COURT OF APPEALS OPINIONS

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.

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.

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.

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.

Vandity A. Mitchell v. State of Tennessee
M2022-00696-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This appeal involves a personal injury action arising out of a car accident in a state parking lot. The original defendants raised the defense of comparative fault by the State of Tennessee, and the plaintiff filed a notice of claim in the Division of Claims and Risk Management and, later, filed a complaint in the Claims Commission. After the Claims Commission transferred the matter to circuit court, the State moved to dismiss based on the expiration of the statute of limitations, and the court granted the motion. We affirm the trial court’s ruling because, under Tenn. Code Ann. § 20-1-119, the complaint initiating a suit against the State was filed in the Claims Commission after the expiration of the 90-day grace period provided by the statute. Furthermore, we find the plaintiff’s argument that the State waived the statute of limitations defense unpersuasive.