COURT OF APPEALS OPINIONS

In Re Skylith F. et al. (Concurring)
M2022-01231-COA-R3-PT
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Kathryn Wall Olita

I concur in the majority’s thoughtful and well-reasoned opinion, but I write separately to reflect a variance of view with the majority’s determination as to the appropriate four-month statutory time period for assessing the ground for termination for abandonment by failure to support. In assessing abandonment, the General Assembly has directed Tennessee courts to consider “a period of four (4) consecutive months immediately preceding the filing of a proceeding, pleading, petition, or any amended petition to terminate the parental rights . . . .” Tenn. Code Ann. § 36-1-102(1)(A)(i) (West July 1, 2021 to May 8, 2022). The majority concludes that the correct four-month period to examine for the ground of abandonment by failure to support in this case is the four months prior to the granting of the motion to amend, running from July 18, 2021, to November 17, 2021, rather than the four months prior to the time the amended petition was filed on September 24, 2021. I do not necessarily disagree with the majority on this point. Where I respectfully diverge is that I do not think it is necessary to decide between these two time periods in this case and would reserve doing so for a more appropriate case.

Loring Justice Et Al. v. Kim Nelson Et Al.
E2022-01540-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Deborah C. Stevens

This appeal is the latest development in a protracted custody and visitation dispute between
Loring Justice and Kim Nelson. After the Juvenile Court for Roane County (“the Juvenile
Court”) entered a judgment awarding Ms. Nelson custody and severely restricting Mr.
Justice’s parenting time, Mr. Justice filed a complaint in the Circuit Court for Knox County
(“the Trial Court”). He alleged various claims against Ms. Nelson and the lawyers and law
firms that represented her in the Juvenile Court. Ms. Nelson and her attorneys filed motions
for sanctions, alleging that Mr. Justice’s complaint violated Tennessee Rule of Civil
Procedure 11. Months later, Mr. Justice filed a notice of voluntary dismissal. After
entering an order of dismissal, the Trial Court granted Ms. Nelson and her attorneys their
Rule 11 motions and ordered Mr. Justice to pay their attorney’s fees and expenses. Mr.
Justice has appealed. Discerning no reversible error, we affirm the Trial Court’s judgment
in all respects.

RAMA, Inc. d/b/a Discount Liquor v. City of Chattanooga, Tennessee, City Council
E202-01506-COA_R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Pamela A. Fleenor

The appellant applied for a special exception permit allowing it to operate a liquor store in
a location designated as a C-2 Convenience Commercial Zone. The appellee, City Council
for the City of Chattanooga, denied the application based upon a councilmember’s
statements that “the City is turning that area around to meet some different purposes.” The
appellant sought review from the Chancery Court for Hamilton County, which upheld the
decision of City Council. Following careful review, we reverse.

Theresa Barrett v. Justin Garton
M2022-01064-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Thomas W. Brothers

A plaintiff filed suit alleging that the defendant’s negligence caused her to sustain personal injuries in an automobile accident. The plaintiff filed the complaint within one year of the accident, but she failed to have process issued within one year from the filing of the complaint. Thus, the defendant sought summary judgment based on a statute of limitations defense. In response, the plaintiff claimed that the defendant should be estopped from asserting a statute of limitations defense because the parties had agreed that issuance of process was unnecessary. The trial court rejected the plaintiff’s estoppel argument and granted summary judgment to the defendant. Discerning no error, we affirm the trial court’s decision.

Michael Halliburton v. Blake Ballin, et al.
W2023-01304-COA-T10B-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Gina C. Higgins

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme
Court of Tennessee, filed by the plaintiff, Michael Halliburton, seeking to recuse the trial
judge in this case. Having reviewed the petition for recusal appeal filed by Mr. Halliburton,
and finding no error, we affirm.

