APPELLATE COURT OPINIONS

This is a breach of contract case in which the plaintiff, reflected as “Realty Center New Homes Division, LLC” (“Realty Center”), a real estate broker, sued Dowlen Construction, LLC (“Dowlen”), a builder and developer, for unpaid commissions on sales of real estate. Realty Center signed the contracts at issue in a name slightly different from the name on its real estate broker’s license. The trial court held that Realty Center is entitled to commissions, prejudgment interest, and discretionary costs. Dowlen appeals. We hold, in accord with the general rule, that the misnomer in the contracts did not render those documents invalid or inoperative where there was evidence that Dowlen knew the identity of the real party and, in this circumstance, Dowlen was estopped to deny the existence of the entity with which it contracted. We further hold that the Tennessee Real Estate Broker License Act of 1973, Tenn. Code Ann. § 62-13-101 et seq. (“the Act”) does not expressly require a real estate broker to sign contracts in its licensed name, and we decline Dowlen’s invitation to construe the Act to find this requirement. We affirm the trial court’s judgment.

This is the second appeal in an annexation case involving two municipalities. The plaintiff smaller municipality passed an ordinance annexing adjoining property. The annexation was to be effective ninety days later. The annexed property also adjoined the defendant larger municipality. After the passage of the plaintiff’s annexation ordinance, but before its effective date, the defendant municipality passed an ordinance annexing the same property. The plaintiff then filed a declaratory judgment action, asking the court to find that the defendant’s annexation was invalid because it attempted to annex property that the plaintiff had already annexed. The trial court granted the defendant’s motion to dismiss and the plaintiff municipality appealed. In the first appeal, we reversed and the case was remanded to the trial court. The defendant then filed a second motion to dismiss, arguing, inter alia, that its greater population gave it annexation priority over the plaintiff under Tennessee Code Annotated § 6-51-110. The trial court denied the defendant’s motion, finding that the plaintiff’s annexation of the disputed property took place upon the passage of the ordinance after its final reading, not the effective date of the ordinance. Consequently, it found, the statute giving annexation priority to the larger municipality was not applicable because the defendant larger municipality did not initiate annexation proceedings until after the plaintiff had already annexed the property. The defendant now appeals. We reverse, finding that the effective date of the annexation, not the date of final passage, is the operative date by which a municipality with a larger population must initiate annexation proceedings in order to take advantage of its statutory priority.

In this appeal, we are asked to determine whether the trial judge erred by failing to exercise his role as thirteenth juror in denying Appellant’s motion for a new trial. In support of her argument, Appellant urges this Court to consider comments the trial judge made in ruling on Appellees’ motions for a directed verdict; the Statement of the Evidence, Response, Reply, and Surreply; and Appellees’ proposed order, in which the trial judge struck certain language. Appellees, however, contend that this material is either not properly reviewable by this Court or does not bear on the issue of whether the thirteenth juror standard was met. We reverse and remand for a new trial.

This is a divorce case terminating a 40 year marriage. Husband/Appellant appeals the trial court’s division of marital property, award of alimony in futuro, and award of attorney’s fees to Wife/Appellee. In addition, Husband/Appellant contends that the trial court erred in granting Wife/Appellee’s motions to re-open proof, and in denying Husband/Appellant’s motion for summary judgment. We affirm as modified herein.

This is a construction case. The plaintiff filed an action in general sessions court to collect money that he alleged that the defendants owed him under a construction contract. The general sessions court entered a judgment in the plaintiff’s favor, and the defendants appealed to the circuit court. The circuit court also entered a judgment in favor of the plaintiff. After the circuit court denied the defendants’ motion for a new trial, the defendants appealed. We affirm, finding that the evidence does not preponderate against the trial court’s findings.

This appeal involves the administration of an intestate estate. The respondent was appointed administratrix of her mother’s estate. She administered the estate with the help of an attorney. At the time of the decedent’s death, the decedent and the respondent owned a joint banking account with the right of survivorship. The respondent determined that the proceeds in the account passed directly to her upon the decedent’s death, and so she did not include it in the decedent’s estate. The respondent made a final distribution to the heirs of the estate, and the estate was closed. Subsequently, the petitioner, one of the decedent’s heirs and the respondent’s brother, filed a motion to reopen the estate. He alleged that the respondent and her attorney mismanaged the estate and violated his claimed right to a portion of the decedent’s joint checking account. The trial court reopened the estate and appointed a successor administrator. After a hearing, the trial court granted the petitioner’s claim to some additional distribution, but determined that the petitioner was not entitled to a portion of his mother’s joint checking account. The petitioner now appeals. Because all of the petitioner’s claims were not adjudicated by the trial court, we dismiss the appeal for lack of jurisdiction.

