APPELLATE COURT OPINIONS

This action was filed by Arlie “Max” Watson, an elected county commissioner of Sevier County, and three other citizens and taxpayers of Sevier County, Peggy Marshall, John A. Meyers and Gerra Davis-Mary (collectively “the Plaintiffs”). They purported to act both individually and on behalf of the State of Tennessee. They named as defendants the county mayor, Sevier County, and the county commission as a body (collectively “the Defendants”). They sought to invalidate certain actions – primarily the commission’s adoption of certain procedural rules at a meeting held June 23, 2008 – and to disgorge the mayor of benefits he “wrongly” received. The trial court initially dismissed all claims – except those made under the Open Meetings Act – for lack of standing. It ordered that the caption be amended toreflect that the Plaintiffs were acting individually and not on behalf of the State. The trial court allowed the Open Meetings Act claims to proceed through discovery. Both sides of the dispute filed a motion for summary judgment. With the exception of a finding that minutes of some committee meetings were not properly filed in both the office of the county clerk and the county mayor as required by a local rule, the court found no deficiencies in the challenged actions. It granted the Defendants summary judgment as to all of the Open Meetings Act claims. The Plaintiffs appeal. We affirm.

After fourteen years of marriage, Alyson Leigh Amonette Eberting (“Wife”) sued Jeffrey Jennings Eberting (“Husband”) for divorce. After a trial, the Trial Court entered its Final Judgment for Divorce on August 12, 2010, which, inter alia, awarded Wife a divorce, distributed the marital property, entered a Permanent Parenting Plan, awarded Wife transitional alimony, and awarded Wife attorney’s fees as alimony in solido. Husband appeals raising issues regarding the valuation of his orthodontic practice, the parenting plan, and the award of Wife’s attorney’s fees. Wife raises issues concerning the overall property division, and the amount of attorney fees and expenses awarded to Wife as alimony in solido. We affirm.

Husband appeals his conviction of fourteen counts of criminal contempt for violations of the Marital Dissolution Agreement and the imposition of fourteen consecutive ten-day sentences for a total of 140 days in jail. Husband also appeals an award of attorney’s fees to Wife. We affirm the award of attorney’s fees to Wife and the finding that Husband was guilty of fourteen separate counts of criminal contempt; however, we find the imposition of the maximum sentence was excessive and employ our authority under Thigpen v. Thigpen, 874 S.W.2d 51, 54 (Tenn. Ct. App. 1993) to modify the sentence. Applying contempt sentencing principles found in In re Sneed, 302 S.W.3d 825 (Tenn. 2010) and sentencing considerations under Tennessee Code Annotated § 40-35-103 and 115(b), the sentences for twelve of the counts are reduced to four (4) days each, which will run consecutive to each other, the sentences for the two remaining counts are reduced to one (1) day each, which will run concurrent to each other but consecutive to the other twelve counts for an effective sentence of forty-nine (49) days. We also award Wife her reasonable attorney’s fees on appeal pursuant to the enforcement provision contained in the parties’ marital dissolution agreement.
 

A jury awarded Mary Catherine Gentry (“the Plaintiff”) compensatory damages of $80,000 against four defendants involved in the sale to her of a condominium. It also awarded punitive damages in the amount of $30,000 – $10,000 each against three of the four defendants. The defendants (collectively referred to herein as “the Defendants”) are Battery Place Condominiums, LLC, the owner of the complex (“the Owner”); Tagner H. Bailey, the builder of the complex (“the Builder”); Gina Sakich, the realtor who handled the transaction (“the Realtor”); and Realty Center of Chattanooga, Inc., the agency for which the Realtor worked (“the Agency”). Before the trial court entered judgment on the verdict, the Builder and the Owner renewed their motion for directed verdict. The trial court entered an order on March 10, 2010, that purports to (1) grant a directed verdict on the issue of punitive damages; (2) grant the motion for directed verdict on the issue of compensatory damages; (3) grant a new trial limited to compensatory damages; and (4) deny the motion for directed verdict as to reasonable reliance. Thereafter the chancellor who presided over the trial retired and a new chancellor was appointed. Numerous motions and hearings later, the new chancellor entered an order setting the case for trial; the order also modified, pursuant to Tenn. R. Civ. P. 60.01, the first chancellor’s March 10, 2010, order by deleting the earlier order’s grant of a directed verdict as to compensatory damages. The trial court later granted the Tenn. R. App. P. 9 application of the Defendants and stayed all proceedings pending appeal. We likewise granted the Defendants’ request for an interlocutory appeal. Finding no error in the trial court’s judgment, we affirm.

