COURT OF APPEALS OPINIONS

James LaFayette Moore v. Turney Center Disciplinary Board, et al.
M2009-01056-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge James G. Martin, III

Inmate appeals the trial court’s dismissal of a petition for writ of certiorari challenging a decision of the prison disciplinary board. Because we have determined that the trial court erred in failing to allow the inmate to amend his petition, we vacate the trial court’s order of dismissal and remand for further proceedings.

James Morton Burris v. Lisa Estes Burris
M2009-00498-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Royce Taylor

This is a divorce case ending a twenty-one year marriage. Following a three day trial, the trial court entered a parenting plan naming Appellee/Father as the primary residential parent, granting Father decision making authority, and providing Appellant/Mother with visitation. The trial court also entered judgment against Mother for retroactive child support since the parties separation and for marital debts that had been paid by the Father during the separation. Discerning no error, we affirm.

Mark Wayman d/b/a Able Towing Company v. Transportation Licensing Commission of the Metro Government
M2009-01360-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Claudia C. Bonnyman

The Transportation Licensing Commission revoked Petitioner's license to operate a wrecker service. The chancery court upheld the revocation. We affirm.

Carl E. Watson v. Robert P. Fogolin, M.D.
M2009-00327-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Joseph P. Binkley, Jr.

The plaintiff, proceeding pro se, initially brought suit in General Sessions Court against his former physician for defamation (libel and slander), breach of contract, and violation of the privacy provision of the Health Insurance Portability and Accountability Act ("HIPAA"). The General Sessions Court awarded a judgment of $25,000 to the plaintiff. The defendant timely appealed to the Circuit Court and filed a motion for summary judgment. The plaintiff then amended his claims to include an alleged violation of the Federal Privacy Act of 1974 and medical malpractice. Following a hearing, the Circuit Court granted summary judgment to the defendant physician, reversing the Sessions Court judgment and holding that (1) the defamation claim was barred by the statute of limitations; (2) Department of Education forms completed by the defendant physician on behalf of the plaintiff did not constitute a contract; (3) HIPAA and Federal Privacy Act of 1974 claims had been withdrawn by the plaintiff; and (4) the plaintiff was unable to produce expert testimony to prove a claim of medical malpractice. The plaintiff timely appealed. We affirm.

Beth Proffitt v. Smoky Mountain Woodcarvers Supply, Inc.
E2009-00667-COA-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Dale Young

The plaintiff filed this action seeking to review the business records of the defendant, asserting under oath that she is a 25 percent shareholder of the defendant corporation. The defendant moved to dismiss. The trial court found that the plaintiff had complied with the requirements of Tenn. Code Ann. §48-26-104(a) – the corporate records statute – and ordered the defendant to comply with the request to inspect and/or copy corporate records. The trial court also ordered the defendant to pay the plaintiff’s attorney fees. We reverse.

Christenberry Trucking & Farm, Inc. v. F&M Marketing Services, Inc.
E2009-01325-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor John F. Weaver

Christenberry Trucking & Farm, Inc., initiated this litigation against F&M Marketing
Services, Inc., with a complaint seeking a declaration that Christenberry had not contracted
to pay F&M a commission on loads Christenberry hauled for UPS/Dell Computer (“the
UPS/Dell account”). F&M filed an answer and counterclaim asking for a determination that
there was a contract with respect to the UPS/Dell account under which Christenberry was
obligated to pay F&M a commission of 6%. F&M’s counterclaim also asked for an
accounting and attorney’s fees. The case was tried without a jury, after which Christenberry
was allowed to amend its pleadings to allege that if there was a contract it was illegal and
unenforceable because F&M is not licensed as a broker by the Interstate Commerce
Commission (“the ICC”). The trial court found that there was a contract between
Christenberry and F&M, but that the contract was rendered illegal and unenforceable because
of F&M’s lack of a broker’s license. F&M hired new counsel who filed a notice of appeal
that did not contain the signature of its trial counsel. Christenberry filed a motion with the
trial court to strike the notice of appeal. Six days later, F&M filed an amended notice of
appeal which bore, in addition to the signature of its new appellate counsel, the signature of
its counsel of record in the trial court. F&M argues on appeal that it was not required to be
licensed and, alternatively, that the contract should not be nullified for its lack of a license,
even if one was required. Christenberry argues that the notice of appeal is ineffective. We
vacate the judgment of the trial court and remand for further proceedings.

