APPELLATE COURT OPINIONS

Plaintiff and third-partydefendant appeal the circuitcourt’s denial of third-partydefendant’s motion to dismiss, grant of defendant/third-party plaintiff’s motion for sanctions against third-party defendant, and dismissal of the plaintiff’s claims. Finding that defendant/thirdparty plaintiff’s complaint makes out a claim for relief as a matter of law, we affirm the circuit court’s denial of third-party defendant’s motion to dismiss. Finding that the circuit court did not abuse its discretion, we affirm the grant of the motion for sanctions. Finding that defendant negated an element of plaintiff’s claim, we affirm the circuit court’s dismissal of the plaintiff’s case against the defendant.
 

In the previous appeal of this case, we determined that the trial court erred in denying Plaintiff the opportunity to appeal the dismissal of his case and in awarding $1,151.75 in sanctions to Defendant. The case was remanded and, on remand, the trial court directed the Defendant to return the monetary sanction by depositing the money with the Clerk and Master. Plaintiff appeals and contends that the trial court erred in not distributing the funds to him directly. We affirm the trial court and remand the case for further proceedings.
 

In this case, the trial court entered a default judgment against J. Alan Riggs (“Husband”) and Deborah D. Riggs (“Wife”) and against Husband and Preston Park Development, LLC (“Preston Park”). Husband, Wife, and Preston Park (collectively “the Defendants”) filed a motion for a new trial or to set aside the default judgment. The trial court granted the motion, in part, holding that Wife was not liable for one of the counts in the judgment entered against her. The trial court upheld the entirety of the other counts as they related to each of the Defendants. The Defendants appeal. We affirm the judgment of the trial court.

Restaurant patron who was served food in which he found a tooth sued the restaurant for negligence, strict liability, breach of warranty, and violation of the Tennessee Consumer Protection Act. He sought compensatory and punitive damages. At trial, the court granted a directed verdict to defendant on the punitive damages and Consumer Protection Act claims and denied plaintiff’s special request that the court instruct the jury that recoverable damages for mental and emotional distress could also include anxiety or concern for others. Plaintiff appeals the grant of the directed verdicts and the failure to give the requested instruction. Finding no error, we affirm.

This is a case involving life insurance and a Power of Attorney. After Decedent named Appellant as his attorney-in-fact through a Power of Attorney, the Appellant changed Decedent’s life insurance policy to name herself as primary beneficiary. Appellee, the
previous beneficiary of the policy, filed this action to prevent Appellant from receiving the proceeds, alleging fraud. The trial court found that the Uniform Durable Power of Attorney Act prevented Appellant from changing the beneficiary of the policy. Further, the trial court held that Appellant’s argument that she had actual authority to make the change was an affirmative defense that was waived by Appellant’s failure to specifically plead it. Based on the foregoing, we affirm in part, reverse in part and remand.

The trial court granted Whitney Marie MacRae (“Wife”) a divorce by default against Thomas Paul MacRae (“Husband”). The default was based upon Husband’s failure to comply with an order compelling him to respond to Wife’s discovery requests. Shortly after Wife remarried – which was nearly a year after the divorce judgment was entered – Husband filed a motion pursuant to Tenn. R. Civ. P. 60.02 to set aside the judgment. The trial court denied the motion. Husband appeals from that denial. Wife argues that the judgment should not be set aside; she seeks damages for a frivolous appeal. We affirm the judgment of the trial court. We also find the appeal to be frivolous and remand to the trial court for a determination of the damages due Wife pursuant to the provisions of Tenn. Code Ann. § 27- 1-122 (2000).

This is a divorce case. The parties had a long marriage and one minor child. The wife obtained an order of protection against the husband on behalf of herself and the child and filed for divorce. After a trial, the trial court granted the wife a divorce, extended the order of protection against the husband, and divided the marital assets. The trial court did not award the husband parenting time, and required the husband to attend anger management classes and pay child support. The wife was awarded the marital home subject to a lien in favor of the husband. The husband appeals the child support and the failure to award him parenting time. The wife appeals the trial court’s award of a lien on the parties’ marital residence in favor of the husband. We affirm as to parenting time and child support, and reverse as to the lien on the marital residence.

Rodney T. Rzezutko and Sandra Rzezutko (“Defendants”) appeal a Circuit Court order dismissing Defendants’ appeal of a General Sessions Court interlocutory order dated September 21, 2010. U.S. Bank National Association, as trustee (“Plaintiff”) raises an issue on appeal with regard to the Circuit Court vacating the General Sessions Court’s September 21, 2010 order. We find and hold that the Circuit Court lacked jurisdiction to hear an interlocutory appeal of a General Sessions Court order. The Circuit Court, therefore, correctly dismissed Defendants’ appeal. We affirm this dismissal. However, as the Circuit Court lacked jurisdiction, it was error to vacate the September 21, 2010 General Sessions Court order. We, therefore, vacate that portion of the Circuit Court order vacating the September 21, 2010 order, and reinstate the September 21, 2010 General Sessions Court interlocutory order.

