APPELLATE COURT OPINIONS

A woman enrolled in a nursing program at Tennessee State University received a grade of D in one of her courses and was dropped from the program. She appealed to the provost of the university, who led her to believe that she had been, or would be, reinstated. She learned that this was not so when she returned to class and the instructor physically escorted her from the classroom. She brought suit against the university and four of its employees, including the provost, asserting claims of battery, conspiracy to commit battery, and intentional infliction of emotional distress. The trial court dismissed her suit for failure to state a claim upon which relief can be granted. See Tenn. R. Civ. P. 12.02(6). We affirm.

This appeal arises from a dependency and neglect proceeding finding the minor child, B.C., dependent and neglected under Tennessee Code Annotated 37-1-102(b)(12), and specifically on the ground of severe child abuse on the part of the Appellant/Mother. The trial court sustained the petition to adjudicate dependency and neglect filed by the Appellee Department of Children's Services. We affirm.

Appellants, a flooring company hired to install hardwood flooring at a home being built by Appellee, appeal the judgment of the trial court finding them liable for breach of contract and breach of warranty and awarding damages to Appellee. Appellants were hired to install hardwood flooring at a home being built by Appellee. After installation of the floors, problems developed; Appellants tried to correct the problems on numerous occasions to no avail. Appellee hired another subcontractor to refinish the hardwood flooring and to resolve the problems associated therewith. Appellee subsequently brought action against Appellant to recover amounts paid to subcontractor and the trial court awarded Appellee full measure of damages sought. We modify and affirm the judgment of the trial court.

Father appeals the trial court’s judgment terminating his parental rights. The trial court found that the father had committed severe child abuse, that the father failed to comply with the obligations and responsibilities outlined in the permanency plans, and that conditions which led to the removal of the children still persisted. We affirm.

Eric Kerney and wife, Cassandra Kerney, brought this suit to enjoin the operation of a beauty salon by defendant Susan Endres in the home owned by her and her husband, Gary Endres. The Kerneys and the Endreses are adjoining homeowners in the Plantation Manor Subdivision in Kingsport. The properties are subject to a restrictive covenant limiting their use to residential and forbidding commercial use. Following a bench trial, the court found the salon was merely incidental to the residential use and, as a consequence, did not violate the restriction. The court did, however, enjoin any expansion of the business. Plaintiffs appeal. We vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.

Millennium Taxi Service, L.L.C., filed suit against the Chattanooga Metropolitan Airport Authority (“CMAA”) seeking a declaration that CMAA regulations prohibiting unregistered taxicabs from picking up passengers curbside at the Chattanooga Metropolitan Airport were unconstitutional. Millennium further sought injunctive relief prohibiting enforcement of the challenged regulations. In its counterclaim, CMAA asserted that Millennium had repeatedly and flagrantly violated its regulations and requested that Millennium be permanently enjoined from engaging in any further violations. The court granted in part and denied in part summary judgment to CMAA upon finding that the challenged regulations had a rational basis and did not discriminate unreasonably against unregistered taxis. Millennium appeals. We affirm.

This matter is before us on remand from the Tennessee Supreme Court for consideration of  issues we pretermitted in our earlier opinion, which decision the High Court reversed. In our earlier judgment, Ellis v. Sprouse, E2006-01771-COA-R3-CV, 2007 WL 3121666 (Tenn. Ct. App, E.S., filed October 26, 20007), we held that plaintiff Mike Ellis (“the Farmer”) did not exercise his lease option on farmland owned by Kerry M. Sprouse 1 (“the Landlord”) by actions taken after the lease expired. As a result of that holding, we ruled that the portion of the judgment entered on a jury verdict awarding lost farming profits of $82,000 could not stand. We further held that the punitive damage award of $30,000 had to be retried since – at the time of our decision – it was based solely upon a compensatory damages award of $534 for the Landlord’s trespass – a trespass that was not contested on appeal. In Ellis v. Sprouse, 280 S.W.3d. 806 (2009), the High Court held that the Farmer had indeed exercised his option to renew the lease by continuing to hold over and making his lease payments after the initial term had expired. Accordingly, the Supreme Court reversed and remanded to this Court with “directions to consider and decide the issues that were pretermitted in [our] earlier opinion in this case.” We now have considered those issues, and, with respect to them, we affirm the judgment of the trial court. In light of the Supreme Court’s opinion and our opinion on remand, the trial court’s judgment is affirmed in toto.

