APPELLATE COURT OPINIONS

This is an action by the administrator of the estate of Louisianna McClaron (“the decedent” or “Ms. McClaron”) to recover assets converted by the decedent’s attorneys-in-fact based upon, inter alia, their use of the power of attorney to name themselves as joint owners with right of survivorship on the decedent’s financial accounts, as the pay-on-death beneficiaries of her annuities, and as beneficiaries of the decedent’s life insurance policies. The attorneys-in-fact used the power of attorney to sell real estate, the proceeds of which they deposited into a joint account that benefitted themselves. They also used the power of attorney to transfer $112,000 of the decedent’s bank funds to themselves and their children. The attorneys-in-fact admitted to engaging in all of the transactions identified in the complaint and did not contest the existence of a confidential relationship; rather, they denied liability, contending their actions were authorized and beneficial to Ms. McClaron based on “an understanding” they had with her. They contended to having an oral agreement with the decedent whereby they would care for and assist the decedent and her sister, who lived together, until they died, at which time the attorneys-in-fact would receive the decedent’s estate. Following discovery and the admission by the attorneys-in-fact of all the material facts set forth in the administrator’s statement of undisputed facts, the administrator moved for partial summary judgment. After ruling that any evidence of a purported understanding with the decedent was barred pursuant to the Dead Man’s Statute, the trial court granted partial summary judgment as to liability on the basis of the presumption of undue influence and the breach of fiduciary duties by the attorneys-in-fact for engaging in transactions that resulted in no benefit to the decedent. Following a bench trial on damages, the court entered a judgment identifying the property to be restored to the estate and the amount of damages to be awarded; the court also declared a deed purportedly conveying the decedent’s home to the attorneys-in-fact null and void. The attorneys-in-fact appeal, contending the grant of summary judgment was inappropriate because material facts are in dispute. More specifically, they contend the trial court erroneously deemed the subject of their “understanding” or “agreement” with Ms. McClaron inadmissible under the Dead Man’s Statute, which precluded them from presenting clear and convincing evidence of the fairness of the transactions or how Ms. McClaron benefitted from the transactions. The record before us reveals it is undisputed that the attorneys-in-fact exercised the power of attorney; therefore, a fiduciary relationship existed. See Childress v. Currie, 74 S.W.3d 324, 328–29 (Tenn. 2002). As a consequence, they owed a fiduciary duty to deal with Ms. McClaron’s property in the “utmost good faith,” see Ralston v. Hobbs, 306 S.W.3d 213, 221 (Tenn. Ct. App. 2009), and to act primarily for the benefit of Ms. McClaron, see McRedmond v. Est. of Marianelli,46 S.W.3d 730, 738 (Tenn. Ct. App. 2000). However, the undisputed facts establish that the transactions orchestrated by the Johnsons were not necessary to protect the interest of Ms. McClaron. See Folts v. Jones, 132 S.W.2d 205, 208 (Tenn. 1939). The undisputed facts establish that Ms. McClaron did not benefit from the transactions at issue and the transactions were not fair to Ms. McClaron. In contrast, the undisputed facts reveal that the Johnsons benefitted from each transaction. Having determined that the undisputed material facts and the relevant legal principles fully support the trial court’s determination that the Johnsons breached their fiduciary duties to Ms. McClaron as well as the trial court’s grant of partial summary judgment in favor of the administrator of the estate on the issue of liability, we affirm the trial court in all respects.

