COURT OF APPEALS OPINIONS

Angela Askew v. Nicholas Askew
W2023-01700-COA-R3-CV
Authoring Judge: Per Curium
Trial Court Judge: Judge Mary L. Wagner

The notice of appeal in this case was not timely filed. Therefore, this Court lacks
jurisdiction to consider this appeal. The appeal is dismissed.

Henri Etta Brooks v. State of Tennessee
W2022-01340-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Commissioner James A. Hamilton, III

The Claims Commissioner dismissed the claimant’s claim due to lack of subject matter
jurisdiction. Discerning no error, we affirm.

In Re Nation F.
W2023-00510-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John W. Whitworth

This is a termination of parental rights case. The trial court terminated Mother’s and
Father’s parental rights on the ground of severe child abuse, and on its finding that
termination was in the child’s best interest. The trial court also terminated Father’s rights
on the additional ground that he was sentenced to incarceration for more than ten years
when the child was under eight years of age. Mother and Father appeal. Discerning no
error, we affirm.

Auxin, LLC et al. v. DW Interests, LLC et al.
M2022-01087-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Jonathan L. Young

This appeal concerns a claim for declaratory judgment and counterclaims for intentional misrepresentation and breach of contract arising from a series of agreements related to the development of a hotel and conference center in Cookeville, Tennessee. The developed property was to be owned by a limited liability company, and the plaintiffs sought a declaration that they had a right to buy the defendants’ interest in that company pursuant to an option in the operating agreement, which was to become effective upon a determination that the hotel project could not be completed with two identified, adjoining pieces of property. For their part, the defendants sought awards of compensatory and punitive damages based on allegations that the plaintiffs misrepresented their ability and intent to assist with financing and development tasks and then failed to perform those tasks as required by the parties’ development agreement. After the defendants filed their answer and counter-complaint, the plaintiffs moved for judgment on the pleadings based, in principal part, on the “undisputed” fact that the real estate purchase agreement for one of the two development properties had terminated. The plaintiffs also moved to dismiss the defendants’ intentional misrepresentation counterclaim for failure to state the allegations of fraud with particularity. But after the motions were filed and before they were heard, the defendants filed an amended answer with leave of the court in which they denied that the real estate purchase agreement had been properly terminated and asserted more particularized facts in support of their misrepresentation counterclaim. Nonetheless, the trial court granted the plaintiffs’ motions, declared that the real estate purchase agreement had been terminated, and dismissed the misrepresentation counterclaim. The plaintiffs then filed a motion to dismiss or for summary judgment on the remaining counterclaim for breach of contract, along with a motion for judicial notice of several public records. The trial court granted the motion under Rule 12.02 and, in the alternative, Rule 56. The defendants appeal. We vacate the trial court’s ruling that the plaintiffs were entitled to judgment on the pleadings because the defendants denied that the real estate purchase agreement had been properly terminated. But we affirm the dismissal of the misrepresentation counterclaim because the defendants failed to allege facts to establish the elements of their claim. We also affirm the trial court’s denial of the motion to continue because the record shows that the defendants were dilatory in prosecuting their contract claim. But we disagree with the court’s decision to take judicial notice of two newspaper articles, and we vacate the trial court’s ruling that the plaintiffs were entitled to dismissal of the contract counterclaim under Rule 12.02 and Rule 56. Thus, the decision of the trial court is vacated in part and affirmed in part, and this matter is remanded for further proceedings consistent with this opinion.

J.E. Allen Company, LLC v. Progress Construction Inc., ET AL.
W2022-00648-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor JoeDae L. Jenkins

An owner and a contractor executed a standard form construction agreement. The contract
identified the “Contractor” as a corporation and two individuals. Only one of the individuals
signed the contract, but he did so as president of the corporation. After a dispute arose with
a supplier, the owner filed a third-party complaint against the individual who signed on
behalf of the corporation. The individual moved to dismiss and/or for judgment on the
pleadings, arguing that he was not a party to the contract. The court agreed and dismissed
the claims against him with prejudice. We reverse.

