Homeowners Of Ash Grove Estates v. Carla Hurley

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Alexander Alaka v. Short Cut Auto Sales & Repairs, Inc.
M2017-01577-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

The plaintiff appeals the circuit court’s judgment for damages sustained to his vehicle, a reduction from the amount awarded in general sessions court. We vacate the final order and remand for entry of an order that sets forth sufficient findings of fact and conclusions of law in support of the circuit court’s decision.  

 Davidson County Court of Appeals 06/13/18
Homeowners Of Ash Grove Estates v. Carla Hurley, Et Al.
M2016-02008-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Joe H. Thompson

This appeal arises out of a suit to enforce restrictive covenants. Plaintiffs filed suit seeking an injunction to prevent their neighbors from operating a commercial horse facility. After a hearing, the court permanently enjoined Defendants from using or allowing their property to be used for a commercial horse operation and from constructing any additional buildings before they built a residence on the property. The trial court also ruled that Defendants did not have to remove or relocate the already-constructed “run-in shed” at this time, but that once a residence is built, the shed must be removed or moved to the rear of the residence. Defendants appeal. Upon our review, we reverse the judgment enjoining Defendants from conducting a commercial horse operation; in all other respects we affirm the judgment of the trial court.  

 Sumner County Court of Appeals 06/13/18
In Re Emmalee O., et al.
E2017-01605-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Gregory S. McMillan

This appeal involves the issue of past child sexual abuse by a parent. After the original trial de novo, the father was found guilty of severe child abuse and was enjoined from contact with the child and another daughter. A prior appeal resulted in an affirmance of the trial court’s finding. In re Emmalee O., 464 S.W.3d 311 (Tenn. Ct. App. 2015). After permission to appeal was denied by the Tennessee Supreme Court and the U.S. Supreme Court, the father filed a motion to vacate or modify the 2014 ruling of the trial court. After the trial court denied the relief requested, the father again appealed. We affirm the trial court’s decision.

 Knox County Court of Appeals 06/13/18
Town & Country Jewelers, Inc., et al. v. Andrew Timothy Sheriff, et al.
W2017-01375-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Jim Kyle

Over ten years after entry of a judgment, the judgment creditors filed a motion for scire facias to revive the judgment. The trial court denied the motion based on a determination that expiration of the statute of limitations deprived the court of subject matter jurisdiction. On appeal, the judgment creditors argue that their motion was timely because the debtor revived the debt by agreeing that the debt was nondischargeable in bankruptcy. We conclude that the trial court possessed subject matter jurisdiction but that revival does not apply. So we affirm as modified.

 Shelby County Court of Appeals 06/13/18
Clayton Pickens v. John R. Underwood, et al.
E2017-02120-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge David Reed Duggan

This appeal arises from a dispute over a construction contract between Clayton Pickens (“Pickens”), a general contractor, and John R. Underwood (“Underwood”) and his wife Suzanne Curtin (“the Underwoods,” collectively). Pickens sued Underwood initially in Chancery Court but later transferred to the Circuit Court for Blount County (“the Trial Court”) for allegedly failing to pay him under a contract to build the Underwoods’ home. Underwood filed counterclaims against Pickens alleging, among other things, fraud, cost overruns, violation of the Tennessee Consumer Protection Act, and entering into a construction contract in excess of the monetary limit on Pickens’ contractor’s license. This case was tried before a jury. The jury found the Underwoods breached the construction contract and awarded Pickens $147,340.25. The jury also found that Pickens breached the contract through certain errors in construction and awarded the Underwoods $10,740.00. The Trial Court entered its final judgment affirming the jury’s verdict and awards of damages. The Underwoods appeal, arguing in part that Pickens should have been limited to his actual documented expenses because he entered the construction contract in excess of his contractor’s license limit. We hold, inter alia, that under the law in effect at the time of the execution of the contract, Pickens was not limited in damages to his actual documented expenses. We affirm the judgment of the Trial Court.

