APPELLATE COURT OPINIONS

Because of the troubling potential for overexpansion of the “functional equivalency” rationale established in Cherokee and relied upon herein, I write separately to identify the reason for my concurrence. The key to determining when a private entity, through a relationship with a government, subjects its records to public inspection lies, in the first instance, in the analysis of whether the entity is performing a governmental function.

This is a post-divorce case involving child custody. The parties divorced with an agreed parenting plan for their minor child in which the parties shared equally in residential parenting time and decision-making. When both parties remarried and the child approached school age, the father filed a petition seeking to have the child reside primarily with him. The mother then filed a similar petition. After a comparative fitness analysis, the trial court designated the mother as the primary residential parent. The father now appeals. We affirm, finding that the evidence does not preponderate against the trial court’s decision.

This is a personal injury action involving comparative fault. At a warehouse construction site, the defendant steel subcontractor cut a hole in the roof of the partially constructed warehouse. A temporary cover was put over the hole. A week later, the plaintiff employee of a roofing subcontractor fell through the hole and sustained serious injuries. The plaintiff received full
workers’ compensation benefits from his immediate employer, the roofing subcontractor.  Subsequently, the plaintiff filed a personal injury lawsuit against the defendant steel subcontractor.  The steel subcontractor then sought to assert fault against the general contractor in charge of the
entire warehouse construction project. The steel subcontractor filed a motion in limine to assert fault against the nonparty general contractor. The motion was denied and the case proceeded to a jury trial. At the conclusion of the trial, the jury awarded the plaintiff $546,000. The defendant steel subcontractor now appeals, asserting numerous errors by the trial court, including error in precluding the steel subcontractor from asserting fault against the general contractor. We reverse the trial court’s denial of the motion in limine, vacate the judgment, and remand, finding that the steel
subcontractor should have been permitted to assert fault against the general contractor.

This case stems from a petition to terminate a father’s parental rights. At trial, the chancery court terminated the father’s parental rights as to his two minor children finding that grounds for terminating the father’s parental rights existed under sections 36-1-113(g)(1) and 36-1-113(g)(3) of
the Tennessee Code by clear and convincing evidence and that it was in the best interest of the children to terminate the father’s parental rights. On appeal, the State of Tennessee, Department of Children’s Services concedes that there was not clear and convincing evidence to support a finding that grounds for terminating the father’s parental rights under section 36-1-113(g)(1) existed.  However, it asserts on appeal that father’s narcissistic personality disorder was sufficient evidence to support a finding that the grounds for terminating the father’s parental rights pursuant to section 36-1-113(g)(3) of the Tennessee Code existed. On appeal, the father asserts that the Department of Children’s Services failed to make reasonable efforts to reunite his family, and thus, his parental rights may not be terminated as yet under section 36-1-113(g)(3). We reverse.

Plaintiff/Appellant filed suit under the Tennessee Declaratory Judgment Act asserting that the legislation authorizing the use of electronic voting machines in some jurisdictions violated Art.  I, § 5 and Art. IV, § 1 of the Tennessee Constitution. The Shelby County Chancery Court dismissed Plaintiff/Appellant’s complaint pursuant to Tenn. R. Civ. P. 12.02(6). We affirm.

On this appeal, the Appellant, TomKats, Inc., challenges the propriety of the trial court's awarding Appellee, Shawn Humphrey, judgment for breach of an oral agreement to pay commissions due for sales of sponsorships for an event called Dancin' in the District during the year 1999, failure to pay commissions due on sponsorship and vendor booth revenues pursuant to a written agreement for same event in the year 2000, the subsequent breach of that agreement for the years 2001 and 2002 and dismissal of Appellant's counterclaim for breach of a non-compete agreement and breach of fiduciary responsibilities. Humphrey challenges trial court's findings with regard to the amount of damages for commissions awarded for 1999 and the failure to award prejudgment interest on the judgment for breach of contract. We affirm, as modified.

This is an appeal from a divorce action in which the Appellee, Sheila Darlene Campbell (Ms. Campbell), was awarded 73.6 percent of the parties marital property together with alimony in solido in the amount of $500.00 per month for a period of five years. The Appellant, John Wesley Campbell (Mr. Campbell) has appealed both the division of the marital assets and awarding of alimony. Ms. Campbell appeals the refusal of the trial court to require that Mr. Campbell pay her attorneys' fees and alleges the trial court erred in equally dividing the court costs. We modify the judgment of the trial court to delete the requirement that Mr. Campbell pay alimony in solido and affirm the trial court in all other respects.

This is a post-divorce change of custody case. The trial court changed custody of the parties’ two minor children from the mother to the father. We hold that the evidence preponderates against the trial court’s finding that there had been a material change of circumstances to justify a change in
custody in the absence of proof that the mother’s sexual indiscretions and other alleged misconduct had affected or would affect the children in an adverse way. We therefore reverse the judgment of the trial court.