The trial court terminated the parental rights of Ethel B. (“Mother”) and David B. (“Father”) to their son, Derrick B. (the “Child”), who was 11 at the time of trial. The trial court found, by clear and convincing evidence, that several grounds for terminating Mother’s and Father’s parental rights existed and that termination is in the best interest of the Child. Mother and Father appeal, challenging the trial court’s finding that clear and convincing evidence of grounds to terminate were established at trial. Mother and Father also challenge the trial court’s finding that clear and convincing evidence was presented that termination of the parents’ rights is in the Child’s best interest. We affirm.

This is a will contest. The decedent had three children, two daughters who survived her and a son who predeceased her. Two months before the decedent’s death, she executed a will that left all of her property to her daughters and some of their family members, but left nothing to any of the six children of the predeceased son. After the decedent’s death, one of the daughters sought to probate the will. The deceased son’s children filed this petition to contest the will, arguing that it was procured through undue influence. After a jury trial, the jury found that the will had not been procured through undue influence and was, therefore, valid. The son’s children now appeal the jury verdict. We affirm, concluding that the evidence in the record supports the jury verdict.

This case addresses the allocation of funds received by a county from the Tennessee Valley Authority. The Tennessee Valley Authority is exempted from state taxation, but makes payments to the county in lieu of taxes. Historically, the county has earmarked these funds for education and has allocated a portion of them to the special school districts within the county. In 2003, however, the county decided to phase out the allocation of funds to the special school districts. Subsequently, the plaintiffs in this action, parents of children in a special school district located in the county, sued the county, arguing that the county’s decision to stop sending funds to the special school district violated several statutory provisions. The trial court granted summary judgment to the county. The plaintiffs now appeal. We affirm, concluding that the case is controlled by the decision in Oak Ridge City Schools v. Anderson County, 677 S.W.2d 468 (Tenn. Ct. App. 1984), and that the county is entitled to summary judgment.

In this appeal, we are asked to determine whether the chancery court erred in failing to allow Appellant to proceed with discovery after the State of Tennessee filed its Motion to Dismiss, in dismissing Appellant’s Complaint and Amended Complaint based solely on argument, without any proof by testimony or documentation, and in dismissing Appellant’s Complaint and Amended Complaint in regards to BellSouth which did not file a motion to dismiss or present evidence or documentation prior to the court’s dismissal. On appeal, Appellant contends that it was entitled to proceed with discovery before the court ruled on the State’s motions. Likewise, Appellant argues that the State should have been required to prove ownership of an easement right of way over Appellant’s property. Finally, Appellant contends that because BellSouth filed only a Notice of Appearance, Appellant’s claim against BellSouth should not have been dismissed. We affirm the trial court’s dismissal.

In this appeal, we are asked to determine whether Express Disposal had a legal, vested right to conduct its garbage collection business for residences in Berryhill prior to its annexation by the city of Memphis, such that Memphis’ exercise of its exclusive right to provide municipal services in Berryhill constituted a taking of Express Disposal’s property rights without just compensation in violation of Article I, section 21 of the Tennessee Constitution. We find that Memphis’ takeover of residential garbage collection in Berryhill did not amount to a constitutional taking, such that Express Disposal was entitled to compensation. Thus, we affirm the circuit court’s dismissal of Express Disposal’s claim for failure to state a claim upon which relief could be granted.

Memorandum Opinion - This is an appeal from an order of the trial court granting a motion for summary judgment filed by Lasalle Bank National Association (Lasalle Bank).  The appeal is dismissed. 

In this divorce proceeding, Wife appeals the trial court’s decision not to enforce the parties’ Marital Dissolution Agreement, the trial court’s distribution of the marital assets, and the trial court’s failure to sanction Husband for failure to comply with the discovery rules. After Wife filed for divorce, the parties executed a Martial Dissolution Agreement. The trial court, however, refused to enforce the Marital Dissolution Agreement because some of Husband’s property was damaged while within Wife’s exclusive control. The trial court admitted as evidence Wife’s attorney’s statement that he would not permit Wife to damage husband’s property. We affirm that attorney’s statement was properly admissible parol evidence and the trial court properly denied Wife’s motion to enforce the Martial Dissolution Agreement.

