APPELLATE COURT OPINIONS

This case involves the award of attorney's fees and costs against the Appellant City of Memphis for its alleged failure to comply with the appellee's document request, made under the Tennessee Public Records Act, Tenn. Code Ann. _10-7-501 et seq. The trial court awarded fees and costs against the city under Tenn. Code Ann. _ 10-7-505(g), which requires a finding of knowledge and willful failure to comply with the public records act. Based upon the record, we conclude that the trial court abused its discretion because: (1) the trial court made no specific finding concerning the city's alleged willful failure to comply, and (2) the record does not support a finding of willful failure to comply on the part of the city. Reversed.

In this action plaintiff asked the Court to declare that he had an interest in property which he inherited by will, and for a partition and sale of the land. The trial court determined that plaintiff was judicially estopped to claim an interest in the land and dismissed the action. On appeal, we affirm the Judgment of the trial court.

Purchasers of real estate brought suit against the sellers as well as against the appraiser, the sellers' real estate agent, the agent's managing broker and brokerage firm alleging fraudulent misrepresentation and breach of duty to disclose adverse facts related to the property purchased. Upon their motions for summary judgment, the appraiser, real estate agent, the agent's managing broker and brokerage firm were dismissed as defendants; the purchasers appeal the dismissal of the real estate agent, the managing broker and the brokerage firm. Finding no error, we affirm.

Mother appeals the trial court's change of custody of the parties' minor child to Father, challenging the court's best interest determination. We affirm.

This is a termination of parental rights case. The juvenile court terminated the parental rights of the father on the grounds of persistence of conditions, substantial noncompliance with the terms of the permanency plans, and abandonment by willful failure to support. The father appeals, arguing that the Department of Children's Services did not clearly and convincingly show that it made reasonable efforts to help him address his addiction to methamphetamine, clearly and convincingly prove grounds for termination, or clearly and convincingly demonstrate that termination of his parental rights was in the best interests of the children. Because DCS did not clearly and convincingly demonstrate that it made reasonable efforts to reunite the father with his children, we reverse.

In this action the School Board brought an action to dismiss plaintiff, a tenured teacher. Following a hearing, the Board of Education voted to suspend plaintiff without pay from November 27, 2007 to May 23, 2008, and required other sensitivity training and a probationary period. Plaintiff petitioned for a writ of certiorari to the Chancery Court, and the Chancellor affirmed the suspension on the grounds that plaintiff was guilty of conduct unbecoming a member of the teaching profession. On appeal we affirm the trial court's Judgment and remand with direction that the plaintiff be reinstated as a teacher with back pay from the time the appeal to Chancery Court ended.

This appeal concerns the return of seized property. In the course of a criminal investigation, the respondents seized personal property from the petitioner. After a year passed with no forfeiture proceeding, the petitioner filed a petition for the return of his seized property, pursuant to Tennessee Code Annotated _ 39-11-709. The respondents filed a motion to dismiss or for summary judgment, asserting that they no longer had possession of the property. The trial court granted the motion. The petitioner now appeals. We reverse and remand, finding that the petition was correctly filed in the county in which the property was seized, that it correctly named as the respondents the parties who seized the property, and that the respondents were not entitled to dismissal of the petition on the basis that the respondents had transferred possession of the property.

This appeal involves a dispute between an employee and his employer regarding whether the employer agreed to pay off the employee's student loans as part of his employment compensation package. Following a bench trial, the trial court found that no valid contract existed, and it dismissed the employee's complaint. The employee appeals. We affirm.