Marvin L. Miller v. City of LaFollette et al.
E2023-00197-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Elizabeth C. Asbury

The genesis of this case lies in the investigation into a city’s police department and subsequent termination of the appellant, a former police department employee. After the appellant was terminated, his counsel sent a public records request to the city, one of the appellees herein, pursuant to the Tennessee Public Records Act. Through this public records request, the city was asked for copies of, among other things, “investigative material” related to the appellant. Although some records were initially produced in response to the public records request, other records were not provided until after litigation was initiated by the appellant in chancery court. Certain “investigatory” records that had formerly been in the possession of an attorney hired by the city to investigate the police department were not ever produced. Although the parties dispute whether such “investigatory” records would be subject to disclosure under the Tennessee Public Records Act, such records had, according to the findings of the chancery court, been destroyed by the time the city received the public records request at issue herein. Upon the conclusion of the trial litigation, the chancery court also found that “all requested documents that exist had been provided” and determined that the city “did not willfully refuse to disclose documents and records.” In light of its determination that the city did not act willfully, the chancery court held that attorney’s fees would not be awarded in this case. For the reasons stated herein, the chancery court’s judgment is affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with this Opinion.

William J. Needham et al v. Robert G. Gerwig II
E2023-00394-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge John B. Bennett

In this personal injury case, Appellants, Husband and Wife, alleged that Appellee’s dog collided with Husband’s bicycle causing him to crash and sustain injuries. The trial court granted summary judgment in favor of Appellee dog owner, finding that Appellants failed to meet their burden to show that Appellee’s dog was involved in the accident. Discerning no error, we affirm and remand.

Jessica Neal v. Patton & Taylor Enterprises, LLC
W2022-01144-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James F. Russell

This appeal arises from a single-car accident in which the vehicle crashed into a fence,
dumpster, and construction materials in the far-right lane of a city street. The plaintiff,
who was sitting in the front passenger seat of the vehicle at the time of the accident,
executed a release with the driver and the driver’s insurance company. The plaintiff
subsequently filed a complaint against the construction company who placed the
construction materials on the street, alleging negligence and negligence per se. The
defendant filed a motion for summary judgment. The trial court granted the motion on the
ground that the claim against the defendant was precluded by the release. The plaintiff
appealed. We reverse and remand for further proceedings consistent with this opinion.

Jason Britt v. Richard Jason Usery, et al.
W2022-00256-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Donald H. Allen

The Plaintiff hired the Defendant to build a concrete foundation for his new home. The
foundation was allegedly defective. The Plaintiff hired a third party to remove the concrete
and to properly complete the work. The Plaintiff then sued the Defendant, alleging breach
of contract, negligent construction, and fraud. The case languished for several years. The
trial court ordered the Plaintiff to provide dates on which the Defendant could inspect
certain evidence, but the Plaintiff failed to comply. The trial court then orally granted the
Defendant’s motion to dismiss with prejudice for failure to prosecute. Before the trial court
entered a written order, the Plaintiff filed a notice of voluntary dismissal. The trial court
concluded that the Plaintiff’s notice was untimely submitted, coming after the oral ruling
granting the motion to dismiss, and entered a written order dismissing the Plaintiff’s case
with prejudice for failure to prosecute. Concluding that the Plaintiff maintained his right
to a voluntary dismissal under Tennessee Rule of Civil Procedure 41.01(1), we reverse.

State of Tennessee, ex rel., William Goetz v. Donel Autin, et al
W2023-01385-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Rhynette N. Hurd

The notice of appeal in this case was not timely filed. Therefore, this Court lacks
jurisdiction to consider this appeal. The appeal is dismissed.

