COURT OF APPEALS OPINIONS

Rimon Abdou v. Steven Brown et al.
M2023-01593-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement
Trial Court Judge: Judge Joseph P. Binkley, Jr.

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   Testing....Petitioner, Steven Skinner, appeals the Shelby County Criminal Court’s summary dismissal of his fourth untimely petition for writ of error coram nobis and his motion to reopen post-conviction proceedings. He argues on appeal that the post-conviction court erred in summarily dismissing the petition because he presented newly discovered evidence in support of actual innocence; therefore, the statute of limitations should be tolled. Alternatively, he argues that the lower court improperly denied his motion to reopen postaconviction proceedings. After review, we affirm the summary dismissal of the coram nobis petition and conclude that we are without jurisdiction to consider the propriety of the denial of the motion to reopen and dismiss the appeal in that respect.
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Davidson Court of Appeals

Erin Mishkin v. Robert Cole Gordon
M2024-01397-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Deanna B. Johnson

Appellant filed this petition for recusal appeal after the trial court denied a motion to recuse. In light of Appellant’s failure to comply with Rule 10B of the Rules of the Supreme Court of the State of Tennessee, we affirm.

Williamson Court of Appeals

Jamesway Construction, Inc. v. David W. Salyers, P.E.
M2023-01704-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Anne C. Martin

The plaintiff appeals from the dismissal of its claim concerning the Water Quality Control Act (“WQCA”), codified at Tennessee Code Annotated section 69-3-101, et seq.1 We now affirm the dismissal due to the applicable statute of limitations.

Davidson Court of Appeals

Jamesway Construction, Inc. v. David W. Salyers, P.E. (Dissenting)
M2023-01704-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Chancellor Anne C. Martin

The parties in the present appeal duel over the question of whether, when appealing the decision of an administrative judge to the Board of Water Quality, Oil, and Gas in relation to an alleged violation of the Water Quality Control Act, a party has 15 or 30 days in which to appeal. Jamesway Construction, Inc. asserts that the Tennessee Department of Environment and Conservation (TDEC) only had 15 days to appeal, and, accordingly, that the administrative judge’s decision became final when TDEC failed to appeal within that period. TDEC insists that it had 30 days to appeal, and, accordingly, that its appeal was timely.

Davidson Court of Appeals

Cynthia Evans v. Robert David Derrick
M2023-01550-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Magistrate Lesli Oliver Wright

Father appeals the trial court’s award of grandparent visitation to the child’s maternal grandmother. Although we affirm the trial court’s determination that an award of grandparent visitation is warranted, we vacate the visitation schedule set by the trial court.

Cheatham Court of Appeals

Smiledirectclub, Inc., Et Al. v. NBCUniversal Media, LLC, Et Al.
M2021-01491-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas W. Brothers

This is an action for defamation and violation of the Tennessee Consumer Protection Act (“the TCPA”). The plaintiffs operated a teledentistry platform dedicated to providing remote treatment for mild-to-moderate malocclusion of the teeth. The defendants published an online article and broadcast an “investigative report” that alleged, inter alia, that the plaintiffs’ customers were experiencing “painful problems” such as nerve damage, joint damage, and loss of teeth. In their complaint, the plaintiffs argued these and other statements—as well as the implications derived from those statements—injured the plaintiffs’ reputation and disparaged the plaintiffs’ products, services, and business. The trial court dismissed the action under the Tennessee Public Participation Act (“the TPPA”), holding that the TCPA did not apply and that the plaintiffs failed to make a prima facie case for their defamation claims. This appeal followed. Considering the evidence in a light most favorable to the plaintiffs and disregarding all countervailing evidence, we have determined that the plaintiffs presented prima facie evidence of falsity to support some of their claims but failed to produce clear and convincing evidence of actual malice. Accordingly, we affirm the judgment of the trial court. Defendants ask for an award of their appellate attorney’s fees under Tennessee Code Annotated § 20-17-107, which requires an award of costs and fees “[i]f the court dismisses a legal action pursuant to a petition filed under [the TPPA].” Because we have affirmed the dismissal of the plaintiffs’ claims under the TPPA, Defendants are entitled to an award to be determined by the trial court on remand.

