APPELLATE COURT OPINIONS

CHARLES D. SUSANO, JR., Presiding Judge, dissenting. With all due respect to my colleagues, I believe the conduct, or lack thereof, of Mother has been blown way out of proportion. Certainly, not all of the i’s were properly dotted and not all of the t’s were correctly crossed, but, in the final analysis and way before the date scheduled for the Child’s Baptism, Father had ample opportunity to weigh in on the decision. He failed to stop the Baptism when he could.

In this post-divorce case, the issues are twofold: whether the trial court erred in awarding Mary Nelle Sprague (“Mother”) a judgment against her former spouse, Andrew Douglas Sprague (“Father”), in the amount of $5,604.65 for uncovered medical expenses pursuant to the terms of the parties’ parenting plan; and whether the trial court erred in the process of holding Father in criminal contempt of court. We modify the medical expense award by decreasing it to $2,124.32, the amount claimed by Mother and the amount established by the proof. Further, we reverse the criminal contempt finding because Father was not provided adequate notice of the criminal contempt charges as required by Tenn. R. Crim. P. 42(b).

Husband appeals the trial court’s determination that the parties’ residence was marital property; he also appeals the division of the marital property. Finding no error, we affirm.
 

This appeal arises from a post-divorce petition to modify the father’s child support obligation as set in 2000 under a previous version of the child support guidelines. The dispositive issue is whether there is a “Significant Variance” in the father’s income as required by Department of Human Services Rule 1240-2-4-.05(2)(b)(1) to allow a modification. The trial court found no significant variance in the father’s income; nevertheless, it modified his child support obligation, setting it at the presumptive amount as calculated under the current child support guidelines and using the parties’ current income. We have determined the trial court’s finding of no significant variance was based upon a mathematical error, and we find there is a significant variance entitling the father to a modification of his child support obligation. Accordingly, we affirm the modification of the father’s support but on different grounds than those relied upon by the trial court.

Unmarried Father and Mother of infant child filed petitions to establish initial custody, calculate parenting time, set child support, and determine residential sharing schedule. Father sought to have the child bear his surname. The trial court entered a parenting plan and denied Father’s request to change the child’s surname. Father appeals and assigns as error certain parenting plan provisions, the trial court’s award to Mother of her attorney fees, and the trial court’s decision not to change the child’s surname. Mother appeals the trial court’s calculation of the number of days of parenting time for purposes of determining child support. Finding that the court miscalculated the number of days of parenting time, we remand for a redetermination of child support. We also remand the attorney fee award for reconsideration. In all other respects, we affirm the trial court.

The main issue in this case is whether Rutherford County provided adequate notice, under the Open Meetings Act, concerning a planning commission meeting to vote on the site plan for a mosque. We have concluded that the trial court erred in finding the notice provided to be inadequate under the Open Meetings Act. In all other respects, we affirm the decision of the trial court.

This case involves the application of the statute of limitations to an intervening personal injury complaint filed by a bankruptcy trustee after the defendants asserted that the original plaintiff, the debtor in the bankruptcy proceeding, lacked standing to bring the claim. Once the bankruptcy trustee became aware of the claim, he filed a motion for intervention, or in the alternative, for substitution pursuant to Rule 17.01 of the Tennessee Rules of Civil Procedure. The trial court granted the trustee’s motion and the trustee later filed an intervening complaint. The trial court, however, later dismissed the case, reasoning that because the first complaint was filed by a party without standing, the original complaint was a nullity. Under this theory, the trial court concluded that the action was commenced upon the filing of the trustee’s intervening complaint, which was undisputedly outside the applicable statute of limitations. Having determined that the plaintiff’s original complaint was not a nullity, we conclude that the trustee’s intervening complaint relates back to the original complaint and, thus, was filed within the applicable statute of limitations. Accordingly, we reverse and remand.

This is a termination of parental rights case involving two minor children, Victoria G. and Ethan G. (“the Children”). The Children were born during the marriage of David G. (“Father”) and Rachel M. (“Mother”). When Father and Mother divorced in 2004, Mother was awarded primary custody of the Children. In 2005, Mother suffered a recurrence of cancer. She and the Children subsequently moved in with her sister, Amanda M., and her sister’s husband, Paul M. When Mother died on October 6, 2005, Amanda M. obtained custody of the Children the following day. Father did not seek custody of the Children until April 2006. The parties engaged in protracted litigation, during which Father was allowed varying types of visitation. In September 2010, Father was granted progressively expanding visitation with the Children, designed toward increasing co-parenting in frequency and consistency over time. The visits did not go well, however, and the Children eventually refused to go with Father. The last attempted exchange, occurring on September 9, 2011, resulted in an incident wherein Father was arrested for assault. Father did not seek visitation with the Children after that date. Paul M. filed a petition seeking to terminate Father’s parental rights on January 26, 2012, based upon the statutory ground of abandonment by willful failure to visit and support. Following a bench trial, the trial court granted the petition after finding clear and convincing evidence that Father had willfully failed to visit the Children for at least four months preceding the filing of the petition, and upon determining that termination was in the Children’s best interest. Father appeals. We affirm.

