COURT OF APPEALS OPINIONS

In Re: Cameron S.H.
E2012-00220-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Tim Irwin

In this parental termination case, the father was appointed counsel at the time the Court held a dependency hearing in the Juvenile Court and the Order appointing counsel in that proceeding also appointed the attorney for the subsequent termination of parental rights trial. When the Petition to terminate the father's parental rights trial was held, neither the father nor counsel appeared at trial and a Judgment was entered terminating the father's parental rights. On appeal, appellant argues that the statue and rule governing this proceeding required notification to the father's attorney. We vacate the Judgment of the Trial Court on the grounds that both the Court and the Department of Children's Services were charged with the knowledge that the appellee was appointed counsel and that the termination Petition's Judgment was prejudicial to the judicial process when the father's lawyer was not notified of the Petition or trial. We vacate and remand for a new trial.

City of Memphis v. Jason Morris, et al.
W2011-02519-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Arnold B. Goldin

A Memphis police officer was terminated after he was involved in a physical altercation with his girlfriend during which she sustained facial injuries. The Civil Service Commission upheld the termination, and the chancery court affirmed. In the initial appeal to this Court, we remanded for the Commission to make  findings of fact and conclusions of law. The Commission issued an amended decision with additional findings. Upon reviewing the amended decision, the chancery court  reversed the termination and reinstated the officer. The City appeals, arguing that the Commission’s decision was supported by substantial and material evidence. The officer presents numerous arguments in support of his assertion that reversal of the Commission was proper. We affirm the order of the chancery court in part, but we vacate the reinstatement of the officer and reinstate the Commission’s decision to uphold termination.

Milledgeville United Methodist Church, et al. v. Jimmy G. Melton, et al.
W2011-01272-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge J. Weber McCraw

This case involves a dispute over the ownership of a parcel of real property. Appellee church purchased the disputed property from the seller bank in 1974, but failed to record its deed. Through a clerical error, the seller bank sold the disputed property to Appellant real estate investor in 2008. Appellant promptly recorded his deed. After the investor demolished a portion of a wall constructed by the church on the disputed property, the church sued to quiet title and for damages. The trial court ruled that the deed to the investor was void as champertous because the church’s possession of the property was open and obvious at the time of conveyance. Thus the trial court ruled that the church was the true owner of the property. Although we affirm the decision of the trial court, we rely on grounds other than those found by the trial court.

Traci Jones v. Bernice Jones et al.
M2011-01791-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Larry B. Stanley, Jr.

This matter arose from a car accident between Traci Jones and Bernice Jones. At trial, the
jury found Bernice Jones 100% at fault and awarded Traci Jones a portion of her requested
relief. On appeal, Traci Jones argues that the trial court erred by reversing its pre-trial ruling
on a motion in limine, denying her motion for mistrial, and denying her motion for directed
verdict. We affirm the trial court’s decision.

Rocky Top Realty, Inc., v. Debra Young, et al
E2011-01966-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Michael W. Moyers

This is the second appeal in this case. In the first appeal we held that the parties did not have a contract for the sale of the property, and we remanded it back to the Trial Court to determine a reasonable fee in quantum meruit for the plaintiff as the facilitator of the sale. Upon remand, the Trial Court heard proof and held that plaintiff was entitled to a 6% commission on the sale price. On appeal, we affirm the Judgment as modified.

Leah Austin v. A-1 Used Restaurant Equipment, Inc.
E2011-02323-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Jean Stanley

Plaintiff purchased a vent hood from defendant. The hood was paid for at the time of purchase and delivered, but was returned to defendant as being unworkable. Plaintiff brought this action for reimbursement of payment for the hood in Sessions Court. Sessions Court entered a Judgment for plaintiff and defendant appealed to the Circuit Court. The Circuit Judge entered Judgment for the plaintiff for $3,500 for the amount paid for the hood to defendant. On appeal, we affirm the Trial Court's Judgment. 

Cass Rye & Associates, Inc. v. Edward Coleman, et al.
M2011-01738-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Robert E. Burch

Plaintiff in suit seeking to have court declare boundaries of fifteen acre tract of land appeals
the declaration of boundaries and award of the tract to Defendants, adjoining landowners.
Defendants appeal finding that Plaintiff adversely possessed a portion of the fifteen acre
tract. Finding no error, we affirm.

