COURT OF APPEALS OPINIONS

In Re Jacob J.
M2023-00029-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Louis W. Oliver

A father appeals the termination of his parental rights. Because the father did not
file his 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.

Michael Cackowski Et Al. v. Jason Drake
E2022-00700-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Jean A. Stanley

This appeal involves a breach of contract action filed against the agent of an undisclosed principal. The trial court entered an order granting judgment against the agent. The agent appeals. We affirm.

N.H., et al. v. Shelby County Schools
W2022-01761-COA-T10B-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Jim Kyle

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme
Court of Tennessee, filed by N.R.H. (“Petitioner”), seeking to recuse the trial court judge.
Having reviewed the petition for recusal appeal filed by Petitioner, and finding it fatally
deficient, we dismiss the appeal.

In Re J.S. et al.
M2022-00142-COA-R3-PT
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge David Howard

A Father appeals the termination of his parental rights, asserting his due process rights were
violated as a result of failure to timely appoint counsel in both dependency and neglect
proceedings and termination proceedings. The juvenile court terminated Father’s rights
for abandonment, under several statutory provisions relating to putative fathers, and for
failure to manifest an ability and willingness to care for the child, and the court determined
that termination was in the child’s best interest. We conclude that any issue regarding the
appointment of counsel in the dependency and neglect proceedings is not properly before
this court and that Father’s due process rights were not violated in the termination
proceedings. Because the Department of Children’s Services does not defend the
abandonment ground on appeal, we reverse this basis for termination. We also reverse the
trial court’s conclusion that clear and convincing evidence established a risk of substantial
physical or psychological harm to the child. Nevertheless, the evidence presented supports
in a clear and convincing manner multiple statutory grounds for termination and that
termination is in the child’s best interest. Accordingly, the judgment terminating Father’s
parental rights is affirmed.

Monsieur Shawnellias Burgess v. Bradford Hills HOA Et Al.
M2020-01565-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley, Jr.

A homeowner sued his homeowners’ association in general sessions court. Upon motion of the homeowner’s association, the case was removed to circuit court. After the case was removed to circuit court, the homeowner amended his complaint to add an attorney for the homeowner’s association as a defendant. The homeowner’s association and the attorney sought to dismiss the amended complaint. The circuit court granted the motions to dismiss but allowed to the homeowner to file a second amended complaint against the attorney in order to state a claim for negligent misrepresentation. Ultimately, the circuit court granted the attorney a judgment on the pleadings after concluding that the second amended complaint failed to allege facts satisfying all of the elements of a claim for negligent misrepresentation. The homeowner appealed. Discerning that the circuit court erred in granting the homeowner’s association’s motion to dismiss, we vacate that portion of the court’s judgment and remand for further proceedings. We affirm the circuit court’s judgment in all other respects.

Bryan College v. National Association Of Christian Athletes
E2021-00931-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Justin C. Angel

This appeal concerns the ownership of property following the trial court’s grant of summary judgment in favor of the plaintiff college.  We vacate the decision of the trial court and remand for further proceedings. 

Karen Mathes v. N.J. Ford and Sons Funeral Home, Inc., et al.
W2021-00368-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Jim Kyle

This appeal involves an action filed against a funeral home and a cemetery for alleged
mishandling of a dead human body. The trial court granted summary judgment in favor of
the funeral home as to the claims against the funeral home only. The plaintiff appeals. We
affirm.

Walter Joshlin, et al. v. Hollis H. Halford, III, M.D., et al.
W2020-01643-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Jerry Stokes

This appeal involves a failure to timely move for substitution of parties after the death of
one of the two plaintiffs. In a previous appeal, this Court directed the trial court, on remand,
to determine whether the plaintiff’s response to a motion to dismiss should be construed as
a motion for enlargement of time pursuant to Tennessee Rule of Civil Procedure 6.02, and
if so, to determine whether the plaintiff’s failure to timely move for substitution of the
parties pursuant to Tennessee Rule of Civil Procedure 25.01 was the result of excusable
neglect. On remand, the trial court determined that the plaintiff’s filing should be construed
as a motion for an enlargement of time. However, the trial court also found that the plaintiff
failed to timely move for substitution due to counsel’s misinterpretation of the law, which,
the trial court concluded, did not constitute excusable neglect. As such, the trial court
granted the defendants’ motion to dismiss for failure to timely substitute parties. The
plaintiff appeals. We affirm and remand for further proceedings.

Benjamin McCurry v. Agness McCurry
E2022-01767-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Thomas J. Wright

Because the order appealed from does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

State of Tennessee v. Darius Mack
W2022-00224-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge John W. Campbell, Sr.

