APPELLATE COURT OPINIONS

After the death of the original plaintiff while this case was pending, a timely motion for substitution was filed to substitute the original plaintiff's parents as the real party in interest pursuant to Rule 25.01 of the Tennessee Rules of Civil Procedure. The motion indicated that the original plaintiff's parents were her only heirs and that no estate was to be opened for the original plaintiff in her home state of Missouri. The defendant filed an objection to the substitution asserting that the original plaintiff's heirs were not the proper parties, but the trial court eventually allowed parents to be substituted as plaintiffs. After the parties became aware that an estate had been opened for the original plaintiff in Missouri, defendant filed a motion to dismiss based upon non-compliance with Tennessee Code Annotated Section 20-5-104, which requires a showing that no person is willing to administer the estate of a deceased party before his or her heirs may revive a claim. Parents filed a response in opposition and, in the alternative, a motion for enlargement of time to file a motion to substitute the original plaintiff's personal representative. The trial court denied the motion for enlargement of time and granted the defendant's motion to dismiss. Because parents have shown excusable neglect sufficient to justify an enlargement of time under Rule 6.02 of the Tennessee Rules of Civil Procedure, we reverse and remand for further proceedings.

The parties to this appeal are a former Husband and Wife who each challenge the classification and division of certain assets upon their divorce. Additionally, Husband challenges the finding that $2,000 owed to the parties’ son is a separate rather than a marital debt, and Wife challenges the failure to award her one-half of funds Husband withdrew from marital accounts during the pendency of the divorce. We modify the judgment to reflect that the $2,000 payment is a marital debt and affirm the order that Husband be responsible for it; in all other respects, the judgment is affirmed.

Mother filed a petition to enroll and enforce a Mississippi divorce decree in Tennessee requesting the trial court to order Father to continue paying one-half of the parties' child's private school tuition and costs. Father opposed Mother's request and instead argued that the parties' property settlement agreement did not mandate private schooling, that it was reasonable for him to withhold consent to private schooling, and that, in the alternative, the costs associated with private schooling should be apportioned based on the parties' incomes. The trial court found in favor of Mother on all issues. Father appealed. Discerning no error, we affirm

This is a jury case arising from Appellant's healthcare liability claim against Appellee doctors. The jury returned a verdict in favor of the doctors. Appellant asserts that the trial court erred in allowing a pictograph to be passed to the jury and admitted into evidence. Appellant also asserts that the trial court should have charged the jury with a special instruction on damages. Discerning no error, we affirm.

This is a termination of parental rights case. Mother/Appellant appeals the termination of her parental rights to two minor children on the statutory grounds of: (1) persistence of the conditions that led to the removal of the children from Appellant’s home; and (2) substantial noncompliance with the requirements set out in the permanency plan. Appellant also appeals the trial court’s determination that termination of her parental rights is in the best interests of the children, and she raises several issues concerning the admission of evidence. We conclude that the state did not establish the predicate for termination of Appellant’s parental rights on the ground of persistence of conditions; however, we affirm the termination of Mother’s parental rights on the ground of substantial noncompliance with the requirements of the permanency plan. We also affirm the trial court’s finding that termination of Mother’s parental rights is in the children’s best interests.

In this premises liability case, the plaintiff appeals from the trial court's grant of summary judgment to a governmental defendant. We affirm in part, vacate in part, and remand.

Catherine McCulley, Jean Abbott, Steven Abbott, Jerry Abbott, Larry Abbott, Diane West, and Geraldine Abbott (“Plaintiffs”) sued Mark Abbott and Stephanie Abbott (“Defendants”)1 with regard to an alleged easement located across real property in Sevier County, Tennessee. During the pendency of the suit, Catherine McCulley died and a motion was made to substitute her four children as party plaintiffs. Without benefit of a hearing, the Chancery Court for Sevier County (“the Trial Court”) entered an order allowing the substitution. The case then was tried, and the Trial Court entered its judgment finding and holding, inter alia, that “the Plaintiffs, the heirs of Elmer Abbott, have an easment across the property of the Defendant, Mark Abbott . . . .” Defendants appeal to this Court raising several issues. We find and hold that the motion for substitution and the Trial Court’s order granting the motion failed to comply with Tenn. R. Civ. P. 25, which deprived Defendants of an opportunity to be heard prior to entry of the order allowing substitution. We, therefore, vacate both the April 22, 2015 order allowing substitution of parties and the June 5, 2015 judgment holding that “the Plaintiffs” have an easement, and we remand this case for further proceedings consistent with this Opinion.

This accelerated interlocutory appeal arises from the trial court's denial of Appellant's motion for recusal. Having reviewed the trial court's ruling on the motion for recusal pursuant to the de novo standard of review required under Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial court.