Nathaniel B. Carden, Et Al. v. Krystal L. Carden
E2022-00721-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Jerry Bryant

The father of two children learned that the mother eventually planned to relocate to Florida. The father opposed the relocation and applied for a temporary restraining order to disallow the mother from leaving the state. He further requested modification of the permanent parenting plan entered at the time of the divorce (a default judgment). In response, the mother filed a counter-petition requesting permission to relocate out-of-state. The paternal grandparents filed a petition to intervene in the action to establish visitation. The court conducted a best interest analysis to determine whether it was in the children’s best interest to relocate with the mother. Concluding that it was in the children’s best interest to relocate, the court entered a modified parenting plan, which provided a period of co-parenting time for the father to be supervised by the grandparents and set forth a parenting schedule reflective of the distance between the parties upon the mother’s relocation. The father and the grandparents appealed. We affirm the judgment allowing the relocation. The trial court’s order regarding the grandparents’ visitation petition, however, is unclear. Accordingly, we vacate the modified parenting plan and remand this matter for specific findings under Tennessee Code Annotated section 36-6-307 and for a ruling whether the visitation by the grandparents will be separate from or derivative of the father’s time.

Donna F. Howard v. James C. Howard
E2022-01385-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Clarence E. Pridemore

This appeal involves a motion filed pursuant to Tennessee Rule of Civil Procedure 60.02, seeking to set aside the attorney's fee provision contained within a final divorce decree. The trial court denied the motion without hearing evidence from the parties or stating the basis for its decision.  Because we are unable to adequately review the matter due to the trial court's lack of findings of fact and conclusions of law and the lack of evidence in the appellate record, we vacate the trial court's order and remand for further proceedings. 

Payton Castillo v. David Lloyd Rex M.D., Et Al.
E2022-00322-COA-R9-CV
Authoring Judge: Judge W. McClarty
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

The plaintiff filed this healthcare liability action against several healthcare providers
following the death of her husband. We granted this interlocutory appeal in which the
defendants request review of the trial court’s denial of their motion for a protective order
to prohibit further inquiry into a meeting held between the defendant hospital and the
decedent’s family. We affirm the trial court.

Blankenship CPA Group, PLLC v. Stephen Wallick
M2022-00359-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Joseph A. Woodruff

A temporary injunction restrained a former employee of an accounting firm from committing acts of harassment against the firm or any of its principals, employees, or agents. An Internet news article reported the former employee’s perspective on his history with the firm. The former employee posted a link to the article on his Facebook page and circulated the article to clients of the firm and others. The firm filed a petition for criminal contempt, alleging that the former employee violated the restraint on acts of harassment against the firm. The trial court held the former employee in criminal contempt for willfully disobeying the injunction. We affirm in part and reverse in part.

In Re Conservatorship of Tara Young
M2022-01448-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Amanda J. McClendon

This case involves an appeal from the trial court’s appointment of a permanent conservator to oversee the person and property of the appellant, Tara Young. Ms. Young’s brother, Daniel Wood, petitioned for a conservatorship after he discovered that Ms. Young had been admitted to the Vanderbilt Adult Psychiatric Hospital following a car accident. After several months of proceedings and a two-day trial, the trial court concluded that a conservatorship was warranted and appointed a conservator for the person and property of Ms. Young. The trial court further determined that medical decisions should remain vested with Ms. Young. Ms. Young timely appealed. On appeal, Mr. Wood did not file a brief in response to Ms. Young’s appellate brief. Upon review, we conclude that Ms. Young’s brief lacks a statement of the issues presented for review and therefore does not comport with Tennessee Rule of Appellate Procedure 27(a)(4). Inasmuch as Ms. Young has not presented any issues on appeal as required by Rule 27, we dismiss this appeal.

Dominic Joseph Schanel v. Sarabeth Richardson
M2022-00800-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Joe Thompson

This appeal arises from a divorce after a very brief marriage. The parties had one young son at the time of the divorce. The trial court declared the parties divorced, named the mother primary residential parent, largely adopted her proposed parenting plan, and calculated child support after imputing income to the mother based on a finding of voluntary underemployment. The father appealed and raises three issues, primarily arguing that he should be named primary residential parent or at least have additional parenting time. The mother raises a host of issues regarding various other provisions of the parenting plan. For the following reasons, we affirm the decision of the circuit court as modified.

