APPELLATE COURT OPINIONS

Appellant was convicted of "sexual misconduct" in New York in 1988, and was compelled to register as a sex offender in Tennessee in 2008. Upon his registration, the TBI classified appellant as a violent sexual offender, determining that his New York conviction was analogous to rape, a violent sexual offense. appellant contacted the TBI seeking removal from the registry, but his request was denied. He then filed an administrative appeal in the chancery court, but his classification as a violent sexual offender was upheld. We find that the elements of "sexual misconduct" under N.Y. Penal Law _ 130.20 are analogous to the elements of rape as codified in Tennessee Code Annotated section 39-13-503, and therefore, that appellant was properly classified as a violent sexual offender within the meaning of Tennessee Code Annotated section 40-39-202(28). The judgment of the chancery court is affirmed.

This is a termination of parental rights case. The Department of Children's Services ("DCS") obtained custody of the child at issue under the terms of a protective custody order entered shortly after the child's birth. The juvenile court cited the mother's history with DCS and her history of mental illness as the primary reasons supporting removal. DCS developed two permanency plans with the mother designed to address her mental illness and equip her with the parental skills necessary to care for the child. The mother, however, did not carry out her responsibilities under the plans, take her medication as prescribed, or consistently attend critical mental health ppointments. DCS accordingly petitioned to terminate the mother's parental rights on multiple grounds. After a hearing that the mother did not attend, the court terminated her parental rights on the grounds of abandonment by willful failure to provide financial support, substantial noncompliance with the responsibilities of the permanency plans, and persistence of the conditions that required the child's removal. The mother appeals, arguing that DCS did not make reasonable efforts to reunite her with the child and did not clearly and convincingly prove grounds for termination. We disagree and affirm the decision of the trial court.

This action arises from the alleged harassment of plaintiff by defendant, Harrah's Entertainment, Inc., while attempting to collect on a dishonored check. Plaintiff cashed a check for $500 at Harrah's Metropolis Casino in October 2001. The check was dishonored by plaintiff's bank on the first attempt, but cleared on the second attempt on December 8, 2001. Apparently neither party knew the check had cleared in December, and in January 2002, plaintiff claims he received threatening phone calls and letters to collect on the check. After receiving a threat of criminal prosecution, plaintiff and his wife drove to the casino and paid $525.00 to settle the debt; however, the casino could not produce the original check, only a photocopy. Upon further investigation, plaintiff discovered the check had cleared in December. Plaintiff then filed this action against Harrah's Entertainment, Inc. in the General Sessions Court for Davidson County. After a default judgment was entered, Harrah's filed a petition for writ of certoriari in the Circuit Court asserting that it was not the proper defendant and insufficient service of process. The circuit court granted the petition and set aside the default judgment. Plaintiff then filed an amended complaint asserting claims for negligence, gross negligence, outrageous conduct, and violation of the Fair Debt Collection Practices Act and the Tennessee Consumer Protection Act (TCPA). Following a bench trial, the court found that Harrah's was the proper defendant and ruled in favor of plaintiff on his claims for negligence, the TCPA, and intentional infliction of emotional distress, and awarded plaintiff damages of $5,962.95, which was trebled under the TCPA for a total award of $17,888.85. The court also awarded plaintiff his attorney's fees. Harrah's appeals claiming it was not the proper defendant and it was not properly served. It also challenges the findings of negligence, violation of the TCPA, intentional infliction of emotional distress, and the damages awarded. We have determined that Harrah's waived the issue of insufficient service of process and it is estopped to assert that it is not the proper defendant. We affirm the trial court's findings regarding negligence, violation of the TCPA, and intentional infliction of emotional distress. We find that the trial court erred by including the $5,962.95 award for emotional distress within the amount trebled under the TCPA. Therefore, we remand for the trial court to recalculate the damages awarded under the TCPA and for a determination of the reasonable and necessary attorney's fees plaintiff incurred on appeal.

I fully concur in the decision of the court. I believe it may be useful to further explain my position in this matter.

After being denied parole at her first parole hearing, Petitioner, an inmate incarcerated at the Tennessee Prison for Women, filed this Petition for Common Law Writ of Certiorari to challenge the decision by the Board of Probation and Parole to defer reconsideration of parol for six years. Finding that the deferral of parol eligibility for six years was not arbitrary and did not violate Tennessee law, the trial court dismissed Petitioner's Writ of Certiorari. We affirm.

This is an appeal from the grant of summary judgment in favor of Defendant/Appellee. Plaintiff/Appellant filed suit on the basis of Defendant/Appellee's alleged underpayment of fees earned pursuant to a contract between the parties. The trial court found that the contract was not ambiguous as to the applicable fee schedule and that Plaintiff/Appellant's interpretation was incorrect as a matter of law. Discerning no error, we affirm.