Davidson Court of Appeals

Westport Insurance Corporation et al. v. Howard Tate Sowell Wilson Leathers & Johnson, PLCC et al.
M2023-01168-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Senior Judge Don R. Ash

Plaintiff insurance company is the insurance carrier for an insurance agency that was sued for negligence in five Tennessee lawsuits. After the underlying lawsuits were settled, the plaintiff, in its own name and on behalf of its insured, sued the law firm that represented the insured in the lawsuits. The plaintiff asserted a direct legal malpractice claim, a legal malpractice claim as subrogee of the insured, and a negligent misrepresentation claim. The trial court dismissed all claims. In particular, the trial court ruled that the plaintiff could not maintain a direct legal malpractice claim against the law firm due to the lack of attorney-client relationship and that the assignment of legal malpractice claims is prohibited in Tennessee. In the alternative, the trial court ruled that the plaintiff could not establish the damages element of its legal malpractice claims. The trial court further ruled that the plaintiff failed to establish a misrepresentation of existing or past fact. We affirm the trial court’s dismissal of the plaintiff’s direct legal malpractice action. As to the remainder of the trial court’s rulings, however, we reverse.

Davidson Court of Appeals

Janine Halterman-Scott v. Tennessee Society of Certified Public Accountants
M2024-00373-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Joseph A. Woodruff

The Plaintiff was injured as a result of stepping into a hole in the grass on the Defendant’s property and brought a premises liability action. The trial court granted summary judgment to the Defendant, finding that the Plaintiff’s responses to the Defendant’s statement of undisputed material facts established that the Defendant had no actual or constructive notice of the dangerous condition. On appeal, the Plaintiff asserts there is evidence from which notice could be inferred. We conclude that the trial court properly granted summary judgment. The judgment is affirmed.

Williamson Court of Appeals

Buchanan Dobson Dunavant v. The William B. Dunavant, Jr. Revocable Living Trust ET AL.
W2023-01213-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Rynette N. Hurd

At issue in this appeal is the petitioner’s attempt to recover for breach of contract of a marital dissolution agreement entered into between his parents prior to their divorce. Although the parents’ agreement had called for the petitioner’s father to create an irrevocable life insurance trust for the petitioner’s benefit, the trial court concluded that there was not an enforceable obligation regarding that subject matter and entered summary judgment. For the reasons stated herein, we affirm.

Shelby Court of Appeals

Fred Auston Wortman, III v. Eric Shirkey
E2023-020763-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Michael S. Pemberton

This appeal concerns whether witness testimony in the course of a parole hearing is absolutely privileged. Fred Auston Wortman, III (“Plaintiff”), a prisoner, filed a defamation lawsuit against Eric Shirkey (“Defendant”), a detective who testified at Plaintiff’s parole hearing, in the Circuit Court for Morgan County (“the Trial Court”).1 Plaintiff alleged that Defendant’s statements about him at the parole hearing, such as calling Plaintiff a “narcissist,” damaged his reputation. Defendant filed a motion to dismiss, which the Trial Court granted. The Trial Court concluded that Defendant’s statements were absolutely privileged. Plaintiff appeals, arguing that his parole hearing was administrative rather than judicial in nature, so Defendant’s statements were not protected by absolute privilege. We hold that the parole board, in considering whether to grant Plaintiff parole, was exercising a judicial function such that absolute privilege extended to testimony at the parole hearing. We hold further that Defendant’s statements were relevant and pertinent to the issues involved. Therefore, Defendant’s statements at Plaintiff’s parole hearing were absolutely privileged. We affirm.

Morgan Court of Appeals

Shelby County Democratic Party ET AL. v. Greg Grant D/B/A Greater Memphis Democratic Club, Inc.
W2022-01185-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Senior Judge William B. Acree

In response to a petition alleging the violation of Tennessee Code Annotated section 2-19- 116, a statute that prescribes a criminal penalty and that this Court has held does not provide for a private right of action, the trial court entered an injunction. The trial court thereafter found that the appellant was in criminal contempt of the injunction and sentenced him to ten days in the county jail. The appellant appeals, arguing, among other things, that the order that he was held in contempt of was not lawful. For the reasons stated herein, we hold that the contempt judgment should be reversed.

