APPELLATE COURT OPINIONS

This is a divorce case. Plaintiff Husband appeals the trial court’s award of alimony in futuro to Defendant/Counter-Plaintiff Wife. We affirm.

This is a construction case. The plaintiff construction manager agreed to manage the construction of a restaurant for the defendant restaurant owner. Preliminary documents showed that the construction manager agreed to provide its services for a guaranteed maximum price. During construction, there were unanticipated problems that increased costs. After construction was completed, the construction manager sought payments from the restaurant owner over and above the guaranteed maximum price, but the restaurant owner refused to pay more. The construction manager filed this lawsuit against the restaurant owner, claiming that the parties did not enter into an enforceable contract, and that the restaurant owner should pay the construction manager the reasonable value of its services under a theory of quantum meruit. After a bench trial, the trial court held in favor of the restaurant owner, determining that the parties had entered into a binding fixed price contract. The construction manager now appeals. We affirm in part and reverse in part the trial court's determination and remand for further proceedings consistent with this opinion.

This appeal involves a dispute between workers who were hired to replace striking workers and the employer as well as the international and local unions representing the striking workers. After a class action purportedly filed on their behalf was dismissed before the class was certified, some of the replacement workers who would have been members of the class filed another class action complaint in the Circuit Court for Davidson County against the employer and the unions. The employer moved to dismiss the complaint based on the statute of limitations and the doctrine of laches. The trial court granted the motion, and the replacement workers appealed. We have determined that the trial court erred by concluding that the replacement workers' claims for breach of contract and interference with contract are time-barred and that the doctrine of laches prevented them from maintaining these claims against the employer and the unions.

This appeal involves a dispute between a citizen and the Metropolitan Government of Nashville and Davidson County regarding the regulatory oversight of the now defunct Nashville Thermal Transfer plant. The Metropolitan Department of Health decided to reopen the plant’s operating permit and to assess monetary penalties for the plant’s violations of air quality regulations. The plant appealed these decisions to the Metropolitan Board of Health. While the administrative appeal was pending, the plant and the Department of Health settled their dispute. The Board of Health approved the settlement and even reduced the monetary penalties assessed against the plant over the objections of a private citizen who had unsuccessfully sought to intervene in the proceeding. The citizen then filed a petition for a common-law writ of certiorari in the Chancery Court seeking judicial review of the Board of Health’s decision. After the plant was totally destroyed by fire, the trial court dismissed the citizen’s petition on the ground that it was moot. We affirm the dismissal because the citizen lacked standing to file the petition for a common-law writ of certiorari.

An inmate in custody of the Tennessee Department of Correction filed a complaint charging the department with negligently disposing of certain items of personal property. The claim was denied by the Tennessee Claims Commission and the claimant appeals. We affirm.

This court issued an opinion on November 29, 2005 affirming in part and modifying in part the trial court's judgment, the result of which was an award of damages against Almost Family, Inc., f/k/a Caretenders Health Corporation, (Caretenders) in the amount of $658,886.50 in favor of Franklin Capital Associates, L.P. See Franklin Capital Associates, L.P., v. Almost Family, Inc., f/k/a Caretenders Health Corporation, No. M2003-02191-COA-R3-CV, 2005 WL 3193688, (Tenn. Ct. App. Nov. 29, 2005). On December 9, 2005, Franklin filed a timely petition for this court to rehear that portion of the case relating to the application of a block discount to determine Franklin's damages. Having considered the petition for rehearing, we have concluded the trial court did not err by applying a block discount to determine Franklin's damages. Accordingly, we deny the petition for rehearing.

On November 29, 2005, this court issued an opinion finding that the Tennessee Regulatory Authority (Authority) failed to follow the requirements of then-existing law when it declined to convene a contested case proceeding with regard to BellSouth Telecommunications, Inc.’s “Welcoming Reward Program” tariff. Both the Authority and BellSouth have filed timely petitions for rehearing in accordance with Tenn. R. App. P. 39 with regard to portions of that opinion.