This action arises out of a vehicular accident in which the plaintiff sustained serious personal injury. A complaint was filed on behalf of the pro se plaintiff; however, the complaint was not signed by the plaintiff or a licensed attorney as required by Tenn. R. Civ. P. 11.01. The plaintiff subsequently retained counsel, but the plaintiff's attorney failed to make a written appearance until months later. Moreover, neither the attorney nor the plaintiff signed the complaint to cure the signature deficiency until after the case was dismissed and the statute of limitations had run. The plaintiff then filed a Rule 60.02 Motion for Relief from Judgment or Order based on Excusable Neglect. That motion was denied and this appeal followed. We have determined that the trial court did not abuse its discretion in denying the plaintiff's Rule 60.02 motion; therefore, we affirm.

Suit was filed for breach of contract. Plaintiff sought summary judgment, which was denied. A trial on the merits followed and the trial court ruled for the defendant. Plaintiff appeals, seeking review of the denial of summary judgment. Since there was a trial on the merits, we cannot review the denial of the summary judgment in this case. We affirm the trial court.

This appeal involves a dispute regarding unpaid spousal support from Social Security benefits. Mr. Fryer filed a petition against numerous defendants, seeking spousal support owed to him from his deceased wife's Social Security benefits. Serving in the capacity of conservator, the decedent's daughter received her mother's monthly Social Security benefits. After a bench trial, the court determined that the conservator was liable to Mr. Fryer for the unpaid spousal support and entered a judgment against the conservator and Travelers Casualty and Surety Bond. Additionally, the trial court, sua sponte, applied the statute of limitations to reduce the amount of the award to Mr. Fryer. This appeal ensued. We affirm in part, reverse in part, and remand.

This appeal involves in personam jurisdiction over an out-of-state defendant. Plaintiff, a Tennessee mortgage company, filed suit against the appellee herein, a Rhode Island mortgage company, after plaintiff allegedly suffered injury from a breach of contract on the part of appellee, stemming from plaintiff's purchase of a loan from appellee in the secondary mortgage market. In the posture of plaintiff, appellee filed a third-party complaint against the Massachusetts lawyer and firm, the appellants herein, who had underwritten the loan that appellee ultimately sold to the Tennessee plaintiff. The lawyer and firm filed a motion in the Tennessee court to dismiss the third-party complaint for lack of personal jurisdiction. The trial court found that Tennessee had personal jurisdiction over the third-party defendant law firm and lawyer, and denied their motion to dismiss. The lawyer and firm appeal. Finding that there are not sufficient contacts with Tennessee, we reverse the trial court's finding of personal jurisdiction, and remand for further proceedings.

The trial court granted the defendants' motion for summary judgment with respect to multiple claims brought by a prospective seller of real property against the prospective buyers. We have concluded that the trial court erred in granting summary judgment for the defendants on the plaintiff's unjust enrichment claim. In all other respects, we affirm the decision of the trial court.

I concur in the result reached by the majority opinion.

Plaintiff, while delivering pizza to customers in the By-Lo grocery store, slipped and fell. She filed suit against By-Lo, claiming negligence. By-Lo moved for summary judgment and after a hearing on the matter, the trial court entered summary judgment in favor of By-Lo and dismissed the suit. Plaintiff appeals. We affirm.

I concur with nearly all of the majority opinion, but disagree with one aspect of it.  However, I would reach the same result with different reasoning, and so file this separate concurrence.

This case involves a petition for access to certain documents pursuant to the Tennessee Public Records Act, Tenn. Code Ann. _ 10-7-101 et seq. The appellees asserted in the trial court, and on appeal, that the documents are confidential and privileged pursuant to the tax information and tax administration information exceptions found in Tenn. Code Ann. _ 67-1- 1702; pursuant to the "ECD exception" provided in Tenn. Code Ann. _ 4-3-730(c); and also pursuant to the Deliberative Process Privilege. The trial court denied the appellant's petition finding that the ECD exception applied and therefore, held that the documents at issue should remain confidential for five years. The trial court, however, found that the tax information and tax administration information exceptions did not apply and declined to apply a Deliberative Process Privilege. Appellant appealed the trial court's denial of his petition. On appeal, the appellees assert that the trial court erred in not finding the tax information and tax administration information exceptions applicable and in not applying the Deliberative Process Privilege. After reviewing the record, including the withheld documents, we find that the trial court erred in not finding that the tax information and tax administration information exceptions, as provided in Tenn. Code Ann. _ 67-1-1702, applied. Consequently, we affirm the trial court's denial of the appellant's petition but for different reasoning.