In this modification of child custody case, Father petitioned the court to change custody based on Mother’s relocation and the subsequent interference with his visitation. Finding a material change in circumstances, the juvenile court named Father primary residential parent. Mother appeals. Concluding that a material change in circumstances existed and the change in custody was in the child’s best interest, we affirm.

First Tennessee Bank, N.A. (“the Trustee”) is the trustee of a testamentary trust established under the will of Steve Woodward (“the Deceased”) for the benefit of his son, Jeffrey Clinton Woodward (“the Son”). Steve Woodward died in 2005. The Deceased’s will (“the Will”) provides that at his death a trust was to be created for the benefit of the Son. The Son is to receive a monthly payment from the trust and, at age 50, the Son is to receive the corpus of the trust. The Deceased’s brother, Harold Woodward (“the Brother”), is the recipient under the Will of “all of the property that would make up my residual estate and not named herein. . . .” The trust was created and payments were being made to the Son until he died in 2009 at the age of 33. The Trustee filed this action asking the court to determine its obligations as trustee with respect to the corpus of the trust. The suit named all parties with a possible interest in the outcome as defendants, including the Son’s estranged wife, Andrea Woodward (“the Wife”). The trial court ordered the Trustee to distribute the corpus of the trust to the Brother. The Wife appeals. We reverse.

Wife appeals the trial court’s decision to substantially reduce her alimony, contending there has not been a substantial and material change of circumstances. The parties were divorced in 2005 following a thirty year marriage. In 2008, Husband filed a petition for modification of alimony. The trial court held that a decrease in Husband’s income constituted a substantial and material change of circumstance, which warranted the reduction in alimony. The trial court also held that Husband was entitled to interest on overpayments of alimony. Wife appealed. We reverse based on the finding that there was not a substantial and material change of circumstance. We also find that although Husband is entitled to recover overpayments of alimony following the first appeal, he is not entitled to interest on the overpayments. Wife has requested her attorney’s fees. Applying the principles stated in Gonsewski v. Gonsewski, __S.W.3d __, 2011 WL 4116654 (Tenn. Sept. 16, 2011), we find Wife is not entitled to recover her attorney’s fees on appeal.

American Express Bank, FSB, sued Michael Fitzgibbons on a sworn account for unpaid credit card debt. It later sought summary judgment. Following a hearing, the trial court granted the motion and entered a judgment against Fitzgibbons for $25,766.70 plus attorney’s fees and costs. Fitzgibbons appeals. We affirm.

This appeal concerns the termination of parental rights. The mother is appealing the juvenile court’s judgment terminating her parental rights. The child at issue was initially taken from his mother’s custody by the Tennessee Department of Children’s Services after his school reported excessive tardiness and absences. The juvenile court determined that the child was homeless, and that the mother would not provide for his needs. The child was placed with a relative. Lengthy proceedings ensued. The Department filed a petition to terminate the mother’s rights, which was eventually tried by the juvenile court. The juvenile court terminated the mother’s parental rights, and the mother now appeals, arguing that the State failed to prove by clear and convincing evidence any statutory grounds for termination, failed to prove that it made reasonable efforts to reunify, and failed to prove that the termination of her parental rights was in the best interest of the child. We affirm.

This is an appeal of an alimony award. The trial court entered an order declaring Husband and Wife divorced, but reserved all financial issues, including alimony, for trial at a later date. After the trial, the trial court entered a final order awarding Wife rehabilitative alimony and ordering her to undergo a vocational rehabilitation evaluation. Husband filed a petition for contempt and to modify the final order based on Wife’s failure to file proof of her completion of a vocational rehabilitation evaluation. In response, Wife filed proof of her completed vocational rehabilitation evaluation, and filed a counter-petition for contempt and to modify the final order seeking alimony in futuro. Subsequently, Wife filed a motion pursuant to Tennessee Rule of Civil Procedure 60.01, arguing that the language of the final order failed to include the trial court’s findings that the alimony award was not final, and was subject to change based on the results of the vocational rehabilitation evaluation. The trial court granted Wife’s Rule 60.01 motion, and conducted a hearing to determine the appropriate nature and amount of alimony to be awarded based on the results of the vocational rehabilitation evaluation. Following the hearing, the trial court awarded Wife alimony in futuro, increased the amount of alimony awarded, and required Husband to maintain additional life insurance to secure his alimony in futuro obligation. Husband appeals the order granting Wife’s Rule 60.01 motion, and further argues that Wife was required to show a substantial and material change of circumstances to warrant a modification of the original rehabilitative alimony award. Finding that the trial court’s alimony award was not final, and therefore the trial court retained jurisdiction to consider the results of the vocational rehabilitation evaluation, we affirm the trial court’s award of alimony in futuro.

The plaintiff in this automobile accident case has filed a notice of appeal from an order entered on July 26, 2011, granting him a judgment in the amount of $250,000. Because the trial court has set aside the judgment and set the case for a jury trial, we dismiss the appeal for lack of a final judgment.