Claiborne Hauling, LLC, contracted with Wisteria Park, LLC, to perform the excavating and grading, including installation of storm sewers and sanitary sewers, for a residential subdivision Wisteria was developing. The contract calls for Claiborne Hauling to commence work on November 6, 2006, with a substantial completion date of April 5, 2007. The contract further provides that Claiborne Hauling will receive a bonus of $500 per day for early completion but will pay a $500 per day "penalty" if completion extends past May 31, 2007. Claiborne did not finish by May 31, 2007. Wisteria "fired" Claiborne Hauling during a heated exchange in August 2007, and confirmed termination of the contract in a letter from counsel. The ground stated for termination is failure to complete the project by May 31, 2007. However, Wisteria did not secure approval of its plans for construction of the sewer system until June 8, 2007. When Wisteria did not pay the invoices and change orders outstanding at the time of the termination, Claiborne Hauling first sent a "prompt pay notice" and then filed this action alleging breach of contract against Wisteria. Wisteria answered and filed a counterclaim asserting, among other things, that it was entitled to recover $500 per day from May 31, 2007, until substantial completion, as liquidated damages. After a bench trial, the court found that Wisteria was guilty of the first material breach and awarded Claiborne Hauling a judgment in the amount of $301,430.62, which included attorney fees under the Prompt Pay Act, Tenn. Code Ann. _ 66-34-602 (2004). Wisteria appeals. We affirm.

This is a medical malpractice case involving res ipsa loquitur. The defendant physician performed surgery on the plaintiff's husband. Sponges were used in the patient's abdomen during the procedure. Nurses in the operating room counted the sponges used in the surgery. The nurses erred in counting the sponges, and the defendant physician closed the surgical incision with a sponge remaining inside. The retained sponge was later discovered and removed in a second surgery. The plaintiff's husband subsequently died of causes unrelated to the retained sponge. The widow sued the physician and his employer for medical malpractice, asserting that the doctrine of res ipsa loquitur applied, as well as the common knowledge exception to the requirement of expert medical proof. The physician filed a motion for summary judgment, and the plaintiff filed a cross-motion for summary judgment as to liability. The defendant physician filed two medical expert affidavits, both of which stated that the defendant physician had complied with the applicable standard of care by relying on the nurses' sponge count. Initially, the plaintiff filed an expert affidavit stating that the defendant physician did not comply with the applicable standard of care, but later filed a notice stating that she intended to proceed to trial with no expert proof to support her medical malpractice claim. The trial court determined that neither res ipsa loquitur nor the common knowledge exception applied, and granted summary judgment in favor of the defendant physician. The plaintiff now appeals. We reverse the grant of summary judgment in favor of the defendant physician, and affirm the denial of the plaintiff's motion for partial summary judgment. We find that, under both the common knowledge exception and the doctrine of res ipsa loquitur, the plaintiff was not required to submit expert proof to rebut the physician's expert testimony that he was not negligent by relying on the nurses' sponge count. However, application of neither res ipsa loquitur nor the common knowledge exception results in a conclusive presumption of negligence by the defendant physician. Therefore, a fact issue as to the physician's negligence remains for trial.

This case arises from an alleged breach of an agreement to train horses belonging to the Appellant herein. The trial court found that the appellee training facility performed the agreed upon services, and that the appellant did not meet his burden to show either breach of contract or damages arising therefrom. Judgment was entered in favor of the appellee, and the appellant's case against appellee was dismissed with prejudice. Discerning no error, we affirm.

This is an appeal from the dismissal of an inmate's petition for common law writ of certiorari. The petition alleged, inter alia, that the Tennessee Board of Probation and Parole arbitrarily and illegally denied the inmate's request for parole. The Board filed a motion to dismiss the petition pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. Rather than issue the writ and order the filing of the certified record, the trial court dismissed the petition for failure to state a claim upon which relief could be granted. The inmate appealed. We affirm.

Plaintiff's action sought to reopen a divorce case which became final in 1982, to obtain part of her former husband's military pension. The Trial Court held the action was not filed within a reasonable time after the divorce and dismissed the action. On appeal, we affirm.

Defendant appeals the award of summary judgment to plaintiff in this action for specific performance of an option to purchase real property which plaintiff asserts is contained in a lease agreement. Finding a genuine issue of material fact exists regarding the authenticity of the option to purchase, we reverse and remand for further proceedings.