Wilson Sporting Goods Company brought suit in the Cumberland County General Sessions Court on an open account against U.S. Golf & Tennis Centers, Inc. (“the Company”) and its owners, Arthur H. Bell and Louise Bell (collectively “the Guarantors”). The account resulted from a large shipment of golf balls. After delivery, the Company questioned the price charged and refused and failed to make any payments. In response to Wilson’s suit, the defendants filed a counterclaim in which they denied owing the amount sought and moved the court to modify or rescind the contract with Wilson. Following a bench trial, the general sessions court entered judgment in favor of Wilson. On appeal to the trial court, both sides sought summary judgment; both motions were denied. After a bench trial, the court entered judgment in favor of Wilson for $33,099.28. The defendants appeal. We affirm.

Perley W. Jr., (“Father”) appeals the termination of his rights to his minor daughter, Rebekah R.W. (DOB: Oct. 7, 2005) (“the Child”). The petition to terminate was filed by Arlin H. and Emma H. (collectively “the Grandparents”), the Child’s maternal grandparents, who were the Child’s temporary custodians. At the time of the bench trial, Father was serving an effective 40-year prison sentence pursuant to two convictions for attempted murder and a conviction for attempted aggravated arson. The court terminated Father’s rights based upon the ground that Father was incarcerated under a sentence of ten or more years while the Child was under eight years of age, and its finding that termination was in the best interest of the Child. Father appeals the trial court’s best interest determination. Finding no error, we affirm the judgment.

This is a post-divorce case. Thomas E. Goddard (“Father”) appeals the trial court’s order granting Christa Goddard (“Mother”) permission to move to Florida with the parties’ minor child, Emma Elizabeth (DOB: July 1, 2004)(“the Child”). Based upon finding that Mother was spending the greater amount of time with the Child, the court applied Tenn. Code Ann. § 36-6-108(d)(1)(2010). The court found that the proposed relocation (1) had a reasonable purpose, (2) posed no threat of specific and serious harm to the Child, and (3) was not motivated by a vindictive effort to defeat Father’s parenting rights. Father appeals. We affirm .

In this post-divorce action, a father seeks to have his child support obligation reduced following the emancipation of the parties’ older child.Mother opposes a reduction due to the expense of the younger child’s extracurricular activities and Father’s failure to exercise visitation with the younger child. Mother also seeks payment for unpaid child support from 2002. The trial court held Father was entitled to a reduction in his child support obligation, and that the circumstances justified the creation of a new parenting plan with less visitation time for Father, and an upward deviation from the Child Support Guidelines for Father’s child support obligation for the younger child. Further, the court held Father in “willful civil contempt” for the unpaid support from 2002, and ordered Father to pay the arrearage and a portion of Mother’s attorney fees. We affirm the trial court in all but two respects. We reverse the decision holding Father in contempt for failing to satisfy his support obligation in 2002, because it was not willful. Father was out of work due to an injury. We also reverse the decision denying prejudgment interest on the child support arrearage from 2002, finding that Tennessee Code Annotated § 36-5-101(f)(1) mandates that interest on unpaid child support shall accrue from the date the ordered support was due, at a rate of 12% per year. We also find Mother is entitled to recover reasonable and necessary attorney fees incurred on appeal and remand for determination of the amount.
 

