COURT OF APPEALS OPINIONS

In Re Brooklyn M.
M2023-00024-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Louis W. Oliver, III

A father and stepmother appeal from an order dismissing their petition to adopt a child and to terminate the mother’s parental rights. The trial court held that the evidence presented supported termination of the mother’s parental rights based on her failure to support and failure to visit the child. However, the trial court found that the alleged ground of failure to manifest an ability and willingness to personally assume custody or financial responsibility of the child had not been proven. The court also found that termination of the mother’s rights was not in the child’s best interest. We affirm.

Paul Plofchan v. James Hughey Et. Al.
M2021-00853-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Thomas W. Brothers

A man sued his arresting officers and others.  He claimed he was neither drunk nor violent when he was arrested and charged with public intoxication, resisting arrest, and assault on an officer.  During discovery, the man claimed to have no communications between him and a companion that were not protected by attorney-client privilege or as work product.  When such communications were uncovered, the defendants moved for sanctions and attorney’s fees.  The trial court awarded attorney’s fees to the defendants and the companion.  And it dismissed the case as a sanction.  Discerning no abuse of discretion, we affirm.

Flexibility Capital, Inc. v. Sabatino Cupelli, Et Al.
E2023-00335-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Kyle E. Hedrick

This is a breach of contract case involving the defendants’ purported failure to pay amounts
owed under a Future Receivables Sale and Purchase Agreement. Due to Appellant’s failure
to file a timely notice of appeal, we do not reach the substantive issues and dismiss the
appeal

Unifirst Corp. v. Indus. Fabrication & Repair, Inc. et al.
M2022-00625-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

This appeal arises from confirmation of an arbitration award. The appellants objected to confirmation, arguing that they lacked notice of the arbitration. One of the appellants also claimed that it never agreed to arbitrate. The winning party submitted that the objections were untimely and did not state a cognizable ground for vacatur under the Federal Arbitration Act. We vacate and remand.

Anderson Poured Walls, Inc. v. Gilbert Clark et al.
E2022-01271-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This appeal concerns a subcontractor’s claims for non-payment. The trial court dismissed the claim for unjust enrichment against defendant Clark, the home owner, as not ripe because the plaintiff subcontractor had not exhausted its remedies against the party with whom it had contracted. The plaintiff appeals. We affirm.

Masquerade Fundraising Inc. v. Patrick Horne et al.
E2022-00927-COA-R9-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

The plaintiff corporation filed this action against the defendant independent contractors, alleging, inter alia, that the defendants violated their contracts and covenants not to compete. We granted this interlocutory appeal in which the defendants request review of the trial court’s denial of their motion in limine to exclude an email sent to defense counsel that contains privileged information. The email was inadvertently attached as an exhibit on two separate briefs filed with the court by defense counsel and then repeatedly referenced by defendants in later briefs in response to a motion to disqualify counsel and for sanctions. The trial court held that the repeated disclosure of the email operated as a waiver of the attorney-client privilege. We affirm the trial court.

Diane Mauriello v. Branch Banking and Trust Company
E2023-00098-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Elizabeth C. Asbury

The plaintiff in this action, alleging mutual mistake, sought rescission and nullification of a promissory note and deed of trust related to the plaintiff’s 2005 purchase of multiple parcels of unimproved real property. Upon the defendant bank’s counterclaim and motion for summary judgment, and following a hearing in which the plaintiff participated pro se after the court denied her motion for continuance, the trial court granted summary judgment in favor of the bank. The court dismissed the plaintiff’s complaint with prejudice and awarded a judgment to the bank in the amount of $306,392.14, inclusive of the principal owed on the promissory note, accrued interest at the time of the hearing, reasonable attorney’s fees, and expenses. The plaintiff has appealed. Discerning no
reversible error, we affirm.

Taylor Brocato (now Dunn) v. Kyle Young
M2023-00222-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Adrienne Gilliam Fry

This is a post-divorce partition action in which the ex-wife asked the trial court to order the sale of the former marital residence and to award her, as specified in the parties’ marital dissolution agreement (“the MDA”), half of the equity resulting from the sale. The ex-wife relied on the provision in the MDA, which provides that she is entitled to fifty percent of any equity in the former marital residence “when the house sells.” The ex-husband opposed the partition action, arguing that he was awarded the former marital residence pursuant to the MDA and that the ex-wife was only entitled to half of the equity valued as of the date of their divorce in 2019. The ex-husband also contended that the ex-wife’s claims were barred under the doctrine of equitable estoppel because he had remitted $6,600.00 in monthly payments toward the ex-wife’s equity pursuant to an oral agreement that set her equity interest at $9,750.00. The court granted the partition petition and ordered that the property be sold. The court also found that the MDA was a contract in contemplation of divorce; therefore, acting pursuant to Tennessee Code Annotated § 36-4-121(b)(2)(A) (“the Distribution of Marital Property Statute”), the court valued the ex-wife’s equity in the former marital residence based on an appraisal near the date of the final divorce decree. The trial court refused to credit the ex-husband for the payments he made to the ex-wife according to their alleged oral agreement, finding that to do so would be a violation of the statute of frauds. Both parties appeal. For the reasons explained below, the judgment of the trial court is reversed, and this matter is remanded for further proceedings consistent with this opinion.

