APPELLATE COURT OPINIONS

This is an appeal from an order entered in a post-divorce modification proceeding. Because the order appealed from does not resolve all the claims, rights, and liabilities of the parties, we lack jurisdiction to consider this appeal.

The plaintiff tenant in this action rented an apartment from the defendant landlord. Attached to the apartment were a wooden deck and staircase leading to the ground below. The tenant filed suit against the landlord for injuries the tenant sustained when a board on the stairs collapsed, causing the tenant to fall. The trial court granted summary judgment in favor of the landlord because the tenant could not show that the landlord had knowledge of any dangerous condition on the leased premises. The tenant has appealed. Discerning no error, we affirm.

Plaintiff filed suit against defendant in general sessions court. After the general sessions court entered judgment in favor of defendant, plaintiff appealed to the circuit court. The circuit court conducted a trial de novo, but the defendant failed to appear and defend. The circuit court entered a default judgment in favor of plaintiff after she presented her proof. Defendant filed a motion to set aside the default judgment alleging that he never received notice of the trial date in circuit court. The circuit court denied defendant's motion to set aside the default judgment. We reverse the circuit court's ruling and remand for further proceedings.

Bank sued borrowers on a lost or destroyed promissory note. Borrowers, among other defenses, denied that the note was in default and the amount due. Borrowers also claimed that bank had destroyed the note with the intention of discharging the obligation. On cross-motions for summary judgment, the trial court entered judgment in favor of bank. Borrowers appeal, claiming the affidavits filed in support of the bank’s motion for summary judgment were deficient, the existence of disputed material facts, the indebtedness had been discharged, and that further discovery should have been permitted by the trial court. We vacate and remand.  

This case arises from a writ of mandamus issued by the Circuit Court for Henderson County. The writ of mandamus directed Appellant/Judge Robert Stevie Beal, of the Juvenile Court for Henderson County, to hold a hearing on Appellee’s motion for a show cause order in the underlying child custody case. Appellant appeals, arguing that the Circuit Court did not have authority to issue a writ of mandamus to the Juvenile Court because the Circuit Court and Juvenile Court have concurrent jurisdiction over custody matters. Before oral argument in the instant appeal, this Court entered judgment in Appellee’s separate, accelerated, interlocutory appeal under Tennessee Supreme Court Rule 10B. In re Adison P., No. W2015-00393-COA-T10B-CV, 2015 WL 1869456 (Tenn. Ct. App. April 21, 2015) (“Adison I”). In Adison I, this Court reversed Judge Beal’s order denying Appellee’s motion for recusal. Although not part of our appellate record in this appeal, we take judicial notice of our judgment in Adison I. Having removed Judge Beal from the underlying case, we conclude that the writ of mandamus, which is issued directly to “Judge Beal,” is rendered null by his removal from the case. Because no present ongoing controversy remains in this case, this appeal is dismissed as moot.

This appeal involves a child support order entered after an international adoption. The trial court found that the child's adoptive mother failed to pay child support as previously ordered by the court, and therefore, the mother was adjudged in contempt. On appeal, the mother argues that the trial court lacked subject matter jurisdiction to enter the previous order requiring her to pay child support and also lacked jurisdiction to hold her in contempt of that order. Alternatively, she argues that she did not willfully violate the court's order. Finally, the mother argues that a separate injunction entered by the trial court is also void for lack of subject matter jurisdiction and/or procedural irregularities. We affirm.

In this divorce action, Wife appeals the trial court’s finding that Husband did not dissipate marital funds, the award of alimony, and the division of marital property. Finding that the award of support and division of property is supported by the evidence and consistent with the applicable law, we affirm the judgment.

Petitioners Father and Stepmother filed a petition to terminate Mother’s parental rights on the ground of abandonment for failure to visit and failure to support. The trial court denied the petition upon determining that Petitioners failed to demonstrate willful abandonment by clear and convincing evidence. We affirm.

This is a will contest case.  The Decedent executed a will in 2006 and a codicil to the will in 2012.  The will specifically disinherited the Appellant, and the codicil removed one of the Decedent’s children as co-executor of the estate.  Appellant contested the will, arguing both that the Decedent lacked the testamentary capacity to execute either the will or the codicil and that the will was executed under undue influence.  The trial court found that the Decedent possessed the testamentary capacity necessary to execute both the will and the codicil and that the Decedent did not execute the will or codicil under undue influence.  On appeal, Appellant only challenges the trial court’s findings regarding the Decedent’s testamentary capacity.  Because the evidence does not preponderate against the trial court’s findings, we affirm.