I concur fully in the majority’s finding that Father abandoned his children by willful failure to visit them. I must reluctantly dissent from the majority’s finding that Father’s child support payments during the pivotal four-month period amounted to abandonment by willful failure to support. The trial court viewed Father’s testimony and considered his payment history during the four-month period, and found no willful intent to abandon. While Father clearly had the means to pay his full child support obligation, in view of the trial court’s finding and the evidence on his payments, I must respectfully disagree that the record shows by clear and convincing evidence abandonment by failure to support.

This is an appeal from a final judgment dismissing an inmate’s petition for writ of certiorari. Because the inmate did not file his notice of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.
 

This case arises from a dispute over which parent should be the primary residential parent of two minor children, Julian and Tristen (“the Children,” collectively). Julie Leamon Tomlin (“Mother”) and Nathan Leamon (“Father”) are the parents of the Children. Mother and Father divorced several years ago and both have since remarried. Some time after the divorce, Mother, with whom the Children spent the majority of their time, filed a petition for correct child support and to modify the existing permanent parenting plan in the Circuit Court for McMinn County (“the Trial Court”). Father filed an answer and counterclaim, requesting that he be made the primary residential parent, or, in the alternative, that he have equal parenting time with the Children. Following trial, the Trial Court found that a material change of circumstances had occurred and that it was in the Children’s best interests that Father be made primary residential parent of the Children. Mother appeals, arguing, in part, that no material change of circumstances had occurred that could support making Father the primary residential parent. We reverse the judgment of the Trial Court.

This is an appeal from a final judgment dismissing an inmate’s petition for common law writ of certiorari. Because the inmate did not file his notice of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.
 

This lawsuit was filed by the decedent’s nephew and the nephew’s wife alleging that the caretakers of the decedent improperly influenced him to change his will. The proponents of the decedent’s will filed a motion for summary judgment, asserting that no confidential relationship existed between the decedent and the caretakers in regard to the will. The trial court granted the proponents’ motion, finding that proof of a confidential relationship was necessary to pursue a will contest on the ground of undue influence, and that no such confidential relationship existed between decedent and the caretakers. The contestants appeal. Finding no reversible error, we affirm.

This appeal involves a petition to terminate parental rights that was filed in 2005. At the hearing, the Father consented to the termination of his parental rights, so the trial court entered an order terminating his parental rights without making findings of fact and conclusions of law regarding grounds for termination and the children’s best interest. Father subsequently challenged the trial court’s order on appeal, and the Supreme Court reversed and remanded for the trial court to hold a new hearing and prepare an order with the requisite findings. On remand, the trial court found that Father had not abandoned the children by willfully failing to visit them or by willfully failing to support them, and therefore it declined to terminate his parental rights. We reverse and remand for further proceedings.

This appeal involves the “spousal impoverishment” provision of the Medicare Catastrophic Coverage Act of 1988 (“MCCA”). Thomas Crisel (“Husband”) was placed in a nursing home for health-related problems. Subsequently, Carol Crisel (“Wife”) filed a complaint against Husband in which she sought spousal support in the form of a transfer of the family residence and all of his income. The trial court granted Wife’s request and filed an order reflecting its decision. Upon receiving notice of the order, the Tennessee Department of Human Services (“TDHS”) filed a motion to intervene and to set aside the order pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court denied the motion. TDHS appeals. We reverse the judgment of the trial court and remand with instruction to the trial court to reconsider Wife’s complaint for spousal support with TDHS participating as an intervening party.

In this case the grandparents were awarded temporary custody of the mother's two minor children after the Court determined the children were dependent and neglected in the mother's care. Subsequently, the Trial Court set child support payments from the mother to the grandparents based on the mother's social security disability benefits income. The mother has appealed to this Court, and argues that the Trial Court erred in setting the amount of the mother's child support payments and contends that social security benefits are not subject to garnishment. We affirm the Trial Judge on all issues and remand.

Father appeals from his conviction of eighteen counts of criminalcontempt for willful failure to pay bi-weekly child support obligations over a thirteen-month period. The record demonstrates that Father was hospitalized and incarcerated for a portion of the relevant period, and unable to make some of the payments, but the evidence proves his guilt beyond a reasonable doubt to sixteen (16) counts. We therefore, affirm the conviction of sixteen (16) of the eighteen (18) counts of criminal contempt and revise the total sentence from 180 days to 160 days.
 

