APPELLATE COURT OPINIONS

This appeal arises out of an action filed by Appellee to confirm an arbitration award. Appellants contest whether Appellee, as a foreign corporation without a certificate of authority, may avail itself of the Tennessee judicial system to enforce the arbitration award. The trial court determined that Appellee was exempted from the requirement of obtaining a certificate of authority and confirmed the arbitration award in favor of Appellee. Additionally, the trial court denied Appellee’s request for attorney’s fees incurred to collect the arbitration award. For the following reasons, we affirm.

This case is about a motion to set aside an order of dismissal. In 1997, the plaintiff sued the defendant for damages resulting from a 1996 car accident. On February 18, 2002, the trial court signed an order dismissing the lawsuit for failure to prosecute. That order was not filed by the court clerk until two years later, on February 18, 2004. During the two years between the time the dismissal order was signed until it was filed, both parties continued discovery and negotiation. After discovering the dismissal in 2004, the plaintiff asserted that neither party had received notice of the dismissal. The plaintiff then filed motions under Rules 59 and 60 of the Tennessee Rules of Civil Procedure, asking the trial court to set aside the order of dismissal. The motions were denied, and the plaintiffs appeal. We reverse, finding that under the circumstances of this case, the order of dismissal should have been set aside.

The trial court increased Husband’s alimony obligation pursuant to the parties’MDA. It also denied Husband’s petition to modify alimony and increased Wife’s child support obligation retroactive to June 1, 2003. We affirm in part, reverse in part, and remand.

I must respectfully dissent from the majority’s holding that there should be no increase in alimony upon the younger child reaching the age of majority. As the majority states, the various provisions of the contract must be construed together, and we should seek to ascertain the intention of the parties based upon the usual, natural, and ordinary meaning of the language employed. Reading the provisions of the MDA, it is my interpretation that the intention of the agreement is clearly set out that “as each child reaches 18 years of age or graduates from high school or should have done so, whichever is the last to occur, the defendant will have to begin an additional alimony in futuro payment as herein before calculated.” (Emphasis added). This provision, coupled with the express provision of the MDA stating “furthermore, this obligation or these payments are to be made regardless of who the child is living with or who may have custody of the children when the child reaches or should have reached 18 years of age or graduates from high school,” indicates to this member of the Court that the obligation for additional alimony is not governed by whether Mr. Buettner would have any child support obligation payable but is governed by what he would have an obligation for in the way of child support based upon the guidelines.

This is a custody dispute. The trial court granted the father's petition to modify custody and changed primary custody of the parties' two minor children from the mother to the father, based on findings of a material change of circumstances and the best interests of the children. On appeal, we reverse the trial court's modification of custody finding there has not been a material change of circumstances justifying a change of custody and that the children's best interests are served by remaining with Mother.

Plaintiff National Bank of Commerce filed a declaratory judgment action seeking a declaration that its agreement with Defendant Universal Transaction Consultants, Inc. was null and void for Defendant’s failure to perform a condition precedent. Defendant counter-claimed for breach of contract and tortious interference with contract. The trial court determined that Universal Transaction Consultants had failed to prove damages and dismissed the claims of both parties. We affirm.

This is a will construction case. The testator died in 1912, leaving a holographic will. In the will, the testator left his real estate to his children for life, then to his grandchildren for life, then to his great-grandchildren until they became of age, then to be divided “as law directs.” In 1992, after the last grandchild had died, the great-grandchildren of the testator petitioned the trial court to interpret the will and set out the rights of the parties. The trial court concluded that the testator intended to leave the remainder interest in his property to the great-grandchildren per stirpes. The appellant great-grandchild filed the instant appeal, claiming that the trial court should have construed the devise as being per capita, not per stirpes. We affirm, concluding that the trial court’s finding of a per stirpes division of the property is consistent with the laws of intestate succession in Tennessee.

The Petitioner, an inmate in custody of the Tennessee Department of Correction, appeals from the order of the trial court dismissing his petition for common law writ of certiorari as being untimely filed. We affirm.

This is a post divorce child custody case. The trial court changed custody to the father based upon the mother's homosexuality and the effect it would have on the child as he grew older. We hold that the evidence preponderates against the trial court's finding that there had been a material change in circumstances to justify a change of custody in the absence of proof that the mother's sexual orientation had affected or would affect the child's well-being in any meaningful way. Accordingly, the trial court's decision is reversed.

