APPELLATE COURT OPINIONS

Kristin McKenzie and her husband, Joshua McKenzie, filed this health care liability action individually, and on behalf of their infant child, Jacob, who sustained injuries during his birth. As a result of these injuries, Jacob has limited use of his left arm. The plaintiffs allege that defendant Dr. Matthew A. Roberts was negligent in the delivery of Jacob. They assert that he applied a vacuum extractor during the delivery without first obtaining mother’s informed consent. Following a two-week trial, the jury returned a verdict in favor of Dr. Roberts and his employer. Plaintiffs argue that the trial court committed several errors that entitle them to a new trial. They claim that the court erred in allowing the introduction of evidence that violates the collateral source rule. Specifically, they argue that the defendants were allowed to extensively cross-examine plaintiffs’ witnesses regarding possible health insurance benefits under the Affordable Care Act and other benefits under the Individuals with Disabilities Education Act. The plaintiffs argue that the defendants pursued this line of interrogation in an attempt to show that some of Jacob’s needs would be covered by these collateral sources. The plaintiffs state that the trial court also erred in restricting the scope of the plaintiffs’ argument. Plaintiffs assert that the trial court erred in instructing the jury on the sudden emergency doctrine. Finally, they argue that the trial court erred in its jury instruction regarding the concepts of “foresight” and “hindsight.” Plaintiffs appeal, arguing reversible errors on the part of the trial court. We vacate the trial court’s judgment on the jury verdict. We affirm some of the actions of the trial court, actions that are challenged by plaintiffs. We vacate the trial court’s order awarding the defendants $81,343.47 in discretionary costs. This case is remanded to the trial court for further proceedings.

This appeal arises from post-divorce efforts to modify a permanent parenting plan. In her petition to modify, Mother set forth distinct material changes in circumstances she claimed warranted either a change in custody or a change in the residential parenting schedule. Specifically, the petition alleged, among other things, that Father interfered with Mother’s visitation and her ability to be more involved in the children’s lives. The court found Mother did not prove any of the factual allegations in her petition by a preponderance of the evidence and thus found no material change in circumstances. From this ruling, Mother appealed. Discerning no error, we affirm.

Both parties appeal from the trial court’s order finding two grounds to terminate Mother’s parental rights, but ultimately concluding that termination was not in the child’s best interests. Discerning no reversible error, we affirm.

A mother’s parental rights to her two daughters were terminated on the grounds of abandonment by failure to support; substantial noncompliance with permanency plans; failure to manifest an ability and willingness personally to assume legal and physical custody or financial responsibility for the children; and persistence of conditions. The court also found that termination was in the children’s best interest. The mother appeals. Upon our review, we hold that the evidence in the record does not support a finding that Mother willfully failed to abandon the children by her failure to pay support; in all other respects, we affirm the termination.

This action involves a former employee’s alleged misappropriation of confidential business information and improper interference with contractual and business relationships for the benefit of a competitor company. The employer filed suit against the employee and the competitor company, seeking damages for lost profits. The defendants moved for summary judgment, alleging, inter alia, that the employer could not prove causation or damages in support of any of its claims. The trial court granted summary judgment, finding that the proof submitted was insufficient to support a claim for lost profits. We affirm.

In this action, the petitioner sought a declaratory judgment establishing that the marriage between her deceased father and stepmother was void ab initio. The petitioner claimed that her father was not legally divorced from her mother when the marriage occurred. The trial court denied the petition, finding that the petitioner failed to rebut the validity of the second marriage. The petitioner appeals. We affirm.

