COURT OF APPEALS OPINIONS

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.

National Collage of Business & Technology and Remington College; Memphis Campus v. Tennessee Higher Education Commission
M2009-00137-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This appeal involves subject matter jurisdiction and exhaustion of administrative remedies. The petitioners filed an administrative petition with the defendant commission challenging a newly promulgated rule. Before the commission took action on the administrative petition,
the petitioners filed a complaint for declaratory judgment in the trial court, making essentially the same allegations. The commission filed a motion to dismiss in the trial court, arguing that the trial court did not have subject matter jurisdiction over the complaint, because the petitioners failed to exhaust their administrative remedies before filing the declaratory judgment lawsuit. The trial court granted the motion and dismissed for lack of subject matter jurisdiction. The petitioners now appeal. We reverse, finding that the trial court had subject matter jurisdiction over the petition.

Barry I. Chook v. Tashawn N. Pirela Jones and Kenneth Jones
W2008-02276-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

This is an appeal of a discovery matter. The plaintiff was involved in a motor vehicle
accident with the defendants. One year and one day after the accident, the plaintiff filed a
lawsuit asserting negligence. The complaint sought money damages for damage to property
and personal injury. The defendants filed a motion to dismiss based on the statute of
limitations. The plaintiff sought extensive discovery of the defendants’ personal records.
The trial court denied the plaintiff’s motion to compel discovery and granted the defendants’
motion to dismiss. The plaintiff now appeals. We find that the order from which the
plaintiff appeals is not a final judgment. Accordingly, we dismiss the appeal.

Clifton Lake, et al. v. The Memphis Landsmen, L.L.C., et al.
W2009-00526-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge John R. McCarroll, Jr.

This is an appeal from a jury verdict in a negligence and products liability case. Appellant-
Husband was injured when the bus, on which he was a passenger, collided with a concrete
truck. Appellant-Husband and Appellant-Wife filed suit against Appellees- the bus
manufacturer, the bus owner, and the franchisor. Following trial, the jury found that the
Appellants had suffered $8,543,630.00 in damages, but found that none of the Appellees
were at fault and apportioned one hundred percent of the fault to a non-party. Appellants
appeal. We find that Appellants’ claims based on the use of tempered glass in the side
windows of the bus, and the lack of passenger seatbelts in the bus are preempted by the
National Traffic and Motor Vehicle Safety Act, 49 U.S.C. §30101 et seq. Further, we find
that the Appellants failed to present evidence that the use of perimeter seating in the bus
caused the injuries. Consequently, we find that the trial court erred in not granting
Appellees’ motions for directed verdict on the Appellants’ claims based on the use of
perimeter seating. Reversed and remanded.

Joanne Wells v. Mark Wells
W2009-01600-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Robert L. Childers

This is divorce case, ending a fifteen year marriage. Appellant-Husband appeals from the trial court’s classification and division of marital property. Appellee-Wife appeals from the trial court’s decision to impute income to her. Finding no error, we affirm.

Tina Taylor, et al. v. Lakeside Behavorial Health System
W2009-00914-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Special Judge Charles O. McPherson

This is a medical malpractice case. Appellant filed suit against Appellee Hospital
after Appellant’s decedent suffered several falls and a broken hip while a patient at Appellee
Hospital. The trial court granted Appellee Hospital’s Tenn. R. Civ. P. 12.02(6) motion,
thereby dismissing Appellant’s amended complaint. Specifically, the trial court held: (1) that
the amended complaint was ineffective to give notice to Appellee Hospital because it did not
reference the date(s) of decedent’s falls, (2) that the medical malpractice claim and hedonic
damages of the widow arising therefrom were dismissed by previous orders of the court, and
(3) that the proof did not support the averments made in the amended complaint. After
review, we conclude: (1) that the amended complaint is sufficiently specific to satisfy Tenn.
R. Civ. P. 8, and to state a claim for medical malpractice against the Appellee Hospital, (2)
that the previous orders of the trial court only dismissed the wrongful death claims and
widow’s loss of consortium claims arising therefrom, and not the medical malpractice claims,
and (3) that the trial court reviewed matters outside the pleadings so as to trigger summary
judgment analysis under Tenn. R. Civ. P. 12.03, and (4) that there are disputes of material
fact in this case so as to necessitate a full evidentiary hearing on the medical malpractice
claim. Reversed and remanded for an evidentiary hearing on the medical malpractice claim
against Appellee Hospital and on the widow’s loss of consortium claims arising from the
alleged medical malpractice.

Brenda Duncan Albright vs. Randolph & Sherry Tallent - Concur
E2009-01983-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jerri S. Bryant

I concur with the majority’s decision to affirm the Trial Court’s denial of Plaintiff’s claim for adverse possession of the property in dispute. I also concur in the majority’s decision to affirm the Trial Court’s ruling that Defendants may construct the fence where proposed as that fence is constructed entirely on Defendants’ property and does not, as found by the majority, interfere with Plaintiff’s use of the easement in any way.

Michael Joseph Grant v. Foreperson For The Bradley
E2009-01450-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Jerri S. Bryant

This appeal arises from the trial court’s order overruling a pro se petition for writ of mandamus by the appellant. In the petition, the appellant sought access to the grand jury for Bradley County to present evidence of purported wrongdoing by the investigating officer of his case. The trial court denied the petition. On a different basis, we affirm.