 Blount County Court of Appeals 06/12/18
Johnson Real Estate Limited Partnership v. Vacation Development Corp., et al.
E2017-01774-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Telford E. Forgety

This action involves a long-term ground lease in which the defendant lessee paid for and maintained an insurance policy on the property for its benefit. The defendant surrendered the premises after the motel facility constructed on the land was destroyed by a wildfire before the expiration of the lease. The plaintiff lessor filed suit, seeking an equitable lien on the policy and its proceeds, a constructive trust against the insurance rights and recovery, a claim on the policy as a third-party beneficiary, and injunctive relief. The court granted summary judgment in favor of the defendant. We affirm.

 Sevier County Court of Appeals 06/12/18
Regions Mortgage, et al. v. Joseph Willie Brown, et al.
W2017-00605-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Jerry Stokes

This appeal arises from a marathon of litigation, as many as eleven separate civil actions, all of which pertain to the defendants’ former property in Eads, Tennessee that Regions Mortgage, Inc. (“Regions”) purchased at a foreclosure sale in 2013. See Brown v. AmSouth Bank, No. W2016-02596-COA-R3-CV, 2018 WL 1319169, at *1-2 (Tenn. Ct. App. Mar. 14, 2018). At issue here is the grant of a writ of possession to Regions by the General Sessions Court of Shelby County in a forcible entry and detainer action, which decision the defendants appealed to the circuit court. When the circuit court dismissed the appeal for lack of subject matter jurisdiction, the defendants appealed to this court. Due to profound deficiencies with the defendants’ brief, specifically the failure to comply with Rule 6 of the Rules of the Court of Appeals of Tennessee, we dismiss the appeal.

 Shelby County Court of Appeals 06/11/18
Cornell Poe v. City of Jackson Mayor Jerry Gist, et al.
W2017-00465-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Kyle Atkins

A passenger on a Jackson Transit Authority bus was arrested as a result of an altercation with the driver; the arrest led to the passenger’s parole being revoked and his resulting incarceration. The passenger brought suit, asserting claims for slander and libel under the Tennessee Governmental Tort Liability Act and Tennessee Public Protection Act against the Transit Authority and certain of its employees, and the Mayor and various employees of the City of Jackson. The trial court granted summary judgment in favor of the defendants, and this appeal followed. Upon our review, we have determined that the complaint fails to allege causes of action under the Governmental Tort Liability Act and the Public Protection Act, and that the causes of action asserted against the individual defendants are barred by the statute of limitations. Accordingly, we affirm the judgment of the trial court dismissing the case.

 Madison County Court of Appeals 06/11/18
Earl Vantrease, Jr. v. Tennessee Board of Parole, Et Al.
M2016-01384-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amanda Jane McClendon

This is an appeal from an order dismissing one of several defendants. Because the order does not dispose of the plaintiff’s claims against all of the defendants and because the trial court has not yet ruled on the plaintiff’s Tenn. R. Civ. P. 59 motion to alter or amend, we dismiss the appeal for lack of a final judgment.

 Davidson County Court of Appeals 06/08/18
Susan Walton Ex Rel. James Walton v. Tullahoma HMA, LLC
M2017-01366-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Vanessa Jackson

This is a case of healthcare liability and wrongful death. After the decedent’s death at a Tullahoma hospital, his surviving spouse filed suit seeking damages for his injuries and death. The case was eventually tried before a jury, and a verdict was returned in favor of the Plaintiff. Although the jury determined that the total damages were $300,000, the trial court suggested an additur of over $1,000,000. An amended final judgment was subsequently entered after the trial court determined that the Defendant had accepted the additur under protest. Because we are of the opinion that the trial court’s additur destroyed the jury’s verdict, we reverse the trial court’s judgment and remand the case for a new trial.

 Coffee County Court of Appeals 06/07/18
Gretelle Brashell Ingram v. Joey Evi Ingram
W2017-00640-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor James F. Butler

In this divorce case, the trial court awarded Wife alimony in futuro and partial attorney’s fees as alimony in solido. The trial court additionally awarded Wife the marital home despite the fact that Wife was unable to refinance the home to remove Husband from the mortgage. Discerning no error, we affirm the trial court’s judgment in all respects.

