APPELLATE COURT OPINIONS

This litigation arises out of the renovation of and addition to a 100-year old house. While suit was pending, the plaintiff, Billy S. Walls dba B.S. Walls Construction (“Contractor”) failed to respond to interrogatories with respect to requested information regarding experts. He likewise did not respond to a motion to compel responses to the interrogatories and an order of the court compelling responses. As a consequence of Contractor’s inaction, the trial court refused to allow his two expert witnesses to testify. At trial, Contractor objected to the testimony of an expert tendered by the defendants, Jeffrey S. Conner and Tresia Conner (“Homeowners”). The trial court overruled the objection. Contractor argues in this court that the trial court abused its discretion when it refused to allow his experts to testify and when it held that Homeowners’ expert was qualified to testify. We affirm.

This lawsuit was filed by Jacqueline and Jonathan Huls (“Petitioners”) seeking court-ordered visitation with their grandson pursuant to Tennessee’s Grandparent Visitation Act, Tenn. Code Ann. § 36-6-306. The lawsuit was filed against Jason Alford (“Father”) and Leeanna Alford (“Mother”), the biological parents of Petitioners’ grandson. At trial, both parents testified that they had not and still did not oppose visitation between Petitioners and Petitioners’ grandson. Although comments made by the Trial Court support an implicit finding by the Trial Court that the parents did not oppose visitation, there was no express determination made on this particular issue. Following the trial, the Trial Court entered an order granting the petition and establishing a visitation schedule for Petitioners. We conclude that the testimony at trial preponderates in favor of a finding that the parents did not and do not oppose visitation. We further hold that in order for Tenn. Code Ann. § 36-6-306 to be implicated, visitation by grandparents must be “opposed by the custodial parent or parents.” Tenn. Code Ann. § 36-6-306(a). Because we find that the parents do not oppose visitation, the statute is not implicated, and the Trial Court erred by not dismissing this case. We, therefore, reverse the judgment of the Trial Court, and this case is dismissed.

This is a child support case. The trial court determined Respondent Father had the ability to earn minimum wage and entered a temporary order of support ordering him to pay child support based upon a minimum wage income. Father filed a motion to set aside the order and failed to pay the ordered support. The State, acting ex rel. Mother, filed a petition for contempt, a petition for retroactive child support, and a petition to set permanent child support. Following a hearing, the trial court denied Father’s motion to set aside the temporary support order, affirmed the finding that Father was capable of earning minimum wage, and held Father in criminal contempt. The trial court also ordered Father to pay retroactive child support. The trial court stayed its order sentencing Father to jail for criminal contempt pending appeal to this Court. Father appeals the order finding him in contempt, the denial of his motion to set aside the temporary order of support, and the order of retroactive child support. We reverse the order on contempt and dismiss the remainder of Father’s appeal for failure to appeal a final judgment.

A former sheriff’s deputy appeals his termination. The Shelby County Civil Service Merit Board upheld the termination, and upon review, the chancery court found substantial and material evidence to support the decision. We affirm.

This appeal involves the sale of an asset of a testamentary trust. The plaintiff/appellant is a beneficiary of the trust, and the defendant/appellee bank is trustee of the trust. The trust originally had a promissory note as one of its assets. In 1981, the trust sold the note at a discount. In 1987, the bank submitted an accounting and sought approval for the sale of the note. The appellant’s father, also a beneficiary of the trust, challenged the bank’s petition. In 1989, the chancery court issued an order approving the sale of the promissory note. The order was signed by the appellant and was not appealed. In 2006, the appellant beneficiary filed a complaint in the trial court below, challenging the sale of the note. The trial court granted summary judgment in favor of the bank, finding that the appellant’s claims were barred under the doctrine of res judicata and collateral estoppel, and that they were time-barred as well. In addition, the trial court awarded Rule 11 sanctions against the beneficiary. The beneficiary appeals. We affirm, finding that the beneficiary’s claims are barred by the statute of limitations, and that Rule 11 sanctions are warranted.

This is a nursing home negligence case involving an arbitration agreement. The son of the decedent signed documents admitting his mother to the defendant nursing home. The admission documents included an arbitration agreement. After his mother’s death, the son filed a lawsuit on behalf of her estate against the defendant nursing home, alleging, inter alia, neglect and abuse. The nursing home filed a motion to dismiss the lawsuit and compel arbitration under the agreement. The trial court granted the motion, finding that the agreement was not unconscionable and that the son had apparent authority to sign the agreement in view of his mother’s incompetence and the exigent circumstances. The mother’s estate appeals. We find on appeal that the son was not his mother’s agent and did not have apparent authority to sign on her behalf. Applying the Tennessee Health Care Decisions Act, we find further that the son was not his mother’s surrogate, and that he did not have  authority to bind her to the arbitration agreement. Therefore, we reverse the order compelling arbitration.