A young woman was thrown from a horse at a camp operated by the YMCA of Middle Tennessee, breaking her arm. Unbeknownst to the woman, the same horse had thrown two experienced riders ten days earlier. She filed a suit for negligence against the YMCA and the camp, alleging that their employees and volunteers knew the horse to be dangerous, but that they nonetheless failed to ascertain whether she was sufficiently experienced to handle such an animal. The defendants filed a motion for summary judgment, claiming that they were immune from liability under the provisions of the Equine Activities Act, Tenn. Code Ann. _ 44-20-101 et seq. The trial court granted the motion. We reverse.

This is a divorce action in which Husband appeals the valuation and division of marital property, and the trial court's awards of alimony, discretionary costs, and attorneys' fees to Wife. The trial court awarded 54 percent of the marital property to Wife and 46 percent to Husband, and awarded Wife alimony in futuro of $6,400 per month until July 2013, at which time the alimony payments will be reduced to $4,400 per month until either party's death or Wife's remarriage. The trial court also awarded Wife discretionary costs and attorneys' fees. We have modified the trial court's valuation of certain items of marital property, which caused a modest decrease in the value of marital property awarded to Husband; however, we affirm the trial court's division of the marital property because our modification of the value of certain property is relatively modest. We affirm the trial court's award of alimony to Wife and the award of attorneys' fees; however, we reverse the award of discretionary costs and remand for a new determination of the costs that may be awarded under Tenn. R. Civ. P. 54.04(2). We deny both parties' requests for the costs of their attorneys' fees incurred on this appeal.

Plaintiff appeals the summary dismissal of her medical malpractice complaint against Winifred Lassiter, M.D. Plaintiff alleges that Dr. Lassiter breached her duty of care by negligently performing a physical Fitness for Duty Examination. The trial court summarily dismissed the complaint finding that plaintiff failed to establish the elements of her claim or show a genuine issue of material fact. We affirm.

This is a divorce appeal involving parenting issues. The parties are the parents of three minor children. Prior to trial, the parties went through mediation and arrived at an agreement on many of their issues. The trial court then conducted a trial, taking testimony from the parties on a range of issues, including some that were the subject of the mediated agreement. The divorce decree and the parenting plan entered by the trial court adopted some of the parenting provisions in the mediated agreement, but not others. The father filed a motion to alter or amend this final decree, and a subsequent motion to enforce the parenting plan. The trial court modified the parenting plan in part and issued a final order. The father now appeals. We affirm, holding that the trial court did not abuse its discretion with respect to the number of parenting days allocated to the parties or the decision-making authority on the children's medical decisions.

In the apt words of the trial court, this case is a "complex business divorce case." The "divorced" and now adverse entities are Tennessee Rand, Inc. ("Rand"), and Automation Industrial Group, LLC ("Automation"), formerly Tennessee Rand Automation, LLC. Rand builds automated robotic equipment such as that used in the automobile industry. Automation was formed by the principals of Rand and some skilled collaborators for the purpose of doing the electrical and computer aspects of Rand's work. The entities fell out of favor with each other when the principals in Rand _ Randy Nunley and Richard Roach_ each a 50% shareholder in Rand, began to have conflicts. Nunley ended up as the sole owner of Rand and Roach acquired Nunley's interest in Automation. Rand initiated this litigation (1) to enjoin Automation from using the name, Tennessee Rand Automation, LLC," (2) to recover the value of assets that Rand had transferred to Automation, and (3) to recover payments of rent and taxes that Rand had made on buildings occupied by Automation. Rand also named as defendants numerous principals and officers of Automation, including Roach. Automation filed a counterclaim seeking an award against Rand for some $6,000,000 in unpaid labor and expenses. In the bench trial that followed, the counterclaim accounted for 20-plus days of the 25-day trial. By the time the trial court announced its decision in a written memorandum opinion, the only parties remaining in the case were Rand and Automation, Roach having previously been dismissed by Rand with prejudice. The trial court found that the names of the entities were confusingly similar and ordered Automation to change its name. This was accomplished and is not an issue on this appeal. The trial court found that Automation was unjustly enriched by Rand's contribution of assets to Automation in the amount of $500,000. Also, the trial court found that Automation had been unjustly enriched in the amount of $162,818.80 by Rand's payment of rent and taxes on buildings used by Automation. Despite the prior dismissal of Roach as a defendant, the trial court held Roach liable to Rand for the rent and tax payments made out of Rand's account. On Automation's counterclaim, the trial court initially awarded it $2,270,759.22 plus prejudgment interest. Both parties filed a motion to alter or amend. The trial court determined that Automation was guilty of fraud in the pursuit of its counterclaim and set aside that part of the judgment with the result that Automation recovered nothing on its counterclaim. Automation and Roach have appealed raising issues as to the counterclaim, the unjust enrichment award against Automation based upon the assets it received from Rand, and the unjust enrichment award against Automation and Roach based on the rent and tax payments. We affirm in part, reverse in part, and remand for further proceedings.