 Madison County Court of Appeals 06/07/18
Harold R. Gunn v. First Baptist Church, et al.
W2017-02382-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Senior Judge William B. Acree

Appellant, a member of First Baptist Church of Humboldt, appeals the trial court’s grant of summary judgment in favor of Appellees, the church, its pastor, and chairman of the deacons. Appellant challenged the vote to change the name of the church to “The Church at Sugar Creek.” Finding that the ecclesiastical abstention doctrine acted as a jurisdictional bar, the trial court granted summary judgment. Discerning no error, we affirm and remand.

 Gibson County Court of Appeals 06/07/18
Lorna Gibson v. Charles Bikas
E2018-00911-COA-T10B-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Pamela A. Fleenor

Appellant sought disqualification of the trial court judge pursuant to Tennessee Supreme Court Rule 10B. Finding no error, we affirm.

 Hamilton County Court of Appeals 06/04/18
Ovalla Jobe v. Goodwill Industries Of Middle Tennessee, Inc., Et Al.
M2017-02299-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Kelvin D. Jones

This appeal involves a premises liability suit filed by a customer of a Goodwill store after the customer sat on an item of furniture that was for sale and it collapsed. The trial court granted summary judgment to Goodwill, finding no genuine issue of material fact and concluding that Goodwill did not create or have actual or constructive knowledge of any alleged defect. The plaintiff appeals. We affirm.     

 Davidson County Court of Appeals 06/04/18
In Re Avery B.
W2016-02542-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge William A. Peeler

This appeal arises from a modification of a permanent parenting plan established in 2010 in which Mother was designated as the primary residential parent. In December of 2012, Father filed a petition to modify the parenting plan alleging that Mother’s mental health impeded her ability to properly care for their child. He also alleged that Mother alienated the child from Father due to numerous false allegations that Father abused the child, which resulted in temporary but substantial decreases in his parenting time. Although no evidence was produced indicating that Father abused the child, Mother continued to accuse Father of abuse and to take the child for repeated evaluations and physical exams. Following a three-day trial, the trial court designated Father as the primary residential parent, established a temporary parenting plan, and ordered Mother to attend counseling until the court was satisfied with her mental health so that it could issue a permanent parenting plan. Mother appealed that order; however, we dismissed the appeal for lack of subject matter jurisdiction because the order appealed from was not a final judgment. On remand, following an assessment of Mother’s compliance with the court-ordered intensive therapy, the trial court entered a final judgment that included a permanent parenting plan from which Mother appeals. Mother contends the trial court erred in holding, inter alia, that there was a substantial and material change in circumstances requiring a modification of the parties’ permanent parenting plan. She also contends the court erred in holding that it was in the child’s best interest to change the primary residential parent to Father due, in part, to the fact the court failed to consider factors added to Tenn. Code Ann. § 36-6-106 pursuant to the 2014 amendment that became law on July 1, 2014. Finding no error, we affirm.

 Tipton County Court of Appeals 06/04/18
Stephanie Keller, et al v. Estate of Edward Stephen McRedmond, et al
M2013-02582-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

Sibling shareholders, unable to agree on the management of the family business, brought their dispute to court. Eventually, the brothers and sisters agreed that the business should be dissolved and, under the court’s supervision, sold as a going concern. After soliciting bids from the siblings, the court approved the sale of the business’s assets to one brother and two of his sisters. Pending the closing, the court ordered the siblings to continue to operate the business as usual and to preserve the goodwill of the business, including the relationships with employees, suppliers, and customers. The day after the closing, the brother who was not part of the winning bidder group opened a competing business. The winning bidders sought damages from the competing sibling, claiming that he willfully violated court orders, breached his fiduciary duty, and intentionally interfered with business relations. After a bench trial, the court awarded the winning bidders compensatory damages in an aggregate amount for all claims. In the first appeal, this Court reversed, holding that the winning bidders’ claims were derivative, not direct, and thus they lacked standing. In Keller v. Estate of McRedmond, 495 S.W.3d 852, 877 (Tenn. 2016), our supreme court adopted a new standard for determining whether a shareholder claim is direct or derivative and, applying that standard, held that the winning bidders had standing to pursue their claim that the competing sibling violated the court’s orders. So our supreme court affirmed in part, reversed in part, and remanded the case to this Court to review the remaining issues that were properly raised but not addressed in the first appeal. Id. at 882-83. We affirm the trial court’s decision to hold the competing sibling in contempt, but we vacate the aggregate award of compensatory damages.  

