COURT OF APPEALS OPINIONS

Susan L. Bowman, Individually and as Surviving Spouse of Anthony J. Bowman, Deceased and as Next Friend of Joel Bowman, a Minor v. City of Memphis
W2009-00084-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Donna M. Fields

The trial court dismissed Plaintiff’s claim under the Governmental Tort Liability Act for
damages arising from alleged malicious harassment under Tennessee Code Annotated §§ 4-
21-101 & 701 based on Plaintiff’s failure to allege malicious harassment based on race,
color, religion, ancestry or national origin. Plaintiff appeals. We affirm.

Leornard Porter, Jr. et al. v. City of Clarksville et al.
MCCC-CVCMC-08-1157
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Ross H. Hicks

This action arises from the issuance of stop work orders that prevented the plaintiffs from
completing the construction of their new residence. The plaintiffs brought this action against
the City of Clarksville and the Clarksville Building and Codes Department under the
Governmental Tort Liability Act (GTLA) asserting numerous and varied claims, including
claims for false statements, fraud, deception, conspiracy, discrimination, malicious
harassment, coercion, and violation of due process, and requested financial damages,
emotional damages, and punitive damages. The defendants filed a Tenn. R. Civ. P. 12.02(6)
Motion to Dismiss on the grounds that the action was a de facto appeal of the administrative
hearing on the stop work orders and that the defendants were immune under the GTLA. The
trial court granted the motion to dismiss finding that the plaintiffs failed to state a claim upon
which relief could be granted. We affirm.

Courtney Renee Goins vs. Jerry Wayne Gay
E2009-00272-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge J. Michael Sharp

Upon petition of the Mother, the trial court entered an order modifying a Texas child support order and changing the support in accordance with the Tennessee Child Support Guidelines. The Father appealed, contending that the trial court improperly assumed jurisdiction and without authority, modified the Texas court child support order. We reverse in part as to the modification of the Texas court order, affirm in part as to the name change request, and remand.

Linda Kay Gaines, et ux. v. Leslie McCarter Tenney, et al.
E2008-02323-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Richard R. Vance

In a negligence action arising from an automobile accident, the original trial resulted in a jury
verdict in the amount of $10,000 for the plaintiff. The plaintiff then moved for a new trial, alleging juror misconduct. After reviewing a juror’s deposition testimony, the trial court ordered a new trial. A second jury trial and verdict resulted in a $30,000 judgment for the plaintiff. Following the second judgment, the defendants timely appealed the trial court’s order for a new trial. We hold that Tenn. R. Evid. 606(b) prohibits introduction of juror testimony concerning the deliberation process that does not fall under one of the three exceptions enumerated in the rule. The order for a new trial is reversed and the lawsuit remanded for enforcement of the original judgment.

Carol McKee-Livingston v. Mark Livingston
M2009-00892-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley, Jr.

In an attempt to collect money due from her ex-husband on a judgment for back child support and spousal support, ex-wife had a writ of garnishment served upon a corporation making quarterly payments to the ex-husband under a settlement agreement. The issue on appeal is whether the January 30, 2008 garnishment notice attached payments due the ex-husband in May 2008. Because the corporation had a debt to the ex-husband at the time of the garnishment notice, although the debt was not payable until a later time, we have determined that the garnishment notice attached the May 2008 payment. Since the corporation made the May 2008 payment directly to the ex-husband, the corporation is liable to the ex-wife. We, therefore, reverse the decision of the circuit court.

Wanda Banker v. George, David, Charles, Terry, and Clifford Foster, Nancy Shannon, Patrick Kirk, Carolyn Foster, as Gaurdian of Black Foster, Brandon Foster, Ashley Foster and Lyndall L. Daniel
W2009-00214-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge James F. Butler

This boundary dispute appeal involves an indispensable and necessary party. The plaintiff and the defendants own adjoining tracts of land in a rural area. After questions about their common boundary arose, the defendants hired a surveyor. The defendants’ surveyor
concluded that the common boundary lay further west than the plaintiff believed. The plaintiff filed a lawsuit seeking a judicial determination of the proper boundary and an award of damages for timber that the defendants had cut. After some delay, a bench trial was held. During the trial, surveyors for both parties testified that the trial court’s resolution of the boundary dispute could affect the owner of the parcel to the east of the defendants. After the trial, the trial court issued an order specifying where the boundaries of the defendants’ land should be staked out. After the boundaries were marked in accordance with the trial court’s order, the defendants filed a motion to reopen proof, arguing that the boundaries established
by the trial court encroached on land owned by the defendants’ neighbor to the east. The trial court denied the motion and rendered a final judgment. The defendants appeal. We vacate the trial court’s order, concluding that the landowner to the east of the defendant was an indispensable and necessary party and that the trial court erred in declining to join him as a
party once the proof indicated that the neighboring landowner could be affected by the resolution of the boundary dispute between the plaintiff and the defendants.

