COURT OF APPEALS OPINIONS

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.

Katy Elizabeth Hammond v. William George Hammond
M2022-01253-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Kathryn Wall Olita

A husband and wife entered into a marital dissolution agreement in 2019. Part of the agreement provided that once the husband retired from the United States Army, he would pay the wife alimony in futuro in an amount equal to the amount of military retirement to which the wife was entitled under the agreement. In 2021, the wife filed a motion for contempt alleging, inter alia, that the husband was not complying with the alimony requirements. The husband argued that the parties’ agreement was unenforceable because it is pre-empted by federal law. Following a hearing, the trial court found that the husband had failed to comply with the agreement but that the contempt was not willful. The husband appeals. Discerning no error, we affirm. We also grant the wife’s request for her appellate attorney’s fees.

Michael Grande v. Kimberly Grande
E2022-00981-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Gregory S. McMillan

This appeal concerns divorce-related issues. In October 2019, Michael Grande
(“Husband”) filed for divorce against Dr. Kimberly Grande (“Wife”) in the Circuit Court
for Knox County (“the Trial Court”). In March 2021, the Trial Court entered its Final
Judgment for Divorce, which incorporated the parties’ Marital Dissolution Agreement
(“the MDA”). In September 2021, Husband filed a petition for civil contempt against Wife.
In its June 2022 final order, the Trial Court found among other things that Wife was in civil
contempt of court. Wife appeals. Husband raises his own issues as well. We find, inter
alia, that Wife is not in civil contempt for pre-MDA conduct when the MDA purported to
resolve the very issues subject to the contempt petition and Husband has not asserted a
claim of fraud. We reverse the Trial Court’s findings of civil contempt against Wife, as
well as the judgments against Wife in the amounts of $27,000 and $11,171.80, respectively.
We also reverse the Trial Court’s award of attorney’s fees to Husband, and decline to award
either party attorney’s fees and expenses incurred on appeal. Otherwise, we affirm the
judgment of the Trial Court. We thus affirm, in part, and reverse, in part.

James Mark Lee v. Tonya Mitchell et al.
M2022-00088-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Jonathan L. Young

This is an action for defamation, false light invasion of privacy, and damages under the Tennessee Educator’s Protection Act. The plaintiff alleged that the defendants falsely accused him of being a “sexual predator” and “pedophile” who sexually harassed his female high school students. The defendants responded to the complaint by filing petitions to dismiss the action under the Tennessee Public Participation Act. The trial court held that the plaintiff failed to establish a prima facie case for each of his claims and dismissed the action. This appeal followed. We affirm.

Larry Short v. Roger Alston
W2022-00666-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge J. Weber McCraw

The appeal is dismissed due to the fact that Appellant’s brief wholly fails to comply with
Tennessee Rule of Appellate Procedure 27(a). In addition, there is no transcript or
Tennessee Rule of Appellate Procedure 24(c) statement of the evidence, thus negating this
Court’s ability to review the trial court’s substantive findings.

Clifford Leon Houston v. James F. Logan, Jr.
E2022-01696-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor Tom McFarland

Clifford Leon Houston (“Appellant”) filed a motion to stay foreclosure proceedings in
2010 in the Chancery Court for Roane County (the “trial court”). In September of 2022,
Appellant filed a motion to recuse the new Roane County Chancellor. The trial court
denied the motion to recuse and dismissed Appellant’s action for failure to prosecute.
Appellant appealed to this Court. Because his brief fails to comply with Tennessee Rule
of Appellate Procedure 27, Appellant’s issues are waived, and the trial court’s ruling is
affirmed.

Karen Elizabeth Phillips Lowe v. Robert Melvin Lowe
E2023-01061-COA-T10B-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Suzanne S. Cook

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, Karen Elizabeth Phillips Lowe (“Former Wife”),
seeking to recuse the judge in this post-divorce case. Having reviewed the petition for
recusal appeal filed by Former Wife, and finding no error, we affirm.

In Re Estate of Harold W. Williams
E2022-01621-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Dennis Roach, II

This appeal arises out of a claim filed by a decedent’s wife against his estate. Of note, the decedent’s will contained a provision bequeathing his wife all of his clothing, personal effects, automobiles, and all of his other tangible personal property. During an inspection of the decedent’s home following his death, the decedent’s relatives located a checkbook with a sizeable amount of money contained in it, while also locating a large sum of money left in his clothing and in a wallet taped to a pipe in the decedent’s bathroom. The decedent’s wife argues that this money constitutes tangible personal property left to her in the decedent’s will. The trial court rejected this argument, determining that the money constituted intangible personal property. Having reviewed the record, we affirm.

