APPELLATE COURT OPINIONS

This case involves a trial court’s division of marital property following a divorce.  The wife came into the marriage with substantial assets, but the husband had no assets and owed a large debt to the IRS.  During the marriage, the wife was continuously employed, and the husband was often unemployed.  After the wife found out that her husband had quit one of his jobs, he executed a quitclaim deed conveying his interest in their house to the wife. When they later divorced, the trial court appointed a special master to classify certain assets and debts as marital or separate property. The trial court affirmed the special master’s report with modifications. Both parties now challenge the classification of certain assets and the court’s division of the marital property.  For the following reasons, we affirm.

Parents, individually and on behalf of their two minor children, sued various defendants for damages resulting from an automobile accident caused allegedly by the negligence of defendants.  The complaint, in addition to seeking damages for the personal injuries sustained by one of the minor children, seeks damages on behalf of the mother and one minor child for negligent infliction of emotional distress. An uninsured motorist insurance carrier filed an answer in the cause and subsequentlymoved for summary judgment, which ostensibly involved only the claims for negligent infliction of emotional distress. The trial court granted the summary judgment motion but failed to denote that the grant was only a partial summary judgment for that particular claim. We modify the trial court's order by granting only a partial summary judgment and further reverse and remand that grant.

The plaintiff patient visited the defendant dentist periodically between 1998 and 2003. Between 2001 and 2003, the defendant performed dental work on the plaintiff including root canals, fillings, and crown work. Over this period, the plaintiff’s dental condition became significantly worse. The plaintiff developed abscesses and infection in his mouth and suffered from substantial dental pain.  The plaintiff’s last visit to the defendant was in October of 2003. Over the 2003 holidays, the plaintiff unsuccessfully attempted to contact the defendant for relief from his increasingly painful condition. The plaintiff ultimately received treatment from another dentist throughout 2004. After receiving the plaintiff’s dental records from the defendant in October of 2004, the treating dentist informed the plaintiff that the defendant’s treatment had been negligent. The plaintiff filed a dental
malpractice action against the defendant on January 12, 2005. The trial court granted the defendant’s motion for summary judgment based on the one-year statute of limitations for medical malpractice claims, finding that the plaintiff should have discovered the injury by the time of the plaintiff’s last visit to the defendant in October of 2003.  The plaintiff filed a timely notice of appeal.  We affirm.

Invitee fell in gravel driveway of rental property, allegedly due to a partially hidden concrete divider. Invitee ultimately died as result of the fall and invitee, by and through her husband, filed an action against rental property owners. Property owners filed a motion for summary judgment, which the trial court granted, finding that Plaintiff failed to establish an exception to the general rule of landlord non-liability. Plaintiff appealed. We affirm the decision of the trial court.

I agree with the result reached by the majority and the substance of the majority’s reasoning.  I write separately only to note that I disagree with a portion of the majority’s reading of Ramsey v. Beavers, 931 S.W.2d 527 (Tenn. 1996), and in particular its reliance on Thing v. La Chusa, 771 P.2d 814 (Cal. 1989). 

Attorney filed an action against client to collect unpaid installments due under a promissory note. The trial court entered a consent final decree awarding attorney the sum currently due under the note. Attorney filed a second action against client to collect the then unpaid installments due under the same promissory note. Client answered alleging affirmative defenses which attacked the validity of the note and which were not raised in the first proceeding. Attorney filed a motion for summary judgment claiming that client was precluded from asserting the defenses under the doctrine of res judicata and collateral estoppel. The trial court denied the motion and attorney filed an extraordinary appeal. We reverse the judgment of the trial court and remand the matter for further proceedings consistent herewith.

The defendant, Mitchell Lee Blankenship, was convicted of aggravated assault with a deadly weapon, a Class C felony, and sentenced as a Range I, standard offender to five years, with one year to serve in confinement. On appeal, he argues that the evidence is not sufficient to support his convictions and that the trial court erred in sentencing by improperly weighing enhancement factors, not applying mitigating factors, and not granting him full probation. We conclude that the evidence is sufficient. Although the trial court erred in applying the multiple victims enhancement factor, we conclude that the sentence imposed by the trial court was justified. We affirm the judgment of the trial court.

This is a premises liability case. Plaintiff/Appellant allegedly suffered injuries after slipping in a pool of water that was allowed to stand on the Hospital/Appellee’s floor. The trial court ruled that Hospital/Appellee had no actual or constructive notice of the water and entered judgment in favor of Hospital/Appellee. Plaintiff/Appellant appeals.  We affirm.