This appeal arises from a divorce. Sandra Jo Robbins (“Wife”) sued her husband Robert Scholze Robbins (“Husband”) for divorce in the Circuit Court for Hamilton County (“the Trial Court”) after approximately 20 years of marriage. Following trial, the Trial Court divided the marital estate, entered a permanent parenting plan regarding the parties’ minor children Ava and Theodore (“the Children”), and awarded Wife alimony in futuro. Husband appeals to this Court, raising a host of issues. We hold, inter alia, that the Trial Court erred in excluding Husband, pro se, and Wife’s attorney from in-chambers questioning of the Children. However, we hold further that, considering the whole record, this error by the Trial Court was not reversible error. We, therefore, affirm the judgment of the Trial Court.

The dispositive issue on appeal is whether co-owners of a limited liability company who signed a commercial lease agreement on behalf of the entity are personally liable for the lessee’s obligations when they signed the agreement twice: once on a line preceded by the text “By:” and followed on the next line by the text “Title:” and a second time on a line below which the signatory’s name was typed, followed by the word “Individually.” After the lessor filed suit against the lessee company and the co-owners individually to collect utilities and tax payments allegedly owed under the lease agreement, the co-owners filed a motion to dismiss for failure to state a claim on which relief could be granted, arguing that the lease contains no provisions that make them personally liable for the lessee’s obligations. The trial court granted the co-owners’ motion, and lessor appealed. We affirm.

This appeal arises from a detainer action. After the general sessions court awarded the owner a writ of possession and a monetary judgment for rent, the defendant appealed to circuit court. The defendant also filed a separate action in chancery court seeking an equitable interest in the property under a resulting trust to compensate her for improvements she made to the property. The owner filed an answer and counter-complaint in the chancery court to recover the same damages it sought in the circuit court. While the chancery action was pending, the parties entered into an agreed order in the circuit court requiring the defendant to pay rent for her occupancy of the premises, but that execution would be stayed pending resolution of the chancery court action. After the chancery court dismissed all claims with prejudice, the owner filed a motion in the circuit court to lift the stay of the agreed order and for entry of a final judgment to recover rent owed by the defendant. The defendant filed an objection, maintaining that the counterclaim for rent in chancery court consolidated the two cases; therefore, the owner’s claim for rent had been dismissed by the chancery court. The defendant also contended the claim for rent in the circuit court action was barred under the doctrine of res judicata. The circuit court overruled the objection holding that the two actions were never consolidated, and res judicata did not apply because the circuit court action was filed before and pending when the chancery court case was commenced. This appeal followed. We affirm.

In this post-divorce proceeding the self-employed father of the parties’ two children sought a reduction in his child support obligation on the ground that his income had substantially decreased. The mother of the children opposed the petition, asserting that Father was attempting to hide income by referring income-producing business to his brother, who was also self- employed in the same trade; Mother also sought an increase in support due to Father’s increase in income and modification of the parenting plan. The trial court held that Father was voluntarily underemployed and that the proof of his income was not credible; concluding that neither party had carried their burden of proof the court denied both petitions insofar as each sought modification of the child support obligation. The court denied Mother’s proposed modification of the parenting plan and both parties’ request for an award of counsel fees for services rendered in the proceeding. Both parties appeal. Upon a thorough review of the record, we affirm the denial of Father’s petition to modify his support obligation and the order denying his counsel fees; we reverse the trial court’s holding that Father was underemployed and remand the case for a determination of whether income should be imputed to Father and, if so, whether there has been a significant variance such as to justify an increase in his support obligation; we vacate the order denying Mother’s petition to modify the parenting plan and remand the case for the court to make findings of fact and conclusions of law in compliance with Rule 52.01 and, in its discretion, for further consideration; we vacate the order denying Mother attorney’s fees.  

This is an appeal from a judgment entered on February 20, 2015. Because the appellant did not file his notice of appeal within thirty days after entry of the judgment as required by Tenn. R. App. P. 4(a), we dismiss the appeal.

