APPELLATE COURT OPINIONS

The trial court denied a personal representative's fee request after concluding that the request did not comply with a local rule setting a personal representative's fee as a percentage of the value of the estate. We reverse and remand for the trial court to reconsider Appellant's fee request “in light of all the relevant circumstances.” In re Estate of Schorn, No. E2013-02245-COA-R3-CV, 2015 WL 1778292, at *8 (Tenn. Ct. App. Apr. 17, 2015).

In this divorce case, the wife proceeding pro se appeals the division of marital property and the trial court’s denial of her request for alimony. She also appeals the trial court’s award of court costs. She elected not to file a transcript or a statement of the evidence. Because the wife’s first two issues are factual in nature, the lack of transcript or statement of evidence prevents us from reaching the substance of the issues raised by the wife. We find no abuse of discretion by the trial court in assessing court costs. Accordingly, we affirm the judgment of the trial court. We also find that the appeal is frivolous.

This appeal concerns a post-divorce modification of alimony. During the underlying divorce proceedings, the parties executed a marital dissolution agreement providing that the husband would make payments to the wife of $8,000 per month in transitional alimony for a period of five years followed by payments of $7,500 per month in alimony in futuro for a period of five years. The agreement provided that the alimony in futuro payments could be modified by either party ―upon a showing of a material, unanticipated change in circumstances.‖ The agreement was incorporated into the trial court‘s final decree of divorce entered in January 2005. In April 2014, the wife filed a petition seeking to increase and extend the husband‘s alimony in futuro obligation. After a trial, the Shelby County Circuit Court found a change in circumstances warranting a modification of alimony and ordered that the husband continue to pay alimony in futuro of $6,200 per month beginning in January 2015 and continuing for a period of six years or until his retirement, whichever occurred later. The trial court also awarded the wife $30,000 as alimony in solido for attorney‘s fees. On appeal, we conclude that the record does not support the trial court‘s finding of a substantial and material change in circumstances. We therefore reverse the trial court‘s modification of the husband‘s alimony in futuro obligation. Additionally, we reverse the trial court‘s award of alimony in solido for attorney‘s fees. This matter is remanded for such further proceedings as may be necessary and are consistent with this Opinion.

Defendants in a federal civil conspiracy case that was voluntarily dismissed filed a malicious prosecution case in state court against the plaintiff and his attorney. The plaintiff and his attorney filed motions for summary judgment, which the trial court granted. The defendants appealed, and we affirm the trial court’s judgment. When a plaintiff voluntarily dismisses a lawsuit, the dismissal does not constitute a “favorable termination” for purposes of satisfying the third element of a malicious prosecution lawsuit.

This appeal arises from a divorce. Sylvia Folger (“Wife”) sued Robert Folger (“Husband”) for divorce in the Chancery Court for Cumberland County (“the Trial Court”). After a trial, the Trial Court, among other things, awarded Wife transitional alimony. On appeal, Wife raises a number of issues. Because of Wife's pronounced economic disadvantage relative to Husband, we modify the judgment of the Trial Court to increase the amount of Wife's transitional alimony, and remand this case for the Trial Court to award Wife attorney's fees as alimony in solido as well as her reasonable attorney's fees incurred on appeal. Otherwise, we affirm the judgment of the Trial Court.

This action was originally filed in general sessions court against three defendants and resulted in a judgment for the plaintiff. Two of the co-defendants appealed to circuit court. The remaining co-defendant successfully sought to have the general sessions judgment set aside for insufficient service of process. Thereafter, the general sessions court transferred the claim against the one remaining co-defendant to circuit court to be consolidated with the pending appeal filed by the other co-defendants. The plaintiff subsequently voluntarily dismissed the action. One co-defendant filed a motion to alter or amend, asserting that the circuit court should not have allowed the plaintiff to voluntarily nonsuit the action. The circuit court denied the motion, and the co-defendant timely appealed. Discerning no error, we affirm the circuit court’s judgment.

