COURT OF APPEALS OPINIONS

Brittney C. Shedd v. Tennessee Board of Nursing
M2024-01018-COA-R3-CV
Authoring Judge: PER CURIAM
Trial Court Judge: Judge Bonita J. Atwood

This is an appeal from an order dismissing a complaint for judicial review. Because the appellant did not file her notice of appeal with the clerk of the appellate court within thirty days after entry of the order as required by Tennessee Rule of Appellate Procedure 4(a), we dismiss the appeal.

In Re Ezra C.
M2023-00927-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Ronald Thurman

This action involves the termination of a father’s parental rights to his minor child. Following a bench trial, the court found that clear and convincing evidence existed to establish the statutory ground of termination of abandonment by failure to visit. The court also found that termination was in the best interest of the child. We affirm the trial court’s termination decision.

Niel Prosser, et al. v. Memphis and Shelby County Board of Adjustment, et al.
W2023-01057-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor JoeDae L. Jenkins

This case involves questions of zoning of non-residential real property located in a residential zoning district in Memphis. The genesis of the present dispute is specifically traceable to the Memphis and Shelby County Division of Planning and Development’s issuance of a zoning letter, wherein it was stated that use of the property at issue in this matter as a “Philanthropic Institution with Offices and Clinic” is a use permitted in accordance with a prior 2017 variance from zoning. The appellants herein, who own a home near the subject property, took umbrage with the zoning letter and appealed to the Memphis and Shelby County Board of Adjustment. When the Board of Adjustment rejected the appeal, thereby upholding the zoning letter, the appellants filed a petition for a writ of certiorari in Chancery Court. The Chancery Court ultimately upheld the action of the Board of Adjustment, following which the present appeal ensued. For the reasons stated herein, we reverse the Chancery Court’s decision to affirm the decision of the Board of Adjustment and remand for the entry of an order reversing the decision of the Board of Adjustment.

Tina Marie Eltzroth v. Danny Ray Eltzroth
E2023-00484-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Rex Henry Ogle

This appeal concerns setting aside a default judgment in a divorce case. Tina Marie Eltzroth (“Wife”) filed for divorce in the Circuit Court for Sevier County (“the Trial Court”) against Danny Ray Eltzroth (“Husband”). Husband was served but failed to timely answer. Wife filed a motion for default and notice of hearing. Husband, who was staying at multiple places during this time, failed to appear for the hearing. The Trial Court granted Wife a default judgment. Husband later filed a motion to set aside, which the Trial Court granted. Wife appeals. We find no abuse of discretion in the Trial Court’s granting of Husband’s motion to set aside the default judgment. We affirm.

Rodney DeWayne Barrentine v. Jimmy J. Kinsler
E2023-01274-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Douglas T. Jenkins

This is an appeal from a bench trial wherein the trial court found that the defendant had
materially breached a contract for the sale of real property by failing to complete the sale. The trial court further found that although the plaintiff had also breached the contract by failing to provide sufficient proof of funds within the contractual time frame, such breach was not material and the defendant was still obligated to perform his contractual duties. The trial court entered an order directing the defendant’s specific performance of the contract and awarding to the plaintiff reasonable attorney’s fees and costs, as provided for in the parties’ contract. The defendant has appealed. Discerning no reversible error, we affirm the trial court’s judgment. Pursuant to the parties’ contract, we grant the plaintiff’s request for reasonable attorney’s fees on appeal. We remand the case to the trial court for enforcement of the contract and for a determination of the plaintiff’s reasonable attorney’s fees and costs incurred on appeal.

Benjamin L. Folkins Et Al. v. Healthcare Group (Hong Kong) Co. Limited Et Al.
E2023-00759-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Kyle E. Hedrick

Defendants appeal from a trial court judgment finding the defendants in civil contempt of a bond order securing a judgment against those defendants and others. Because the underlying judgment on which the contempt finding is based has since been vacated by this Court, the contempt finding is also vacated.

State of Tennessee, ex rel., Alicia Janelle Collins v. Vikramjeet Sethi Singh
W2022-00239-COA-R3-JV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Harold W. Horne

The State of Tennessee, on behalf of Mother, sought child support for a minor child. The trial court, finding that there was no reliable evidence of Father’s income, imputed the statutory median gross income. Father appeals, asserting that the trial court erred in setting child support above his stated income and in finding that the evidence of his income was unreliable. Father also asserts that the court’s oral finding that he was willfully underemployed was procedurally deficient. We conclude that the trial court erred in imputing the statutory amount, vacate the award of child support, and remand for further proceedings.