This appeal arises from a breach of contractaction brought by the successful bidder at a real estate auction. Following the auction, the execution of a Commercial Purchase and Sale Agreement (“Purchase Agreement”), and the buyer’s remittance of the required earnest money, the parties disputed whether a gravel alley was to be included in the sale. After the seller refused to include the gravel alley in the sale, the buyer refused to close the sale and commenced this action, seeking to recover from the seller the earnest money deposit plus all costs and attorney’s fees incurred in these proceedings. Following the filing of the complaint and answer, each party filed a Tenn. R. Civ. P. 12.03 motion for judgment on the pleadings with the principal issues being whether the Purchase Agreement, which included an integration clause, constituted the complete agreement of the parties and, if so, whether the property description within the Purchase Agreement unambiguously identified the property to be sold as including the disputed gravel alley. The trial court granted the buyer’s motion based on its determination that the Purchase Agreement was fully integrated and constituted the parties’ complete agreement. The trial court also ruled that any evidence contradicting or supplementing the property description was inadmissible. After assessing the plain language of the Purchase Agreement, the trial court found that the property description clearly and unambiguously referenced a deed map, which included the gravel alley. For these reasons, the trial court held that the seller breached the contract by refusing to include the gravel alley in the sale and ordered that the buyer’s earnest money be refunded with interest. The buyer then moved for an award of attorney’s fees based on the terms of the Purchase Agreement, which the trial court granted. This appeal followed. Finding no error, we affirm the trial court in all respects. We also find that the buyer, as the prevailing party,is entitled to recover the reasonable and necessary costs and attorney’s fees it incurred in defending this appeal. Accordingly, we remand this issue to the trial court to make the appropriate award.

Appellant filed suit against Appellees concerning purported violations of his constitutional rights, among other allegations. The trial court ultimately dismissed the case based on insufficiency of service of process and that Appellant’s claims failed to state a claim as a matter of law. Appellant now appeals. Based on our review of the record, we affirm the trial court’s dismissal.

In this post-divorce case, the trial court granted Appellee/Wife’s petition to modify paragraph 4(A)(d) of the parties’ Marital Dissolution Agreement (“MDA”) on its finding of mutual mistake. The trial court declined to: (1) reform paragraph 4(A)(e) of the MDA; (2) find Appellant/Husband in contempt of the MDA for failure to reimburse Wife for certain college expenses of the parties’ son; (3) hold Husband in contempt for his alleged failure to satisfy his support obligations; and (4) award Wife her attorney’s fees under the MDA. Because there was no mutual mistake, we reverse the trial court’s reformation of paragraph 4(A)(d) of the MDA. The trial court’s orders are otherwise affirmed, and Wife’s motion for appellate attorney’s fees is denied.

The trial court found that Appellant, a Florida attorney, breached his fiduciary duty to Appellees, his clients, and disgorged Appellant of all fees paid by Appellees except for $5,000. Appellant appeals. Discerning no error, we affirm.

The plaintiff appeals from the summary judgment dismissal of his complaint against the defendant hospital pursuant to Tennessee Code Annotated section 68-11-262.[1] The trial court held, inter alia, that this court’s decision in Fowler v. Morristown-Hamblen Hospital Association, No. E2018-00782-COA-R3-CV, 2019 WL 2571081 (Tenn. Ct. App. June 24, 2019)[2] mandated dismissal because Section 68-11-262 does not create a private right of action.  The plaintiff alleges on appeal that the trial court’s reliance upon Fowler was misplaced because his action is one for contract and therefore not dependent upon the legislature’s creation of a private right of action.  We affirm the judgment of the trial court.

This case involves a petition to terminate the parental rights of a child’s biological father and for step-parent adoption. The trial court terminated the biological father’s rights on the ground of abandonment for failure to visit, abandonment for failure to support, and wanton disregard. The court held that termination was in the child’s best interest. Biological father appeals asserting that the trial court erred in not granting him a continuance on the day of trial and that the trial court erred in its best interest determination. We vacate the trial court’s conclusion that termination was warranted on the grounds of abandonment by failure to support and abandonment by engaging in conduct that exhibited wanton disregard for the child’s welfare, but we affirm the trial court’s conclusion that the biological father’s rights should be terminated on the ground of failure to visit in the four months preceding his incarceration and that terminating his parental rights is in the best interest of the child. Therefore, we affirm the trial court’s termination of the biological father’s parental rights.

Father appeals the termination of his parental rights on grounds of (1) abandonment by failure to support; (2) substantial noncompliance with permanency plans; (3) persistence of conditions; and (4) failure to manifest a willingness and ability to assume custody of the children. Although we vacate the trial court’s finding of substantial noncompliance with permanency plans, we affirm the remaining grounds, as well as the trial court’s determination that termination was in the children’s best interests. 