This case arises from lease negotiations between Plaintiff W. Robert Vance, Jr. (“Plaintiff”) and Defendants, Robert C. McEwan, Dane Flippen, and Edward Caldwell (“the Defendants”). After the Defendants ultimately decided not to sign a lease with Plaintiff, Plaintiff filed suit against Defendants asserting claims for (1) breach of agreement to enter into a lease agreement; (2) breach of lease agreement; (3) detrimental reliance; (4) fraud and misrepresentation; and (5) negligent misrepresentation. After a trial on the merits, the trial court entered an order disposing of Plaintiff’s contract claims. Plaintiff subsequently filed a “Motion for New Trial or, in the Alternative, to Alter or Amend Judgment and/or Make and/or to Make Additional Findings of Fact Pursuant to Tennessee Rules of Civil Procedure 59.02, 59.04, and 52.02,” which the trial court denied. Plaintiff appealed.  Because we find that the trial court failed to execute a final order disposing with all of Plaintiff’s asserted causes of action, we dismiss this appeal for lack of subject matter jurisdiction under Rule 3(a) of the Tennessee Rules of Appellate Procedure.

In this appeal, we are asked to determine whether the trial court erred when it granted two petitions for writ of certiorari, held that the city court's penalties issued to Marcus Dixon and Anthony Barnett violated Article VI, Section 14 of the Tennessee Constitution, and held that the city court's procedure for collection of fines in chronological order violated public policy. The appellant asserts (1) that the appellees' use of petitions for writ of certiorari were used impermissibly as a substitute for appeal; (2) that the issues raised by the appellees in their petitions for writ of certiorari were barred by the doctrine of res judicata; (3) that the Tennessee Supreme Court's decision in Davis v. City of Chattanooga, 54 S.W.3d 248 (Tenn. 2001), applied prospectively and, thus, did not apply to the appellees' penalties; and (4) that the city court's collection of fines in chronological order was not against public policy. We affirm in part and reverse in part the decision of the trial court, and remand for further proceedings consistent with this opinion.

This dispute arose after the Metropolitan Government of Nashville and Davidson County ("Metro") rezoned property owned by the plaintiff, The Westchester Company, LLC ("Westchester"), from multi-family to single-family. As a result of the zoning change, Westchester was unable to carry through with its contract to sell the property to a third party for the development of multi-family town houses. Westchester sought a declaratory judgment as to whether it had a vested right in the previous zoning classification by virtue of the fact (1) that it relied upon statements made by Metro employees regarding the then-existing zoning and Westchester's rights under that zone; (2) that the rezoning caused it to lose the profit it would have received under the contract; and (3) that it is potentially liable for breach of contract. As an alternative theory of recovery, Westchester argued that the zoning change amounted to an unconstitutional taking of its property. The trial court ruled in favor of Metro and dismissed Westchester's claims. Westchester appeals, but only as to the trial court's determination that it did not have a vested right in the previous zoning. We affirm.

I agree completely with the excellent opinion authored by Judge Lee. I write separately to emphasize what I believe is the most important aspect of this case: the plaintiff, as an incarcerated person, had no place to go, i.e., he could not leave the recreation room to completely avoid the water problem! He was “trapped” along with the seven or eight other inmates in the room. This event happened at night when the sleeping mats of the inmates obviously covered a portion of the floor, thereby further reducing the walking area. I am sure – as the dissent emphasizes – that there was some light in the room; but it obviously wasn’t lighted to the full extent. In the evening, the room was a sleeping area, not a recreation room.

This appeal arises from a paternity action. The trial court, inter alia, established paternity, awarded custody of the parties' six month old child to Mother, established Father's co-parenting time, ordered Father to pay the birth expenses, and a portion of Mother's lost wages incurred as a result of giving birth to the child. Father appeals. We affirm the judgment of the trial court.

The majority finds defendant 100% at fault in the face of the Trial Court’s ruling that each party was 50% at fault. In my opinion, the evidence does not preponderate against the Trial Court’s finding that plaintiff was 50% at fault for his fall and injuries. Tenn. R. App. P. 13(d).

