APPELLATE COURT OPINIONS

I regret that I cannot concur with the court’s opinion in this case. Based on the law, I cannot conclude, as the court has done, that the trial court abused its discretion by denying Ms.  McManus’s tardy Tenn. R. Civ. P. 60.02 motion to set aside the properly granted default judgment.

The trial court refused to set aside a default judgment based upon the defendant’s delay in filing a motion to set aside. Because the defendant promptly notified the court that she had a meritorious defense, because the only evidence in the record shows the defendant did not willfully ignore the action against her, because the plaintiff has failed to allege or show any prejudice that would result from setting aside the judgment, and because relief should be granted where there is any reasonable doubt that the judgment by default should be set aside, we reverse.

This case arises from the trial court’s grant of summary judgment in favor of Defendant/Appellee on a malicious prosecution complaint filed by Plaintiff/Appellant. Defendant/Appellee certified that it mailed copies of its filings, including its motion for summary judgment, to an incorrect address for Plaintiff/Appellant. Under Tenn. R. Civ. P. 5.02, if by mail, service must be made to the last known address of the party. Because Defendant/Appellee mailed its notice to an incorrect address, Plaintiff/Appellant was not properly noticed. We reverse and remand.

The parties to a construction contract dispute the enforceability of its arbitration provision. The trial court refused to enforce the arbitration provision. The construction company appealed. The developer argues that the arbitration provision is unenforceable because it did not assent to arbitration, or alternatively, the arbitration provision was induced by fraud or unconscionable. The developer also claims that the defendants waived their right to arbitrate, and that they lack standing to enforce the right to arbitrate. For the following reasons, we reverse the decision of the chancery court and remand for entry of an order compelling arbitration.

This is a declaratory judgment action. The plaintiff county filed the instant lawsuit seeking a declaration that the defendant county library board of trustees has no authority under the pertinent Tennessee statute to contract with private entities for the management of the local library. The city intervened, arguing that the library board had the authority under the statute to enter into such contracts. Upon stipulated facts, the trial court held that the statute at issue authorizes the library board to contract with private entities for the management of the county library. The county now appeals. We affirm, concluding that the authority conferred upon the county library board in Tennessee Code Annotated § 10-3-104 includes the authority to enter into private contracts for the management of the local library.

Plaintiff sued corporate defendants alleging that defendants failed to make proper distribution to shareholders under the operating agreements of each company. The Trial Court held that plaintiff received cash distributions from one of the companies or from KRS sufficient to pay his income tax liability under the terms of the operating agreement, but no distribution was made by CRS. On appeal, plaintiff argues that CRS, a separate entity from KRS, was required under the operating agreement to distribute to the plaintiff funds sufficient to pay his tax liability, since distributions were made to other members. Under the plain language of the agreement, we agree that plaintiff was due a distribution and we remand for the Trial Court to determine the proper amount.

The plaintiff contractor filed a complaint in Shelby County General Sessions Civil Court against the defendant for a debt owed for various house repairs performed according to a service contract. The case was appealed to the Shelby County Circuit Court. Discovery was conducted, and the defendant filed a motion for leave to file a counter-complaint, which the trial court granted. In her countercomplaint, the defendant alleged that the contractor had not fulfilled the terms of the contract within the specified time period, that the contractor had failed to make repairs in compliance with local building codes as provided by the contract, and that the contractor had failed to perform repairs in a workmanlike manner. A bench trial was held, and the trial court found that the defendant was entitled to offset the original contract price of $14,981 by $5,500, and it entered judgment in favor of the contractor for $9,481 representing the remaining contract price. The trial court denied the contractor any award of attorney’s fees, and it assessed court costs against the defendant. The defendant appealed to this Court. We affirm in part, reverse in part, and remand.

Appellant appeals from the trial court’s orders finding Appellant in civil contempt and awarding attorneys’ fees and costs to Appellees. We affirm.