Ezra Williams v. Stephen Leon Williams, et al.
E2012-00162-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor E.G. Moody

In January of 2011, Ezra Williams (“Plaintiff”) sued Stephen Leon Williams and Regions Bank . Plaintiff died in May of 2011. Regions Bank filed a Suggestion of Death. No motion for substitution of proper party was made within ninety days after Plaintiff’s death was suggested upon the record. In July of 2011, the attorney who had represented Plaintiff prior to Plaintiff’s death filed a Motion for Voluntary Dismissal. In October of 2011, Regions Bank filed a Motion for Summary Judgment. The Trial Court granted the Motion for Voluntary Dismissal without prejudice. Regions Bank appeals to this Court. We hold that the Trial Court should have dismissed the case pursuant to Tenn. R. Civ. P. 25.01 for failure to timely move for substitution of proper party. We, therefore, vacate the Trial Court’s judgment and dismiss this case pursuant to Tenn. R. Civ. P. 25.01.

Ron Littlefield, et al. v. Hamilton County Election Commission, et al.
E2012-00489-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Jeffery Hollingsworth

This is the second time the attempt to recall Chattanooga’s mayor has been before this court. In the initial appeal, we concluded the trial court acted prematurely and without jurisdiction when it enjoined the election commission from placing the recall issue on the ballot, because the election commission, at that point in time, had not formally decided whether or not to certify the recall petition. After we vacated the void judgment of the trial court, the election commission certified the recall petition and the mayor again filed suit seeking a declaratory judgment that the petition process was flawed and to enjoin the placement of the recall issue on the ballot. The trial court found that the petition seeking the recall of the mayor is invalid and illegal because it does not comply with all the requirements of Tennessee Code Annotated section 2-5-151. The leaders of the recall effort appeal. We affirm in part and reverse in part.

Misty Phillips, on behalf of her minor son Jacob Gentry v. Robertson County Board of Education
M2012-00401-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ross H. Hicks

County appeals the trial court’s decision finding the County liable for injuries sustained by
a student with Asperger’s syndrome in an altercation with another student. Finding that the
evidence does not preponderate against the trial court’s determination, we affirm.

James Michael Pylant et al. v. Bill Haslam, Governor of the State of Tennessee
M2011-02341-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

Petitioners appeal from the dismissal of their complaint for declaratory relief, injunctive
relief, and damages wherein they challenged the constitutionality of a now superseded
section of the Tennessee Bail Reform Act, Tennessee Code Annotated § 40-11-118(a).
Petitioners contended that the 2011 statute prohibited night court judges or magistrates from
setting bail for persons charged with a second or higher driving under the influence violation,
thus requiring they be confined until a general sessions court judge or criminal court judge
was available. The trial court dismissed the claims for declaratory and injunctive relief on the
grounds of res judicata and collateral estoppel and dismissed the claim for monetary damages
against Governor Bill Haslam upon the ground of sovereign immunity. We find the challenge
to the constitutionality of the 2011 version of subsection (a) moot as the challenged
provisions of subsection (a) have been deleted and superseded. We also affirm the dismissal
of the claims against Governor Haslam for monetary damages as he has sovereign immunity.

Dan J. Marcum v. Paul F. Caruana, et al.
M2012-01827-COA-10B-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Franklin L. Russell

The defendant in this action filed a motion for recusal with the trial judge alleging bias against both himself and his counsel. The trial judge denied the motion, and the defendant filed this interlocutory appeal as of right pursuant to Tenn. S. Ct. R. 10B. We affirm the trial court’s denial of the motion for recusal.
 

In Re Estate of Nancy L. Josephson
M2011-01792-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor J. B. Cox

Husband and Wife executed wills in which each relinquished the right of survivorship in the
marital residence and ordered that the property be sold and that $152,000 of the sale proceeds
be distributed to Wife’s children. Following the death of Wife, her children brought action
to compel Husband to dispose of the property in accordance with Wife’s will. Husband
appeals the holding that the wills he and Wife executed created a valid, enforceable contract
that required him to sell their residence upon her death. We affirm the judgment of the trial
court.