This appeal involves tort and breach of contract claims. The plaintiffs are franchisees of a restaurant chain. They filed this lawsuit against an individual employee of the franchise organization as well as other corporate defendants. The complaint set forth many theories of recovery, but asserted only an extortion claim against the individual employee. The trial court dismissed the extortion claim and, consequently, dismissed the employee from the lawsuit. The plaintiffs’ claims against the corporate defendants remained pending. The plaintiffs filed this appeal of the trial court’s order dismissing the claim against the individual employee. The plaintiffs were not given permission to file an interlocutory appeal, and the order from which the plaintiffs appeal was not designated as final under Tenn. R. Civ. P. 54.02. Thus, we find that the order from which the plaintiffs appeal was not a final order, and therefore dismiss the appeal.

Plaintiffs brought this action against the Tennessee Peace Officers Standards Commission, the Tennessee Attorney General, Knox County Mayor and Timothy Hutchison seeking declaratory judgment that Hutchison was disqualified to serve as a deputy sheriff of Knox County. Responding to a Motion to Dismiss, the Chancellor dismissed the action and, on appeal, we affirm.

This appeal concerns the enforceability of an arbitration agreement between a nursing home and one of its patients. The trial court found that the agreement was unenforceable because the nursing home’s agent gave an insufficient explanation of the agreement’s meaning to the patient’s daughter. We do not reach the merits of the trial court’s conclusion. Instead, we find that the patient’s daughter did not have the authority to sign the agreement on her father’s behalf. We, therefore, affirm the trial court’s denial of the defendant’s motion to compel arbitration.

This appeal arises from a divorce action. The trial court found both parties guilty of inappropriate conduct and declared them divorced pursuant to Tennessee Code Annotated § 36-4-129. The trial court awarded 55 percent of the marital property to Wife and 45 percent to Husband; ordered the marital residence sold and awarded the equity to Wife; awarded Wife alimony in futuro in the amount of $4,000 per month; ordered Husband to pay for Wife’s COBRA benefits and uninsured medical costs exceeding $45.00 until the benefits expire; and ordered each party to pay their own attorney’s fees. Wife appeals. We modify the trial court’s order with respect to life insurance and alimony as provided herein. The trial court’s order is otherwise affirmed. This matter is remanded for further proceedings, if necessary, and entry of an order consistent with this Opinion.

This is the third appeal of this property case involving the ownership of three parcels of real property held by tenants-in-common. We dismissed the first two appeals for lack of jurisdiction, finding that the trial court's order did not constitute a final judgment. Plaintiffs/Appellants claim ownership of the disputed tract by three modes: (1) title by prescription, (2) title by adverse possession, and (3) title by payment of property taxes pursuant to Tenn. Code Ann. §§ 28-2-109 and 29-2-110. Finding that Plaintiffs/Appellants have failed to meet their burden to prove ownership based upon any of the three theories, we affirm.

This appeal arises from the trial court’s denial of Defendant/Appellant’s motion to compel arbitration under an arbitration agreement contained in a nursing home admissions agreement. This is a direct appeal pursuant to Tennessee Code Annotated § 29-5-319(a)(1). We vacate and remand for further proceedings with respect to the issue of authority.

This appeal is from a jury verdict against an automobile manufacturer for compensatory and punitive damages. The Circuit Court of Shelby County entered judgments against the defendant for $3,450,000 in compensatory and $48,778,000 in punitive damages for the death of the driver, and $1,100,000 in compensatory damages for the death of the front-seat passenger. The manufacturer on appeal asks this Court to reverse the judgment of liability or to grant a new trial on all issues. In the alternative, the defendant argues that the money judgments are excessive. We affirm the findings of liability for compensatory and punitive damages and we affirm the amounts awarded for compensatory damages. We also find that the amount of punitive damages awarded must be reduced to $13,800,000 to comply with the due process requirements of the United States Constitution.

