property in trust and recorded the deed without the notice required by the injunction. The property was subsequently sold, and, at Appellant’s instruction, a portion of the proceeds of sale used to pay Appellant’s legal fees for a related proceeding; the trial court held that, in so doing, the Appellant willfully and for a bad purpose violated the injunction, and held him in contempt. On appeal, Appellant argues that the evidence is insufficient to support the conviction. We have reviewed the record and conclude that there is evidence to support the contempt conviction beyond a reasonable doubt and accordingly affirm the judgment. |
Davidson | Court of Appeals | |
In Re: Samuel R., et al.
This appeal involves the termination of a father’s parental rights to his two children. The father suffers from paranoid schizophrenia. The trial court terminated his parental rights on the grounds of mental incompetence and abandonment by willful failure to visit and/or support. We reverse the trial court’s findings regarding abandonment but otherwise affirm the termination of parental rights. |
Shelby | Court of Appeals | |
State of Tennessee F/B/O City of Columbia v. 2013 Delinquent Taxpayers
This case involves Appellant’s attempt to redeem property that was purchased by Appellee at a tax sale. Appellant executed a power of attorney in favor of his son, which vested his son with authority to file the motion to redeem the subject property. Appellee objected to the motion on the ground that son, who is not a licensed attorney, engaged in the unauthorized practice of law by filing the motion to redeem; thus, Appellee argued that the motion was void. In response to the motion, Appellant filed an amended motion to redeem with the assistance of an attorney. The amended motion, however, was filed after the one year redemption period had expired. The trial court denied the amended motion to redeem, finding that the original motion to redeem was void and that the amended motion to redeem did not relate back to the date son filed the original motion. Thus, the trial court held that the amended motion was untimely. We hold that Appellant’s son was authorized, under the power of attorney, to file the original motion to redeem and that the filing of the form motion provided by the clerk’s office was not an unauthorized practice of law. Accordingly, we reverse the trial court’s order and remand. |
Maury | Court of Appeals | |
Tennessee Community Organizations, Et Al. v. Tennessee Department of Intellectual And Developmental Disabilities
Appellants, home and community based service providers and their professional trade organization, appeal the trial court’s grant of summary judgment in favor of Appellee Tennessee Department of Intellectual and Developmental Disabilities. The case, which was filed as a declaratory judgment action, involves financial sanctions levied against Appellant providers by Appellee for billing for day services in excess of the 243-day limit imposed by a federal waiver. Appellants assert, inter alia, that the imposition of these fines exceeded Appellee’s statutory and/or contractual authority. Discerning no error, we affirm the trial court’s grant of summary judgment against Appellants on all counts of their petition. |
Davidson | Court of Appeals | |
James Edgar Yarbrough v. Cheryl Ann Pinegar Yarbrough
A wife filed a motion pursuant to Tennessee Rule of Civil Procedure 60.02(3) to set aside a final decree of divorce granted on the ground of irreconcilable differences. The trial court denied the motion, finding that she failed to prove by clear and convincing evidence that the judgment was void. We affirm the trial court’s decision. |
Shelby | Court of Appeals | |
Mayla C. Anders v. Jonah Paul Anders
This is an appeal from the entry of an order dismissing an order of protection, which had already expired by its own terms. Because the order of protection has expired, we affirm the decision of the trial court and dismiss the appeal as moot. |
Shelby | Court of Appeals | |
U.S. Bank National Association v. Letitia Robertson, et al.
This is an unlawful detainer case. U.S. Bank initiated an action against Letitia and Roderick Robertson in the general sessions court seeking possession of a residential property it had purchased at a foreclosure sale after the Robertsons defaulted on their home loan. The general sessions court issued U.S. Bank a writ of possession, and the Robertsons appealed to the circuit court. The circuit court granted U.S. Bank’s motion for summary judgment and writ of possession. The Robertsons appealed to this Court, arguing that the circuit court lacked subject matter jurisdiction over the unlawful detainer claim. Because we have concluded that the circuit court had subject matter jurisdiction, we affirm. |
Shelby | Court of Appeals | |
In Re J.T.,Et Al.
In this termination of parental rights case, the Department of Children’s Services filed a petition to terminate the parental rights of B.B. (mother) and J.T. (father) with respect to J.T., Jr. and H.T. (the children). The trial court determined that clear and convincing evidence supported two grounds for termination: (1) substantial noncompliance with a permanency plan; and (2) persistence of conditions. By the same quantum of proof, the court determined that termination is in the best interest of the children. We vacate the trial court’s judgment with respect to the ground of persistence of conditions. As modified, we affirm the trial court’s judgment terminating the parental rights of the parents because termination is supported by clear and convincing evidence of substantial noncompliance with a permanency plan and is in the best interest of the children. |
Dickson | Court of Appeals | |
In Re Emily J. Et Al.
