APPELLATE COURT OPINIONS

In this dispute concerning the use of real property located in a common interest community, we have concluded that summary judgment based on the amendments to the restrictive covenants was not appropriate. We also find that the new owner has the authority to act as developer.

This is a wrongful termination case. The plaintiff senior management employee of a public utility was passed over for the position of president of the utility. In the meantime, federal law enforcement authorities were investigating matters involving the utility, and federal officers interviewed the plaintiff employee. Subsequently, the new president of the utility eliminated the plaintiff’s job position and his employment was terminated. The plaintiff employee filed suit against the utility, alleging violation of Tennessee’s Public Protection Act, and against the new president of the utility, in his individual capacity, alleging tortious interference with his employment and conspiracy. The defendants filed a motion to dismiss for failure to state a claim. The trial court granted the motion, and the plaintiff employee appeals. We affirm.

I concur in the decision of the majority opinion to vacate so much of the trial court’s judgment as pertains to the issue of child support. I also concur in the majority’s decision to remand this case to the trial court with respect to the issue of child support. I write separately to express my view that the absence of the supporting worksheets in the record transmitted to us does not necessarily mean that the trial court failed to utilize these worksheets in arriving at the respective amounts of child support decreed in the court’s judgment. If such worksheets were utilized, and employed correctly, in arriving at the trial court’s child support decrees and if those worksheets are still available, there is no reason for the trial court to again make the necessary calculations. All that would be required is the filing of the worksheets “as part of the official record.” See Tenn. Comp. R. & Regs. ch. 1240-2-4-.04(1) (2008).

This appeal addresses an award of attorney fees to the attorney for a decedent’s estate for services rendered on appeal. The appellant administrator of the estate is also the estate’s attorney. The administrator/attorney’s final accounting was approved by the trial court, and two of the estate’s beneficiaries appealed. The appellate court affirmed the trial court’s approval of the final accounting. On remand, the administrator/attorney filed a motion for the approval of all attorney fees incurred in the administration of the estate, including attorney fees for services rendered in the first appeal. The trial court declined to approve the attorney fees incurred on appeal, holding that such fees may be awarded in the first instance only by the appellate court. The administrator/attorney now appeals. We reverse, concluding that attorney fees for the administrator/attorney’s services rendered on appeal constitute an administrative expense of the estate, and so the request for such fees must be made in the first instance in the trial court.

Wife filed a complaint seeking a divorce and child support from Husband. Husband filed no answer or counterclaim, but caused to be served upon Wife a summons directing Wife to defend a civil action against her. Husband then filed and served upon Wife a notice of a hearing for default divorce. The trial court entered a Final Decree of Absolute Divorce awarding Husband a divorce based on inappropriate marital conduct and entered Husband’s proposed parenting plan designating Husband as the primary residential parent. Nearly a year later Wife filed a Rule 60.02 motion seeking to have the Final Decree set aside on the grounds of (1) mistake, inadvertence or surprise, (2) fraud, misrepresentation, and misconduct, and (3) the judgment was void. The trial court denied Wife’s Rule 60.02 motion, and Wife appeals. Because the Final Decree of Divorce was not void and because of the circumstances surrounding Wife’s motion, we affirm the trial court.

James Antony Wilson, Sr. sued East Tennessee Human Resource Agency, Inc. (“ETHRA”) individually, and as next friend and Personal Representative of the Estate of Callie Irene Wilson, on behalf of himself and all wrongful death beneficiaries of Callie Irene Wilson, Deceased. This suit involves a fall and injuries suffered by Callie Irene Wilson (“Callie Wilson”) while ETHRA was in the process of transporting Callie Wilson to a dialysis appointment, and her death resulting from these injuries. After a trial, the Trial Court entered its order on July 29, 2010 finding and holding, inter alia, that the ETHRA driver acted appropriately and was not negligent. Mr. Wilson appeals to this Court. We find that the evidence in the record on appeal preponderates against the Trial Court’s finding that ETHRA’s employee, Mr. Clabo, was not negligent. We reverse, and remand this case to the Trial Court for a determination of comparative fault and damages.