Wife also argues that the trial court failed to equitably distribute the marital assets and that the court erred by failing to sanction Husband for discovery violations. This Court affirms the trial court’s division of marital assets, as modified, and its order denying Wife’s request for sanctions.

This appeal arises from a dispute between an employee and employer over life insurance coverage under a group insurance policy. The facts of this case are relatively straightforward; the procedural history, however, is surprisingly complicated. Ultimately, we dismiss for lack of a final judgment and remand to the trial court.

This appeal concerns the value of property taken by the City of Memphis under its eminent domain power. The condemned land was subject to a leasehold interest held by the Appellant. The Appellant used the land as a site for a billboard, which it rented to advertisers. After taking possession of the land, the City compensated the owner, but not the Appellant. Appellant sought compensation for its property interest, and designated an expert witness to offer proof on its value. The City objected to the expert’s methodology, and asked the trial court to exclude his testimony. After an evidentiary hearing, the trial court ruled that the expert’s methodology was prohibited by this Court’s decision in State ex rel. Comm’r v. Teasley, 913 S.W.2d 175 (Tenn. Ct. App. 1995). Without the expert’s testimony, Appellant could not present proof on the value of its property interest and accordingly, the trial court entered a judgment for the City. Finding that the trial court erred when excluding Appellant’s expert, we reverse.

This appeal involves an order entered by an Alabama court in 1996 regarding child custody and support. The trial court modified the order to require the father to pay future and retroactive child support. We vacate the portion of the order dealing with modification, because the trial court lacked jurisdiction to modify the order, and remand for further proceedings.

This appeal involves a dismissal for lack of personal jurisdiction. The plaintiff transportation company has its principal place of business in Tennessee. It provided transportation services and financing to the defendant foreign corporation. The defendant eventually defaulted on payments due to the plaintiff. After negotiations by telephone, fax, and email, the parties agreed to a payment plan to bring the defendant’s account current. They executed a letter agreement confirming the arrangement. Subsequently, the Tennessee plaintiff realized that a substantial amount of the services it had rendered to the defendant foreign corporation were inadvertently not included in the letter agreement. The Tennessee plaintiff filed a lawsuit in Tennessee against the foreign corporation, seeking rescission or reformation of the agreement. The defendant foreign corporation filed a motion to dismiss for lack of personal jurisdiction. The trial court granted the motion to dismiss, finding that the defendant foreign corporation had not purposely availed itself of the privilege of doing business in Tennessee and did not have sufficient contacts with Tennessee to be subjected to jurisdiction in this state. We affirm, finding that the circumstances do not support the exercise of either general or specific jurisdiction

This is a divorce case. The parties were married in 2004, had one child in early 2005, and separated in late 2005. The wife filed a complaint for divorce soon after, and the husband counterclaimed for divorce. During the separation, the wife was the primary residential parent. The wife took various prescription medicines for several conditions, and had previously been addicted to pain medication. At the time of trial, the husband was cohabiting with a young woman whom he began dating when she was seventeen years old. During a substantial portion of the husband’s scheduled parenting time, the parties’ minor child was in the care of either the husband’s parents or the husband’s paramour. At trial, the wife testified as to the amount of her annual income, but proffered no documentary proof or other evidence. The trial court designated the wife as the primary residential parent, reduced the husband’s residential parenting time, and used the amount of income to which the wife testified to set the husband’s child support obligation. The husband appeals. He argues that the trial court erred in designating the wife as the primary residential parent, in reducing his residential parenting time, and in failing to impute to the wife the income level set forth in the child support guidelines. We affirm.

In this appeal, we are asked to determine whether the trial court erred in granting, and then failing to set aside, its Order of Judgment against Appellant. Appellant contends that he did not receive notice that his case was set for trial, as the court clerk failed to enter his address into the computer system, although it was provided in his Answer. In his Motion to Set Aside Default Judgment, Appellant sought relief pursuant to Tennessee Rule of Civil Procedure 60.01. However, in his brief, Appellant argues that the Judgment should be set aside pursuant to Tennessee Rules of Civil Procedure 55.02, 60.01, and 60.02. Because Appellant did not raise Rule 55.02 before the trial court, and because a default judgment was not issued against Appellant, Rule 55.02 relief is inappropriate. Moreover, although Appellant raised Rule 60.01 before the trial court, the error alleged by Appellant is not a “clerical error” within the meaning of Rule 60.01. Finally, Appellant did not seek Rule 60.02 relief by motion, as required by the Rule, nor did he raise Rule 60.02 before the trial court . Thus, we affirm the decision of the circuit court. Additionally, we decline to find Appellant’s appeal frivolous or to require Appellee to pay the costs associated with this appeal.

