APPELLATE COURT OPINIONS

In this post-divorce case, Melody D. Dickson ("Mother") filed a complaint against her former husband, Roger Lee Dickson ("Father"), seeking to modify an order of the trial court awarding her $876 per month in child support. Mother sought an increase in child support and an award of her attorney's fees. In addition, Mother requested that Father be required to pay "the educational expenses of the minor children," who she had recently enrolled at a private school. Following a bench trial, the court ordered that Father's child support obligation be increased to $913.50 per month; ordered Father to pay the children's private school tuition; and ordered Father to pay Mother's attorney's fees. Father appeals. As modified, the trial court's judgment is affirmed.

Plaintiffs driver and passenger sued the estate of deceased Defendant driver for negligent operation of his vehicle. The jury found in favor of Defendant as to both Plaintiffs' claims. Plaintiff passenger appealed after the trial court denied her motion for a new trial. We affirm the decision of trial court.

This application for an interlocutory appeal arises out of a condemnation action filed by the City of South Pittsburg. The sole issue on appeal concerns the landowners' use of an unrecorded and unapproved plat of a proposed subdivision to establish the fair market value of the property. The City filed a motion in limine to disallow the use of the plat. The trial court, relying on Davidson County Bd. of Ed. v. First Am. Nat. Bank, 202 Tenn. 9, 301 S.W.2d 905 (1957), determined that the landowners could not introduce the plat into evidence nor could their expert use the plat in his testimony to establish fair market value. The trial court subsequently granted the landowners an interlocutory appeal pursuant to Tenn. R. App. P. 9. We concur with the trial court that this is an appropriate case for an interlocutory appeal. We also conclude that the plat may be introduced and used in ways consistent with Davidson County Bd. of Ed., and we thus vacate the trial court's order categorically prohibiting its introduction and use.

The trial court terminated the parental rights of the incarcerated father of a seven year old boy. The father argues on appeal that he was deprived of due process because he was not notified of an earlier dependency and neglect proceeding and because he did not receive effective assistance of counsel during the termination proceeding. He also claims that the petitioners failed to prove by clear and convincing evidence that it was in his son's best interest that his parental rights be terminated. We affirm the trial court.

This appeal concerns a dispute among six siblings over the validity of their father's will. One month after his father's death, the youngest child filed a petition in the Chancery Court for Williamson County to probate a will his father had executed in July 1998. The testator's five older children contested this will on the grounds that their father lacked testamentary capacity and that the youngest child had procured the will by undue influence. Following a three day trial, a jury determined that the July 1998 will was invalid. After the trial court denied his post-trial motions, the youngest child appealed, taking issue with several evidentiary rulings, the adequacy of the instructions, and the evidentiary foundation for the verdict. We have determined that the trial court did not commit reversible error during the trial and that the record contains material evidence that the youngest child procured his father's July 1998 will by undue influence. We have also concluded that the trial court erred by requiring the estate to pay the youngest child's attorney's fees.

Stockholders of an insolvent corporation sought disbursement of corporate funds remaining on deposit with the trial court. The trial court determined that stockholder-creditor should be repaid prior to splitting the excess funds equally between stockholders. Stockholder appealed and we affirm the decision of the trial court in all respects.

This is a Title IV child support case. The State appeals from the trial court’s Order forgiving  Father/Appellee’s child support arrears because Father/Appellee allegedly made support payments directly to the mother. The trial court made no findings to support a deviation from the child support guidelines as required by T.C.A. §36-2-311 (Supp. 2004). Consequently, we reverse and remand.

This is the second appeal of this legal malpractice action. The trial court initially denied appellee/attorney’s motion for summary judgment and this Court, in Crafton v. Van den Bosch, No. W2002-00679-COA-R9-CV, 2003 WL 327515 (Tenn. Ct. App. June 30, 2003), affirmed the trial court and remanded the matter for further proceedings. Upon remand, the appellee/attorney filed a second Motion for Summary Judgment on the grounds that appellant’s cause of action was time-barred based upon the applicable statute of limitations found at T.C.A. §28-3-104(a)(2). The trial
court granted appellee/attorney’s motion. We affirm.

This is a quiet title and ejectment action. The plaintiff filed this lawsuit to quiet title to residential property and obtain a court order requiring the defendant to vacate the premises. The defendant asserted adverse possession as an affirmative defense, and filed a counter-claim arguing the existence of a constructive trust. During the trial, the plaintiff testified about a conversation with the defendant’s grandmother, deceased by the time of trial, in which the plaintiff agreed to permit the defendant’s grandmother to stay in the house if she paid the note and maintained the property. The trial court entered a judgment in favor of the plaintiff and dismissed the defendant’s countercomplaint.  The trial court found that the plaintiff filed the lawsuit within the applicable limitations period, and that the evidence did not support the imposition of a constructive trust or any other equitable relief. The defendant appeals. We affirm.