This appeal concerns post-divorce matters. Mimi Hiatt (“Wife”) and Kevin L. Hiatt (“Husband”) divorced. Wife some years later filed a motion to modify the final decree of divorce in the Circuit Court for Blount County (“the Trial Court”) seeking to increase Husband’s child support and alimony obligations. Husband, in turn, filed a motion to recover claimed overpayments he made on the marital residence because Wife had transferred it to a trust. The Trial Court found, among other things, that Wife was voluntarily underemployed and declined to increase her spousal support for that reason. The Trial Court also ruled that Wife’s divestment of the marital residence constituted a “sale” under the Marital Dissolution Agreement (“the MDA”) and awarded a judgment to Husband for payments he made on the mortgage after Wife’s transfer of the marital residence to the trust. Wife appeals to this Court. We hold that Wife’s transfer of the marital residence to a trust constituted a sale per the MDA, and we affirm the Trial Court in its award to Husband for overpayment. However, we find that Wife proved a substantial and material change in circumstances, and we remand for the Trial Court to determine an increase in Wife’s alimony in light of this change and all relevant factors. We find further that the Trial Court erred in declining to award Wife her attorney’s fees relative to alimony. As a final matter, we award Wife her attorney’s fees incurred on appeal related to the alimony issue, and remand for the Trial Court to determine Wife’s reasonable attorney’s fees related to the alimony issue on appeal. The judgment of the Trial Court is affirmed, in part, and, reversed, in part.

This appeal involves a lawsuit filed by an insured against his insurer due to the insurer's failure to pay a claim for a theft loss. The trial court granted summary judgment to the insurer, finding no coverage under the policy. We affirm.

This is a termination of parental rights case. The child at issue in this case was placed in foster care at age two. When the child was ten years old, the child‘s foster parents filed a petition in Dyer County Chancery Court seeking to terminate the parental rights of the child‘s parents and to adopt the child. The trial court entered an order terminating the parental rights of the child‘s mother and father and granting the foster parents‘ petition to adopt the child. The mother has appealed the termination of her parental rights on the ground of abandonment by willful failure to visit in the four months prior to the filing of the petition to terminate her parental rights. The mother also appeals the trial court‘s finding that termination of her parental rights is in the child‘s best interest. We affirm the judgment of the trial court.

A hierarchical church filed a complaint against one of its local churches, seeking an order establishing the hierarchical church's control over the local church's real and personal property. The trial court dismissed the complaint on the basis of the doctrine of ecclesiastical abstention. Discerning no error, we affirm.

ARNOLD B. GOLDIN, J., Dissenting.
In light of the facts that are presented by the pleadings in this case, I must respectfully dissent from the majority's decision to affirm the trial court's dismissal of this property dispute. The majority opinion places much emphasis on the fact that the local church has not “withdrawn” from COGIC, and by citing to Church of God in Christ, Inc. v. Middle City Church of God in Christ, 774 S.W.2d 950 (Tenn. Ct. App. 1989), it suggests that judicial intervention would be improper at this time. Although the Appellees, an apparently vocal group within the local church, still claim that they want to remain a part of COGIC, they refuse to abide by the decisions of the hierarchal church's Ecclesiastical Council, thereby creating, if not an actual withdrawal from the hierarchal church, a schism between the members of the local church. The ecclesiastical decisions having, therefore, been made by the hierarchal church, I am of the opinion that the alleged facts of this case do not prevent judicial intervention to decide the property issues that have arisen between the hierarchal church and members of the local church. From my perspective, they necessitate it. Because resolution of the dispute among the parties is not dependent on the trial court's ruling on matters of conscience or religious doctrine or polity, the trial court should not be precluded from exercising jurisdiction over the case.

This case involves the termination of a mother's parental rights to her three daughters. The children were previously adjudicated dependent and neglected due to physical abuse of the children by the mother's boyfriend. After the children were in foster care for about a year, the Department of Children's Services filed a petition to terminate the mother's parental rights on several grounds. The trial court found by clear and convincing evidence that three grounds for termination were proven and that termination was in the best interest of the children. The mother appeals. We affirm in part, reverse in part, and remand for further proceedings. We affirm the termination of the mother's parental rights.