This appeal involves a dispute over a real estate sales commission and a third party claim for rent due under a commercial lease agreement. The tenant and the owners of the rental property entered into a listing agreement whereby the tenant’s real estate company would broker the sale of the leased property on behalf of the owners. The property in question was two commercial lots. The tenant was able to procure a sale of one of the commercial lots, and upon close of the sale, tenant stopped paying rent to the owners on the remaining commercial lot. Tenant then brought an offer for the sale of the second lot, which the owners rejected and made a counter-offer. No deal was reached, and the owners terminated the tenant’s agency authority. Through another real estate agency, the owners sold the remaining lot. The tenant’s real estate company brought suit, seeking to collect the real estate commission. The owners sought the rent due on the unsold lot for the time remaining under the lease. The trial court found that the tenant was not entitled to a real estate commission, and that the tenant owed the owners rent, but reduced the amount due to the owner’s failure to  mitigate damages. We affirm in part and reverse in part.

Mother appeals the juvenile court’s decision to terminate her parental rights. The minor child has been in the custody of the Department of Children’s Services since he was five months old, as the juvenile court found that he was dependent and neglected. Following approximately sixteen months of services and a failed trial home visit, DCS filed a petition to terminate Mother’s parental rights. The trial court terminated Mother’s parental rights on the ground of “persistence of conditions.” We affirm.

This is a negligence action. Appellees filed a complaint against Appellant alleging that its employee negligently drove a company truck into the back of Appellees’ car. Appellant was granted partial summary judgment because a latent mechanical problem caused its truck’s brakes to fail. The trial court then held a bench trial to determine if the employee’s negligent driving was also a cause of the accident. Although it made no findings of fact, the trial court concluded that the employee was negligent, and awarded Appellee, Harry Jacocks $15,350 in damages. Appellant appeals, asserting that the evidence presented does not support the trial court’s judgment. Because we agree that the evidence was insufficient, we reverse the judgment of the trial court.

Erica Lin (“Plaintiff”) began working as a teacher for The Metropolitan Government of Nashville and Davidson County (“Defendant”) in 2002. During her employment, Plaintiff complained of actions which she believed to be discriminatory based on her race and alleged disability. Defendant sent Plaintiff a letter on April 1, 2006, informing her that her employment was being terminated effective May 26, 2006. Plaintiff eventually abandoned her race and disability discrimination claims and proceeded only on a claim for retaliatory discharge. Defendant filed a motion for summary judgment claiming the undisputed material facts established that Plaintiff was terminated for poor work performance. The Trial Court granted the motion for summary judgment, and Plaintiff appeals. We conclude that Defendant’s motion for summary judgment neither negated an essential element of Plaintiff’s claim nor conclusively established an affirmative defense. Therefore, we vacate the order granting Defendant’s motion for summary judgment and remand for further proceedings.

This is the second appearance of the dispute between these parties in this Court. The current appeal arises from the trial court’s imposition of Rule 11 sanctions against Plaintiff/Appellant Kim Brown (Mr. Brown). Upon motion by Defendant/Appellee William Shappley, M.D. (Dr. Shappley), the trial court dismissed Mr. Brown’s breach of contract action and awarded Dr. Shappley attorney’s fees in the amount of $500 pursuant to Rule 11 of the Tennessee Rules of Civil Procedure. We affirm dismissal of Mr. Brown’s action under the doctrine of res judicata, but reverse the imposition of Rule 11 sanctions and the award of attorney’s fees.

The buyers of a home in Nashville sued the sellers for misrepresentation, fraud, and breach of contract. The proof showed the sellers did not acquire the proper permits and inspections required by the applicable building codes and that work on the plumbing, the electrical system, and the heating and air conditioning system was not performed in accordance with the codes. The sellers did not disclose the lack of permits and improper work on the statutorily required disclosure form. The chancellor found for the buyers. The sellers appealed. We affirm.

This case involves the Fifth Amendment privilege against self-incrimination. The trial court entered a pre-trial order requiring the defendant to produce various personal and business records and to compile a list of the assets belonging to the defendant and his businesses. The defendant failed to comply with or object to the order. At a contempt hearing, the defendant’s attorney assured the chancellor that the defendant would comply with the order if the contempt hearing was continued for two more weeks, and the chancellor continued the matter. At the next hearing, the defendant’s attorney stated that his client would not be complying with the order based on Fifth Amendment grounds. The chancellor held the defendant in civil contempt and ordered the defendant’s attorney to pay the opposing party’s attorneys’ fees. The defendant and his attorney appeal. We affirm in part and reverse in part and remand for further proceedings.