A Shelby County jury convicted the defendant, Darius Mack, of first-degree premeditated murder and tampering with evidence for which he received an effective sentence of life plus three years in prison. On appeal, the defendant argues the trial court erred in denying his motion to suppress. He also contends the evidence presented at trial was insufficient to support his convictions. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

Metropolitan Government of Nashville & Davidson County v. Paramjeet Singh
M2022-00134-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kelvin D. Jones

As a result of a traffic accident, a Metropolitan police officer issued a driver a Metropolitan traffic citation. The general sessions court found that the driver violated a traffic ordinance, and on appeal, the circuit court also found that the driver violated the ordinance. The driver challenges the jurisdiction of the courts, the legality of reporting the violation to the Tennessee Department of Safety and the severity of the penalty he may receive from California. We affirm.

In Re Yancy N.
M2021-00574-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge John P. Damron

Carole J. Boyd Et. Al. v. Town of Morrison
M2021-01542-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Senior Judge Don R. Ash

The issues in this appeal arise from protracted litigation in three courts involving several property owners (“Plaintiffs”) who contend the Town of Morrison, Tennessee, (“the Town”) is estopped, for various reasons, from collecting property taxes on their properties. Although the dispute initially involved a challenge to whether the Town lawfully annexed Plaintiffs’ properties, it is no longer disputed that the Town annexed the properties with the passage of Ordinances 01-01 and 01-02 on second and final reading on November 5, 2001. The genesis of the dispute occurred in 2017 when Plaintiffs were cited to the Municipal Court for violating the Town’s zoning ordinances. During the hearing, the Town was required to establish that Plaintiffs’ properties had been annexed. To prove it had annexed the properties, the Town erroneously relied upon Ordinance 01-03, instead of Ordinances 01-01 and 01-02. The Municipal Court found that the Town had not lawfully enacted Ordinance 01-03 to annex Plaintiffs’ properties; therefore, the court dismissed the citations. The Town did not appeal that decision. Two years later, the Town filed a petition for declaratory judgment in the Chancery Court, arguing that it had properly annexed the subject properties. The Chancery Court dismissed the petition concluding that the Town was collaterally estopped from relitigating the issue because “the relevant issue was litigated and determined by the Municipal Court . . . , [which] was a court of competent jurisdiction, and therefore, this Chancery Court will not disturb that Court’s findings.” The Town appealed the Chancery Court decision; however, it voluntarily dismissed the appeal. Nevertheless, the Town continued to send delinquent tax notices to Plaintiffs. As a consequence, Plaintiffs commenced this action seeking a declaration that their properties had not been properly annexed by the Town. In its Answer, the Town asserted, for the first time, that it had annexed Plaintiffs’ properties in 2001 pursuant to Ordinances 01-01 and 01-02. Although Plaintiffs argued that the Town was collaterally estopped from relying on these ordnances, the chancellor ruled otherwise. Specifically, the chancellor held that Ordinances 01-01 and 01-02 were not at issue in the Municipal Court proceedings and because the issues raised in that proceeding were not identical to those raised in the prior court proceedings, collateral estoppel did not apply. Further, the chancellor ruled that the Town had lawfully annexed the properties in November 2001 pursuant to Ordinances 01-01 and 01-02. However, the chancellor also ruled that the Town was equitably estopped from collecting delinquent taxes owed prior to 2022. This appeal followed. We have determined that the Municipal Court lacked subject matter jurisdiction to determine whether the Town had lawfully annexed Plaintiffs’ properties; therefore, the judgment of the Municipal Court is a null and void judgment that may not constitute a basis for collateral estoppel. For this and other reasons, we affirm the chancellor’s decision to deny Plaintiffs’ Petition for Injunctive Relief. However, we reverse the chancellor’s ruling that the Town is equitably estopped from collecting delinquent property taxes from Plaintiffs.

Mantis Funding LLC v. Buy Wholesale Inc. Et Al.
M2022-00204-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Thomas W. Brothers

Plaintiff filed a petition to have a New York confession of judgment enrolled as a judgment in Tennessee. Defendant claimed the Tennessee circuit court had no jurisdiction because the confession of judgment was not permitted by Tennessee law, violated Tennessee public policy, and was fraudulent and usurious. The trial court enrolled the judgment. Defendant appealed. We affirm.

In Re Lorelai E.
M2022-00173-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Michael Wayne Collins

Benjamin McCurry v. Agness McCurry
E2022-01708-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Thomas J. Wright

The Appellant takes issue with the trial judge’s refusal to recuse himself from the litigation assigned to him pursuant to designation by the Chief Justice of the Supreme Court of Tennessee. Discerning no error, we affirm.