The father of one child appeals the trial court’s finding of ten counts of criminal contempt for failing to pay ten weekly child support payments and the imposition of consecutive sentences of ten days for each count for a total sentence of 100 days in jail. Petitioner introduced little evidence other than proof that the father had not paid child support; the father defended the petition insisting he did not have the ability to pay support. Medical records introduced into evidence, along with the testimony of the father and his optometrist, established that the father suffered from an autoimmune medical condition that substantially impairs his vision and prevents him from working in bright light, including sunlight, and from working in a hot environment. Additionally, the father has a tenth grade education and is a convicted felon, facts which further impair his employability. Considering the evidence in the light most favorable to the prosecution, we are unable to conclude that a trier of fact could have found beyond a reasonable doubt that the father had the ability to pay and that his failure to pay support was willful. Accordingly, his conviction of ten counts of contempt for willfully failing to pay child support is reversed.
 

The claimant has filed a notice of appeal from an Order Denying Claimant’s Motion for En Banc Review entered by the Tennessee Claims Commission on February 26, 2013. Because the claimant did not file its notice of appeal with the clerk of the Claims Commission within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.

This case involves a claim first asserted against a decedent’s estate by the decedent’s longtime companion, and then pursued after her death by her heirs The claim was transferred from the probate court to the chancery court and then, by agreed order, to the circuit court for a jury trial. The jury upheld the validity of the claim, and the court entered a judgment on the verdict. The decedent’s heirs then filed post-trial motions contending that the circuit court lacked jurisdiction over the claim. After extensive briefing, the circuit court agreed with those arguments and vacated its own judgment. We reverse the trial court and reinstate its original judgment.
 

After the trial court entered a final decree of divorce, the wife filed a motion to alter or amend, seeking a modification of the division of marital property. The trial court granted the motion to alter or amend, stating that the court was operating under a misconception concerning the wife’s position at trial, which rendered the division of marital property inequitable. The court awarded an asset previously awarded to the husband to the wife instead. Husband appeals. We affirm.

This is a medical malpractice action filed pursuant to the Tennessee 1 Medical Malpractice Act (“the TMMA.”) The plaintiffs are wife and husband. The sole defendant is a governmental entity subject to the Governmental Tort Liability Act (“the GTLA”). The defendant operates a hospital in Chattanooga. The complaint alleges that wife was a victim of medical malpractice at the hospital in February 2010. On February 2, 2011, the plaintiffs sent the notice required by Tenn. Code Ann. § 29-26-121(a) (2012), a part of the TMMA. On June 3, 2011, the plaintiffs filed suit against the Hospital Authority. The Authority filed a motion to dismiss pursuant to the provisions of Tenn. R. Civ. P. 12(6), arguing that the suit was not timely filed because it was not filed within the one-year statute of limitations, Tenn. Code Ann. § 29-20-305(b) (2012), set forth in the GTLA. The plaintiffs responded that the period of limitations was extended by 120 days by Tenn. Code Ann. § 29-26-121(c) because the plaintiffs had complied with the pre-suit notice requirements of Tenn. Code Ann. § 29- 26-121(a). The trial court dismissed the complaint as untimely filed. The plaintiffs appeal. We affirm.

Former wife appeals the assessment of past child support to her and the court’s disposition of her motion to hold former Husband in contempt of court. Finding no error, we affirm the judgment.

This appeal arises from a challenge to the constitutionality of Tenn. Code Ann. § 39-17-1307 (a)(1), a law restricting the carrying of firearms in Tennessee. Leonard Embody (“Embody”) challenged the validity of Tenn. Code Ann. § 39-17-1307 (a)(1) in a case filed against Attorney General and Reporter Robert E. Cooper, Jr. (“Respondent”) in the Chancery Court for Davidson County (“the Trial Court”) on grounds that the law violates the Second Amendment to the United States Constitution and Tenn. Const. Art. I, § 26. The Trial Court upheld the law as constitutional. Embody filed an appeal to this Court. We hold that Tenn. Code Ann. § 39-17-1307 (a)(1) is a valid regulation of the carrying of firearms that does not contravene either the Second Amendment or Tenn. Const. Art. I, § 26. We affirm the judgment of the Trial Court.

