APPELLATE COURT OPINIONS

This appeal involves protracted litigation concerning the zoning of a parcel of land located in Memphis, Tennessee. After a bridge, which provided the only access to the property, washed away, the landowner planned to install and maintain billboards on the subject parcel by helicopter. The landowner initially applied to the Memphis City Council to have the subject parcel re-zoned from agricultural uses to commercial uses. The Memphis City Council rejected the landowner’s application. The landowner filed a petition for review by common law writ of certiorari and an action for declaratory judgment in the circuit court. The circuit court entered an order reversing the decision of the Memphis City Council and remanding the case to the Council for a new hearing.  Upon remand, the Memphis City Council once again rejected the landowner’s application. The landowner filed a petition for contempt in the circuit court alleging the Council violated the court’s order on remand. The trial court found that, while the Memphis City Council violated the court’s order in every respect, it was not in willful contempt of the court’s order because it relied on the erroneous advice of its lawyer in interpreting the order. The trial court then proceeded to remand the case to the Memphis City Council once more for a new hearing. The City filed an appeal. We reverse the decision of the trial court and remand the case to the trial court for further proceedings consistent with this opinion.

This appeal arises from a claim for homeowner's insurance benefits. In 1998, a tornado damaged a home in East Nashville. The owner of the home held an insurance policy that provided coverage for guaranteed replacement cost above the policy limit, once repairs had been completed. After the insurer had paid the owner the actual cash value of the damage, the owner sold the home to the plaintiff for $80,000. Along with the sale, the owner assigned to the plaintiff the rights to any claims or proceeds under the insurance policy. The plaintiff, without making any repairs, began a process of attempting to collect supplemental proceeds under the policy. After the insurer failed to respond to the plaintiff's demand for an appraisal, the plaintiff submitted two sworn statements in proof of loss, claiming a total of $405,072.93 in replacement costs. The insurer rejected the plaintiff's proofs of loss, and this suit followed. Following a jury trial, the trial court entered judgment in favor of the plaintiff for $405,072.93, in addition to $35,000 in damages for bad faith. Because we find that the judgment entered by the trial court was the product of an inconsistent jury verdict, we vacate and remand.

The Trial Court enforced a mediated Settlement Agreement, reduced to writing and signed by the parties, over the wife's objection. On appeal, we affirm.

This is a child support case. The appellant is the father of eight children who are the subject of this dispute. The State filed a petition in the Juvenile Court alleging that the children were dependent and neglected due to the drug use of the mother and father. The mother and father stipulated to these charges and the children were placed in the care of relatives. The State later filed a petition to establish paternity and set support, seeking adjudication of numerous issues, including child support. The trial court ruled on the issue of child support, but did not rule on the other issues. Without seeking permission for interlocutory appeal, the father appealed the ruling on child support. We dismiss the appeal, finding that the order from which the father appeals is not a final order and is thus not properly before this Court.

In the 1940's, Tyler Seal received a life estate interest in a parcel of land with the remainder going to his heirs at law upon his death. In 1968, Tyler Seal conveyed his interest in the property to his brother, Clint Seal, via a deed which purported to convey a fee simple interest. This deed was not recorded until 1991. Tyler Seal passed away in March of 1996. Clint Seal deeded the property in fee simple to his son and daughter-in-law, Tony and Patricia Seal, the following year. This lawsuit was filed by various persons claiming an interest in the land because they were remaindermen pursuant to the will which originally conveyed the life estate to Tyler Seal. Suit was brought against Clint Seal as well as Tony and Patricia Seal ("Defendants"). Defendants claimed they were the rightful record owners of the property or, alternatively, that they were entitled to ownership of the property based on adverse possession. The Trial Court concluded Defendants were entitled to ownership of the property because they had adversely possessed the property for the requisite number of years and further that Plaintiffs' seven year statute of limitations to file suit had expired. We reverse.

This is a breach of contract case in which the controlling issue involves the commencement and conclusion of the term of an employment contract and, more specifically, when Plaintiff's guaranteed term of employment ended. The trial court determined that Defendant had breached the contract by terminating Plaintiff prior to the end of his employment term and awarded damages, together with contract authorized attorney fees and expenses. We affirm the judgment of the Chancellor.

