COURT OF APPEALS OPINIONS

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.

H.P. Large, and Terrance R. Craig, d/b/a Greenfield Land and Cattle Company, v. Greene County, Tennessee
E2008-02764-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Judge Thomas J. Wright

Plaintiffs alleged that defendant had constructed a bridge over Lick Creek which was adjacent to their property, and the bridge had caused their property to repeatedly flood. They further alleged that they were entitled to recover damages under the theory that the County maintained a temporary nuisance which damaged their property. Defendant filed a Motion for judgment on the pleadings which characterized plaintiffs’ cause of action as an inverse condemnation action. Affidavits and other documents were filed in the record and the Trial Court agreed with the defendant that plaintiffs’ action was based on inverse condemnation and the statute had run on that action. The Trial Judge also ruled that the statute had run on the nuisance claim. On appeal, we affirm the Trial Judge’s holding that plaintiffs’ action was a nuisance type taking and was governed by the inverse condemnation statute, and we agree that the record demonstrates that the statute of limitations had run on plaintiffs’ claims.

HP Large, et al. v Greene County, Tennessee - Dissenting
E2008-02764-COA-R3-CV
Authoring Judge: Judge Charles D. Susano
Trial Court Judge: Judge Thomas J. Wright

Aaron Benjamin Rutherford v. Southern College of Optometry
W2008-02268-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge John R. McCarroll, Jr.

The plaintiff/appellant voluntarily withdrew from graduate school when it became certain he would not successfully remediate a previously failed course. The school permitted the student to re-enroll the following academic quarter subject to several specific conditions of readmission. The school eventually dismissed the student after it determined that he had failed to earn a “C” or better in two audited courses, which it considered a violation of the student’s readmission conditions. The student filed suit following his dismissal, but not until after he entered into an agreement resolving the underlying dispute. The school counterclaimed for breach of contract, damages, and enforcement of the parties’ agreement. The jury determined that (1) the school violated its policies and procedures when it dismissed the student, (2) the parties agreed to settle any differences that they may have had as set forth in the proof, and (3) neither party violated the agreement. The trial court accordingly entered judgment in favor of the school. Finding material evidence to support the jury’s verdict, we affirm.

Judson Eremity v. George Little and the Tennessee Department of Correction
M2009-01275-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge James G. Martin

Certiorari proceeding in which an inmate seeks review of disciplinary board proceeding finding him guilty of assault on another inmate and revoking his sentence reduction credits. Petitioner asserts that disciplinary board acted arbitrarily and illegally in its utilization and application of Tennessee Department of Correction policies and, further, that the disciplinary board’s handling of the hearing violated his rights to due process of law. Finding no error, we affirm the decision of the trial court.

Olin Morris, Successor Trustee of The U.A.B. Holding Trust v. Martin A. Grusin, Former Trustee of U.A.B. Holding Trust, et al.
W2009-00033-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Karen R. Williams

A Trust was created in 1985. In both 1997 and 1999, the grantor consented to the use of the Trust’s stocks for the benefit of a separate entity, of which the Trust owned a one-half interest. In 2001, an agreement was entered whereby the Trust’s stocks were pledged to a bank in return for a loan to the Trust. The Trust then transferred the loan monies to the separate entity to pay off the separate entity’s indebtedness. After the Trustee’s resignation, the successor Trustee brought suit, alleging breach of fiduciary duties, civil conspiracy, and misappropriation and conversion. The trial court granted the defendants’ motion to dismiss, finding that they had not engaged in unlawful conduct. Plaintiff appeals, and we affirm.

Drayton D. Berkley v. Household Financial Center and Beneficial Tennessee, Inc.
W2009-00287-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

This appeal concerns an attempt to obtain the discharge of a debt. The plaintiff attorney executed two promissory notes in favor of the defendants financial institutions. The notes called for monthly payments. Just over a year later, the plaintiff mailed correspondence and a check to the institution’s payment processing center. The correspondence offered an amount in excess of the monthly payment in exchange for extinguishing each debt. At the payment center, the envelopes were opened by machine and the correspondence was separated from the checks. The checks were posted to the plaintiff’s account. The correspondence was forwarded to another department. The plaintiff made no more payments on the notes, and then filed a complaint for declaratory relief. The defendants answered and counterclaimed for the amount owed under the note. After conducting a bench trial, the trial court dismissed the complaint, granted a judgment on the counterclaim to the defendants, and awarded attorney’s fees. The plaintiff appeals. We affirm.

Michael Sowell v. Estate of James W. Davis
W2009-00571-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Clayburn L. Peeples

This appeal involves Tennessee’s savings statute. The plaintiff filed a tort lawsuit against the defendant. During the pendency of the action, the defendant died. The plaintiff did not file a motion to substitute the proper party for the deceased defendant, as required under T.R.C.P. 25.01. The lawsuit was not dismissed on that basis. The trial court allowed the plaintiff to take a voluntary nonsuit. The plaintiff re-filed the instant lawsuit within one year, making the same allegations as in the original action but naming the estate of the decedent as the defendant. The estate filed a motion to dismiss, arguing that the savings statute was inapplicable because the original lawsuit should have been dismissed pursuant to T.R.C.P. 5.01 for failure to substitute the proper party, and because the defendants in the original lawsuit and the re-filed lawsuit were not identical. The trial court granted the estate’s motion to dismiss on both grounds. The plaintiff now appeals. We reverse, finding that the estate’s argument that it is not an entity capable of being sued has been waived, and concluding that the trial court erred in determining that the savings statute was inapplicable.

Dorothy King, R.N. and Patricia Battle, R.N., et al. v. Virginia Betts,, Commissioner of the Tennessee Department of Mental Health and Developmental Disabilities, in her Individual Capacity, et al
M2009-00117-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Claudia Bonnyman

This is a 42 U.S.C. § 1983 claim based on alleged etaliation in violation of the First Amendment. Appellant claims that Appellees retaliated against her in her employment for speaking out against a hospital policy. Appellees assert the defense of qualified immunity. Appellant appeals from the trial court’s decision to grant summary judgment and judgment on the pleadings to the Appellees. Finding that there are material issues of fact in dispute, we reverse the trial court’s grant of summary judgment. Further, we find that Appellant has stated a claim upon which relief may be granted and, therefore, reverse the trial court’s decision to grant Appellees’ motion for judgment on the pleadings. Affirmed in part, reversed in part and remanded.

T.O.T.S. v. Whirlpool Corporation
W2009-01855-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Don H. Allen

This appeal involves a complaint for breach of contract filed by a corporation that had been administratively dissolved prior to the date of the contract. The defendants filed a motion to dismiss, claiming that the plaintiff-corporation lacked capacity and/or standing to bring the suit. The plaintiff then filed a motion to amend, seeking to have the corporation’s founder substituted as the party plaintiff. The trial court denied the motion to amend and dismissed the complaint. We affirm.

Migdalia Herbert v. Board of Education of The Memphis City Shools
W2008-02383-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Walter L. Evans

A teacher was injured when she tried to break up a fight among students. The BOE classified her injury as resulting from an accident rather than from a physical attack, and that determination was upheld by the Board of Appeal, whose determination was final. The teacher filed suit in the chancery court alleging breach of contract, but her complaint was dismissed after the trial court found that no breach had occurred and that it lacked subject matter jurisdiction. The proper vehicle for reviewing the Board of Appeal’s classification was a writ of certiorari. Because the teacher failed to file such a petition, we affirm the trial court’s dismissal.

Cason D. McInturff v. Battle Ground Academy of Franklin TN - Concurring
M2009-00504-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Randy Kennedy