This case involves a claim for unemployment benefits after an employee was terminated for failing to follow company policy and refusing to follow his supervisor’s instructions. A female co-worker had previously complained about the claimant’s repeated attempts to ask her out on dates and several occasions when he had followed her to her car, all of which had made her uncomfortable. The claimant was suspended for two days at that time. A few months later, another female co-worker complained to her supervisor about the claimant’s behavior after he continued asking her out on dates for over a month, waited for her at her car, and eventually hugged her at work after she rejected another invitation to go out with him. A meeting was held about the claimant’s conduct, and his female co-worker and his supervisors asked that he agree not to communicate with the co-worker in the future. The claimant would not agree to stop contacting his co-worker, and he was terminated from his employment the next day. He filed for unemployment benefits, which were initially approved by the Department of Labor. On appeal, the Appeals Tribunal found that the claimant was disqualified from receiving benefits because he had been terminated for work related misconduct.  The finding was affirmed by the Board of Review, and later by the chancery court.  For the following reasons, we affirm.

Appellant appeals the denial of a Tenn. R. Civ. P. 60.02 motion for relief from a Final Decree of Divorce as it relates to child custody. Appellant asserts that the judgment is void for lack of jurisdiction under the UCCJEA due to the entry of a previous order of protection in the Alabama family court. We affirm.

In 1997, an Arkansas state court adjudged the plaintiff/ward to be incapacitated and appointed a bank to be the conservator of her estate. The conservator bank, acting on the behalf of the incapacitated plaintiff/ward, filed a complaint in 2002 against the defendants. The plaintiff sought to set aside a quit claim deed for property located in Shelby County, Tennessee. The plaintiff/ward had executed the deed in 1996 and transferred title for the property to the defendants. The co-defendant bank, which had obtained an interest in the property through the defendants in 2002 but was not named as a defendant in the complaint, answered the complaint in 2003 and moved for a dismissal. The plaintiff sought to amend the complaint and name the bank as a co-defendant. The co-defendant bank moved to strike the amended complaint.  The originally named defendants filed an answer later in 2003, and in 2004 they moved for dismissal based upon the statute of limitations.  In 2005, the defendants moved for a dismissal based upon their original defenses and for the plaintiff’s failure to prosecute the complaint.  The plaintiff set a trial date in the chancery court, and the defendants moved to strike the trial date. The trial court held a hearing on the defendants’ motions to dismiss and granted the defendants’ motion for dismissal with prejudice for failure to prosecute.  The plaintiff moved for reconsideration of the judgment, and the trial court denied the motion.  The plaintiff filed a timely notice of appeal to this Court. We reverse and remand for further proceedings.

This case involves a creditor’s entitlement to a deficiency judgment after a foreclosure sale in which the creditor was the only bidder, and in which he paid considerably less for the large tract of mountaintop property than the debtor alleged it was worth. The trial court awarded the creditor’s successor-in-interest a deficiency judgment of over $4 million, holding that in accordance with the rule of Holt v. Citizens Central Bank, 688 S.W.2d 414 (Tenn. 1984), the debtor should not be permitted to challenge the legal presumption that the value of the property at the time of foreclosure was equal to the sale price because there was no evidence of “irregularity, misconduct, fraud or unfairness on the part of the mortgagee.” Since the Holt case did not involve a deficiency judgment, we believe it is inapplicable. After examining both the law of Tennessee and that of other jurisdictions, we conclude that the trial court should have permitted the defendant to challenge the presumption by attempting to prove that the sale price was grossly inadequate. We accordingly reverse.

The issue presented in this case is whether the Wife’s alimony award is modifiable due to her remarriage when the divorce decree does not classify the alimony award, stating only that “the [Husband] shall pay alimony to the [Wife] in the amount of five hundred dollars per month for a
period of two years.” The trial court, presented with Husband’s petition to modify spousal support, held that the alimony award was “periodic/rehabilitative alimony,” and terminated Husband’s spousal support obligation to Wife because of her remarriage. We hold that the award of alimony is properly classified as alimony in solido, because (1) both the alimony award in the divorce decree and the parties’ marital dissolution agreement provided for a sum certain – $500 per month for two
years – with no contingencies that would cause termination of the alimony, such as Wife’s death or remarriage; and (2) the trial court made no finding in the divorce judgment regarding the relative economic status of the parties, nor of the Wife’s need or potential for rehabilitation. Therefore,
because an award of alimony in solido is not subject to modification, we reverse the judgment of the trial court terminating Wife’s alimony payments.

In this case defendants moved to arbitrate the dispute since plaintiff signed a contract to arbitrate. Plaintiff pled incompetence to contract, but the Trial Court held that issue was subject to arbitration. We vacate and remand and instruct the Trial Court to decide the issue of incompetency.

In this class action lawsuit, the plaintiffs alleged that the defendants, the Knox County Board of Education and its superintendent, were guilty of statutory, regulatory, and constitutional violations in the design and implementation of theBoard’s evening alternative education program for students who are expelled or suspended from their regular schools.  The trial court rejected the plaintiffs’ challenges.  The plaintiffs appeal. We affirm.