This is an appeal from an interpleader action filed by a party who owed funds that were claimed by two other parties. The trial court found that interpleader was appropriate pursuant to Tennessee Rule of Civil Procedure 22.01 and allowed the disputed funds to be deposited with the court. The two remaining claimants to the funds filed crossmotions for summary judgment. The trial court found that one party was originally owed the funds but that this party owed a debt to the other claimant. As such, the trial court ruled that the funds would be paid to the party who was not originally owed the funds but who had the outstanding claim against the other claimant. We reverse in part, affirm as modified, and remand for further proceedings.

This is an appeal in a slip and fall case. The plaintiff fell in a restaurant bathroom due to water on the floor. According to the plaintiff, the water was steadily dripping from a utility faucet located beneath the bathroom vanity. The plaintiff argues that the existence of the utility faucet was a dangerous condition such that the restaurant had a duty to either remedy it or warn of its existence. The trial court granted summary judgment to the restaurant, concluding that the existence of the faucet was not a dangerous condition. We agree and affirm the decision of the circuit court.

The purchaser of automated cake-line equipment filed this action against the seller alleging breach of contract, breach of express and implied warranties, negligent misrepresentation, and violation of the Tennessee Consumer Protection Act.  On the seller’s motion, the trial court dismissed the complaint as untimely.  Because we conclude that the complaint was filed after the applicable limitations periods, either as agreed to by the parties or set by statute, we affirm.

The Tennessee Board of Education (“the Board”) denied approval of Bethel University’s (“Bethel”) educator preparation program (“EPP”). After unsuccessfully pursuing remedies under the Uniform Administrative Procedures Act (UAPA), Bethel sought judicial review of the Board’s action. The trial court found that the Board Policy 5.504, relied upon by the Board in its decision, was invalid and reinstated approval of Bethel’s EPP. The Board appeals, asserting 5.504 is a valid policy within the meaning of the UAPA and that the court erred in reinstating Bethel’s EPP. We affirm the trial court’s holding that 5.504 is a rule within the meaning of the UAPA and, since it was not promulgated as a rule in accordance with the UAPA, it is invalid and could not be used as a basis of denying approval of Bethel’s EPP. Further, we have determined that the court exceeded its authority in ordering reinstatement of Bethel’s EPP; we vacate the decision in that regard and remand the case to the trial court with instructions to remand the case to the Board for further consideration of Bethel’s approval status as an EPP.  

This matter involves a will contest. The deceased died testate. His daughter, the proponent, is the executor. She submitted the deceased’s will to the trial court for probate. An order to probate was entered. The will expressly provides that the deceased’s son “is to take nothing” under the will. The son filed a complaint and a notice with the trial court contesting the will due to alleged undue influence. Proponent filed a motion to dismiss on the ground that contestant did not have standing to file a contest. Contestant subsequently took a voluntary nonsuit; the trial court entered an order of nonsuit. Nine months after his initial filing, contestant filed a second will contest in the same court. The proponent filed a motion to dismiss alleging that the contestant’s voluntary dismissal of his first will contest bars the filing of his second complaint. The trial court agreed. It entered an order granting proponent’s motion to dismiss with prejudice. We affirm.

After police seized a vehicle allegedly used to transport drugs, the Tennessee Department of Safety and Homeland Security initiated forfeiture proceedings against the vehicle’s owner. The owner filed a claim contesting the forfeiture proceedings, and the Department dismissed the claim as untimely. The owner petitioned for judicial review, and the trial court reversed the dismissal, reinstated the owner’s claim, and remanded for a hearing. We affirm the trial court’s decision.          

This is the second appeal arising from a divorce action. In this appeal, the wife contends the trial court erred by depriving her of the post-trial increase in her proportionate share of marital investment accounts. On remand, the trial court held that the wife was awarded a sum certain as of the date of divorce; thus, the subsequent increase in the value of the account was the husband’s property. We affirm.

