APPELLATE COURT OPINIONS

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.

This is a post-divorce case where Father petitioned for modification of the child custody order based on alleged material change in circumstances. The Williamson County Circuit Court partially granted the petition finding a material change in circumstances, but that a change in custody from Mother to Father was in the best interest of only one of the children, leaving custody of the other child with Mother. Both Father and Mother assert error by the trial court. We affirm in part, reverse in part and remand this case for further proceedings.

A terminated Nashville Electric Service employee filed a complaint with the Human Rights Commission of the Metropolitan Government of Nashville and Davidson County. NES filed a declaratory judgment action claiming the Metropolitan Charter prevented the Human Rights Commission from investigating the complaint. The chancery court agreed with NES. We affirm.

This is a petition to modify alimony. In the parties’ divorce decree, the husband was ordered to pay the wife alimony in futuro based in part on the wife’s chronic, incurable health condition. About six years later, the husband filed this petition to reduce or terminate his alimony obligation, arguing that (1) the wife’s health condition had not declined as was originally anticipated, and (2) his income had decreased and the wife’s income had increased. The trial court denied the husband’s petition, concluding that a material change in circumstances had not occurred. The husband now appeals.  We affirm, concluding that the trial court did not err in finding that the husband did not prove a material change in circumstances and in denying his petition to modify his alimony obligation.

This appeal concerns a purchase option in a lease of a tract of land in Shelby County, Tennessee. Executed in 1950, the lease had an initial term of 50 years and six months. In 1953, the Lessee exercised its option to renew, allowing possession for an additional 50 years through 2050. In 2001, the Lessee attempted to exercise its option to purchase the leased property. Lessor then sought a declaratory judgment determining the validity of the purchase option, and if valid, the value to be paid for the Lessor’s interest in the property. The trial court found that the Lessee properly exercised the purchase option and that the value of the Lessor’s interest should be based upon the property as unencumbered by the remaining 50-year lease term. We affirm the trial court’s finding regarding the purchase option, but reverse its determination of the value of the Lessor's interest in the property.  Affirmed in part, reversed in part and remanded.

Petitioner had entered a plea of delinquent to firing a weapon within the city limits and illegal possession of a firearm in Juvenile Court, and subsequently sought relief in a Post-Conviction Petition in the Trial Court. The Trial Court dismissed the Petition on the grounds that petitioner was not in custody of the Department of Children’s Services at the time he filed the Petition for Relief. On appeal, we affirm.

In this appeal, we are asked to determine whether the trial court erred: (1) in modifying the Parties’ Final Decree of Divorce absent proof of a material change in circumstances affecting the best interest of the Parties’ child; (2) in making temporary modifications to the Final Decree of divorce absent clear and convincing proof that the child was being harmed or would be harmed in the situation that existed when the modifications were made; and (3) in finding that Father’s motives for relocating were vindictive, and in its concerns about Father’s willingness to comply with future court orders or to provide for the child. We affirm.

In this appeal, we are asked to determine whether the probate court erred when it granted Appellee’s motion for a directed verdict. The probate court found that Appellants, in their proof in chief, did not satisfactorily make out a prima facie case of the Antenuptial Agreement’s validity under the statutes and appellate opinions of Tennessee as Appellants failed to establish that there was a satisfactory disclosure of Mr. Roberts’ assets. On appeal, Appellants contend that the motion for a directed verdict was improperly granted as reasonable minds could conclude that the Antenuptial Agreement was presented to, read, and understood by Appellee at execution and that the Antenuptial Agreement constituted a full and fair disclosure as required by Tennessee law. Although Appellants have urged an incorrect standard of review, we find, after a de novo review of the evidence, that Appellants made out a prima facie case by a preponderance of the evidence. We reverse and remand to the probate court for further proceedings.

Plaintiff appeals the dismissal of her personal injury action as barred by the savings statute, Tenn. Code Ann. § 28-1-105. The trial court measured the period for refiling the action from the date of entry of an Order of Non-Suit which had been sent to the court by facsimile rather than from the date of entry of the hard copy of the order. We find that the trial court correctly held that the operative date for purposes of the Tennessee savings statute was the date of entry of the first order received and signed by the court, but that Plaintiff was not given notice of entry of the order, as his counsel had requested. Consequently, we reverse the trial court’s dismissal of this action and remand for further proceedings.

