APPELLATE COURT OPINIONS

This case involves a dismissal for failure to prosecute. In January 1988, the plaintiff residents filed this lawsuit against the defendant municipal officials for allegedly enacting an unconstitutional and unreasonable annexation ordinance. In 2003, after the case had been on the trial court’s docket for fifteen years with little activity, the trial court clerk filed a motion to dismiss for lack of prosecution. In June 2003, the trial court granted the clerk’s motion and dismissed the case. The plaintiff residents now appeal. We affirm, finding that the trial court did not abuse its discretion in dismissing the case. The caption of the case lists 17 Plaintiffs. However, the first 1 two named Plaintiffs, Dwayne and Julie Byrd (“the Byrds”), are now counsel to the Plaintiffs and are not real parties in interest. The suit was originally filed when the Byrds were law students and residents of Getwell West. Subsequently, the Byrds moved out of Getwell West, but entered appearances on behalf of the other Plaintiffs after they became licensed to practice law. 2On November 14, 1995, the trial court entered an order dismissing the case for lack of prosecution. Apparently, however, that order was inadvertently entered, and two weeks later the trial court set that order aside. -2- Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed.

This is an appeal from the trial court’s grant of an injunction against Appellant to remove its electrical lines and facilities from McNairy County. The trial court found that Appellant was a “nonconsumer owned electric system” and, as such, subject to injunction under T.C.A. §65-34-103. Finding that Appellant is, in fact, an “electric and community service corporation,” we hold that Appellant is not subject to injunction under T.C.A. §65-34-103. We reverse and remand.
 

Eight full-time Memphis police officers, all of them former officers with the Memphis Police Reserve, sued for declaratory judgment finding that time they served in the Memphis Police Reserve should be credited toward the thirty years of service required in order to receive an automatic promotion to the rank of Captain under Section 67 of the Memphis Charter. Plaintiffs argued that designation of reserve officers as “part-time employees” in Article III, Section 28-56 of the Memphis Code, entitles them to receive such service credit. The Shelby County Chancery Court denied their request for declaratory judgment. Plaintiffs appeal. We affirm.
 

This action arises out of Appellant's parole hearing proceedings. Subsequent to his original parole hearing, Appellant filed a petition for writ of certiorari with the Davidson County Chancery Court. Upon Appellant's motion for summary judgment and Appellee's motion to dismiss, the trial court granted Appellee's motion to dismiss and denied Appellant's motion for summary judgment. For the following reasons, we affirm.

Linda Jane Holt ("Plaintiff") and Billy Dale Holt ("Defendant") were divorced in June of 2002. As part of the divorce judgment, Plaintiff was ordered to sell the marital residence and give $20,000 of the proceeds to Defendant. Defendant filed a petition for contempt in July of 2003, claiming Plaintiff had not sold the house. Plaintiff answered and filed a counter petition claiming Defendant had violated a permanent restraining order contained in the divorce decree by writing letters to her and their daughter. The Trial Court ordered Wife either to sell the house within four months or the Court Clerk would sell it at public auction. The Trial Court also ordered that Defendant be permanently restrained from sending Plaintiff and the parties' daughter letters or other written correspondence. The Trial Court also ordered Defendant to pay Plaintiff's attorney's fees and costs in connection with the petition for contempt and the counter petition. Defendant appeals the award of attorney's fees and costs. We vacate the award of attorney's fees and affirm the award of costs.

