COURT OF APPEALS OPINIONS

In Re James T.
M2022-01666-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert E. Lee Davies

A foster mother filed a petition to terminate parental rights and adopt a minor child. This appeal concerns the rights of a putative father who signed a Voluntary Acknowledgment of Paternity asserting that he was the biological father of the minor child. We have determined that the foster mother had standing to challenge the VAP, and we affirm the trial court’s decision disestablishing the putative father’s status as legal father.

Susan M. Austin v. Tommy Joe Richmond
W2022-00559-COA-R3-JV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James P. Gallagher

Mother appeals the trial court’s order dismissing her petition for civil contempt and
awarding Father a money judgment and his attorney’s fees. Because the trial court failed
to conduct an evidentiary hearing, we conclude that there was no evidence before it from
which to make a ruling. Accordingly, we vacate the judgment of the trial court and remand
with instructions to conduct an evidentiary hearing on all issues in this case.

Paul Lebel v. CWS Marketing Group, Inc.
E2022-01106-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Douglas T. Jenkins

The plaintiff purchased a home at an auction. The home was sold “as is.” The plaintiff
sued the defendant marketing firm which had advertised the property for auction, alleging
that it had actual knowledge of mold issues but did not disclose them to bidders, and that
it misrepresented the acreage of the real property. The plaintiff’s claims for breach of
contract, fraudulent concealment, and reckless misrepresentation proceeded to a jury trial.
The defendant moved for a directed verdict at the close of the plaintiff’s proof, which the
court denied, but did not renew its motion for a directed verdict at the close of all the proof.
After the jury returned a verdict for the plaintiff, the defendant did not file a post-trial
motion seeking a new trial. On appeal, we conclude that the defendant waived its right to
contest the trial court’s denial of its motion for a directed verdict by failing to file a motion
asking for a new trial as required by Tennessee Rule of Appellate Procedure 3(e). We
further conclude that the defendant waived appellate review of whether the evidence was
sufficient to support the jury’s verdict on the fraudulent concealment, breach of contract,
and reckless misrepresentation claims by failing to renew its motion for a directed verdict
at the close of all proof in the jury trial. We grant the plaintiff’s request for reasonable
attorney fees pursuant to Tennessee Code Annotated section 27-1-122.

John Stanley Jarnagin v. Vanderbilt University Medical Center Et Al.
M2022-01012-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Kelvin D. Jones, III

The Plaintiff brought suit alleging the Defendants failed to obtain informed consent prior to conducting a medical procedure.  The Defendants responded with a consent form signed by the Plaintiff detailing the potential side effects of the procedure of which the Plaintiff asserted he had not been informed, and they moved for summary judgment.  The Plaintiff argued the consent form in the present case was inadequate to establish informed consent.  The trial court granted summary judgment in favor of the Defendants.  The Plaintiff appealed, challenging the validity of the signed consent form based on an alleged misrepresentation and his inability to read because of an eye condition, and arguing, therefore, that there is a material question of fact as to whether informed consent was obtained.  We affirm the judgment of the trial court.

In Re Defari R.
E2022-00550-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Timothy E. Irwin

A father appeals the termination of his parental rights to his child. The juvenile court
terminated parental rights on the grounds of failure to provide a suitable home, substantial
noncompliance with the permanency plan, persistence of conditions, and failure to manifest
an ability and willingness to assume custody or financial responsibility for his child. The
court also determined that termination was in the child’s best interest. We agree and affirm.

Larry Hasty v. Greyhawk Development Corporation
M2021-01217-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Deanna B. Johnson

A plaintiff obtained a default judgment against a corporation. Ten months later, the plaintiff moved to pierce the corporate veil and enforce the judgment against an alleged alter ego of the corporation. The trial court denied the motion. Because the judgment was final and the alleged alter ego was never made a party to the action, we affirm.

Waste Management, Inc. of Tennessee v. Metropolitan Government of Nashville and Davidson County By and Through Davidson County Solid Waste Region Board
M2022-00531-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Anne C. Martin

This appeal involves judicial review of the denial of approval to expand a private
construction and demolition waste landfill. The board overseeing the metropolitan
government’s solid waste management plan denied the application for expansion, finding
that expansion of the landfill was inconsistent with the waste management plan. The
operator of the landfill filed a petition for review in the Chancery Court for Davidson
County, arguing that the board failed to act within ninety days of receiving the application,
followed an uncertified plan, and lacked substantial and material evidence to support the
denial. The chancery court affirmed the board’s denial, and the operator has appealed. We
have determined that the operator waived its arguments regarding the plan’s certification
status by failing to raise those arguments before the board. We affirm the trial court’s
decision in all other respects.