Lee Ardrey Harris v. Alena Marie Allen
W2023-01794-COA-T10B-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor JoeDae L. Jenkins

The appellant is the Mayor of Shelby County. He filed a complaint for divorce, and the
Shelby County chancellor originally assigned to the case recused herself. The case was
reassigned to another Shelby County chancellor who accepted the case. Six months later,
the appellant filed a motion to recuse the chancellor based on the Mayor’s budgetary duties
regarding Shelby County government, including the chancery court and the chancery court
clerk. The chancellor denied the motion, finding that it was not filed promptly in
accordance with Tennessee Supreme Court Rule 10B. We affirm.

In Re Gabrella T.
W2023-00317-COA-R3-JV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Damita J. Dandridge

Syeda C. (“Mother”) and Hosea T. (“Father”) (Mother and Father collectively, “Parents”) are the biological parents of Gabrella T. (the “Child”).  The Tennessee Department of Children’s Services (“DCS”) petitioned the Juvenile Court of Memphis and Shelby County (the “Juvenile Court”) for an adjudication that the Child was dependent and neglected in the care of Parents and for an award of temporary legal custody of the Child to DCS.  The Juvenile Court granted DCS’s petition, adjudicated the Child dependent and neglected, and awarded temporary legal custody of the Child to DCS.  Mother appealed the Juvenile Court order to the Shelby County Circuit Court (the “Circuit Court”).  Mother failed to appear at the hearing in the Circuit Court on her appeal; upon oral motion made by DCS, the Circuit Court dismissed Mother’s appeal.  Mother now appeals to this Court.  Upon thorough review of the record, we affirm the judgment of the Circuit Court.

State of Tennessee v. Christopher Laron Matthews
M2022-01170-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Stella L. Hargrove

Christopher Laron Matthews, Defendant, appeals the trial court’s consecutive alignment of twelve-year sentences for sale of methamphetamine in Case No. 27504 and Case No. 27505 for an effective twenty-four-year sentence. The trial court based the consecutive sentencing on its finding that Defendant was an offender whose record of criminal activity was extensive. We affirm.

Erica Wayne Barton v. Mechelle Scholmer Barton
E2022-01574-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This is an appeal of a trial court’s valuation of a marital asset, division of a marital estate, and award of alimony in solido as a result of the divorce of Eric Wayne Barton (“Husband”) and Mechelle Scholmer Barton (“Wife”). In its 2018 Final Judgment of Divorce (“2018 Judgment”), the Chancery Court for Blount County (“the Trial Court”) found that Husband’s 100% interest in Vanquish Worldwide, LLC, (“Vanquish Worldwide”) was marital property and that Vanquish Worldwide’s outstanding claim for potentially $32 million against the U.S. Government (“Government Claim”) was marital property. The Trial Court accordingly awarded to Wife a portion of the Government Claim. In Husband’s first appeal, this Court reversed the Trial Court’s finding that the Government Claim was marital property and its awarded portion to Wife. This Court, concluding that the Government Claim was nevertheless relevant to an accurate valuation of Vanquish Worldwide and the total value of the parties’ marital business interests, instructed the Trial Court on remand to revalue Vanquish Worldwide, and in doing so, to consider the Government Claim. On remand, the Trial Court found that Husband had dissipated $12.375 million of the Government Claim proceeds by using the funds to satisfy a personal judgment against him. The Trial Court accordingly added the dissipated $12.375 million to its $4 million valuation of Vanquish Worldwide. Husband has appealed, contesting the Trial Court’s consideration of the Government Claim proceeds in its valuation of Vanquish Worldwide, as well as its overall division of the marital estate, award of alimony in solido, and placement of a lien and an assignment in trust to Wife on Husband’s ownership interests in his numerous LLCs, including Vanquish Worldwide. We affirm the Trial Court’s finding that Husband dissipated marital property and its valuation of Vanquish Worldwide but modify the Trial Court’s judgment to the extent it awarded interest on Wife’s award of alimony in solido. The balance of the Trial Court’s judgment is affirmed, including its division of the marital estate and award of alimony in solido to Wife. We further decline to award Wife attorney’s fees on appeal.

