APPELLATE COURT OPINIONS

In this divorce case, Husband/Appellant appeals and raises issues involving valuation and division of marital property, rehabilitative alimony, and attorney fees. We affirm in part, reverse in part, and remand.

This is a church dispute. The plaintiff, acting on behalf of the unincorporated church, sued several church members for fraud, conversion, and breach of fiduciary duty. The trial court ordered a vote by the remaining church members on whether to pursue the lawsuit, conducted by a special master.  The thirty-five church members voted to pursue a claim against three defendants. After years of litigation, and the addition and deletion of certain defendants, the trial court ordered a second vote by church members on whether to continue the lawsuit. The five remaining church members, two of whom were defendants in the original suit, voted to dismiss the lawsuit. The trial court then dismissed the lawsuit. The plaintiff appealed, arguing that the trial court erred in ordering a second vote. We affirm, finding that the trial court’s actions were reasonable and within the scope of its authority.

Plaintiff-corporation sued defendant, a stockholder, officer, and director of a corporation engaged in the design and manufacture of stereo speakers, to recover the amount due on loans made to the corporation allegedly based on negligent and fraudulent misrepresentations of the defendant. The pleadings also seek to pierce the corporate veil and hold the defendant personally liable for the corporation debts. The trial court found no fraud or misrepresentation on the part of the defendant and entered judgment for the defendant. Plaintiff appeals. We affirm.

The jury returned a verdict in this car wreck lawsuit for Carl and Vicki Roberson ("Plaintiffs") in the amount of $900,000. However, the jury assessed 38% of the fault to Carl Roberson, thereby reducing the total verdict to $558,000 under comparative fault principles. On appeal, Plaintiffs claim the Trial Court erred when it denied their motion for a directed verdict made at the close of proof and in their Rule 50.02 motion. In their motion for directed verdict, Plaintiffs argued there was no material evidence to support defendant Motion Industries' claim that Mr. Roberson was guilty of comparative fault. The Trial Court denied the motion and allowed the jury to decide the comparative fault issue. Thereafter, Plaintiffs filed a motion for new trial which the Trial Court denied after specifically approving the amount of damages awarded by the jury as well as the jury's allocation of fault. Plaintiffs appeal claiming the Trial Court erred when it denied their motion for directed verdict. We affirm.

This is a legal malpractice case. Client/Appellant sued Attorney/Appellee for legal malpractice for failure to respond to a motion for partial summary judgment filed by the defendant in the underlying case. Attorney’s Motion for Summary Judgment was granted and Attorney was awarded attorney fees on his Cross-Complaint. Client appeals. We reverse and remand.

Husband appeals in futuro alimony awarded Wife at the end of a thirty-one (31) year marriage. Because the evidence does not preponderate against the trial court's findings and the trial court acted within its discretion in applying relevant legal principles, we affirm.

This is a termination of parental rights case involving rights of both parents to their three young children. Parental rights of both parents were terminated after the trial court found substantial noncompliance with the permanency plan and persistence of conditions that led to the removal under Tennessee Code Annotated section 36-1-113 (g)(3), those conditions being filthy and unsanitary living conditions in the home. The court also found that termination was in the children's best interests. We reverse this decision and remand the case for further proceedings.

I concur in all aspects of the majority opinion except (1) the majority’s treatment of the trial court’s decree pertaining to Wife’s right, for a period of time, to the exclusive possession and occupancy of the former marital residence; and (2) the majority’s handling of the issue of whether the assets of Husband’s law practice are marital assets.

In this divorce action, the Trial Court awarded the wife custody of the children with visitation to the husband, set child support and alimony in futuro to the wife, and divided the marital property. As per the marital property division, the wife was awarded 60% interest in the marital home and the husband 40%, with the right of the mother to remain in the home until the children reach age 18, and the husband was required to pay for the upkeep of the home. Further the wife was ordered to pay 40% of the taxes and insurance and the husband 60% until the property was sold. On appeal we affirm the Trial Court’s Judgment with modifications. The husband will be allowed to utilize a care taker, if necessary, during visitation; the marital home will be sold within two years and the proceeds divided as decreed by the Trial Court. Following the sale the Trial Court is instructed to determine a new amount and duration of the alimony award.