Jon Beck v. Dyer County Board of Education, et al.
W2021-01136-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge R. Lee Moore, Jr.

A tenured teacher appealed his dismissal for insubordination, neglect of duty, and
unprofessional conduct. Among other things, he argued that the decision of the Board of
Education lacked evidentiary support. After a de novo review, the trial court affirmed the
Board’s decision. We conclude that the evidence does not preponderate against the trial
court’s factual findings. And the record supports the teacher’s dismissal for
insubordination, neglect of duty, and unprofessional conduct. So we affirm.

Bradley Sanders, Individually and as Surviving Spouse of Decedent, Kelly Duggan v. Noah Higgins et al.
M2022-00892-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge James G. Martin, III

This appeal involves the disbursement of settlement proceeds proffered by an insurance company in resolution of a claim against it. The plaintiff is the surviving spouse of the decedent, who was killed when she was struck by a vehicle while riding her bicycle. The plaintiff filed a wrongful death action against the vehicle’s driver and the driver’s parents, all of whom were subsequently dismissed from the lawsuit following a settlement unrelated to this appeal. Within the same action, the plaintiff asserted a claim against his and the decedent’s insurer for negligent misrepresentation and negligent failure to procure insurance. The insurer had previously paid a pre-suit settlement to the plaintiff related to uninsured/underinsured motorist coverage. In the complaint, the plaintiff alleged that the insurer had misrepresented additional coverage under an “umbrella policy,” leading the plaintiff and decedent to believe they were covered while failing to actually reinstate the umbrella policy when it had been temporarily cancelled months before the decedent’s death. The plaintiff and the insurer eventually reached a confidential settlement. To facilitate the release of claims by both the plaintiff and the decedent’s estate and upon the estate’s motion, the trial court entered an agreed order allowing the estate to intervene. The plaintiff then filed a motion to disburse the settlement proceeds to him, and the estate filed an intervening complaint and opposition to the plaintiff’s motion, asserting that the estate was entitled to one hundred percent of the settlement proceeds related to the umbrella policy claim. Following a hearing, the trial court entered an order granting the plaintiff’s motion to disburse the settlement proceeds to him upon finding that the cause of action against the insurer had not vested in the decedent prior to her death. The court subsequently denied the estate’s motion to alter or amend the judgment. The estate has appealed. Determining that the cause of action against the insurer was based in tort, rather than wrongful death, and accrued to the decedent at the time of her fatal injuries, we conclude that the right to the resulting settlement proceeds belongs to the decedent’s estate. We therefore reverse the trial court’s judgment and remand for entry of an order granting disbursal of the settlement funds to the estate.

State of Tennessee v. Delinquent Taxpayers 2009 (Anthony Decarlo Hayes)
W2021-01276-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor JoeDae L. Jenkins

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

JCR, LLC Et Al. v. Vicki Hance Et Al.
E2022-00765-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge William T. Ailor

Purchaser of real property at a non-judicial foreclosure sale brought an unlawful detainer
action against the original homeowners when they refused to vacate the property after the
sale. The homeowners brought a separate action against their mortgage servicer and the
purchaser alleging, inter alia, wrongful foreclosure. The trial court dismissed the
homeowners’ complaint against the purchaser and granted the purchaser’s motion for
summary judgment with regard to the detainer action because there was no genuine issue
of material fact as to whether the purchaser was entitled to possession of the property.
Finding no error, we affirm the judgment of the trial court.

