APPELLATE COURT OPINIONS

Civil service employee appeals the trial court’s judgment affirming the Civil Service Commission’s decision to terminate the employee for the good of the service pursuant to Tenn. Code Ann. § 8-30-326. Finding no error, we affirm the judgment.

This case involves the application of the medical malpractice statute of limitations. The trial court granted summary judgment to the defendant doctor, finding that the statute of limitations defense was not waived by her failure to raise it in her first pre-answer motion, that the defense was sufficiently pleaded, and that the undisputed facts in the record supported a finding that the statute of limitations had expired at the time of filing the initial complaint. Affirmed and remanded.

Customer of a restaurant who was injured when she fell on a concrete ramp leading into the restaurant brought suit against the restaurant, alleging that the ramp constituted a dangerous condition and that the restaurant failed to exercise reasonable care to avoid injuries to customers. The trial court granted summary judgment to the defendant on the grounds that the ramp did not constitute a dangerous condition and that the owners did not have notice that the ramp constituted a dangerous condition. Finding no error, we affirm the judgment.

Ex-wife appeals from a trial court’s adoption of a report by the clerk and master that her ex-husband had fully satisfied a judgment for unpaid pension payments arising from the parties’ 1996 divorce and the determination that she is not entitled to recover attorney’s fees incurred in the underlying case and other proceedings. The clerk and master found that an October 2001 judgment for an unpaid arrearage in pension payments had been satisfied and the ex-wife did not timely file an objection. The trial court adopted the clerk and master’s report and entered judgment accordingly. The court also ruled that the ex-wife was not entitled to recover attorney’s fees in this or other proceedings including those specified in the 2003 bankruptcy court agreed order. Although the ex-wife waived any objection to the report of the clerk and master, and thus, the trial court’s adoption of that report is affirmed, we have determined that the reference to the clerk and master was limited to determining the ex-husband’s pension obligations under the October 2001 chancery court judgment. Whether the sums owed by the ex-husband for attorney’s fees and costs in the amount of $13,904.44 identified in the 2003 bankruptcy court agreed order were not specified as issues in the order of reference to the master. Because the ex-husband’s obligations to pay to the ex-wife the attorney’s fees and costs specified in the 2003 bankruptcy order were not identified in the order of reference, the ex-wife’s failure to timely file an objection does not constitute a waiver of that issue. We have also determined that whether the sums owing under the 2003 bankruptcy order are a legal obligation of the ex-husband is a question of law, not a question of fact, and the failure to timely object to the master’s report does not constitute a waiver of an issue of law. The 2003 bankruptcy order expressly states the ex-husband owes the sum of $13,904.44, plus interest, to the ex-wife for her attorney’s fees and costs, and he is collaterally estopped from denying the debt specified in the 2003 bankruptcy order. Therefore, we have concluded that the ex-wife is entitled to recover $13,904.44, plus interest. Accordingly, we remand for further proceedings consistent with this opinion.

Taxpayers appeal from the trial court’s grant of summary judgment in favor of the Commissioner and dismissal of the taxpayers’ claims for refund of sales taxes paid to the State of Tennessee. Holding that the service at issue was not excluded from the definition of taxable telecommunications as a private line service or as an enhanced service, we affirm the judgment of the trial court.

This appeal arises from a petition for judicial review of the decision of the Tennessee Department of Transportation to deny the petitioner’s application for four billboard construction permits on I-240 in Memphis, Shelby County, Tennessee. The dispositive issues concern the zoning classifications of the proposed billboard locations. The Department of Transportation denied the permits based upon the finding that none of the proposed billboard locations met the zoning requirements in Tennessee Code Annotated § 54-21-103(4) or Tenn. Comp. R. & Regs. 1680-2-3-.03(1)(a)1, or the definitions for “Zoned Commercial” or “Zoned Industrial” in Tenn. Comp. R. & Regs.1680-2-3-.02(29). The trial court affirmed the Department’s denial of the permits, finding subsection (d) of 23 C.F.R. § 750.708, which states, “A zone in which limited commercial or industrial activities are permitted as an incident to other primary land uses is not considered to be a commercial or industrial zone for outdoor advertising control purposes” was controlling. The trial court also found the area was comprehensively zoned for residential, agricultural and flood plain uses, not commercial or industrial, and that “TDOT acted within its statutory authority in denying the petitioner’s application for permits,” and thus the court dismissed the petition. We affirm the decision to deny the permits based upon federal and state law.

A police officer who was terminated for violating chain of command and insubordination filed suit for retaliatory discharge pursuant to Tenn. Code Ann. § 50-1-304, alleging that he had been terminated for reporting illegal activities of the Police Chief to the Mayor. Following a trial, the court held that the evidence did not establish that the officer had been terminated solely for his refusal to remain silent about the illegal activities. Finding that the reasons given for the officer’s termination were pretextual within the meaning of the applicable statute, we reverse the judgment of the trial court and remand for further proceedings.