Shelby Court of Appeals

Amy Leanne Wilhite v. Seth Evan Wilhite
M2023-00188-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joe H. Thompson

This post-divorce action concerns the distribution of proceeds from the sale of the parties’ former marital residence as specified in their marital dissolution agreement. The husband claimed a right under the MDA to, inter alia, one-half of the net proceeds, but the wife asserted that the MDA limited the husband’s equity interest to $40,000. The parties also disputed who was liable for income taxes, including interest and penalties, incurred and accruing after 2019, when the parties entered the MDA. Each party also asserted claims and entitlements to various credits and/or offsets resulting from the delay in the sale of the marital residence. The trial court held that the MDA limited the husband’s interest to $40,000. The court assessed $29,368.52 in post-divorce income taxes, including penalties and interest, against the husband. The court also ordered him to pay $20,543.10 for the wife’s attorney’s fees per the MDA’s fee-shifting provision. But the court granted the husband’s request for reimbursement for the cost of repairs to the property and awarded the husband credit for one-half of the utilities that he paid pending the sale of the property. The husband appeals, raising several issues. We respectfully disagree with the trial court’s finding that the MDA limited the husband’s equity interest to $40,000. We also conclude that the MDA obligated Husband to pay for all utilities and other expenses pending the sale of the property. For this reason, we reverse the trial court’s finding that Husband was entitled to a credit of one–half of those payments. Thus, we vacate the monetary awards that were based, in part, on these decisions, and remand with instructions to recalculate the parties’ respective entitlements to “the net proceeds.” We affirm the trial court in all other respects. We also find that the wife has a right to recover her reasonable and necessary attorney’s fees and expenses incurred on appeal under § 15 of the MDA and remand with instructions for the trial court to make the appropriate award.

Sumner Court of Appeals

Lexington Charter, LP, et al. v. FBT of Tennessee, Inc.
W2023-01311-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor JoeDae L. Jenkins

This appeal arises from a dispute between a partnership and its limited partners concerning the payment of attorney’s fees under the parties’ limited liability agreement. The trial court held that the attorney’s fees were payable from the proceeds of the sale of the partnership’s property, and the limited partners appeal. Discerning no error, we affirm.

Shelby Court of Appeals

Rory Mills Sullivan v. AnneMarie Culp Allen, Individually, and as Trustee for The Tommy Ray Allen and AnneMarie Culp Allen Revocable Trust ET AL.
W2023-01357-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joe Townsend

This appeal follows the dismissal of a proceeding brought in probate court. Because we cannot discern the basis for the trial court’s decision in the two orders that are at issue, we vacate both orders and remand for further proceedings consistent with this Opinion.

Shelby Court of Appeals

24HR Home Buyers, LLC Et Al. v. Louis Roberts Et Al.
E2023-00626-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Richard B. Armstrong, Jr.

This appeal stems from a contract to purchase real property in Knox County, Tennessee, which ultimately fell through. The intended purchaser filed suit against the property owner seeking to enforce the contract. The property owner brought a counterclaim against the intended purchaser and a third-party claim against the intended purchaser’s principal averring that they fraudulently induced him to enter into the contract. After contentious litigation, the trial court entered a default judgment in favor of the property owner as a sanction for ongoing discovery abuses by the intended purchaser and its principal. The intended purchaser and its principal sought relief from the judgment pursuant to Tennessee Rule of Civil Procedure 60.02, which the trial court denied. Discerning no error by the trial court, we affirm

Knox Court of Appeals

John S. McMurtrie Et Al. v. Ransford Sarfo Et Al.
E2023-01825-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge David R. Duggan

This is a consolidated appeal from the trial court’s denial of Tennessee Public Participation Act (“TPPA”) petitions filed by each of the named defendants in the underlying defamation lawsuit. Upon review, we affirm the trial court’s judgment as to each defendant.

Blount Court of Appeals

Willie Gordon v. Victor Murphy, et al.
W2024-00038-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Gina C. Higgins

Pro se Appellant, Willie Gordon, has appealed an order of the Shelby County Circuit Court that was entered on December 15, 2023. We determine that the trial court’s order does not constitute a final appealable judgment. Therefore, this Court lacks jurisdiction to consider the appeal. The appeal is, therefore, dismissed.

Shelby Court of Appeals

In Re Estate of Richard Wayne Penniman
M2023-00075-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge David Randall Kennedy

This appeal arises out of the trial court’s removal of the appellant as co-personal representative of a probate estate. The appellant also appeals the trial court’s ruling that he forfeited his right to a share of the estate assets. Discerning no reversible error, we affirm.

Davidson Court of Appeals

Tezozomoc Alcantar v. Dolgencorp, LLC
M2023-01143-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Lynne T. Ingram

A shopper slipped and fell on a slippery liquid that was on a convenience store floor, resulting in injuries. The shopper sued the property owner. The property owner sought summary judgment, arguing the shopper had not provided sufficient evidence to establish how long the liquid had been on the floor prior to the slip and fall. The trial court granted summary judgment. We reverse.