Judy A. Allen (“Allen”) filed suit contesting the Last Will and Testament of Ida Lucille Land dated May 9, 2011 (“the Will”), which was admitted to probate in October of 2015. The case proceeded to trial before a jury, and after trial the Chancery Court for Hamilton County (“the Trial Court”) entered judgment on the jury’s verdict finding that there was undue influence arising from a confidential relationship between Kenneth L. Hill (“the Executor”) and his wife, Pauline Hill, and Ida Lucille Land (“Deceased”); that the Executor and Pauline Hill unduly benefitted from the Will; and that the Executor and Pauline Hill failed to prove by clear and convincing evidence that the transaction was fair. The Executor appeals to this Court raising issues regarding whether the naming of a person as executor is a sufficient benefit to trigger the presumption of undue influence and whether the Trial Court erred in denying the Executor’s motion for directed verdict. We find and hold that there is material evidence supporting the jury’s verdict that the Executor and Pauline Hill exercised undue influence, that they received a benefit under the Will, and that the Executor and Pauline Hill failed to prove that the transaction was fair. We further find and hold that the Trial Court did not err in denying the motion for directed verdict. We, therefore, affirm the Trial Court’s June 8, 2017 Final Decree.

In this conservatorship action, three of the conservatee’s five adult children filed a petition for conservatorship over the conservatee in May 2015 and subsequently filed an emergency petition for conservatorship in June 2015. Following a hearing, the conservatorship court granted the emergency petition, naming one of the petitioners as conservator over the conservatee’s property and one of the petitioners as conservator over the conservatee’s person. The conservatee’s two non-petitioning children subsequently filed a motion in opposition to the conservatorship and requested that it be dissolved. The conservatee then filed an answer to the petition and motion to dismiss the conservatorship. Following various subsequent motions and a hearing conducted in September 2015, the conservatorship court entered an order in October 2015, inter alia, appointing East Tennessee Human Resources Agency (“ETHRA”) as an emergency interim conservator over the conservatee’s property but maintaining the originally named petitioner as conservator over the conservatee’s person. The conservatorship court subsequently memorialized these appointments as permanent in an order entered in December 2015. Upon motions for attorney’s fees filed by the petitioners’ counsel in January 2016, the conservatorship court found that the attorney’s fees requested were reasonable and granted them in an order entered in March 2016. On March 29, 2016, ETHRA filed the last of three successive inventory and property management plans. The conservatee died on May 2, 2016. Upon multiple motions requesting fees, the conservatorship court conducted a hearing and subsequently entered an order on June 21, 2016, inter alia, awarding reasonable fees and expenses to the attorney ad litem, the conservator of the person, and the petitioners’ counsel and former counsel. ETHRA filed a motion to enter final accounting on August 25, 2016, and concomitantly filed a motion requesting $9,112.50 in fees for the services of its representative agent. In September 2016, the petitioners’ counsel filed additional requests for attorney’s fees, and in October 2016, ETHRA’s counsel filed a motion for attorney’s fees. On October 6, 2016, ETHRA filed a motion to close the conservatorship. The petitioners subsequently filed an objection to the final accounting, and the two non-petitioning children filed separate objections to the petitioners’ supplemental motions for attorney’s fees filed subsequent to the conservatee’s death. Following two hearings, the conservatorship court entered an order on March 28, 2017, granting ETHRA’s motion to close the conservatorship and motions for its representative’s fees and attorney’s fees. The conservatorship court declined to consider the petitioners’ pending supplemental motions for attorney’s fees, referring those to the probate court in a subsequent order. The conservatorship court also referred any claims arising from the petitioners’ objections to the final accounting to the probate court. The petitioners have appealed, asserting improper transfer to probate court of their pending motions requesting attorney’s fees, a lack of itemization of the services provided by the ETHRA representative, and deficiencies in the final accounting. Having determined that the conservatorship court improperly transferred to the probate court the petitioners’ motions for attorney’s fees without making necessary findings of fact and improperly closed the conservatorship without making findings of fact concerning the petitioners’ objections to the final accounting, we vacate those portions of the judgment. We affirm the undisputed grant of attorney’s fees to ETHRA’s counsel. We remand for entry of findings of fact and conclusions of law concerning the petitioners’ objections to the final accounting and concerning whether the attorney’s fees requested in the petitioners’ counsel’s pending attorney’s fee motions were incurred in relation to the conservatorship and, if so, whether reasonable attorney’s fees should be granted upon each of these motions. We also direct the conservatorship court to enter an order on remand directing ETHRA to present a detailed explanation of the basis for its representative’s claim for fees and expenses for the conservatorship court’s consideration based upon the factors provided in Tennessee Code Annotated § 34-1-112(a) (2015).

