COURT OF APPEALS OPINIONS

R&F Enterprises, Inc., v. Mike Penny, d/b/a Integrated Electrical Concepts, Inc.
E2009-00007-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge W. Jeffrey Hollingsworth

The Sessions Court set aside plaintiff's default judgment based on Tenn. R. Civ. P. Rule 60
motion. On appeal to the Circuit Court the original judgment was ordered reinstated and the
order setting aside the judgment in Sessions Court was vacated. On appeal, we affirm the
judgment of the Trial Court on the grounds that the Sessions Court Judge did not have
jurisdiction to set aside the original default judgment.

Laura Jan Melton v. Bnsf Railway Company
W2009-00283-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Kay S. Robilio

This is an appeal from a jury verdict in favor of the Appellee in a case based on the Federal
Employer’s Liability Act,45 U.S.C. § 51 et seq. Appellee filed this case as the widow and
personal representative of her husband, who died as a result of injuries he sustained while
working for the Appellant. Appellant appeals, arguing that the trial court erred in not
granting it a directed verdict, in not granting its motion for new trial, in making several
evidentiary rulings during the trial, and in not granting its motions for mistrial. We affirm
the trial court’s denial of the Appellant’s motions for directed verdict, finding that the
Appellee presented sufficient proof to create a question for the jury. However, finding that
the trial court erred in allowing the Appellant’s expert to be questioned on a non-testifying
expert’s deposition, and that the jury was more likely than not guided by prejudice, passion,
and bias, we reverse the trial court’s decision denying Appellant’s motion for new trial.
Further, finding material facts in dispute, we reverse in part and affirm in part the trial court’s
decision on Appellant’s motion for summary judgment. Reversed in part, affirmed in part
and remanded.

Jack Marler Van Hooser v. Susan McCreight Van Hooser
W2009-01191-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Jerry Stokes

This is an appeal from the trial court’s award of alimony, division of marital property, and
grant of divorce. Husband filed the initial complaint for divorce. Subsequently, wife filed
a counter-complaint seeking a decree of legal separation. Wife later amended her  countercomplaint to allege fraud and sought damages based on her fraud claim. Because the trial court failed to rule on the wife’s claim of fraud, no final judgment exists. Accordingly, this
court lacks subject matter jurisdiction and the appeal is dismissed.

Jacqueline Redmon v. City of Memphis, et al.
W2009-01520-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Arnold B. Goldin

A City of Memphis employee was terminated after accessing a city-owned database to obtain
the telephone number of a police officer who had arrested her husband and calling the officer
at his home to inquire about the arrest. Both the City of Memphis Civil Service Commission
and the trial court upheld her termination, and we affirm.

Evan Ethelread Arrindell v. Gail Marvita Shipp Arrindell
W2009-00575-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge John R. McCarroll, Jr.

This is a divorce appeal. The parties had a twenty-one-year marriage and one minor child at the time of divorce. For the majority of the parties’ marriage, the husband owned a business, and the wife was a homemaker. After a trial, the trial court declared the parties divorced, designated the wife as the child’s primary residential parent, divided the martial estate, and awarded child support, transitional alimony, and alimony in futuro. The wife appeals. We affirm the judgment of the trial court as modified.

Willie Wash v. Correctional Corporation of America
W2008-02856-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge J. Weber Mccraw

Appellant filed a complaint alleging various causes of action against numerous defendants. The trial court dismissed his complaint for failure to comply with the requirements of Tenn. Code Ann. § 41-21-801, et seq. We affirm.

In Re: Emma E.
M2008-02212-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Charles L. Rich

This case concerns the allocation of parental responsibility between two unmarried parents of a minor child. Prior to trial, the father’s attorney acknowledged removing a set of confidential records from the court clerk’s office in violation of a qualified protective order. The juvenile court declined to hold the father’s attorney in contempt and later admitted the records over the objection of the mother’s counsel. At trial, the court treated the father’s petition for change of custody as an original petition to establish residential parenting time. The court designated the mother primary residential parent, awarded the parties equal parenting time, granted the parties joint decision-making authority over all major life decisions, and ordered the mother to pay the father child support. The mother appeals. We affirm.

