COURT OF APPEALS OPINIONS

N. C. Edwards, II v. Carlock Nissan of Jackson, LLC, et al.
W2006-01316-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor James F. Butler

Lessor/Appellee sued Lessee/Appellant for breach of contract due to Lessee/Appellant’s alleged failure to maintain the leased building as required under the lease. The trial court entered Judgment in favor of Lessor/Appellee, which Judgment included damages for repairs to the building, lost rent, and attorney fees. Lessee/Appellant appeals. On appeal, Lessor/Appellee asks for attorney fees in defending this appeal. We affirm the judgment of the trial court and remand for a determination of appropriate appellate attorney fees.

City of Covington Education Association v. City of Covington, et al.
W2006-02007-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Joseph H. Walker, III

Plaintiff City of Covington Education Association filed a petition for writ of mandamus and complaint for damages against Defendants City of Covington and the Covington Board of Education, alleging its members were entitled to a pay increase in addition to that paid by Defendants and to a bonus that was approved and subsequently disapproved by the Board of Education. The trial court denied the writ and entered summary judgment in favor of Defendants. We affirm.

Johnny Gant v. Santa Clarita Laboratories
M2005-01819-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Walter C. Kurtz

The plaintiff was a Nashville man who bought a bottle of mail order vitamins from a California company and directed the company to send the order to one of his relatives. The plaintiff was unsatisfied with the product and mailed it back to the company and asked for a refund. When no refund was immediately forthcoming, he filed suit in General Sessions Court. The company sent the plaintiff a full refund after it was served with the lawsuit. The plaintiff continued to pursue his suit through an appeal to the Circuit Court, which dismissed the case. We affirm the Circuit Court.

Moody Realty Company, Inc. v. Ronald L. Huestis, et al.
W2006-00905-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor William B. Acree

This is a breach of contract action for the recovery of a real estate brokerage commission. The trial court found that the parties did not enter into a binding buyer’s representation agreement because there was no meeting of the minds. Instead, the court awarded the plaintiff real estate broker damages in quantum meruit. On appeal, we find that the parties mutually assented to the terms of the buyer’s representation agreement and that the broker was entitled to its commission as stated in the contract. We vacate the award of damages in quantum meruit, affirm in part, reverse in part, and remand for entry of judgment in accordance with the contract.

City of Memphis v. The Civil Service Commission of the City of Memphis, et al.
W2006-01880-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor D. J. Alissandratos

This administrative appeal arises out of the termination of Officers Mauricio Hearns’s (Officer Hearns), Henry Gray, Jr.’s (Officer Gray), Dorian Branch’s (Officer Branch), and Derick Jones’s (Officer Jones) (collectively “the officers”) employment with the City of Memphis Police Department (the Department) following their purchases of stolen Samsung televisions and digital video disc (DVD) players for their personal use. The Department terminated the officers’ employment after finding a violation of DR-104 Personal Conduct. The Civil Service Commission of the City of Memphis (the Commission) ruled that the termination was unreasonable disciplinary action and reversed the City’s decision. The City appealed to Shelby County Chancery Court, where the chancellor reversed the Commission’s decision, finding it to be arbitrary and capricious. We hold that the Commission’s decision was unsupported by substantial and material evidence and therefore arbitrary. We affirm.

Patrice Allen, et al. v. Methodist Healthcare Memphis Hospitals, et al.
W2006-01558-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge D'Army Bailey

This is a medical malpractice action in which the jury found in favor of Defendant hospital. Plaintiff
asserts Defendant’s expert was not qualified under Tennessee Code Annotated § 29-26-115(a)(1), and that the matter accordingly should be remanded for a new trial. We reverse the trial court’s order denying Plaintiff’s motion for new trial, vacate the judgment on jury verdict, and remand for a new trial.