In this action based on a contract, the Trial Court granted plaintiff summary judgment and ultimately certified the judgment as final, pursuant to Tenn. R. Civ. P. 54.02. Defendant had filed a counterclaim against plaintiff based on the same contracts that was the basis of plaintiff's summary judgment. Defendant has appealed, insisting the Trial Court abused its discretion in certifying the judgment as final. We hold the Trial Court abused its discretion in certifying the judgment as final and dismiss the appeal.

Plaintiff employer confronted with a worker's compensation claim by its employee filed an action for declaratory judgment, injunction relief, and a petition for certiorari against the Tennessee Department of Labor and Workforce Development and the employee. Plaintiff's principal contention was that the Department of Labor prepared an order for medical benefits directing the employer to provide the employee with additional panels of physicians from which he could choose for treatment, and concluded by averring that it was threatened with a $10,000 penalty if it did not comply. The Trial Court initially issued a restraining order, but the Trial Court ultimately concluded that it did not have jurisdiction over the issues because suit had been filed before the administrative review process was exhausted. Plaintiff appealed and we affirm the Judgment of the Trial Court, and remand.

Builder was hired to construct a commercial building, and it purchased the concrete for the building’s concrete slab from Supplier. The concrete slab developed major cracks, which led to this lawsuit between Builder and Supplier. After a two-day bench trial, the trial court found that Supplier had delivered defective concrete, and it entered judgment in favor of
Builder for $60,000. We affirm.

This appeal arises out of dependency and neglect proceedings regarding three minor children.  The circuit court found all three children dependent and neglected, and it found the youngest child had been severely abused. We affirm

This is a medical malpractice appeal. The plaintiff patient was treated by the defendant  physician for ear problems. After the treatment, she had a complete loss of hearing in one ear. The plaintiff patient filed this lawsuit against the physician, alleging medical malpractice and lack of informed consent. After potential experts in Tennessee and contiguous states declined to testify against the defendant physician, the trial court permitted the plaintiff to use an expert physician witness from a non-contiguous state. At the jury trial, after the jury was sworn and counsel gave opening statements, a juror notified the trial judge of the her concern about an upcoming social event she planned to attend, at which a relative of the defendant physician would be present. After voir dire, the trial judge noted that the plaintiff patient had unused remaining peremptory challenges and excused the juror. The trial court denied the defendant physician’s motion for directed verdict on informed consent. The jury awarded the plaintiff substantial compensatory damages. The defendant physician now appeals, arguing that the trial court erred in permitting the plaintiff to obtain an expert from a non-contiguous state, in allowing the plaintiff to exercise a peremptory challenge after trial was underway, in permitting the informed consent claim to go to the jury, and in denying the defendants’ motion to exclude the expert retained by the plaintiff. We affirm on all issues except the dismissal of the juror. We hold it would be error to permit the exercise of a peremptory challenge after the trial is underway, but find that any error was harmless under the facts of this case. Therefore, we affirm.

I agree with the result reached in this case, but I disagree with the majority’s statement that “it is unclear whether Juror H was excluded based on a peremptory strike or for cause.” The record is unequivocally plain in this case that the trial judge permitted the exercise of a
peremptory challenge after the jury had been accepted and the trial was underway.

A former employee broughta retaliatorydischarge action againstthe employer city,asserting a claim under the Tennessee Public Protection Act. The trial court granted summary judgment in the city’s favor and the employee appealed. Because genuine issues of material fact preclude summary judgment, we reverse.
 

This is a malicious prosecution case arising out of a dispute between neighbors. A dispute arose when the plaintiff neighbor hired a tree service to trim the branches of a tree near the border between the two neighbors’ properties. After a confrontation, the police were called. After they arrived, the police cited both neighbors on charges of disorderly conduct. After the charges against the plaintiff neighbor were dismissed, he filed this malicious prosecution action against the defendant county and two of the police officers involved. The trial court granted summary judgment in favor of the defendants. The plaintiff neighbor now appeals. We affirm.