COURT OF APPEALS OPINIONS

David M. Sharp v. Debbie F. Stevenson
W2009-00096-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge W. Michael Maloan

I must respectfully dissent in this case. Unfortunately, I find that I disagree with both the majority opinion and the concurrence.

In Re IMP: a Child Under the Age of Eighteen Years, J.J.A., Petitioner/Appellant, v. M.P., et al.
E2008-02695-COA-R3-JV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge April Meldrum

Petitioner brought this action in Juvenile Court to establish paternity and set co-parenting time with the child. The mother answered and, as an affirmative defense, averred that the father had signed a waiver of his parental right and cited the statutes stating that a waiver of parental rights could not be revoked. The Trial Court appointed a guardian ad litem, and the sole issue tried by the Trial Court was whether the waiver should be voided on the grounds that the father had signed the waiver under duress and undue pressure. The Trial Judge found that the father failed to carry the burden of proof to establish by clear and convincing evidence that he signed the waiver of interest and notice due to fraud, duress or intentional misrepresentation. On appeal, we affirm the Judgment of the Trial Court.

Saundra J. Counce, RN, v. Asecension Health, et al.
M2009-00741-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

The plaintiff, formerly an at-will employee of Baptist Hospital, filed this action asserting that she was wrongfully terminated from her employment. She asserted twelve claims, inter alia, retaliatory discharge, age and sex discrimination, sexual harassment, violation of wage and hour laws, and violation of the Americans with Disabilities Act. The trial court summarily dismissed all of the claims. We affirm.

State of Tennessee, Ex Rel. Markie Jade Laxton v. Samuel Byron Biggerstaff
E2009-01707-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: James L. Cotton

This is an appeal by the father requesting modification of his child support obligation due to
his incarceration. The trial court denied relief. We affirm.

Lamar Tennessee, LLC, et al., v. Metropolitan Board of Zoning Appeals, et al.
M2007-00883-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol L. McCoy

The Metropolitan Government of Nashville and Davidson County adopted a redevelopment plan for an area of the city which included the site of a long-existing billboard. The Tennessee Department of Transportation subsequently ordered the removal of the billboard to accommodate a road-widening project. The sign’s owner filed an application for a permit to relocate the sign on another portion of its leasehold, but the city declined to approve the application because the redevelopment plan totally prohibits signs of that type. The sign company filed a petition for certiorari in the Chancery Court of Davidson County, asserting that Tenn. Code Ann. § 13-7-208 of the zoning statutes gave it the right to replace the sign. The court agreed, and ordered the city to re-evaluate the permit application in accordance with the statutory provisions for a pre-existing non-conforming use after a change of zoning. We reverse, finding that the grandfather provisions of Tenn. Code Ann. § 13-7-208 have no applicability to the restrictions contained in redevelopment plans under Tenn. Code Ann. § 13-20-201 et seq.

Shuttleworth, Williams, Harper, Waring and Derrick, PLLC, v. Gary K. Smith, Smith, Sabbatini, & McLeary, PLLC
W2007-02295-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Chancellor James F. Butler

This dispute is between an attorney and his former firm. All parties to this suit appeal the trial court’s interpretation of their operating agreement about how the fees and expenses generated by the withdrawing member’s cases should be apportioned among them. The operating agreement gave the firm discretion to value the services provided by its other members, but the trial court correctly determined that the firm’s claimed value was not reasonable. We reverse the trial court’s holding with regard to the withdrawing lawyer’s interest in a member’s share of the expenses he is obligated to pay the firm. The trial court is affirmed on the issue of sanctions and as to its refusal to make an award to nonparties.

Charles M. Myer, III, et al. v. The Metropolitan Government of Nashville and Davidson County
M2009-01644-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Barbara N. Haynes

Property owners sued, alleging that the Metropolitan Government was using or taking their property without their permission and without compensation. The Metropolitan Government took an easement over the property by eminent domain and the State built the Victory Memorial Bridge over part of it. The Metropolitan Government later transferred its interest in the property to the State. Much later, the Metropolitan Government built the Gay Street Connector over part of the easement and maintained exclusive control over the part of the easement not used for the bridge. The trial court found for the government. The property owners appealed. We affirm.

Alice L. Warren v. David E. Warren
M2009-00042-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ross H. Hicks

In a divorce action, Wife appeals the trial court’s division of the marital estate, its determination of her income for child support purposes, and its division of the parties’ income tax liabilities. We affirm.

Jane Field, et al., v. The Ladies Hermitage Association and State of Tennessee
M2008-02663-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol L. McCoy

The heirs of the woman who conveyed Tulip Grove to the Ladies’ Hermitage Association filed suit claiming, among other things, that due to the Association’s failure to pay the heirs as required in the deed of conveyance, the property reverted to the heirs. We affirm the trial court’s grant of partial summary judgment to the Association holding that the Association did not fail to comply with the obligations relevant to the reversion, so no reversion was triggered.
 

Naomi Schutte, as Adminstrator of the Estate of William Anthony Lucy, deceased v. Cheyenne Johnson, Shelby County Assessor et al.
CH-07-0180-3
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Kenny W. Armstrong

This appeal arises out of an action to refund tangible personal property taxes. The
administrator of a decedent’s estate filed suit against the Shelby County Assessor of Property
and the Shelby County Trustee following the payment of delinquent taxes. The administrator
alleged that prior forced assessments of the decedent’s property were illegal, arbitrary, and
unduly excessive. The chancery court determined it did not have subject matter jurisdiction
to hear the case. We affirm.