Wanda Sue Averwater v. James Paul Averwater
M2020-00851-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Philip E. Smith

In this divorce, the trial court evenly divided the marital estate and denied the wife’s request for alimony. It also ordered wife to pay the attorney’s fees and costs of a third party. On appeal, the wife challenges the court’s decisions on multiple grounds. After a thorough review, we find that the court erred in not dividing the profit from a business the husband created during the pendency of the divorce as marital property. And the court erred in ordering the wife to pay attorney’s fees and costs. We affirm in all other respects.

Michael Adams v. Shavetta Conner, et al.
W2023-00151-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Gina C. Higgins

This case originated in general sessions court with the filing of a pro se civil warrant. The
defendant also filed a cross-complaint against the plaintiff. The plaintiff’s civil warrant was
quickly dismissed in the general sessions court. The defendant/cross-plaintiff eventually
obtained a judgment against the plaintiff/cross-defendant. The plaintiff/cross-defendant
promptly filed a notice of appeal. The trial court dismissed the plaintiff’s appeal of the
dismissal of his civil warrant due to his notice of appeal being untimely. The trial court
also dismissed the plaintiff’s appeal of the judgment on the cross-complaint for failure to
prosecute. We reverse both rulings and reinstate the plaintiff’s appeal.

Mark A. Roberts v. Ramie R. Marston Roberts
E2023-00856-COA_R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Gregory S. McMillan

This is an appeal from a final order entered on March 17, 2023. The notice of appeal was
not filed with the Appellate Court Clerk until June 5, 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.

In Re Grace F., et al.
M2023-00344-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge John Meadows

This appeal concerns a petition to terminate the parental rights of a mother and a putative father. The trial court found by clear and convincing evidence that several grounds for termination had been proven and that termination was in the best interest of the children. The mother and putative father appeal. On appeal, the Department of Children’s Services concedes some of the grounds that the trial court concluded were established. However, DCS maintains that five grounds for termination were sufficiently proven against the
mother and that three grounds along with the putative father grounds were sufficiently proven against the father. We conclude that these remaining grounds for termination were sufficiently proven, and we conclude that termination was in the best interest of the children. We reverse in part, with respect to one ground for termination of mother’s parental rights and three grounds for termination of the putative father’s parental rights, but otherwise we affirm the trial court’s order terminating parental rights.

Charles Melton, Individually and as Personal Representative for the Estate of Betty Ruth Shaw Morgan v. Michael Melton
E2023-00649-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Richard B. Armstrong

This is an action against the former attorney-in-fact of the decedent for breach of fiduciary
duties and conversion. The trial court granted summary judgment against the attorney-infact
and awarded damages to the estate. The attorney-in-fact appeals, contending the trial
court did not have subject matter jurisdiction over the matters at issue because the power
of attorney was based on Texas law and the actions alleged in the petition were performed
in Texas, where he was a resident; however, he does not challenge the court’s personal
jurisdiction over him. He also contends that summary judgment was inappropriate because
material facts were in dispute. Finding no error, we affirm.

In Re William W. Et Al.
E2023-00565-COA-R3-PT
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Caroline E. Knight

Mother and Father appeal the termination of their parental rights to their three children.
The trial court found, relying on the doctrine of res judicata, that the ground of severe child
abuse supported termination and concluded that termination of Mother’s and Father’s
parental rights is in the children’s best interests. Mother and Father challenge the trial
court’s determination that the best interest factors support termination. We affirm the
judgment of the trial court terminating Mother’s and Father’s parental rights.

Jetton Developments, LLC v. Estate of Dorothy Huddleston et al.
M2023-00026-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Louis W. Oliver

A limited liability company filed suit in relation to a piece of real property for which the company had executed an agreement to purchase. Although closing did not occur by the time stated in the executed agreement, the trial court ultimately held that the opposing side in this case was estopped from denying that the contract had been extended. Discerning no error, we affirm.