Trust beneficiary filed suit against co-trustees and various business entities in tort for the alleged wrongful withholding of distributions. Defendants filed a motion to dismiss based on several grounds. The trial court dismissed trust beneficiary’s complaint relying on each of the grounds asserted by the defendants. We affirm the dismissal of the complaint based on the statute of limitations. We also grant reasonable attorney’s fees, costs, and expenses incurred by defendants on appeal.

A creditor obtained a judgment in Minnesota and sought to authenticate and enforce the judgment in Tennessee, where the judgment debtor resided and had assets. The judgment debtor objected to the creditor’s complaint because the affidavit accompanying the complaint was not notarized, as required by law. The creditor’s attorney subsequently filed a corrected affidavit that was notarized, and the trial court entered an order authenticating and enrolling the foreign judgment. The judgment debtor appealed, and we affirm.  

This is a contract dispute between the developer and the builder of a residential property.  The developer claimed that the builder was not in compliance with the terms of the contract and removed the builder from the project. The trial court found that the developer breached the contract first by removing the builder from the property without providing it with an opportunity to cure the problems the developer identified and awarded damages to the builder. The developer appeals the decision by the trial court, and we affirm the trial court’s judgment.

A mother appeals the termination of her parental rights. The juvenile court found four statutory grounds for termination of parental rights: abandonment by failure to visit, abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plan, and persistence of conditions. The juvenile court also found that termination of the mother’s parental rights was in the child’s best interest. We conclude that the record contains clear and convincing evidence to support the grounds for termination and that termination is in the child’s best interest. Thus, we affirm the termination of the mother’s parental rights.

The defendant, the alleged guarantor of the obligations of BPC of Memphis, LLC, under a lease agreement, appeals the grant of summary judgment in favor of the plaintiff, finding the defendant personally liable for the tenant’s obligations under the lease. BPC, the tenant, occupied the leased premises from December 2012 until August 2015, at which time it stopped paying rent. After BPC and the defendant refused the plaintiff’s demands for payment, the plaintiff commenced this action against BPC and the defendant as the guarantor. In the answer to the complaint, the defendant denied signing any document that purports to establish his personal liability. The plaintiff filed a motion for summary judgment that was properly supported by a statement of undisputed facts and affidavits pursuant to Tenn. R. Civ. P. 56. The defendant’s response was supported by his affidavit in which he disputed the plaintiff’s statement of fact that he signed “the lease” or “the Personal Guarantee section” of the lease. The chancery court granted the plaintiff’s motion for summary judgment stating, in part, “[i]n the face of the mountain of evidence in the record submitted by Plaintiff, Defendants had the burden to bring forward evidence other than Mr. Panchikal’s blanket denial in order to create a genuine issue of material fact,” and “Defendants failed to meet their burden.” The court also stated it was “mindful that Defendants have attempted to put into question Paragraphs 10, 21, and 27 in Plaintiff’s Statement of Undisputed Fact.” This appeal followed. We have determined that the defendant created a genuine dispute of a material fact by stating, inter alia, in his affidavit that “the documents claimed to bear my signature by the Plaintiffs are a forgery,” and “I never executed any guaranty section on any lease, contract or other document.” Accordingly, we reverse and remand for further proceedings.