In Re Sebastian O.
E2023-00439-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Sharon M. Green

Mother appeals the termination of her parental rights based on Tennessee Code Annotated section 36-1-113(g)(14). Discerning no reversible error, we affirm.

The Metropolitan Government of Nashville & Davidson County, et al. v. Tennessee Department of Education, et al.
M2022-01786-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Anne C. Martin; Judge Tammy M. Harrington; Judge Valerie L. Smith

This appeal concerns a lawsuit challenging the Tennessee Education Savings Account Pilot Program, Tenn. Code Ann. § 49-6-2601, et seq. (“the ESA Act”). A group of parents and taxpayers from Davidson and Shelby Counties (“Plaintiffs”) sued state officials (“State Defendants”) in the Chancery Court for Davidson County (“the Trial Court”). In their operative amended complaint, Plaintiffs alleged that the ESA Act violates the Tennessee Constitution and state law by diverting taxpayer funds appropriated for public schools in Davidson and Shelby Counties to private schools, resulting in unique harm to these localities. A group of parents with children eligible for the ESA Act (“Bah Defendants”) and another group (“Greater Praise Defendants”) (all defendants collectively, “Defendants”) intervened in defense of the ESA Act. Defendants filed motions to dismiss, which the Trial Court granted on grounds that Plaintiffs lack standing and their claims are not ripe for judicial review. In reaching its decision, the Trial Court found that the ESA Act has not caused the affected counties any unequal hardship. Plaintiffs appeal the dismissal of their first, second, and sixth causes of action only. We conclude that the Trial Court erred by deciding factual disputes over the impact of the ESA Act on Plaintiffs at the motion to dismiss stage. Plaintiffs alleged enough in their amended complaint to establish standing both as parents and taxpayers. Plaintiffs’ claims also are ripe for judicial review. We, therefore, reverse the judgment of the Trial Court as to Plaintiffs’ first, second, and sixth causes of action and remand for further proceedings consistent with this Opinion.

Maryclair McDonald v. Kaleb Coffel
E2022-01569-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael Jenne

In this action initiated by the mother to modify the parties’ permanent parenting plan for their minor child, the trial court limited the father’s co-parenting time to include no overnight visitation with the child after finding by a preponderance of the evidence that the father had committed domestic abuse against two women whom he had previously dated. The trial court relied on Tennessee Code Annotated § 36-6-406 to restrict the father’s parenting time based on its determination that the father’s acts of domestic violence and hostility toward women had a negative effect on his ability to effectively parent the minor child. The father appealed, but this Court dismissed that appeal because the trial court’s order was not a final judgment. See McDonald v. Coffel, No. E2021-00460-COA-R3-CV, 2021 WL 4958475 (Tenn. Ct. App. Oct. 26, 2021). On remand, the trial court addressed all pending matters and entered a final judgment, keeping in place the residential co-parenting schedule limiting the father’s parenting time to exclude overnight visitation. The father has again appealed, arguing that the trial court abused its discretion by denying him overnight co-parenting time and by relying on Tennessee Code Annotated § 36-6-406. Discerning no reversible error, we affirm.

Sarah Elizabeth Parker v. Kenton Stone Parker
E2022-00644-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Chancellor E.G. Moody

In this divorce appeal, the husband challenges the trial court’s classification of real estate as marital property. Following a thorough review of the record, we affirm the judgment of the trial court.

Edward Ronny Arnold v. Allstate Insurance Company
M2023-00536-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Lynne T. Ingram

While a prior lawsuit was still pending on appeal, the Plaintiff filed a nearly identical lawsuit. The trial court dismissed this second suit based on res judicata. Although the second suit was not barred by res judicata because the first suit was not final for res judicata purposes, we nevertheless affirm the dismissal on the basis of the prior suit pending doctrine.

