APPELLATE COURT OPINIONS

This appeal arises from the last of many petitions and counter-petitions by both parties to change custody of the parties' only child, to modify child support, to acquire arrearage judgments for non-paid child support, and for contempt of court. The order from which this appeal arose awarded custody of the child to the mother and dismissed the father's petition for contempt. Prior to this order, custody had been awarded to the father; however, he had not provided financial support for the child, and the child had not lived with him since the entry of the order awarding him custody. The dismissal of the father's petition was based upon the trial court's finding the father had failed to comply with the previous order he was seeking to enforce. Finding no error, we affirm.

This is a consolidation of three appeals involving three tariffs filed by BellSouth Telecommunications, Inc. with the Tennessee Regulatory Authority. All three tariffs contained bundled offerings of telecommunications services and non-telecommunications services. The Consumer Advocate Division of the Office of the Attorney General was allowed to intervene in these proceedings in order to address the question of BellSouth’s obligation, under the Federal Telecommunications Act of 1996, to offer for resale the telecommunications services contained in the bundled offerings. The Tennessee Regulatory Authority entered orders allowing the tariffs to go into effect without the telecommunications service portions thereof being offered for resale. The Consumer Advocate appealed and the cases were consolidated for that purpose. In 2005, during the pendency of this appeal, the Tennessee General Assembly enacted T.C.A.§65-37-103 (Supp. 2005).  This statute specifically exempts retail offerings of combinations or bundles of products or services from the jurisdiction of the Tennessee Regulatory Authority. In addition, all three of the tariffs at issue in this case expired, by their own terms, during the pendency of this appeal, rendering the appeal moot. Because we do not find that these appeals fall within any of the exceptions to the mootness doctrine, we dismiss the appeal as moot.

Both parties appeal aspects of the final divorce decree. Husband contends the trial court erred by awarding wife transitional alimony in excess of his ability to pay and in excess of her need. Wife raises six issues, contending she should have been granted the divorce due to his abuse; that child support should be increased; that she should be awarded the tax deductions for all three children; that she should be named trustee of life insurance for the benefit of the children; and that husband should pay her attorney fees at trial and on appeal. We affirm the trial court in all respects but one, finding the transitional alimony was set at an amount greater than husband's ability to pay.

The wife sued for back child support on the basis that the parties' Marital Dissolution Agreement provided for a percentage of the husband's income which had not been paid. The Trial Court refused to award back support. On appeal, we affirm the Judgment of the Trial Court.

Thomas David Caldwell ("Father") filed a complaint for divorce from his wife of ten years, Davina Kay Duke Caldwell ("Mother"). The trial court, inter alia, awarded the parties a divorce, named Mother primary residential parent of the parties' minor child, and divided the parties' marital property. Father appeals both the custody determination and the division of marital property. We affirm.

An inmate incarcerated in a prison operated by Corrections Corporation of America sued the corporation for damages arising from its alleged failure to provide him with proper dental care while he was in its custody. The defendant filed a motion to dismiss for improper venue and/or for untimeliness. The trial court granted the motion and dismissed the case with prejudice, but did not state the reason for its decision. We affirm the trial court because the one-year statute of limitations had passed before the plaintiff filed his complaint.

In this appeal, the issue presented is whether a party has standing to pursue a personal injury claim in state court that accrued after the filing of the party’s bankruptcy petition and before the closing of the bankruptcy case. Ms. Headrick filed a Chapter 13 bankruptcy petition. While the bankruptcy case was pending, Ms. Headrick was involved in a single car accident and was treated for her injuries by Dr. Daniel Johnson at Bradley County Memorial Hospital. Subsequently, she converted her Chapter 13 bankruptcy case to a Chapter 7 bankruptcy case. While the Chapter 7 case was still pending, she discovered that she suffered a hip fracture in the car accident which she alleges that Dr. Johnson and the Hospital failed to timely diagnose and treat. Thereafter, Ms. Headrick received a discharge in bankruptcy and the bankruptcy case was closed. Ms. Headrick then filed a medical negligence case against Dr. Johnson and Bradley Memorial Hospital. The Defendants filed a motion for summary judgment asserting that Ms. Headrick did not have standing to bring the case. The trial court agreed and dismissed the case. After review of the record and applicable authorities, we hold that Ms. Headrick’s post-bankruptcy cause of action is not part of the bankruptcy estate and therefore, as a matter of law Ms. Headrick did have standing to bring the lawsuit. The trial court’s decision is reversed.

In this child custody case, Father appeals and argues that the trial court erred in awarding Mother primary residential custody of the parties' twin minor children. Mother also appeals and argues that the trial court erred in setting Father's child support, in failing to assess her attorney's fees against Father, and in changing the children's surname to that of Father. After careful review of the evidence and applicable authorities, we find no error and affirm the judgment of the trial court in all respects.

After the divorce where the wife was awarded alimony for two years, the wife petitioned the Court for alimony in futuro, which the Trial Court granted. On appeal, we affirm.

