APPELLATE COURT OPINIONS

In this appeal, the Plaintiff argues that the trial court abused its discretion in dismissing his suit to contest a will and contends that the trial court should have held the case in abeyance instead. Upon motions of the Plaintiff, the trial court had continued trial of the will contest on two prior occasions to times requested by the Plaintiff. Given this finding and further findings that the Plaintiff never requested that the case be held in abeyance and that the Plaintiff neither filed a motion that the case be continued from the date of trial nor notified the trial court beforehand that he would not be present at trial, we affirm the judgment of the trial court and remand.

Two members of a homeowners' association, the governing body of a planned unit development, filed this complaint alleging that the association, a corporation, was in contempt of the court for its refusal to allow the plaintiffs to inspect corporation records. The trial judge declined to find the corporation in contempt. We affirm.

Plaintiff appeals the dismissal of her lawsuit as being time barred. Plaintiff timely filed an action for wrongful discharge of her employment. Summons was issued but never served on Defendant. Plaintiff then took a voluntary dismissal but did not serve, nor attempt to serve, a copy of the notice of voluntary dismissal, the order of dismissal or a copy of the initial complaint on Defendant as required by Tenn. R. Civ. P. 41.01. Plaintiff filed this action to revive her claim of wrongful discharge within one year of the voluntary dismissal of her first action but more than one year after termination of her employment. Defendant filed a Motion to Dismiss contending that Plaintiff's claims were time barred, which the trial court granted. Plaintiff appealed. We affirm.

Karen Ann Walton ("Mother") and William Arthur Tice ("Father") are the parents of a minor child ("the Child"). Mother and Father never married, but joined in filing a Petition for Legitimation averring that Father was the Child's natural parent. In 1994, the Trial Court entered an order finding the child support guidelines inapplicable due to the extensive amount of co-parenting time the Child spent with each parent. In 2003, Mother filed a petition seeking, in part, to modify Father's child support obligation. The case was tried and the Trial Court entered an order finding inter alia, that Father, although unemployed, "has the ability to earn substantial income in the amount of One Hundred and Sixty-Two Thousand Dollars ($162,000) per year and child support shall be set in the Guidelines amount of Two Thousand and Fifteen Dollars ($2,015.00) per month." Father appeals. We affirm.

Wife appeals a trial court judgment finding that she is not entitled to rehabilitative alimony, back child support, a portion of the husband's "paid time off" accumulated during the marriage and attorney fees. We reverse the trial judge's ruling that the wife is not entitled to rehabilitative alimony and remand the alimony issue to the trial judge to conduct a hearing to ascertain her need for rehabilitation and the husband's ability to pay. We affirm on all other issues.

This case is about termination of parental rights. The father was incarcerated, and the mother lived in a mobile home in abysmal conditions, with no telephone and no transportation. The child was born on the floor of the mobile home and hospitalized shortly thereafter. Due to the poor living conditions, the State took custody of the child. Over the next three years, the mother and father worked with the Department of Children’s Services in an attempt to remedy the conditions that prevented the child’s return. These conditions included alcohol and drug abuse and domestic violence. The juvenile court found that the parties continued to engage in physical abuse, and that the mother nevertheless continued to live with the father, creating unsafe living conditions for the child. The juvenile court terminated the parental rights of both parents, finding that the conditions that precluded the child’s safe return to the home still persisted after three years and would likely continue. The mother appealed. We affirm, finding that the evidence supports the juvenile court’s finding of persistent conditions.

Appellant, a Metropolitan Nashville police officer was seriously injured in an on-duty automobile accident when Defendant's vehicle crashed into the rear of his patrol car. Defendant was uninsured. Metropolitan Nashville was self-insured and did not provide uninsured motorist coverage for its patrol officers. Plaintiff named Nationwide as a defendant in an effort to recover under the uninsured motorist provision of the policy issued to him insuring his personal vehicle. Nationwide defended under a policy exclusion involving non-insured vehicles made available for his regular use. The trial court granted summary judgment to Nationwide, and we affirm the action of the trial court.

This case is about fraud and negligent misrepresentation. In the fall of 2000, the plaintiff employee accepted an offer for employment with the defendant's internet company. Approximately three months after the employee began work, the company became insolvent and closed. The employee sued the defendant owner of the internet company, asserting that the company owner made false statements to him regarding the financial strength of the company. The employee sought damages for breach of contract and for fraud and negligent misrepresentation. The employee received a judgment against the company for contract damages related to the employment contract. The company owner then sought summary judgment on the remaining claims of fraud and negligent misrepresentation. The trial court granted the company owner's motion for summary judgment, finding that the employee could not, as a matter of law, establish that he had relied on the company owner's statements that were the basis for the claims of fraud and negligent misrepresentation. The employee appeals. We reverse, finding that the employee's reasonable or justifiable reliance on the statements was a genuine issue of fact and thus summary judgment was not proper.

