COURT OF APPEALS OPINIONS

Frank Garrett, et al. v. City of Memphis et al.
W2009-01506-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Walter L. Evans

This appeal concerns the discretion of the Memphis Police Department to fill vacant civil
service positions with temporary, “acting” personnel prior to the expiration of an active
promotion roster. The trial court concluded the Memphis City Charter does not mandate
permanent promotion of the next eligible employee from an active promotion roster simply
because a vacancy exists. The court further concluded that no charter provision or city
ordinance prohibits the use of acting appointments; rather, the proof showed that the use of
officers in an acting capacity is a longstanding policy within the police department and every
other division of city government. As a result, the court held that the department did not
violate civil service laws when it declined to permanently promote the plaintiffs. Finding no
error in the decision below, we affirm.

In Re: The Estate of Mary Jane McLister Anderson Owen, Deceased
W2009-01531-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancelor William C. Cole

This is a will construction case. The decedent died testate in July 2008. The personal
representative of the decedent’s estate filed this action to construe provisions of the
decedent’s will concerning the control of specifically devised farm property. The chancery
court determined that the decedent intended for the property to remain subject to the control
of her estate pending administration. Because the unambiguous language of the will
pointedly excludes specifically devised real property from the control of the personal
representative, we reverse and remand.

Terrie Lynn Hall Hankins v. James Michael Hankins
W2009-00240-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge John R. McCarroll, Jr.

This appeal arises from a divorce action. Husband appeals the trial court’s classification and
division of property, the award of alimony in futuro to Wife, and the award to Wife of a
portion of her attorney’s fees. We affirm.

Breath of Life Christian Church v. Travelers Insurance Company
W2009-00284-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Arnold B. Goldin

The trial court awarded summary judgment to Defendant surety in this breach of contract action. We affirm.

Eduardo SantAnder, Plaintiff-Appellee, American Home Assurance Co., Intervenor-Appellant, v. Oscar R. Lopez, Defendant
M2009-01210-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge J. Mark Rogers

Plaintiff was involved in a motor vehicle accident during the course and scope of his employment. Plaintiff brought a tort action against the driver of the other vehicle, and subsequently entered into a settlement with his employer and the workers' compensation carrier. Plaintiff then reached a settlement in the tort case, but before Judgment was entered his employer filed a Petition to Intervene in that case, asserting a subrogation lien on the tort recovery. The Trial Judge refused to allow intervention on the grounds that the Petition to Intervene was not timely filed. On appeal, we reverse and remand.

Deborah Southern Antrican vs. Alvin Michael Antrican
E2009-01028-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor E.G. Moody

This is a divorce case following a long-term marriage. Following a trial, the Trial Court classified the property as separate or marital, divided the marital property, awarded Wife $30,000 as her share of farm income that was earned after the parties separated, and awarded Wife alimony in futuro of $800 per month and alimony in solido of $20,000 for partial payment of her attorney fees. Both parties appeal raising various issues. We modify the award of $30,000 in farm income to an award of $2,184. We also modify the award of alimony in futuro to be $400 per month, with this modification to become effective sixty days from the date our judgment is entered. In all other respects, the judgment of the Trial Court is affirmed.

Grady Hayes Brown v. State of Tennessee
W2009-00907-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Commissioner Nancy C. Miller-Herron

The Tennessee Claims Commission dismissed this claim for negligent deprivation of a statutory right upon finding that the statute relied upon contained no private right of action. We affirm.

National Collage of Business & Technology and Remington College; Memphis Campus v. Tennessee Higher Education Commission
M2009-00137-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This appeal involves subject matter jurisdiction and exhaustion of administrative remedies. The petitioners filed an administrative petition with the defendant commission challenging a newly promulgated rule. Before the commission took action on the administrative petition,
the petitioners filed a complaint for declaratory judgment in the trial court, making essentially the same allegations. The commission filed a motion to dismiss in the trial court, arguing that the trial court did not have subject matter jurisdiction over the complaint, because the petitioners failed to exhaust their administrative remedies before filing the declaratory judgment lawsuit. The trial court granted the motion and dismissed for lack of subject matter jurisdiction. The petitioners now appeal. We reverse, finding that the trial court had subject matter jurisdiction over the petition.

Barry I. Chook v. Tashawn N. Pirela Jones and Kenneth Jones
W2008-02276-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

This is an appeal of a discovery matter. The plaintiff was involved in a motor vehicle
accident with the defendants. One year and one day after the accident, the plaintiff filed a
lawsuit asserting negligence. The complaint sought money damages for damage to property
and personal injury. The defendants filed a motion to dismiss based on the statute of
limitations. The plaintiff sought extensive discovery of the defendants’ personal records.
The trial court denied the plaintiff’s motion to compel discovery and granted the defendants’
motion to dismiss. The plaintiff now appeals. We find that the order from which the
plaintiff appeals is not a final judgment. Accordingly, we dismiss the appeal.

Clifton Lake, et al. v. The Memphis Landsmen, L.L.C., et al.
W2009-00526-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge John R. McCarroll, Jr.

This is an appeal from a jury verdict in a negligence and products liability case. Appellant-
Husband was injured when the bus, on which he was a passenger, collided with a concrete
truck. Appellant-Husband and Appellant-Wife filed suit against Appellees- the bus
manufacturer, the bus owner, and the franchisor. Following trial, the jury found that the
Appellants had suffered $8,543,630.00 in damages, but found that none of the Appellees
were at fault and apportioned one hundred percent of the fault to a non-party. Appellants
appeal. We find that Appellants’ claims based on the use of tempered glass in the side
windows of the bus, and the lack of passenger seatbelts in the bus are preempted by the
National Traffic and Motor Vehicle Safety Act, 49 U.S.C. §30101 et seq. Further, we find
that the Appellants failed to present evidence that the use of perimeter seating in the bus
caused the injuries. Consequently, we find that the trial court erred in not granting
Appellees’ motions for directed verdict on the Appellants’ claims based on the use of
perimeter seating. Reversed and remanded.

