COURT OF APPEALS OPINIONS

Dr. Roland W. Pack ET AL. v. Freed-Hardeman University
W2021-00311-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge James F. Butler

This is a breach of contract action brought by two tenured university professors for
wrongful termination in violation of their respective contracts of employment and the
university’s tenure policy. The university denied breaching the contracts or its tenure
policy. It insists the elimination of the tenured faculty appointments was based on two
permissible grounds, “financial distress” and the “bona fide reduction or discontinuance of
a program or department of instruction.” The trial court found the university proved both
grounds and dismissed the complaints. It also found the university complied with other
relevant provisions of the tenure policy. This appeal followed. We affirm.

In Re Serenity M., Et Al.
E2022-01167-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Raymond C. Conkin

This appeal concerns the termination of a mother’s parental rights. The Tennessee
Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for
Sullivan County (“the Juvenile Court”) seeking to terminate the parental rights of Andrea
A. (“Mother”) to her minor children Serenity M., Alfred M. (“Alfie”), Chloe M., and Zoey
M. (“the Children,” collectively).1 The Children’s father, A.M. (“Father”), surrendered his
parental rights and is not a party to this appeal. After a hearing, the Juvenile Court entered
an order terminating Mother’s parental rights to the Children on four grounds. Mother
appeals. DCS concedes the ground of abandonment by failure to provide a suitable home.
We vacate that ground. However, we find, as did the Juvenile Court, that the other three
grounds found—substantial noncompliance with the permanency plan, persistent
conditions, and failure to manifest an ability and willingness to assume custody—were
proven against Mother by clear and convincing evidence. We further find by clear and
convincing evidence, as did the Juvenile Court, that termination of Mother’s parental rights
is in the Children’s best interest. We affirm as modified, resulting in affirmance of the
termination of Mother’s parental rights to the Children.

Home Service Oil Company v. Thomas Baker
M2021-00586-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Louis W. Oliver

A judgment creditor petitioned to enroll and enforce a Missouri judgment under the Uniform Enforcement of Foreign Judgments Act. The judgment debtor opposed the petition claiming that the doctrine of laches prevented the judgment creditor from enforcing its judgment. Alternatively, the judgment debtor claimed that equitable estoppel prevented the judgment creditor from collecting the full amount remaining on the judgment. The trial court enrolled the judgment but agreed that equitable estoppel applied. We conclude that equitable estoppel does not apply. So we affirm the enrollment of the foreign judgment and vacate the trial court’s decision as to enforceability.

City of Covington v. Terrell Tooten
W2021-00946-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joe H. Walker, III

Appellant was found guilty of violating Tennessee Code Annotated section 55-8-199 for
alleged use of a handheld wireless telecommunication device while driving. The trial court
later dismissed the judgment against Appellant. Appellee City of Covington reached a
settlement with Appellant, Appellant’s driver’s license was reinstated, and the violation
was removed from his record. Accordingly, the legal controversy at the center of this case
has been extinguished, and this Court can offer no meaningful relief to the Appellant. As
such, the appeal is dismissed as moot.

In Re Korey L.
M2022-00487-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Sheila Calloway

Appellant/Father appeals the trial court’s termination of his parental rights to the minor child on the grounds of: (1) failure to establish a suitable home; (2) abandonment by wanton disregard; (3) persistence of the conditions that led to the child’s removal; (4) incarceration for a 10-year sentence; and (5) failure to manifest an ability and willingness to assume legal and physical custody of the child. The trial court failed to make sufficient findings to support the grounds of: (1) failure to establish a suitable home; (2) abandonment by wanton disregard; and (3) failure to manifest an ability and willingness to assume legal and physical custody of the child. Tenn. Code Ann. § 36-1-113(k). Accordingly, we reverse the termination of Father’s parental rights on those grounds. We affirm the trial court’s termination of Father’s parental rights on the remaining grounds and on its finding that termination of Father’s parental rights is in the child’s best interest.

Brad Coen v. Myra (Coen) Horan
W2019-00404-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Carma Dennis McGee

The mother of the parties’ only child filed a pro se appeal of the trial court’s order granting
the father’s Petition to Allow Relocation and for Modification of the Parties’ Permanent
Parenting Plan. The final order was entered on January 25, 2019, and the mother filed a
timely Notice of Appeal; however, the technical record was not filed with this court until
three years later, on June 7, 2022. While the mother’s pro se appellate brief was timely
filed, her brief is profoundly deficient for it fails to comply with Rule 27(a) of the
Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals
of Tennessee in many material respects. Specifically, her Statement of the Case and
Statement of Facts are littered with a series of assertions unrelated to the merits of this
appeal, and she fails to provide the requisite citations to the record as required by Rule
27(a)(6) of the Tennessee Rules of Appellate Procedure. Further, her brief fails to set forth
relevant arguments with respect to the issues presented as required by Rule 27(a) of the
Tennessee Rules of Appellate Procedure, and the few citations to legal authorities she
provides are not on point. Based on her failure to comply with Rule 27(a)(7) of the
Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals
of Tennessee, Mother has waived her right to an appeal. Accordingly, this appeal is
dismissed.