This is an appeal from a Final Judgment issued by the Chancellor in respect to a Petition for Registration and Modification of Foreign Decree in the Chancery Court of Blount County, Tennessee. The Trial Court ordered the registration of the foreign Judgment, but denied the request for modification. On appeal, we affirm.

Executrix appeals the trial court’s interpretation of language from decedent’s Last Will and Testament. Decedent was a well-known author of science fiction literature and the rights to that literature comprise a significant portion of her estate. Beneficiary under Will sought construction specifically of his bequest granting “the royalties from all posthumous publication of any of my works[.]” The trial court held there was a patent ambiguity in the Will precluding extrinsic evidence of intent. Executrix objected and made an offer of proof of decedent’s intended use and meaning of the terms “copyright,” “royalties,” and “posthumous publication.” The court found decedent used “copyright” and “royalties” interchangeably and intended Beneficiary to have both the copyrights and posthumous royalties from all of her works.

Based on the language in the four corners of the Will, we agree there was an ambiguity in the Will but have determined it was latent, rather than patent, and we reverse the trial court on itsambiguity finding. Accordingly, the consideration of extrinsic evidence of the decedent’s intent and the circumstances surrounding the execution of the Will is permitted and is necessary for the proper administration of the estate. After careful review of the record including Executrix’s proffered evidence of decedent’s intent, we have determined that the decedent intended different meanings of the terms “copyrights” and “royalties” and we reverse the court’s determination that those terms were used interchangeably. In doing so, we award the copyrights not previously bequeathed in the Will to Executrix and the royalties, as defined in this opinion, to Beneficiary. In view of the circumstances of this case, we affirm the decision of the trial court that Executrix should be removed as executrix of the estate and an administrator ad litem appointed. Judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

This appeal involves the payment of child support in a Title IV-D proceeding. The parents of the minor child were divorced, and the father was ordered to pay child support. In a contempt hearing, the father was found to have a substantial arrearage on his support obligation. Two years later, the State filed a petition on behalf of the mother for contempt and for modification of the child support order. The petition alleged that the father’s arrearage was unchanged. A child support worksheet submitted at the hearing showed the father’s child support obligation. The mother testified, however, that the father had been paying money directly to her for the benefit of the child. Based on the mother’s testimony, the trial court reduced the father’s monthly child support obligation to zero. Both of the parents testified that the father had paid a significant portion of the arrearage directly to the mother. The trial court credited the father for the amount that he had purportedly paid directly to the mother and reduced the remaining arrearage to a judgment. The State appeals, arguing that the trial court was required by statute to have the father pay his current support obligation through the Department of Human Services, rather than directly to the mother, and that the trial court was prohibited from crediting the father for payments on the arrearage made directly to the mother, rather than through DHS. We agree, and reverse the trial court’s order in part and remand the case for further proceedings.

This case requires us to inquire whether the Town of Halls was immune under the Tennessee Governmental Tort Liability Act (“GTLA”) for maintaining a baseball field that the plaintiff alleges is a nuisance because one of many balls that flew over the field’s fence into a residential neighborhood injured him. The trial court held that the Town of Halls was immune from liability because it had engaged in a discretionary function and that the baseball field did not constitute a nuisance. On appeal, we find that plaintiff failed to demonstrate that the Town of Halls had notice of any dangerous condition of the baseball field in Kevan Ward Park, and, thus, we affirm the trial court on the basis that the Town of Halls was immune from liability pursuant to the Tennessee Governmental Tort Liability Act.

This appeal involves alleged discrimination based on religion and national origin. The plaintiff is a native of India and a practitioner of Hinduism, and is employed as an associate professor at the defendant university. The plaintiff applied for a promotion to full professor. His application for promotion was denied, based on his lack of achievement in either academic research or public service activities. The plaintiff professor filed a lawsuit alleging that the university discriminated against him on the basis of national origin and religion. The defendants filed a motion for summary judgment, proffering the professor’s lack of research and public service as a legitimate, nondiscriminatory reason for denying his application for promotion. The plaintiff conceded his lack of research and public service, but asserted that he was denied release time from his teaching responsibilities to engage in such activities. The trial court granted the university’s motion for summary judgment, and the plaintiff professor appeals. We affirm, finding that the plaintiff professor cannot show the denial of his application for promotion was discriminatory because he cannot show that he was qualified for such a promotion. We also find the record insufficient to establish a genuine issue of material fact as to whether the denial of release time from the plaintiff’s teaching responsibilities was discriminatory.