This is a termination of parental rights case, focusing on Aaliyah E., the minor child (“the Child”) of Wanda M. (“Mother”) and Christopher E. (“Father”). The Child was taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) on November 19, 2013, upon investigation of the Child’s lack of legal guardianship while the parents were incarcerated. On October 30, 2014, DCS filed a petition to terminate the parental rights of Mother and Father. Following a bench trial, the trial court found that statutory grounds existed to terminate the parental rights of both parents upon its finding by clear and convincing evidence that (1) the parents abandoned the Child by failing to provide a suitable home, (2) the parents failed to substantially comply with the reasonable responsibilities and requirements of the permanency plans, and (3) the conditions leading to the Child’s removal from the home persisted. As to Father, the court also found by clear and convincing evidence that prior to incarceration, he had abandoned the Child by showing wanton disregard for the Child’s welfare. The court further found by clear and convincing evidence that termination of Mother’s and Father’s parental rights was in the Child’s best interest. Mother and Father have each appealed. Having determined that, as DCS concedes, Mother was incarcerated during the entire applicable four-month statutory period following the Child’s removal into protective custody, we reverse the trial court’s finding regarding the ground of abandonment through failure to provide a suitable home as to Mother only. We affirm the trial court’s judgment in all other respects, including the termination of Mother’s and Father’s parental rights to the Child.

The issues in this case bring into sharp focus the question of whether or not the successful litigants below are entitled contractually to an award of attorney's fees and expenses against the losing side, i.e. the plaintiffs. This litigation began in 2010 when Kathleen Barrett and her husband, Gerald Barrett, filed suit against three LLCs and three individuals. The gravamen of the complaint is related to the purchase of, and the planned construction of a house on, a lot in a subdivision. Following a jury trial, the defendants now before us on appeal won a favorable verdict on all allegations and theories of the plaintiffs. Despite this outcome, the trial court denied their request for an award of attorney's fees and expenses. The defendants now appeal. The defendants contend that two of the LLC defendants are entitled to an award of fees and expenses based upon contracts in the record. Furthermore, they argue that the individual defendants also are entitled to attorney's fees and expenses (1) based upon a theory of judicial estoppel and (2) pursuant to the provisions of Tenn. Code Ann. § 48-249-115(c) (2012). The Barretts filed a motion in this Court seeking a dismissal of this appeal. They based their motion primarily on a lack of standing. We hold that the motion is without merit. On the issue of attorney's fees and expenses, we reverse the trial court's decision in part and affirm it in part. This case is remanded for further proceedings consistent with this opinion.

Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction.

Barry Trent, the Executor of the Estate of Dennie Lamar Trent, appeals the order of the Chancery Court for Hawkins County (“the Trial Court”) finding and holding that the claim against the estate filed by Brenda Jefferson for an unpaid $50,000 debt as evidenced by a note is valid. We find and hold that the evidence does not preponderate against the Trial Court's findings, and we affirm.

Nancy F. Brown (Plaintiff) was walking through and contemplating the rental of a house owned by Nancy Mercer-Defriese and Spencer Defriese (Defendants) when she tripped over a three-inch threshold or step in the doorway between two rooms. She brought this premises liability action, alleging the step was an unreasonably dangerous and defective condition that caused her fall and resulting injuries. During the jury trial that followed, Plaintiff and Defendants presented the testimony of experts. Plaintiff's expert opined that the step was a “trip hazard.” One of the Defendants' experts agreed that the step was a trip hazard, while the other stated that “all stairs are trip hazards.” Plaintiff and Defendants each presented photographs of the doorway showing that the step and the floors on either side of the three-inch change in elevation are in a very similar color. The trial court granted Defendants' motion for a directed verdict at the conclusion of all of the proof, finding that it was not reasonably foreseeable that Plaintiff would trip over the step; that the step was open and obvious; and that Defendants did not owe Plaintiff a duty to warn her of the condition of the step. We hold that the evidence before the trial court and now before us establishes a genuine issue of material facts as to the Defendants' negligence. Accordingly, we vacate the trial court's judgment and remand for further proceedings.