Thomas E. Crowe v. Bradley Equipment Rentals & Sales, Inc.
E2008-02744-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Jerri S. Bryant

Plaintiff filed this lawsuit alleging malicious prosecution, abuse of process, false arrest, false imprisonment, outrageous conduct, violation of Article 1, Section 18 of the Tennessee Constitution, and various violations of 11 U.S.C. § 362, and 42 U.S.C. §§ 1983 and 1985. After removal of the lawsuit to federal court, the United States District Court for the Eastern District of Tennessee dismissed the federal claims and remanded the state law claims back to the state trial court. The trial court subsequently granted a motion for summary judgment and dismissed the remaining claims. We affirm.

Marilou Gilbert v. Don Birdwell and wife, Christine Birdwell
M2009-01743-COA-R3-CV
Authoring Judge: J. Steven Stafford, J.
Trial Court Judge: Jeffrey L. Stewart, Chancellor
This case arises from a boundary line dispute. Appellants appeal the trial court's denial of their petition to reopen proof after the court rendered its decision, establishing the disputed boundary in accordance with the Appellee's survey. Finding no error, we affirm.

In the matter of: Sydney T. C. H.
M2009-01230-COA-R3-JV
Authoring Judge: J. Steven Stafford, J.
Trial Court Judge: Max D. Fagan, Judge
This is an appeal from the Juvenile Court's decision finding Mother guilty of three counts of criminal contempt. Finding the orders of the Juvenile Court to be lawful, specific and unambiguous, and that the evidence was sufficient to support a finding of willfulness, we affirm. Also, we find that the permanent injunction entered by the Juvenile Court to be a lawful order of that court.

Rennee N. Dhillon v. Gursheel S. Dhillon
M2009-00017-COA-R3-CV
Authoring Judge: Andy D. Bennett, J.
Trial Court Judge: Jeffrey S. Bivins, Judge
Husband raises numerous issues regarding the trial court's handling of this divorce. He asserts that the court erred in denying his motion to dismiss based upon improper venue, in approving the parties' marital dissolution agreement and denying his subsequent motion to set aside the agreement, in denying his petition to modify pendente lite support, in failing to address Wife's alleged efforts to alienate the parties' child from Husband, and in awarding excessive attorney fees to Wife. We affirm the trial court's decisions, and because Husband's appeal is frivolous, we award Wife her attorney fees on appeal.

Stephanie D. Hill v. City of Germantown, Tennessee; Germantown Police Department; Board of Mayor and Alderman of the City of Germantown, Tennessee
W2009-00308-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Arnold B. Goldin

This appeal involves the termination of a municipal police officer. The housemate of the petitioner police officer accidentally damaged the police officer’s take-home police vehicle. Although the police officer suspected that her housemate caused the damage, the police officer nevertheless filed accident and insurance loss reports indicating that the damage was caused by an unknown driver. About two months later, the police officer and her housemate had a tumultuous break up. After that, the police officer’s supervisor discovered that the damage to the police vehicle may have been caused by the housemate. After an internal affairs investigation, the police officer was charged with violating police department rules regarding neglect of duty and lack of truthfulness. After a hearing before the municipal board, the police officer was found to have violated these rules and her employment was terminated. The city administrator upheld the termination. The police officer then filed the instant petition for writ of certiorari, challenging the administrative decision. The trial court
granted the petition, holding that the termination of the police officer’s employment was not supported by material evidence and, therefore, was arbitrary and capricious. The city now appeals. We reverse, finding that material evidence supported the administrative decision to terminate the police officer’s employment.