In this premises liability case, the minor plaintiff received a severe foot injury while assisting an independent contractor straighten concrete poles with a forklift on defendant premises owner’s property. The plaintiff’s father sued the independent contractor and the premises owner on his minor
son’s behalf, alleging negligence and workers’ compensation liability. The trial court tried the workers’ compensation claim first and entered a judgment for the plaintiff. The Special Workers’ Compensation Panel of the Tennessee Supreme Court reversed as to the premises owner, finding that the premises owner was not the statutory employer of the plaintiff. The case returned to the trial court for trial of the negligence claim. The plaintiff voluntarily dismissed the independent contractor from the action, leaving the premises owner as the only defendant. The trial court granted summary judgment in favor of the premises owner, finding that the premises owner owed no duty to prevent the independent contractor from hiring the plaintiff, and finding that the facts of the case did not fall into any exception to the general rule that a premises owner is not liable for the negligence of its independent contractor. The plaintiff filed a notice of appeal, alleging that the trial court improperly granted summary judgment. We affirm.

Mother appeals the termination of her parental rights, contending the evidence was not clear and convincing that she abandoned her child and that termination of her parental rights is in the best interest of the child. The trial court found the mother had abandoned the child by engaging in conduct that exhibited a wanton disregard for the welfare of her child, which conduct included ingesting drugs while pregnant and while breast feeding, and the manufacture of methamphetamine in the family home. We affirm.

Appellant, who was married to the mother at the birth of the child, claims the Trial Court erred in failing to engage in a comparative fitness test in awarding the child to a person who by DNA testing was shown to be the biological father.  We affirm.

I concur in the opinion of the Court and write separately in order to re-emphasize and reaffirm the sound rules of law stated in Holt v. Citizen Central Bank, 688 S.W.2d 414 (Tenn.1984).  Prior to the decision of the Supreme Court in Holt, an innocent purchaser at a foreclosure sale had constantly to look back over his shoulder for fear that someone would challenge the validity of the foreclosure sale in equity under the “shock the conscience of the court” standard. Holt makes it clear that, in the absence of misconduct or fraud, a purchaser at a foreclosure sale where the property brings less than true value is free from a constant cloud upon his title.

Adam Charles Partin (“Father”) filed a petition to modify his child support obligation claiming that a significant variance existed between his income at the time his child support obligation was originally calculated and his current income. The case was tried and the Trial Court entered an order finding and holding, inter alia, that a significant variance did exist making the child support order eligible for modification. The Trial Court then reduced Father’s child support. Delores Lourraine Wallis (“Mother”) appeals claiming that the Trial Court erred in calculating Father’s income and that a significant variance does not exist. We affirm.

The trial court awarded summary judgment in favor of Defendant in this negligence action.  We affirm.

In a boundary dispute, the trial court refused to find estoppel by deed since the party raising the estoppel had not relied on the erroneous deeds. We affirm.

The issue presented in this priority dispute between a first deed of trust holder and a judgment lien creditor involves the legal effect of the inadvertent and erroneous release of the deed of trust. States Resources Corporation (SRC), Defendant/Appellant, holds two liens on the same real property: one as successor-in-interest to a judgment creditor and the other as assignee of a promissory note for a construction loan, secured by a deed of trust originally held by Trust One Bank. Plaintiff/Appellee Holiday Hospitality Franchising (Holiday) also holds a judgment lien that, in relation to SRC’s filings, was filed last in time. SRC appeals summary judgment entered in favor of Holiday and contends that as assignee of Trust One’s note and first-filed deed of trust, it occupies the most senior lien position, notwithstanding the mistaken release of the deed prior to the assignment. Because Trust One’s release was inadvertent and unintended, and because restoring the deed of trust to its original priority position would not prejudice the rights of Holiday, an intervening judgment lien creditor, we hold that, as a matter of law, the mistaken release should be cancelled in part and the deed as to Lot 30 should be restored to its position as first deed of trust. Accordingly, we reverse and remand.

The trial court dismissed Plaintiffs’ cause of action as time-barred under Tennessee Code Annotated §§ 6-51-102(a)(1) & 103.  We affirm.

After a decree was entered in a divorce proceeding in Kansas, wife attempted to enforce the decree in Tennessee as it pertains to, inter alia, a division of marital property. The case reached the Supreme Court, and that Court determined that relief sought involved the enforcement of the Kansas decree, and that the decree had not been properly registered and notice given, required by the Uniform Interstate Family Support Act (UIFSA). The case was remanded to the trial court to insure that the registration and notice procedures of UIFSA were followed and that husband be allowed to present defenses thereto. The trial court made a division of the parties' marital property in Tennessee and allowed credit to wife for arrearage of child support decreed by the Kansas court.  Husband has appealed. We affirm.