Claimant sought to recover for injuries allegedly caused by an agency of the State. The Claims Commission found claimant to be 65% at fault. Therefore, under the rule of comparative fault adopted in McIntyre v. Ballentine, Claimant was precluded from an award of damages. Claimant asks this Court to affirm in order that he may proceed with the appellate process. We affirm.

While an inmate at the South Central Correctional Facility, Anthony Bond was found guilty by the prison disciplinary board of assault on a visitor, placed in punitive segregation for 15 days, and ordered to pay a $5 fine. Mr. Bond challenged the conviction by filing a petition for writ of certiorari in the Wayne County Chancery Court. The trial court, after granting the petition and reviewing a certified copy of the disciplinary record, found that Mr. Bond was not entitled to any relief and dismissed the case. After careful review, we affirm the judgment of the trial court.

Appellant challenges the trial court’s order adopting the Report of the Special Master, dismissing her case, and authorizing foreclosure proceedings. We affirm.

The issue presented in this lease dispute is whether the landlord or the tenant is responsible for payment of the costs of ad valorem real estate taxes and premiums for fire and extended coverage insurance. We hold that pursuant to the clear and unambiguous agreement of the parties, the tenant is responsible for the costs at issue. We therefore reverse the judgment of the trial court.

This case involves the protest of a bid made pursuant to an invitation to bid issued by the State for copy machines. Upon protest made by several of the bidders as to the bid made by the selected bidder, the board of standards, after review, awarded the contract to the selected bidder. The next qualified bidder filed suit in chancery court, and the chancery court reversed the decision of the board of standards and awarded the contract to the complaining bidder. The State-defendants and the selected bidder appeal. We reverse and remand.

This dispute concerns annexation of property known as the Southwind area by the City of  Memphis. The trial court denied Appellant’s motion to intervene in Plaintiffs’ quo warranto action challenging Memphis’ annexation ordinance, and entered a consent order agreed to by the parties following settlement negotiations. We affirm.

Teresa D. Sherlin (“Plaintiff”) sued Sandra G. Hall in the Circuit Court for Bradley County (“Trial Court”) seeking compensation for personal injuries and property damage sustained when a vehicle driven by Ms. Hall collided head-on with a vehicle being driven by Plaintiff while Plaintiff was acting in the course and scope of her employment. At the time of the accident, Ms. Hall did not have a driver’s license and was an uninsured motorist. Plaintiff’s uninsured/underinsured motorist carrier, Farmers Insurance Exchange (“Farmers”), answered Plaintiff’s complaint and filed a motion for summary judgment. The Trial Court granted Farmers summary judgment finding and holding, inter alia, that Plaintiff was receiving workers’ compensation benefits, these workers’ compensation benefits exceeded the limits of liability of Plaintiff’s uninsured motorist policy, and because the limits of liability of the uninsured motorist policy are reduced by the amount of the workers’ compensation benefits pursuant to the insurance policy, Farmers had no liability to Plaintiff. Plaintiff appeals to this Court. We affirm.

Lessor/Appellee sued Lessee/Appellant for breach of contract due to Lessee/Appellant’s alleged failure to maintain the leased building as required under the lease. The trial court entered Judgment in favor of Lessor/Appellee, which Judgment included damages for repairs to the building, lost rent, and attorney fees. Lessee/Appellant appeals. On appeal, Lessor/Appellee asks for attorney fees in defending this appeal. We affirm the judgment of the trial court and remand for a determination of appropriate appellate attorney fees.

This case involves the interpretation of a lease agreement as it pertains to ownership of an advertising sign structure. The trial court found that Defendant/Appellee, the Lessor under the lease, is the owner of the sign structure pursuant to the terms of the lease. Plaintiff/Appellant contends that the plain language of the lease indicates that it is the owner of the disputed sign. We affirm and remand.

Plaintiff City of Covington Education Association filed a petition for writ of mandamus and complaint for damages against Defendants City of Covington and the Covington Board of Education, alleging its members were entitled to a pay increase in addition to that paid by Defendants and to a bonus that was approved and subsequently disapproved by the Board of Education. The trial court denied the writ and entered summary judgment in favor of Defendants. We affirm.