Dover Signature Properties, Inc. v. Customer Service Electric Supply, Inc.
E2022-00461-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor John F. Weaver

The appellant, the developer of a senior living facility in Knoxville, appeals the trial court’s
determination that it breached a joint check agreement that included itself, an electrical
subcontractor, and an electrical supplier as signatories. Although the appellant had initially
denied executing the joint check agreement and had expressed a lack of awareness of the
electrical supplier’s involvement with the subcontractor and senior living project, it
ultimately acknowledged during litigation that its controller had signed the joint check
agreement and that the supplier’s materials were incorporated into the project. The proof
at trial revealed that, notwithstanding its execution of the joint check agreement, the
appellant never issued a joint check that would assure that the supplier received payment.
Instead, the appellant paid only the subcontractor who failed to pay the supplier. Herein,
we affirm the trial court’s judgment awarding the supplier relief against the appellant.

City of Memphis v. George Edwards by and through Elizabeth W. Edwards
W2022-00087-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor JoeDae L. Jenkins

Appellant City of Memphis appeals the dismissal of its petition for judicial review of the
ruling of an administrative law judge. The trial court dismissed the appeal on the ground
that the City failed to provide the entire administrative record. Despite profound
deficiencies in the City’s brief, the dispositive issue is one of law and involves only the
question of whether the trial court should have proceeded with its review on the partial
administrative record. Because our review is de novo on questions of law, we exercise our
discretion under Tennessee Rules of Appellate Procedure 2 and 13(b) to proceed with
adjudication of the appeal on the merits. We conclude that the trial court should have
proceeded with its review on the partial administrative record; as such, we reverse the trial
court’s dismissal of the appeal and remand for further hearing.

City of Memphis v. George Edwards by and through Elizabeth W. Edwards -Dissent
W2022-00087-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor JoeDae L. Jenkins

There is much in the Majority Opinion with which I agree. But on one significant
question I must respectfully dissent: whether this Court should excuse the City’s failure to
brief a threshold issue.

Collin C. ET AL., By Next Friend Holly Craft v. Michael Steven Tutor
W2023-00153-COA-R3-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Felicia Corbin-Johnson

A Tennessee Supreme Court Rule 10B petition for recusal appeal was filed in this Court
following the denial of a motion that sought the trial court judge’s recusal from the case.
Herein, we affirm the trial court’s denial of the recusal motion.

Brandon K. Anderson v. Lauderdale County, Tennessee
W2022-00332-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge A. Blake Neill

Plaintiff filed an action against Lauderdale County under Tenn. Code Ann. § 8-8-301 to -
303, more than one year after his cause of action accrued. The trial court examined the
gravamen of the complaint and determined a one-year statute of limitations applied rather
than the two or six-year limitations periods advocated for by the plaintiff. Discerning no
error in the court’s analysis of the issues, we affirm.

In Re Dixee D. Et Al.
M2022-00785-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Stella L. Hargrove

A father appeals the termination of his parental rights to two children. The trial court concluded that the maternal aunt and uncle proved two statutory grounds for termination by clear and convincing evidence. The court also concluded that there was clear and convincing evidence that termination was in the children’s best interest. After a thorough review, we agree and affirm.

Gary Miller v. Barbara Miller
W2022-00117-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Vicki Hodge Hoover

A member of a limited liability company (“LLC”) brought a suit on behalf of the LLC
alleging a breach of fiduciary duties and constructive fraud by another member in regard
to transfers of LLC property. The plaintiff admitted that no demand for corrective action
was made on the defendant, nor was any demand made on the other members of the LLC
to join in the litigation. The trial court granted the defendant’s motion to dismiss, finding
both that the plaintiff’s complaint was outside the statute of limitations and that the plaintiff
lacked standing to bring the derivative action. We agree with the trial court that the
plaintiff’s complaint was subject to dismissal because his complaint did not include
allegations sufficiently particular to excuse his failure to meet statutory demand
requirements. The remaining issues are therefore pretermitted.