In this medical malpractice case involving the alleged wrongful death of Walter Ray Alsip ("Mr. Alsip" or "the deceased"), we granted the plaintiffs' Tenn. R. App. P. 9 application for an interlocutory appeal in order to review the trial court's order allowing defense counsel to engage in ex parte dialogue with Mr. Alsip's last-illness, non-defendant treating physicians. We conclude that the trial court erred in entering the order that permitted defense counsel to have private conversations with the non-defendant physicians who treated the deceased during his last illness. Accordingly, we reverse the trial court's order.

This is a medical negligence case brought by a state prisoner. The plaintiff prisoner alleges injury stemming from an act of medical negligence by a state employee in August 2001, while the plaintiff prisoner was in state custody. In March 2002, the prisoner erroneously filed a lawsuit in chancery court, which was dismissed in January 2003. In February 2003, the prisoner filed the instant claim with the claims commission. The claims commission found that the statute of limitations was not tolled by the filing of the chancery lawsuit because the Attorney General had not agreed to transfer the chancery lawsuit, and dismissed the claim as untimely. The plaintiff prisoner appealed. This Court reversed the dismissal on the basis that the agreement of the Attorney General to the transfer was no longer required, and remanded for further proceedings. On remand, the claims commission found that the plaintiff prisoner’s claim was not in the class of cases eligible for transfer from chancery court, and on that basis again dismissed the plaintiff prisoner’s complaint as being untimely. The plaintiff prisoner again appeals. We affirm, concluding that the statute of limitations was not tolled by the erroneous filing of the chancery court lawsuit, and that consequently the plaintiff prisoner’s claim with the claims commission was untimely.

Parents of minor killed as passenger in a single-car accident brought wrongful death action against Defendants/Appellees, a husband and wife whose home decedent had visited, as an uninvited guest, in the hour preceding the accident. Trial court granted summary judgment for Defendants/Appellees. Parents/Appellants appeal, asserting that Defendants/Appellees owed a duty of care to decedent because they condoned the use of alcohol by minors in their home and thereby created a special relation with decedent. We affirm.

This case involves the authority of the General Sessions Court to set aside its own judgment. The plaintiff’s decedent died in January 2000. In January 2001, the plaintiff filed a medical malpractice claim in the General Sessions Court against the defendants. In April 2001, the General Sessions Court entered an order dismissing the case, without prejudice, for lack of prosecution. The General Sessions Court later determined that the order dismissing for lack of prosecution was erroneously entered. Consequently, in May 2001, the General Sessions Court entered a consent order setting aside its April 2001order. In December 2001, the plaintiff voluntarily nonsuited the General Sessions lawsuit, and the General Sessions Court entered a consent order of dismissal without prejudice. In June 2002, the plaintiff refiled her lawsuit in the Circuit Court below. The defendants filed motions for summary judgment based on the statute of limitations, claiming that the plaintiff was required to refile her lawsuit within one year of the April 2001 General Sessions order, dismissing for lack of prosecution. The defendants asserted that the General Sessions Court was without authority to adjudicate the matter further after the April 2001 order of dismissal was entered.  The Circuit Court disagreed and denied the defendants’ motions for summary judgment. The defendants were granted permission to file this interlocutory appeal. We reverse, concluding that the General Sessions Court did not have the authority to set aside its April 2001 judgment.

