Terrell K. Raley, Et Al. v. Cees Brinkman, Et Al.
This appeal arises from a business dispute between the two members of a Tennessee limited liability company, 4 Points Hospitality, LLC (“4 Points”), each owning a 50% interest. The plaintiff-member, Terrell K. Raley (“Raley”), commenced this action asserting, individually and on behalf of the LLC, inter alia, that the defendant-member, Cees Brinkman (“Brinkman”), breached the operating agreement by failing to make a $175,000 capital contribution. Brinkman asserted counter claims, individually and on behalf of the LLC, for breach of contract and breach of fiduciary duty, alleging that Raley misappropriated funds for his personal benefit and that he withheld a large portion of Brinkman’s distributions and salary. Brinkman also claimed that Raley was liable for conversion and punitive damages. Brinkman sought to terminate Raley’s membership interest because he willfully and persistently breached his fiduciary duty, and because it was no longer reasonably practicable for the two men to continue operating the business. Brinkman also claimed he was entitled to recover his attorneys’ fees in accordance with Tenn. Code Ann. §§ 48-249-804 and -805, and the operating agreement. Upon Raley’s pre-trial motion, the trial court summarily dismissed Brinkman’s claim for attorneys’ fees under the operating agreement, holding that the attorneys’ fees provision only pertained to disputes submitted to arbitration. Following a lengthy bench trial, the court ruled that (1) Brinkman breached the operating agreement by failing to make a $175,000 capital contribution; (2) Raley was liable for breach of fiduciary duty, breach of contract, and conversion for underpaying Brinkman’s distributions and salary and for using 4 Points’ funds to satisfy unrelated, personal expenses; (3) Raley was not liable for punitive damages because his conduct was not egregious; and (4) Brinkman was not entitled to attorneys’ fees under §§ 48-249-804 and -805. The court also terminated Raley’s membership interest in 4 Points in accordance with Tenn. Code Ann. §§ 48-249-503(a)(6)(B) and (C), finding that Raley’s wrongful conduct adversely and materially affected the business, and it was no longer reasonably practicable for the members to continue operating the business together. Brinkman filed a motion to alter or amend the court’s order, and the court denied his motion in all respects but one, ruling, in accordance with Tenn. Code Ann. § 48-249-805, that Brinkman was entitled to equitable relief in the form of attorneys’ fees. Therefore, the court revised its order to allow half of the $240,275.59 Raley owed 4 Points as reimbursement for personal expenses to be paid to Brinkman, individually. Brinkman then filed notice that 4 Points intended to purchase Raley’s membership interest in accordance with Tenn. Code Ann. §§ 48-249-505 and -506, which necessitated an evidentiary hearing to determine the “fair value” of Raley’s interest. In preparation for the hearing, Brinkman’s expert prepared a valuation report applying shareholder-level discounts for lack of control and lack of marketability and adjusting 4 Points’ income for the corporate income tax. Raley responded by filing a motion in limine to determine the meaning and components of “fair value” under Tenn. Code Ann. § 48-249-506(3), arguing that any testimony or other evidence relating to discounts for lack of control and marketability and the corporate income tax should be excluded at the evidentiary hearing. In response, Brinkman submitted the affidavit of his valuation expert, explaining the expert’s valuation methodology and the reasons for applying a corporate income tax rate. The court ruled that because the company, rather than a third-party, was purchasing the membership interest, the fact that the interest was non-controlling was irrelevant to its fair value. The court also excluded evidence and testimony on discounts for lack of marketability. As for the applicability of the corporate income tax, the court ruled that “no entity level tax should be applied in the valuation analysis for a non-controlling interest in an electing S corporation, absent a compelling demonstration that independent third parties dealing at arms-length would do so as part of a purchase price negotiation.” Following the evidentiary hearing, the court determined that the fair value of 4 Points was $4,774,278.18, and that Raley’s 50% interest was $2,387,139.09. Brinkman timely filed this appeal contending the trial court erred in determining that (1) Brinkman breached the operating agreement by failing to make a capital contribution; (2) Raley was not liable for punitive damages; and (3) Brinkman was not entitled to attorneys’ fees pursuant to the operating agreement and/or §§ 48-249-804 and -805. As for the trial court’s valuation of Raley’s membership interest, Brinkman contends the trial court erred in (1) disallowing discounts for lack of control and lack of marketability and (2) determining that tax-affecting did not constitute relevant evidence of the fair value of Raley’s membership interest in 4 Points. We affirm the trial court’s judgment in every respect but one. We have determined that the trial court erred by failing to consider evidence relative to tax-affecting when determining the fair value of Raley’s membership interest, because Tenn. Code Ann. § 48-249-506 provides that relevant evidence of fair value includes the “recommendations of any of the appraisers of the parties to the proceeding.” Brinkman’s valuation expert stated in his affidavit that the application of a 38% tax rate “comports with generally accepted valuation standards and methods” and reasoned that, there is a risk of inaccurate valuation when the components of the capitalization rate are based on after-tax values, and no tax-affecting is applied to the income of the company. Therefore, we vacate the judgment valuing Raley’s interest and remand for the trial court to consider evidence relative to tax-affecting in determining the fair value of Raley’s membership interest and to enter judgment accordingly. |
Davidson | Court of Appeals | |
Kenneth C. Miller v. Michael Kenneth Miller Et Al.
