COURT OF APPEALS OPINIONS

Kelly R. Harris v. Lonnie C. Harris
E2023-00061-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Senior Judge Thomas J. Wright

At issue in this appeal is the classification and division of marital property from a nearly
22-year marriage. The trial court divided the marital property 50/50. The husband appeals. We modify the trial court’s judgment to divide the marital property 75% to the husband and 25% to the wife. In all other respects, the judgment is affirmed.

Matthew Long v. Chattanooga Fire and Police Pension
E2022-01151-COA-R3-CV
Authoring Judge: Judge Kristi Davis
Trial Court Judge: Chancellor Jeffrey M. Atherton

Petitioner/Appellee Matthew Long (“Long”) applied for disability pension benefits due to Post-Traumatic Stress Disorder (“PTSD”) caused by various traumatic events he experienced during his time as a firefighter with the Chattanooga Fire Department (“CFD”). The Board of Trustees (the “Board”) for Respondent/Appellant Chattanooga Fire and Police Pension Fund (the “Fund”) denied Long’s application. Long filed a Petition for Writ of Certiorari with the Chancery Court for Hamilton County (the “trial court”) seeking a reversal of the Board’s decision. Finding that the Board’s decision was arbitrary and capricious, the trial court reversed the denial of Long’s application. The trial court also denied a motion to alter or amend filed by the Fund. Following thorough review, we affirm the judgment of the trial court.

Laquitta Carpenter v. Jourdan Richardson
E2023-00208-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Deborah C. Stevens

This is an appeal from a default judgment originally entered by the General Sessions Court for Knox County (“general sessions court”) and then appealed to the Circuit Court for Knox County (“circuit court”). Because the defendant did not appear in the circuit court, the circuit court also entered a default judgment against the defendant. The defendant then appealed to this Court. However, because of deficiencies in the defendant’s brief, any issues purportedly raised are waived. We thus affirm the circuit court’s ruling.

Sylvia Cobbins v. Michael Feeney et al.
M2022-01357-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Anne C. Martin

This appeal involves claims to three disputed areas based on adverse possession and prescriptive easement. We affirm the trial court’s decision denying the plaintiff’s claims.

In Re Conservatorship of Robert E. Hathaway
W2020-00687-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Senior Judge Robert E. Lee Davies

Appellant attorney appeals the denial of his request for attorney’s fees to be paid from the
estate of a ward in a conservatorship proceeding. The trial court denied the request on the
bases that the legal services contract at issue did not provide for the payment of fees from
the estate, the ward lacked capacity to enter into a power of attorney giving the executor of
the contract authority to do so, and the applicant attorney was never appointed as attorney
ad litem for the ward. We affirm.

Karen Elizabeth Phillips Lowe v. Robert Melvin Lowe
E2023-00338-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Suzanne Cook

This is a divorce action. Wife appeals the trial court’s division of property and debt and
asserts that the trial court erred by not classifying and awarding certain real property in
accordance with the parties’ stipulations. She also appeals the trial court’s denial of her
request for an extension of the order of protection issued against Husband and the
assignment of costs to her. We reverse the trial court’s interpretation of the parties’
stipulations regarding the classification of real property inherited by Wife. Because this
holding impacts the value of the parties’ separate property and the marital estate, we
remand for reconsideration of the division of marital assets. We affirm the trial court’s
equal division of marital debt and denial of Wife’s request for an extended protective order. We vacate the assignment of costs to Wife and remand the case to the trial court.

Chris Etters, Et Al. v. Knox County, Tennessee, Et Al
E2022-01498-COA-R9-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor John F. Weaver

In this interlocutory appeal, the defendant municipal board claimed that a document
attached to the plaintiffs’ amended complaint was protected by the attorney work product doctrine and therefore could not be relied upon or otherwise utilized by the plaintiffs. The defendant further urged that such protection had not been waived. The trial court disagreed, finding that although portions of the document were protected by the work product doctrine, such protection had been waived. Discerning no reversible error, we affirm.