Bonnie Faith Rodgers v. Thomas Edward Rodgers
E2011-02190-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge L. Marie Williams

This appeal arises from a divorce. Bonnie Faith Rodgers (“Wife”) sued her husband, Thomas Edward Rodgers (“Husband”), for divorce in the Circuit Court for Hamilton County (“the Trial Court”), alleging inappropriate marital conduct and irreconcilable differences. Wife and Husband had been married for more than 40 years. Husband answered and counterclaimed for divorce, also alleging inappropriate marital conduct. After a trial, the Trial Court divided the marital estate and awarded Wife periodic alimony. Husband appeals, arguing that the Trial Court erred in a host of ways, including its classification and division of the marital estate and its award of periodic alimony to Wife. Husband also appeals the Trial Court’s extending Wife’s Order of Protection against him for an additional five years. Wife raises her own issue regarding the allocation of certain vehicles. We affirm the judgment of the Trial Court in its entirety.

Stephanie and Eddie Woodard v. Lawrence B. Gross, M.D., Eduardo V. Basco, M.D., and Methodist Healthcare-Memphis Hospitals
W2011-02316-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Jerry Stokes

This is a medical malpractice case. The plaintiff patient presented at the hospital emergency room with chest pains; a stent replacement was performed. Three months later, the plaintiff’s treating physician told the plaintiff that she had suffered a heart attack during the stent replacement. The plaintiff obtained all her medical records and filed a lawsuit against the surgeon who performed the stent replacement. This lawsuit was later dismissed without prejudice. After the plaintiff substituted counsel and the plaintiff’s substituted attorney reviewed the medical records, the plaintiff filed a new lawsuit against the emergency room physicians, asserting that they were negligent prior to the stent replacement. The emergency room physicians filed a motion for summary judgment, based in part on the three-year statute of repose. The trial court granted summary judgment in favor of the defendant emergency room physicians, finding that the statute of repose had run on the plaintiff’s claim. The plaintiff patient appeals, arguing that there is an issue of disputed fact as to whether the defendant physicians engaged in fraudulent concealment, so as to toll the time limit under the statute of repose. We affirm.

Patricia Demarest v. Estate of Ronald Joseph Kroll
M2011-02385-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge John Thomas Gwin

Alleged creditor filed a claim against the decedent’s estate seeking $524,160 for personal
services she claims to have provided to the decedent during the last ten months of his life.
She claims the decedent agreed that she would reside in his home and provide the decedent with around the clock care. Upon motion for summary judgment filed by the administrator of the estate, the probate court denied the claim, finding there was no contract or quasi-contract between the alleged creditor and the decedent because the decedent was mentally incapable of entering into a contract, and that the family service rule barred the alleged creditor from recovering because the alleged creditor and the decedent were engaged to be married at the time of the decedent’s death. We affirm.

Cynthia Farrar v. State of Tennessee
M2011-02559-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Commissioner Robert Hibbett

This appeal involves the forfeiture of property that had been either used or furnished in
violation of the Drug Control Act. The property at issue was subject to a lien held by
Citizens Bank. Following the forfeiture of the seized property, Citizens Bank notified the
State of its lien and requested the return of the property. The State directed Citizens Bank
to file an appeal with the chancery court. Instead, Citizens Bank sued Claimant for the
balance owed on the property and an order of judgment was entered against Claimant.
Claimant filed suit against the State in the Claims Commission, alleging that the State was
negligent because it failed to notify the proper lienholder of the forfeiture. The State filed
a motion for summary judgment, which was granted by the Claims Commission. Claimant
appeals. We affirm the decision of the Claims Commission.

Judy Kyle v. City of Jackson, Tennessee
W2011-02391-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Roger A. Page

This is a Governmental Tort Liability Case. The trial court determined that Appellant was at least 50% at fault for the injuries she sustained when she fell from an elevated stage at an event held at a building, which is owned and operated by Appellee City of Jackson. Discerning no error, we affirm.

Kimberlie Edmonson v. Jeremy James McCosh et al.
E2010-01588-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Jerri S. Bryant

In this case, the child at issue was declared dependent and neglected and was placed in grandmother’s custody following the child’s removal from mother. Months later, father petitioned for custody of the child. The court granted father’s petition and awarded grandmother reasonable visitation. Thereafter, father filed a petition to terminate mother’s parental rights. Mother objected and sought custody or visitation, while grandmother asked the court to either reinforce her court-ordered visitation or grant joint custody. The court denied the petition to terminate mother’s parental rights, transferred grandmother’s courtordered visitation to mother, and advised grandmother that she would enjoy visitation as designated by the parents. Grandmother appeals. We affirm the decision of the trial court.