A would-be developer of a construction and demolition landfill sued the Metropolitan Government after its legislative body adopted zoning amendments that would effectively preclude the proposed landfill on the property the company had leased with an option to purchase. The company attacked the ordinances on multiple grounds and was successful in having the trial court declare them unconstitutional as violative of substantive due process and equal protection. Because of the company’s limited interest in the real property, however, the court refused to grant an injunction prohibiting the enforcement of the ordinances against the company or to award damages. The trial court also awarded attorney’s fees to the company. The Metropolitan Government appeals the holding that the ordinances were unconstitutional on the merits as well as on a number of procedural grounds and also appeals the award of attorney’s fees. The company appeals the trial court’s decision that the ordinances did not constitute exclusionary zoning. We affirm the trial court on all issues.

This is a mother's appeal of the termination of her parental rights to her son. After the Tennessee Department of Children's Services took custody of her son, it prepared a permanency plan requiring Mother to obtain therapy and case management services and perform other remedial tasks within approximately twelve months. After only six months, however, the Department filed a petition to terminate the mother's parental rights, and the court terminated her rights. Mother appeals claiming, in pertinent part, that the Department did not make reasonable efforts to reunite mother and son and that the Department did not prove by clear and convincing evidence that Mother committed severe child abuse. We have determined that the Department has failed to prove a ground for termination by clear and convincing evidence and, consequently, the judgment of the trial court must be reversed.

This interlocutory appeal involves a plaintiff who was injured while helping the contractor building his house cut a board. The sole issue concerns whether the contractor is equitably estopped from asserting the statute of limitations as a defense to the plaintiff's claims. The trial court determined that, by paying the plaintiff $10,000 for his medical expenses, the contractor's insurance company induced the plaintiff to believe the matter would be settled amicably without the necessity of a lawsuit. Thus, the trial court denied the contractor's motion for summary judgment, but granted the contractor an interlocutory appeal pursuant to Tenn. R. App. P. 9. We concur with the trial court that an interlocutory appeal will prevent needless, expensive and protracted litigation. We also agree that summary judgment is not appropriate because genuine issues of material fact exist. However, the trier of fact should decide whether the $10,000 payment induced the plaintiff to believe that the matter would be settled amicably, and, therefore, we vacate the trial court's order to the extent it makes specific findings with regard to the plaintiff's beliefs stemming from the $10,000 payment.

This is a parental rights termination case. The mother appeals the trial court's decision terminating her parental rights to two of her three children. On appeal, the mother argues, inter alia, that the evidence preponderates against the trial court's finding that grounds for termination exist and that termination is in the best interest of the children. We conclude that the record does not contain sufficient evidence to support the trial court's decision and therefore, we reverse.

This is a negligent construction case involving a statute of repose. The defendant developer bought the residential lot in question in 1992. The developer hired the defendant subcontractor to remove trees and perform the grading work necessary to make the lot suitable for the construction of a house. In 1993, the developer sold the lot to the defendant construction company, which constructed a house on the lot. In 1994, the construction company sold the lot and the house to purchasers not party to this litigation. In 1997, the purchasers sold the house to the plaintiffs in this case. A few weeks after the plaintiffs moved into the house, they noticed cracks in the walls and abnormal settling of the house. In April 2000, the plaintiffs filed this lawsuit against the construction company and the subcontractor for negligent construction of the house and negligent grading of the lot. The defendants filed motions for summary judgment based on the four-year statute of repose set out in T.C.A. § 28-3-202. The trial court granted summary judgment in favor of the defendants based on that statute. The plaintiffs now appeal the trial court’s grant of summary judgment only as to the defendant subcontractor. We affirm.
 

In this action involving child support, the issues are whether the trial court erred in finding that the father provided adequate discovery information regarding his income and assets; whether the trial court erred in ordering the mother to pay half the cost of the father's airfare to attend his deposition in Tennessee; whether the court should have awarded the mother more attorney's fees than it did; and whether the trial court erred in failing to hold the father responsible for a hospital bill for medical treatment of the parties' child. Finding no error, we affirm the judgment of the trial court and remand.