In Re Rylee L. et al.
M2023-00487-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Brandon J. Cox

In the course of two separate dependency and neglect proceedings, a mother and father were found to have committed severe child abuse on their two children. In this termination proceeding, the trial court found that the grounds for termination of (1) severe child abuse, and (2) failure to manifest an ability and willingness to personally assume custody or financial responsibility of the children had been proven and that it was in the children’s best interest to terminate their parents’ parental rights. The parents appealed. We affirm.

William Craig v. Miranda McCabe
E2022-01571-COA -R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Gregory S. McMillan

The appeal is dismissed because Appellant’s brief fails to comply with Tennessee Rule of
Appellate Procedure 27(a)(7)(A) and Tennessee Court of Appeals Rule 6(a). In addition, Appellant failed to provide a written transcript of the relevant proceedings despite our order requiring same. The absence of a transcript negates our ability to review the trial court’s substantive findings, and the failure to comply with the rules of briefing puts this Court in the position of having to create Appellant’s arguments, which we decline to do. Appeal dismissed.

Robert D. Murray v. State of Tennessee, Et Al.
E2022-01575-COA-R3-CV
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Judge James E. Lauderback

Employee alleges that his termination from a county election commission was based on discrimination. His timely-filed federal case against the State of Tennessee was subsequently dismissed on Eleventh Amendment grounds. Twenty-one days after the federal case was dismissed and a total of almost three years after his termination, Employee refiled in state court, raising the same allegations of violations of the Tennessee Human Rights Act and the Tennessee Disability Act against the State. Relying on United States Supreme Court precedent that the federal savings statute, 28 U.S.C. § 1367(d), does not apply against a nonconsenting State defendant dismissed on Eleventh Amendment grounds, Raygor v. Regents of the University of Minnesota, 534 U.S. 533 (2002), we conclude that Employee’s state court complaint was untimely. We therefore affirm the grant of summary judgment on a different ground than that relied upon by the trial court.

William D. Crowder v. Tre Hargett et al.
M2023-00590-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Appellant appeals the dismissal of his second lawsuit seeking damages and injunctive relief against four defendants allegedly associated with his criminal prosecution. The trial court dismissed the second lawsuit as barred by the doctrine of res judicata. We affirm.

Carolyn M. Stark ET AL. v. William S. McLean ET AL.
W2023-00145-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Tony Childress

In a prior appeal, we addressed multiple issues connected to a judgment that was entered
following a bench trial. Among other things, we affirmed the trial court’s determination
that one of the Defendants in this litigation should be held liable for breach of fiduciary
duty, but we also rejected multiple issues raised by the Plaintiffs in pursuit of additional
relief. As part of our disposition, we remanded the case for further proceedings with
respect to matters of costs and expenses under Tennessee Code Annotated section 35-15-
1004, as well as prejudgment interest. After the trial court entered orders on remand
addressing these issues, the Plaintiffs filed the present appeal, chiefly arguing (a) that they
are entitled to 100% of their costs and expenses and (b) that the trial court erred in the
amount of prejudgment interest it awarded them. Having reviewed the record transmitted
to us on appeal, we affirm the judgment of the trial court.

University Place S.E., LP v. R. Bosan a/k/a Rick Bosan
W2023-00790-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Yolanda Kight Brown

This case arises from a forcible entry and detainer proceeding. Because Appellant’s
principal brief fails to comply with Rule 27 of the Tennessee Rules of Appellate Procedure
and Rule 6 of the Rules of the Court of Appeals of Tennessee, the appeal is dismissed.