This case involves a statute of limitations. The plaintiffs’ decedent died in April 2000 at a nursing home. In February 2002, the plaintiffs filed this lawsuit against the nursing home in state court, alleging negligent care by the nursing home. The nursing home removed the action to federal court. Subsequently, the nursing home asserted fault against the hospital that treated the decedent prior to her death. The plaintiffs then amended their complaint to name the hospital as a defendant. Later, the federal court entered an order of dismissal as to the nursing home and remanded the remaining proceedings to state court. After that, the defendant hospital filed a motion to dismiss. The state court granted the motion to dismiss, ruling that the plaintiffs’ action was a medical malpractice action and was not timely under the applicable statute of limitations. We affirm. 

A businessman purchased a house in Jackson, Tennessee for the use of his employees. While he did not live at the residence, the businessman allowed the employees to park the equipment used in the furtherance of his business at the residence. The equipment consisted of parking lot sweepers, pickup trucks, and trailers holding lawn-care equipment. The house is located in an area of the city zoned for residential use only. After receiving complaints from the neighbors, the city discussed the situation with the businessman in an effort to have him remove the equipment. When he failed to do so, the city sent him a letter asking that he remove the equipment or face further action. When this did not produce results, the city issued the businessman a citation for violation of the applicable residential zoning ordinance. The city court ruled that the businessman’s conduct violated the ordinance. The businessman appealed to the circuit court, which likewise entered a ruling in favor of the city. The businessman has appealed to this Court arguing that the applicable ordinance is impermissibly vague and that the citation failed to notify him that storing business equipment at the residence constituted a violation of the ordinance. We affirm.

This appeal stems from criminal and civil contempt charges brought by a father of two minor children because of the mother’s failure to pay child support. The father brought his criminal contempt charge based on section 36-5-104 of the Tennessee Code. In this appeal, we are asked to determine whether the chancery court violated the mother’s due process rights during the criminal contempt hearing. The mother asserts on appeal that the chancery court violated her due process rights by (1) allowing the father’s attorney to try the case against her for criminal contempt; (2) failing to provide proper notice to her pursuant to Rule 42 of the Tennessee Rules of Criminal Procedure; (3) failing to provide her with a right to a jury trial; and (4) applying the wrong legal standard when it found her guilty of criminal contempt. Also, we are asked to determine whether the chancery court properly terminated the mother’s visitation rights with her children based on the chancery court’s findings that the mother committed perjury, that the mother was in criminal contempt for violating section 36-5-104 of the Tennessee Code, and that the mother was in civil contempt. We vacate the portions of the chancery court order (1) finding Appellant in criminal
contempt, (2) sentencing Appellant to serve six months in jail for criminal contempt, and (3) terminating Appellant’s visitation with her children until they attain the age of eighteen years, and we remand this case to the chancery court for further proceedings.

The majority opinion and some of the participants in this matter have placed significant emphasis on the best interests of the child prong of the modification analysis. In my opinion, a more rigorous analysis of the first prong, i.e., whether there was a material change in circumstances, is in order since that finding is a pre-requisite to consideration of best interest.

In this case, the unsuccessful Plaintiff appeals the grant of summary judgment in favor of a will offered for probate by the defendants, Judith Ann Beardsley as executrix and Cavalry Bank Trust Department as Administrator ad litem for the estate of Olalee McClaran. Plaintiff challenges the will as a product of fraud in the inducement and undue influence. The proponents filed a Motion to Dismiss or in the Alternative for Summary Judgment. From the summary judgment grant against him, Mr. McClaran now appeals. We affirm the trial court.

This bitter change of custody proceeding originated with Mother’s filing of a Petition to Stay Visitation based upon concerns that the parties’ youngest child had been potentially exposed to inappropriate sexual behavior while in Father’s custody. Father counterclaimed for a change in custody based upon Mother’s attempt to interfere with Father’s visitation. Following a bench trial, the trial court found Mother’s accusations unfounded, awarded Father joint custody, and decreased Father's child support. Mother asserts that the trial court erred by finding the circumstances had changed sufficiently to modify custody or child support. Since the outcome of the custody issue was dependent on the trial court’s assessment of the credibility of the witnesses, we affirm the trial court’s conclusion that there was a material change of circumstances. We, however, have concluded the trial court erred in setting child support, and remand that issue for further proceedings.

This is a derivative action. The board chairman of a nonprofit health care center was found guilty of submitting false claims in violation of federal law. Thereafter, the health care center’s chief executive officer and two of its board members filed a derivative action on behalf of the health care
center against the chairman and health care center’s remaining board members for violating their fiduciary duties to the corporation. The derivative suit sought, inter alia, injunctive relief to require the board to take action against the board chairman, and to enjoin the board from allegedly violating the CEO’s employment agreement by terminating her. The trial court issued a temporary restraining order, enjoining the board from violating the health care center’s bylaws, from violating federal regulations, and from terminating the employment of the CEO. Subsequently, the trial court found the defendant board members guilty of contempt for violating that order and entered a permanent injunction against the defendants. The permanent injunction awarded in the contempt action removed the defendants from the board and permanently barred them from the premises. The defendants appealed. We affirm, finding that the trial court’s action was warranted in the face of the board’s failure to take action regarding the board chairman after the federal judgment for filing false claims was entered against him.