JCR, LLC Et Al. v. Vicki Hance Et Al. - Dissent
E2022-00765-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge William T. Ailor

Because “[t]here is absolutely no doubt that wrongful foreclosure can be raised as
an affirmative defense to an unlawful detainer action brought by the purchaser of property
in foreclosure[,]” Davis v. Williams, No. E2010-01139-COA-R3-CV, 2011 WL 335069, at
*3 (Tenn. Ct. App. Jan. 31, 2011), no appl. perm. appeal filed (citations omitted), I
respectfully dissent. The reasoning behind this defense is evident—to protect those who
are wrongfully foreclosed upon from losing their home. The Hances availed themselves
of the defense of wrongful foreclosure, just as Tennessee law provides. The Hances’
wrongful foreclosure lawsuit against Nationstar is still pending.1 While I cannot know the
future outcome of the wrongful foreclosure lawsuit, neither can the majority. Under the
majority’s holding, the decision in the wrongful foreclosure suit is immaterial. The Hances
could prevail in their wrongful foreclosure lawsuit against Nationstar and still be ejected
from their home by JCR leaving them with the hollow “victory” of attempting to collect
on a money judgment against Nationstar. Their home would be lost to them despite their
win. Such a result would be deeply unjust and contrary to longstanding Tennessee
precedent that wrongful foreclosure is a defense to a detainer action.

SPSGNVL Incorporated v. AAA Anodizing & Metal Finishing, Inc. Et Al.
E2022-01402-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor E.G. Moody

This is a breach of contract action in which the plaintiff staffing agency alleged nonpayment
in accordance with the terms of its agreement with the defendant company. The
plaintiff sought recovery from the defendant company, its successor company, and
individuals involved in the sale of the defendant company to its successor. The trial court
awarded judgment in favor of the plaintiff. We affirm.

Benjamin McCurry v. Agness McCurry
E2022-01037-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Senior Judge Thomas J. Wright

This is an appeal from the trial court’s denial of a petition for emergency custody and its
sua sponte entry of a joint mutual restraining order between the parents involved in a
custody dispute. We affirm.

Anthony Wade v. Biobele Georgewill
E2023-00375-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael E. Jenne

Appellant appeals the trial court’s judgment finding that she breached a contract and
ordering her to pay $3,343.10 in contractual damages. On appeal, Appellant has failed to
comply with Tennessee Rule of Appellate Procedure 27(a) and Rule 6 of the Rules of the
Court of Appeals of Tennessee. Substantive review is also precluded by the lack of a
transcript or statement of the evidence as required by Tennessee Rule of Appellate
Procedure 24. Accordingly, this appeal is dismissed.

William Burkett Et Al. v. Julia Cris Stevens
E2022-01186-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Carter Scott Moore

This appeal concerns the enforcement of a restrictive covenant. A number of property owners (“Plaintiffs”) in the German Creek Cabin Site Subdivision sued fellow property owner Julia Cris Stevens (“Defendant”) in the Circuit Court for Grainger County (“the Trial Court”) seeking declaratory and injunctive relief. Plaintiffs sought to prevent Defendant from completing a 400 square foot structure on her lot as it would constitute a second dwelling on the original lot in contravention of a restrictive covenant. The Trial Court ruled in Plaintiffs’ favor, ordering Defendant to remove the structure and granting permanent injunctive relief. Defendant appeals. She argues, among other things that it is inequitable to require her to remove the structure. She also contends that it is not a dwelling. Discerning no reversible error, we affirm the judgment of the Trial Court.

Sarrah Willhite v. Jeremy Willhite
E2023-01058-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge James L. Gass

This is an appeal from a final order entered on November 23, 2022. The Notice of Appeal
was not filed with the Appellate Court Clerk until June 27, 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.

Albert Fuqua v. The Robertson County Election Commission et al.
M2022-01126-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Louis W. Oliver

Appellant filed this action against his local election commission seeking to prevent a candidate from being placed on the ballot of the August 4, 2022 Robertson County election for circuit court clerk. We dismiss this appeal as moot.

Clarence Mitchell, et al. v. Rushmore Loan Management Services, et al.
W2022-00621-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Chancellor Gadson W. Perry

Plaintiffs brought suit alleging breach of contract and the covenant of good faith and fair
dealing against the mortgage servicer of their loan. The mortgage servicer sought summary
judgment on two grounds: (1) an absence of privity and (2) its actions did not violate any
provision of the contract. The Plaintiffs conceded that the mortgage servicer’s actions did
not violate any specific term of the contract and indicated their suit exclusively relied on a
claim predicated upon breach of the covenant of good faith and fair dealing. The trial court
granted summary judgment in favor of the mortgage servicer. The trial court
acknowledged but declined to rule upon the mortgage servicer’s privity argument and
instead granted summary judgment based on its conclusion that a breach of the covenant
of good faith and fair dealing cannot occur in the absence of a breach of a specific term of
the contract. The Plaintiffs appealed. We affirm the trial court’s grant of summary
judgment on the ground that there is no privity of contract between the Plaintiffs and the
mortgage servicer.