This appeal involves an election contest. The appellant was an unsuccessful candidate for mayor in a municipal election. After the election, the appellant filed this lawsuit seeking declaratory and injunctive relief and contesting the election. The trial court granted summary judgment to the defendants. We affirm.

Father appeals trial court finding of substantial and material change of circumstances and resulting modifications to parenting plan. Finding that the record does not support failure of parties to attempt mediation of parenting plan issues prior to seeking court intervention, the judgment is vacated and petition to modify parenting plan dismissed.

In this post-divorce proceeding, the father of the parties’ child seeks to reduce his child support obligation due to a decrease in his income, and each parent alleges the other is in contempt for various reasons. The trial court denied Father’s petition to reduce child support upon finding that Father was voluntarily underemployed. The trial court granted Mother’s petition to hold Father in contempt for failing to comply with the parenting plan and denied Father’s petition against Mother. Mother was awarded one-half of her attorney fees. Father appealed. We reverse the finding that Father was voluntarily underemployed and remand with instructions for the trial court to determine whether a significant variance exists in Father’s child support obligation based on his actual income without additional imputed income. If a significant variance exists, the trial court is to set Father’s child support obligation pursuant to the Guidelines. We also reverse the court’s finding that Father was in contempt, because the trial court did not specify a provision of the parenting plan Father allegedly violated and the evidence is insufficient to establish that any violation was willful.

This appeal arises out of a suit to recover the balance on a past due account for an advertisement in a telephone directory. Defendant disputed the authenticity and admissibility of the documents submitted by plaintiff to establish an enforceable and valid contract. The trial court permitted the documents to be admitted and entered judgment for plaintiff. Defendant appeals, contending that the trial court erred in admitting the documents and in finding an enforceable contract. Finding no error, we affirm.

This is a post-divorce modification of child custody case. The trial court modified custody upon its finding that a material change in circumstances had occurred such that primary residential custody with the Appellant Mother was no longer in the child’s best interest. The court granted primary residential custody to the Appellee Father and Mother appeals. Discerning no error, we affirm.

This appeal involves a suit for dissolution of a real estate partnership. The defendant-appellee also filed several counterclaims against the plaintiff, who is an attorney. After a bench trial, the trial court dissolved the partnership and found that the defendant-appellant was liable for one-half of the partnership’s debts and expenses. The court dismissed the counterclaims. We affirm.

The mother of a nine year old boy filed a Rule 60 motion to vacate an “agreed order” that granted extensive visitation rights to the boy’s father. The order in question was signed by the father’s attorney and was presented to the trial judge without the mother’s signature and without the mother being present. Earlier, the mother had refused to sign the order, claiming that its terms deviated significantly from the agreement the parties actually reached. The trial court signed the document and subsequently denied the mother’s Rule 60 motion. We reverse the trial court.

The driver of a car suddenly passed out, causing her vehicle to strike a stopped pickup truck and seriously injure its driver. The pickup driver sued, and the defendant filed a motion for summary judgment, arguing that she was not liable for the plaintiff’s injuries because her sudden loss of consciousness was unforeseeable. Since it was undisputed that prior to the accident the defendant had not eaten during a full day of busy activity, the plaintiff argued that it was foreseeable that the she would lose consciousness. The trial court did not agree, and it granted the defendant’s motion. We affirm the trial court.

This appeal concerns the franchise tax liability of a corporation operating motion picture theaters in Tennessee. The Tennessee Department of Revenue assessed deficiencies against the corporation in 2001 and 2004 after audits revealed the corporation did not include the value of rented films within its minimum franchise tax base. The corporation filed separate lawsuits in chancery court disputing the assessments. After consolidating the cases, the chancery court granted summary judgment in favor of the corporation. We reverse the grant of summary judgment, grant partial summary judgment in favor of the Commissioner of Revenue, grant partial summary judgment in favor of the corporation, and remand.