This is a Title IV child support case. Father/Appellee was subject to a court order requiring him to make monthly child support payments. Mother allegedly requested to end Father’s child support obligation and Title IV-D services due to a private agreement between the parties whereby Father paid some child support directly to Mother. The State/Appellant, on behalf of Mother, filed a contempt petition against Father seeking payment of child support and arrears. Following a hearing, the trial court dismissed the support orders and forgave any arrears. The trial court also denied the State’s Motion to Alter or Amend the Judgment. The State appeals based upon T.C.A. § 36-5-101(a)(5) because no petition or motion to modify child support was filed and based upon T.C.A. § 71-3-124 because the State asserts it is entitled to reimbursement from the arrears for public benefits paid to Mother. We reverse and remand.

This case is about a construction lien. A real estate developer hired a contractor to perform paving work on new roads in a subdivision. After the work was completed, the contractor sent the developer an invoice for the work done, but the developer did not pay. Eventually, the developer paid a portion of the invoice. When no further payments were made, the contractor filed a lien on the developer's roadway. The contractor then sued the developer to enforce the lien. After the suit was filed, the developer asserted that the contractor's workmanship was poor and that, as a result, the pavement on the roadway was defective. The trial court found that the contractor had a valid lien and awarded a judgment against the developer and the developer's surety. The trial court also awarded the contractor prejudgment interest. The developer appeals, asserting that the road was public and not subject to lien, that the trial court made erroneous evidentiary rulings, that the trial court erred in finding that a variance from the listed measurements was permissible under the contract, that it should have been awarded a setoff against the contractor's judgment, and that the contractor should not have been awarded prejudgment interest. We affirm, finding that the contractor's lien was valid and enforceable, that the trial court did not err in its evidentiary rulings, that the developer failed to prove damages to setoff, and that the trial court did not abuse his discretion in the award of prejudgment interest.

The trial court dismissed Plaintiff’s causes of action for lack of subject matter jurisdiction. We affirm.

This appeal involves a claim for medical malpractice. The plaintiff’s cardiologist initially diagnosed her as having a heart condition which required surgery to repair. The plaintiff’s cardiologist referred the plaintiff to a cardiothoracic surgeon for surgical repair of the condition. The plaintiff subsequently sought a second opinion, and the second cardiologist determined that the plaintiff did not need surgery. Thereafter, the plaintiff’s original cardiologist apparently changed his diagnosis of the plaintiff’s condition. After some time passed, the cardiothoracic surgeon performed surgery on the plaintiff, which was ultimately determined to be unnecessary. The plaintiff sued her original cardiologist and the cardiothoracic surgeon for medical malpractice. Through discovery, it was determined that the cardiothoracic surgeon did not review the plaintiff’s entire medical records prior to performing the surgery. The cardiologist filed a motion for summary judgment arguing the cardiothoracic surgeon was the sole proximate cause of the plaintiff’s injuries. In response, the plaintiff submitted an affidavit from her expert witness stating that the cardiologist had a duty under the applicable standard of care to directly communicate his changed diagnosis to the cardiothoracic surgeon, and his actions were a “significant contributing factor” to the plaintiff’s injuries. The cardiologist filed a motion to strike the affidavit of the plaintiff’s expert as contradictory to his deposition testimony. The trial court partially granted the cardiologist’s motion. After doing so, the trial court granted the cardiologist’s motion for summary judgment. The plaintiff appealed to this Court, and we reverse.

In this legal malpractice action against attorneys, the trial court granted all defendants summary judgment. On appeal, we affirm on grounds that the statute of limitations ran before the suit was filed.

Following a hail storm which severely damaged the Appellees’ home, the Appellee contracted with the Appellant, a construction contractor, to repair the damage. The Appellees’ insurance policy covered the damage done to the home by the hail storm, but the Appellees entered into a collateral agreement with the Appellant to do additional work to the home. The insurance company paid for all work done by the Appellant in repairing the damage from the storm, but the Appellees refused to pay the balance due on work completed under the collateral agreement citing poor workmanship by the Appellant’s subcontractors. The Appellant subsequently filed suit against the Appellees in general sessions court seeking to recover the balance owed. Following a judgment in favor of the
Appellant, the Appellees appealed to the circuit court and filed a counterclaim against the Appellant.  Following a trial, the circuit court ruled in favor of the Appellees. In proving their damages, the Appellees presented the testimony of two expert witnesses at trial. The circuit court ruled that the proper measure of damages was the cost of repairing the defective work. The Appellant filed an appeal to this Court contesting the trial court’s selection of “cost of repair” as the appropriate measure of damages in this case, as well as the trial court’s evidentiary rulings regarding certain testimony. We affirm.