Robert Kent Drake, et al., v. Paula Mae Drake
E2009-00540-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Thomas R. Frierson, II

Brothers of defendant mother brought this action to have a conservator appointed for their mother on the grounds that the mother suffered dementia, Parkinson's disease and other infirmities and was incompetent and unable to make decisions about her health and finances. Following trial, the trial court found there was clear and convincing evidence that the mother was disabled and in need of supervision, protection and assistance by means of a conservatorship due to her permanent mental incapacity. The sons were named as co-conservators of her person and estate. The attorney for the mother filed an appeal, and we affirm the Judgment of the trial court.

William Laurence Hardy, M.D. v. State of Tennessee, Department of Health, Division of Health Related Boards
M2009-00619-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Russell T. Perkins

This is an appeal from the decision of the Chancery Court, reversing a decision of an
administrative judge. The administrative judge denied Appellant’s Motion to Dismiss, but
found the parties had entered into two separate agreements and ordered the parties to submit
an agreed order to the Medical Board for review. On appeal, the Chancery Court, in
reversing the decision of the administrative judge, found that the parties had not entered into
any agreements and that the administrative judge could not order the parties to enter into a
consent order. Appellant appeals from this decision, contending that the parties have entered
into two separate agreements and that due process requires this action be dismissed. Upon
review of the record, we find material facts in dispute. Therefore the administrative judge
erred in finding that the parties entered into two agreements, and the Chancery Court erred
in finding that the parties did not enter into any agreements. Further, we affirm the Chancery
Court in finding that the administrative judge erred in ordering the parties to submit an
agreed order to the Medical Board after the Appellee withdrew its consent. Affirmed in part,
reversed in part and remanded.

Chris Yousif, d/b/a Quality Motors vs. Notrial Clark and The Circuit Court of Knox County - Dissenting
E2008-02626-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Dale C. Workman

I respectfully dissent. Based upon the factual history present in this case, I would affirm the trial court’s dismissal of the writ.

Chris Yousif, d/b/a Quality Motors vs. Notrial Clark and The Circuit Court of Knox County
E2008-02626-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Dale C. Workman

Petitioner filed for a writ of certiorari after his bank accounts were attached for a
judgment which had been entered by the Sessions Court against him. The petition alleged that
petitioner was unaware of the judgment against him and had not been served with service of  process in the Sessions Court. The Trial Court granted the petition and considered a motion to dismiss by the respondent. The writ was dismissed and petitioner has appealed. On appeal we hold that the Trial Court erred in dismissing the petition and remand for further proceedings on the writ.

The State of Tennessee, ex rel. The Board of Education of the Memphis City Schools, et al. v. City of Memphis, et al.
W2009-00366-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Kenny W. Armstrong

The City of Memphis and the Memphis City Council appeal the trial court’s writ of mandamus ordering the City to restore funding to the Memphis City Schools for the 2008-09
school year in compliance with Tennessee Code Annotated § § 49-2-203 and 49-3-314. We affirm.

Betty Brasfield v. Raymond C. Dyer, et al.
E2008-01774-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Dale C. Workman

Bob Fannon v. City of Lafollette
E2008-01616-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John D. Mcafee

In this action for declaratory judgment against the City of LaFollette, the City Council, and three City Councilmen, the trial court awarded the plaintiff attorney’s fees, costs and discretionary costs. On appeal, the defendants argue that the trial court erred in finding the plaintiff as the “prevailing party” in the litigation and that the trial court’s award was unwarranted and erroneous. We hold that the plaintiff was not a prevailing party, and therefore, the trial court erred in awarding the plaintiff attorney’s fees and costs on that basis.

Corey Greene v. Yaseen Titi d/b/a Crush Night Club, et al. - Concur/Dissent
M2008-02788-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Thomas W. Brothers

I concur in the majority’s decision to affirm the judgment of the Trial Court granting summary judgment to Tennessee Protection Agency (“T.P.A.”). I, however, do not concur with the majority’s determination that the T.P.A. owed no duty to the Plaintiff other than to refrain from gross negligence or willful misconduct.

Corey Greene v. Yaseen Titi d/b/a Crush Night Club, et al.
M2008-02788-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Thomas W. Brothers

This negligence action arose from a gunshot injury suffered by the plaintiff, Mr. Greene, when he was a customer at the co-defendant’s night club in Nashville. The shooter was never identified. Mr. Greene filed suit against the night club and the agency providing security at the club, claiming that the security agency was negligent in allowing an individual into the club with a weapon.1 The defendant security agency moved for summary judgment. After a hearing, the trial court granted summary judgment in favor of the defendant security agency, holding that the agency affirmatively negated an element of Mr. Greene’s claim by refuting his allegation that a security guard accepted a bribe and by showing that the agency did not breach any duty to Mr. Greene. The plaintiffs timely appealed. We affirm.