I concur in the majority’s opinion. I write separately to stress that which is missing in this case, i.e., evidence, be it in the form of expert testimony or otherwise, showing that the subject child has been, or can reasonably be expected to be, adversely affected by his mother’s lifestyle. In my opinion, the trial court’s judgment must be reversed because of a lack of proof to support its critical finding of adverse effect.

I concur with the majority opinion on all issues raised except the final issue of enforceability of the contract, having only been signed by Flanary.

Gary Flanary filed suit against Carl Gregory Dodge of Johnson City, LLC (“the dealership”) and alleged that the dealership, without negotiation and without his consent or knowledge, had charged him an “administrative fee” in connection with his purchase of a vehicle. Flanary claimed that this practice violated, inter alia, the Tennessee Consumer Protection Act (“the TCPA”). He sought class action certification. The dealership filed a motion for summary judgment, relying upon the arbitration agreement (“the Agreement”) signed by Flanary to support its position that Flanary was required to arbitrate his claims. The trial court stated that it personally did not believe an agreement to arbitrate under the circumstances of this case was fair; but, nevertheless, it opined that it felt compelled by the current state of the law to hold that arbitration was mandated by the terms of the Agreement. Flanary appeals the trial court’s order requiring him to submit to arbitration. We affirm the judgment below to the extent the trial court, albeit reluctantly, held that the Agreement, on its face, is enforceable. However, based upon our determination that there is a genuine issue of material fact as to whether there was mutuality with respect to the obligation to arbitrate, we vacate so much of the trial court’s judgment as holds that the parties entered into a contract to arbitrate. Accordingly, we remand for further proceedings on Flanary’s complaint.

The plaintiff in this medical battery case argues that the trial court erred in granting the defendant doctor summary judgment and argues that a genuine issue of material fact exists as to whether she consented to an unnamed surgical procedure in addition to scheduled procedures named in a hospital consent form. The trial court granted the defendant's motion for summary judgment upon findings that the case was actually a suit for medical malpractice, rather than medical battery, and that the plaintiff failed to present expert proof that such surgery was not in her best interest. We vacate the judgment of the trial court and remand for trial on the merits upon our finding that the plaintiff's suit states a cause of action for medical battery; and that the consent form signed by the plaintiff authorized the additional surgery only if it was required by an unforseen condition and whether there was an unforseen condition requiring the additional surgery remained a genuine issue of material fact.

Plaintiffs-landowners filed a chancery court complaint seeking to establish ownership of a parcel of real estate which they claimed by adverse possession. The trial court dismissed the complaint pursuant to the provisions of T.C.A. § 28-2-110 (failure to pay real estate taxes for twenty years) and also allowed defendants to take a voluntary nonsuit of a counter-claim against the plaintiffs. Plaintiffs appeal. We affirm.

In this second appeal of this case, the Trial Court had ruled that appellee was entitled to a dwelling house and all improvements on land owned by the Deceased. Appellant appeals this and numerous issues. We affirm.

Appellants are residuary beneficiaries of their father's estate. They challenge the estate's payment of attorney fees and expenses incurred by executrix (the widow of testator and stepmother of Appellants) in unsuccessfully defending against her removal as executrix. Appellants contend that because litigation concerning the removal of their stepmother as executrix was solely for the personal benefit of the executrix and was necessitated by her neglect in administering the estate, the trial court erred as a matter of law in ordering the attorney fees and expenses incurred in defending against the removal petition be paid out of the estate. Appellee, the former executrix, contends that the trial court did not err in exercising its discretion in ordering legal fees to be paid out of estate. Finding that the trial court erred in ordering the expenses paid out of the estate, we reverse and remand.

The trial court dismissed Plaintiff’s petition to register and modify a foreign decree of child support for lack of jurisdiction. We reverse in part, affirm in part, and remand.