The issue on appeal is whether Titan Insurance Company, which issued a “no-fault” automobile insurance policy to a Michigan resident, is entitled to be reimbursed for “personal protection insurance benefits” paid to its insureds for injuries sustained in a vehicular accident in  Tennessee. After the insureds entered into a substantial settlement agreement with the tortfeasors in this civil action, which compensated them in addition to the benefits paid by Titan under the no-fault policy, Titan intervened seeking reimbursement of the benefits it paid. Titan contended that it was entitled, pursuant to Michigan’s No-Fault Insurance Act to reimbursement of the benefits remitted. The insureds, relying on the “made whole doctrine,” contended they had not been made whole by the settlement with the tortfeasor; therefore, Titan was not entitled to reimbursement. The trial court held that the made whole doctrine applied and that the insureds had not been made whole by the settlement; therefore, Titan was not entitled to reimbursement in any amount. Under Michigan’s No-Fault Insurance Act, specifically Mich. Comp. Laws § 500.3116(2), (4), the right of the no-fault insurer to reimbursement of “economic” benefits paid for the benefit of its insureds is not dependent upon whether its insureds have been made whole by a settlement with the tortfeasor. Therefore, Titan’s right to reimbursement of economic benefits paid is not dependent on whether its insureds were “made whole.” Accordingly, the judgment of the trial court is reversed, and we remand with instructions for the trial court to determine the extent to which Titan is entitled to be reimbursed.

The appellant, a former police officer, filed a petition for writ of certiorari in the chancery court alleging that her due process rights were violated when the City of Bartlett terminated her employment. We affirm the trial court’s finding that the appellant was an employee-at-will, and therefore, she had no protected property interest in her job.

Petitioner seeking review of disciplinary action taken by warden of prison appeals the dismissal of his petition for writ of certiorari. Finding the trial court did not err, we affirm the dismissal of the petition.

Plaintiff is subject to excise and franchise taxes in the State of Tennessee. For the five year period at issue the Commissioner issued a variance pursuant to the Uniform Division of Income for Tax Purposes Act which has been adopted by Tennessee. The variance enabled the Commissioner to alter the taxing formula and increase the amount of revenue assessed to plaintiff. Plaintiff filed this action in Chancery Court and the Chancellor voided the variance. On appeal, we hold that the Commissioner properly exercised her discretion in issuing the variance. We reverse the Chancellor and remand.

*NOTE: Opinion filed pursuant to 09-15-2009 Order granting rehear, wherein original opinion filed 08-05-2009 was withdrawn.

This case arises out of a business agreement between the parties. Plaintiffs executed a note to purchase a company. The note contained a stock transfer restriction. Subsequently, Plaintiffs entered into a business agreement with Defendants. The subject of that agreement is disputed in this lawsuit, but Plaintiffs contend that Defendants purchased one-half of the company and executed an indemnity agreement to indemnify Plaintiffs for one-half of the note on the purchase of the company. After operating for nearly ten years, the company failed. At trial, Plaintiffs sought to enforce the indemnity agreement, and Defendants counterclaimed to recover $73,000.00 that they paid to Plaintiffs before they allegedly executed the contract. The trial court found in Plaintiffs’ favor. Defendants now appeal claiming that the trial court made several evidentiary errors, that the contract is unenforceable because it violated the statute of frauds, that parol evidence regarding the terms of the contract was inadmissible, and that the corporation cannot continue its existence and sell stock after dissolution. We reverse the trial court’s determination based on our finding that the contract is unenforceable as a matter of public policy.

The State of Tennessee ex rel. Mother filed a petition to modify the parties’ parenting plan. Finding the petition unfounded, the chancery court ordered Mother to pay Father’s attorney fees. However, upon learning that Mother could not be required to pay such fees, the chancery court assessed Father’s attorney fees against the State. We reverse.

Plaintiff, a patient care partner formerly employed by a hospital, brought suit against the hospital after her termination, alleging violations of the Tennessee Handicap Act, the Americans with Disabilities Act, the Tennessee Human Rights Act, the Family and Medical Leave Act and retaliatory discharge. The hospital filed a motion for summary judgment, which the trial court granted. Finding that the plaintiff did not create a genuine issue of material fact on essential elements of her claim of retaliatory discharge, we affirm the decision of the trial court.

This is a negligence case. Appellant brought suit against Appellee alleging that Appellee negligently destroyed a piece of evidence. This evidence was relevant to a separate lawsuit involving Appellant. The trial court granted summary judgment in favor of Appellee finding that Appellee did not owe a duty of care to Appellant. Finding no error, we affirm.

This is a breach of contract case. Purchaser/Appellant appeals the trial court’s finding that Purchaser/Appellant is in breach of the contract for sale of real property, and entry of judgment in favor of Seller/Appellee pursuant to the default provisions of the contract. Specifically, the trial court found Purchaser/Appellant in breach on grounds of late payments, failure to list Seller/Appellee as additional insured, and failure to provide proof of termite treatment. We modify and affirm on the grounds of failure to list Seller/Appellee as an additional insured and on failure to provide termite protection contract.

This case involves an arbitration agreement executed when a resident entered a nursing home. The resident’s daughter signed the arbitration agreement after telling nursing home employees that she had power of attorney. The daughter later sued the nursing home on behalf of her mother, and the nursing home sought to enforce the arbitration agreement. The daughter then claimed that she was not actually authorized to act as her mother’s attorney-in-fact. The trial court agreed and refused to enforce the arbitration agreement. On appeal, the nursing home contends that the daughter was authorized to sign the arbitration agreement on behalf of her mother due to a document which, according to the nursing home, effectively granted the daughter power of attorney. We affirm the trial court’s finding that the daughter lacked authority to execute the arbitration agreement on behalf of her mother.