Joanne Wells v. Mark Wells
W2009-01600-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Robert L. Childers

This is divorce case, ending a fifteen year marriage. Appellant-Husband appeals from the trial court’s classification and division of marital property. Appellee-Wife appeals from the trial court’s decision to impute income to her. Finding no error, we affirm.

Tina Taylor, et al. v. Lakeside Behavorial Health System
W2009-00914-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Special Judge Charles O. McPherson

This is a medical malpractice case. Appellant filed suit against Appellee Hospital
after Appellant’s decedent suffered several falls and a broken hip while a patient at Appellee
Hospital. The trial court granted Appellee Hospital’s Tenn. R. Civ. P. 12.02(6) motion,
thereby dismissing Appellant’s amended complaint. Specifically, the trial court held: (1) that
the amended complaint was ineffective to give notice to Appellee Hospital because it did not
reference the date(s) of decedent’s falls, (2) that the medical malpractice claim and hedonic
damages of the widow arising therefrom were dismissed by previous orders of the court, and
(3) that the proof did not support the averments made in the amended complaint. After
review, we conclude: (1) that the amended complaint is sufficiently specific to satisfy Tenn.
R. Civ. P. 8, and to state a claim for medical malpractice against the Appellee Hospital, (2)
that the previous orders of the trial court only dismissed the wrongful death claims and
widow’s loss of consortium claims arising therefrom, and not the medical malpractice claims,
and (3) that the trial court reviewed matters outside the pleadings so as to trigger summary
judgment analysis under Tenn. R. Civ. P. 12.03, and (4) that there are disputes of material
fact in this case so as to necessitate a full evidentiary hearing on the medical malpractice
claim. Reversed and remanded for an evidentiary hearing on the medical malpractice claim
against Appellee Hospital and on the widow’s loss of consortium claims arising from the
alleged medical malpractice.

Brenda Duncan Albright vs. Randolph & Sherry Tallent - Concur
E2009-01983-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jerri S. Bryant

I concur with the majority’s decision to affirm the Trial Court’s denial of Plaintiff’s claim for adverse possession of the property in dispute. I also concur in the majority’s decision to affirm the Trial Court’s ruling that Defendants may construct the fence where proposed as that fence is constructed entirely on Defendants’ property and does not, as found by the majority, interfere with Plaintiff’s use of the easement in any way.

Michael Joseph Grant v. Foreperson For The Bradley
E2009-01450-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Jerri S. Bryant

This appeal arises from the trial court’s order overruling a pro se petition for writ of mandamus by the appellant. In the petition, the appellant sought access to the grand jury for Bradley County to present evidence of purported wrongdoing by the investigating officer of his case. The trial court denied the petition. On a different basis, we affirm.

Teresa Gard v. Dennis Harris, M.D.,
2008-01939-COA-R3-CV
Trial Court Judge: Wheeler A. Rosenbalm

Plaintiff filed a complaint alleging false light invasion of privacy and defamation after her physician sent a letter she considered defamatory. After finding that plaintiff consented to the disclosure by signing a consent form, the trial court granted summary judgment in favor of the defendants. We affirm.

Johnny C. Hensley vs. wharton Duke and Sharon Duke
E2009-00482-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Kindall T. Lawson
The landlord brought this action against tenants under the lease agreement for damages allegedly caused by tenants and their animals to plaintiff's property. After an evidentiary hearing, the Trial Court entered Judgment for damages to plaintiff's property and defendants have appealed. On appeal, we modify the Judgment downward and affirm the Trial Court, as modified.

Edward P. Landry, et al vs. South Cumberland Amoco, et al
E2009-01354-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Kindall T. Lawson
Plaintiffs brought this wrongful death action against defendants for the wrongful death of Brandi Coyle, who died as a result of a motor vehicle accident allegedly caused by an underage intoxicated driver who had purchased intoxicating beverages from South Cumberland Amoco. Defendants moved for summary judgment on the grounds that plaintiffs would be unable to prove essential elements of their claim. The Trial Court held that the alleged underage driver had stated initially that he was over the age of 21, but later, in another statement, represented that he was a minor at the time of the accident. The Trial Judge held that his statements cancelled each other and there was no evidence to establish that he was a minor at the time of the accident. The Court also held that plaintiffs could not prove that the South Cumberland Amoco cashier had "knowingly sold intoxicating beverages to a minor". On appeal, we vacate the summary judgment and remand for further proceedings.

City of Murfreesboro v. Thomas Leon Norton
M2009-02105-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: J. Mark Rogers
This case involves an appeal from a judgment entered by a city court following a traffic citation. The circuit court found that the defendant had not violated the city ordinance alleged to have been violated, but the court sua sponte determined that the defendant had violated a different city ordinance. The defendant appeals. We reverse and remand.

James Morton Burris v. Lisa Estes Burris
M2009-00498-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Royce Taylor
This is a divorce case ending a twenty-one year marriage. Following a three day trial, the trial court entered a parenting plan naming Appellee/Father as the primary residential parent, granting Father decision making authority, and providing Appellant/Mother with visitation. The trial court also entered judgment against Mother for retroactive child support since the parties separation and for marital debts that had been paid by the Father during the separation. Discerning no error, we affirm.

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.

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

I concur in the result reached by Judge Farmer. However, because I reach the result by different reasoning, I write separately.

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

The trial court denied Father’s petition to modify custody of his three minor children, who are in the custody of their maternal grandparents. We vacate the trial court’s order and remand for further proceedings.

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.