This appeal involves the enforcement of a foreign judgment. In 1997, the defendant pled nolo contendere to a criminal charge in a Texas court. As a part of his sentence, the defendant was ordered to pay restitution. The judgment of conviction listed the party to whom restitution should be paid. In 2005, the plaintiff corporation filed a lawsuit in Tennessee, seeking to enforce the Texas judgment. In his response, the defendant noted that the plaintiff corporation was not the party named in the Texas judgment to receive restitution from the defendant. The plaintiff filed a motion for summary judgment, asserting that the entity listed in the Texas judgment to receive restitution was the plaintiff’s “doing business as” name, and that the plaintiff was in fact the proper party to enforce the Texas judgment. A hearing on the defendant’s motion for summary judgment was held before expiration of the required thirty-day period after service of a motion for summary judgment. The trial court granted summary judgment in favor of the plaintiff corporation. The defendant now appeals. He argues that the trial court erred by holding the hearing on the plaintiff’s summary judgment motion before expiration of the T.R.C.P. 56.04 thirty-day period. He also argues that the trial court erred in permitting the plaintiff corporation to domesticate and enforce the foreign judgment. We affirm, finding that the defendant was not prejudiced by being deprived of the T.R.C.P. 56.04 thirty-day period between service of the motion for summary judgment and the hearing, and that summary judgment in favor of the plaintiff corporation was otherwise proper.

This is a Tenn. R. App. P. 9 appeal from the trial court’s denial of Appellant/Defendant’s motion to dismiss the Appellees/Plaintiffs’ complaint for legal malpractice. Appellant, a licensed attorney, represented the Appellees in a lawsuit following an automobile accident. Appellant failed to effect service of process on the party-defendant to that suit. Appellees retained other counsel and filed a legal malpractice lawsuit against Appellant. Appellees’ new counsel made a strategic decision to withhold service of process on Appellant pending the outcome of the underlying case. Appellant filed a motion to dismiss pursuant to Tenn. R. Civ. P. 4.01(3) for intentional delay of service of process. The trial court denied the motion to dismiss, and this appeal followed. We reverse and remand.

This appeal involves the termination of parental rights. The children were taken into protective custody soon after the birth of the youngest child, and were ultimately found to be dependent and neglected. The father was not appointed an attorney at this stage of the proceedings. Both the mother and father underwent psychological evaluations; both were found to be in the mild range of mental retardation and lacking the mental capacity to care for their children. DCS sought termination of their parental rights, alleging several grounds, including abandonment and mental incapacity. After a hearing, the lower court terminated the parental rights of both parents. The father appeals, arguing that DCS did not prove abandonment and mental incompetence by clear and convincing evidence. He also argues that the failure to appoint an attorney for him during the dependency and neglect proceedings was a denial of his right to due process. We affirm the trial court’s finding on the ground of mental incompetence. We also find that any violation of Father’s due process rights in relation to the dependency and neglect proceedings was remedied by procedural protections in place in the termination proceedings. Therefore, we affirm the termination of the father’s parental rights.

This appeal arises from a medical malpractice claim. The defendant physician performed an operation on the plaintiff patient. Complications occurred during the surgery; as a result, the patient required several more procedures and spent approximately three weeks in the hospital. The patient hired an attorney, who obtained an opinion letter from a physician expert, in which the expert opined that the defendant physician breached the standard of care during the patient’s initial operation. After securing the expert opinion, the patient filed this lawsuit against the defendant physician for medical malpractice. After the case had been pending for several years, the attorney for the defendant physician took the deposition of the patient’s expert. At the deposition, the patient’s expert changed his opinion, and testified that he believed that the defendant physician’s care of the patient was not below the standard of care. The next day, the defendant physician filed a motion for summary judgment. Several months later, the patient filed a motion under Tenn. R. Civ. P. 56.07 requesting a continuance of the summary judgment motion because he had been unable to engage another expert. The trial court denied the plaintiff’s motion for a continuance and granted summary judgment in favor of the defendant physician. The patient appeals. On appeal, the plaintiff argues that the trial court erred in denying his request to continue the motion for summary judgment. We affirm, finding no abuse of discretion in the trial court’s denial of the request for a continuance, and thus in the grant of summary judgment in the defendant’s favor.