This appeal illustrates the problems that befall divorcing parents when they agree, without court approval, to a child support arrangement that is inconsistent with the Child Support Guidelines. Five years after the parents' divorce, the mother filed a petition in the Circuit Court for Davidson County seeking to increase the father's child support obligation. The trial court approved a formula devised by the parties that did not comply with the Child Support Guidelines. The parties later ignored that formula and followed another ad hoc arrangement for approximately ten years. Eventually, the mother filed a petition in the trial court seeking to hold the father in contempt for failing to pay child support and to collect the arrearage. The trial court turned the matter over to a substitute judge who determined that the father was not in contempt because both parties had followed their formula to the best of their abilities even though it was ambiguous. The trial court also set the father's support for the remaining minor child and directed the father to pay $2,375 in additional support for that child. The mother appealed. We have determined that the father owes $64,529 in back child support and that the parties' three children are entitled to this arrearage. Therefore, we vacate the portion of the judgment regarding back child support and remand the case for the entry of an appropriate payment plan.

Appellant, an inmate who was housed in a prison operated by a private prison operating company, filed a claim against the State for medical malpractice with the Claims Commission pursuant to T.C.A. § 9-8-307. The Claims Commission dismissed the claim for lack of jurisdiction because the treating physicians and staff allegedly responsible for the injuries to Appellant were not “state employees,” as defined by T.C.A. § 8-42-101(3)(A). We affirm.

The trial court found a divorced father guilty of criminal contempt and sentenced him to ninety days in jail after a hearing on the mother's petition for contempt at which the father failed to appear. We reverse because the father did not receive notice of the contempt proceedings sufficient to meet the requirements of Rule 42 of the Tennessee Rules of Criminal Procedure.

This appeal arises from a divorce case. After ten years of marriage, the husband filed a divorce complaint in the Chancery Court for Lincoln County. Even though both parties sought to be the primary residential parent prior to the trial, the court placed the children in the husband's custody after the wife attempted suicide. After conducting a bench trial, the court designated the father as the primary residential parent and granted the mother unsupervised visitation. On this appeal, the mother asserts that the trial court erred with regard to the custody of the children and the division of marital assets. She also insists that the trial court erred by holding her in criminal contempt. While we reverse the trial court's finding that the mother was in criminal contempt, we affirm the court's decisions regarding custody and the division of the marital estate.

Following a transaction involving the sale of a business, the plaintiff filed suit against several defendants in federal court alleging causes of action grounded in federal and state law. The federal jury found some of the defendants liable, but they concluded that one of the defendants did not engage in any wrongdoing during the transaction at issue. Thereafter, the plaintiff filed suit in a Tennessee chancery court seeking to impose a constructive trust over funds held by the defendant exonerated by the jury. The defendant removed the case to the federal district court. The district court determined that the claim was barred by the doctrine of res judicata. The plaintiff appealed to the federal court of appeals, which ruled that the case was not properly removable, as it only presented a claim based upon state law. On remand to the chancery court, the defendant asserted the affirmative defenses of res judicata and collateral estoppel. The chancery court subsequently granted the plaintiff’s motion for summary judgment. The defendant appealed to this Court. We reverse the chancellor’s grant of summary judgment to the plaintiff, and we hold that the plaintiff’s claim for a constructive trust is barred by the doctrines of res judicata and collateral estoppel. Accordingly, we dismiss the case in its entirety.

I concur in the opinion authored by Judge Swiney to the extent that it affirms the trial court’s dismissal of the plaintiff’s claims based upon breach of express warranty, breach of implied warranty, unjust enrichment, and money had and received. I also concur that the plaintiff’s Tennessee Consumer Protection Act (“the TCPA”) claims are not subject to dismissal at this stage of the proceedings. I write separately to express my opinion that many of the plaintiff’s morespecific allegations pertaining to his general allegation of “unfair and/or deceptive acts or practices” under the TCPA appear to fall within the “loose general praise of wares sold” referred to in Restatement (Second) of Torts § 402B. See also Ladd v. Honda Motor Co., Ltd., 939 S.W.2d 83, 100 (Tenn. Ct. App. 1996). For example, I believe a reference to one’s product as “superior” in an advertisement or other writing is nothing more than a statement of the seller’s opinion as to the worth of its product. How does one measure whether a product is superior or not? For example, it may be superior in one aspect but not in another. If a company’s DVD player emits a sound that is rated better by independent experts when compared to the products of others; but has a lower rating in the same competition from a mechanical standpoint, should a jury be permitted to speculate as to which quality the company was touting when it referred to its product as “superior”? I think not. “Superior,” like beauty, is in the eyes of the beholder.

David Helton and his wife, Charlotte Helton, brought suit against Glenn Enterprises, Inc., dba Linmar Hospitality, the operator of a Fairfield Inn in Knox County, for compensatory damages arising out of the theft of their drag racing vehicle and other personal property losses, all of which occurred while the plaintiffs were guests at the defendant's motel. At the conclusion of a jury trial, the court directed a verdict for the defendant, holding that there was no liability shown by the proof. This holding was predicated upon the fact that the parking lot where the plaintiffs parked their truck and trailer, while close to the defendant's motel, was not actually on the defendant's property. The plaintiffs appeal, arguing that the duty established by the Supreme Court in the case of McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891 (Tenn. 1996) should apply to the facts of this case. They contend that they made out a question for the jury on the McClung issue as well as on the issue of liability under the Tennessee Consumer Protection Act ("the TCPA"). We vacate the trial court's judgment on these two issues and remand for a new trial.