Faye E. Dyer, Deceased v. Hill Services Plumbing and Hvac - Partial Dissent
W2009-00687-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Walter L. Evans

I concur with the majority with one exception. The majority holds that by failing to notify Mr. Dyer of his right to convert, Hill Services was the cause of any damages resulting from the first policy not being converted. The majority goes on to say that “[t]he final element of a negligence action is damages. In a case where the duty to notify of the right to convert has been breached, damages equal the amount the insurance policy would have been converted to.” The majority reverses the decision of the trial court finding that there was no duty to notify Mr. Dyer of the right to convert, and remands for an evidentiary hearing on the issue of damages.

James E. Dyer v. Hill Services Plumbing and HVAC
W2009-00687-COA-R3-CV
Authoring Judge: Chancellor Walter L. Evans
Trial Court Judge: Judge J. Steven Stafford

This appeal arises from a dispute between Appellant employee and Appellee employer over life insurance coverage under a group insurance policy. Employee asserts that employer was
negligent in failing to inform employee of his right of conversion under the insurance policy and also in its failure to obtain insurance coverage for him after he was rehired. In the alternative, employee argues that the doctrine of equitable estoppel should apply. The trial court dismissed the complaint based upon its finding that employee failed to make out a
prima facie case for negligence, and declined to apply equitable estoppel. Finding negligence by the employer in failing to notify employee of his right to convert, we reverse the trial court’s dismissal of that claim and remand for further proceedings. We affirm the decision of the trial court finding that the employer was not negligent in obtaining new insurance for the employee after he was rehired and its decision not to apply equitable estoppel.

Norma Luttrell v. Hidden Valley Resorts, Inc., AKA Mountain Properties
E2009-00485-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Richard R. Vance

Elizabeth R. Doyle, who is not a party to this litigation, subdivided a parcel of property she owned in Jefferson County. Doyle sold “Tract #3” to the plaintiff, Norma Luttrell. Luttrell’s deed to Tract #3 also granted an “easement upon adjoining Tract #2 . . . for the existing septic system field lines servicing Tract #3.” The defendant, Hidden Valley Resorts, Inc., aka Mountain Properties, eventually acquired Tract #2, but not directly from Doyle. The defendant began to use its property in a way that interfered with the plaintiff’s easement, and the plaintiff filed her petition demanding that the defendant be enjoined from interfering with her easement rights. The case was tried without a jury, after which the trial court entered a judgment in favor of the defendant. The trial court found that the defendant had no actual notice of the easement prior to purchasing it, and further that the defendant had no constructive notice because a “standard title search of the chain of title for Defendant’s Tract #2 would not reveal Plaintiff’s easement.” The plaintiff moved for a new trial on two grounds: (1) that easements which run with the land do not depend on notice, and (2) that the trial court went beyond the scope of the pleadings in holding that the easement was unenforceable. The trial court denied the motion. The plaintiff appeals. We reverse the judgment and remand for
entry of a judgment in favor of the plaintiff.

Sandra Walker, et al. v. Metropolitan Board of Parks and Recreation, et al.
M2007-01701-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol L. Mccoy

Two residents of the Edgehill neighborhood of Nashville, as well as an organization of neighborhood residents, filed petitions for writ of certiorari with the aim of preventing the Metropolitan Government of Nashville and Davidson County from entering into a lease agreement with Belmont University. The same parties also brought a petition for declaratory judgment challenging the lease. The proposed lease provided that the University would construct an extensive sports complex in a public park located in the petitioners’ neighborhood for the use of the University as well as local schools and neighborhood residents. The first petition was filed after a public meeting at which the Metro Parks Board recommended that the lease be adopted, but before it was actually approved by the Metro Council. The trial court dismissed it without prejudice as premature. Subsequent petitions were filed after the Metro Council voted to approve the lease. The petitioners argued that the process the Parks Board  followed was arbitrary and capricious, that it deprived them of their right to procedural due process, and that the action of the Metro Council was invalid because it was based on a flawed process of recommendation. The trial court dismissed all the petitioners’ claims. Because the Board’s recommendation was not a final order or judgment resulting from the exercise of judicial functions, and because the record showed that there was a rational basis for the Metro Council’s decision, we affirm the trial court.

State of Tennessee, Department of Children's Services v. Anthony Dewayne Hood
M2009-00911-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Michael Todd Burnett

This is a termination of parental rights case. Father/Appellant appeals the trial court’s order, terminating his parental rights to four of his biological children. The trial court terminated Appellant’s parental rights upon its finding, by clear and convincing evidence, that Appellant had abandoned the children by engaging in conduct prior to his incarceration that exhibits a wanton disregard for the welfare of the children, that there is a persistence of conditions, and that termination of Appellant’s parental rights is in the best interests of the children. We find that the trial court erred in finding persistence of conditions. However, we affirm the trial court’s finding of abandonment and that termination is in the best interests of the children.

