COURT OF APPEALS OPINIONS

Larry Short v. Roger Alston
W2022-00666-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge J. Weber McCraw

The appeal is dismissed due to the fact that Appellant’s brief wholly fails to comply with
Tennessee Rule of Appellate Procedure 27(a). In addition, there is no transcript or
Tennessee Rule of Appellate Procedure 24(c) statement of the evidence, thus negating this
Court’s ability to review the trial court’s substantive findings.

Clifford Leon Houston v. James F. Logan, Jr.
E2022-01696-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Tom McFarland

Clifford Leon Houston (“Appellant”) filed a motion to stay foreclosure proceedings in
2010 in the Chancery Court for Roane County (the “trial court”). In September of 2022,
Appellant filed a motion to recuse the new Roane County Chancellor. The trial court
denied the motion to recuse and dismissed Appellant’s action for failure to prosecute.
Appellant appealed to this Court. Because his brief fails to comply with Tennessee Rule
of Appellate Procedure 27, Appellant’s issues are waived, and the trial court’s ruling is
affirmed.

Karen Elizabeth Phillips Lowe v. Robert Melvin Lowe
E2023-01061-COA-T10B-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Suzanne S. Cook

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme
Court of Tennessee, filed by the plaintiff, Karen Elizabeth Phillips Lowe (“Former Wife”),
seeking to recuse the judge in this post-divorce case. Having reviewed the petition for
recusal appeal filed by Former Wife, and finding no error, we affirm.

In Re Estate of Harold W. Williams
E2022-01621-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Dennis Roach, II

This appeal arises out of a claim filed by a decedent’s wife against his estate. Of note, the decedent’s will contained a provision bequeathing his wife all of his clothing, personal effects, automobiles, and all of his other tangible personal property. During an inspection of the decedent’s home following his death, the decedent’s relatives located a checkbook with a sizeable amount of money contained in it, while also locating a large sum of money left in his clothing and in a wallet taped to a pipe in the decedent’s bathroom. The decedent’s wife argues that this money constitutes tangible personal property left to her in the decedent’s will. The trial court rejected this argument, determining that the money constituted intangible personal property. Having reviewed the record, we affirm.

In Re Zakary O.
E2022-01062-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Beth Boniface

Mother appeals the termination of her parental rights to her eldest child on a number of grounds. We reverse the trial court’s finding that Mother engaged in only token visitation with the child during the relevant time period. We vacate the trial court’s finding that Mother failed to manifest an ability and willingness to parent because the trial court failed to make findings as to whether the return of the child would pose a risk of substantial harm. We affirm the trial court’s findings as to the remaining grounds, as well as the trial court’s finding that termination is in the child’s best interest.

Aureus Holdings, LLC, d/b/a Media Brewery v. 3803 Partners, LLC
M2022-00505-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Anne C. Martin

This case involves competing claims for breach of a commercial lease agreement. The tenant commenced this action seeking to recover the security deposit and pre-paid rent, contending that the landlord breached the lease by failing to comply with the notice-and-cure provision in the lease before leasing the premises to another tenant. The landlord denied any breach and filed a counterclaim for damages and attorney’s fees contending that the tenant breached the lease by not paying rent. Each party moved for summary judgment, seeking affirmative relief as well as dismissal of the other party’s claims. After ruling that the tenant was the first to materially breach the lease by failing to pay rent and holding that the landlord failed to comply with the notice-and-cure provision in the lease, the court summarily dismissed the tenant’s complaint and the landlord’s counterclaims. Both parties appeal. We affirm the dismissal of the tenant’s complaint but reverse the dismissal of the landlord’s counterclaims and remand for further proceedings consistent with this opinion.

Betty H. v. Williamson County et al.
M2022-00300-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge J. Russell Parkes

The mother of a minor filed suit against a county and county employees, alleging that the minor was sexually assaulted by a county employee while in custody at a county-run juvenile detention center. The trial court granted the county’s motion for summary judgment on several grounds, including that the county retained immunity under the Governmental Tort Liability Act because the claims against the county arose out of civil rights claims. Finding no error, we affirm the judgment of the trial court.

