APPELLATE COURT OPINIONS

Primary residential parent appeals determination that the parties rotate the federal tax exemption for their minor child on a yearly basis. At the time the determination was made, the trial court had not determined the amount of child support to be paid by the alternate residential parent in accordance with the child support guidelines. We reverse the decision and remand for reconsideration of the award of the exemption.

This is a post-divorce case where both parties sought to modify the existing custody arrangement. At the time of the divorce, the parties agreed to equal co-parenting time. Upon the mother’s request for modification, the court designated her as the primary residential parent and awarded the father standard co-parenting time. The trial court also ordered the father to pay child support and certain outstanding expenses incurred by the mother toward the child’s care. Further, the mother was awarded her attorney fees. In the initial appeal, we found that a material change in circumstances had not been proven. Accordingly, we reversed the trial court’s modification of the original custody arrangement and reinstated the initial permanent parenting plan. We also vacated the trial court’s order as to child support, the payment by the father of expenses incurred by the mother, and the award of attorney fees to the mother, and remanded the case to the trial court for further proceedings. The matter was reheard, with the parties stipulating that there has been a material and substantial change in circumstances. The trial court again named the mother primary residential parent, with the father having co-parenting time every other weekend and on an alternating two-week schedule in the summer. The father appeals. We hold that the evidence does not preponderate against the trial court’s findings. The judgment of the trial court is affirmed.

This appeal involves subject matter jurisdiction over a petition for a writ of certiorari. The petitioner is an inmate in the custody of the Tennessee Department of Correction. The respondent, the Tennessee Board of Probation and Parole, denied the inmate’s request for parole. The inmate thereafter filed a petition for a writ of certiorari in the chancery court challenging the Board’s decision as illegal, arbitrary, and fraudulent. The chancery court dismissed the case for lack of subject matter jurisdiction because the inmate did not file a verified, notarized petition within the sixty-day jurisdictional time limit. We affirm.

The trial court determined that the insuror of a bar was liable under its commercial general liability policy and liquor liability policy for injuries to a bar patron. We have concluded that this occurrence is excluded under the assault and battery exclusion of the commercial general liability policy but is covered by the liquor liability policy.

The representative of this Estate filed a "Motion to Marshal Assets" alleging that a California resident held assets of the Estate and had refused to turn them over to the Estate. The Trial Court summarily ordered the California resident to surrender any assets held and turn them over to the Estate. Paul V. Peeples, the California resident, filed a Motion in Probate Court that the Court had no personal jurisdiction over him, along with his affidavit. His Motion was denied. He appealed to this Court and we hold that he was not subject to the jurisdiction of the Trial Court and reverse the orders against him and dismiss him as a party to the probate estate action.

The trial court terminated the parental rights of Mother and Father on the grounds of persistence of conditions and severe child abuse. We affirm.

On May 2, 2011, a show cause order was entered in this case, directing appellant to show cause why the appeal should not be dismissed for lack of jurisdiction. Appellant responded to the show cause order, but the argument in the response does not establish good cause for maintaining this case in this court. The Order entered by the Trial Judge on November 8, 2010, demonstrates that there are issues yet to be resolved in the Trial Court before a Tenn. R. App. P. 3, appeal will lie. Accordingly, the appeal is dismissed and the cost of the appeal is assessed to Timothy C. Russell.

This is a dispute over a real estate sales commission. The seller entered into a six-month exclusive listing agreement with a realty company. The agreement expired on August 21, 2007, one day before the eventual purchasers were shown the property. The realty company filed suit to recover a commission asserting it caused the property to be shown to the purchasers prior to August 21 and, in the alternative, the parties orally  and through their actions extended the listing agreement to August 30, 2007. The trial court concluded the realty company was not entitled to a commission under the plain language of the listing agreement because the property was not shown or submitted to the purchasers prior to August 21 and the parties did not extend the agreement to August 30. We affirm.

I concur in the majority opinion in this case, but write separately to emphasize that the Court’s interpretation of the term “shown” in the Agreement is limited to the facts and the proof in this case. Given the evolving importance in the real estate market of the realtor’s online presentation of property and the fact that properties are sometimes purchased by buyers who never view the property in person, with different proof, the term “shown” could be given a more expansive interpretation. However, with the proof submitted to the trial court and no contractual definition of the term “shown,” I agree with the majority’s result and reasoning.

Petitioner filed a petition for writ of certiorari alleging that the Tennessee Board of Probation and Parole acted arbitrarily and illegally in denying him parole. After reviewing the record, the chancery court concluded that the Board acted lawfully, and it dismissed the petition. Petitioner appeals, and we affirm.

The trial court determined that the insuror of a bar was liable under its commercial general liability policy and liquor liability policy for the death of a bar patron. We have concluded that this occurrence is excluded under the assault and battery exclusion of the commercial general liability policy but is covered by the liquor liability policy.

.Betty Saint Rogers (“Plaintiff”) sued Louisville Land Company and Joe V. Williams, III (“Defendants”) alleging claims under the Tennessee Consumer Protection Act, the Tennessee statutes governing cemeteries, outrageous conduct, and breach of contract, among other things. After a non-jury trial, the Trial Court entered its final judgment awarding Plaintiff a judgment of $250.00 for breach of contract, $45,000.00 for intentional infliction of emotional distress, $250,000.00 in punitive damages, $37,306.25 in attorney’s fees, and $556.42 in discretionary costs. Defendants appeal to this Court. We find and hold that Plaintiff did not prove intentional infliction of emotional distress, and we, therefore, reverse the judgments for intentional infliction of emotional  distress and punitive damages. We also find and hold that because Plaintiff abandoned her statutory claim, she was not entitled to an award of attorney’s fees pursuant to the statute, and we reverse the award of attorney’s fees. We further find and hold that Plaintiff did prove breach of contract, and we affirm the award of damages for breach of contract, and the remainder of the Trial Court’s final judgment.