Johanna L. Gonsewski v. Craig W. Gonsewski
M2009-00894-COA-R3-CV
Authoring Judge: Judge Frank G. Clement
Trial Court Judge: Judge Tom E. Gray

The wife in this divorce action contends the trial court erred in the division of the marital property, in denying her request for alimony, and in denying her request to recover her attorney’s fees. We have determined the wife is in need of and the husband has the ability to pay alimony in futuro, in the amount of $1,250 per month, and that she is entitled to recover attorney’s fees. We, therefore, reverse the judgment of the trial court regarding alimony in futuro and remand the issue of attorney’s fees, leaving it to the discretion of the trial court to determine an amount that is  reasonable and necessary under the circumstances of this case. We affirm the trial court in all other respects.

Sheree Macleod vs. Loretta McKenzie
E2009-01076-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge W. Dale Young

Plaintiff was injured in an accident while in an automobile operated by defendant. Plaintiff's action charges defendant with negligent operation of the motor vehicle, causing the accident and her resulting injuries. Defendant was operating her vehicle on a wet roadway. She skidded, which she claims was the sole cause of the accident. The Trial Court granted defendant summary judgment. On appeal, we hold that there are disputed issues of material fact as to whether defendant was negligent in the operation of her motor vehicle, independent of the vehicle's skidding, and remand the case for trial.

Sherri J. Hager, et al., vs. Ramsey G. Larson, M.D., et al
E2009-00407-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge John K. Wilson

In this medical malpractice action, defendants filed affidavits along with a summary judgment motion, setting forth that they had met the standard of care in their treatment of plaintiff, Sherri J. Hager. The hearing on the summary judgment was continued and plaintiffs were directed to furnish the Court with an affidavit to support their claims. Plaintiffs filed the affidavit of a physician who specialized in internal medicine, who opined that defendants failed to meet the standard of care in treating plaintiff, but stated repeatedly in the deposition that he could not offer an opinion on causation of any injury that would merit an award of damages, since he was an internal medicine specialist. The Trial Court granted defendants summary judgment and, on appeal, we affirm.

In Re: Johnny E. K.
E2009-01634-COA-R3-PT
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Chancellor W. Frank Brown, III

In this action to terminate the parental rights of both parents of J.E.K., the Trial Court, after hearing evidence, ruled that several statutory grounds for termination of both parents' parental rights had been established by clear and convincing evidence, as well as clear and convincing evidence that it was in the child's best interest for the parents' rights to be terminated. On appeal, we affirm the Judgment of the Trial Court.

In the Matter of: Emily A., Megan A., and Lindsey A.
M2009-01710-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge George L. Lovell

This is an appeal in a termination of parental rights case. Finding that the statutory grounds of substantial non-compliance with a permanency plan and persistence of conditions, and that termination is in the best interest of the children, have all been shown by clear and convincing evidence, we affirm.

State of Tennessee ex rel. Robert L. Wolfenbarger, III., et al., v. Scott Moore, et al.
E2008-02545-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Jon Kerry Blackwood, Sr.

Sixteen "citizen plaintiffs" filed this ouster suit against Scott Moore and Paul Pinkston, Knox
County Commissioners. Plaintiffs demanded a jury, which the Trial Court disallowed and,
following an evidentiary hearing, the Trial Judge found that Scott Moore should be removed
from office, but held the petitioners were unsuccessful in their attempt to oust Paul Pinkston.
The parties have appealed and we hold that plaintiffs are entitled to a jury to decide the
factual issues in dispute and vacate the Trial Court's Judgment as to Paul Pinkston and
remand for a new trial. The Judgment as to Scott Moore is affirmed.

Samuel S. Haines v. Henry County Board of Education
W2008-02532-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Donald E. Parish

This appeal arises out of an auto accident. The trial court entered judgment in favor of the plaintiff. The defendant appeals, arguing that the plaintiff’s evidence was insufficient to prove causation. We reverse the judgment of the trial court and enter judgment in favor of the defendant.