William Ned McCoy and Carolyn McCoy (“Plaintiffs”) sued Richard Lee Bales and Shelia M. Bales (“Defendants”) alleging, in part, that Defendants had encroached upon real property owned by Plaintiffs, and seeking, in part, a determination with regard to a boundary line. The case was tried before a jury, and the Trial Court entered judgment upon the jury’s verdict finding and holding, inter alia, that the property is owned by the parties as set out in the Dennis Fultz survey dated February 29, 1996. Plaintiffs appeal to this Court raising an issue regarding whether the evidence supports the jury’s verdict. We hold that material evidence supports the jury’s verdict, and we affirm.

The final judgment from which the appellant seeks to appeal was entered on January 7, 2013. The only Notice of Appeal “filed” by the appellant on February 7, 2013, was submitted to the trial court clerk via facsimile transmission in violation of Rule 5A.02(4)(e) of the Rules of Civil Procedure. Because the Notice of Appeal was insufficient to invoke the jurisdiction of this Court, this appeal is dismissed.

The trial court dismissed Claimant’s claim against Decedent’s estate as void not with standing the failure of the Estate to file a timely exception to the claim. We reverse.

This appeal arises from a divorce and child custody determination. After 18 years of marriage, Terri Ann Kelly (“Wife”) sued Willard Reed Kelly (“Husband”) for divorce in the Circuit Court for Hamilton County (“the Trial Court”). The Trial Court, among other things, awarded Wife alimony and custody of the parties’ son, Will. Husband appeals, raising several issues. We reverse the Trial Court in its award of custody of Will to Wife. We modify the Trial Court’s division of the marital estate and its award of alimony to Wife. Finally, we affirm the Trial Court as to its award of attorney’s fees to Wife. We affirm, in part, as modified, and reverse, in part, the judgment of the Trial Court.

I agree with the majority that the evidence in this case preponderates against the trial court’s division of the net marital estate. I also concur in the majority’s further conclusion that the evidence preponderates against the type and amount of alimony awarded to Ms. Kelly. In my judgment, the evidence preponderates in favor of the majority’s division of the net estate and its award of transitional alimony in the amounts stated in the opinion.

This is an appeal from the trial court’s grant of a directed verdict, dismissing Appellant’s claims of: (1) slander/defamation; (2) false light invasion of privacy; (3) false imprisonment; (4) malicious harassment; (5) negligent supervision, hiring, and retention; (6) negligent failure to affirm identification; (7) negligence; (8) assault and battery; and (9) civil conspiracy. Appellant also raises issues concerning the scope of cross-examination and the admission of certain evidence. We conclude that the trial court did not abuse its discretion concerning either the scope of the cross-examination, or by excluding certain evidence. We further conclude that Appellant failed to put forth sufficient evidence to make out a prima facie case for any of the foregoing claims. Accordingly, we affirm the trial court’s grant of a directed verdict. Affirmed and remanded.

Consulting group that served as the agent of record for a trust established to provide insurance to employees of a county school system filed a complaint alleging a violation of the Open Meetings Act when a group of trustees met for lunch with one of the consulting group’s employees and later changed the school system’s agent of record when the employee formed a different association with another company. The trial court found that no violation of the Open Meetings Act occurred at the lunch meeting because no decision was made during the lunch. We affirm the trial court’s judgment.

This appeal arises from the dismissal of a complaint alleging fraudulent paternity testing.  Discerning no error, we affirm and award attorney fees for a frivolous appeal.

The plaintiffs brought this action alleging wrongful foreclosure after a judgment against them became final in an earlier, separate unlawful detainer lawsuit filed by Federal National Mortgage Association (“FNMA”). The trial court dismissed the action as barred by the doctrine of res judicata. We affirm the judgment of the trial court because the plaintiffs could and should have raised the issues pertaining to the alleged wrongful foreclosure in the earlier detainer action.

Donald Chill and his wife, Martha Chill, brought this action against their homeowner’s insurance carrier, Tennessee Farmers Mutual Insurance Company (“Insurer”), alleging breach of contract by virtue of its refusal to pay for their loss caused by an earthquake. The insurance policy required suit to be brought within one year of the loss. The Chills filed their complaint almost seven years after the loss and over three and a half years after the Chills refused to accept Insurer’s offer to settle the claim for $88,086.49. The trial court granted Insurer’s motion for judgment on the pleadings on the ground that the lawsuit was not timely filed. Plaintiffs appeal. We affirm.

Mother and Father were divorced in 2007 and granted joint custody of their then-six year old child. Mother filed a petition for modification in which she asked to be named the primary residential parent because the joint arrangement was not working for the parties and was not in Child’s best interest. Trial court granted Mother’s petition to be named primary residential parent, but directed that major decisions for Child should be made jointly. Father appealed, arguing that trial court erred in finding material change of circumstances had occurred since the initial parenting plan was entered and that the comparative fitness analysis favored Mother as the primary residential parent. Mother appealed trial court’s judgment regarding major decision making. We affirm trial court’s judgment modifying the parenting plan to name Mother the primary residential parent and amend the plan to have Mother make major decisions for Child rather than both Mother and Father jointly. We affirm the trial court’s denial of Mother’s attorney fees but award her reasonable fees incurred on appeal.