This is a Title IV-D child support case. Appellee father executed a voluntary acknowledgment of paternity and a consent paternity order. After discovering that he was not the child’s biological father, Appellee sought relief from both his retroactive and future child support obligations. The trial court granted Appellee’s motion on the ground that he was not the biological father. The State of Tennessee seeks review of the trial court’s decision. We conclude that the trial court did not have authority to forgive Appellee’s child support arrears. Moreover, Appellee has neither alleged sufficiently specific facts to challenge the voluntary acknowledgment of paternity as required under Tenn. Code. Ann. § 24-7-113, nor has he satisfied the necessary requirements of Tenn. R. Civ. P.60.02 to gain relief from either the consent paternity order, or the order on child support entered in the chancery court. We reverse and remand.

This is a medical malpractice case. The trial court granted summary judgment in favor of Appellee doctor on grounds of insufficient service of process, and failure of Appellant patient to come forward with the required expert proof to refute the motion for summary judgment. Finding no error, we affirm.

This is an appeal from a grant of summary judgment in a personal injury case. The plaintiff, a diabetic, consumed a substantial amount of alcohol and then proceeded to drive south towards an intersection. At about the same time, the defendant was traveling east toward the same intersection. The plaintiff’s vehicle skidded, hit the curb, and then collided with a telephone pole. After the onecar accident, the plaintiff followed the defendant and his family to a nearby parking lot and accused the defendant of running the stop sign at the intersection and causing the plaintiff’s accident. After that, the police arrived and gave the plaintiff a breathalyzer test, which he failed. The plaintiff was later convicted of reckless driving and driving under the influence of an intoxicant in connection with the accident. At his criminal trial, the plaintiff admitted drinking alcohol and that his tires were in poor condition. The plaintiff nevertheless filed a negligence claim against the defendant. The defendant filed a motion for summary judgment. The trial court granted summary judgment to the defendant, finding that, based on the plaintiff diabetic’s intoxication and faulty tires, he was, as a matter of law, at least fifty percent at fault for his own injuries. The plaintiff appeals, arguing that the trial court erred in granting the defendant’s motion for summary judgment. We affirm.

This appeal concerns the enforceability of an arbitration agreement between a nursing home and one of its patients. Although the trial court found that the patient’s spouse had authority to sign the agreement under the terms of a power of attorney, the court concluded that the spouse did not knowingly and voluntarily waive the patient’s right to a jury trial. Therefore, the trial court denied the defendant’s motion to compel arbitration. After reviewing the entire record, we find that thefacts do not support the trial court’s conclusion. Accordingly, we reverse and remand.

An apartment complex owner filed a petition for writ of certiorari to challenge a decision of the Metro Board of Fire and Building Code Appeals denying the owner’s appeal of the fire marshal’s citation of the apartment complex for failure to install pull station alarms in certain areas. We agree with the chancellor’s conclusion that the Board did not exceed its jurisdiction, did not act illegally or arbitrarily, and based its decision upon material evidence.

In this declaratory judgment action, the Trial Court granted defendant summary judgment on the issue of priority of liens on real property. On the Petition to Set Up a Lost Instrument, the Trial Court following an evidentiary hearing, held that defendant was entitled to set up the lost instrument by a copy of its original. On appeal, we affirm the Trial Court’s decision in establishing the lost instrument, but vacate the summary judgment on the issue of the priority of liens and remand for trial on that issue.

This is an appeal from summary judgment granted in favor of defendant-lessee on an action to collect back rent and other expenses pursuant to a long-term commercial lease agreement with plaintiff-landlord. Lessee filed for Chapter 11 bankruptcy prior to the filing of the instant action. We have concluded that the commercial lease upon which landlord relies was deemed rejected by operation of law in the bankruptcy proceedings and that landlord is therefore barred from recovering the damages it seeks. Judgment of the chancery court is affirmed.

When the trial court entered its divorce decree, husband, who was in prison in another state, was representing himself. Husband asserts that the trial court erred because it lacked personal jurisdiction over him and lacked subject matter jurisdiction in this matter. We have concluded that husband waived the personal jurisdiction issue. However, because the trial court failed to rule on husband’s pending motions before adjudicating the divorce, we vacate and remand.

In this divorce action, Wife contends that the trial court erred in ordering the marital home sold; finding Husband’s down payment on the marital home to be separate property; failing to award her alimony; and failing to award her counsel fees. We affirm in part and reverse in part.

The issues in this case are whether operators of whitewater rafting ventures responsible for collecting a county privilege tax imposed upon consumers participating in commercial rafting ventures in Polk County have standing to challenge the tax and if so, whether the tax is invalid because it is preempted by federal law. Upon careful review of the record and applicable law, we conclude that the operators have standing to contest the legality of the privilege tax and that the tax is preempted by federal law and is, therefore, invalid.