Leiby Goldberger Et Al. v. Thomas J. Scott Et Al.
M2022-01772-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Anne C. Martin

This is an appeal from the denial of a petition to dismiss under the Tennessee Public Participation Act (“TPPA”), Tenn. Code Ann. §§ 20-17-101 to -110. The defendantpetitioner asserted that this action was filed by the plaintiffs in response to his “exercise of the right of free speech,” which the TPPA defines as “communication made in connection with a matter of public concern.” Specifically, the defendant-petitioner asserted that he was exercising his right of free speech regarding a matter of public concern when he made public the plaintiffs’ failure to disclose their involvement in prior franchise litigation and regulatory actions as required by franchising laws. The trial court denied the petition, finding that the TPPA did not apply because the claims did not involve issues or matters of public concern and free speech as referenced in the TPPA. This appeal followed. We respectfully disagree with this finding. We conclude that the defendant-petitioner presented prima facie evidence that the plaintiffs commenced this action in response to the defendantpetitioner’s exercise of free speech on a matter of public concern related to goods, products, or services in the marketplace. Specifically, the defendant-petitioner’s public dissemination of information via a website alleging that the plaintiffs were continuing to market franchises while withholding material information required to be disclosed by the Federal Trade Commission Franchise Rule. See 16 C.F.R. pt. 436. Accordingly, we reverse the judgment of the trial court and remand for further proceedings.

Susan B. Ferkin v. Katherine Bell
W2023-00514-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Damita J. Dandridge

This case involves a petition for judicial review filed pursuant to the Tennessee Public Records Act, Tenn. Code Ann. § 10-7-503, et seq., after the petitioner requested audio recordings of a third-party’s post-conviction hearings from a court reporter.  The circuit court dismissed the petition.  The petitioner appeals.  For the following reasons, the appeal is hereby dismissed.

In Re Leah T.
M2023-01338-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge J. Mark Rogers

In the second appeal in this case, Mother appeals the trial court’s determination that termination of her parental rights is in her child’s best interest. Discerning no reversible error, we affirm.

In Re Quentin G.
E2023-01632-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Amanda Magan Worley

This appeal arises from a petition to terminate parental rights. The trial court found by clear and convincing evidence that one ground for termination existed as to the father based on a prior adjudication of severe child abuse and that termination was in the best interest of the child. The father appeals. We affirm the trial court’s decision and remand.

Richard H. Niehaus Et Al. v. Darnell Wade Houfek Et Al.
M2023-00992-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge David D. Wolfe

This appeal, arising from a land dispute, concerns the trial court’s dismissal of several
claims against multiple parties pursuant to motions to dismiss filed under Rule 12.02(6) of
the Tennessee Rules of Civil Procedure. Although the terms of an “Agreed Final Order”
reflected that the Appellants waived their right to appeal any issue regarding two of the
parties in this case, the same order also signaled that nothing prevented the Appellants from
appealing matters involving two other individual parties. Through the present appeal, the
Appellants challenge the dismissal of their claims against these other individual parties.
Although we largely affirm the trial court’s dismissal order, we reverse in part.
Specifically, we hold that, on account of certain allegations that were pled pertaining to the
cutting of trees on the Appellants’ property, the wholesale dismissal of one of the individual
parties was improper.

Tino C. Sutton v. State of Tennessee
M2024-00760-COA-T10B-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Senior Judge Robert E. Lee Davies

This is an interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B, from the trial court’s orders denying the petitioner’s two pro se motions to recuse the trial court judge in the underlying restoration of citizenship action. The petitioner based his first motion to recuse in the instant case entirely upon actions and rulings made by the trial court judge in a previous civil case. He based his second motion to recuse on the same actions and rulings plus two additional orders, one entered by the trial court judge while the petitioner’s appeal of the first recusal denial was pending. Discerning no reversible error in the trial court judge’s denial of the motions to recuse, we affirm.

In Re Antonio P. et al.
M2023-01260-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Sheila Calloway

The trial court terminated a mother’s parental rights to two of her minor children on the grounds of abandonment by failure to visit, substantial noncompliance with the permanency plans, persistent conditions, and failure to manifest an ability and willingness to assume custody or financial responsibility of the children. We affirm the trial court’s ruling on all grounds. We also conclude that terminating the mother’s parental rights is in the children’s best interests and affirm the trial court’s ultimate ruling.

Rimon Abdou v. Wesley Ben Clark Et Al.
M2023-01461-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Thomas W. Brothers

In this legal-malpractice case, the trial court granted Appellees’/Attorneys’ Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a claim. Appellant/Client appeals. Discerning no error, we affirm and remand.

Teofila H. Mocny v. Ronald G. Mocny
M2023-00737-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge M. Caleb Bayless

This is an appeal of a divorce case. Although we affirm in part and reverse in part, we also vacate several aspects of the trial court’s judgment for the reasons stated herein and remand for further proceedings consistent with this Opinion.