In this declaratory judgment action, the plaintiff filed a complaint in the Carter County Chancery Court (“trial court”) seeking an easement over improved real property located in Carter County. The plaintiff and his wife had originally conveyed the servient estate primarily at issue to the co-defendants, their son and daughter-in-law, in 2010. Following the 2010 conveyance, the plaintiff and his wife retained ownership of two adjoining parcels of land, which included their residence and were separated from the servient estate by an adjoining tract of real property that was owned by a third co-defendant, their great niece. The plaintiff and his wife also owned an “island” tract, consisting of approximately 18.4 acres of unimproved real property surrounded by the waters of the Watauga River and connected to the servient estate by a bridge that the plaintiff had built in the 1980s. The plaintiff’s wife died in 2014. In April 2018, the plaintiff filed a complaint seeking declaratory judgment that a permanent easement appurtenant existed, either by prior use, estoppel, or necessity, for the island tract, as the dominant estate, across the great niece’s property and the servient estate. Alternatively, the plaintiff claimed that he was entitled to an easement for ingress and egress, pursuant to Tennessee Code Annotated § 54-14-101 et seq. (2008), because the island tract was essentially “landlocked” by the servient estate. Following a bench trial, the trial court found that no permanent easement existed. Noting that the great niece had filed no responsive pleading and had not appeared for trial despite having received notice, the trial court entered a default judgment against her as to all issues that may have been raised concerning her interests. Upon further finding that the plaintiff was entitled to an easement by necessity, the trial court granted a twelve-foot easement to the plaintiff around the perimeter of the servient estate and across the great niece’s property for ingress and egress to the bridge leading to the island tract. The trial court denied the plaintiff’s request to locate the easement through the front yard of the servient estate. The great niece subsequently filed motions to alter or amend the final judgment and set aside the default judgment against her, both of which the trial court denied following a hearing. The plaintiff and the great niece have appealed. Discerning no reversible error, we affirm. |
Carter | Court of Appeals | |
Julie Clark v. Jeffrey Givens, Et Al.
This case involves an oral contract for construction services at a residential home. The parties agreed for the contractor to make various improvements to the property, including painting; repairing cabinets; and replacing countertops. The parties dispute the agreed-upon time of completion. Unbeknownst to the homeowner at the time of contracting, the contractor had several severe physical ailments. On multiple occasions, the homeowner expressed her displeasure with the contractor’s lack of progress. Eventually, the homeowner informed the contractor that a third party would complete the majority of the agreed-upon services. The homeowner initiated this case by filing suit against the contractor and his wife, alleging violations of the Tennessee Consumer Protection Act. The contractor and his wife filed a counter-claim, alleging breach of contract by the homeowner. After a bench trial, the trial court rescinded the contract, finding a mutual mistake regarding the length of the contract term, and dismissed the parties’ claims. All parties appealed. We reverse the trial court’s decision and remand for further proceedings. |
Dickson | Court of Appeals | |
Edward Ronny Arnold v. Bob Oglesby, Et Al.
This is the second appeal of this case involving a former state employee’s claim for alleged unpaid holiday compensation. In 2015, pursuant to statutory authority, the governor decided that the State would observe the Columbus Day holiday on Friday, November 27, 2015, instead of on Monday, October 12, 2015. Plaintiff, who was an employee of the Tennessee Department of General Services in 2015, was terminated through a reduction-in-force, and his last day of pay, prior to the holiday, was Tuesday, November 24, 2015. Plaintiff filed a civil warrant in general sessions court, arguing that he did not receive the substituted Columbus Day holiday compensation despite having worked on October 12, 2015. The Department filed a motion to dismiss on the basis of sovereign immunity, which the general sessions court granted. Plaintiff then filed a de novo appeal to the circuit court, where the Department filed another motion to dismiss on sovereign immunity grounds, which was also granted. On the first appeal to this Court, however, we reversed the granting of the motion to dismiss and remanded the case back to the circuit court. Ultimately, the Department filed a motion for summary judgment with supporting affidavits, again on the grounds of sovereign immunity, which the circuit court granted. Having concluded that the Department proved, by undisputed facts, the necessary criteria for sovereign immunity to apply, we affirm. |
Davidson | Court of Appeals | |
In Re K.L.E. Et Al.