 Davidson County Court of Appeals 05/31/18
In Re Ayden S., Et Al.
M2017-01185-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ken Witcher

Parents appeal the termination of parental rights to their three children. The juvenile court found three statutory grounds for termination: substantial noncompliance with the requirements of the permanency plans, persistence of conditions, and failure to manifest an ability and willingness to assume custody or financial responsibility of the children. The court also found that termination of the parents’ parental rights was in the children’s best interest. We conclude the evidence of the statutory grounds for termination was less than clear and convincing. Thus, we reverse the termination of the parents’ parental rights.

 Macon County Court of Appeals 05/31/18
In Re Ethan W., Et Al.
M2016-02313-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Stella L. Hargrove

The Department of Children Services initiated a proceeding to declare the three minor children of Mother and Father dependent and neglected following the discovery of a sexual relationship between two of the children. The Juvenile Court adjudicated the children dependent and neglected, as did the circuit court in a de novo hearing on appeal. Upon our review, we conclude the record contains clear and convincing evidence that the children were dependent and neglected; accordingly, we affirm the judgment.  

 Wayne County Court of Appeals 05/31/18
Ray Brown v. Robert L. Bushnell
M2017-01124-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Franklin L. Russell

This is a malicious prosecution case. The trial court found that the Appellant committed the torts of malicious prosecution and abuse of process. Appellant argues that there was no material evidence to support the trial court’s inference of malice. Appellant also questions the trial court’s failure to address the mandatory element of probable cause. Discerning no error, we affirm.

 Bedford County Court of Appeals 05/31/18
Deborah Lacy v. Vanderbilt University Medical Center, Et Al.
M2018-00832-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas W. Brothers

This is an appeal from an order granting summary judgment to one of several defendants. Because the order does not dispose of the plaintiff’s claims against all of the defendants, we dismiss the appeal for lack of a final judgment.

 Davidson County Court of Appeals 05/31/18
Jason C. Blosser v. Cyrus Johnson, IV d/b/a The River City Rides
W2017-00858-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor JoeDae L. Jenkins

This appeal deals only with the trial court’s award of treble damages pursuant to the Tennessee Consumer Protection Act. Finding no error, we affirm.

 Shelby County Court of Appeals 05/31/18
In Re Ethan B.
M2017-00967-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ronald Thurman

A mother appeals the termination of parental rights to her son on the grounds of abandonment by willful failure to visit and willful failure to support. Mother appeals, arguing that the termination of her rights is not supported by the record. After a thorough review, we conclude that the proof does not clearly and convincingly establish that Mother willfully failed to visit or support the child. We reverse the judgment of the trial court and dismiss the petition for termination. 

 White County Court of Appeals 05/30/18
Sumner County, Tennessee v. Susan Small-Hammer
M2017-02328-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joe Thompson

The defendant appeals the imposition of a security interest in her home. The defendant’s home, which was destroyed by floods in May of 2010, was demolished and reconstructed with funds the defendant applied for through the HOME Program administered by Sumner County. In applying for the financing, the defendant agreed to “comply with the HOME Program rules and regulations if assistance is approved,” one of which was that she must sign a note and deed of trust to secure the repayment obligation. After the defendant repeatedly refused to sign a note and deed of trust, Sumner County filed this action. Sumner County subsequently filed a motion for summary judgment that was properly supported by a statement of undisputed facts pursuant to Tenn. R. Civ. P. 56. Because the defendant did not file a response to the motion or the statement of undisputed facts, and the undisputed facts established that Sumner County was entitled to judgment as a matter of law, the trial court granted Sumner County’s motion for summary judgment. This appeal followed. We affirm.