Larry Inman v. Cindy Craven Inman
W2022-01056-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Gadson W. Perry

This appeal stems from a lawsuit over a void marriage. Larry Inman (“Plaintiff”) sued
Cindy Craven Inman (“Defendant”) for divorce in the Circuit Court for Shelby County
(“the Circuit Court”). However, it emerged during the lawsuit that Defendant never
divorced her previous spouse. The Circuit Court entered an agreed final order holding that
the parties’ marriage was void and dismissing the complaint. Plaintiff later sued Defendant
in the Chancery Court for Shelby County (“the Trial Court”) asserting various causes of
action stemming from his being misled into believing he was married. Defendant filed a
motion to dismiss, which the Trial Court granted on res judicata grounds. Plaintiff appeals.
Plaintiff could have asserted his claims in the previous divorce lawsuit, but he did not.
Thus, the doctrine of res judicata bars Plaintiff’s claims. We affirm.

State of Tennessee ex rel. Andrea Gutierrez v. Lane Baggett
. M2022-01658-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Adrienne Gilliam Fry

In this post-divorce case, Father appeals the trial court’s grant of sole decision-making authority over the Children’s non-emergency health care and religious decisions to Mother. Mother requests attorney’s fees incurred on appeal. Because there is no evidence to support an award of sole decision-making authority over religious decisions, we reverse the trial court’s order awarding Mother same. The trial court’s order is otherwise affirmed, and Mother’s request for appellate attorney’s fees is denied.

Aziz Kherani Et Al. v. Raj Patel Et Al.
E2022-00983-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

This is a breach of contract action involving an agreement for purchase and sale of
improved real property. Upon the sellers’ motion for summary judgment and following a
hearing, the trial court granted summary judgment in favor of the sellers. Following an
evidentiary hearing to determine damages, the trial court entered a judgment directing the
buyers to pay $45,000 in compensatory damages and $15,000 in attorney’s fees. The
buyers have appealed. Determining that genuine issues of material fact preclude
summary judgment, we reverse.

In Re Estate of Willie C. Chaney
E2022-01051-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Deborah C. Stevens

This appeal involves a dispute between family members regarding their father’s/grandfather’s estate. Following the filing of an action to probate the decedent’s will by his daughter, the decedent’s son and grandson contested the will. The trial court conducted a bench trial, subsequently entering an order determining that the residuary clause in the decedent’s will was invalid due to undue influence by his daughter. The court also held that the decedent’s son and grandson had proven that a portion of the decedent’s real property should be vested in the son due to a “resulting/constructive” trust. The decedent’s daughter and her son have appealed the trial court’s rulings. Discerning no reversible error, we affirm.

Brenda Smith d/b/a Sugar Creek Carriages v. David Gerregano, Commissioner of the Tennessee Department of Rec
M2022-00941-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Patricia Head Moskal

The Tennessee Department of Revenue issued a tax assessment against a horse-drawn carriage company pursuant to Tenn. Code Ann. § 67-6-212(a)(2). The carriage company filed a complaint in the chancery court challenging the tax assessment on two grounds: (1) that its carriage rides did not constitute a place of amusement under the statute and (2) that its equal protection rights had been violated because no other carriage companies had been assessed the tax. Both parties filed motions for summary judgment. The court granted the Tennessee Department of Revenue’s motion for summary judgment and denied the carriage company’s motion for summary judgment. Discerning no reversible error, we affirm the chancery court’s decision.

Westfield Group Insurance A/S/O David & Carol Neiger v. Tiffany Embry
M2022-01301-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Brinkley, Jr.

In this appeal, a defendant asserts that the trial court erred when it granted the plaintiff’s motion to voluntarily dismiss its complaint while the defendant’s motion to dismiss and for attorneys’ fees was pending.  We hold that a pending motion to dismiss does not preclude the plaintiff from voluntarily dismissing its case pursuant to Tenn. R. Civ. P. 41.01.  Likewise, the defendant’s request for attorneys’ fees did not create a “vested right” preventing the plaintiff from voluntarily dismissing its case.  The ruling of the trial court is affirmed.