This is a prisoner appeal from a disciplinary conviction. Because the prisoner did not file his petition for common law writ of certiorari within sixty days of the denial of his disciplinary appeal or demonstrate a timely filing of the petition pursuant to Rule 5.06 of the Tennessee Rules of Civil Procedure, we do not have subject matter jurisdiction to consider the issues presented. This appeal is dismissed.

This is a declaratory judgment action filed by an insurance company against its insured and the insured’s customer who allegedly was injured from a fall after stepping in a hole in the insured’s parking lot. The insurance company asked for a declaration that it was not obligated to defend and indemnify the insured against the customer’s personal injury claim. The insured filed a counterclaim asking for a declaration that the insurer was required to defend the claim and indemnify the insured against liability to the customer. On dueling motions for summary judgment, the trial court held that the insurance company was relieved of its obligation to defend and indemnify the insured because the insured waited five months before notifying the insurance company of the claim and that, as a consequence of the insured’s delay, the insurer was prejudiced. During that five months, the insured repaired cracks in the parking lot where the fall allegedly occurred. The insured appeals. We affirm.

This lawsuit arose out of two transfers of real property. Denzil Russ Partin (“Husband”) sued Mary Ava Partin (“Wife”) and Hazel Walden (“Mrs. Walden”), seeking declaratory relief that the two properties Wife transferred to Mrs. Walden, Wife’s mother, were held in trust for Husband, Wife, and their son, Courtney Partin. The Trial Court found that title to the real property at issue was vested in Mrs. Walden, that no resulting trust had been created, and, that, in any event, the statute of limitations had run on Husband’s action. Husband appeals. We hold that although the Trial Court erred in stating that the statute of limitations had run on Husband’s claim, the Trial Court did not err in declining to impose a resulting trust on the real property at issue. We affirm the judgment as modified.

This appeal arises out of a detainer action originally filed in general sessions court in which landlord of apartment was awarded possession of leased premises. Tenants filed a petition for writs of certiorari and supersedeas for de novo review to the circuit court, accompanied by an affidavit of indigency; the writs were issued. Landlord subsequently sought dismissal of both writs on several grounds. The court granted the motion, finding that the writ of supersedeas was improperly granted and, as a consequence, review by certiorari was not available as a substitute for appeal. Finding that the court erred in considering grounds for dismissal which were added by landlord within five days of the hearing on the motion, we reverse the judgment and remand for further proceedings.

Defendants in medical malpractice action appeal the denial of their motion to set aside order entered on plaintiff’s Tenn. R. Civ. P. 41.01 notice of voluntary dismissal without prejudice. Defendants contend that, because the certificate of good faith required by Tenn. Code Ann. § 29-26-122 was not filed with the complaint, dismissal should have been with prejudice. Finding that Tenn. Code Ann. § 29-26-122 does not limit plaintiff’s right to voluntarily dismiss an action without prejudice under the circumstances presented, we affirm the judgment of the trial court.

Following the death of her husband, a widow filed a petition in probate court and sought to aggregate the estate’s assets. The decedent had been in partnership with two brothers in a company that owned real estate and operated a nursery. The widow sought to partition the land and sell the partnership’s assets to obtain the estate’s one-third share of the partnership. The trial court ordered the land be sold at auction and the proceeds partitioned as the widow requested, and decreed certain expenses be paid from the sale before the proceeds were distributed to the estate and the two brothers. The brothers appealed the trial court’s decree affirming the payment of certain expenses before the proceeds were divided up among the partners, and claimed the estate should be liable for additional expenses the partnership incurred following the decedent’s death. However, the brothers failed to present evidence to the trial court in support of their arguments, with the result that we are unable to provide the brothers with any of the relief they seek. Accordingly, the trial court is affirmed in all respects.