 Sumner County Court of Appeals 05/30/18
Amy Brasfield Marlow v. Joseph Charles Marlow
E2017-01190-COA-R9-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Gregory S. McMillan

This appeal arises from three post-divorce petitions for criminal contempt against Father in which Mother asserts over 200 separate counts. The principal issues on appeal pertain to the Double Jeopardy Clause of the United States and Tennessee Constitutions. Following a three day trial on the first petition, Father was found to be in criminal contempt of 60 counts. After Mother filed her second petition in which she alleged 133 additional counts of contempt, the parties appeared in court to announce a settlement pursuant to which Father would plead guilty to 10 unspecified counts with the remaining counts to be dismissed. Without advising and questioning Father before accepting a plea as Tenn. R. Crim. P. 11(b) requires, the trial court approved the agreed order, finding Father in criminal contempt of 10 unspecified counts. After Mother filed her third petition for criminal contempt, Father filed a “Motion to Alter or Amend and/or Rule 60.02 Motion to Set Aside Most of the Criminal Contempt Findings and Holdings in this Cause,” contending all but two of the 60 initial convictions were constitutionally flawed. As for the first 58 convictions, Father argued the notice of criminal contempt failed to specifically state essential facts concerning each ground as required by Tenn. R. Crim. P. 42(b). With regard to Father’s guilty plea to 10 additional counts, Father contended the plea and sentence were fatally flawed because the trial court failed to ascertain whether Father’s guilty plea was knowingly and voluntarily entered as Tenn. R. Crim. P. 11(b) requires. The trial court vacated 55 of the 60 initial convictions, finding the notice of criminal contempt failed to state essential facts as required by Tenn. R. Crim. P. 42(b); however, the order that followed held Father in criminal contempt for sending a text to Mother at 10:11 a.m. on June 20 for which Father had been acquitted following trial. The court also set aside Father’s guilty plea to 10 of the 133 additional counts in the second petition because the court failed to advise and question Father before accepting a plea as required by Tenn. R. Crim. P. 11(b). The trial court also ruled, over Father’s objections, that Mother could prosecute Father on all 133 counts in the second petition. In this appeal, Father contends the trial court violated the constitutional prohibitions against double jeopardy by (1) finding Father guilty of a count of criminal contempt for which he had been acquitted following trial, and (2) allowing Mother to prosecute her second 05/29/2018 - 2 - petition. Because double jeopardy prohibits a prosecution after an acquittal on the same count, we vacate Father’s conviction for criminal contempt for sending a text to Mother at 10:11 a.m. on June 20. As for allowing Mother to prosecute all 133 counts in her second petition, the agreed order, in which Father pled guilty to 10 counts, failed to specifically identify any of the counts for which Father pled guilty or any of the counts for which he was acquitted; therefore, jeopardy did not attached to any of the 133 counts. Accordingly, we affirm the trial court’s decision allowing Mother to prosecute the 133 counts in her second petition.

 Knox County Court of Appeals 05/29/18
In Re Kendall M.
E2017-01769-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Robert D. Philyaw

Kendall M. was born in January 2016; she tested positive for amphetamines at birth and was placed in the Neonatal Intensive Care Unit where she was diagnosed with Neonatal Abstinence Syndrome and suffered from withdrawal symptoms. Upon her release from the hospital, she was placed with foster parents, in whose care she has remained. A proceeding to have her declared dependent and neglected was initiated by the Department of Children’s Services and permanency plans developed in May and October of 2016. In March of 2017 the Department filed a petition to terminate the parental rights of Kendall’s Mother on the grounds of abandonment by an incarcerated parent and substantial noncompliance with the permanency plans; following a hearing, the court granted the petition and terminated Mother’s rights on both grounds. Mother appeals the termination of her rights on the ground of substantial noncompliance with the permanency plans and the holding that termination of her rights was in the best interest of Kendall. Upon our review, we conclude that there is clear and convincing evidence to support the termination of her rights on both grounds, and the finding that termination of Mother’s rights is in Kendall’s best interest; accordingly, we affirm the judgment of the trial court.

 Hamilton County Court of Appeals 05/29/18
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