Charles Hardin, Jr. v. Amanda Warf
W2022-01048-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge J. Brent Bradberry

This appeal arises from the filing of a detainer warrant in general sessions court. The
plaintiff sought to remove the defendant and her mobile home from his real property. The
general sessions court granted possession of the real property to the plaintiff but ordered
him to pay for the removal of the mobile home. The defendant appealed to the circuit
court. The circuit court concluded that the plaintiff was entitled to the relief requested and
awarded him possession of his real property. However, contrary to the general sessions
court, the circuit court ordered the defendant to remove her mobile home from the
plaintiff’s real property at her expense. The defendant appeals. We affirm.

In Re Mary M.
W2021-00178-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge James F. Russell

In this appeal, the circuit court determined that the plaintiff had failed to timely perfect her
appeal from an order of the juvenile court. Upon our review of the record, we affirm the
ruling of the circuit court.

Ricky L. Boren v. Hill Boren, PC, et al.
W2021-01024-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Senior Judge Robert E. Lee Davies

In this lawsuit between former law partners, a jury returned a verdict in favor of Appellees.
The instant appeal involves Appellees’ attempt to collect their judgment. The trial court
held that Appellant’s qualified rollover IRA is not exempt from garnishment, attachment
and execution under Tennessee Code Annotated sections 26-2-105, 26-2-111(1)(D), 26-2-
26, and 56-7-203. The trial court also determined that a recreational vehicle was not held
as a tenancy by the entirety and was subject to attachment and execution as Appellant’s
individually-owned property. We reverse.

Vandity A. Mitchell v. State of Tennessee
M2022-00696-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This appeal involves a personal injury action arising out of a car accident in a state parking lot. The original defendants raised the defense of comparative fault by the State of Tennessee, and the plaintiff filed a notice of claim in the Division of Claims and Risk Management and, later, filed a complaint in the Claims Commission. After the Claims Commission transferred the matter to circuit court, the State moved to dismiss based on the expiration of the statute of limitations, and the court granted the motion. We affirm the trial court’s ruling because, under Tenn. Code Ann. § 20-1-119, the complaint initiating a suit against the State was filed in the Claims Commission after the expiration of the 90-day grace period provided by the statute. Furthermore, we find the plaintiff’s argument that the State waived the statute of limitations defense unpersuasive.

Anglin G. Wright v. Lisa Robison
M2023-00685-COA-R3-CV
Authoring Judge: PER CURIAM
Trial Court Judge: Judge Joe Thompson

This is an appeal from a final judgment entered on April 5, 2023. Because the appellant did not file her notice of appeal with the clerk of the appellate court within thirty days after entry of the final order as required by Tennessee Rule of Appellate Procedure 4(a), we dismiss the appeal.

Edward Ronny Arnold v. Deborah Malchow et al.
M2022-00907-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Amanda J. McClendon

This is the second appeal in this matter involving a motor vehicle collision that occurred on October 23, 2019, in Nashville. Upon remand, following dismissal of the first appeal for lack of subject matter jurisdiction due to the absence of a final judgment, the trial court granted summary judgment in favor of the individual tortfeasor and subsequently dismissed the plaintiff’s claim against his underinsured motorist insurance carrier. The plaintiff has appealed. Determining that the plaintiff has demonstrated the existence of a genuine issue of material fact with respect to his negligence claim, we vacate the trial court’s grant of summary judgment in favor of the tortfeasor. We further vacate the dismissal of the plaintiff’s underinsured motorist claim against his automobile insurer. We affirm the trial court’s judgment in all other respects and remand this matter to the trial court for further proceedings consistent with this opinion.

Pamela Diane Stark v. Joe Edward Stark
W2021-01288-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert Samual Weiss

This appeal arises from a divorce action filed in 2018. The wife appeals from the trial
court’s order finding her guilty of two counts of criminal contempt. Because one count of
criminal contempt was alleged as civil contempt, we vacate the trial court’s finding of
criminal contempt on that count. We affirm the finding of criminal contempt on the second
count. We vacate the punishment of community service and remand for determination of
an appropriate punishment pursuant to Tennessee Code Annotated section 29-9-103.