Plaintiff filed this Governmental Tort Liability Act action against the Metropolitan Government of Nashville and Davidson County for injuries sustained during his arrest for driving under the influence following a vehicular accident. Plaintiff contends the police officers who arrested him were negligent in failing to recognize that he was not intoxicated but in diabetic shock, in failing to recognize that he could be restrained and handcuffed while standing, instead of in the prone position, and that he sustained a spiral, comminuted fracture of the humerus while an officer was pulling his right arm behind his back in an effort to cuff his hands. Following a bench trial, the trial court found the officers were negligent in the manner in which they assessed the threat posed by Plaintiff and were negligent in the decision to handcuff him in the prone position, which caused his injuries. The trial court, therefore, held the Metropolitan Government liable for the officers’ negligence, assessed 100% of the fault to the officers, and awarded Plaintiff $140,000 in damages. On appeal, the Metropolitan Government insists it is immune from liability because the officers’ actions were not the result of negligence but, it contends, the officers’ consciously and volitionally used an excessive amount of force that constituted the intentional tort of battery. Alternatively, the Government contends, if it is liable under a negligence theory, the trial court erred by apportioning no fault to Plaintiff. We have determined the evidence does not preponderate against the trial court’s findings that Plaintiff’s injuries resulted from the officers’ negligent acts and omissions, that the Metropolitan Government is liable for the officers’ negligence, that Plaintiff was not contributorily negligent, and that Plaintiff is entitled to recover damages in the amount of $140,000. Accordingly, we affirm the trial court in all respects.

Petitioners challenge a mosquito spraying plan adopted by a local board of health alleging that it violates an ordinance on the same subject. Dismissal by the trial court is affirmed since there is no conflict between the plan and ordinance and petitioners fail to allege a legally cognizable ground to challenge the plan since dissatisfaction with the plan is not sufficient.

Plaintiff filed suit against two defendants, and the trial court granted summary judgment in favor of one of the defendants. Plaintiff filed a notice of appeal to this Court. However, we find that this Court lacks jurisdiction to hear the appeal because the order appealed from is not a final judgment. Therefore, we dismiss the appeal and remand the case to the trial court.

This breach of contract action arises from the parties’ employment agreement. Employer agreed to pay Employee $10,000.00 to relocate to the city where Employer’s plant was located. Employee moved to the local area without his family and Employer paid him $10,000.00. After Employee terminated his employment, Employer sued to recover the $10,000.00 because it claims that Employee failed to satisfy the relocation requirement because he did not move his family with him to the local area. The trial court held that Employee satisfied the relocation requirement. We affirm.

This appeal involves the doctrine of res judicata. The plaintiff and the defendant had several business dealings, including loans, a marketing consultant agreement, and a lease agreement. The plaintiff filed a lawsuit against the defendant in general sessions court to recover monies allegedly owed under the marketing consultant agreement. The defendant failed to answer or appear. The general sessions court entered a default judgment in favor of the plaintiff. The plaintiff then filed the instant lawsuit against the same defendant in circuit court.

This case originated with a mechanic’s and materialman’s lien asserted by Plaintiff Metro Construction against commercial real property owned by Defendant/Cross Plaintiff Peabody Place Center in Memphis. It arises from improvements made by Metro Construction to a leasehold held by Defendant Sim Attractions. Sim Attractions abandoned the leasehold without compensating Metro Construction for the improvements, which included the installation of a several-ton race car simulator that remained in the abandoned leasehold. Defendant Fitraco claimed the simulator was its property under the terms of a lease agreement between Fitraco and Sim Attractions. It alternatively asserted a superior security interest. The trial court found that the simulator was personal property and determined that that the agreement between Sim Attractions and Fitraco was not a lease but an unperfected, disguised security agreement. The trial court attached the simulator to secure judgment in favor of Metro Construction. It also awarded Metro Construction discovery sanctions against Fitraco. The trial court awarded Peabody Place damages for lost rent. Fitraco appeals, asserting it had leased the simulator to Sim Attractions or, in the alternative, that it had properly perfected its security interest prior to judicial attachment by the trial court. It further asserts the damages claimed by Peabody Place were speculative. We reverse the judgment in favor of Metro Construction and affirm the judgment in favor of Peabody Place.

This appeal arises from the removal of a state court action to federal court. Once the federal court granted the defendants summary judgment regarding plaintiff’s federal claims, it dismissed plaintiff’s state law claims without prejudice. Approximately one year later, the plaintiff sought to present its state law claims in state court by filing a motion titled to be a “Motion to Reassume Jurisdiction” and refiling its entire cause of action in state court. The trial court dismissed both cases with prejudice because the statute of limitations had run. We affirm in part and reverse in part.