This appeal stems from a foreclosure. Jorge A. Alfonso and Madelyn Alfonso (“Plaintiffs”) defaulted on their mortgage on real property owed to CitiMortgage, Inc. (“Citi”). Plaintiffs wanted to effectuate a short sale in order to avoid foreclosure. However, certain real estate investors (“Defendants”) attended the foreclosure sale, bid on, and purchased the property. Plaintiffs sued Defendants and Citi in the Chancery Court for Sevier County (“the Trial Court”), alleging in part that Defendants knew that Plaintiffs and Citi were engaged in discussions to complete a short sale but purchased the property anyway. The Trial Court granted Citi’s motion to dismiss finding that Citi had the right to pursue foreclosure even if it was in talks with Plaintiffs to conduct a short sale. Plaintiffs do not appeal that order. The Trial Court later granted a motion to dismiss claims against the remaining Defendants. Plaintiffs appeal to this Court. We find and hold that Plaintiffs have stated no cause of action against the remaining Defendants. We affirm the judgment of the Trial Court.

At issue in this case is the custody of a minor child. Although the child had previously been in the physical custody of his maternal grandmother pursuant to a temporary order, the child’s mother regained custody after the grandmother failed to show that the child would be subjected to substantial harm if returned to the mother. We affirm.

In this divorce proceeding, Husband appeals from the trial court’s classification of an account as Wife’s separate property. On appeal, Husband asserts that the account is marital property based on the doctrine of transmutation. Discerning no error, we affirm.

This case involves the termination of a mother’s parental rights to her son. The trial court found that two statutory grounds for termination were proven by clear and convincing evidence – abandonment by willful failure to support and persistence of conditions. The trial court also concluded that termination of the mother’s parental rights was in the child’s best interest. We conclude that there is not clear and convincing evidence of either ground for termination relied upon by the trial court. Therefore, we reverse the termination of the mother’s parental rights.  

In the second appeal of this case, Plaintiffs seek reversal of orders awarding damages to Defendants for Plaintiffs’ prosecution of a frivolous appeal and denying motions for relief from orders which served as the basis of the first appeal. Finding no error, we affirm the judgments. We have also concluded that this appeal is frivolous and remand for the trial court to determine the amount of damages which Defendants are entitled to pursuant to Tenn. Code Ann. § 27-1-122.

Capital defendant brought a declaratory judgment action seeking to enjoin his execution, asserting that he meets the statutory criteria of being intellectually disabled and, therefore, is ineligible to be sentenced to death. Defendants, the warden of the institution where he is incarcerated and the Tennessee Attorney General, moved to dismiss the complaint on the grounds that the trial court lacked subject matter jurisdiction, that the suit was barred by the doctrine of sovereign immunity, and that the suit failed to state a claim for relief. The trial court granted the motion and dismissed the case. Finding no error, we affirm the holding of the trial court.

This appeal arises from post-divorce efforts to modify custody and child support established in a Montana divorce. After the divorce, the mother and the child moved to Tennessee. Although the father was living in Montana, he filed a petition to modify parenting time and child support and for other relief in Tennessee. The trial court found a material change in circumstance sufficient to modify the residential parenting schedule and that modification would be in the child’s best interest. The trial court also found a significant variance between the Montana child support amount and the amount presumed under the Tennessee Child Support Guidelines and modified the child support order. After reviewing the record, we conclude that the trial court lacked subject matter jurisdiction to modify the Montana custody determination but did have authority to enter a temporary order enforcing visitation. We also find that, although the court had jurisdiction to modify the Montana child support order, the court incorrectly calculated the mother’s gross income and failed to credit the father for his payment of the child’s health insurance premium. Therefore, we vacate and remand with instructions to dismiss the Father’s petition to the extent it seeks modification of the parenting time. To the extent Father seeks to enforce visitation with his child, we affirm the specific visitation schedule ordered by the trial court and remand for the court to set a time for expiration of the temporary visitation schedule. To the extent the petition seeks to modify child support, we vacate and remand for a calculation of child support in accordance with the Tennessee Child Support Guidelines and this opinion.

This appeal involves the termination of a mother’s parental rights to her minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to support termination on the statutory grounds of substantial noncompliance with a permanency plan, persistent conditions, and severe child abuse. The court further found by clear and convincing evidence that termination was in the child’s best interest. The mother appeals. Having reviewed the record, we hold that only the ground of substantial noncompliance with a permanency plan is supported by clear and convincing evidence. Additionally, we hold that clear and convincing evidence supports the trial court’s finding that termination is in the child’s best interest. Because the record contains clear and convincing evidence to support one statutory ground for termination and that termination is in the child’s best interest, we affirm the trial court’s termination of the mother’s parental rights.