An investor who lost money on stock transactions filed a claim against his stockbroker that was dismissed in arbitration. The investor then filed a complaint for legal malpractice against the attorney who had represented him in the arbitration proceeding. The attorney filed a motion for summary judgment accompanied by his expert affidavit, declaring that in his representation of the investor he had complied with all applicable standards of legal professional practice. The investor did not respond with an expert testimony contradicting the defendant. Following a series of delays, the trial court granted summary judgment to the defendant attorney after declining to grant another continuance. The former client filed a motion for relief from judgment, and the trial court denied the motion. After the attorney voluntarily dismissed his counterclaim, the judgment became final, and the investor appealed. We affirm.

This is a nursing home abuse case. The trial court denied Appellant nursing home’s motion to compel arbitration based upon an alternative dispute resolution agreement that was executed by Appellee, the niece of the patient being admitted to Appellants’ nursing facility. The patient had executed a power of attorney in favor of her niece and her niece’s husband, but only the niece had signed the admission papers on behalf of the patient. The trial court determined that the power of attorney created a joint agency, whereby the signatures of both the niece and her husband were required in order to bind the patient, as principal, to arbitration. Affirmed and remanded.

I respectfully disagree with the majority’s conclusion that the movant, attorney Martin Seiler, shifted the burden of persuasion to the plaintiff Joseph Barna for purposes of summary judgment. Admittedly, Mr. Barna did not refute the affidavit of Mr. Seiler, but I submit he did not have to because Mr. Barna was not obliged to come forward with countervailing evidence to create a dispute of fact. This is due to the fact that Mr. Seiler failed to provide a sufficient affidavit or other proof. Specifically, Mr. Seiler’s affidavit, which is the only evidence to support his motion for summary judgment, is insufficient because he failed to provide any specific material fact for this court to consider that pertains to the legal services he actually rendered. Mr. Seiler only informed us of the fact that he has many years of experience as a lawyer in the field of security litigation, which is a relevant and material fact, but by itself is insufficient to refute the specific allegations in the complaint as to what Mr. Seiler failed to do in his representation of Mr. Barna.

This appeal involves a claim of medical malpractice. Bennie Joe Poteet, II, individually and by and through his mother, Evelyn Poteet, as his conservator (collectively “the Plaintiffs”), sued Adam E. Fall, M.D. (“Dr. Fall”) and National Healthcare of Cleveland, formerly doing business as Cleveland Community Hospital (“the Hospital”) (collectively “the Defendants”) for medical malpractice after Mr. Poteet suffered a stroke while admitted at the Hospital which rendered him completely paralyzed from the nose down. Both parties moved for partial summary judgment on Mr. Poteet’s later added claim of negligence per se based on a bonus incentive plan allegedly maintained by the Hospital that indirectly set forth the reduction of MRIs ordered by Dr. Fall as a factor in his annual bonus determination. The trial court granted the Hospital’s dispositive motion on the issue, as well as the Hospital’s motion to dismiss on the bonus issue. Prior to trial, the court also granted the Defendants’ motions in limine to exclude any evidence of the bonus incentive plan offered to Dr. Fall, but denied the Defendants’ motion to exclude all testimony of one of the Plaintiffs’ neurology experts. At the close of the case, the trial court submitted a special verdict form to the jury which instructed that the question regarding the Hospital’s negligence based on insufficient neurology coverage was to be disregarded if neither Dr. Fall nor the treating nurses were found to be negligent. The jury subsequently returned a verdict favorable to the nurses and Dr. Fall, leaving the question on the adequacy of neurology coverage unaddressed. Judgment was entered on the jury’s findings. The Hospital thereafter filed a motion for directed verdict on the neurology coverage issue while the Plaintiffs moved for a new trial on multiple grounds. The trial court denied the Plaintiffs’ motion for new trial but granted the Hospital’s motion for directed verdict as well as the Defendants’ motions for discretionary costs. The Plaintiffs have appealed. We affirm.