Timothy L. Morton v. Davidson County Government
M2022-01572-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Senior Judge Don R. Ash

The plaintiff made a claim for the return of bond money he paid to a private bonding company to secure his release from jail for charges that were pending and then nolled nearly 22 years before the filing of the present cause of action. The trial court dismissed the complaint for failure to state a claim for which relief can be granted pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. The trial court held that the complaint, giving it the benefit of all reasonable inferences, fails to articulate any facts or legal authority showing a right to relief against the defendant. Further, the court determined that if the gravamen of the claim is a tort action for conversion, the claim was also properly dismissed because it would have accrued long ago and is therefore barred under the applicable one-year statute of limitations. The plaintiff appeals. We affirm.

Toby S. Wilt, Jr. v. ESPACES Franklin, LLC et al.
M2022-00978-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This appeal arises from a lawsuit filed by a former CEO seeking funds owed to him from his company and two of its subsidiaries. The trial court awarded summary judgment to the plaintiff. The defendants appeal. We affirm in part, vacate in part, and remand for further proceedings.

City of Memphis v. The Pension Board of The City of Memphis, et al.
W2022-01065-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Gadson W. Perry

This appeal arises out of the chancery court’s affirmance of the decision of the administrative law judge granting a Line of Duty Disability (“LODD”) pension to a Memphis Firefighter. The appeal hinges on a question of law concerning the meaning of Memphis Code of Ordinances § 25-1(27), which states that an employee is eligible for a LODD pension if:

[A] physical . . . condition arising as the direct and proximate result of an accident sustained by a participant, . . . while in the actual performance of duties for the city at some definite time and place . . . which totally and permanently prevents him or her from engaging in the duties for which he or she was employed by the city. The determination of the line-of-duty disability of a participant shall be made on medical evidence by at least two qualified physicians.

City of Memphis Code of Ordinances, § 25-1(27) (emphasis added).

Three qualified physicians testified, but only one of them found that both factors were established. In ruling in favor of the firefighter, the administrative law judge and the chancellor both held that it was not necessary that each qualified physician state that the injuries were caused while in the actual performance of duties for the City at a definite place and time and that he was permanently disabled from continuing in his chosen role as a consequence of that injury. The City of Memphis insists that this was error, contending that “the ordinance clearly requires at least two physicians to opine that the employee sustained a work-related injury which caused his/her disability.” Based on the plain language of the ordinance, we agree with the City’s interpretation of the evidentiary requirements for a LODD pension; we therefore reverse and remand with instructions to reinstate the decision of the Pension Board of the City of Memphis, which denied the application for a LODD pension.

In Re Estate of Ervin Jack Quinn
M2022-00532-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Larry J. Wallace

A surviving spouse brought this action against the estate of her deceased husband and his ex-wife and children. The surviving spouse sought to set aside the decedent’s inter vivos transfer of three properties to the ex-wife and children and/or to have the value of the transferred property included in the decedent’s net estate under Tennessee Code Annotated § 31-1-105, which applies when a decedent transferred property “with an intent to defeat the surviving spouse’s elective or distributive share.” The decedent conveyed the properties within three days of his death by quitclaim deed for no consideration other than love and affection. One of the deeds was executed by the decedent, and the other two deeds were executed by the decedent’s attorney-in-fact, his daughter. The chancellor referred all issues in dispute to a special master who found that the properties conveyed by the attorney-in-fact were conveyed with the intent to defeat the plaintiff’s elective share but that the third tract, which was conveyed by the decedent, was not. The chancellor adopted the report and recommendations of the special master. This appeal followed. After considering the factors identified in Finley v. Finley, 726 S.W.2d 923 (Tenn. Ct. App. 1986) and the totality of the circumstances, we hold that all three properties were conveyed with the intent to defeat the plaintiff’s elective share. Thus, we reverse, in part, the judgment of the trial court and remand for entry of a judgment consistent with this opinion, including a recalculation of the surviving spouse’s elective share based on a net estate that includes all three properties at issue.