In the Matter of: The Estate of Anna Sue Dunlap, Deceased, Richard Gossum, Administrator CTA
W2009-00794-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor George R. Ellis

This dispute involves the administration of a decedent’s estate. The chancery court removed
the decedent’s children as co-administrators of her estate because they were unable to
peaceably complete their duties. The court appointed a successor administrator whose job
was made difficult by continued infighting between the interested parties. Nevertheless, the
successor administrator proceeded with his duties and proposed a final accounting five years
after the estate was opened. The appellants responded to the proposed accounting with an
objection and a motion for continuance. The chancery court denied the motion for
continuance and approved the final accounting. The court later denied the appellants’ motion
to alter or amend or for new trial and closed the estate. We affirm.

In Re: Dravyn L.D.
M2009-00357-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge C. Barry Tatum

The Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate the
parental rights of Candis D. (“Mother”) with respect to her minor daughter, Dravyn L.D.
(“the Child”). The petition alleged multiple incidences of abandonment, substantial
noncompliance with a permanency plan, and persistent conditions. The juvenile court
terminated Mother’s parental rights upon finding that each of the grounds alleged was
established by clear and convincing evidence. Mother appeals. She contends that DCS’s
handling of the case effectively denied her the right to due process. She further challenges
the juvenile court’s finding that she was in substantial noncompliance with the permanency
plan. We affirm.

Christina Altice v. NATS, Inc., et al
M2009-00659-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ellen H. Lyle

Judgment creditor sued defendants to collect a judgment against a defunct nonprofit corporation, claiming defendants were the alter egos of the defunct corporation. In a prior appeal, this court instructed the parties to focus on whether certain transactions were or were not loans. If they were loans, then the plaintiff could not prove her case to make the defendants responsible for the judgment against the defunct corporation. The trial court found that the transactions were loans. We affirm.

Dorian Jones v. Ronald Hicks, Individually and DBA R and R Collision
E2009-00844-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor E.G. Moody

Dorian Jones left his Jeep with Ron Hicks dba R and R Collision for restorative repairs in the
summer or fall of 2005. On or about November 3, 2008, Hicks sent Jones a letter stating that
the Jeep would be “auctioned unless all repair and storage fees are paid in full within fifteen
(15) days of receipt of this letter.” Jones called Hicks and, when he learned that Hicks had
not performed any repairs, insisted on return of the Jeep without any payment. Hicks
refused. Jones filed an action for replevin of the Jeep. Hicks filed a counterclaim asserting
that he was entitled to sell the vehicle for collection of his repair and storage fees. After a
bench trial, the court entered an order stating that Hicks was entitled to recover $564 without
specifying what was to happen with the vehicle. Jones filed a motion to alter or amend
simultaneously with a notice of appeal. The trial court entered an order amending its earlier
order by addition of a paragraph which provided that the vehicle would be returned to Jones
upon payment of the $564 plus accrued interest. Jones contends in this appeal that Hicks was
not entitled to any repair charges or storage fees under their informal unwritten arrangement
since Hicks performed no repairs and gave him no notice that he would be charging storage
fees. We agree with Jones and reverse the judgment in favor of Hicks.

Carroll C. Martin vs. Jimmy Bankston, et al
E2009-00993-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Howell N. Peoples

Plaintiff sued defendants, seeking to enforce the restrictive covenants on defendants' property as to an outbuilding constructed on defendants' property and seeking an injunction against defendants' alleged operation of a business on their premises in violation of the restrictive covenants. The Trial Court ruled in favor of defendants, and plaintiff has appealed. We affirm the Judgment of the Trial Court.

In Re: Maverick H., Samantha Ann Moore, a/k/a Michelle M. Hartmen v. Mark W. Givler
E2009-00253-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Judge Telford E. Forgerty, Jr.

In this action to establish paternity and recover back child support, plaintiff did not appear when the case was set for trial and the Trial Judge dismissed the action. Plaintiff then filed a Rule 60 motion to reinstate the case to the trial docket, which the Trial Judge denied. On appeal, we affirm the Judgment of the Trial Court.

Melvin Quarles v. Barbara Atkins Smith
W2009-00514-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge William C. Cole

This case involves a boundary line dispute. Plaintiffs brought suit to enjoin Defendant Walker from entering property they claimed to own. However, Defendant Walker filed a counter-claim against Plaintiffs asserting, among other things, ownership by adverse possession. The trial court found that title to the disputed property had vested in Defendant Walker, and therefore, it granted summary judgment in his favor. We affirm.

William W. Reed v. Bill McDaniel And Ahmad Elsebae
W2009-01348-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Roy B. Morgan, Jr.

This is a premises liability case. Plaintiff/Appellant sustained injuries after a fall through the
second-story floor of a water-damaged building. The trial court granted summary judgment
in favor of the Defendants/Appellees, finding that the danger was open and obvious, that
Defendants/Appellees had warned of the danger, and that Plaintiff/Appellant was at least
50% at fault for his own injuries, thus negating his negligence claim under McIntyre v.
Balentine, 833 S.W.2d 52 (Tenn.1992). Finding no error, we affirm.

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.

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.