The parents in this child support proceeding have three children – twins conceived during their marriage and one child conceived after their divorce. Because of pre-2003 jurisdictional restraints, proceedings to set child support were simultaneously pending in both the Circuit Court for Davidson County and the Juvenile Court for Davidson County. The juvenile court awarded the mother a $23,273.50 judgment for retroactive child support for the youngest child and based the father’s prospective child support obligation on his ability to earn $40,000 per year. The circuit court, without considering the juvenile court’s order, calculated the father’s child support for the twins based on $25,761, the imputed annual income in the Child Support Guidelines, and then increased the amount because of extraordinary medical expenses of one of the twins. The mother has appealed the circuit court’s decision to base the father’s child support for their two older children on $25,761 per year rather than on $40,000 per year. The father has appealed both judgments. He asserts that the juvenile court erred by basing his child support for the parties’ youngest child on a $40,000 annual income and by failing to grant him requested credits against his retroactive child support. He also complains that the circuit court erred by increasing his child support because of the medical expenses of one of the twins and the combined effect of the two judgments which require him to pay This is not expressly stated in the order but it is stated in the parenting plan. 1 -2- 53% of his net income in child support, rather than 41% as provided in the Child Support Guidelines. We have determined that the juvenile court’s judgment for retroactive child support should be vacated because the father is entitled to credit for his voluntary child support payments. We have also determined that the father’s child support obligation for all three children should be based on $40,000 per year and that the combined amount of child support obligation should be 41% of his net income, with an upward adjustment for the extraordinary medical expenses of one of the twins. Finally, based on the 2003 statutes affecting the jurisdiction of the juvenile and circuit courts, we have determined that the proceeding in the juvenile court should be transferred to the circuit court and that all future matters regarding these children should be adjudicated in the circuit court.
 

Brent G. Johnson ("Father") and Kimberly S. Johnson ("Mother") were married with their only child, a daughter, being born in October of 2000. The child was born with a rare metabolic disorder resulting in developmental delays, among other things. The parties separated shortly after their daughter was born. Mother then moved to West Virginia with the parties' daughter. Father filed for divorce and Mother counterclaimed also seeking a divorce. Both parties sought to be designated as the primary residential parent of their young daughter. At a hearing to determine temporary custody, the parties reached an agreement whereby Mother would return to Tennessee within three months and Mother would be designated as the primary residential parent pending the trial. The Trial Court entered an order setting forth this accord and establishing Father's visitation schedule pending Mother's return. Mother reneged on her agreement, refused to return to Tennessee, and then set about to systematically and intentionally prevent Father from having any meaningful co-parenting time. The Trial Court later entered a final judgment designating Mother as the primary residential parent, but requiring Mother to return with the child to Tennessee and to stop interfering with Father's co-parenting time. Mother appeals claiming the Trial Court was without authority to order her to return to Tennessee. The Trial Court's order designating Mother as the primary residential parent is affirmed if Mother voluntarily returns to Tennessee. If Mother chooses not to return, the Trial Court's judgment designating Mother as the primary residential parent is vacated, and the Trial Court is instructed to determine which parent then should be designated as the primary residential parent consistent with the best interest of the minor child, with the understanding that should primary residential custody remain with Mother in West Virginia, Mother will continue to do her best to prevent Father from having any meaningful relationship with his daughter.

The trial court determined that the boundary line separating the parties’ properties was established by an old fence line. We affirm.
 

This declaratory judgment action was filed by Allstate Insurance Company which seeks a ruling that its named insureds under a homeowners' insurance policy had no coverage and that Allstate had no duty to defend an action brought by a third party seeking damages resulting from the intentional and criminal acts of their son who resided in their home. The insureds' adult son shot his girlfriend at the home of his parents. She filed a tort action against the son and his parents alleging inter alia that the parents failed to render aid after the shooting. The policy excludes intentional and criminal acts by an insured. The son was an insured because he resided in the home with his parents. The policy also contains a "joint obligations clause" that excludes coverage for injury which may reasonably be expected to result from the intentional or criminal acts of any insured. Upon summary judgment the trial court held that the parents were not covered and that Allstate had no duty to defend the parents in the underlying tort action. We reverse finding the claim that the parents failed to render aid after the shooting constitutes a claim of separate and independent acts of negligence by the parents to which the exclusion and joint obligations clauses do not apply.