Ida Steinberg v. Renea Steinberg ET AL.
W2022-01376-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Karen D. Webster

In denying appellees’ motion to remove an estate’s personal representative, the trial court
adopted appellees’ proposed findings of fact verbatim and proposed conclusions of law “to
the degree they [were] not in conflict with [the] court’s order.” The proposed findings and
conclusions were signed by the trial court judge and attached to the order. Because we
cannot ascertain whether the trial court’s order represents its independent judgment, we
vacate the order of the trial court and remand for the entry of an order that reflects that it is
the product of the trial court’s individualized decision-making and independent judgment.

In Re Estate of Martha Maxine Childress
E2022-00897-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

In this will contest initiated by four of the testator's grandchildren, the trial court determined that the execution of the testator's will met the statutory requirements for admitting the will to probate and, accordingly, dismissed the will contest. The grandchildren-contestants appealed. We affirm.

Lisa Sykes v. Paul Cox
M2022-00970-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Wayne C. Shelton

In this child custody case, the record transmitted on appeal creates significant doubt as to whether the trial court’s final order represents its own deliberations and decision. Due to this concern, and because the judge who previously presided over this case has since retired from the bench, we vacate the appealed judgment and remand for a new trial.

In Re Jaliyah S. et al.
M2023-00554-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This is a termination of parental rights case. Appellant/Mother appeals the termination of her parental rights to the three minor children on the ground of severe child abuse and on the trial court’s finding that termination of her rights is in the children’s best interests. Discerning no error, we affirm.

Mark Ransom et al. v. Lakefront Estates Homeowners Association, Inc.
E2023-00805-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge John Harvey Cameron

In this real property dispute, the trial court rejected the plaintiffs’ assertions that they were
entitled to an easement over the land of the defendant. Among other things, the trial court held that an easement was not essential to the beneficial enjoyment of the plaintiffs’ land. Although the plaintiffs now appeal, we decline to address their arguments due to their noncompliance with applicable briefing requirements and therefore dismiss the appeal.

Crystal Gregoire v. State of Tennessee
M2023-00715-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Russell Parkes

The petitioner, Crystal Gregoire, appeals from the Circuit Court of Lawrence County’s dismissal of her petition for post-conviction relief. Following review, we affirm the judgment of the post-conviction court.

Mary Bradley v. Catherine A. Pesce
W2023-00583-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Damita J. Dandridge

The plaintiff filed a complaint against two parties in general sessions court. One defendant
was served, but the other was not. Judgment was entered against the served defendant.
Seven months later, the claim against the unserved defendant was voluntarily dismissed.
The served defendant then appealed, but the circuit court dismissed the appeal as untimely.
Because a final, appealable judgment in the general sessions court was not entered until
the claim against the unserved defendant was voluntarily dismissed, we conclude that the
served defendant’s appeal was timely. Reversed and remanded.

Willie Graves v. Irelia Calloway, et al.
W2022-01536-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Felicia Corbin Johnson

This is a negligence and premises liability action. One of the defendants, Appellee property
owner, filed a motion for summary judgment three days after answering and before any
discovery was scheduled or conducted. Appellant filed motions for permission to amend
his complaint and for additional time to conduct discovery pursuant to Tennessee Rule of
Civil Procedure 56.07. The trial court denied Appellant’s motion for additional time,
reserved his motion to amend his complaint, and heard Appellee’s motion for summary
judgment. The trial court granted Appellee’s motion for summary judgment, dismissed
Appellant’s claims “with prejudice,” and explicitly reserved its judgment pending
adjudication of Appellant’s pending motion for permission to amend. The trial court
subsequently determined it did not have jurisdiction to adjudicate Appellant’s motion to
amend and instructed Appellant to file a Tennessee Rule of Civil Procedure 60 motion to
set aside the judgment. The trial court denied Appellant’s Rule 60 motion and motion to
amend and certified its order awarding summary judgment to Appellee as final pursuant to
Tennessee Rule of Civil Procedure 54.02. We vacate the award of summary judgment to
Appellee and remand for further proceedings.

Midfirst Bank v. Tamika L. Cole, et al.
W2023-00440-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Jim Kyle

Appellant appeals the dismissal of his claims related to foreclosed property, asserting that
he was the true, legal, and lawful owner of the property. Because of serious deficiencies in
Appellant’s brief, we conclude that Appellant has waived his issues on appeal. The trial
court’s judgment is therefore affirmed.

In Re Conservatorship of June Swinford Spear
E2023-00389-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Jeffrey D. Rader

The notice of appeal filed by the Appellant, Myan Joy Spear, stated that the Appellant was appealing the judgment entered on February 15, 2023. As the orders appealed from do not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.