In Re Zakary O.
E2022-01062-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Beth Boniface

Mother appeals the termination of her parental rights to her eldest child on a number of grounds. We reverse the trial court’s finding that Mother engaged in only token visitation with the child during the relevant time period. We vacate the trial court’s finding that Mother failed to manifest an ability and willingness to parent because the trial court failed to make findings as to whether the return of the child would pose a risk of substantial harm. We affirm the trial court’s findings as to the remaining grounds, as well as the trial court’s finding that termination is in the child’s best interest.

Aureus Holdings, LLC, d/b/a Media Brewery v. 3803 Partners, LLC
M2022-00505-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Anne C. Martin

This case involves competing claims for breach of a commercial lease agreement. The tenant commenced this action seeking to recover the security deposit and pre-paid rent, contending that the landlord breached the lease by failing to comply with the notice-and-cure provision in the lease before leasing the premises to another tenant. The landlord denied any breach and filed a counterclaim for damages and attorney’s fees contending that the tenant breached the lease by not paying rent. Each party moved for summary judgment, seeking affirmative relief as well as dismissal of the other party’s claims. After ruling that the tenant was the first to materially breach the lease by failing to pay rent and holding that the landlord failed to comply with the notice-and-cure provision in the lease, the court summarily dismissed the tenant’s complaint and the landlord’s counterclaims. Both parties appeal. We affirm the dismissal of the tenant’s complaint but reverse the dismissal of the landlord’s counterclaims and remand for further proceedings consistent with this opinion.

Betty H. v. Williamson County et al.
M2022-00300-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge J. Russell Parkes

The mother of a minor filed suit against a county and county employees, alleging that the minor was sexually assaulted by a county employee while in custody at a county-run juvenile detention center. The trial court granted the county’s motion for summary judgment on several grounds, including that the county retained immunity under the Governmental Tort Liability Act because the claims against the county arose out of civil rights claims. Finding no error, we affirm the judgment of the trial court.

Charles Hardin, Jr. v. Amanda Warf
W2022-01048-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge J. Brent Bradberry

This appeal arises from the filing of a detainer warrant in general sessions court. The
plaintiff sought to remove the defendant and her mobile home from his real property. The
general sessions court granted possession of the real property to the plaintiff but ordered
him to pay for the removal of the mobile home. The defendant appealed to the circuit
court. The circuit court concluded that the plaintiff was entitled to the relief requested and
awarded him possession of his real property. However, contrary to the general sessions
court, the circuit court ordered the defendant to remove her mobile home from the
plaintiff’s real property at her expense. The defendant appeals. We affirm.

In Re Mary M.
W2021-00178-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge James F. Russell

In this appeal, the circuit court determined that the plaintiff had failed to timely perfect her
appeal from an order of the juvenile court. Upon our review of the record, we affirm the
ruling of the circuit court.

Ricky L. Boren v. Hill Boren, PC, et al.
W2021-01024-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Senior Judge Robert E. Lee Davies

In this lawsuit between former law partners, a jury returned a verdict in favor of Appellees.
The instant appeal involves Appellees’ attempt to collect their judgment. The trial court
held that Appellant’s qualified rollover IRA is not exempt from garnishment, attachment
and execution under Tennessee Code Annotated sections 26-2-105, 26-2-111(1)(D), 26-2-
26, and 56-7-203. The trial court also determined that a recreational vehicle was not held
as a tenancy by the entirety and was subject to attachment and execution as Appellant’s
individually-owned property. We reverse.

Anglin G. Wright v. Lisa Robison
M2023-00685-COA-R3-CV
Authoring Judge: PER CURIAM
Trial Court Judge: Judge Joe Thompson

This is an appeal from a final judgment entered on April 5, 2023. Because the appellant did not file her notice of appeal with the clerk of the appellate court within thirty days after entry of the final order as required by Tennessee Rule of Appellate Procedure 4(a), we dismiss the appeal.

Edward Ronny Arnold v. Deborah Malchow et al.
M2022-00907-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Amanda J. McClendon

This is the second appeal in this matter involving a motor vehicle collision that occurred on October 23, 2019, in Nashville. Upon remand, following dismissal of the first appeal for lack of subject matter jurisdiction due to the absence of a final judgment, the trial court granted summary judgment in favor of the individual tortfeasor and subsequently dismissed the plaintiff’s claim against his underinsured motorist insurance carrier. The plaintiff has appealed. Determining that the plaintiff has demonstrated the existence of a genuine issue of material fact with respect to his negligence claim, we vacate the trial court’s grant of summary judgment in favor of the tortfeasor. We further vacate the dismissal of the plaintiff’s underinsured motorist claim against his automobile insurer. We affirm the trial court’s judgment in all other respects and remand this matter to the trial court for further proceedings consistent with this opinion.