Hamid Houbbadi v. Kennedy Law Firm, PLLC et al.
M2022-01166-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Kathryn Wall Olita

The plaintiff filed an action for breach of contract and fraud against his former attorneys and the attorneys’ law firm. The defendants moved for a judgment on the pleadings, arguing that the plaintiff failed to state a claim for which relief can be granted, and that the action was untimely. The trial court granted the defendants’ motion, and, having determined that the plaintiff’s action is untimely under Tennessee Code Annotated section 28-3-104(c)(1), we affirm.

Pamela Salas v. John David Rosdeutscher et al.
M2021-00449-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kelvin D. Jones

Plaintiff’s attorneys appeal the trial court’s imposition of sanctions against them in the amount of $68,617.28 and the denial of their second motion to disqualify the trial court judge. We affirm the trial court’s discretionary decision to impose sanctions, but we vacate the amount of sanctions awarded and remand for the trial court to calculate the reasonable amount of monetary sanctions in keeping with the procedures and considerations outlined in this opinion. We have determined that Plaintiff’s attorneys’ issue regarding the trial court’s denial of their second motion to recuse is moot. Finally, we decline to award attorney’s fees on appeal.

In Re Lyrik L.
M2023-00276-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Ronald Thurman

This appeal arises from a pending petition for termination of parental rights and adoption. Two weeks after the maternal grandparents commenced their action to terminate the parental rights of the mother of their grandchild (the father being deceased), the paternal grandparents (“the Intervenors”) filed a motion to intervene for the purpose of filing a competing petition for adoption and termination of parental rights; they also sought to set aside an order granting permanent guardianship over the child to the maternal grandparents previously issued by the juvenile court in a separate proceeding. The Intervenors also filed a motion for leave to intervene for the purpose of filing a petition for grandparent visitation. The maternal grandparents opposed all relief sought by the Intervenors. The trial court denied the motion to set aside the juvenile court’s order of permanent guardianship for lack of jurisdiction, and it denied the motion to intervene for purposes of adoption on the ground that the Intervenors lacked standing because they did not meet the definition of prospective adoptive parents under Tennessee Code Annotated § 36-1-102(44). However, the court granted their motion to intervene for the purpose of grandparent visitation. The Intervenors appeal the denial of the motion to intervene for purposes of adoption, and the maternal grandparents appeal the order granting the Intervenors leave to intervene for the purpose of grandparent visitation. We have determined that the Intervenors have standing to file a petition for adoption and termination of parental rights; thus, we reverse the trial court’s ruling on that issue. We affirm the trial court in all other respects.

John Schmeeckle v. Brittany Dekreek et al.
E2023-01297-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Kyle E. Hedrick

This is an appeal from a final order entered on July 19, 2023. The Notice of Appeal was not filed with the Appellate Court Clerk until September 7, 2023, more than thirty days from the date of entry of the order from which the appellant is seeking to appeal. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

Larry King, et al. v. Town of Selmer, Tennessee
W2023-00390-COA-R9-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge J. Weber McCraw

In this Tennessee Rule of Appellate Procedure 9 interlocutory appeal, we address whether
the trial court erred in denying Appellant Town’s motion for summary judgment on
Appellees’ negligence and joint-venture claims. We conclude that the public-duty doctrine
shields the Town from liability, and the special-duty exception does not apply.
Furthermore, Appellees’ “joint venture” claims are simply additional negligence claims
seeking to hold Appellant Town liable for the alleged negligence of other defendants.
Because the Tennessee Legislature has not waived governmental immunity under such
circumstances, Appellant Town’s immunity was never removed as to the “joint venture”
claims. As such, the trial court erred in denying Appellant Town’s motion for summary
judgment as to Appellees’ negligence and “joint venture” claims.

Roger Noble Et Al. v. Jerry Gray Et Al.
E2022-01356-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Melissa Thomas Willis

Five easement holders filed suit against two other easement holders and the servient estate owners seeking a declaratory judgment regarding whether the easements could be used for commercial logging activities. The trial court concluded that commercial logging activities were not a permissible use of the easements and entered an order restraining and enjoining use of the easements for such activities. Discerning no error, we affirm.