The Circuit Court dismissed this appeal from General Sessions Court based on the Appellant’s failure to file a surety bond. Appellant paid costs in the General Sessions Court pursuant to Tennessee Code Annotated Section 8-21-401(b)(1)(C)(i), but did not submit a surety bond under Tennessee Code Annotated Section 27-5-103. The circuit court held that failure to post the surety bond under Section 27-5-103 resulted in a lack of subject matter jurisdiction in the circuit court. Based on this Court’s holding in Bernatsky v. Designer Baths & Kitchens, L.L.C., No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013), we reverse and remand for further proceedings.

Here we have yet another case from Shelby County involving the bond requirements for an appeal from general sessions court to circuit court. This Court squarely addressed this issue in University Partners Development v. Bliss, No. M2008-00020-COA-R3-CV, 2009 WL 112571 (Tenn. Ct. App. W.S. Jan. 14, 2009), a memorandum opinion, and we addressed it again in Jacob v. Partee, 389 S.W.3d 339 (Tenn. Ct. App. Aug. 10, 2012). Tennessee Code Annotated section 27-5-103 provides that “the person appealing shall give bond with good security, as hereinafter provided, for the costs of the appeal, or take the oath for poor persons.” In both Jacob and University Partners, we held that the statute is unambiguous, and that an appellant who seeks to appeal from general sessions court to circuit court cannot satisfy the bond requirements of the statute by merely remitting payment of an initial filing fee. Payment of the initial filing fee, we explained, simply does not constitute giving “bond with good security” for “the cost of the cause on appeal.” See Tenn. Code Ann. § 27-5-103. The Supreme Court denied permission to appeal in both Jacob and University Partners. An opinion from the Office of the Attorney General reached the same result. See Tenn. Op. Atty. Gen. No. 12-23 (Feb. 23, 2012).

Respondent utility district commissioners appeal the trial court’s determination that a ground for removal from office added to Tennessee Code Annotated § 7-82-307(b)(2), as amended effective June 2009, may be applied retrospectively to acts occurring prior to the effective date of the amendment to remove them from office. They also appeal the trial court’s determination that the additional ground for removal of commissioners, “failing to fulfill the commissioner’s or commissioners’ fiduciary responsibility in the operation or oversight of the district,” is not unconstitutionally vague. We reverse retrospective application of the additional ground for removal contained in the statute, as amended; hold that the statute is not void for vagueness; and remand.

In this appeal we must determine whether an injured worker was an “employee” or a
“temporary worker” within the meaning of a commercial general liability insurance policy.
The policy excludes coverage for injuries to the insureds’ employees, but it covers injuries
to “temporary workers” who are not employees, as that term is defined in the policy. The
trial court granted summary judgment to the worker upon concluding that he was a
“temporary worker,” and therefore covered under the policy, and it denied the insurer’s
motion for summary judgment. We find that the worker was not a “temporary worker” as
that term is defined by the insurance policy. Therefore, the trial court erred in granting the
worker’s motion for summary judgment and denying the insurer’s motion. We reverse and
remand for entry of an order granting summary judgment to the insurer.

In this appeal we are asked to construe the scope of the Tennessee Lemon Law and to determine whether it applies to Plaintiff’s vehicle. For the following reasons,we find the law applicable to vehicles with a “gross vehicle weight” of 10,000 pounds or less, and we affirm the trial court’s conclusions that Plaintiff is entitled to protection and relief thereunder.

This dispute arises from a fire that destroyed six adjoining buildings in 1997. The buildings were located along a single city block, running north to south, in downtown Memphis, Tennessee. Defendant owned the second building, sandwiched between one building to the north, owned by one of the Plaintiffs, and the four remaining buildings to the south, owned by the other Plaintiff. Approximately one month before the fire, a substantial portion of the second and third buildings collapsed, damaging all six buildings, and compromising the structural integrity of each building. Due to safety concerns, the parties were ordered not to enter the buildings and were required to ensure that their buildings were inaccessible to the public. The parties complied with the orders. Shortly thereafter, a trespasser entered the Defendant’s building and started a fire which spread to each of the adjoining buildings resulting in substantial damage. Plaintiffs filed negligence actions against the Defendant and argued that she was liable to them for their property damage caused by the criminal acts of the trespasser. Following a trial, the trial court entered a directed verdict in favor of the Defendant based on its conclusion that the Plaintiffs failed to establish any of the requisite elements of their negligence claims. After throughly reviewing the record, we affirm.

The trial court granted Mother’s petition to waive mediation and modify custody, and modified the parties’ parenting schedule upon finding a material change of circumstance. We affirm.