I respectfully dissent from the majority. As stated in the majority opinion, in order for an owner or operator of premises to be held liable for negligence in allowing a dangerous or defective condition to exist on the premises, the plaintiff must prove, in addition to the elements of negligence, that the condition was caused or created by the owner or, if the condition was created by someone other than the owner, that the owner had actual or constructive notice that the condition existed prior to the accident. Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004). It is alleged in the Plaintiffs’ complaint that Mr. Williams was walking down a set of steps on the golf course that were made of railroad crossties and that he fell due to the slippery surface of the step. Mr. Williams testified in his deposition that he evidently hit some mud and moss1 on the stairs, which caused him to fall. He testified that it was “raining real, real hard at that time.” However, Mr. Williams recanted this testimony in a subsequent affidavit wherein he stated, “it may have been sprinkling, but it was not raining hard.” In response to the Defendant’s motion for summary judgment, the Plaintiffs filed affidavits of Arthur Overall and Larry Rees, both of whom were golfing with Mr. Williams. Mr. Overall stated that

it had been raining heavily early that morning, but at the time we were playing golf,
there was a light drizzle if raining at all. As we approached the 8th hole, Jesse
Williams, Sr., was walking down the steps when he slipped and fell. As I walked
over to help Jesse Williams, Sr., I observed that there was Algae 2 and water all over
the steps and that they were made of railroad ties and were very uneven and worn.
The steps were very slippery.

This is a premises liability action. While playing golf in the rain, the plaintiff slipped and fell on stairs on the golf course made of railroad cross ties. The plaintiff claimed that the stairs were covered with mud and some variety of moss or algae, making them dangerously slippery. The plaintiff sued the golf course for negligence. The defendant golf course filed a motion for summary judgment, which the trial court granted, finding that the plaintiff failed to proffer evidence of notice, either actual or constructive. The trial court also found that the plaintiff’s evidence of a dangerous condition was speculative. We reverse, finding sufficient evidence to create a factual issue on whether a dangerous condition existed and whether the defendant golf course had constructive notice.

Trial court granted motion to dismiss tort claims as barred by statute of limitations where the injury alleged was loss of employment. To the extent the employee alleged he had a contract for continued employment, his complaint was not subject to Tenn. R. Civ. P. 12.02(6) dismissal because the three year statute of limitations applies to cases involving loss of property, including contractual rights.

In this post-divorce action, the Trial Court entered Judgment against the defendant for previously awarded obligations, and held him in contempt. On appeal, we affirm.

Defendants/Appellants appeal the order of the circuit court dismissing their appeal from general sessions court based upon their failure to appear for trial in the circuit court.  We affirm.

In this action, the Trial Court stayed defendant’s planned arbitration and defendant has appealed.  We affirm.

This is a child custody case which originated in juvenile court. On March 24, 2005, the court entered an order which, inter alia, awarded joint custody to the parties, with the mother being the primary custodian. Relying on Local Rule 15 of the Shelby County Juvenile Court, father timely appealed to the Circuit Court of Shelby County. By order entered October 11, 2005, the circuit court dismissed the appeal for lack of subject matter jurisdiction. On October 28, 2005, father filed a notice of appeal in the circuit court, appealing the final judgment of dismissal in the circuit court and the final judgment of the juvenile court entered on March 24, 2005. We vacate the order of the circuit court dismissing the case and remand the case to the trial court with directions to enter an order transferring this appeal to the Court of Appeals.

Jonathan Hulon Brown (“Father”) appeals the trial court’s refusal to change the surname of his minor child, born out of wedlock, from that of the minor child’s mother Jackie Lynn Ross (“Mother”) to that of Father. For the reasons set forth below, we affirm.

The Appellee is a billboard advertising business engaged in selling advertising space on the billboards it maintains. The Appellants contracted with the principal owner of the business to sell the business in exchange for a commission. One of the Appellants had partial ownership interest in three of the billboards serviced by the business. After closing the sale, the Appellee paid the Appellants a significantly smaller commission than the parties had agreed upon. The Appellants brought suit for breach of contract seeking to recover the remainder of the commission allegedly owed. The Appellee subsequently filed a motion for summary judgment asserting that, pursuant to the Tennessee Real Estate Broker License Act of 1973 codified at section 62-13-101 et seq. of the Tennessee Code, the Appellants could not recover a commission as a matter of law. The Appellee also sought to invoke the Act’s provisions to recover the commission already paid to the Appellants.  Finding it undisputed that the Appellants did not have a real estate broker’s license when negotiating the sale of the business and that real estate comprised a significant portion of the Appellee’s assets,  the trial court granted the Appellee’s motion for summary judgment. Further, the trial court ordered the Appellants to return the commission already paid by the Appellee. The Appellants have appealed the trial court’s decision to this Court. We affirm.

This is a divorce case. In a post-trial proceeding after remand by the Court of Appeals, Husband appeals the order of the trial court which effectively awarded certain stock to Wife. The appeal is dismissed for failure to file a timely notice of appeal.