Stuart Richard James, III v. Stephanie Lynne James
W2022-00739-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Gadson W. Perry

This is a post-divorce dispute. Two primary issues are presented, whether the trial court
erred by (1) holding the mother in civil contempt for violating the Permanent Parenting
Plan and the Parental Rights Statute and (2) reversing the Shelby County Divorce Referee’s
ruling regarding the father’s child support obligations. For the reasons set forth below, we
reverse the findings of contempt as well as the ruling setting aside the Divorce Referee’s
ruling and remand with instructions to reinstate the Order Confirming the Divorce
Referee’s Ruling.

Elizabeth Christmas v. John M. Kington
E2022-00699-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge W. Jeffrey Hollingsworth

Elizabeth Christmas and John M. Kington were romantically involved for many years.
When the parties’ relationship ended, Dr. Kington reported to the Hamilton County
Sheriff’s Office (“the Sheriff’s Office”) the theft of several items of jewelry from his home.
At the conclusion of the Sheriff’s Office’s investigation, a grand jury indicted Ms.
Christmas for theft of property valued at more than $250,000. The State of Tennessee (“the
State”) later dismissed the charge of theft before the case proceeded to trial. Ms. Christmas
subsequently filed a complaint and an amended complaint against Dr. Kington in the
Hamilton County Circuit Court (“Trial Court”) alleging, inter alia, malicious prosecution
and abuse of process. Dr. Kington filed a motion for summary judgment, which the Trial
Court granted. Ms. Christmas appealed. Discerning no reversible error, we affirm the
judgment of the Trial Court.

Antonia Andreana Smith v. Anthony Kenyatta Smith
W2022-00704-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Gadson W. Perry

In this divorce action, Wife appeals the trial court’s classification and distribution of assets,
formation of a parenting plan, and calculation of Husband’s child support obligation. Wife
also appeals the denial of her petition for criminal contempt. As appellee, Husband raises
issues regarding the allocation of the parties’ equity in the marital property, the enrollment
of the child in private school, and the distribution between the parties of education expenses
for the child. Upon review, we affirm the trial court’s decisions regarding the division of
the parties’ property after minor modification, vacate the trial court’s decisions regarding
child custody and child support, and remand the case to the trial court for further
proceedings. Wife is barred from appealing the denial of her criminal contempt petition
and we decline to award Wife her attorney’s fees incurred on appeal.

Tracy Darrell Adkins v. Rhonda Forlaw Adkins
M2022-00986-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael Binkley

This is an appeal from a divorce decree that was initially entered in 2017, but the divorce action was not finalized until 2022. In this appeal, Wife argues that the trial court should not have divorced the parties because there were no valid grounds for divorce. Because the parties executed a valid marital dissolution agreement agreeing to be divorced on the ground of irreconcilable differences, we affirm the trial court’s decision to declare the parties divorced. We modify the divorce decree, however, to provide that Wife is awarded the divorce on that ground, consistent with the parties’ agreement. We further award Husband his attorney’s fees as required under the marital dissolution agreement.

Elizabeth Rutan-Ram et al. v. Tennessee Department of Children’s Services et al.
M2022-00998-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ellen Hobbs Lyle

The plaintiffs, a prospective adoptive couple and six other Tennessee taxpayers, brought this declaratory judgment action challenging the constitutionality of Tenn. Code Ann. § 36-1-147, which allows private child-placing agencies that receive state funding to deny services to prospective foster or adoptive parents based upon the agencies’ religious beliefs. A three-judge panel concluded that the plaintiffs lacked standing to challenge the statute. We have determined that the plaintiffs have standing and reverse the decision of the three-judge panel.

Dennis N. Etheredge et al. v. Estate of Doris Etheredge
M2022-00451-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Chancellor Ronald Thurman

A husband and wife each had multiple children from prior relationships. After their marriage, the husband and wife agreed to a contract that would control the distribution of their estates, with funds passing first to the surviving spouse and then to be distributed after the second spouse’s death among their children. Both husband and wife have since died. Husband’s children brought suit, arguing that the distribution of assets in husband’s final will is contrary to the contract. Awarding summary judgment to husband’s children in this declaratory judgment action, the trial court determined that the distribution of the husband’s estate is controlled by the terms of the contract. The wife’s estate appealed. We vacate and remand.