Christine Christopher v. Walmart Associates, Inc.
E2023-01078-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Kyle E. Hedrick

A plaintiff sued a grocery store for premises liability, and the case was tried by a jury in June of 2023. The jury
found the defendant store liable but awarded the plaintiff no damages. The plaintiff then appealed to this Court.
However, because the plaintiff has failed to substantially comply with the Tennessee Rules of Appellate Procedure
regarding briefing, any issues purportedly raised by the plaintiff are waived, and the appeal is dismissed.

In Re Estate of William Rucker
M2023-01120-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Amanda J. McClendon

Following the Decedent’s death, no original will could be found. One of his daughters filed a petition to administer a copy of a lost will, which the trial court granted. We reverse, concluding the evidence does not overcome the strong presumption in favor of revocation of the lost will.

F. W. White & Associates, LLC Et Al. v. John R. Chilton Et Al.
E2023-00414-COA-R3-COA-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Senior Judge Don R. Ash

This appeal arises from a business relationship that deteriorated. F.W. White & Associates, LLC (“FWA”), through Fenton W. White, Jr. (“White”) (“Appellees,” collectively), sued John R. Chilton (“Chilton”), Centennial
Village Apartments, LLC, and Centennial Village Development, LLC (“Appellants,” collectively) in the Chancery
Court for Anderson County (“the Trial Court”) for breach of contract and quantum meruit. Appellants, in turn,
sued Appellees for slander of title based on Appellees’ having recorded a document asserting an interest in the
real property at issue. Appellants also sued FWA’s attorney Gregory Pratt (“Pratt”), who recorded the document. The Trial Court granted summary judgment to Pratt based on the litigation privilege. Following a
bench trial, the Trial Court awarded FWA judgment against Appellants in the amount of $125,000.00 for money
owed under a May 2008 consulting agreement (“the 2008 Agreement”). Regarding Appellants’ slander of title
claim, the Trial Court found that White believed he was owed money and did not act maliciously. Appellants
raise several issues on appeal. Meanwhile, Appellees contend that the Trial Court erred in declining to award
FWA its attorney’s fees and costs under the 2008 Agreement. We affirm the Trial Court. On remand, the Trial
Court is to determine and award to FWA its reasonable attorney’s fees and costs incurred on appeal related to
the enforcement of the 2008 Agreement.

Brett Thomas Ferguson v. Lucy Maria Traughber
M2023-01052-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joel Perry

The trial court granted Appellee/Father’s petition to change his son’s surname from Appellant/Mother’s surname to Father’s. Mother appeals. Because Father did not carry his burden of proof to demonstrate that changing the child’s name is in the child’s best interest, we reverse and remand.

Tina M. Vasudeva v. Kathie Barker
M2023-01121-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Larry B. Stanley, Jr.

The trial court granted Appellee’s motion for extension of an order of protection against
Appellant. Appellant argues that her due process rights were violated insofar as she was
denied the opportunity to confront witnesses and offer testimony. Based on the statement
of the evidence, we agree. Vacated and remanded.

Kathleen Nell Snapp v. Timothy Alva Snapp
E2023-00251-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Chancellor Katherine Leigh Priester

In this divorce appeal, the husband challenges the trial court’s classification of real estate as marital property and
its ruling regarding dissipation of the marital estate. Following a thorough review of the record, we affirm the
judgment of the trial court.

Rebecca Byrd v. Clarksville-Montgomery County School System
M2023-01210-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ben Dean

A tenured teacher sought judicial review of her reprimand and one-day suspension. The chancery court modified the discipline imposed by the director of schools. Because we conclude that the teacher did not timely petition for judicial review, we vacate the judgment with instructions to dismiss for lack of subject matter jurisdiction.

James R. Tarwater v. Hardik Patel Et Al.
E2024-00043-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor James H. Ripley

Because the order from which the appellant has filed an appeal does not constitute a final appealable judgment,
this Court lacks jurisdiction to consider this appeal.

Loring Justice v. Kim Nelson Et Al.
E2023-00407-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Melissa Thomas Willis

Loring Justice (“Justice”) filed a complaint against Kim Nelson (“Nelson”); David Valone (“Valone”) and the Law
Office of David Valone (collectively, “Valone Defendants”); and Martha Meares (“Meares”), and Meares and
Associates and/or Meares and Dillard (collectively, “Meares Defendants”), (collectively, “Defendants”) in the
Chancery Court for Knox County (“the Trial Court”). Justice alleged, inter alia, wrongful execution of judgment and
abuse of process. Nelson filed a motion to classify Justice’s action as an abusive civil action (“ACA”) pursuant to
Tenn. Code Ann. § 29-41-101, et seq. The Trial Court granted Nelson’s ACA motion, and Justice appealed. Having
reviewed the evidence, we affirm, albeit for somewhat different reasons than provided by the Trial Court.