A mother and her husband petitioned to terminate the parental rights of the father of two of the mother’s children. The mother and father of the children were married when the children were born. The father was arrested and sentenced to life imprisonment when the children were six months and two years old. The mother subsequently divorced the father and married another man who now is interested in adopting the two children. The trial court terminated the father’s rights, and the father appealed. We affirm the trial court’s judgment terminating the father’s rights. |
Washington | Court of Appeals | |
Candice Mosby v. Fayette County Board of Education, et al.
This case involves a challenge to a decision to non-renew the employment of a non-tenured teacher. The plaintiff brought suit challenging her non-renewal on the basis that she did not receive six required observations per school year. In her complaint, the plaintiff challenged the non-renewal decision itself, stating it was procedurally flawed, and alleged the director improperly delegated the decision. After the plaintiff presented her proof at trial, the defendants moved for an involuntary dismissal. The trial court granted the motion, and the plaintiff appealed. We affirm the trial court’s decision to dismiss the case and remand. |
Fayette | Court of Appeals | |
Mitzi Sue Garner v. Robert Allen Garner
This appeal arises from a long-running divorce case. In 2009, Mitzi Sue Garner (“Wife”) sued Robert Allen Garner (“Husband”) for divorce in the Circuit Court for Hamilton County (“the Trial Court”). The matter was tried in 2010. An appeal to this Court was dismissed in 2012 for lack of a final order. In 2019, a final order at last was entered. Husband appeals. Husband raises several issues, including whether the Trial Court erred in its valuation of certain marital property, in determining his income for purposes of child support and temporary alimony, as well as in granting Wife an award of transitional alimony to secure certain marital debts assigned to Husband. We discern no reversible error. However, we modify the Trial Court’s characterization of Husband’s marital debt obligations from transitional alimony to alimony in solido. We affirm the judgment of the Trial Court as modified. |
Hamilton | Court of Appeals | |
City of Memphis v. John Pritchard
The City of Memphis appeals the dismissal of a parking ticket issued by the staff of the Downtown Memphis Commission. The City argues that the circuit court erred in granting summary judgment against it based on a wrongful interpretation of the authority delegated by city ordinances. Additionally, The City argues that genuine issues of material fact remained that prevented summary judgment and contends that the circuit court erred in not granting a motion to alter or amend its order. We affirm. |
Shelby | Court of Appeals | |
Samuel Jace England v. Amber Leigh Lowry
A husband and wife were divorced after three years of marriage. The trial court divided the marital assets and debts and designated the husband as the primary residential parent. The wife appeals the court’s finding of transmutation and designation of the husband as the primary residential parent, and both parties challenge aspects of the division of property. We affirm the trial court’s judgment in all respects. |
Cumberland | Court of Appeals | |
Herbert Moncier v. Timothy Wheeler
Petitioner appeals the denial of his motion to recuse the trial court in an attorney’s fees lawsuit. Because the Petitioner failed to comply with the mandatory requirements of Rule 10B of the Rules of Tennessee Supreme Court, we affirm the trial court’s ruling. |
Knox | Court of Appeals | |
William A. Reese, Jr. v. Dominick Amari
This is an action to revive a judgment originally entered in 1987; the judgment debtor moved to have the judgment set aside, contending that the judgment was void. The trial court denied the motion and renewed the judgment; the judgment debtor appeals. Upon our review, we conclude that the record shows that the debtor answered the complaint but failed to appear at the trial, which proceeded in his absence and led to the judgment; consequently, the judgment was valid. Accordingly, we affirm the trial court’s denial of the motion to set aside the judgment. |
Wilson | Court of Appeals | |
Todd Randolph Napier v. Kristen C. Napier
Father appeals the trial court’s denial of his motion to set aside a default judgment. Discerning no abuse of discretion in the trial court’s decision, we affirm and remand for a determination of Mother’s fees incurred in this appeal. |
Williamson | Court of Appeals | |
in Re Madison J.