Tennessee Insurance Guaranty Association, a statutory agency created to meet certain obligations of insolvent insurance companies relative to workers' compensation, sued Centre Insurance Company seeking exoneration of certain workers' compensation obligations assumed by the agency upon the insolvency of Commercial Compensation Insurance Company. The trial judge granted summary judgment to Centre, and we affirm the action of the trial court.

This case involves the wrongful cutting of timber on the plaintiff’s property. Freddie D. Alley brought this action against McLain’s Inc. Lumber and Construction, which cut and harvested timber from his property after Defendant Stephen Snodgrass falsely represented to McLain’s that he owned the property and wanted to sell the timber. McLain’s filed a counter-complaint and a third-party complaint against the co-owners of the property, alleging their comparative fault in preparing and executing a contract for sale of the real estate to Mr. Snodgrass. The case was tried to a jury, which found the co-owners partially at fault, Mr. Snodgrass partially at fault, and no fault on the part of McLain’s. The issue presented is whether the trial court erred in failing to set aside the jury verdict and grant a new trial. We hold that based on stipulations prior to trial, there was no material evidence of negligence on the part of the co-owners. We also hold that the jury verdict is inconsistent. Therefore, we reverse the judgment in part, vacate in part and remand for a new trial.

This is the second appeal in an action to collect attorney’s fees. The plaintiff attorney represented the defendant in her divorce action, which lasted from 1996 to 1999. He billed the defendant approximately $100,000 for his services. Over the course of the divorce action, the defendant paid
the plaintiff about $61,000, and still owed a balance of about $39,000. The attorney filed this lawsuit to recover the balance. After a two-day trial, the trial court concluded that the plaintiff attorney’s fees were fair and reasonable, and that the defendant owed the plaintiff the fees claimed. The
defendant now appeals that decision. We affirm.

In this post-divorce proceeding, Wife sought an increase in child support based upon Husband's substantial inheritance from his mother. She also sought relief for Husband's alleged breach of the Marital Dissolution Agreement relative to the disposition of property. She further sought child support based upon imputed income of Husband because of voluntary underemployment. Husband appealed the judgment of the trial court. Wife assigned error as to certain findings by the trial court. We affirm as modified herein the judgment of the trial court.

Plaintiff/Patient filed a complaint against Defendant/Doctor alleging medical malpractice for failure to obtain her informed consent before operating. The trial court granted summary judgment to Defendant/Doctor on the basis that Plaintiff/Patient had failed to meet the burden of proof required by T.C.A. §29-26-115 and T.C.A. §29-26-118. Plaintiff appeals. We affirm.

Grantors erected a house and driveway over an easement which was then sold to grantees. Grantees brought an action for damages to encumbered property and the Trial Court awarded grantees damages. We affirm.

In this action for personal injuries allegedly due to defendant's negligence, the Trial Court granted defendant summary judgment on the grounds that plaintiffs had executed a Waiver and Release of Liability which was required by defendant prior to plaintiffs' participation in white water rafting. Plaintiffs have appealed, insisting the Release is void as against the public policy of this State. We affirm.

Petitioners, Mother and her husband, brought a petition to terminate Father’s parental rights on the grounds of abandonment. The trial court found that clear and convincing evidence did not support a finding a willful abandonment and dismissed the petition. We affirm.

Following the decedent’s death, his estate was not admitted to probate until well over one year from the date of his death. A creditor filed a claim against the estate over twenty-one months after the decedent’s date of death. The executors filed an exception to the creditor’s claim arguing that it was barred since it was not filed within one year of the decedent’s date of death. The probate court, relying on a previous decision rendered by this Court, held that the creditor’s claim was not barred by the applicable statutes. After reviewing the applicable statutory language and the decisions rendered by this Court interpreting those statutes, we reverse.

This appeal arises out of a divorce between the parties. In its decree, the trial court declared the parties were divorced, divided the marital property and the debts of the parties, ordered the husband to pay the entire balance of the guardian ad litem fees, named the wife the primary residential parent, and ordered the husband to pay wife child support. The husband now appeals to this Court. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

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.

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.

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.