A patient suffered a blunt-force trauma head injury when he fell while attempting to mount a wheelchair accessible scale at a dialysis clinic. Complications from this injury led to his death. Plaintiff, the patient’s former spouse, brought two wrongful death actions on behalf of the patient’s minor child. Each action eventually named as defendants the dialysis clinic and the owner of the property where the dialysis clinic was located. After the trial court consolidated the actions, the property owner filed a motion for summary judgment. The court granted the motion, concluding the property owner had no liability under any legal theory asserted by Plaintiff. We affirm the dismissal of the claims against the property owner.

This is a breach of contract action in which the plaintiff filed suit after the practice refused to honor the buyout provision in the partnership agreement. The practice filed a counter-complaint, arguing that the plaintiff was liable for his share of the partnership's outstanding financial obligations. Following a bench trial, the court ordered the practice to remit payment. The practice appeals. We affirm.

Former husband filed a post-divorce petition seeking to hold former wife in contempt for her failure to pay and hold former husband harmless for indebtedness on the marital residence as required by the parties’ marital dissolution agreement. The trial court held former wife in contempt for her failure to pay, granted former husband a judgment of $2010.00 for the amount he paid in an attempt to keep the debt current, ordered former wife to sell the marital residence, and awarded former husband attorney’s fees. We hold the trial court’s ruling on contempt was in error because the trial court failed to make a threshold finding that former wife’s conduct was willful. On appeal, former wife asserts the trial court erred in requiring her to sell the former marital home. In support of its decision to require former wife to sell the home, the trial court reasoned that principles of equity demanded the result since former husband had no other remedy at law. We reverse the trial court, finding former husband was not without a remedy because he can file an action for breach of contract. The finding of contempt, judgment of $2010.00, and related award of attorney’s fees are vacated, and the portion of the order requiring former wife to sell the home is reversed.

Property owner sought recognition that his property had a nonconforming use as a rock quarry. We have determined that the property owner’s previous appeal before the board of zoning appeals, for which he did not file a petition for writ of certiorari in chancery court, is res judicata as to the present matter.

This appeal involves a motion to set aside a declaratory judgment action involving a cemetery.  Service to the community at large was made by publication.  No answer, pleading, or response of any kind was filed within the time allowed by the court. Following a hearing, the trial court provided the Macedonia Cemetery Board of Trustees with the exclusive authority to oversee operation and maintenance of the cemetery.  The respondents filed a motion to set aside the judgment, claiming they had not received notice of the hearing.  The court denied the motion.  The respondents appeal.  We dismiss the appeal for failure to comply with Rule 27 of the Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals, as such the judgment of the trial court is affirmed.  

This is a governmental tort liability action against Bradley County Fire Rescue and Bradley County (collectively Bradley County) arising out of a motor vehicle accident at a large intersection in Cleveland, Tennessee. Fire Rescue employee Matthew Mundall, responding to an emergency call in a Ford F-250 truck equipped with siren and emergency lights, began making a left turn against the red light after stopping or slowing in an attempt to make sure the oncoming traffic lanes were clear. Plaintiff Robin G. Jones, who had the green light and testified she did not hear or see the emergency vehicle, drove into the intersection and collided with the truck. After a bench trial, the trial court allocated 40% fault to Jones and 60% fault to county employee Mundall. The court awarded Jones a judgment against Bradley County in the amount of $207,366. Bradley County appeals, arguing that the court erred in its assessment of 60% fault against Mundall, and that the award of damages to Jones was excessive and unsupported by the evidence. We affirm.

This appeal involves parties who were married for thirty-six years prior to divorcing in 2004. The wife claims that she received a judgment against the husband pursuant to their divorce entitling her to the sum of $24,000. The wife insists that because this judgment was never paid by the husband, she filed a lien against real property that was awarded to him in the divorce. Upon learning that the real property in question was scheduled to be sold at auction, the wife filed the instant action, seeking to stop the auction and enforce her lien. The trial court dismissed the wife's complaint and also dismissed and dissolved the underlying lien. Wife timely appealed. Having determined that the trial court's judgment of dismissal was erroneous, we reverse the judgment and remand for further proceedings consistent with this opinion.

This is a breach of contract action in which the trial court granted summary judgment to a creditor against defendant doctors. We affirm the grant of summary judgment