Larry Kent et al. v. Global Vision Baptist, Inc. et al.
M2023-00267-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Caroline E. Knight

The Plaintiffs filed suit against a neighboring church and its pastor, alleging violations of local ordinances, as well as nuisance and trespass. The Defendants responded with a petition for dismissal under the Tennessee Public Participation Act (TPPA). After the trial court denied Plaintiffs’ attempt to voluntarily dismiss the pastor, the Defendants, in response to a statement by opposing counsel, filed a motion seeking an order of dismissal of the pastor with prejudice. The trial court denied that motion. Before the scheduled hearing on the TPPA petition could occur, the Defendants appealed the trial court’s denial of their motion for an order of dismissal as to the pastor, purportedly proceeding under Tennessee Code Annotated section 20-17-106, a provision of the TPPA that allows for an immediate appeal of a grant or denial of a TPPA petition. Because the order being appealed is not a dismissal or a refusal to dismiss a legal action pursuant to the Defendants’ TPPA petition, which is still pending before the trial court, we dismiss this appeal for lack of subject matter jurisdiction.

Jennifer Lynn Morgan Esposito v. Joseph Diego Esposito
E2022-01784-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Elizabeth C. Asbury

In this divorce action, the trial court entered an order in December 2021, according to the parties’ announced agreement, granting the parties a divorce on stipulated grounds and directing, inter alia, that the marital residence would be sold at auction and that any “marital personal property” upon which the parties could not reach an agreement prior to the auction would be “sold by the court when the [marital residence was] auctioned.” The court also memorialized the parties’ agreement that each would keep the vehicles in his or her possession and be responsible for debts incurred in each of their respective names. In an order entered in April 2022, the court confirmed that the marital residence had been sold at auction to the husband. Following a bench trial, the court found that, with the exception of two personal items belonging to the wife, the marital residence and “the contents located at the property” were all marital property; that the proceeds from “marital property located at the home” were included in the auction sale proceeds; and that the proceeds from the auction should be divided equally between the parties. The wife has appealed. Upon careful consideration, we affirm the trial court’s findings that the marital personal property located at the marital residence had been sold with the marital residence and that the auction sale price reflected the total valuation of both the residence and personal property sold. We also affirm the trial court’s adoption of the parties’ agreement regarding vehicles and debts. However, we vacate the trial court’s classification of the marital residence as marital property and the court’s overall distribution of marital property. We remand for (1) further findings of fact and conclusions of law regarding classification of the marital residence and, if necessary, identification of any increase in value of the marital residence that resulted from the husband’s significant contributions during the marriage; (2) a limited evidentiary hearing to identify, classify, and value the parties’ bank accounts; and (3) reconsideration of the marital property distribution inclusive of the findings on remand and pursuant to the statutory factors provided in Tennessee Code Annotated § 36-4-121(c) (2021). Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Vacated in Part; Case Remanded.

Arthur A. Allen v. Heather S. Allen
E2023-01660-COA-T10B-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Suzanne S. Cook

This is an interlocutory appeal as of right, pursuant to Tenn. Sup. Ct. R. 10B, filed by
Arthur A. Allen (“Father”), seeking to recuse the trial judge in this case. Having reviewed
the petition for recusal appeal filed by Father, and finding no error, we affirm.
Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; Judgment of the
Chancery Court Affirmed; Case Remanded

Tracey Smith, et al. v. Oakwood Subdivision Homeowners Association, Inc.
W2022-00845-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Rhynette N. Hurd

This appeal involves premises liability and negligence claims asserted against a
homeowner’s association after a shooting outside its community clubhouse while it was
rented for a birthday party. The trial court granted summary judgment to the homeowner’s
association, dismissing all claims, on two grounds. First, the trial court found that there
was no foreseeability, and therefore, there was no duty. Second, the trial court concluded
that there was no nexus, or proximate cause, between the allegedly negligent acts or
omissions of the homeowner’s association and the harm that occurred. The plaintiffs filed
a motion to reconsider or clarify the ruling, which the trial court denied. For the following
reasons, we affirm the decision of the circuit court and remand for further proceedings.