The trial court terminated the parental rights of both mother and father on the ground of severe abuse. Because there is sufficient evidence to conclude that mother and father were engaged in methamphetamine manufacture in their home, we affirm the finding of severe abuse. However, because no clear and convincing evidence exists in the record that termination is in the child's best interest, we reverse the termination of both mother's and father's parental rights.

The parties were married for less than two years, and they had one child together who was three years old at the time of the divorce. Shortly after the child’s birth, Mother moved with the child to New York to be near her family. The trial court named Mother the primary residential parent, ordered Father to pay $697 a month in child support, awarded Father one weekend a month of visitation, and ordered Mother responsible for the transportation costs of the child to visit Father, including the cost of an additional ticket for a parent or guardian to fly with the three-year-old child. In dividing the parties’ property, the trial court found that a 2006 Range Rover, purchased by Father’s business before the marriage, was not marital property. Mother appeals the trial court’s ruling that she pay all transportation costs to facilitate Father’s parenting time, and the classification of the Range Rover. We have determined that the annual cost to Mother to transport the child to Tennessee to facilitate Father’s parenting time will likely exceed the annual award of child support until the child reaches the required age to fly alone, creating an injustice to Mother; moreover, Father only requested that Mother be responsible for half of the cost of transportation, not all costs. Concluding that the trial court abused its discretion, we modify the trial court’s judgment to require both parties to equally share the costs of transportation concerning Father’s parenting time. We affirm the trial court in all other respects. 

This is Plaintiff’s second appeal of the dismissal of his legal malpractice claim. The first appeal arose from the grant of a motion to dismiss under Tenn. R. Civ. P. 12.02(6) wherein the trial court concluded that Plaintiff’s cause of action accrued more than one year before the complaint was filed and was time barred. Based solely on a review of the allegations in the complaint, we concluded that the action was not time barred. See Davidson v. Baydoun, No. M2008-02746-COA-R3-CV, 2009 WL 2365563 (Tenn. Ct. App. July 31, 2009). On remand, the parties engaged in discovery, which revealed that Plaintiff knew he had been injured by Defendants’ alleged negligence more than one year before the commencement of this action. Defendants then filed a Tenn. R. Civ. P. 56.02 motion for summary judgment, which was properly supported by a statement of undisputed facts, contending they were entitled to judgment as a matter of law because Plaintiff’s claim was barred by the statute of limitations. The trial court summarily dismissed the complaint finding it was undisputed that Plaintiff knew he had suffered an injury because of Defendants’ alleged negligence more than one year before the commencement of this action. The trial court also granted Defendants’ motion for discretionary costs. On appeal, Plaintiff argues that the trial court erred by granting Defendants’ motion for summary judgment and by awarding Defendants discretionary costs. We affirm.

Appellant tripped and fell on a concrete landing in a parking lot. At the time, Appellant was attempting to return to his vehicle, which was located in the parking lot of a separate retail establishment. Appellant suffered injuries from his fall and sued the parking lot owner for negligence. The parking lot owner moved for summary judgment. The trial court granted summary judgment in the owner’s favor, finding that the owner did not owe a duty to Appellant. We affirm.   

This is a malicious prosecution case. In the underlying case, plaintiff was sued by defendants for abuse of process. That case was resolved on summary judgment in favor of plaintiff. Thereafter, plaintiff filed this case for malicious prosecution. The trial court granted summary judgment in favor of the defendants. Plaintiff appealed. We affirm.  

This is an appeal from the denial of a motion to compel arbitration in a healthcare liability case. The Decedent executed a power of attorney in favor of her daughter, the Appellee, granting Appellee broad powers, but exempting healthcare decisions. The Decedent was subsequently admitted to the Appellant nursing facility. The Appellee signed the Decedent's admission contract and a separate, voluntary arbitration agreement. After the Appellee filed this action against the nursing facility and its managing companies, the Appellants filed motions to compel arbitration pursuant to the arbitration agreement signed at the time of the Decedent's admission. The trial court denied the motions. We affirm.

This is the second appeal from an action filed by Plaintiff against the Tennessee National Guard in which he contends Defendant violated the Uniformed Service Employment and Reemployment Rights Act of 1994 (“USERRA”) by refusing to rehire Plaintiff after he returned from active duty military service. In the first appeal, we affirmed the grant of Defendant’s Tenn. R. Civ. P. 12.02(6) motion to dismiss for lack of subject matter jurisdiction based upon sovereign immunity from USERRA claims, noting that only the Tennessee General Assembly could waive the state’s sovereign immunity. See Smith v. Tennessee Nat. Guard, 387 S.W.3d 570 (Tenn. Ct. App. 2012). Shortly after we issued that opinion, the Tennessee General Assembly enacted Tenn. Code Ann. § 29-20-208, which waives sovereign immunity for USERRA claims that accrue on or after July 1, 2014. Relying on the new statute, Plaintiff filed a Rule 60 motion seeking to have his original lawsuit reinstated. The trial court denied the motion, finding that Plaintiff’s claim was still barred by sovereign immunity because it accrued before July 1, 2014. We affirm.