In this appeal, we are asked to determine whether the trial court erred in granting, and then failing to set aside, its Order of Judgment against Appellant. Appellant contends that he did not receive notice that his case was set for trial, as the court clerk failed to enter his address into the computer system, although it was provided in his Answer. In his Motion to Set Aside Default Judgment, Appellant sought relief pursuant to Tennessee Rule of Civil Procedure 60.01. However, in his brief, Appellant argues that the Judgment should be set aside pursuant to Tennessee Rules of Civil Procedure 55.02, 60.01, and 60.02. Because Appellant did not raise Rule 55.02 before the trial court, and because a default judgment was not issued against Appellant, Rule 55.02 relief is inappropriate. Moreover, although Appellant raised Rule 60.01 before the trial court, the error alleged by Appellant is not a “clerical error” within the meaning of Rule 60.01. Finally, Appellant did not seek Rule 60.02 relief by motion, as required by the Rule, nor did he raise Rule 60.02 before the trial court . Thus, we affirm the decision of the circuit court. Additionally, we decline to find Appellant’s appeal frivolous or to require Appellee to pay the costs associated with this appeal.

This appeal involves child support in the form of funds to be deposited into a savings account. The parties had two children and divorced. The mother was the primary residential parent. The father was ordered to pay some child support, below the guideline amount, directly to the mother. In addition, he was ordered to open and fund a savings account to be used to pay the children’s uninsured medical expenses. The order also stated that, once the children reached majority, any amounts left in the savings account were to be disbursed to the children. The father never opened or funded the savings account. The mother sought an award for the amounts that were supposed to have been deposited in the savings account. The trial court granted such an award in favor of the mother, and the father appeals. He argues that the amount that he was ordered to deposit into a savings account for uninsured medical expenses could not have been considered child support because the unused funds were to be disbursed to the children after they reached majority. He also argues that child support payments he made after the children reached majority should have been credited against any arrearage related to the savings account. We affirm, finding that the amounts ordered to have been placed in the savings account were part of the father’s child support obligation, and that the trial court did not err in declining to grant the father credit against the award based on child support paid after the children reached majority.

This dispute concerns the extent to which Appellant/Unnamed Defendant insurance carrier is liable for damages under Plaintiff/Claimant’s uninsured/underinsured motorist insurance coverage where Defendant’s motor vehicle insurance carrier became insolvent during the pendency of the appeal of the matter. The trial court held Appellant insurance carrier was liable for the judgment rendered in Plaintiff’s favor up to the amount of Plaintiff’s uninsured motorist coverage. We affirm.

A bystander in a parking lot was injured by a ricocheting bullet fired by a police officer. The officer and a fellow officer had been confronted in the parking lot by an armed assailant who fired his handgun at or towards the officers. The bystander, contending that one of the officers was negligent when he fired his weapon in self-defense, sued the Metropolitan Government of Nashville and Davidson County under the Tennessee Governmental Tort Liability Act. The trial judge dismissed the case on summary judgment. We find that the police officer acted reasonably under the circumstances confronting him, and we therefore affirm the trial judge.

Mother appeals the Circuit Court’s finding her in criminal contempt for violation of a court order and the Circuit Court’s total suspension of contact between her and the child. Finding the criminal contempt to be proper, we affirm. Finding the total suspension of mother’s visitation was not the least drastic measure available, we reverse and remand for the court to determine whether the prior visitation schedule should be revised.

Huey Strader, an inmate in the custody of the Tennessee Department of Corrections, filed a Petition for a Writ of Certiorari in Davidson County Chancery Court, seeking review of the decision of the Board of Probation and Paroles revoking his parole, alleging that the Board acted arbitrarily and illegally by relying on hearsay evidence and on a confidential witness statement, in violation of his constitutional rights to due process and rules applicable to parole revocation proceedings. The trial court denied relief. Finding no error, we affirm the decision of the Chancery Court.