This lawsuit was filed by Charles Beard ("Plaintiff") against Jepco, Inc. ("Jepco"), and Mike Phillips (collectively "Defendants"). Plaintiff rented a storage unit from Jepco. Mike Phillips is a manager for Jepco. Plaintiff essentially claims that Jepco raised the rent on the storage unit he rented in violation of the rental agreement. Plaintiff initially filed this lawsuit in the Hamilton County General Session Court. He appealed the unfavorable sessions court judgment to the circuit court. Thereafter, defendants filed a properly supported motion for summary judgment. Plaintiff's response to that summary judgment motion failed to create any genuine issue of material fact and, accordingly, the trial court granted summary judgment to defendants. Plaintiff appeals, and we affirm.

This is a medical malpractice case. Plaintiff/Appellant appeals from the trial court's disqualification of her expert witness and grant of the defendant/appellee's motion for directed verdict. Finding that the appellant failed to show that her expert was familiar with the standard of care in a community similar to the defendant's community, we affirm the decision of the trial court.

I concur in the majority opinion, but concur separately only to elaborate on establishing the similarity of medical communities for the purpose of qualifying a medical expert witness.

Plaintiff's complaint was dismissed after she failed to respond to the defendant's motion to dismiss and failed to appear at the hearing on the motion. The trial court denied her subsequent motion to set aside the order of dismissal, finding that she had not presented sufficient evidence to demonstrate that she was not served with the motion to dismiss. We affirm.

This is an appeal from the denial of a Rule 60.02 motion to set aside a prior order of dismissal. The trial court dismissed an inmate's petition for writ of certiorari for failure to comply with Tennessee Code Annotated sections 41-21-805 and -807, which govern inmate lawsuits. Nearly two years later, the inmate filed a Rule 60.02 motion to set aside the order of dismissal. The trial court denied the motion and the inmate appealed. Because the trial court did not abuse its discretion in denying the requested relief, its ruling is affirmed.

Father sought to become the primary residential parent due to the failure of Mother to comply with the parenting plan. The trial court designated Father as the primary residential parent. Mother appealed. We affirm.

Plaintiff appeals the trial court's award of summary judgment to Defendants. We dismiss the appeal for the failure to appeal a final judgment.

Randall C. Trent ("Plaintiff") was incarcerated at the Sullivan County jail for several months before being transferred to the Tennessee Department of Correction. Plaintiff claims that while incarcerated at the Sullivan County jail, he was denied proper medical care and retaliated against for complaining about the lack of proper medical care. Plaintiff initially brought numerous claims against various defendants. This appeal involves the dismissal of plaintiff's claims brought pursuant to 42 U.S.C. _ 1983, 42 U.S.C. _ 1985, and 42 U.S.C._ 12101, also known as the Americans with Disabilities Act. These various federal claims were dismissed by the trial court after finding that the applicable one-year statute of limitations had expired by the time the complaint was filed. On appeal, plaintiff claims that the "continuing violation" doctrine applies to save his untimely claims. We affirm the judgment of the trial court.

This is an appeal of a criminal contempt hearing in which the appellant father was found to be in contempt for non-payment of child support pursuant to court order. Upon review of the record, we vacate.

The mother of a minor child appeals her conviction of eighteen counts of criminal contempt for willful failure to pay child support. She contends the evidence was insufficient to sustain the convictions for criminal contempt. We agree and reverse the finding of the trial court.

The Nashville Metropolitan Council approved a Planned Unit Development (PUD) for a large residential subdivision to be constructed by Habitat for Humanity. The Metropolitan Planning Commission subsequently approved a site plan for the first phase of the subdivision, over the objections of neighboring landowners, who then challenged the approval by filing a petition for writ certiorari in the Chancery Court. The petitioners also mounted a challenge against the entire project based on the ground that the PUD had become"inactive" because construction had not yet begun, even though six years had passed since it was initially approved. The Planning Commission rejected the challenge, finding that the project was still "active" and, therefore, that the PUD did not have to go through the process of approval for a second time. The neighbors then filed a second petition for writ of certiorari. The trial court consolidated the two petitions and heard arguments that the procedures the Planning Commission followed in reaching its decisions violated the petitioners' constitutional rights. The court dismissed both petitions, ruling that the Planning Commission had not acted illegally, arbitrarily or fraudulently, and that the petitioners' constitutional rights were not violated. We affirm.