In this termination of parental rights case, Mother appeals the trial court’s findings of abandonment by willful failure to support and the persistence of conditions as grounds for termination. Mother also appeals the trial court’s conclusion that termination was in the child’s best interest. Pre-adoptive parents appeal the trial court’s decision declining to find the ground of willful failure to visit. We affirm the trial court’s findings of willful failure to support and persistent conditions. Further, albeit for different reasons, we affirm the trial court’s decision declining to terminate Mother’s parental rights on the ground of willful failure to visit. We also affirm the trial court’s finding that termination is in the child’s best interest, and therefore, affirm the termination of the Mother’s parental rights.

A corporate officer responsible for paying over the sales taxes collected by a corporation pled guilty to attempted tax evasion under Tennessee Code Annotated § 67-1-1440. As part of his plea agreement, the criminal court ordered the corporate officer to pay restitution in the amount of $17,500. After completing probation, the Department of Revenue notified the corporate officer of an individual sales tax assessment of $137,493.76 arising from the corporation’s operations. The corporate officer filed a complaint in the Davidson County Chancery Court challenging the assessment. The corporate officer argued that the amount of the criminal restitution, which he had already paid, was the full amount of his individual liability to the Department. The Department filed a motion to dismiss, which the trial court granted. Concluding that criminal restitution and civil tax liability are separate and distinct, we affirm the dismissal.

This case concerns the applicability of Tennessee Code Annotated Section 20-12-119(c). When the trial court grants a motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12 for failure to state a claim upon which relief may be granted, Section 20-12-119(c) requires the trial court to award the dismissed party his or her reasonable attorney’s fees. In this case, Appellant was dismissed from the lawsuit, but the trial court denied an award of attorney’s fees. Because the trial court’s orders do not specify on what grounds it dismissed Appellant, we cannot determine whether Section 20-12-119(c) was triggered in this case. Accordingly, we vacate and remand for entry of an order specifying the grounds for dismissal. 

Homeowners sued the builder and others for defects in their home. The builder sought to compel arbitration pursuant to the arbitration clause in the purchase agreement. The trial court granted the motion to compel arbitration except as to the fraudulent inducement claim. The builder appealed. We affirm.

In this premises liability action, Appellant Phyllis Smith (“Ms. Smith”) appeals the trial court’s finding that Shelby County (“the County”) is immune from suit under the Tennessee Governmental Tort Liability Act. Because we conclude that the order appealed from is not a final judgment, we dismiss the appeal.

This case arises from the termination of parental rights of the father of two children, Ariana S., born April 2002, and Luis S., born February 2003. Father left his children and moved to Puerto Rico in 2007; he has been incarcerated since 2012. Father’s parental rights were terminated on the grounds of abandonment by willful failure to visit or support and persistence of conditions; he appeals. We reverse the termination on the grounds of abandonment by willful failure to support and persistence of conditions and affirm the termination of Father’s rights on the ground of abandonment by willful failure to visit. 

This appeal involves the trial court's denial of a recusal motion. We affirm the trial court's decision to deny the motion to recuse, but vacate the order entered by the trial court while the recusal motion was pending.

A man was injured in an accident, and his relatives initiated conservatorship proceedings in the probate court of Rutherford County.  The conservators were dissatisfied with the probate court’s handling of the case and moved to have the case removed to the chancery court.  The probate court granted the motion to remove, but the chancery court determined the removal was improper and sent the case back to the probate court.  The conservators appealed the chancery court’s decision to review the probate court’s order granting the removal.  On appeal, we note that the probate court and the chancery court in Rutherford County have concurrent jurisdiction over conservatorship proceedings.  Neither court is inferior to the other, and an appeal from either court is to the Court of Appeals.  The chancery court lacked subject matter jurisdiction to determine any issues in the conservatorship once the case was filed in the probate court.  We vacate the judgment by the chancery court and remand the case to the probate court for further proceedings.

This case involves a petition for grandparent visitation filed by the paternal grandparents of the child at issue. The trial court granted the petition for visitation pursuant to Tennessee Code Annotated section 36-6-306. Because the trial court did not make appropriate written findings in accordance with Tennessee Rule of Civil Procedure 52.01, we do not reach the merits of this appeal. We vacate and remand for appropriate findings of fact and conclusions of law.