APPELLATE COURT OPINIONS

This appeal is from an order of the trial court denying the appellant’s motion to waive all fines and costs related to the nolle prosequi of all charges in Hamblen County Criminal Court case number 03CR212. Because it is clear from the record that no court costs or fines were assessed against the appellant as a result of the nolle prosequi entered in the proceedings below, there appears to be no judgment of the trial court adverse to the appellant’s interests and, therefore, we lack jurisdiction to entertain this appeal.

The issues in this divorce case are whether the trial court correctly ordered husband to pay wife $600 per month in transitional alimony for 36 months, child support in the amount of $253 per month, and $4,000 of the wife's attorneys fees, the latter as alimony in solido. At the time of trial, husband had been unemployed and actively seeking work for about one year. The trial court found that his income was zero. Wife did not argue that husband was voluntarily unemployed or underemployed, and the trial court made no such findings. The proof at trial establishes that many of the statutory factors supporting an award of alimony in futuro - including the need of the wife, duration of the marriage, i.e., 20 years, the parties' relative earning capacities, wife's contributions to the marriage as homemaker and parent, and wife's health - were demonstrated. Husband's current ability to pay, however, is quite limited because of his involuntary unemployment and zero income. Consequently, we modify the transitional alimony award to $50 per month, but designate it as alimony in futuro. The difference in husband's income, i.e., $1,191.66 per month, at the time his child support obligation was set and his income, i.e., zero, at time of trial likely supports a finding that there is a significant variance between the current support order of $253 and the amount of the proposed presumptive modified support order. Accordingly, we vacate the trial court's order refusing to modify his child support obligation and remand for a recalculation of child support. We affirm the judgment of the trial court in all other respects.

A professor denied tenure at Vanderbilt University brought suit against the university asserting causes of action for breach of contract and negligent misrepresentation. We affirm the trial court’s grant of summary judgment in favor of the university.

This is a collateral attack on an order entered by a general sessions court. The plaintiff tenant leased residential property from the defendant landowner. The tenant fell behind in his rent, so the landowner filed a forcible entry and detainer action in general sessions court against the tenant and obtained a judgment for the past-due rent. The tenant did not appeal that judgment. Months later, the tenant filed the instant lawsuit in chancery court to set aside the general sessions court judgment. The tenant alleged in the chancery court complaint that the general sessions court did not have subject matter jurisdiction to adjudicate the FED action because the landowner did not give the tenant a statutorily-required notice of termination of the lease. The chancery court below agreed with the tenant and set aside the general sessions judgment as void for lack of subject matter jurisdiction. The landowner now appeals. We reverse the decision of the chancery court and remand with directions to dismiss the tenant’s lawsuit in its entirety.

The trial court terminated the parties’ parental rights based on a finding of severe child abuse and abandonment and determined that the termination of parental rights was in the best interest of the children. We find clear and convincing evidence to support the trial court’s determination that the parties engaged in severe child abuse and that termination of their parental rights is in the children’s best interest. We affirm the trial court.

This is a medical malpractice case. The plaintiff filed a claim with the Division of Claims Administration, as the resident physician alleged to have engaged in negligence was purportedly connected to a University of Tennessee training program at Erlanger Hospital in Chattanooga, Tennessee. The State moved the Commissioner to dismiss the plaintiff’s action for failure to comply with the requirements set out in Tennessee Code Annotated section 29-26-121(a). The Commissioner reluctantly agreed with the State’s position. We hold that the plaintiff complied with section 121(a)’s notice requirement by complying with the claim notice requirements of Tennessee Code Annotated section 9-8-402. We further hold that section 121 does not mandate dismissal with prejudice for noncompliance with its terms, and that the plaintiff’s failure to provide all the items denoted in section 121(a) does not warrant dismissal with prejudice under the facts of this case. We vacate the dismissal order and remand for further proceedings.