DOJI, Inc. d/b/a Demos' Steak and Spaghetti House v. James G. Neeley, Commissioner, Tennessee Department of Labor & Workforce Development Employment Security Division and Andrea T. Ruffin
M2009-00822-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Robert E. Corlew, III

A fired employee filed for unemployment benefits. The former employer opposed the benefits, maintaining that the employee was fired for misconduct. The Department of Labor and Workforce Development initially found for the employer and the employee appealed. After a hearing, the Appeals Tribunal found for the employee. The employer appealed. The Board of Review affirmed the Appeals Tribunal’s decision. The employer appealed to the chancery court, which vacated the administrative decision due to evidentiary issues and remanded the matter. On remand, the Board of Review considered the evidence in question and reaffirmed its earlier decision. The employer appealed to the chancery court, which affirmed the Board of Review. The employer appealed again. We affirm the chancery court’s decision.

Michael J. Calderone v. Glenn Chrisman, Chief of Police, et al.
M2009-00328-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Larry B. Stanley, Jr.

This appeal involves § 1983 claims against a county and its sheriff on the basis of injuries allegedly sustained by the plaintiff while in the custody of the sheriff’s department. We conclude that the trial court erred in denying the sheriff’s motion for summary judgment in his individual capacity because the plaintiff did not produce any evidence to rebut the sheriff’s testimony that he had no involvement in or knowledge of the events in question. We further conclude that the trial court erred in denying the county’s motion for summary judgment because there was no evidence of any causal connection between a county policy or custom and the plaintiff’s alleged injuries.

In the Matter of: A.W.H. and N.N.H.
W2009-01955-COA-R3-PT
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Rachel J. Anthony

This appeal involves the termination of parental rights. After State authorities received a report that
the mother of the two children at issue was using drugs, the mother admitted that she and the father
used drugs, and the parents stipulated that their children were dependent and neglected. The children
were initially placed with family members. After several months, a no-contact order was entered due to the parents’ continued drug use and related issues. The children were then placed in State custody and permanency plans were created. The plans required, inter alia, that the parents become drug-free and maintain a stable, safe, and drug-free home. Despite years of counseling, treatment, and periods of abstinence from drug use, the parents continued to intermittently test positive for drug use. DCS filed a petition for termination of the parental rights of both parents. After a trial, the trial court terminated their parental rights on grounds of abandonment, substantial noncompliance with the permanency plans, and persistent conditions. The parents now appeal. We affirm.

Eric Thomas v. State of Tennessee
W2009-01399-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Nancy C. Miller Herron

Appellant, an inmate of the Tennessee Department of Correction, filed a claim in the Claims Commission, alleging that the Department of Correction had failed to apply 831 days of pretrial jail credit to his criminal sentences. Appellee State of Tennessee filed a motion to dismiss. The Claims Commission granted the State’s motion to dismiss on the ground that Appellant had not exhausted his administrative remedies, and denied Appellant’s motion for new trial or amendment of judgment.  Appellant appeals. We affirm.

City of Harriman, Tennessee v. Roane County Election Commission, et al.
E2008-02316-COA-R3-CV
Authoring Judge: Judge Cahrlesm D. Susano, Jr.
Trial Court Judge: Judge Frank V. Williams, III

This is a contest between two neighboring towns in Roane County over common territory that both have purported to annex. The defendant, Kingston, sought to add the territory through a successful referendum election conducted on February 5, 2008. The plaintiff, Harriman, sought to add the territory through its annexation ordinance No. 200801-1 adopted on first reading January 28, 2008. The disputed territory is outside the “[u]rban growth boundary” of both municipalities; it is within the “[r]ural area” of Roane County as those terms are respectively defined in Tenn. Code Ann. § 6- 58-101 (7) and (6) (2005). Harriman’s complaint to void the Kingston referendum asserts that Harriman’s ordinance takes priority because Harriman, as a larger municipality, is granted statutory priority. Kingston argues that the Harriman ordinance was of no effect because Harriman did not first secure an amendment to its urban growth boundary before passing the ordinance. Harriman responded that it did in fact “propose” an amendment and that a proposal was all that was required under Tenn. Code Ann. § 6-58-111(d)(1) (Supp. 2009). The parties tried the case on stipulated facts. The trial court agreed with Kingston and dismissed Harriman’s complaint without reaching the issue of priority. Harriman appeals, asking us to reverse and remand for a determination of the pretermitted issues. We vacate the judgment of the trial court and remand for further proceedings.