This appeal involves the decision of the Davidson County, Tennessee, Juvenile Court to decline to exercise jurisdiction, other than temporary emergency jurisdiction, in a child custody case under the Uniform Child Custody Jurisdiction and Enforcement Act. The judgment of the trial court is affirmed.

The Appellant, an inmate in the custody of the Tennessee Department of Correction, filed a handwritten pro se petition seeking review by common law writ of certiorari following a denial of parole by the Tennessee Board of Probation and Parole. The board filed a motion to dismiss the petition, citing several defects with the Appellant’s petition. The trial court granted the Appellant time to cure the defects. The Appellant subsequently filed a motion to amend his petition in an effort to comply with the trial court’s directives, however, the trial court subsequently entered an order dismissing the Appellant’s petition. Thereafter, the Appellant filed a post-trial “Motion to Rehear.”  When the trial court did not address the motion, the Appellant filed a notice of appeal to this Court.  We hold that the Appellant’s post-trial motion is, in actuality, a motion to alter or amend the judgment, therefore, we remand the case to the trial court for further proceedings on the motion.

The State of Tennessee appeals the assessment of discretionary costs in an eminent domain action. The property owner was awarded her discretionary costs after the jury awarded her damages in excess of that tendered by the State. The State contends it is exempt from discretionary costs in eminent domain actions. We agree.

In this appeal, we are asked by the appellant to determine whether the probate court erred when it did not include income earned from the decedent's intellectual property after July 1, 2000 when it calculated the surviving spouse's elective share under the changing fraction method pursuant to the Tennessee Uniform Principal and Income Act. The appellees assert that this issue was decided in the first appeal of this case and that the ruling in that appeal is the law of the case. We affirm.

The issue presented in this slip-and-fall case is whether the trial court erred in ruling that the Plaintiff and Defendants were each 50% at fault and dismissing the Plaintiff’s lawsuit. While incarcerated in the Loudon County jail, James K. Cannon slipped on a floor wet from rainwater leaking through the ceiling and window frame of his cell. Because we find that (1) Defendants were responsible for creating the hazardous condition, and had prior notice of the hazardous condition and opportunity to remedy it but did not, and (2) Mr. Cannon had little, if any, opportunity to avoid the known risk of walking to the bathroom on a wet floor in rubber “flip-flop” type sandals, we reverse the trial court’s finding that Mr. Cannon was 50% at fault. We hold the evidence preponderates in favor of a finding that Defendants were 100% at fault in the accident causing Mr. Cannon’s injury, and remand the case for a determination and award of damages.

On October 21, 2005, this court issued an opinion vacating the trial court's December 14, 2001 order admitting Joseph Owen Boote, Jr.'s will and first two codicils to probate in solemn form. In re Estate of Boote, No. M2002-02234-COA-R3-CV, 2005 WL 2739287, at *21 (Tenn. Ct. App. Oct. 21, 2005). We instructed the trial court on remand to determine first whether the third codicil to Mr. Boote's will was properly executed, and then, if the trial court determined that it was, to conduct further proceedings preliminary to a will contest. In re Estate of Boote, 2005 WL 2739287, at *21. On October 31, 2005, Mr. Boote's daughters, Helen Boote Shivers and Linda Boote Gerritsen, filed a timely petition for rehearing, and on November 3, 2005, we entered an order requesting supplemental briefing on one of the issues raised in the petition. Ms. Shivers and Ms. Gerritsen, as well as Martha M. Boote, Mr. Boote's widow, have now filed their supplemental briefs. Having carefully considered the petition for rehearing and the supplemental briefs, we deny the petition for rehearing.