This dispute arises from the assessment of the “contractor’s use tax” against Sodexho Management, Inc. for its use of personal property owned and utilities provided by David Lipscomb University. Sodexho used the university’s property to provide food service for the tax-exempt university. The Commissioner assessed a use tax on the value of the personal property and utilities provided by the university because the university, as an exempt organization, had not previously paid sales tax. The pivotal issue is whether Sodexho operated the food service as an agent of the tax exempt university or as an independent contractor. The Chancellor held that Sodexho was an agent of the its burden of proof to establish that it was an agent of the university and thus is liable for the use tax. Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded
 

This case involves the termination of Mother’s parental rights. The trial court found clear and convincing evidence to terminate Mother’s parental rights on the grounds of (1) persistent conditions and (2) substantial noncompliance with the permanency plan. Additionally, the trial court determined that termination of Mother’s parental rights was in Child’s best interest. Mother appeals the decision of the trial court. For the following reasons, we affirm.
 

Workers compensation carrier, intervening Plaintiff in a suit to recover for personal injuries sustained by employee of its insured, appeals the Trial Court’s action in awarding one-third of the proceeds of settlement of damage suit to counsel for the injured employee as attorney fees. Finding no error in the action of the trial court, we affirm.
 

The trial court awarded judgment to Plaintiffs upon determining that the Bank of Friendship could not foreclose on Plaintiffs’ properties because the Bank had failed to apply proceeds from a sale under a deed of trust to a senior deed of trust. We reverse and remand for further proceedings.

This is a premises liability case wherein the plaintiff alleges that she was injured when she slipped and fell on spilled baby food while shopping at the defendant's store. After trial of the case before a jury, the trial court granted the defendant's motion for a directed verdict and dismissed the case upon grounds that the plaintiff failed to present proof that the defendant had notice of an unreasonably dangerous condition. We affirm the judgment of the trial court and remand.

This is an appeal from a jury verdict finding that all parties involved were without fault in an automobile accident. We affirm.

Judgment debtor filed motion seeking to enjoin execution sale at which stock owned by debtor in judgment creditor corporation was scheduled to be sold; alternatively, debtor sought to quash the execution, alleging that the stock was exempt property. At execution sale, debtor’s stock was purchased by judgment creditor. Debtor subsequently sought to have execution sale set aside, alleging that there were defects in the manner in which the sale was conducted and asserting that the trial court should have held a hearing on his motion to quash the execution prior to the sale. Following a hearing the trial court denied relief holding that debtor had not pursued his request for injunctive relief and that the motion to quash was moot. Debtor appealed. While this case was pending on appeal, the Tennessee Supreme Court reversed the summary judgment against debtor, which led to the monetary judgment the execution sale was held to enforce and remanded for a trial on the merits. Having determined that the resolution of the issues raised in this appeal is subject to factual determinations which are within the scope of the remand, we vacate the decision of the trial court and remand this case for consideration in light of the issues to be determined.

This is a termination of parental rights case. Mother appeals from the order of the Juvenile Court of Benton County, terminating her parental rights on the grounds of persistence of conditions. Specifically, Mother asserts that the trial court erred in admitting evidence of an event that occurred after the Petition to Terminate had been filed, that the termination of her parental rights is not supported by clear and convincing evidence in the record, and that termination is not in the best interest of the children. We reverse and remand.
 

At issue in this appeal is the legislature’s authority, under the Tennessee Constitution, to impose mandatory closing times on adult-oriented businesses in order to combat the secondary effects associated with those establishments. Appellants, Clinton Books, Inc. (“Clinton Books”) and Fantasy Warehouse, Inc. (“Fantasy Warehouse”), challenge the constitutionality of T.C.A. § 7-51- 1402 through 7-51-1406 (“the Act”), arguing that the Act violates several rights guaranteed by the Tennessee Constitution, among them the rights of religious and expressive freedom, due process, and equal protection of the law. Appellants further contend that the trial court erred in ruling on the merits of their claims during the hearing on a motion for temporary injunction. We affirm in part, reverse in part, and remand for further proceedings.
 

This appeal involves the termination of a commercial real estate lease agreement. Among a multitude of other claims, Plaintiff, Lessee, contends that Defendant, Lessor, breached the lease by failing to provide lessee with notice of default, sufficient to satisfy the terms of the lease. Additionally, Lessee argues that Lessor violated section 29-18-101, et seq. of the Tennessee Code Annotated (Forcible Entry and Detainer) by re-entering the leased premises without first obtaining a writ of possession. Lessee appeals from the trial court’s final judgment in favor of Lessor. We affirm as modified.
 