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

This appeal involves the tolling of the statute of limitations for a breach of contract. The plaintiff architect rendered services to the defendant real estate developer, and the developer failed to pay for the architect’s services. Approximately four years later, the architect recorded a lien against the real property to secure the indebtedness. The developer then promised the architect he would pay the indebtedness if the architect released the lien. The architect released the lien but still was not paid. Approximately four years after that, the architect filed this lawsuit against the developer to collect the debt. The developer asserted that the architect’s claim was barred by the six-year statute of limitations. After a trial, the trial court held that the statute of limitations was tolled under the doctrine of equitable estoppel, so the architect’s lawsuit was timely filed. The trial court entered a judgment in favor of the architect. The developer appeals only on the issue of whether the claim was time-barred. Discerning no error, we affirm.

During the pendency of this divorce action, the trial court found Husband in criminal contempt for failing to pay pendente lite support on five occasions and sentenced Husband to ten days per count for a total sentence of fifty days. Husband was not booked or jailed for contempt but he was detained for two hours during the court’s lunch recess. During the recess, Husband’s trial counsel filed a notice of appeal. Husband was returned to the courtroom thereafter, and he and his counsel participated in the divorce hearing, which commenced after lunch. Following the conclusion of a short divorce hearing, the court took notice of the appeal from the contempt action and granted a stay of the sentence pending this appeal; Husband was then released. This appeal followed. We have concluded that the evidence upon which the five counts of criminal contempt were based was inadmissible and there is no other evidence to support a finding beyond a reasonable doubt that Husband had the ability to pay the support when it was due. Therefore, we reverse the finding of five counts of criminal contempt.

This appeal concerns the denial of a motion to compel arbitration. The sister of the decedent signed several admissions documents on the decedent’s behalf for purposes of admitting her to the defendant health care facility. At that time, the sister also signed an optional arbitration agreement. Several days later, the decedent passed away, and subsequently, the decedent’s beneficiaries brought a wrongful death action against the healthcare facility on her behalf. The healthcare facility moved to compel arbitration, arguing that the sister had authority to bind the decedent to the terms of the arbitration agreement based on several agency theories, as no power of attorney existed. After reviewing the depositions submitted in lieu of live testimony, the trial court determined the arbitration agreement was not enforceable because the sister lacked the legal authority to bind the decedent. Based on a careful review of the evidence, we affirm.

This is the second appeal in this post-divorce matter. Wife, Maryam Ghorashi-Bajestani (“Wife”), was granted a divorce from husband, Masoud Bajestani (“Husband”), on April 16, 2009. Following the first appeal to this Court, the case was remanded to the trial court. Various petitions and motions were filed by the parties, seeking modification of the trial court’s valuation of marital property, modification of child support, a lien on husband’s assets to secure his child support and alimony obligations, a finding of contempt, and an award of attorney’s fees. The trial court, inter alia, modified Husband’s child support obligation due to his reduced income, found Husband in contempt for his late payments of child support and alimony, and awarded Wife attorney’s fees. Both parties appeal the trial court’s order. We affirm in part, reverse in part, and remand for further proceedings.

Wife signed a marital dissolution agreement that was incorporated into a final divorce decree. After the final decree was entered, wife sought relief from the decree based on assertions that she was entitled to a greater portion of a settlement received by her husband prior to the divorce and that, contrary to the parties’ agreement, there was equity in the marital home. The trial court denied wife’s motion to alter or amend, and we find no abuse of discretion in the trial court’s decision.

Kay F. Fritz (“Plaintiff”) sued CVS Corporation d/b/a CVS Pharmacy, Inc. (“Defendant”) alleging that Defendant had improperly filled a prescription for Plaintiff causing Plaintiff damages. Defendant filed a motion for involuntary dismissal or in the alternative for summary judgment. After a hearing, the Trial Court granted Defendant summary judgment after finding that Plaintiff was unable to prove an essential element of her claim, i.e., causation. Plaintiff appeals to this Court. We affirm.