Frank H. McNiel v. Susan R. Cooper
M2005-01206-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Richard H. Dinkins

This appeal involves the authority of the Tennessee Board of Medical Examiners to review the medical records of a physician’s patients. After the Board requested access to his patients’  records in accordance with Tenn. Code Ann. § 63-1-117 (2004), the physician filed a declaratory judgment action in the Chancery Court for Davidson County challenging the constitutionality of the statute. The physician asserted that the statutory procedure for gaining access to medical records amounted to an unreasonable search and seizure because it failed to provide him with pre-enforcement judicial review of the reasonableness of the Board’s request. He also claimed that the statute’s notice provisions violated due process. Both the physician and the Board filed motions for summary judgment. The trial court concluded that the physician received adequate notice of the purpose of the request for medical records. It also determined that Tenn. Code Ann. § 63-1-117(a)(3), the portion of the statute authorizing disciplinary sanctions against physicians who willfully fail to produce requested records, was unconstitutional and awarded the physician $20,916 in attorney’s fees. The Board perfected this appeal. We concur with the trial court’s conclusion that the physician received adequate notice of the reasons for the request for medical records. However, we have determined that physicians in Tennessee have no reasonable expectation that they can shield their patients’ records from the Board’s regulatory oversight and that the Board may discipline physicians who willfully refuse to comply with lawful requests for patient records that comply with Tenn. Code Ann. § 63-1-117.

Ryder Integrated Logistics, Inc. v. Edwin Jason Aldrich, et al.
M2006-00115-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Thomas E. Gray

Trial court dismissed action by worker’s compensation lienholder against employee’s attorney seeking to hold employee’s Tennessee attorney liable for disbursement of proceeds from third party settlement made by another out-of-state attorney.  We affirm.

Intermodal Cartage Co, Inc. v Timothy Cherry, et al.
M2005-01635-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Carol L. Mccoy

This case concerns an employment agreement entered into by employees of a company. The employment agreement contained provisions against solicitation and competition. Four employees who signed the agreement later left the company and went to work for one of its main competitors. The company leveled numerous allegations against the four employees and their new employer, including breach of the employment agreement, breach of duty of loyalty, unlawful inducement of breach of contract, and tortious interference with contractual relations and business relations. The trial court granted summary judgments in favor of the four employees and their new employer. The judgment of the trial court is reversed and the case remanded for further proceedings.

E.J. Bernard, et al. v. Metropolitan Government of Nashville and Davidson County
M2006-00165-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Carol L. Mccoy

Two former police officers sought several tangible benefits of retirement guaranteed by Metro ordinances and police department policies. The officers requested such benefits and were denied, the Deputy Chief of Police citing a lack of good standing, as required by the ordinances, as the reason. The officers filed a declaratory judgment action. Metro filed a motion to dismiss asserting that a common law writ of certiorari should have been filed instead. The trial court granted the motion to dismiss. We reverse and remand.

Antwan Anglin v. Sgt Leroy Turner, Warden, et al
E2006-01764-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Russell E. Simmons, Jr.

Prisoner filed Petition for a writ of certiorari. The Trial Court refused to issue the writ. We affirm.

State of Tennessee, Ex Rel., LaJaunta McNeil Dauda v. Corry Jamal Harris
W2006-01314-COA-R3-JV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Special Judge Harold W. Horne

This is a Title IV-D child support case. The Appellant State of Tennessee ex rel. LaJuanta McNeil Dauda was granted an order legitimizing the minor child and setting Appellee/Father’s child support obligation going forward. Appellee/Father filed a petition to set aside paternity, which was denied. Appellee/Father’s child support arrears were determined and, thereafter, the child’s mother sought to have Appellee/Father’s support obligation suspended and any arrears forgiven. The trial court granted the motion and the State appeals. We reverse and remand.

Federated Rural Electric Insurance Exchange, et al. v. William R. Hill, et al.
M2005-02461-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Barbara N. Haynes

Employer and its insurer filed suit against employee for fraud in the procurement of workers' compensation benefits. Employee and his wife filed a counter-complaint alleging intentional infliction of emotional distress. retaliatory discharge and loss of consortium. The trial court dismissed the counter-complaint for failure to state a claim. Employee sought to amend the counter-complaint to add procurement of breach of employment contract and a tortious interference claim against the insurer. The trial court also denied these claims. Employee and his wife appeal. We reverse in part, affirm in part, and remand.