Mother appeals the termination of her parental rights to two children on the grounds of abandonment by failure to support and persistence of conditions. Upon our review, we conclude that the record contains clear and convincing evidence that the conditions which led to the children’s removal from Mother’s home persisted and that termination of her rights is in the children’s best interest; however, the evidence of abandonment by failure to support is not clear and convincing. Accordingly, we reverse the judgment in part and affirm the termination of her rights. |
Williamson | Court of Appeals | |
DL Rummage v. Kimberly Rummage
This is a divorce case in which the trial court designated the mother as the primary residential parent, awarded her child support and a portion of her attorney’s fees as alimony, and awarded her retroactive child support. The father appealed, arguing the trial court erred in numerous ways. We decline to address the father’s arguments, however, and affirm the trial court’s judgment because the father’s brief does not comply with the requirements of Tennessee Rule of Appellate Procedure 27(a) or Court of Appeals Rule 6. We grant the mother’s request for frivolous appeal damages pursuant to Tenn. Code Ann. § 27-1-122. |
Davidson | Court of Appeals | |
Sammie L. Brookins, et al. v. Owen B. Tabor, Jr., et al.
A plaintiff filed a health care liability complaint in 2015 against several physicians and entities that he later non-suited in order to comply with the pre-suit notice requirements set forth in Tenn. Code Ann. § 29-26-121(a). The plaintiff then filed a second complaint against the same defendants, relying on the saving statutes of Tenn. Code Ann. § 28-1- 105 and Tenn. Code Ann. § 29-26-121(c) to extend his statute of limitations. The plaintiff’s wife joined him as a plaintiff in the second complaint. The defendants filed motions to dismiss, alleging non-compliance with the pre-suit notice requirements and the statute of limitations. The trial court granted all of the defendants’ motions and dismissed the complaint. The plaintiffs appealed the trial court’s dismissal of the complaint against the physicians. We affirm the trial court’s dismissal of the complaint against all three of the physicians on statute of limitations grounds. We also affirm the trial court’s judgment dismissing the wife’s claims against all of the defendants. |
Shelby | Court of Appeals | |
Polly Spann Kershaw v. Jeffrey L. Levy
This is a legal malpractice case. Appellant filed suit against Appellee, who had previously served as Appellant’s attorney in a divorce matter. Appellant alleged that she suffered monetary damages and was convicted of criminal contempt as a result of the negligent legal representation she received from Appellee in her divorce case. Appellee filed a motion for summary judgment claiming that Appellant’s claims were, among other things, barred by the doctrine of judicial estoppel as a result of the sworn statements Appellant made in conjunction with her divorce settlement. The trial court agreed and granted summary judgment in favor of Appellee. We affirm. |
Davidson | Court of Appeals | |
In Re: Isaiah B.
Mother appeals the termination of her parental rights on grounds of (1) abandonment by failure to establish a suitable home; (2) persistence of conditions; (3) substantial noncompliance with permanency plans; and (4) failure to manifest a willingness and ability to assume custody of the child. We reverse the trial court’s ruling with regard to substantial noncompliance with permanency plans, but affirm the remaining grounds, as well as the trial court’s determination that termination is in the child’s best interest. The termination of Mother’s parental rights is therefore affirmed. |
Carter | Court of Appeals | |
Matthew Brock Hance v. Danielle Smith Hance
The issue on appeal is whether the commencement of a dependency and neglect action in the juvenile court deprived the chancery court of subject matter jurisdiction to rule on a pending motion to modify a parenting plan. Shortly after Father filed his petition to modify the parenting plan in the chancery court, the Department of Children’s Services filed a dependency and neglect petition in the juvenile court. After the juvenile court held a preliminary hearing on the dependency and neglect petition and assumed jurisdiction, the chancery court modified the parents’ child support obligations and awarded the father the federal income tax exemption for the child. Months later, the mother filed a motion to vacate the chancery court’s judgment on the basis it was void ab initio for lack of subject matter jurisdiction. The chancery court denied the motion, and this appeal followed. Tenn. Code Ann. § 37-1-103 vests juvenile courts with exclusive original jurisdiction over dependency and neglect proceedings and, once a juvenile court has exercised jurisdiction in a dependency and neglect proceeding, its exclusive jurisdiction continues until the case has been dismissed, the custody determination is transferred to another court exercising domestic relations jurisdiction, or a petition for adoption is filed. Because none of the jurisdiction exceptions had occurred prior to the chancery court modifying the parenting plan, the chancery court’s order was void ab initio for lack of subject matter jurisdiction. Accordingly, the chancery court’s order modifying the parenting plan is hereby vacated. |
Hamblen | Court of Appeals | |
Randall E. Pearson, MD, Et Al. v. Paul Koczera, Et Al.
This appeal follows prior appeals in this litigation that has spanned a decade. In this latest appeal, the trial court determined that the motions filed by the administrator ad litem for the estate of the third-party plaintiff should be denied. We affirm. |
Anderson | Court of Appeals |