This is a termination of parental rights case focusing on the four minor children (“the Children”) of mother, Kelly H. (“Mother”) and father, Bernard H. (“Father”). A termination petition was filed by the Tennessee Department of Children’s Services (“DCS”) after the third custody episode involving these parents. The petition alleges the sole statutory ground of severe child abuse. Following a bench trial, the trial court granted the petition upon its finding, by clear and convincing evidence, that Mother and Father had committed severe child abuse pursuant to Tennessee Code Annotated § 36-1-113(g)(4) and § 37-1-102. The court further found, by clear and convincing evidence, that termination of parental rights was in the Children’s best interest. Father has appealed. We affirm.

Robert LaFever appeals the Trial Court’s order of July 12, 2012 dismissing his notice of will contest after finding and holding, inter alia, that the Last Will and Testament of John Leonard Burke had been admitted to probate in solemn form and could not be challenged in a later will contest. We affirm the Trial Court’s July 12, 2012 order.

Appellant’s claim for unemployment benefits was denied based upon a finding of work-related misconduct. Appellant sought review in the chancery court, which upheld the decision of the Commissioner’s Designee. On appeal to this Court, Appellant claims that the chancery court erred in denying her request for a continuance and in affirming the decision of the Commissioner’s Designee without considering the evidence which purportedly would have been introduced had a continuance been allowed. We affirm the decision of the chancery court.

Mother appeals the trial court’s order naming Father primary residential parent and setting child support. Discerning no error, we affirm and remand.

Plaintiffs, former part-time Shelby County employees, claim they were wrongfully excluded from Shelby County’s retirement plan. The trial court dismissed all claims based on the six year limitations period applicable to contract actions. We affirm in part, reverse in part, vacate in part, and remand.

The homeowners’ association of a residential subdivision in Brentwood,Tennessee seeks just compensation from the City of Brentwood for loss of property rights in a portion of the subdivision’s open space. The City acquired the property by purchasing it from the developers of the subdivision without the Association’s knowledge. The Declaration of Protection Covenants, Conditions, and Restrictions of the subdivision, which the developers drafted and of which the City was on notice, states that the developers “will deed the completed Open Space on the subject Properties to the Association free and clear of any encumbrances before the first Lot is conveyed to a Lot Owner.” Although they sold the first individual lot in 2001, the developers did not convey any of the open space to the homeowners’ association until after the sale to the City. This action by the homeowners’ association ensued. The trial court summarily dismissed the action on the City’s motion, finding the homeowners’ association did not own a compensable property right in the Open Space when it was sold to the City. We have determined the homeowner’s association had an equitable interest in the Open Space pursuant to the Declaration of Protective Covenants, Conditions, and Restrictions when it was sold to the City; therefore, we reverse and remand for further proceedings.

Appellant appeals the dismissal of his complaint against the prison’s medical staff for failure to properly diagnose and treat him. The trial court determined that Appellant prisoner’s claims were barred by the applicable statute of limitations, which was not tolled by operation of Tennessee Code Annotated Section 29-26-121. Appellant also appeals the trial court’s findings concerning his status as an indigent person. Discerning no reversible error, we affirm and remand.

This is the second appeal in this case. In the first appeal, this Court affirmed the trial court’s enrollment of a foreign judgment acquired by the petitioners against the respondent in Idaho, and the case was remanded for enforcement proceedings. On remand the respondent refused to comply with the Idaho judgment, so the petitioners filed a motion for contempt and for an order to compel compliance with the judgment. The respondent did not attend the hearing. The trial court found the respondent to be in contempt of court for refusing to comply with the Idaho judgment. The respondent now appeals. We dismiss the appeal, because the issues raised on appeal were not first raised in the trial court, and the respondent did not comply with either Rule 24(c) or Rule 27 of the Tennessee Rules of Appellate Procedure.
 

The trial court entered summary judgment in favor of Defendants in this action asserting claims for fraudulent misrepresentation; civil conspiracy; negligence, breach of contract; and violation of the Consumer Protection Act. Plaintiff appeals; we affirm.

Federal National Mortgage Association (“FNMA”) initially brought this action for foreclosure and damages against a borrower,TN Metro Holdings XII LLC (“TN Metro XII”) alleging default by failure to make scheduled principal and interest payments, by improperly allowing liens against the mortgaged property in violation of the loan agreements and by misapplication of rents collected from leasing the mortgaged property. FNMA subsequently filed an amended complaint seeking relief in the nature of personal liability against Defendant Selim Zherka under the loan. The trial court granted FNMA summary judgment and held both the borrower and “Key Principal” liable for the deficiency following a foreclosure sale and for damages. We vacate the summary judgment, holding that (1) FNMA failed to provide written notice and a thirty-day period to cure the alleged defaults as required by the parties’ agreement; and (2) there are genuine issues of material fact making summary judgment improper regarding FNMA’s claim for damages resulting from the alleged misapplication of rents.