Timothy Charles Cooke v. Rita Moses Cooke
E2022-00049-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge L. Marie Williams

This appeal involves an amended final decree of divorce entered by the Circuit Court of Hamilton County (“trial court”) on December 20, 2021. Following a bench trial, the trial court granted the parties a divorce pursuant to Tennessee Code Annotated § 36-4-129(b), divided the parties’ marital assets and liabilities, and awarded transitional alimony to the wife in the amount of $1,200.00 per month for two months. Both parties subsequently filed motions to alter or amend the court’s ruling. The trial court entered an amended final decree, incorporating by reference a memorandum opinion wherein the court altered the percentages awarded to each party of certain items of marital property in its marital property distribution. The wife timely appealed. Following review, we affirm the trial court’s determinations concerning valuation and classification of the parties’ assets. We vacate, however, the portion of the trial court’s amended decree wherein the court altered the percentages awarded to each party, and we remand this issue to the trial court for further findings, explanation, and determination. By reason of this unresolved issue concerning the trial court’s marital property distribution, we likewise vacate and remand the trial court’s determinations regarding alimony and attorney’s fees for reconsideration following the court’s equitable division of marital property. The trial court’s amended final decree is affirmed in all other respects. The parties’ respective requests for attorney’s fees on appeal are denied.

Muhammad Javed v. Bano Nasim Baig
M2022-00331-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Phillip R. Robinson

This is an appeal from a final order of absolute divorce. The trial court granted the divorce based on a finding that both parties committed inappropriate marital conduct. The wife appeals. We dismiss the appeal.

In Re Stephen H. et al.
M2022-00674-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ken Witcher

In this case involving termination of the father’s parental rights to his children, the trial court found that several statutory grounds for termination had been proven by clear and convincing evidence. The trial court further found that clear and convincing evidence demonstrated that termination of the father’s parental rights was in the children’s best interest. The father has appealed. Having determined that clear and convincing evidence did not support the trial court’s finding of the statutory abandonment ground of failure to support, we reverse the trial court’s judgment with respect to this ground. We affirm the trial court’s judgment in all other respects, including the termination of the father’s parental rights.

Mark Seybold, et al. v. Sheldon J. Metz, et al.
M2022-00290-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge J. Mark Rogers

Carrie Elizabeth Bean v. Jordon Estes Bean
M202-00394-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Joe Thompson

Mother appeals the trial court's decision to award equal parenting time after making no findings regarding her allegations of abuse by Father. Because the trial court stated that there was no evidence of abuse in the record despite the plethora of relevant testimony by both parties, we are unable to ascertain the trial court's reasoning.  We therefore vacate the trial court's judgment and remand for further findings.

Benjamin McCurry v. Agness McCurry
E2022-01278-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Senior Judge Thomas J. Wright

Because the order appealed from does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

State of Tennessee, Ex Rel. Herbert Slatery III v. The Witherspoon Law Group PLLC, Et Al.
E2021-01343-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Pamela A. Fleenor

This appeal involves an action brought by the State of Tennessee for alleged violations of Tennessee’s statutes regarding the unauthorized practice of law and the Tennessee Consumer Protection Act. The State of Tennessee claimed that the defendants improperly solicited clients who were in the process of making funeral arrangements for their recently deceased children. Following a trial, a jury returned a verdict unanimously finding in favor of the State of Tennessee and assessing civil penalties against the defendants. Accordingly, the trial court entered judgment against the defendants. The defendants appeal. We affirm and remand for further proceedings consistent with this opinion.

Kyndra N. Abernathy v. Icker Derek Barile
E2022-00081-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Gregory S. McMillan

Kyndra Abernathy (“Petitioner”) petitioned the trial court for an order of protection against Icker Derek Barile (“Respondent”), alleging that he sexually assaulted her. After a hearing at which each party proceeded pro se, the trial court issued a one-year protective order, finding that Respondent engaged in sexual penetration without Petitioner’s consent and continued after she told him to stop. Respondent appeals, arguing that the trial court erred by considering irrelevant and inadmissible evidence and that its decision was against the weight of the evidence. We affirm.

Lexington Charter L.P. ET AL v. FBT of Tennessee INC.
W2021-01138-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor JoeDae L. Jenkins

After counsel for the plaintiff partnership filed a claim for attorney fees in the counsel’s firm’s own name, limited partners of the partnership sought a right of intervention to oppose the firm’s claim. The trial court denied the limited partners’ efforts to intervene. We reverse the trial court’s conclusion that intervention was not appropriate, vacate the award giving relief to the firm, and remand the case for further proceedings with the limited partners’ participation as intervening parties.