Capital defendant brought a declaratory judgment action seeking to enjoin his execution, asserting that he meets the statutory criteria of being intellectually disabled and, therefore, is ineligible to be sentenced to death. Defendants, the warden of the institution where he is incarcerated and the Tennessee Attorney General, moved to dismiss the complaint on the grounds that the trial court lacked subject matter jurisdiction, that the suit was barred by the doctrine of sovereign immunity, and that the suit failed to state a claim for relief. The trial court granted the motion and dismissed the case. Finding no error, we affirm the holding of the trial court.

The plaintiff purchaser of pharmaceuticals brought suit against the defendant manufacturer of the pharmaceutical for failure to provide discounted pricing based on the parties‘ contract. The defendant filed a motion for partial summary judgment based on the issue of contract interpretation. The trial court granted the defendant‘s motion. The plaintiff requested permission for this interlocutory appeal challenging the trial court‘s interpretation of the parties‘ contract. Discerning no error, we affirm.

This appeal involves the termination of a father’s parental rights to his two children. In 2011, the children were adjudicated dependent and neglected, and the children were placed in the custody of their great-grandmother, and later, in the custody of a family friend. After the children had lived with the family friend for three continuous years, the caregiver filed a petition to terminate the father’s parental rights. The trial court terminated the father’s rights on the grounds of abandonment, Tenn. Code Ann. § 36-1-113(g)(1), as defined by both Tenn. Code Ann. § 36-1-102(1)(A)(i) and Tenn. Code Ann. § 36-1-102(1)(A)(iv), for failure to visit and support and for engaging in conduct that exhibits a wanton disregard for the welfare of the children. The court further found termination was in the children’s best interests. We have concluded that the trial court erred by relying on Tenn. Code Ann. § 36-1-102(1)(A)(iv), abandonment by wanton disregard, as a ground to terminate the father’s rights. We also hold that the court erred in terminating the father’s rights on the basis of his failure to support the children. However, the trial court correctly determined that the father abandoned the children by willfully failing to visit. Thus, we affirm the trial court’s judgment in part and reverse in part.

Capital defendant brought a declaratory judgment action seeking to enjoin his execution, asserting that he meets the statutory criteria of being intellectually disabled and, therefore, is ineligible to be sentenced to death. Defendants, the warden of the institution where he is incarcerated and the Tennessee Attorney General, moved to dismiss the complaint on the grounds that the trial court lacked subject matter jurisdiction, that the suit was barred by the doctrine of sovereign immunity, and that the suit failed to state a claim for relief. The trial court granted the motion and dismissed the case. Finding no error, we affirm the holding of the trial court.

Parties in divorce proceeding entered into an agreement on the day of trial, memorialized in writing, disposing of the marital assets and debts, adopting a parenting plan, and agreeing “as a division of marital assets” that Wife would “receive the sum of $2,100.00 per month directly from Husband’s military pension.” Husband filed motions both before and after the final decree was entered, seeking to modify the agreement by removing the provision that required him to pay $2,100.00 to Wife on the ground that the $2,100.00 payment exceeded fifty percent of his military retirement and included a monthly payment for service-related disability pay. The trial court denied Husband’s motions and he appeals. Finding no error, we affirm the holding of the trial court.

Plaintiff, whose rights of citizenship had been restored, brought action against the state coordinator of elections and election commission for declaratory, injunctive, and other relief, asserting that the Defendants had improperly refused to restore his right to vote. On motion of Defendants, the trial court dismissed the complaint with prejudice for lack of subject matter jurisdiction and failure to state a claim for relief; the court also denied plaintiff’s application to amend his complaint to assert a claim for mandamus. Finding no error, we affirm the dismissal of the complaint and denial of the application to amend; we modify the judgment to make the dismissal without prejudice.  

This appeal arises from a change in the primary residential parent for two minor children. Mother and Father divorced in Oklahoma. After Mother and the children moved to Tennessee, Father petitioned to modify the joint custody plan adopted in the Oklahoma divorce proceeding. Father alleged a material change in circumstance based upon Mother’s violations of the joint custody plan and Mother’s interference with Father’s relationship with the children. Following a hearing, the trial court found a material change in circumstance and that naming Father the primary residential parent was in the best interest of the children. While not contesting that a material change in circumstance occurred, on appeal, Mother asserts that a change in primary residential parent was not in the children’s best interest. After reviewing the record, we do not find the evidence preponderates against the trial court’s best interest findings. We affirm the judgment of the trial court.

In this child support arrearage case Jennifer L. Waldo (“Respondent”) appeals the June 24, 2015 order of the Juvenile Court for Roane County (“the Trial Court”) finding Respondent in civil contempt and sentencing Respondent to incarceration in the Roane County Jail with the incarceration held in abeyance so long as Respondent pays at least $50.00 per month toward child support. We find and hold that no evidence was introduced showing that Respondent had the present ability to pay $50.00, or any amount, and, therefore, the order finding Respondent in contempt and sentencing her to incarceration held in abeyance was in error. We reverse the Trial Court’s June 24, 2015 order, and we dismiss this case.