In Re: Adoption of N.A.H., a minor (d/o/b 06/06/03)
W2009-01196-COA-R3-CV
Authoring Judge: Chancellor Arnold Goldin
Trial Court Judge: Judge David R. Farmer

This appeal arises from the trial court’s order dismissing Petitioners’ petition for termination of parental rights and for adoption upon determining that the petition was invalid as a matter of law where it was jointly filed by the child’s maternal great-aunt and her daughter, the child’s aunt. The trial court awarded Father sanctions pursuant to Rule 11 of the Tennessee Rules of Civil Procedure. We reverse the award of sanctions to Father and dismiss the remainder of the appeal on the grounds
of mootness.

Condominium Management Ass., Inc., v. Fairway Village Owner's Ass., Inc.
W2009-00688-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Arnold Goldin

Property manager CMA sued homeowner’s association Fairway Village when Fairway Village failed to pay money owed to CMA for management fees and property repairs. Fairway Village counter-claimed against CMA and cross-claimed against CMA President Willingham, claiming that both had defrauded Fairway Village. Following protracted litigation, the chancery court dismissed Fairway Village’s claims against CMA and Willingham, finding that it had failed to carry its burden of proof. The chancery court awarded CMA a judgment for fees and repairs, as well as a reduced attorney fee, but it denied CMA’s request for prejudgment interest. We affirm the chancery court’s finding that CMA owed no fiduciary duty to Fairway Village, its exclusion of accountant Hood’s testimony, and its award of attorney fees to CMA. We find that the chancery court’s
judgment was not against the weight of the evidence, and we reverse its denial of prejudgment interest. We award CMA its attorney fees on appeal. This case is remanded to the trial court for a determination of prejudgment interest and appellate attorney fees owed to CMA.

Taylor N. French, et ux. v. Riverbluff Cooperative, Inc., et al.
W2009-00374-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge D'Army Bailey

Defendants appeal the trial court’s order denying their motion for attorney’s fees due under the terms of the parties’ contract. We reverse and remand for further proceedings.

Dalton Reb Hughes and wife, Sandra Hines Hughes v. Metropolitan Government of Nashville and Davidson County, Tennessee
M2008-02060-COA-R3-CV
Authoring Judge: Presidng Judge Alan E. Highers
Trial Court Judge: Judge Thomas W. Brothers

A Metro public works employee was injured when a front end loader operated by a Metro fire department employee made a loud noise, causing the public works employee, fearing for his life, to fall while attempting to jump over a guardrail. The injured plaintiff filed suit against Metro and the defendant front end loader operator. Metro filed a cross-claim against the defendant as well as a counter-claim against the plaintiff seeking a subrogation of lost wages and medical payments recovered from the defendant. The trial court found that the defendant acted negligently and within the scope of his employment, and thus, it found that Metro’s immunity was removed pursuant to the Governmental Tort Liability Act. Accordingly, the trial court entered a judgment for the plaintiff against Metro, and itdismissed the claims against the defendant. On appeal, Metro argues that the defendant acted intentionally, rather than negligently, and that his conduct was outside the scope of his employment, such that Metro retains its immunity. We affirm.

Dana Foust Bochette v. Michael Louis Bochette
M2009-00113-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Judge Clara W. Byrd

Wilson County- In this divorce case, the Trial Court awarded the wife the divorce, and awarded her alimony in solido. One-half of the equity in the home was awarded to the wife, and other one-half of the equity in the home was awarded to the wife as alimony in solido. The Court also awarded the wife one-half of the workers' compensation settlement proceeds obtained by the husband during the marriage. On appeal, the husband questioned the distribution of the marital property and the Trial Court's ruling that the workers' compensation award was also marital property. On appeal, we affirm the Judgment of the Trial Court.

James K. Patterson, M.D. v. Methodist Heathcare- Memphis Hospitals
W2008-02614-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Karen R. Williams

The plaintiffs/appellants, two doctors, filed suit after they were deemed to have voluntarily relinquished their medical staff privileges at Methodist Healthcare-Memphis Hospitals for failure to maintain compulsory insurance coverage. The doctors’ complaint and amended complaint alleged breach of contract, intentional interference with business relationships, common law retaliatory discharge, and violation of federal and state whistleblower statutes. In separate orders, the trial court dismissed the doctors’ whistleblower and retaliatory discharge claims. The court later granted summary judgment in favor of the defendant on the remaining claims. We affirm.