Tim Lewallen and Marietta Lewallen ("Plaintiffs") sued J.C. York, Jr. ("Defendant") claiming, in part, that Defendant was interfering with their lawful right to use an easement over Defendant's land. After a trial, the Trial Court entered an order holding, inter alia, "[t]hat an easement exists which runs with the land and burdens the defendant's property . . . ," and that Plaintiffs "have the use and benefit of the aforementioned easement for the purpose of ingress and egress." Defendant appeals claiming that the Trial Court erred in holding that Plaintiffs have an easement over Defendant's land, and also that the Trial Court erred in considering parol evidence regarding the easement. We affirm.

This case involves the conversion of personal property. For several years, the plaintiff son stored various types of equipment in a pole barn located on his mother’s property. The mother decided to sell her property and, in preparation for the sale, she hired the defendant scrap dealer to clear out the pole barn and sell its contents. The scrap dealer cleared out the pole barn and sold the son’s equipment for a total of $657. After the son learned of this, he sued his mother and the scrap dealer, claiming that they converted his property and asserting that the property was worth $22,000 if purchased new. After a trial, the trial court held that the mother and the scrap dealer had converted the son’s equipment, but awarded him $657 in damages, the salvage value of the property. The plaintiff now appeals. We affirm, finding that the son failed to submit proof of the actual value of the property at the time of the conversion.

This is a collection action. The defendant corporation owned an automotive repair shop. In order to obtain a line of credit to purchase automobile parts from the plaintiff auto parts supply company, the sole shareholder of the defendant corporation signed a personal guaranty. After the corporation had incurred about $20,000 on its line of credit, the plaintiff supply  company filed this lawsuit against the corporation and the individual shareholder to recover that debt. The shareholder argued that, before the debt was incurred, he sold the business to a third party and canceled his personal guaranty on the debt of the corporation. The trial court rejected that argument and entered a judgment in favor of the plaintiff against both the corporation and the shareholder. The shareholder now appeals. We affirm, concluding that holding the shareholder liable for the debt of the corporation is appropriate under these circumstances, regardless of  whether his personal guaranty remained intact.

This is a claim against an estate for personal services rendered to the decedent. The decedent's stepson and his wife provided personal services to the decedent for several years prior to her death. The decedent died intestate, leaving no issue. The decedent's nephew was appointed as administrator of the decedent's estate. The stepson and his wife filed claims against the estate on the theory of implied or quasi contract, seeking reimbursement for the expenses incurred in providing the personal services for the decedent. The decedent's estate filed an exception to those claims. After a hearing, the trial court granted a portion of the stepson's and his wife's claims for personal services, finding that an implied contract existed with the decedent as to those items. The estate now appeals. We reverse, finding that the evidence preponderates against the trial court's finding of an implied contract between the decedent and the claimants that the claimants would be paid for their services at the time the services were rendered.

This case involves codicils to a will. The decedent died testate. His will included one typed codicil and two handwritten codicils. The typed codicil, pursuant to a marital dissolution agreement, granted the decedent’s former spouse a life estate in his real property with the remainder to their children, and devised all of the personal property to the children as well. The decedent later handwrote two codicils addressing the disposition of certain personal property and debts. After his death, the devisee under the handwritten codicils intervened in the probate proceedings to enforce the codicils. The trial court ruled that the handwritten codicil addressing the personal property violated the marital dissolution agreement and was therefore invalid. It held that the codicil addressing the debt did not violate the marital dissolution agreement and that the estate should pay for the debt, as set forth in the codicil.  Other matters remained outstanding, and the trial court, under Tennessee Rules of Civil Procedure 54.02, made the order final. Because the outstanding matters could render this Court’s ruling moot, we find that the order was improvidently made final and dismiss the appeal.

Blount County -In this boundary dispute between two lot owners in adjacent subdivisions, the trial court relied on an old fence line to establish the boundary and award plaintiff damages for trespass. Given that the deeds and surveys were inconclusive, it is appropriate to look to the most reliable monumentation to establish the line. We affirm.