This case involves the termination of a biological mother’s parental rights to her minor child. The father and the stepmother initiated the case by filing a petition to terminate the mother’s rights and to allow stepmother to adopt the child. In their petition, the parties argued the mother abandoned the child by failing to visit and failing to provide support. Trial was held in March 2017, nearly three years after the petition was filed. In June 2019, the trial court granted the petition and entered its final order, finding there was clear and convincing evidence that the mother abandoned the child and that it was in the child’s best interests to terminate the mother’s parental rights. The mother timely appealed. We affirm in part, reverse in part, and remand. |
Montgomery | Court of Appeals | |
The Metropolitan Government Of Nashville & Davidson County, Tennessee v. Prime Nashville, LLC
This is an action to enforce a citation from the Codes Department of the Metropolitan Government for operating a short-term rental property without a permit. The owner of the property appeals the default judgment entered as a sanction for failing to comply with the trial court’s order granting a motion to compel discovery. Upon a thorough review of the record, we have determined that the trial court did not abuse its discretion in entering the judgment as a sanction; accordingly, we affirm the judgment in all respects. |
Davidson | Court of Appeals | |
In Re: Braelyn S.
Father appeals the termination of his parental rights. The trial court found grounds for termination by abandonment by failure to visit, abandonment by failure to support, and failure to manifest an ability and willingness to assume legal and physical custody of the child. The trial court also found termination was in the best interests of the child. We affirm in part and reverse in part, but affirm the termination of the father’s parental rights. |
Sullivan | Court of Appeals | |
In Re Braelyn S. - concurring and dissenting
Because I believe that the line of cases holding that the petitioner seeking to terminate a parent’s rights under Tennessee Code Annotated section 36-1-113(g)(14) must prove both a “failure to manifest an ability and willingness to assume custody” with respect to the first prong of the analysis, I respectfully dissent from that portion of the majority’s opinion. See In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7 (Tenn. Ct. App. May 31, 2018). In all other respects, including affirming the termination of Father’s parental rights, I concur. |
Sullivan | Court of Appeals | |
Suzette Michelle Gibson v. Michael Wayne Gibson
In this post-divorce proceeding, the trial court dismissed a Husband’s petition to modify or terminate the transitional alimony he was obligated to pay on the basis of the provision of the parties’ Marital Dissolution Agreement that made the alimony obligation nonmodifiable. Husband appeals. Finding no error, we affirm the judgment. |
Knox | Court of Appeals | |
In Re Estate of Paul D. Freeman, Deceased
This appeal arises from an action to remove the decedent’s son as the executor of the estate. The action also sought to remove the decedent’s son as the nominated trustee of two testamentary trusts; however, the trustee never assumed his duties because neither trust was ever funded. The decedent’s wife was the principal beneficiary of the estate and both testamentary trusts. The action was initiated by the conservator for the decedent’s wife who alleged, inter alia, that the executor/trustee failed to distribute any property or income to the wife and used the assets for his personal benefit. The conservator also alleged that he improperly used the estate’s assets to satisfy a bank loan that encumbered real property he jointly owned with the decedent for which he and the decedent were liable. The conservator claimed the bank loan was not a lawful debt of the estate because the bank failed to file a claim against the estate within the time limits set forth in Tenn. Code Ann. § 30-2-307. In response, the executor/trustee contended the action to remove him was barred by the one-year statute of limitations for breach of trust actions. He also contended the debt to the bank was properly paid in accordance with the law of exoneration. After a hearing, the trial court found that the law of exoneration did not apply and held that the estate was not obligated on the debt to the bank because the bank did not timely file a claim against the estate. Additionally, the trial court removed the decedent’s son as both the executor and trustee based on his persistent failure to administer the estate and appointed a successor executor and successor trustee. The successor executor filed an inventory and accounting for the estate, and the former executor filed an objection. At the hearing that followed, the former executor submitted into evidence a document entitled “Land Agreement” and claimed that the agreement was enforceable against the estate as a contract to make a will. The trial court determined that the Land Agreement was a contract to make a will, but the claim was time barred. In its final order, the court assessed damages against the former executor and awarded the conservator her attorney’s fees. The former executor appealed, arguing that (1) the action was barred by the statute of limitations for breach of trust actions, (2) the Land Agreement was enforceable against the estate, (3) the debt to the bank was properly paid under the law of exoneration, and (4) he was not liable for attorney’s fees. We affirm the trial court’s decision in all respects. |
Sumner | Court of Appeals | |