Robert W. Bible, D/B/A Chalet Village Chalets v. Ted Mullikin, et al.
E2005-2064-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Rex Henry Ogle

Robert W. Bible d/b/a Chalet Village Chalets (“Plaintiff”) sued Ted Mullikin and Ted Mullikin d/b/a Mountain Rentals of Gatlinburg (“Defendant”) alleging, in part, that Defendant was in breach of a contract for the sale by Plaintiff to Defendant of Plaintiff’s chalet rental business. The case was triedwithout a jury, and the Trial Court granted Plaintiff a judgment against Defendant for $21,931.35. Defendant appeals to this Court. We affirm.

David Prewitt v. Semmes-Murphey Clinic, P.C., et al.
W2006-00556-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Karen R. Williams

The plaintiff was rendered a quadriplegic after a car accident, and he received care at The Regional Medical Center at Memphis. The hospital staff included University of Tennessee School of Medicine residents, private physicians who were dual employees of a private corporation and the University of Tennessee as part of its residency training program, and nurses employed by another private corporation. The dual employee physicians treated patients independently in their capacity as employees of the private corporation and supervised resident physicians in their capacity as
employees of the University of Tennessee. A University of Tennessee resident physician intended to perform a lumbar puncture procedure on the plaintiff, and he left a written request for a nurse for a lumbar puncture kit for said procedure. The nurse provided this kit, but did not include an antiseptic. The day of the procedure, the resident physician lowered the plaintiff’s bed rail and placed the plaintiff on his side in anticipation of performing the lumbar puncture, but when he noticed that an antiseptic was missing from the kit, he briefly left the plaintiff unattended to obtain the antiseptic. When the resident physician returned to the room, the plaintiff had fallen off the bed onto the floor. The plaintiff ruptured his spleen from the fall, requiring major surgery which resulted in subsequent complications. The plaintiff filed suit in both the Tennessee Claims Commission and the circuit court against the resident, the University, the hospital, the nurse, and the present corporate defendants, alleging claims of medical malpractice and negligent supervision. The liability of the resident and the University was stipulated by the parties in the Claims Commission, and these parties were dismissed from the circuit court proceeding on the basis of immunity. The present defendant corporations remained in the circuit court action. After discovery, the plaintiff moved for summary judgment in the circuit court. The defendant physicians’ corporation moved for summary judgment based upon immunity and the plaintiff’s lack of expert testimony, and the defendant nurse’s corporation moved for summary judgment based upon the plaintiff’s lack of expert testimony.  The trial court granted both defendants’ motions for summary judgment and certified the judgments as final. The plaintiff filed a timely notice of appeal to this Court.  We affirm.

In Re: Estate of Paul Harris Nelson, et al.
W2006-00030-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor James F. Butler

This is an action in conversion, fraud, and breach of fiduciary duty instituted by will beneficiaries against the decedent’s sister, who was also the Executrix of his estate. The threshold issue involves subject matter jurisdiction for this appeal. Although a recent amendment to the Tennessee Code would place appellate jurisdiction for this case in the trial court, we hold that a more specific, prior private act conferring appellate jurisdiction on this Court controls. The second, and pivotal, issue in this dispute involves the ownership of four certificates of deposit (CD) that were purchased by Mr. Paul Harris Nelson (Mr. Nelson), the decedent, and that were later claimed and cashed by Ms. Margie Little (Ms. Little), the Defendant/Appellee, just prior to the opening of the estate. The Estate of Mr. Nelson (the Estate) appeals the lower court’s ruling that Ms. Little owned the CDs at the time of Mr. Nelson’s death because the siblings held the CDs jointly with a right of survivorship. Thus, the Estate also appeals the court’s findings of no conversion, fraud, or breach of fiduciary duty by Ms. Little with respect to the CDs.  We affirm.

In Re Adoption of Jordan S. Hayes (D.O.B. 01/10/99)
W2006-00156-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor W. Michael Maloan

This is an adoption case involving a child support arrearage. By consent of the biological father, the trial court entered an order terminating the father’s parental rights and permitting the husband of the biological mother to adopt the child. The order further stated that the biological father had satisfied all child support obligations. The State intervened in the action and filed a motion to alter or amend the order to include a provision stating that the father still owed child support. At a hearing, the mother stated that she had no desire to collect any child support arrearages from the father. In light of this, the trial court amended its order to reflect that the biological father owed the State a reduced child support arrearage, but owed nothing to the mother. The State now appeals, arguing that the trial court’s order constituted an impermissible retroactive modification of the original child support order. We modify the order, finding that the trial court’s order was, in fact, a retroactive modification of a valid child support order.