Davidson Court of Appeals

Dennis Steven Payne v. Estate of Wilmuth V. Groves Et Al.
M2023-01205-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ben Dean

In this probate matter, the plaintiff filed a petition to establish a lost will, submitting for admission to probate a copy of a handwritten document alleged to be the decedent’s holographic will. The trial court determined that the handwritten document met the requirements for a holographic will and that the plaintiff overcame the presumption of revocation afforded to a lost will. The decedent’s intestate heirs appealed. We affirm the decision of the trial court.

Montgomery Court of Appeals

Jeffery Riley v. State of Tennessee
M2023-01395-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Commissioner James A. Haltom

A pro se litigant brought suit against the State of Tennessee in the Tennessee Claims Commission, where his suit was dismissed for a lack of jurisdiction and a failure to abide by the statute of limitations. We hold that the appellant has waived all issues on appeal by failing to set forth a legal argument, and we affirm the judgment of the Claims Commission.

Court of Appeals

In Re Josephine H. et al.
M2023-01362-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kathryn Wall Olita

This is a dependency and neglect case. Appellants/parents do not dispute the trial court’s finding that the children are dependent and neglected. Rather, the sole issue involves whether the trial court’s disposition, under Tennessee Code Annotated section 37-1-130, was made in compliance with section 37-1-130(c) and, if so, whether the placement of the children with their aunt was “best suited to the protection and physical, mental and moral welfare of the child[ren].” Tenn. Code Ann. § 37-1-130(a). Affirmed and remanded.

Montgomery Court of Appeals

Jeffrey L. Roberts v. Barry Lynn Carter, et al.
W2023-01316-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Bruce Irwin Griffey

This is an appeal concerning the application of the Tennessee Governmental Tort Liability Act, specifically to Tennessee Code Annotated sections 29-20-203, 29-20-204, and 29-20- 205 of the Act. At issue is the trial court’s entry of summary judgment dismissing the plaintiff’s claims against a county government for damages sustained from an automobile accident allegedly caused by the washout of a road maintained by the county. For the reasons stated herein, we conclude that the trial court erred in granting summary judgment regarding the plaintiff’s claims under Tennessee Code Annotated sections 29-20-203 and 29-20-204. As to certain holdings the trial court made with respect to the pursuit of relief pursuant to section 29-20-205, we do not disturb the action of the trial court inasmuch as the plaintiff effectively abandons any reliance on that particular Code section on appeal.

Benton Court of Appeals

Victoria C. Jensen v. Tyler C. Jensen
E2023-00315-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Pamela A. Fleenor

In this divorce action, the husband appeals the trial court’s (1) distribution of the marital estate; (2) award to the wife of modifiable transitional alimony; and (3) two awards to the wife of alimony in solido, one for half of what the court found to be assets dissipated by the husband and one for attorney’s fees incurred in prosecuting the divorce. The husband also appeals the trial court’s adoption of the wife’s proposed permanent parenting plan and a requirement that the husband attend in-person reunification therapy with the parties’ children in their home city of Chattanooga. Upon careful review, we determine that the trial court erred in failing to set a determinate time period for transitional alimony, and we accordingly modify the transitional alimony award to a five-year period. We affirm the trial court’s judgment in all other respects. Exercising our discretion, we deny the wife’s request for an award of attorney’s fees on appeal.

Hamilton Court of Appeals

In Re Amiyah W. Et Al.
M2024-00080-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Thomas C. Faris

This is a termination of parental rights case.  The trial court terminated Mother’s parental rights to the two minor children on the grounds of: (1) abandonment by failure to visit; (2) abandonment by failure to establish a suitable home; (3) substantial noncompliance with the permanency plans; (4) severe child abuse; (5) persistence of the conditions that led to the children’s removal; and (6) failure to manifest an ability and willingness to assume custody.  The trial court also determined that termination of Mother’s parental rights is in the children’s best interests.  As an initial matter, Mother asserts that, having surrendered her parental rights at the outset of the hearing (she later rescinded her surrender), the trial court was required to continue the hearing under Tennessee Code Annotated section 36-1-112. We hold that Tennessee Code Annotated section 36-1-112 does not require a trial court to either continue or delay a contested termination hearing when a parent surrenders his or her parental rights before or during the hearing.  We reverse the trial court’s termination of Mother’s parental rights on the ground of severe child abuse.  We affirm the trial court’s termination of Mother’s parental rights on all remaining grounds and on its finding that termination of Mother’s parental rights is in the children’s best interests.

Franklin Court of Appeals