In this malicious prosecution action, the jury awarded the plaintiff compensatory damages and punitive damages. The trial court affirmed the punitive damages award; the court suggested a remittitur of the compensatory damages award, which the plaintiff accepted under protest. The defendant appeals the finding of liability, the award of damages, the admission of evidence, and the procedure followed by the court in affirming the punitive damages award; the plaintiff appeals the remittitur of the compensatory damages award. Finding that the court erred when it failed to follow the appropriate procedures in affirming the punitive damages award, we vacate the award and remand the case for further proceedings; in all other respects the judgment of the trial court is affirmed.

The State of Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Knox County (“the Juvenile Court”) seeking to terminate the parental rights of Jasmine W. (“Mother”) to the minor child Sahara W. (“the Child”). A new permanency plan was approved following the filing of the petition. After a trial, the Juvenile Court entered an order finding and holding, inter alia, that clear and convincing evidence had been proven that grounds existed to terminate Mother’s parental rights under Tenn. Code Ann. § 36-1-113 (g)(2) and (g)(3), and that termination of Mother’s parental rights was in the Child’s best interest. Mother appeals the termination of her parental rights, arguing that she was not properly notified of being at risk of losing her parental rights because the new permanency plan was approved after the filing of the petition. We hold that Mother sufficiently was put on notice that her parental rights were subject to being terminated at trial. We affirm the judgment of the Juvenile Court in its entirety.

Commissioner of Revenue assessed Company a sales and use tax for its sale of a wide area network (“WAN”) service during the period 1998 through 2003 on the basis that the service was a “telecommunication service” as that term is defined in Tenn. Code Ann. § 67-6102(a)(32) (2003). Company denied its WAN constituted a taxable telecommunication service because users were limited to accessing information on geographically remote computers; the WAN did not allow its users to communicate with one another. Following motions for summary judgment, the trial court concluded the WAN service was a taxable telecommunication service. Company appealed, and we reverse the trial court’s judgment. The primary purpose of the WAN was to enable a company’s authorized users to access information related to the company’s business,not to provide communication between users. The fact that Company itself did not provide information does not alter the result.

This is a termination of parental rights case in which Mother and Stepfather filed a petition to terminate the parental rights of Father to the Child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of Father’s parental rights on the statutory ground of abandonment and that termination of his rights was in the Child’s best interest. Father appeals. We affirm the decision of the trial court.

This appeal arises from an action filed by Plaintiff to set aside a quitclaim deed executed by Decedent conveying Decedent’s home to her grandsons. Following a bench trial, the Chancery Court of Fayette County concluded that Decedent was incompetent to execute the deed and that the grandsons exercised undue influence over Decedent to obtain the deed. In a subsequent order, the trial court concluded that the grandsons intentionally defrauded Decedent to obtain Decedent’s signature on the deed and ordered them to pay Plaintiff’s attorney’s fees. On appeal, the grandsons argue that the trial court erred in concluding that Decedent was incompetent to execute the deed and in concluding that the grandsons exercised undue influence over her to obtain the deed. Additionally, the grandsons contend that the trial court erred in concluding that they intentionally defrauded Decedent in order to obtain Decedent’s signature on the deed and in ordering them to pay Plaintiff’s attorney’s fees. Additionally, Plaintiff contends that the grandson’s appeal constitutes a frivolous appeal under Tenn. Code Ann. section 27-1-122. After thoroughly reviewing the record, we affirm the judgment of the trial court.

After fifteen years of marriage, Charlotte Ann Goad Human (“Wife”) sued Jeffrey Allen Human (“Husband”) for divorce. After a trial, the Trial Court entered its Final Decree of Divorce which, inter alia, declared the parties divorced, divided the marital assets and debts, and entered a Permanent Parenting Plan designating Husband as the primary residential parent for the parties’ two minor children. Wife appeals to this Court alleging that the Trial Court erred in entering a Parenting Plan designating Husband as the primary residential parent when Husband did not request this designation. We find that the evidence does not preponderate against the Trial Court’s findings relative to the Permanent Parenting Plan, and we affirm.