Lawrence Simonetti Et Al. v. Thomas F. McCormick Et Al.
M2022-01669-COA-T10B-CV
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Judge Joseph P. Binkley, Jr

Following a hearing on the issue of attorney’s fees resulting from a discovery dispute, the trial judge or his office contacted an attorney for the defendants to obtain certain discovery responses that had not been filed with the court. The defendants’ attorney responded by email with the requested documents, carbon-copying plaintiffs’ counsel on the email. The trial court then entered an order awarding the plaintiffs attorney’s fees in which the fees awarded were only a small portion of those requested. The plaintiffs filed a motion to recuse, citing the communication between the defendants’ attorney and the trial judge. The trial court denied the motion for recusal. We agree with the trial court’s ultimate conclusion that recusal was not required.

In The Matter Of The Conservatorship Of Mary Ann Tapp/ In Re Mary Ann Tapp Living Trust Dated August 10, 2015
W2021-00718-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor William C. Cole

This appeal arises from a conservatorship proceeding in which the appellants filed a complaint to set aside a trust established by the ward, along with a motion to recuse the trial judge. The trial judge entered orders dismissing the complaint, resolving various other matters, and closing the conservatorship, without entering any order mentioning the motion for recusal. We vacate the orders entered by the trial court while the recusal motion remained pending and remand for further proceedings before a different trial judge.

In Re: Aurelia S.
M2022-01184-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Stella L. Hargrove

A mother appeals the termination of her parental rights. Because the mother did not file her notice of appeal within thirty days after entry of the final judgment as required by Tennessee Rule of Appellate Procedure 4(a), we dismiss the appeal.

In Re Jimmy H. Et Al.
M2021-01353-COA-R3-PT
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Judge Vanessa Jackson

Mother appeals from the termination of her parental rights on the ground that she was not properly served with the termination petition. Because the record raises substantial questions as to whether the Tennessee Department of Children’s Services exercised diligence in its attempt to locate and serve Mother with process, we vacate the termination of her parental rights and remand for further proceedings.

In Re Lyrical T. Et Al.
E2022-00457-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Michael E. Jenne

This is a termination of parental rights case. The mother and father appeal the trial court’s
order terminating their parental rights, arguing that there was not clear and convincing
evidence to support termination. For the reasons discussed herein, we affirm.

In Re Estate of Richadean Greer Wilson
W2021-00862-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Kathleen N. Gomes

This appeal involves a dispute over a testamentary trust, which was established by the will
of the decedent’s husband. Upon her husband’s death, the decedent became a life income
beneficiary of the trust. Upon the decedent’s death, the corporate trustee distributed the
remaining corpus in equal shares to the remainder beneficiaries, which were two nieces of
the decedent’s husband and a nephew of the decedent. The plaintiffs in this case—a niece
and the surviving spouse of the other niece—filed a complaint to set aside the probate of
the decedent’s will and for an accounting of distribution of trust assets. They alleged that
the decedent’s will should be declared null and void for various reasons. They also alleged
that the testamentary trust was improperly invaded by the decedent’s nephew. However,
the plaintiffs later sought to voluntarily dismiss their complaint insofar as it pertained to
setting aside the probate of the decedent’s will, which the probate court granted. They then
amended their complaint and no longer contested the will. Instead, they alleged, among
other things, that the corporate trustee failed to prevent the improper invasion of the
testamentary trust, thereby breaching its fiduciary duties. The corporate trustee filed a
motion to dismiss for failure to state a claim upon which relief can be granted pursuant to
Tennessee Rule of Civil Procedure 12.02(6). Ultimately, the probate court granted the
motion finding that the plaintiffs lacked standing to bring their claims against the corporate
trustee of the testamentary trust. The court explained that the plaintiffs were neither
beneficiaries under a will of the decedent nor heirs at law entitled to take in the decedent’s
estate through intestate succession. The court further explained that the testamentary trust
was never a part of the decedent’s estate and that the plaintiffs could have brought their
claims in the estate that created the testamentary trust, which was the estate of the
decedent’s husband. Additionally, because the court found that Plaintiffs lacked standing,
it found that it lacked subject matter jurisdiction. The court denied the plaintiffs’ motion
to transfer the case to the estate of the decedent’s husband finding that it had no authority
to transfer the case to a closed estate in its court. The plaintiffs appeal. We affirm the
decision of the probate court and remand for further proceedings consistent with this
opinion.