Aristotle once explained that “it is possible to fail in many ways . . . while to succeed is possible only in one way[.]”[1] With some notable exceptions, in order for an issue to be proper on appeal, success depends on the following requirements: (1) that an issue be properly raised in the trial court; and (2) that the issue be properly raised on appeal. Of the three arguments Appellants presented in this appeal, none meets both of the above requirements, though they all fail in different respects. As a result, we affirm the decision of the trial court and award Appellee attorney’s fees for defending against a frivolous appeal.

This action involves the valuation of thirty-two unimproved parcels of real property for taxation purposes. The property owners appealed the values assigned by the Knox County Assessor of Property to the Knox County Board of Equalization, the Tennessee State Board of Equalization, and the Tennessee Assessment Appeals Commission before filing a petition for judicial review in the Knox County Chancery Court (“trial court”). The trial court affirmed the respective values of the parcels as found by the Tennessee Assessment Appeals Commission. The property owners have appealed the trial court’s determination. Discerning no reversible error, we affirm the trial court’s judgment.

In this personal injury negligence action, the defendant died while the litigation was pending.  The plaintiff failed to file a motion for substitution of party within ninety days of the original defendant’s death being suggested on the record.  Over a month later, the plaintiff moved the trial court to enlarge the time to substitute the parties pursuant to Tennessee Rule of Civil Procedure 6.02(2).  The trial court denied the motion for an enlargement of time.  Because the trial court did not abuse its discretion, we affirm.

The Domestic Relations Court for Meigs County dismissed a petition for order of protection, and the petitioner appealed to the Chancery Court for Meigs County (the “trial court”). The trial court determined that it lacked subject matter jurisdiction over the case and dismissed the appeal. Because the trial court has subject matter jurisdiction, we reverse.

This appeal involves a Tennessee Rule of Civil Procedure 4.01(3) summons issue. The trial court granted defendant’s motion to dismiss after finding that plaintiff intentionally delayed the issuance of the summons for the complaint in contradiction to Rule 4.01(3) of the Tennessee Rules of Civil Procedure. Plaintiff appeals. We affirm.

This appeal involves the termination of a father’s parental rights to his young son.  The trial court found by clear and convincing evidence that four grounds for termination were proven and that termination was in the best interest of the child.  We affirm and remand for further proceedings.

A mother and father appeal the termination of their parental rights to three children. The juvenile court concluded that there was clear and convincing evidence of multiple statutory grounds for termination. The court also concluded that there was clear and convincing evidence that termination of the parents’ parental rights was in the children’s best interest. After a thorough review, we agree and affirm.

This is an appeal from a trial court’s modification of child support.  Father filed a petition to modify custody.  The trial court modified the parties’ parenting schedule but reserved its determination of child support for future adjudication.  Subsequently, without conducting an evidentiary hearing, the trial court entered an order requesting that the parties submit their own competing proposed orders concerning child support.  Ultimately, the trial court issued its final order setting child support based solely on the documents attached to Father’s proposed order.  Because the trial court failed to conduct an evidentiary hearing, we conclude that there was no evidence before it from which to make a ruling.  Accordingly, we vacate the trial court’s order and remand with instructions for it to conduct an evidentiary hearing to allow the parties to put on their proof as to child support.

This case stems from the sale of a 2000 Mercury Sable (“the vehicle”) purchased by Amy Jennings from John M. Lance Ford, LLC, an affiliate of AutoNation, Inc. (“AutoNation” or “Defendant”), in 2017. Ms. Jennings signed all of the paperwork associated with the sale, including an arbitration agreement. In September of 2018, Ms. Jennings and her husband, Dorian Jones, filed suit against AutoNation in the Chancery Court for Washington County (the “trial court”) alleging multiple causes of action arising from the sale of the vehicle. Generally, Ms. Jennings and Mr. Jones alleged that AutoNation breached several warranties and fraudulently induced Ms. Jennings into the sale. Eventually, AutoNation filed a motion to compel arbitration which the trial court granted on August 10, 2020. Mr. Jones filed an appeal to this Court. Because an appeal from an order granting a motion to compel arbitration and staying litigation is nonfinal, this Court lacks subject matter jurisdiction and the appeal is dismissed.