This appeal involves the Tennessee Regulatory Authority’s consideration of a tariff filed by BellSouth Telecommunications, Inc. A group of competing telecommunications providers and the Consumer Advocate and Protection Division of the Office of the Attorney General filed petitions to suspend the proposed tariff and to open a contested case proceeding because the tariff was discriminatory and anti-competitive. The Authority considered the proposed tariff and the requests for a contested case proceeding at three conferences. After BellSouth amended the tariff to meet several of the objections of its competitors and the Consumer Advocate and Protection Division, the Authority, by divided vote, declined to suspend the tariff or to convene a contested case proceeding and permitted the revised tariff to take effect. On this appeal, the Consumer Advocate Division and the competing telecommunications providers assert that the Authority erred by refusing to open a contested case proceeding regarding their objections to the revised tariff. They also insist that the Authority’s approval of the tariff is not supported by substantial and material evidence. We have determined that the Authority abused its discretion by refusing to open a contested case proceeding to resolve the contested issues regarding whether the revised tariff was discriminatory and anticompetitive.

Father appeals the trial court's failure to grant his petition to modify custody of his three minor daughters to the extent he requested. We affirm the judgment of the trial court.

Option to purchase under lease was dismissed by the Trial Court. Consolidated action by defendant for detainer and fees was granted by the Trial Court. We affirm the dismissal of the action on option but reverse the Judgment for detainer and fees.

This appeal involves a dispute regarding a shareholders agreement negotiated as part of a merger between National Health Industries, Inc. and Senior Services Corporation. The merged companies became Caretenders Health Corporation. Franklin Capital Associates, a shareholder of Caretenders, filed this action against Caretenders alleging, inter alia, breach of the parties’ shareholders agreement. Franklin contends Caretenders failed to use its best efforts to register the stock issued in the merger. The trial court found Caretenders liable for failing to use its best efforts to register the shares under any registration form available, and awarded damages of $984,970 to Franklin.  Caretenders appeals contending the trial court erred by: (1) not requiring Franklin to prove Caretenders acted in bad faith, (2) determining Caretenders must use best efforts to register the stock under any registration form available, and (3) applying a 25% “block discount” to the net proceeds, rather than the price per share. Franklin appeals the denial of their request for prejudgment interest.  We affirm the trial court on the first two issues and the denial of prejudgment interest to Franklin but find the trial court incorrectly calculated the “block discount.”

This is a post-divorce petition to modify custody. During the marriage, the mother and father lived with the mother's parents. The parties were divorced in September 1998, and custody of the parties' three children was granted to the mother. After the divorce, the mother and the parties' children continued to live with the maternal grandparents. In March 2000, the mother filed a petition to restrict the father's visitation, alleging that the father sexually abused the parties' two daughters. A guardian ad litem was appointed for the children. After a hearing, the allegations of sexual abuse were determined to be unfounded. Approximately a year later, the mother filed a second petition to restrict the father's visitation, once again alleging sexual abuse. The father filed a counter-petition for custody based on a material change in circumstances. The father alleged that the mother and her parents were causing harm to the children by subjecting them to persistent questioning and repeated physical examinations in an attempt to prove sexual abuse. The mother's parents were joined as third-party defendants. The mother's parents then filed a cross-petition for grandparent visitation. After a bench trial, the trial court granted the father's petition for a change in custody and allowed the mother unsupervised visitation in the grandparents' home. The grandparents' petition for grandparent visitation was dismissed. At the conclusion of trial, the guardian ad litem for the children submitted a request for $15,000 in fees. The trial court denied the request, awarding the guardian ad litem only the $1,500 she had already been paid. The mother, the grandparents, and the guardian ad litem now appeal. We affirm the decision of the trial court, except that we remand to the trial court for reconsideration of the guardian ad litem's fee request in light of the applicable law.

Deceased had executed loan guaranties to claimant. Claimant filed claim in Estate based on the guaranties. The Estate excepted on the grounds that the underlying loans were not due and payable because claimant had not accelerated the indebtednesses. The Trial Court upheld the claims. We affirm.

This appeal presents the issue of the enforceability of an arbitration agreement. The plaintiff entered into a loan transaction with the defendant mortgage corporation to obtain funds on behalf of her daughter. The loan was secured by a mortgage on plaintiff's home. Plaintiff's daughter subsequently discontinued making payments on the loan, and plaintiff filed a petition to rescind the loan, asserting that plaintiff was caused to sign the loan by defendant lender's fraud. Several months after the case had been pending, lender demanded that the case be submitted to arbitration pursuant to an agreement signed by plaintiff when the loan was closed. The trial court granted lender's motion compelling arbitration. Plaintiff appeals, arguing that the arbitration agreement she entered into is unenforceable because it is an adhesion contract and is unconscionable and unreasonable. Plaintiff further argues that lender waived its right to compel arbitration under the circumstances in this case. We hold that the arbitration agreement is enforceable, and we affirm the judgment of the trial court.

Pro se prisoner Plaintiff filed a claim against circuit court clerk, circuit court judge, district attorney general, assistant public defender, and two attorneys, alleging civil conspiracy and forfeiture. The trial court dismissed the claims sua sponte without a hearing pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. Plaintiff appealed and we affirm the decision of the trial court.