St. Paul Community Limited Partnership et al. v. St. Paul Community Church n/k/a Green Hills Community Church
M2021-01548-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Patricia Head Moskal

This third appeal in a long-running landlord/tenant dispute presents the question of the proper amount of an attorney’s fees award. The tenant, John T. Rochford, III, and several business entities owned or controlled by Mr. Rochford (collectively “Rochford”), sued the church now known as Green Hills Community Church (“Church”), claiming among other things that Church breached a lease agreement. Following a second appeal in which this Court held that an award of attorney’s fees in favor of Church was warranted, the trial court awarded Church $343,535.07 in attorney’s fees and expenses, which reflected a rate of $295 per hour. The trial court declined Church’s request for 10% yearly interest starting from the date of the filing of the complaint, July 30, 2015, finding it unwarranted by the terms of the lease. Church appeals, arguing that it should have been awarded attorney’s fees at a rate of $450 per hour and interest. We affirm.

Arthur Ray Nicely Et Al. v. Jarrod W. Atkins
E2022-00418-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This appeal concerns access to a spring on rural land. Arthur Ray Nicely and Henrietta
Nicely (“Plaintiffs,” collectively) sued Jarrod W. Atkins (“Defendant”) in the Chancery
Court for Grainger County (“the Trial Court”) seeking to establish the boundary line
between their respective properties. After a hearing, the Trial Court accepted the opinion
of Defendant’s surveyor as to the boundary line. The spring at issue was determined to be
on Defendant’s land, but the Trial Court also found an easement by implication whereby
Plaintiffs may use water from the spring. Defendant appeals the Trial Court’s finding of
an easement by implication. We find that, while separation of title was proven, the other
elements of an easement by implication, prior use and necessity, were not proven.
Plaintiffs failed to prove any obvious, permanent, or long-established practice of their tract
using water from the spring.

Keith Cousins v. Hutton Construction, Inc. Et Al.
E2021-01251-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Jeffrey M. Atherton

This is an employment contract dispute involving the interplay of a paid sick leave provision and a bonus compensation provision. The appellant, Keith Cousins (“Cousins”), was hired by a real estate business in 2017. He signed a two-year contract which included provisions for salary, bonuses, and paid sick leave. After being with the defendant company for only a few weeks, Cousins suffered a major heart attack and, ultimately, never returned to work. A dispute regarding his compensation arose and in July of 2017, Cousins filed suit against his former employer for, inter alia, breach of contract. The trial court determined that the company breached Cousins’ contract and awarded him some damages, but not the full balance of the two-year contract as Cousins requested. Both Cousins and the company appeal. We affirm in part, reverse in part, and vacate in part. The case is remanded for further proceedings.

Jim Sanders v. AM Used Auto Parts, LLC
E2022-00479-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

This case concerns service of process on an out-of-state defendant’s registered agent by
mail and a subsequently entered default judgment in the general sessions court. The
defendant moved under Tenn. R. Civ. P. 60.02 to set aside the default judgment based on
insufficient service of process. The defendant also asserted that the default judgment was
void because the general sessions court awarded a judgment greater than the amount prayed
for in the summons. The circuit court found service was valid and upheld the default
judgment in all respects. We agree that service was sufficient and could serve as a basis
for default judgment under Tenn. Code Ann. § 16-15-904(e); however, we reduce the
amount of the judgment to conform with the amount the plaintiff requested in the summons.
The trial court’s judgment is affirmed as modified.

Guillermo Ramos v. Mellanie Caldwell
M2022-00222-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Kathryn Wall Olita

A father filed a petition seeking, in addition to a modification of child support, a judgment
for past overpaid support. The father asserted that mother, without his knowledge, had
received for a period of time double child support payments as a result of payments being
taken directly from his paycheck and also being paid through electronic funds transfers that
he remitted directly to mother. While prevailing as to child support modification, the trial
court denied the father’s claim for overpayment of child support. The trial court concluded
his claim was barred by res judicata and, also, a directed verdict on this matter was
warranted due to the father’s failure to present certain critical evidence in support of his
claim. Father appealed the court’s decision barring his claim due to res judicata, but he
did not challenge on appeal the trial court’s granting of a directed verdict in connection
with failure to present evidence to support his claim. As a result of the appellant’s failure
to challenge an independent alternative basis for the trial court’s decision on appeal, we
affirm the decision of the trial court.

Conserv Equipment Leasing, LLC v. Schubert Enterprises, LLC, Et Al.
E2022-00535-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Ronald Thurman

The defendants in this action failed to timely answer the plaintiff’s complaint.  Upon the plaintiff’s motion, the trial court entered judgment by default against the defendants.  The defendants moved to set aside the default judgment.  The trial court denied the motion to set aside.  Because the trial court’s order lacked findings of fact and conclusions of law to explain its ruling, we vacate the trial court’s determination and remand for sufficient findings of fact and conclusions of law to facilitate appellate review.