This appeal arises from an action before the Tennessee Claims Commission for personal injuries filed on behalf of a minor child who broke her arm when she fell from playground equipment at Tims Ford State Park. The complaint asserted claims for negligence, gross negligence, and gross negligence per se. It alleged that the State was negligent by failing to adequately maintain its property, and by failing to discover, rectify, and/or warn against a dangerous condition, and allowing park visitors “to use the playground which did not have a safe surface area.” The State denied liability under Tenn. Code Ann. § 9-8-307(a)(1)(C), insisting it had no notice of any dangerous condition; it also raised the “Recreational Use Statute,” Tenn. Code Ann. §§ 70-7-101 to -105, as an affirmative defense. Following discovery, the State filed a motion for summary judgment, which the claims commissioner granted. The commissioner found the State was entitled to judgment as a matter of law on two grounds. The commissioner found that Tenn. Code Ann.
§ 70-7-102 of the Recreational Use Statute provided immunity to the State as a landowner against premises-liability claims and that the gross negligence exception under the statute, Tenn. Code Ann. § 70-7-104(a)(1), did not apply. The commissioner also held that the claimants failed to show that notice of the alleged dangerous condition had been provided to the State, which is an essential element of the Claims Commission Act. The plaintiffs appeal one issue, asserting a genuine issue of material fact existed concerning whether the State’s failure to maintain the playground was gross negligence. We affirm the Commissioner’s decision on both grounds.

A foreign corporation sought to have a default judgment entered against it set aside on the basis that service of process was ineffective, rendering the judgment void. Because the proof before the court at the time it entered the default fails to demonstrate that service by mail complied with Rule 4 of the Tennessee Rules of Civil Procedure, we reverse the judgment of the trial court, vacate the default judgment, and remand for further proceedings.

An agency determined that a tour bus leasing company mischaracterized its tour bus drivers as independent contractors rather than employees, for the purposes of unemployment taxes. The company sought review in chancery court, which affirmed the agency’s determination. Because there is substantial and material evidence to support the agency’s determination, we affirm the trial court.

This appeal involves the applicability of Tennessee Code Annotated section 56-7-105, the bad faith penalty statute, to automobile insurance policies. The trial court granted the insurance company’s motion for summary judgment holding that Tennessee Code Annotated section 56-7-105 did not apply to automobile insurance policies. The insured appeals. We affirm.

This is the second appeal in this action for breach of a contract to purchase improved real property. Prior to the first appeal, the trial court, having found following a bench trial that the defendant buyers, Arnold Brush and Pamela Sue Brush, had breached the parties’ purchase and sale agreement, initially entered damage awards in favor of the plaintiffs, who included the sellers, Richard J. Hartigan and Leila R. Hartigan; the Hartigans’ realtor, James M. Henry d/b/a Coldwell Banker Jim Henry & Associates (“Coldwell Banker”); and a realty company, Lakeway Realty Group, Inc. (“Lakeway Realty”), with whom the Brushes had entered into a buyer representation agreement. Mr. Brush, by then acting individually and as the Administrator of the Estate of Pamela Sue Brush, appealed to this Court, raising issues concerning the trial court’s calculations of damages and pre-judgment interest. This Court affirmed the judgment in favor of Lakeway Realty but vacated the award of damages and prejudgment interest to the Hartigans and the calculation of prejudgment interest awarded to Coldwell Banker. This Court directed that upon remand, the trial court was to enter additional findings of fact regarding the fair market value of the property, with further proceedings as necessary, and recalculate the amount of prejudgment interest awarded to Coldwell Banker.

The appellee, Linda R. Kerley (“Appellee”), filed a motion to dismiss this appeal alleging that the notice of appeal was not timely filed. Because the notice of appeal was not timely filed, this Court lacks jurisdiction to consider this appeal.

A review of the record on appeal reveals that the order appealed from does not constitute a final appealable judgment. As such, this Court lacks jurisdiction to consider this appeal.