John Allen Construction, LLC v. Jerome Hancock, Sandra Hancock, and Carroll Bank and Trust
W2008-02785-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Ron E. Harmon

This is a construction case. The defendant landowners entered into an oral contract with the
plaintiff contractor to construct a house. When the house was substantially completed, the
homeowners terminated the builder, citing defective work. At the time of termination, there
were two unpaid invoices. After filing a notice of lien on the landowners’ property, the
contractor filed suit for breach of contract and to enforce the lien. The landowners
counterclaimed for breach of contract and sought damages stemming from the defective
work. After a trial, the trial court entered judgment for the contractor and awarded a portion
of the amount sought. The trial court’s order did not address enforcement of the contractor’s
lien. The landowners appeal. Because the trial court’s order does not address, among other
things, enforcement of the lien, it is not a final judgment, and this Court does not have
jurisdiction over the appeal. Therefore, we dismiss the appeal and remand the case to the
trial court for further proceedings.

Madison Co. Sheriff's Dep. and The Madison Co. Civil Service Commission for Madison Co. Sheriff's Dep.
W2009-00099-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Allen W. Wallace

This appeal involves the termination of a sheriff’s department employee. The employee was terminated and appealed the termination to the county civil service commission. The termination was upheld by the commission, based solely on expert testimony. The employee then sought judicial review. The motion for summary judgment filed by the employer sheriff’s department was granted, and the employee’s petition was dismissed. The employee now appeals. We find that the expert testimony on which the commission relied is incongruent with the undisputed facts in the record. Therefore, we conclude that the commission’s decision is not supported by substantial and material evidence and is arbitrary and capricious. We reverse the grant of summary judgment in favor of the employer and remand for entry of judgment in favor of the employee.

Harrison Kerr Tigrett v. John E. Linn, M. D, et al.
W2009-00205-COA-R9-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Kay S. Robilio

This is a Tenn. R. App. P. 9 appeal of the denial of a motion for summary judgment in a
medical malpractice case. The trial court denied Appellants/Defendants’ motions for
summary judgment, finding that the statute of repose, Tenn. Code Ann.§29-26-116(a)(3), was
tolled as a result of fraudulent concealment on the part of Appellants/Defendants. Finding
that there are material issues of fact in dispute, we affirm the trial court’s denial of
Appellants’ motions for summary judgment. We, however, vacate any decision that the
statute of limitations was tolled as a result of fraudulent concealment.

Scott Campbell, et al. v. William H. Teague, et al.
W2009-00529-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor James F. Butler

This is a construction case. Appellants/Builders appeal the trial court’s award of damages
to Appellees/Homeowners pursuant to the Tennessee Consumer Protection Act, and arising
from Appellants/Builders’ breach of warranty and contract. Discerning no error, we affirm.

Donald Simmons vs. KC Construction and Consulting, Inc., et al.
E2009-01005-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

Plaintiff brought this action for breach of contract. The issues were referred to a Special Master, and the plaintiff on the hearing date, acting pro se, asked for a continuance which the Master denied. The defendant moved to confirm the Master's report and a hearing was set on the Motion. The plaintiff, again acting pro se, asked for a continuance, which was again denied. The plaintiff, acting pro se, moved to set aside the Judgment because he did not get a full ten days to file objections, and the court set aside the Judgment and set another hearing date. After hearing plaintiff's objections, the Court affirmed the Special Master's report and entered Judgment. Plaintiff, on appeal, raises the issues of whether the Trial Court erred in not sustaining objections to the Master's report, whereby the Master allowed defendant to interview witnesses and exhibits at the hearing without compliance with local rules that require the parties to exchange names of witnesses in advance of trial, and whether the Trial Court erred in denying plaintiff's motion for continuance. We affirm the Judgment of the Trial Court.