This is a termination of parental rights case. Father appeals from the order of the Juvenile Court of Benton County terminating his parental rights. Specifically, Appellant asserts that the grounds of failure to substantially comply with the permanency plan and persistence of conditions are not supported by clear and convincing evidence in the record, that the Department of Children’s Services failed to exercise reasonable efforts toward reunification and/or relative placement, and that termination of his parental rights is not in the best interest of the child. Because we find clear and convincing evidence in the record to support the trial court's findings, we affirm.

The sole issue in this case is whether extraneous prejudicial information was improperly brought to the attention of the jury.

The Trial Court awarded fees to the Guardian Ad Litem who asked the Trial Court to award him fees and costs for collecting the initial award. The Trial Court refused. On appeal, we affirm.

Debra Ann Williams ("Mother") and George Jay Williams, IV ("Father") were divorced in 1998. Mother was designated the custodial parent of the parties' two minor children. In 2003, Father filed a Petition for Modification and Contempt seeking, in part, a change in custody or visitation, and relief from the requirement that Father carry life insurance or, in the alternative, that Mother also be required to maintain life insurance. Mother filed a counter claim requesting, in part, increased child support and the right to claim the tax exemption for both children. After a trial, the Trial Court entered an order holding, inter alia, "that there has been no change in circumstances which would justify the modification of the final judgment" as requested by Father and dismissing Father's petition for modification. The Trial Court, however, increased child support in accordance with the guidelines and held that for purposes of calculating child support under the guidelines, Father was not entitled to a reduction in his annual earnings for state income taxes he may pay. Father appeals raising issues regarding custody, visitation, life insurance, child support, and attorney's fees. We reverse as to the award to Mother of the tax exemption for one child, and affirm as to all other issues.

This case involves a question of whether an insurance policy covers the injuries sustained by the plaintiff under the facts of this case. The original suit filed by plaintiff against Justin Harkins, Andrew Keon, and James Keon was settled out of court, leaving Great River Insurance Company, an unnamed defendant. After granting the plaintiff’s motion for declaratory and partial summary judgment on whether the plaintiff was a covered insured under the policy, the parties agreed to send the matter to arbitration. The arbitrator returned an award in favor of the plaintiff, and the trial court confirmed the award but reduced the amount, accounting for the insurance policy’s limit. The trial court also awarded the plaintiff pre-judgment interest but stated that the total award to the plaintiff could not exceed the limit in the insurance policy. Great River Insurance Company appealed to this Court, and the plaintiff filed a cross-appeal. For the following reasons, we affirm.

In Tennessee, a determination of child support is statutory. Jones v. Jones, 870 S.W.2d 281 (Tenn. 1994).¹ Accordingly, I would approach resolution of this appeal by resort to the applicable statutes.

Alfonzo Silvestre Arze (“Father”) and MaryAnne Bracken Arze (“Mother”) were divorced in 2000.  The divorce was based upon stipulated grounds of irreconcilable differences, and the parties submitted a marital dissolution agreement (“MDA”) to the Trial Court for approval. The terms of the MDA were agreed upon through mediation. At the time of the divorce, Father was employed as a physician with gross earnings of approximately $150,000. Mother was unemployed. Due to the significant disparity in income, Father agreed to pay Mother $2,000 in child support even though he was not obligated legally to do so since he was the primary residential parent for the parties’ four children. When the oldest child turned eighteen, Father reduced his child support payments by twenty-five percent, $500. After Mother challenged Father’s unilateral reduction in child support,  the Trial Court entered an order which required Father to pay child support in an amount consistent with the Child Support Guidelines (“Guidelines”). We conclude that because Father was not legally obligated under the Guidelines to pay any child support, the payment of $2,000 was purely a contractual obligation which was not governed by the Guidelines. We also conclude that Father was within his contractual rights when he reduced the child support payments by $500 when the oldest child became emancipated.

Appellant was an independent candidate for election to the United States Senate in the November 5, 2002, election in which he was defeated by the present incumbent Lamar Alexander. He seeks to have the election declared void on the basis that Alexander used his own money and accepted campaign contribution in support of his candidacy. He alleges that such self financing arrangements and campaign contributions financing violate the qualifications clauses and the equal protection and due process clauses of both the Federal and State Constitutions. Named as defendants were Lamar Alexander, Attorney General Paul Summers and the Lamar Alexander for Senate Committee. All defendants filed Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss, which motions were granted by the trial judge. We affirm the actions of the trial court.