James Scarlett v. AA Properties, GP
This appeal arises from a default judgment in a detainer action. AA Properties, GP (“AA Properties”) filed a detainer warrant against James Scarlett (“Scarlett”) in the General Sessions Court for Knox County (“the General Sessions Court”) concerning real property of Scarlett’s that had been foreclosed upon. Default judgment was entered against Scarlett and a writ of possession was issued. Scarlett later filed a petition for writ of certiorari and supersedeas in the Circuit Court for Knox County (“the Circuit Court”). AA Properties filed a motion to dismiss, which the Circuit Court granted. Scarlett appeals, arguing that the warrant was deficient in that it failed to state specifically that personal service was attempted. Scarlett argues further that, under the Tennessee Rules of Civil Procedure, only five days elapsed from the posting of the warrant to the hearing, when per statute he was entitled to six days. We hold, first, that the warrant sufficiently reflected that personal service was attempted. We hold further that, in this instance, the Tennessee Rules of Civil Procedure did not apply in the General Sessions Court. We affirm. |
Knox | Court of Appeals | |
Sheila Mikel v. Tennessee Department Of Children's Services
A foster parent appealed the removal of two foster children from her home. This appeal arises from a petition for judicial review of the Tennessee Department of Children’s Services Administrative Procedures Division’s decision to dismiss the foster parent’s appeal on the basis of mootness. The Chancery Court affirmed the Commissioner’s decision. Finding substantial and material evidence in support of the Commissioner’s decision, we affirm. |
Court of Appeals | ||
In Re: Sallie Ann Hofmann
This appeal concerns an action to establish undue influence and violations of the Tennessee Adult Protection Act, codified at Tennessee Code Annotated section 71-6-120, et seq.2 The trial court denied the claims submitted by Plaintiff. We affirm. |
Johnson | Court of Appeals | |
In Re Ne'Khiya M.
This is a termination of parental rights case. Mother and stepfather petitioned the trial court to terminate father’s parental rights as to mother’s and father’s minor child on the ground that he had willfully abandoned the child pursuant to Tennessee Code Annotated section 36-1-102(1)(A). Additionally, mother and stepfather petitioned that stepfather be allowed to adopt the child. While it was undisputed that father had abandoned the child, based on his failure to support or visit the child, the trial court found that father had attempted to establish a child support obligation against himself and that he had made numerous, yet unsuccessful, attempts to contact mother in order to visit the child following his release from prison. Accordingly, the trial court found that father’s abandonment was not willful and denied the termination petition. We affirm. |
Shelby | Court of Appeals | |
Cook's Roofing, Inc. v. Hartford Underwriters Insurance Company
This appeal involves retrospective insurance premiums for an assigned risk workers’ compensation insurance policy. The insured employer is a roofing contractor. The insurance company conducted a retrospective premium audit and determined that the roofing contractor owed retrospective premiums based on the fact that its primary subcontractor was uninsured during a portion of the policy period. The roofing contractor refused to pay the increased premium, so the insurance company canceled the insurance policy. The roofing contractor filed this lawsuit against the insurance company, alleging negligence, promissory estoppel, and violation of the Tennessee Consumer Protection Act. The insurance company filed a counterclaim for the unpaid balance owed for the premiums under the policy. The insurance company filed a motion for summary judgment on all claims asserted by the roofing contractor and on its own counterclaim. The trial court granted the motion for summary judgment, dismissed the claims asserted by the roofing company, and entered judgment in favor of the insurance company and against the roofing contractor for $66,212 plus prejudgment interest. However, the trial court denied the insurance company’s subsequent motion to enforce the judgment against the two individuals who operated the roofing company and served as the sole officers and shareholders of the corporation. Both parties raise issues on appeal. For the following reasons, we affirm the decision of the chancery court in part, we reverse in part, and we remand for further proceedings consistent with this opinion. |
Shelby | Court of Appeals | |
John Thomas Link v. Royce Hinson, Et Al.
Appellant sought a prescriptive easement over an existing road across Appellees’ property. The trial court granted Appellees’ Tennessee Rule of Civil Procedure 41.02(2) motion for involuntary dismissal at the close of Appellant’s proof and held that Appellant’s occasional use of the road to access his property for hunting purposes did not satisfy his burden of proof to establish an easement by prescription. Discerning no error, we affirm. |
Humphreys | Court of Appeals | |
Zula Wortham v. Kroger Limited Partnership I ET AL.
Defendant grocery store appeals a jury verdict against it after a shopper fell in its store while operating a three-wheeled cart. The grocery store argues that the trial court erred in denying its motion for directed verdict, in granting summary judgment to a third-party defendant, and in not granting a new trial or remittitur of the substantial verdict. Because the grocery store has not met its burden to show reversible error, we affirm. |
Shelby | Court of Appeals |