In Re Conservatorship of James Steele
E2022-00840-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Pamela A. Fleenor

The appeal arises from a conservatorship proceeding. At issue is whether the trial court
erred by quashing the appellant’s subpoena of the conservator’s records on the basis of res
judicata, rendering the document subpoena moot as a matter of law. We have determined
that a final judgment had not been rendered on the merits concerning the services rendered
by the conservator; thus, res judicata was not applicable. Accordingly, the judgment of the
trial court is reversed, and this matter is remanded for further proceedings.

Janette C. Gates v. Hans M. Switzer
M2021-01552-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Phillip R. Robinson

During the pendency of a divorce, Wife was convicted of one count of criminal contempt. Wife filed a notice of appeal subsequent to this conviction. Before Wife’s initial appeal was heard, the trial court entered its order granting the parties a divorce. Wife filed another notice of appeal challenging the outcome of the divorce. We consolidated the respective appeals, and now, upon our review, we affirm the judgment of the trial court in both the contempt and divorce proceedings.

Jim Hysen v. T.A. Smythe
M2022-00816-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joseph A. Woodruff

Because the notice of appeal was untimely, this Court lacks subject-matter jurisdiction over the appeal. Appeal dismissed.

Judie Snipes v. Skin Cancer & Cosmetic Dermatology Center P.C. Et Al.
E2023-00386-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge John B. Bennett

This is an appeal from a final order entered on February 10, 2023. The Notice of Appeal
was not filed with the Appellate Court Clerk until March 14, 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 Estate of Willis Seeber
E2022-01476-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Rex Alan Dale

This appeal arises from a dispute over the estate of Mrs. Willie Seeber. Mrs. Seeber left a purported Last Will and Testament executed in 2021,which the personal representative named therein has offered to the Probate Court for Loudon County for solemn form probate. However, various family members and friends of Mrs. Seeber seek to challenge this will and allege Mrs. Seeber lacked testamentary capacity and was unduly influenced to execute the will. The contestants rely upon earlier testamentary documents to establish standing to bring a will contest. The proponent appeals an order of the probate court holding the contestants have standing to bring a will contest. We hold the probate court did not err in its various findings and affirm the judgment of the probate court. This case is remanded for further proceedings.

Teresa Thompson Locke et al. v. Jason D. Aston, M.D. et al.
M2022-01820-COA-R9-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Amanda J. McClendon

This is a health care liability action filed by a patient and her husband alleging serious injury as a result of surgery. The plaintiffs learned that the defendants had taken surveillance videos and sought discovery of those videos. The trial court allowed discovery of only the videos that the defendants intended to use at trial for impeachment purposes. The trial court gave the plaintiffs permission to seek an appeal under Tenn. R. Civ. P. 9. This Court granted the appeal. We affirm the trial court’s decision.

Gresham, Smith and Partners v. Middleburg Real Estate Partners, LLC
M2021-01459-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Patricia Head Moskal

In this breach of contract dispute between an engineering consulting firm and a real estate development company, we review the trial court’s holding that the real estate development company breached the contract between the parties as well as the court’s award of attorneys’ fees to the engineering consulting firm. We affirm the court’s decision in all respects. Because the parties’ agreement states that the prevailing party in litigation arising from or related to the contract shall be entitled to attorneys’ fees and costs, we remand the case to the trial court with instructions for the trial court to award the engineering firm its reasonable and necessary attorneys’ fees and costs incurred in this appeal.

Michael Briars, et al. v. John Irving, et al.
W2022-01159-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge A. Blake Neill

Plaintiffs sued for injuries and damages allegedly resulting from an automobile accident.
The trial court dismissed one of two defendants based on the statute of limitations.
Although the complaint was filed within one year of the accident, the original summons
went unserved, and plaintiffs did not obtain issuance of new process until over a year after
the issuance of the previous process. On appeal, plaintiffs contend that, because the
automobile accident resulted in a criminal prosecution, the time period for issuance of new
process under Tennessee Rule of Civil Procedure 3 was extended. We affirm.