This appeal concerns a dispute over the modification of a permanent parenting plan. Leslie Kay Johnson (“Mother”) and Darren Tracy Johnson (“Father”) were divorced in the Chancery Court for Monroe County (“the Trial Court”). A permanent parenting plan was entered regarding the parties’ minor child (“the Child”). Mother was designated as the primary residential parent with the parties to have equal parenting time with the Child. Mother later filed an emergency petition for custody and contempt, alleging that the Child had severe anxiety about going to see Father. Father filed a motion to dismiss, arguing that because Mother failed to file a proposed parenting plan contemporaneously with her petition as required by statute, Mother’s petition should be dismissed. Both Mother and Father ultimately filed proposed parenting plans with Father’s being submitted with his own Petition for Change in Co-Parenting Time. The Trial Court denied Father’s motion to dismiss. After a hearing on the competing petitions, the Trial Court modified the parenting plan to grant Mother more time with the Child. Father appeals. We hold that the Trial Court had jurisdiction to decide Mother’s petition and that the Trial Court did not err in modifying the existing parenting plan. We affirm the Trial Court.

After her daughter was attacked by a tenant’s dog, the mother plaintiff sued the tenant and the property owners. The trial court granted summary judgment in favor of the property owners based upon a lack of knowledge/notice of the dog’s vicious propensities. For the following reasons, we reverse the grant of summary judgment and we remand for further proceedings.

Company providing dial-up and broadband Internet services to Internet Service Providers that in turn provided these services to end-users sought refund of sales taxes it had paid to the State from January 2001 through March 2004 on the ground that its services did not constitute “telecommunications” or “telecommunication services” as those terms are defined in Tenn. Code Ann. § 67-6-102(a)(32). Both the Company and the State filed motions for summary judgment and the trial court granted the Company’s motion. The trial court found the Company provided Internet access services, the services were “enhanced” rather than “basic” services, and the true object of the services was not telecommunications. We affirm the trial court’s judgment.

This is a breach of contract case in which Company sought to hold Defendant personally liable for the amount remaining on a contract. During Company’s proof-in-chief, Defendant used parol evidence attempting to show that while he signed the contract, the parties understood that he was signing as a representative of his business. Following Company’s presentation of its proof, Defendant moved for involuntary dismissal pursuant to Rule 41 of the Tennessee Rules of Civil Procedure. The trial court granted Defendant’s motion, finding that Company failed to establish that Defendant was personally liable. Company appeals. We affirm the decision of the trial court.

Plaintiffs/appellants, who are owners of real property in a residential community that was developed for horse riding enthusiasts, filed this action to enforce restrictive covenants that prohibit the use of motorized vehicles on trails in the residential community. At the hearing on the defendants’ motions to dismiss, all of the parties agreed to the entry of an order prohibiting the use of any motorized vehicles on horse trails within four specified sections that contained the restrictive covenants; at the same hearing, the parties also agreed with the trial court’s statement that all other claims would be dismissed. A Final Order was entered that was consistent with the parties’ agreement. Although the plaintiffs consented in open court to the order that was entered and they did not file a motion to alter or amend that order, plaintiffs now appeal from that order. On appeal, they contend they were deprived of the opportunity to put on evidence at the hearing on the motions to dismiss; they also contend the court erred in dismissing all other claims. Finding the plaintiffs expressly consented in open court to the entry of the order appealed from, that the plaintiffs made no request to introduce evidence, and that they agreed to the dismissal of all other claims, we have determined that the plaintiffs waived all issues raised in this appeal. Therefore, we affirm the trial court. Defendants contend this was a frivolous appeal and have requested damages. Exercising our discretion, we respectfully deny the defendants request for damages.

The majority opinion in this case is detailed and thorough. However, because I disagree with the basic premise upon which the majority opinion rests, I must dissent. The majority opinion concludes that the trial court had subject matter jurisdiction to consider and award Shawn Coulson its requested fee on the basis of the contractual attorney lien included in Ms. Coleman’s contract with Shawn Coulson. I respectfully disagree, and instead, conclude that the trial court lacked subject matter jurisdiction to award Shawn Coulson its requested fee in this matter.