This appeal involves a continuing post-divorce dispute regarding child support and related issues. Seven years after the divorce, the former husband filed a petition in the Chancery Court for Marshall County requesting the court to recalculate his child support obligation and to re-establish visitation that had been suspended earlier because of non-payment of child support and failure to abide by the court's orders. The former wife responded by requesting that her former husband be held in contempt for failing to comply with the earlier court orders. Following a bench trial, the court entered an order finding the former husband in "civil" contempt. The court sentenced the former husband to a mandatory ten-day jail sentence and ordered that he remain incarcerated until he paid a portion of his child support arrearage and other financial obligations. The court also recalculated the former husband's child support obligation and ordered the resumption of visitation. On this appeal, the former husband takes issue with the contempt judgment, the earlier suspension of his visitation, and the denial of his request to claim the children as dependents for income tax purposes. While we have determined that the judgment of contempt cannot stand because it is procedurally defective, we find that the remainder of the trial court's August 22, 2003 order is legally and factually sound.

This action stems from a divorce case. In this appeal, we are asked to determine whether the circuit court applied an inappropriate standard when disposing of a husband’s motion to dismiss his wife’s complaint for divorce for failure to state a claim upon which relief may be granted. The wife asserts that, by considering evidence outside the pleadings, the circuit court converted the husband’s motion to dismiss into a motion for summary judgment and that the circuit court failed to apply the standards under Tennessee Rule of Civil Procedure 56 when considering the husband’s converted motion for summary judgment. We reverse and remand for further proceedings. Further, we decline to award damages to Appellee for frivolous appeal. Likewise, we decline to award Appellant attorney’s fees on appeal.

This is a legal malpractice action. The client filed this lawsuit against her former attorney, asserting legal malpractice for his failure to re-file a lawsuit under the Tennessee Workers' Compensation Act within one year after he took a voluntary non-suit of the lawsuit. The trial court granted the former attorney's motion for summary judgment, finding the client's evidence in the underlying workers' compensation action insufficient to establish the damages element of the legal malpractice action. We affirm.

This is a Title IV child support case. The child involved in this action was born in September 2000.  The parents were never married. The child lived with the mother, and the mother began receiving financial assistance from the State when the child was born. In February 2002, the child was legitimated as the natural child of the father. In February 2003, the State, on behalf of the mother, filed a petition against the father for child support payments. In May 2003, the father was ordered to pay child support, plus a monthly amount toward his child support arrearage. The mother filed a petition for rehearing by the juvenile court judge, arguing that the established arrearage was too high, and asserting that she no longer wanted child support from the father because the two were reunited. In November 2003, a hearing was conducted. At the conclusion of the hearing, the trial court terminated the father’s monthly child support obligation and gave him a credit toward the child support arrearage for payments that had been made directly to the mother. The State filed a motion to alter or amend the decision, which was denied. The State now appeals. We reverse.

This is a petition in juvenile court to modify custody. In November 1997, the juvenile court issued an order granting the mother primary residential custody of the parties’ daughter, and granting the father liberal visitation. In October 2001, the father filed a petition to modify his visitation. The father’s petition was later amended to add a request for joint custody. In November 2001, the juvenile court entered an order rescheduling the matter for a later date and granting the father visitation with the child for a full week on alternating weeks, pending the hearing. The mother tried to obtain a rehearing of that order, but was unable to do so because of numerous procedural problems. In July 2004, a final hearing was conducted. The juvenile court determined that no material change in circumstances had occurred since the November 1997 order, and that the child’s best interest would not be served by granting the parties joint custody. The juvenile court slightly modified the visitation schedule for the father set forth in the November 1997 order. From that order, the father now appeals. We affirm.

This is a divorce and child custody case. After thirteen years of marriage, the wife filed a complaint for divorce and sought custody of the couple’s two minor children, alleging irreconcilable differences and inappropriate marital conduct. The husband admitted irreconcilable differences, but argued that the wife had committed the inappropriate marital conduct. After a lengthy trial, the trial court designated the wife as primary residential parent, ordered the husband to pay child support, divided the marital property, ordered the husband to pay the wife $70,000, awarded the wife attorney’s fees, and taxed the costs of the litigation against the husband. The husband appeals. We affirm.