Sharon Weatherly v. Eastman Chemical Company
E2022-01374-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John S. McLellan, III

The plaintiff brought an action seeking damages for diminution of real property value,
alleging that the defendant’s steam pipe exploded, causing toxic debris, including asbestos,
to fall on the plaintiff’s real property. The plaintiff’s claims included strict liability for
ultra-hazardous activity, ordinary negligence, negligence per se, public nuisance, trespass,
continuing private nuisance, and medical monitoring. The trial court dismissed the entire
amended complaint without prejudice pursuant to Tennessee Rule of Civil Procedure
12.02(6) after finding that the plaintiff failed to comply with the Tennessee Asbestos
Claims Priorities Act. The trial court also dismissed the claims for strict liability,
negligence per se, trespass, and medical monitoring with prejudice. Upon review, we
affirm the trial court’s dismissal of the entire complaint without prejudice, as well as the
dismissal of the plaintiff’s negligence per se, trespass, and medical monitoring claims with
prejudice. We reverse the trial court’s dismissal of the strict liability claim with prejudice.

In Re Andrew L.
E2022-01465-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge David R. Shults

This is a termination of parental rights case. Mother appeals the trial court’s order
terminating her parental rights, arguing that the trial court erroneously found that grounds
existed for termination and that such termination was in the child’s best interest. Having
carefully reviewed the record, we affirm.

Erroll Sherrod v. Smith & Nephew, Inc.
W2021-00935-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Mary L. Wagner

This products-liability case is dismissed with prejudice on the parties’ joint stipulation of
dismissal.

Jessica Garvin v. Mariah Shelton
E2022-01258-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

The plaintiff filed a complaint for a restraining order against the defendant, the wife of the
plaintiff’s ex-husband. The plaintiff sought a restraining order because the defendant
requested to “add” or “friend” plaintiff’s co-workers and manager on certain social media
applications. The trial court entered an ex parte temporary restraining order and, after
conducting a hearing, extended the temporary restraining order for one year. Following
our review of the record, we conclude that the plaintiff presented insufficient evidence to
establish that she would suffer immediate and irreparable harm absent a restraining order
against the defendant or any other facts that would otherwise constitute a cause of action.
We therefore reverse and vacate the one-year restraining order.

In Re Estate of Dariel Blackledge Washington
M2022-01326-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Andra J. Hedrick

Decedent’s siblings filed a document they alleged to be decedent’s last will and testament. Decedent’s husband, the personal representative of her estate, moved to declare the alleged will invalid for lack of an effective signature. The trial court concluded that the will was ineffective due to the lack of decedent’s signature, and declined to admit it to probate. Discerning no error, we affirm.

In Re Charlee N. et al.
M2022-01686-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Daryl A. Colson

This is a termination of parental rights case. The trial court terminated the parental rights of the parents to two children, finding that there was clear and convincing evidence as to both parents regarding the ground of severe child abuse and that termination of the parents’ rights was in the children’s best interest. Having carefully reviewed the record, we affirm.

In Re Serenity S. et al.
M2022-01091-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Stella L. Hargrove

Heather B. ¹ (“Mother”) and John S., III (“Father”) are the biological parents of Serenity S. Mother and Raymond R. are the biological parents of Harmony R., Mellody O., and Angel O. Tina S. (“Grandmother”) and John S., Jr. (“Grandfather” or, together with Grandmother, “Petitioners”) petitioned the Chancery Court for Giles County (the “trial court”) for termination of Mother’s and Raymond R.’s parental rights in April of 2021 and for adoption of the children. Father voluntarily surrendered his parental rights as to Serenity S. As for the grounds for termination, Petitioners alleged: substantial noncompliance with the permanency plan, persistence of conditions, and failure to manifest an ability and willingness to personally assume legal and physical custody of the children. Following a bench trial, the trial court concluded that Petitioners proved all three statutory grounds for termination and that termination was in the Children’s best interests. Mother appeals to this Court. Having reviewed the record, we conclude that the trial court’s order must be vacated and remanded. Because Petitioners proved no statutory grounds for termination by clear and convincing evidence, we need not consider whether termination of Mother’s parental rights is in the Children’s best interests.