Appellants sought the rescission of a quitclaim deed from a mother to her son upon the grounds of undue influence, fraud, and lack of independent advice. The trial court found that the quitclaim was not invalid on any of these grounds. We affirm.
 

This appeal arises out of a grant of summary judgment in favor of Appellees in a medical malpractice action. The trial court held a preliminary hearing, without a jury, to determine if Appellant could establish the essential elements of such an action, particularly the element of causation. After Appellant presented her experts’ testimony regarding causation for Appellant’s medical malpractice action, the trial court granted Appellees’ motions for summary judgment. Appellant filed an appeal to this Court, and, for the following reasons, we reverse and remand for further proceedings consistent with this opinion.

This is a claim against a union for negligence. The plaintiff was a correctional officer at a county correctional facility and a member of the defendant union. The employee was terminated from his job after he was arrested for possession of a controlled substance. The employee sought the union’s assistance in appealing his termination through the county grievance process. After his grievance was preliminarily denied, the union had fifteen days in which to appeal the denial by requesting arbitration of the employee’s case. The employee urged the union to file a request for arbitration, and the defendant union officer agreed to do so. However, the defendant union officer failed to submit the request for arbitration by the deadline, and consequently the request was denied as untimely. The employee then sued the union and the union officer, alleging that the union officer’s conduct was negligent and that it constituted a breach of contract. After a bench trial, the trial court rejected the employee’s breach of contract claim. It concluded that the defendants’ failure to request arbitration in a timely manner was negligent, but that the negligence did not cause the employee’s damages. The employee now appeals. We affirm the dismissal of the breach of contract claim, but reverse the dismissal of the negligence claim, finding that the evidence preponderates against the trial court’s conclusion that the employee failed to prove causation of his damages.

The parties were married in 1980 with no children born of the marriage. The parties separated a number of times during their marriage. During a period of separation, in April of 1995, the parties signed a contract entitled Marital Dissolution Agreement, which, among other things, settled their rights in property acquired during their marriage. They reconciled in 1997 and lived together for some six months until their final separation, which was followed by Wife’s Complaint for Divorce filed June 11, 2001. The trial court held that the Agreement had been freely executed by both parties and meticulously followed until the time of the divorce Complaint. The parties were divorced by joint stipulation pursuant to Tennessee Code Annotated section 36-4-129, and following final hearing, the trial court held the 1995 Agreement to be fair and equitable and divided property accordingly. Wife appeals, and we affirm the judgment of the trial court.
 

This is a construction case. The defendant homeowners had an oral contract with the plaintiff contractor to perform renovations on their home. After problems with the renovations arose, including flooding of the home after a rainstorm, the homeowners terminated the contractor. The contractor filed a claim seeking enforcement of a lien on the improved property or payment for the work done on theories of breach of contract, quantum meruit, and unjust enrichment. The homeowners counter-claimed that the contractor owed them for the cost of repairing the contractor’s defective work. After a bench trial, the trial court found that the contractor’s work fell well below the applicable standard and awarded the homeowners damages for the repair of the contractor’s defective work. We affirm.

Rebecca Paige Mulkey (“Mother”) and Bradley Warren Mulkey (“Father”) were divorced in 1996. The parties agreed that Mother would be the primary residential parent of their two minor daughters with Father having reasonable visitation rights. Several years later and after Mother had remarried, Father filed a Petition for Change of Custody claiming the older child had been physically abused by her step-father. The Trial Court temporarily transferred custody of the children to Father and indicated this arrangement would be reviewed periodically. After the older child recanted her allegations of physical abuse, the Trial Court ordered that she be examined by a psychiatrist. An examination was undertaken and the psychiatrist concluded there was no evidence of abuse “of any kind.” The Trial Court later entered a judgment and held that its previous temporary decision to designate Father as the primary residential parent was to be the final determination. Mother appeals claiming the Trial Court erred when it transferred custody of the children to Father because Father failed to prove there had been a material change in circumstance. We agree and reverse the judgment of the Trial Court.