Cedric L. Coppage v. Veronica Y. Green
W2006-00767-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Special Judge George E. Blancett

This is a petition to set aside an order establishing parentage. The child at issue was born in 1990. In 1997, the juvenile court entered an order establishing the petitioner as the child’s father. Eight years later, the petitioner took an independent DNA test which indicated that he was not the child’s biological father. The petitioner then filed a petition to disestablish his parentage of the child, attaching the results of the independent DNA test to his petition. After a hearing, the juvenile court referee recommended court-approved DNA testing to prove or disprove the petitioner’s parentage. This recommendation was confirmed by the juvenile court judge. The respondent mother filed a motion for a rehearing before the juvenile court judge. The motion was granted. After a rehearing, the juvenile court judge dismissed the petitioner’s petition for court-ordered DNA testing to determine parentage. The petitioner now appeals. We reverse, determining that relief should be granted under these circumstances, and remand to the trial court for further proceedings.

State of Tennessee ex rel., Elizabeth Wray v. Kelly Collins
W2006-00119-COA-R3-JV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert W. Newell

This appeal involves a series of cases – a paternity action, a dependency and neglect proceeding, and the present case, a petition to establish paternity and set child support. The first paternity suit had been dismissed by the mother after genetic testing had taken place, but before the court entered an order of parentage. During subsequent dependency and neglect proceedings, a grandmother had received temporary custody of the child. Finally, the State of Tennessee filed this case on the grandmother’s behalf to establish paternity and collect child support from the child’s biological father. The father insisted that he had never been properly served in the dependency and neglect proceeding, so the trial court dismissed the State’s petition. For the following reasons, we reverse and remand.

Linus Thornton v. James A. Massey,
W2006-01417-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: C. Creed Mcginley

M. Eileen Lingle v. Fortis Health Insurance Company
E2006-00690-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Frank Brown, III

The Trial Court granted defendant summary judgment on the ground that the medical bills incurred by plaintiff were excluded from coverage under the health insurance provided by defendant. On appeal, we vacate the summary judgment and remand.

Helen L. Bates v. James G. Neeley, Commissioner of The Tennessee Department of Labor and Workforce Development, et al.
M2006-01023-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Timothy L. Easter

A former employee of the Highland Youth Center appeals the denial of her claim for unemployment benefits. The employee was subjected to a severe assault while at work at the youth center. She attempted to return to work after the incident but was unable to remain at work due to the severe psychological trauma associated with the assault at the workplace. She filed a claim for unemployment benefits, which was denied by the Department of Labor, the Appeals Tribunal, and the Board of Review on the ground she did not have “good cause” to terminate her employment. The Chancery Court affirmed the denial of benefits, and this appeal followed. We reverse finding the employee had good cause for terminating her employment at the Highland Youth Center.

Frank H. McNiel v. Susan R. Cooper
M2005-01206-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Richard H. Dinkins

City of Memphis v. The Civil Service Commission, et al.
W2006-01561-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor D. J. Alissandratos

This administrative appeal arises out of the termination of Officer Lenora Armstead’s (Officer Armstead) employment with the Memphis Police Department (the Department). The City took this action as a result of a public altercation between Officer Armstead and another off-duty police
officer. It found that Officer Armstead had violated DR-104 Personal Conduct and terminated her employment because of this violation and other disciplinary proceedings previously brought against her. The Civil Service Commission of the City of Memphis (the Commission) reversed the City’s decision to terminate her employment because it found the action to be unreasonable. The City appealed to Shelby County Chancery Court, where the chancellor reversed the Commission’s decision, finding it to be arbitrary and capricious. We find that the City proved a violation of DR-104 but that the Commission’s decision was supported by substantial and material evidence. We reverse and remand.

Ronald Ray Stoner v. Tiffany Denise Stoner Morgan
M2007-00474-COA-R9-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Barry R. Brown