Marquica L. Beasley Et Al. v. Jae Nails Bar, LLC
M2022-01330-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas W. Brothers

This is a premises liability action in which the plaintiff slipped and fell while she was walking to a pedicure station in a nail salon. Two principal issues are presented. First, the plaintiff contends that the trial court erred by denying her Tenn. R. Civ. P. 34A.02 motion for spoliation of evidence by finding that the defendant was not put on notice that a video recording from a surveillance camera in the nail salon was relevant to pending or reasonably foreseeable litigation. Second, the plaintiff contends that the trial court erred by summarily dismissing her complaint on the basis that there was no proof that the defendant had created the allegedly hazardous condition in the nail salon or that the defendant had actual or constructive notice of the condition. We affirm.

Aurora Loan Services, LLC, et al. v. Frederick J. Elam, et al.
W2023-00905-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Kasey Culbreath

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

Darrell Tipton, Et Al. v. William J. Wolfenbarger, Et Al.
E2022-01407-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge J. Michael Sharp

This case stems from a dispute over a parcel of real property located in Monroe County,
Tennessee. Following a partition action and sale of the property, the trial court entered an
order dividing the sale proceeds between several parties that the trial court determined had an interest in the property at the time of the sale. One of those parties appeals, arguing that it is entitled to a bigger portion of the sale proceeds. Discerning no error, we affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded

Lee Ann Polster v. Russell Joseph Polster
M2022-01432-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ted A. Crozier

In the prior appeal of this case, a husband’s argument regarding the division of assets/unconscionability of the marital dissolution agreement was deemed waived because it was not raised in the trial court. The case was remanded for a determination of attorney’s fees. The husband attempted to bring the issue up again on remand, and the trial court refused to consider them. We affirm based on waiver and the narrow scope of the remand.

The State Of Tennessee on behalf of Bledsoe County, Tennessee Et Al v. Whoriskey, Inc.
E2023-00505-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Melissa Thomas Willis

This appeal arises from an action to recover delinquent ad valorem real property taxes.
Whoriskey, Inc., which currently owns the property, raises numerous challenges to the
proposed delinquent tax sale. In principal part, it asserts that the property at issue was not
subject to taxation during the relevant tax period, 2017 and 2018, because it claims that,
during that time, the property was owned by the United States Government through a
federal forfeiture. Further, Whoriskey contends that Bledsoe County and the City of
Pikeville are barred from recovering back taxes because they failed to assert a claim in
federal court. The trial court found no factual or legal basis to support Whoriskey’s
contentions and determined that the County and City could proceed with the delinquent tax sale to recover ad valorem real property taxes on the subject real property for the tax years 2017 and 2018. This appeal followed. We affirm.

In Re Aubria H. et al.
M2023-00329-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Haylee Bradley-Maples

This appeal involves the termination of a mother’s parental rights to two minor children. The trial court concluded that several grounds for termination existed and that the termination of the mother’s parental rights was in the best interests of the children. Although we vacate two grounds for termination, we affirm the trial court’s reliance on the remaining grounds for termination and its best interests determination. The trial court’s termination of the mother’s parental rights is accordingly affirmed.

Corey Andrew Tate v. Andrea Nicole Jones
E2022-01524-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Timothy E. Irwin

This is an appeal by Father of a judgment rendered against him for child support. Because
the final judgment does not provide adequate findings of fact and conclusions of law for
this Court to conduct a proper review, we are unable to adequately address Father’s issues
on appeal. Therefore, we remand the case back to the trial court for the entry of a judgment
compliant with Rule 52.01 of the Tennessee Rules of Civil Procedure.

Susan Davis Malone v. Thomas Franklin Malone
W2023-00843-COA-T10B-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Joe Townsend

This is an interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B,
filed by the appellants seeking to recuse the trial judge, Judge Joe Townsend (the "trial
judge") in the underlying post-divorce contempt action. Having reviewed the petition for
recusal appeal filed by the appellants and the answer thereto, and finding that the appellants
have failed to dernonstrate that a person of ordinary prudence in Judge Townsend's
position, possessing the same knowledge as Judge Townsend, would find a reasonable
basis to question Judge Townsend's impartiality, we affirm the trial judge's denial of the
recusal petition.