Basketball coach and employee association appeal trial court's refusal to order coach reinstated as a method to enforce arbitration decision under Master Contract between school board and association. We affirm.

In this divorce action, Husband appeals the Chancery Court's denial of alimony, denial of Rule 60 post-judgment relief, and the court's classification of his workers' compensation benefits as marital property. Finding Husband's appeal without merit, we affirm the Chancery Court's decision.

The child who is the subject of this Petition to Terminate Parental Rights, A.J.H., is the latest of five children born to the mother, M.H. A.J.H. is the fourth child of D.H., the father. At the conclusion of an initial investigation by DCS personnel, A.J.H. was removed from the parents’ custody immediately after birth and has remained with his foster parents since that removal. The father appeals the juvenile court’s termination of his parental rights as well as its refusal to consider the paternal grandparents’ petition for custody. We reverse and vacate the order of termination and remand for further proceedings consistent with this opinion.

Plaintiffs appeal the action of the trial court in granting Defendants' Tennessee Rule of Civil Procedure 12.02(6) Motions to Dismiss their challenge to a November 9, 1992, amendment to the Rutherford County Zoning Resolution. The trial court determined that the 10-year statute of limitations provided by Tennessee Code Annotated section 28-3-110 barred the action and that the discovery rule did not apply. We hold that on the record before the Court, the November 9, 1992, purported amendment is void ab initio. The judgment of the trial court is reversed, and the cause is remanded for further proceedings.

While I concur in the majority opinion on some issues, I must dissent from the affirmance of the termination of the Hes’ parental rights on the ground of willful failure to visit.1 I would instead reverse the trial court’s termination of the Hes’ parental rights.

In this appeal, we are called upon to evaluate the trial court’s decision to terminate the parental rights of the biological parents to a minor child. The biological parents are Chinese immigrants who are presently in this country illegally and are subject to deportation proceedings. Shortly after coming to the United States, the biological parents had a daughter. Facing financial difficulties at the time of their daughter’s birth, the parents decided to place their daughter in the care of an adoption agency until their financial situation improved. The agency placed the child with foster parents who agreed to care for the child over an initial three month period. At the conclusion of the three month foster care period, the biological parents agreed to the entry of a consent order by the juvenile court transferring custody of the child to the foster parents. The biological parents continued to visit with their daughter at the home of the custodial non-parents approximately once each week for one hour each visit. However, they paid no child support to the custodial non-parents. The biological parents subsequently filed a petition to modify the juvenile court’s custody order seeking to regain custody of their daughter, which the court denied. Thereafter, the biological parents continued to visit their daughter with the same frequency as before. On one day in particular, the biological parents asked to take their daughter fora family portrait, and the custodial non-parents refused their request. When the biological parents refused to leave the custodial non-parents’ home, the police were called. After speaking with the police, the biological parents left the home and never returned to visit their daughter citing their fear of arrest. A short time after this incident, the biological parents filed a second petition to modify the juvenile court’s custody order. In response, the custodial non-parents filed a petition to adopt the child and to terminate the biological parents’ parental rights in the chancery court, primarily relying on the ground of abandonment. As a result, the biological parents’ petition to modify the custody order was transferred to the chancery court. Following a lengthy and tortured procedural history, the chancery court held a bench trial in the matter and subsequently entered an order terminating the biological parents’ parental rights. The biological parents filed a timely appeal to this Court. We affirm in part and reverse in part the decisions of the chancery court in this case. However, in light of our decisions on certain issues presented in this case, we need not remand this case to the chancery court for further proceedings.

This appeal from a declaratory judgment action requires us to determine whether term limits imposed on Shelby County Commissioners by the 1994 amendments to the Shelby County Charter, Article II, section 2.03(G), are permissible under Tennessee Code Annotated § 5-1-210 and, if so, whether § 5-1-210 is unconstitutional under the Tennessee Constitution, Article VII, Section 1. We hold that term limits are permitted as “qualifications” under Tennessee Code Annotated § 5-1-210(4). We further hold that Tennessee Code Annotated § 5-1-210(4), insofar as it permits county charters to prescribe the qualifications of members of the county legislative body, is void as unconstitutional under Article VII, Section 1, of the Tennessee Constitution. We accordingly vacate the judgment of the trial court, award summary judgment to Plaintiffs/Appellants, and enjoin enforcement of section 2.03(G) of the Shelby County Charter.

This case involves an intrafamily transaction in real property. A now-deceased owner of a piece of commercial property held by tenancy by the entireties agreed to sell it to his nephew in a handshake transaction. The nephew made a $10,000 down payment, began paying off the balance in monthly installments, and made improvements to the property. After the seller died, his widow filed a complaint for declaratory judgment asking the court to declare the rights of the parties with regard to the real property. Although the trial court found there was indeed an agreement between the uncle and the nephew to sell the land to the nephew, the court declined to require the widow to effectuate the contract, not because she had not agreed to the sale, but because she offered to reimburse the nephew for all his out-of-pocket costs. Because we conclude the widow should be estopped from asserting the statute of frauds to avoid the sale, and because her offer cannot limit the buyer’s remedies, we reverse.