Katherine Dodge Gribben Warwick v. Edward Joseph Warwick, Sr.
E2009-00635-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Jeffrey Hollingsworth

After ten years of marriage, Katherine Dodge Gribben Warwick (“Wife”) filed a complaint
for divorce against her spouse, Edward Joseph Warwick, Sr. (“Husband”). Pursuant to the
parties’ pre-trial stipulation, the court granted Husband a divorce; incorporated the parties’
agreed permanent parenting plan; and distributed some of the parties’ personal property.
Following a bench trial, the court classified, valued, and distributed the balance of the
parties’ property. Husband appeals, challenging (1) the court’s decree as to how Wife was
to receive her equity in the marital home, (2) the classification and allocation of certain debts,
and (3) the overall property division. We affirm.

Corporacion Euanitos, S.A., et al. v. Montlake Properties, Inc. et al.
E2008-01548-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor W. Frank Brown, III

Corporacion Euanitos, S.A. (“Plaintiff”) sued Montlake Properties, Inc.; Montlake Property
Owners Association, Inc.; and Luken Properties, LLC seeking, in part, a restraining order and
a permanent injunction prohibiting the defendants from pumping water from a lake,
Montlake, located in Hamilton County. After a trial, the Trial Court entered its order finding
and holding, inter alia, “[t]hat Luken Properties, LLC, has an easement right to withdraw
water from Montlake.” Plaintiff appeals to this Court. We affirm.

E. W. Stewart Lumber Co., d/b/a Stewart Builder Supply v. Meredith Clark & Associates, LLC and Leroy Dodd
MC-CH-CV-RE-08-40
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Laurence M. Mcmillan

Supplier of building materials filed materialman’s lien on property after contractor failed to
pay for materials provided for building a house on the property. On cross motions for
summary judgment, the trial court struck down liens the supplier had filed against the subject
property and dismissed the supplier’s action; supplier appeals. Finding error, we reverse and
remand to the trial court for further proceedings.

The Hamilton-Ryker Group, LLC v. Tammy L. Keymon
W2008-00936-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor W. Michael Maloan

This appeal involves a noncompete agreement and the Trade Secrets Act. The defendant employee worked for fourteen years for the plaintiff employer. The employee executed a covenant not to compete, prohibiting the employee from soliciting the employer’s clients for one year after termination. During her employment, the employee became the contact person for a particular customer. The defendant employee was temporarily laid off. The day after the layoff, the employee and the customer entered into an arrangement under which the laid off employee performed the same work for the customer that the employer had been performing. The employee then emailed numerous documents related to the customer from her work email address to her personal email address. After that, the customer ended the business relationship with the plaintiff employer. Subsequently, the employer sued the employee for, inter alia, breach of contract, misappropriation of confidential information, and violation of Tennessee’s Trade Secrets Act. The trial court entered judgment for the employer on all counts; the damages award included over $900,000 as doubled damages under the Trade Secrets Act. The employee now appeals. We affirm, finding that the covenant not to compete was enforceable despite the lack of any territorial limitation, that the information emailed to the employee’s personal email was a trade secret, and that the evidence supports the award of damages.

James Crowley et al. v. Wendy Thomas
M2009-01336-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joe P. Binkley, Jr.

The issue on appeal is whether a defendant, who appealed from an adverse judgment rendered against her in the general sessions court, may dismiss the appeal at any time in the circuit court and thereby dismiss the plaintiff’s additional claims asserted in an amended complaint in the circuit court. Following the defendant’s appeal to the circuit court, the plaintiff/appellee filed an amended complaint adding his wife as an additional plaintiff, asserting additional claims and seeking additional damages. On the eve of trial, the defendant filed a Notice of Dismissal of Appeal and Motion to Affirm General Sessions Judgment. The plaintiffs objected to the dismissal of their amended complaint, insisting that they had the right to proceed with their new and additional claims. The circuit court held that the party appealing from a general sessions judgment is entitled to dismiss the appeal at any time, without the consent of the adverse party, and the affirmance of the general sessions judgment. We affirm the decision of the circuit court.