COURT OF APPEALS OPINIONS

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.

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.