Plaintiff claims that his 1990 Nissan with over 200,000 miles was rendered inoperable due to Defendant’s installation of a faulty alternator. He seeks damages for the diminution in the value of the vehicle, wages he allegedly lost while the vehicle was inoperable, and damages under Tennessee’s Consumer Protection Act. Plaintiff’s claims under Tennessee’s Consumer Protection Act were dismissed upon summary judgment. During the trial, the court granted competing motions excluding both parties’ expert witnesses. The jury returned a verdict for the defendant on the remaining claims. Plaintiff appeals. We affirm.

The Fayette County Board of Commissioners denied Plaintiff/Appellant’s application for a change in zoning. The Chancery Court for Fayette County affirmed. We affirm.

In this termination of parental rights case, the juvenile court terminated the parental rights of the mother and father, and the mother appeals. We affirm.

Plaintiff, stepson of Clara Stewart, contends that attorneys-in-fact of Mrs. Stewart acted in violation of Tenn. Code Ann. 34-6-108(c)(6) and their confidential relationship with Mrs. Stewart, which deprived him of inheriting real property formerly owned by his father under the will of Mrs. Stewart. The attorneys-in-fact (Fiduciaries) are the daughter and son of Mrs. Stewart. They sold the property while their mother was mentally and physically incapacitated, living in a nursing home. The property was sold for substantially less than the appraised value to a daughter and son-in-law of one of the Fiduciaries and two of their friends. Mrs. Stewart, who inherited the property from Plaintiff's father, was the sole owner of the property at the time of the sale. The Fiduciaries, however, invested the proceeds in certificates of deposit with themselves identified as co-owners with Mrs. Stewart with right of survivorship. The Fiduciaries became sole owners of the entire sales proceeds upon the death of Mrs. Stewart. During the administration of Mrs. Stewart's estate, the Fiduciaries, now executors, advised Plaintiff that his devise adeemed by extinction. Plaintiff brought this action to recover the real property or the fair market value thereof from the Fiduciaries and/or the buyers. The trial court dismissed the complaint without making findings, stating only that it was not sustained by the proof. Plaintiff appealed. We reverse finding that the Fiduciaries acted in contravention of the power of attorney and Tenn. Code Ann. 34-6-108(c)(6) and breached their fiduciary duties to Mrs. Stewart, and award Plaintiff a judgment against the Fiduciaries for the net proceeds resulting from the sale of the devised property plus pre-judgment interest from the date of sale.

In this dispute over the plaintiff's share in the proceeds of the sale of the business, the Trial Court awarded Judgment to plaintiff in the amount of $571,453.00, plus interest based on the "sales price" as found by the Judge. On appeal, we affirm.

I continue to disagree with the standard of review employed by the Court in this case for reasons discussed at length in In Re Z.J.S. No. 2002-02235-COA-R3-JV, 2003 WL 21266854 at *18-22 (Tenn.Ct.App.June 3, 2003) (no Tennessee Rule of Appellate Procedure 11 application filed) and Estate of Acuff v. O’Linger, 56 S.W.3d 527, 533-37 (Tenn.Ct.App.2001). A preponderance of the evidence standard is inconsistent and irreconcilable with a clear and convincing evidence standard either in the trial court or on appeal.

I agree fully with the majority’s resolution of this case and the issues raised therein. I write separately, however, to express my concern with the apparent inconsistency in the grounds alleged by the Department. Specifically, while the parents’ failure to make reasonable efforts to provide a suitable home for the first four months after removal of the child from the home is a definition of abandonment, Tenn. Code Ann. § 36-1-102(1)(A), it is questionable to me whether the Department can rely on that ground when it has entered into a permanency plan that gives a parent one year to find stable and suitable housing. The majority found that ground unavailable because the Department did not use reasonable efforts, making it unnecessary to address my concern. I agree with that conclusion, but want to make it clear that some question about reliance on that ground may exist regardless of the Department’s efforts.