State of Tennessee ex rel., Carla S. (Nelson) Rickard v. Douglas Taylor Holt
M2009-01331-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: C. L. Rogers

In Re: Tristan J.K.S.
E2009-00703-COA-R3-JV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Jeffrey D. Rader

The appellee filed a Petition for Contempt against respondent for failing to pay child support. The Trial Court found respondent in contempt, entered Judgment for back child support, but later purged the Judgment for incarceration. The respondent has appealed, arguing that the Trial Court erred in finding him in civil contempt, and it was not appropriate to incarcerate him to enforce the Court's orders. On appeal, we affirm the Judgment of the Trial Court.

Frank Garrett, et al. v. City of Memphis et al.
W2009-01506-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Walter L. Evans

This appeal concerns the discretion of the Memphis Police Department to fill vacant civil
service positions with temporary, “acting” personnel prior to the expiration of an active
promotion roster. The trial court concluded the Memphis City Charter does not mandate
permanent promotion of the next eligible employee from an active promotion roster simply
because a vacancy exists. The court further concluded that no charter provision or city
ordinance prohibits the use of acting appointments; rather, the proof showed that the use of
officers in an acting capacity is a longstanding policy within the police department and every
other division of city government. As a result, the court held that the department did not
violate civil service laws when it declined to permanently promote the plaintiffs. Finding no
error in the decision below, we affirm.

In Re: The Estate of Mary Jane McLister Anderson Owen, Deceased
W2009-01531-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancelor William C. Cole

This is a will construction case. The decedent died testate in July 2008. The personal
representative of the decedent’s estate filed this action to construe provisions of the
decedent’s will concerning the control of specifically devised farm property. The chancery
court determined that the decedent intended for the property to remain subject to the control
of her estate pending administration. Because the unambiguous language of the will
pointedly excludes specifically devised real property from the control of the personal
representative, we reverse and remand.

Terrie Lynn Hall Hankins v. James Michael Hankins
W2009-00240-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge John R. McCarroll, Jr.

This appeal arises from a divorce action. Husband appeals the trial court’s classification and
division of property, the award of alimony in futuro to Wife, and the award to Wife of a
portion of her attorney’s fees. We affirm.

Breath of Life Christian Church v. Travelers Insurance Company
W2009-00284-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Arnold B. Goldin

The trial court awarded summary judgment to Defendant surety in this breach of contract action. We affirm.

Eduardo SantAnder, Plaintiff-Appellee, American Home Assurance Co., Intervenor-Appellant, v. Oscar R. Lopez, Defendant
M2009-01210-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge J. Mark Rogers

Plaintiff was involved in a motor vehicle accident during the course and scope of his employment. Plaintiff brought a tort action against the driver of the other vehicle, and subsequently entered into a settlement with his employer and the workers' compensation carrier. Plaintiff then reached a settlement in the tort case, but before Judgment was entered his employer filed a Petition to Intervene in that case, asserting a subrogation lien on the tort recovery. The Trial Judge refused to allow intervention on the grounds that the Petition to Intervene was not timely filed. On appeal, we reverse and remand.

Deborah Southern Antrican vs. Alvin Michael Antrican
E2009-01028-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor E.G. Moody

This is a divorce case following a long-term marriage. Following a trial, the Trial Court classified the property as separate or marital, divided the marital property, awarded Wife $30,000 as her share of farm income that was earned after the parties separated, and awarded Wife alimony in futuro of $800 per month and alimony in solido of $20,000 for partial payment of her attorney fees. Both parties appeal raising various issues. We modify the award of $30,000 in farm income to an award of $2,184. We also modify the award of alimony in futuro to be $400 per month, with this modification to become effective sixty days from the date our judgment is entered. In all other respects, the judgment of the Trial Court is affirmed.

Grady Hayes Brown v. State of Tennessee
W2009-00907-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Commissioner Nancy C. Miller-Herron

The Tennessee Claims Commission dismissed this claim for negligent deprivation of a statutory right upon finding that the statute relied upon contained no private right of action. We affirm.