This is the second appeal in this proceeding to terminate a biological mother’s parental rights. On the first appeal, this court affirmed the trial court’s conclusion that the mother had abandoned the children but remanded the case to the trial court to make specific findings regarding whether the termination of the mother’s parental rights was in the children’s best interests. The trial court determined that terminating the mother’s rights would be in her children’s best interests, and the mother appealed. We have determined that the record contains clear and convincing evidence supporting the trial court’s conclusion.

This potential class action lawsuit was filed by Don Daugherty (“Plaintiff”) on behalf of himself and all other Tennessee residents who purchased certain specified DVD players from Sony Electronics, Inc. (“Sony”). Plaintiff alleged in his complaint that the DVD players were inherently defective, that Sony was aware of these defects, and that Sony nevertheless marketed and sold the defective DVD players. Plaintiff brought claims for breach of express warranty, breach of implied warranty, unjust enrichment, money had and received, as well as a violation of the Tennessee Consumer Protection Act. Sony’s motion seeking to have all of the claims dismissed was granted by the Trial Court.  Plaintiff appeals the dismissal of all five claims. We affirm the judgment of the Trial Court with respect to the claims for breach of express warranty, breach of implied warranty, unjust enrichment, and money had and received. We reverse the judgment of the Trial Court dismissing Plaintiff’s Tennessee Consumer Protection Act claim.

The court reiterates a statement first appearing in a published opinion in Ray v. Ray, 83 S.W.3d 726, 733 (Tenn.Ct.App.2001). Quoting from In Re M.O.,173 S.W.3d 13, 18-19 (Tenn.Ct.App. 2005, the court says:

Inmate filed a medical malpractice and negligence action against Defendants involved in his care following a slip-and-fall injury at the prison and Defendants involved in the maintenance of the prison. The trial court dismissed all named Defendants and inmate appeals. We affirm the decision of the trial court in all respects.

This application for an interlocutory appeal concerns the jurisdiction of the Circuit Court for Rutherford County to consider a mother’s appeal from a decision of the Rutherford County Juvenile Court changing custody to the father. The Circuit Court denied the father’s motion to dismiss for lack of jurisdiction, but granted mother permission to appeal pursuant to Tenn. R. App. P. 9. We concur with the Circuit Court that this is an appropriate case for an interlocutory appeal. Because the Juvenile Court’s decision does not arise out of a dependant or neglect proceeding, the appeal of the Juvenile Court’s order lies to this court rather than the Circuit Court. Accordingly, we vacate the Circuit Court’s order and remand the case to the Circuit Court with directions to transfer the appeal to this court.¹

This primary issue on appeal is whether Dwight Kelley Lindsay ("Mr. Lindsay") was properly advised of his constitutional right to counsel before being found guilty on twelve counts of criminal contempt for his failure to pay court ordered child support and health insurance reimbursement payments. All parties to this appeal now agree that Mr. Lindsay was not adequately advised of his right to counsel. The judgment of the Trial Court finding Mr. Lindsay in criminal contempt is vacated.

Tammy Hopkins Lindsay ("Mother") and Dwight Kelley Lindsay ("Father") were divorced in December of 2000, but have returned to court numerous times since then. Most of the post-divorce controversy centers around the amount of Father's child support payment and the arrearages which have accrued since the divorce. After the most recent hearing, the Trial Court entered a detailed order resolving competing petitions filed by the parties. The only issue in this appeal concerns that portion of the Trial Court's order which requires Father to pay an additional $50 each time he fails to exercise co-parenting time on a weekend, and an additional $25 for each day that he fails to exercise co-parenting time on a holiday or during the summer. We vacate only this particular portion of the Trial Court's Order, and affirm the order as so modified.

Amy Lynelle Gardner appeals the post-divorce modification of child support provisions.  Father, Richard Wendell Gardner, petitioned the court for modifications claiming the child support provisions were unconscionable, in part due to the fact the parties used one attorney for the divorce proceedings from which the child support provisions emanate. The trial court found Father was not properly represented and that certain provisions were unconscionable. As a result, the trial court relieved Father of the contractual obligation to pay support for a child past majority, required that Mother apply her state employee discount to the child’s college tuition, and awarded Father the tax deduction for the years he paid tuition. Finding no error, we affirm the trial court.

The plaintiff brought this action against her former employer, alleging that the defendant terminated her employment in retaliation for her pursuit of a claim for workers' compensation benefits. The trial court granted the defendant summary judgment, holding that the plaintiff failed to establish a prima facie case of retaliatory discharge and that she also failed to rebut the defendant's proffered legitimate reason for termination. The plaintiff appeals. We affirm.