The purchaser of historic property appeals the Metropolitan Historic Zoning Commission’s denial of a demolition permit based on economic hardship. The Commission’s denial was affirmed by the chancery court. We find that the Commission’s denial was not supported by material evidence and remand the case to the trial court with instructions to return the matter to the Commission for a new hearing.

This is an appeal from a divorce decree entered by the Circuit Court for Grundy County on March 14, 2011. Because the appellant 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.

Mother appeals trial court’s decision to change the parties’ nonmarital child’s surname to that of the father. Finding that the father failed to meet his burden of proving that a name change was in the child’s best interest, we reverse.

In this divorce case the father appeals the trial court’s naming of the mother as the primary residential parent, the calculation of the mother’s income for purposes of child support, and the trial court’s valuation and division of marital assets. We find the record supports the trial court’s decision to name the mother the primary residential parent. We further find the evidence does not preponderate against the trial court’s valuation and division of the parties’ marital assets. An equitable division of marital assets does not require an equal division between the parties, and the court did not abuse its discretion in this regard. The trial court did not err in calculating the parties’ incomes for child support purposes. We conclude the mother is entitled to an award of some of the attorney’s fees she incurred in this appeal. We affirm the trial court in all respects and remand the case for a determination of the amount of the mother’s attorney’s fees on appeal to be paid by the father.

Unsuccessful sheriff candidate sued to void the August 5, 2010 Lawrence County sheriff’s election based on the ineligibility of one of the five candidates. The trial court found the challenged candidate ineligible but declined to void the election. On appeal, we find the plaintiff guilty of gross laches in waiting to file suit to the prejudice of the defendants. Therefore, we reverse the trial court’s order.

This appeal involves a will contest in which the trial court found that a will executed in 2005 was the product of undue influence and, as a consequence, admitted a will executed by the testator in 2004 to probate. The proponent of the 2005 Will appeals the finding of undue influence as well as the dismissal of her claim for intentional infliction of emotional distress and award of attorney’s fees to Plaintiffs to be paid from the estate. We affirm the trial court in all respects.

This case stems from the suspension and later termination of David G. Young (“Young”) from his position as City Administrator for the City of LaFollette (“LaFollette”). Young filed a petition for writ of certiorari in the Chancery Court of Campbell County (“the Trial Court”). The Trial Court ruled in favor of Young and annulled the LaFollette proceedings that resulted in Young’s suspension and termination. The Trial Court also awarded Young, as the prevailing party, certain discretionary costs. LaFollette appeals. We hold that LaFollette did not act fraudulently, illegally, or arbitrarily in its termination of Young’s employment. We reverse.

The plaintiffs have appealed from an order upholding a settlement agreement between the plaintiffs and two of the defendants. Because the order appealed does not resolve the plaintiffs’ claims against all the defendants or the two defendants’ cross claim, we dismiss the appeal for lack of a final judgment.

This appeal is before the Court due to the failure of appellant to respond to a Show Cause Order in this Court as to why the appeal should not be dismissed as premature. Appellant failed to respond to this Show Cause Order, and we order this appeal dismissed as premature.

The trial court granted Defendant’s motion to set aside the judgment arising from a jury verdict in favor of Plaintiffs in this medical malpractice/wrongful death action. It also conditionally granted Defendant’s alternative motion for a new trial. In light of Abshure v. Methodist Healthcare, we vacate the judgment and remand for further proceedings.

Danny A. Stewart, a prisoner serving multiple sentences, some concurrently and some consecutively, filed a petition for certiorari naming as respondents the Commissioner of the Department of Correction and heads of various other agencies allegedly responsible for determining his eligibility for parole (collectively referred to as “TDOC”). He alleges TDOC is incorrectly calculating his eligibility for parole in that it is basing its calulation on the aggregate consecutive sentences of 42 years, whereas the correct method is to calculate eligibility on each separate sentence so that he would start serving his next consecutive sentence as an “in custody” parolee of his earliest consecutive sentence. The trial court dismissed the case based on Stewart’s failure “to exhaust his administrative remedies,” i.e., by seeking a “declaratory order from TDOC before filing the present action.” Stewart appeals. We vacate the order of dismissal and remand for further proceedings.

This petition was filed as a common law writ of certiorari in the circuit court of Davidson County to challenge the validity of the petitioner’s 1998 felony convictions in the criminal court of Davidson County. The circuit court dismissed the writ finding it lacked jurisdiction to consider the petition and that the claims pertain to actions governed by the Tennessee Rules of Appellate Procedure for which there is no relief under a common law writ of certiorari. We affirm.

Decedent executed a will in 1988 which could not be found upon her death. Decedent’s stepchildren sought to establish a copy of the 1988 will as Decedent’s last will and testament, but the trial court found that they had failed to rebut the presumption that the will had been destroyed and revoked. We find that Appellants failed to prove that Decedent did not revoke her will. Accordingly, we affirm the trial court’s involuntary dismissal of Appellants’ claim as well as its order that Decedent’s Estate be administered as an intestate estate.