The plaintiff was a Nashville man who bought a bottle of mail order vitamins from a California company and directed the company to send the order to one of his relatives. The plaintiff was unsatisfied with the product and mailed it back to the company and asked for a refund. When no refund was immediately forthcoming, he filed suit in General Sessions Court. The company sent the plaintiff a full refund after it was served with the lawsuit. The plaintiff continued to pursue his suit through an appeal to the Circuit Court, which dismissed the case. We affirm the Circuit Court.

This administrative appeal arises out of the termination of Officers Mauricio Hearns’s (Officer Hearns), Henry Gray, Jr.’s (Officer Gray), Dorian Branch’s (Officer Branch), and Derick Jones’s (Officer Jones) (collectively “the officers”) employment with the City of Memphis Police Department (the Department) following their purchases of stolen Samsung televisions and digital video disc (DVD) players for their personal use. The Department terminated the officers’ employment after finding a violation of DR-104 Personal Conduct. The Civil Service Commission of the City of Memphis (the Commission) ruled that the termination was unreasonable disciplinary action and reversed the City’s decision. The City appealed to Shelby County Chancery Court, where the chancellor reversed the Commission’s decision, finding it to be arbitrary and capricious. We hold that the Commission’s decision was unsupported by substantial and material evidence and therefore arbitrary. We affirm.

This is a breach of contract action for the recovery of a real estate brokerage commission. The trial court found that the parties did not enter into a binding buyer’s representation agreement because there was no meeting of the minds. Instead, the court awarded the plaintiff real estate broker damages in quantum meruit. On appeal, we find that the parties mutually assented to the terms of the buyer’s representation agreement and that the broker was entitled to its commission as stated in the contract. We vacate the award of damages in quantum meruit, affirm in part, reverse in part, and remand for entry of judgment in accordance with the contract.

This is a medical malpractice action in which the jury found in favor of Defendant hospital. Plaintiff
asserts Defendant’s expert was not qualified under Tennessee Code Annotated § 29-26-115(a)(1), and that the matter accordingly should be remanded for a new trial. We reverse the trial court’s order denying Plaintiff’s motion for new trial, vacate the judgment on jury verdict, and remand for a new trial.

Trial court dismissed action by worker’s compensation lienholder against employee’s attorney seeking to hold employee’s Tennessee attorney liable for disbursement of proceeds from third party settlement made by another out-of-state attorney.  We affirm.

This appeal involves the authority of the Tennessee Board of Medical Examiners to review the medical records of a physician’s patients. After the Board requested access to his patients’  records in accordance with Tenn. Code Ann. § 63-1-117 (2004), the physician filed a declaratory judgment action in the Chancery Court for Davidson County challenging the constitutionality of the statute. The physician asserted that the statutory procedure for gaining access to medical records amounted to an unreasonable search and seizure because it failed to provide him with pre-enforcement judicial review of the reasonableness of the Board’s request. He also claimed that the statute’s notice provisions violated due process. Both the physician and the Board filed motions for summary judgment. The trial court concluded that the physician received adequate notice of the purpose of the request for medical records. It also determined that Tenn. Code Ann. § 63-1-117(a)(3), the portion of the statute authorizing disciplinary sanctions against physicians who willfully fail to produce requested records, was unconstitutional and awarded the physician $20,916 in attorney’s fees. The Board perfected this appeal. We concur with the trial court’s conclusion that the physician received adequate notice of the reasons for the request for medical records. However, we have determined that physicians in Tennessee have no reasonable expectation that they can shield their patients’ records from the Board’s regulatory oversight and that the Board may discipline physicians who willfully refuse to comply with lawful requests for patient records that comply with Tenn. Code Ann. § 63-1-117.

Prisoner filed Petition for a writ of certiorari. The Trial Court refused to issue the writ. We affirm.