As found by the trial court, appellant, Guy G. Bigger, Jr., was defrauded by Anthony Fields and Guy Fields with regard to the sale of a 332 acre tract of land in Marshall County, Tennessee. The Fields’ conveyed a portion of the tract to the appellee, Patrick Smith. Mr. Bigger brought suit seeking, among other things, to set aside the Fields’ deed to Mr. Smith alleging it to be a fraudulent conveyance. The trial court found Mr. Smith to be a bona fide purchaser who gave adequate consideration for the transfer and denied relief as to Smith. Mr. Bigger appealed challenging the findings of the trial court. We find the evidence does not preponderate against the trial court’s findings and affirm.

This appeal involves a mother’s efforts to prevent the termination of her parental rights to her three children while she completes her treatment for methamphetamine addiction. After the Tennessee Department of Children’s Services took custody of the children, it devised a permanency plan obligating the mother to address her drug addiction and to complete other remedial tasks within twelve months. However, after six months of the mother’s failed attempts to restore order to her life, the Department filed a petition in the White County Juvenile Court to terminate the mother’s parental rights. Between the filing of the Department’s petition and the hearing, the mother made significant steps toward completing the tasks in the permanency plan. Despite the mother’s progress, the juvenile court terminated her parental rights on the grounds of abandonment, failure to comply with the permanency plan, and failure to remedy the conditions that had required the children’s removal. The mother has appealed. We have determined that the Department has failed to present clear and convincing evidence of one or more grounds for terminating the mother’s parental rights.

On May 27, 2004, the Juvenile Court Referee entered an order terminating the parental rights of S.A.M.H. ("Mother") to her two minor daughters. The Referee concluded that the State of Tennessee, Department of Children's Services ("DCS") had proven by clear and convincing evidence that grounds to terminate Mother's parental rights existed and that doing so was in the best interests of the children. Pursuant to Tenn. R. Juv. P. 4(c)(2), the Referee was required to inform Mother of her right to request a rehearing before the Juvenile Court Judge as well as the manner and time limits within which to perfect such a request. The Referee inadvertently failed to inform Mother than she had only five judicial days in which to file her request for a rehearing. Mother filed her request for a rehearing one day late. The Juvenile Court Judge dismissed Mother's appeal after concluding that it was untimely and the Referee's decision had become final after five judicial days. We vacate the judgment.

This case involves a dispute over the proper amount of child support to be paid for the parties' two minor children. Father requested a child support adjustment due to the emancipation of the parties' oldest child. He additionally requested a downward deviation of his child support payments due to significant additional parenting time in excess of that contemplated by the Tennessee Child Support Guidelines, as well as, significant additional monies paid for private school and other expenses for the children. The previous court order required Husband to pay $4,100 per month for their three minor children based on an income of $10,000 per month. The trial court determined that Husband's new child support amount for the remaining two minor children would be $3,700 per month. Father argued that the proper amount after the emancipation of their oldest child should reduce his child support to $3,200 per month. Father also argued that he should be entitled to a downward deviation reducing his child support to $1,000 per month for his two minor children. We agree with Father that the trial court incorrectly modified his child support following the emancipation of the parties' oldest child. Although Husband's current income is in excess of $10,000 per month, Wife did not carry her burden of proving that additional child support based on an amount over $10,000 per month is reasonably necessary. Child support should be set at 32% of $10,000, $3,200 per month. With regard to Father's request for a downward deviation of his child support obligation, we find that there has been no change of circumstances since the last court order and that this issue could have and should have been litigated at the time of the previous Order, so the matter is barred by res judicata. Child support is set at $3,200 per month for the remaining two minor children.

Appellant, the widow of decedent, appeals from probate court judgment that decedent died intestate. Decedent had executed an individual will, as well as a joint mutual will with Appellant, on the same day. Both wills executed by decedent contained revocation clauses purporting to revoke all prior wills. Neither Appellant, nor the witnesses to the execution of the wills, could recall the order in which Decedent executed the wills. Probate court held that, since each of Decedent’s two wills purported to revoke all prior wills and the order in which they were executed could not be established, Decedent died intestate. Finding no error, we affirm the judgment of the probate court.

Pro se plaintiff appeals the order of the trial court dismissing his personal injury lawsuit for failure to comply with an order compelling discovery. Because no order compelling discovery was entered by the trial court, we reverse.