Kimberlie Edmonson v. Jeremy James McCosh et al. - Concurring
E2010-01588-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jerri S. Bryant

I concur completely in the result reached by the majority. I write separately to express my disagreement with the following dicta in the majority opinion: While the wording of [Tennessee Supreme Court] Rule 13 [§1(d)(2)(B)] indicates that Grandmother may have had a statutory right to an attorney during the termination proceeding,

Lori R. Torres v. Michael S. Torres
E2011-00057-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge John D. McAfee

The appellee in this case filed a motion to dismiss appeal on July 20, 2012, arguing that the judgment of divorce entered by the trial court on December 6, 2010, is not a final judgment from which an appeal can be taken and the appellate record on file is therefore incomplete. The orders entered by the trial court on July 9, 2012, confirm that the notice of appeal was filed prematurely, as all claims between the parties have not yet been resolved. The appellant did not file a response to the motion. Our review of the record reveals that the order to which the notice of appeal is directed is not “a final judgment adjudicating all the claims, rights, and liabilities of all parties” from which an appeal as of right would lie. See Tenn. R. App. P. 3(a). Accordingly, we dismiss the appeal.

In Re: Stephen M.P.
E2012-01363-COA-R3-JV
Authoring Judge: Per Curiam
Trial Court Judge: Judge David A. Patterson

A show cause order was entered in this case on August 16, 2012, directing the non-attorney father of the minor child in this case to state why this appeal should not be dismissed based upon his filing of the notice of appeal on behalf of his son and without the benefit of counsel. The father responded to the show cause order, but his contentions do not cure the defect in the notice of appeal. Our review of the record reveals that this court lacks jurisdiction. See Tenn. R. App. P. 3(a). Accordingly, we dismiss the appeal.

DKB Trucking Company, LLC v. JNJ Express, Inc.
M2012-00008-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge John J. Maddux

Plaintiff sued for damages for the destruction of a tractor and trailer and for the loss of its
use. Defendants moved for a directed verdict, arguing that loss of use and/or loss of profits
cannot be recovered because the property was destroyed and it was not unique. The jury
found liability for the destruction of the property and for loss of use and/or loss of profits.
The trial court then granted a directed verdict on the loss of use/loss of profits, stating that
such damages cannot be recovered for destroyed property. Plaintiff appeals. We reverse.

E. Ron Pickard and Linda Pickard, as Trustees of the Sharon Charitable Trust and as Individuals v. Tennessee Department of Environment and Conservation, Tennessee Water Quality Control Board and Tennessee Materials Corporation
M2011-02600-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Ellen H. Lyle

The Tennessee Department of Environment and Conservation issued a draft permit allowing a proposed rock quarry to discharge storm water and wastewater into a nearby creek. Owners of property allegedly affected by the discharge filed a declaratory order petition with the Water Quality Control Board, seeking a declaration construing the rules regarding the protection of existing uses of waters.The Water Quality Control Board dismissed the petition as not ripe. The Tennessee Department of Environment and Conservation subsequently issued a final permit to the quarry and the property owners filed both a permit appeal and another declaratory order petition with the Water Quality Control Board. The Water Quality Control Board again dismissed the declaratory order petition. The property owners subsequently filed a petition for a declaratory judgment in the Davidson County Chancery Court. The Water Quality Control Board and the Tennessee Department of Environment and Conservation argued that the petition was not ripe and that the property owners had not exhausted their administrative remedies. In addition, the Water Quality Control Board and the Tennessee Department of Environment and Conservation argued that Tennessee Code Annotated Section 69-3-105(i) precluded the property owners from bringing a declaratory order petition prior to issuance of a permit. The trial court ruled in favor of the property owners and issued a declaratory judgment on the construction of Tennessee Compiled Rule and Regulation 1200-04-03-.06. We affirm the trial court’s rulings with regard to ripeness, exhaustion of administrative remedies, and Tennessee Code Annotated Section 69-3-105(i), but reverse the grant of summary judgment on the construction of Tennessee Compiled Rule and Regulation 1200-04-03-.06 and remand for further proceedings.
 

Norman C. Loggins v. First Tennessee Bank, N.A.
W2012-00319-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Jerry Stokes

The trial court entered an order of involuntary dismissal pursuant to Rule 41.02(2) in this action for malicious prosecution. We affirm.