Alan Howard Peters was seriously injured when his vehicle collided with logs that had rolled off a truck. He and his wife filed this personal injury action and thereafter settled their claims against the defendant tortfeasors for policy limits of $1 million. In doing so, they reserved their claim against the uninsured motorist (“UM”) carrier, Cincinnati Insurance Company (“CIC”). The UM provisions in effect with CIC were set forth in an endorsement to a 2005 renewal of an umbrella policy. The UM endorsement to the original policy issued in 1999 and to the first renewal issued in 2002 expressly limited UM coverage to $1 million. A space in the 2005 renewal endorsement form that was intended for insertion of the UM policy limits was left blank, which, by default, rendered the limits of the UM endorsement equal to the $2 million liability limits of the umbrella policy. After the dismissal of the claims against the tortfeasors, CIC amended its answer to include a counterclaim asking the court to reform the policy to make the UM limits equal to the $1 million limits of the previous policies. The trial court entered an order reforming the policy. Subsequently the court entered an order dismissing the remaining claim against CIC. Mr. and Mrs. Peters appeal. We affirm.

This is a premises liability case in which the Plaintiff/Appellant, a resident of Defendants/Appellees’ condominium complex, was assaulted by unknown individuals. Appellant filed suit, asserting negligence on the part of Appellees in failing to timely repair a vehicle access gate on the property. The trial court granted summary judgment to Appellees, finding that Appellees owed no duty to Appellant as the harm was not reasonably foreseeable. We conclude that the evidence creates a dispute as to whether the underlying assault was foreseeable and, therefore, the grant of summary judgment was erroneous. Reversed and remanded.

This is an appeal from an administrative decision against Appellant, a licensed veterinarian. Appellee Board of Veterinary Medical Examiners sanctioned Appellant for improperly prescribing medications to farms. Appellant appeals. Discerning no error, we affirm.
 

This case is before us upon mandate from the Tennessee Supreme Court for reconsideration of our previous opinion, Clifton Lake, et. al. v. Memphis Landsmen, L.L.C., et al., No. W2009-00526-COA-R3-CV, 2010 WL 891867 (Tenn. Ct. App. March 15, 2010), in light of the United States Supreme Court’s decision in Williamson v. Mazda Motor of America, Inc., et al., 131 S. Ct. 1131, 179 L. Ed.2d 75 (2011). Our conclusion, in Lake, that Appellants’ claims, based upon the type of glass and the lack of passenger seatbelts, are pre-empted is not disturbed by the Williamson decision because the basis of our holding involved more than preservation of the manufacturers’ ability to choose under the safety regulations. Under the law of the case doctrine, and because further review would exceed the scope of the Tennessee Supreme Court’s mandate, we decline to revisit our decision concerning the perimeter seating issue. Reversed and Remanded.

Appellant failed to timely file his Notice of Appeal.  Thus, we dismiss this appeal for lack of jurisdiction.

In this post-divorce change of custody case, Elizabeth A. (Hayes) (Falin) Finch (“Mother”) and Timothy A. Hayes (“Father”) sought to modify their parenting plan regarding their daughter (“the Child”), who was born on July 13, 2000. At the time of the divorce, the parties designated Mother as the primary residential parent and provided Father with regularly scheduled visitation. Following a hearing in response to the parties’ motions for modification, the court designated Father as the primary residential parent and awarded Mother co-parenting time. Mother appeals. We affirm the decision of the trial court.

The mother of two minor children appeals the termination of her parental rights. She contends the evidence did not clearly and convincingly establish a statutory ground supporting termination of her rights or that termination was in the children’s best interests. We have determined that the evidence clearly and convincingly supports the trial court’s findings and, thus, affirm the trial court in all respects.
 

Essentially, plaintiff's Complaint sets forth numerous refusals by the prison in denying him appropriate and proper medical treatment for his conditions. In their Answer, defendants denied the Complaint's allegations and subsequently moved for summary judgment, which the Trial Court granted. On appeal, we hold there are disputed issues of material facts and the summary judgment is reversed, as to the health administrator and the nurse practitioner. The summary judgment granted to the Warden of the Southeastern Tennessee State Correctional Facility is affirmed.

The plaintiff filed suit against the defendants for causes of action sounding in contract after the defendants refused to consent to the assignment of certain agreements relating to the programming of a radio station. The parties filed competing summary judgment motions. The trial court dismissed the case, finding as a matter of law that the defendants did not breach one of the contracts at issue. The plaintiff appealed. We reverse the judgment of the trial court.

Janet S. (“Grandmother”), maternal grandmother and custodian of the minor child Natalie R. C. (“the Child”), filed a petition to terminate the parental rights of Kenneth C. (“Father”) in the Juvenile Court for Blount County (“the Juvenile Court”). Christy S. (“Mother”), the Child’s mother, is deceased. The Juvenile Court terminated Father’s parental rights on the grounds of failure to pay child support and failure to visit the Child. Father appeals, arguing, among other things, that the petition to terminate his parental rights was fatally defective because of numerous deficiencies and therefore should have been dismissed. We hold that the petition to terminate parental rights was defective, although not fatally so, due to multiple deficiencies. We vacate the judgment of the Juvenile Court and remand for further proceedings consistent with our Opinion.