APPELLATE COURT OPINIONS

This is a child custody case. Father/Appellant appeals from the trial court’s Order, which
denied Father/Appellant’s Petition to change custody from the minor child’s grandparents to Father. Finding that there is not a material change in circumstances to warrant a change of custody and that Father is not entitled to the Superior Rights Doctrine, we affirm.
 

While I concur in the majority’s decision to reverse and dismiss this case, I feel it necessary to concur separately to state my understanding that our holding in this case is limited to an insured’s claim for collision damage coverage only. I believe there may be public policy considerations that would need to be considered in a case involving liability, as opposed to collision, coverage. That question is not now before us, and I do not believe those public policy considerations are applicable in a case such as the one now before us involving an insurance claim solely for collision damage coverage. I, therefore, concur in the majority’s decision to reverse and dismiss.

This appeal involves a former wife’s efforts to recover damages from her former husband for misdeeds during their marriage and following their divorce. Approximately ten years after the parties’ divorce in Louisiana, the former wife filed a pro se complaint in the Circuit Court for Davidson County seeking to recover $10,000,000 from her former husband for “eight years of trauma and distress, abuse and torture.” The former husband filed a pro se “exception” to the trial court’s subject matter jurisdiction. The trial court dismissed the complaint, and the former wife has appealed. We affirm the dismissal of the complaint.
 

This case involves the breach of an employment compensation contract. Under the sales employee’s compensation plan with his employer, he was to earn extra commission for any sales that exceeded his annual quota. In the compensation plan, the employer reserved the right to pay only the standard commission on “windfall” sales. For the fiscal year at issue, the sales employee exceeded his quota. The employer invoked the windfall provision of his compensation plan and paid him only the standard commission on the sales over his quota. The sales employee sued his employer, arguing that he was entitled to the extra commission on the sales over his quota. On cross-motions for summary judgment, the judge ruled in favor of the plaintiff sales employee. On appeal, the defendant employer argues that the “windfall provision” applies to all sales that were unbudgeted or unforecast and that the plaintiff sales employee’s excess sales fall in that category. We hold that the defendant employer’s interpretation conflicts with the plain meaning of the contract, and affirm the decision of the trial court.

The Trial Court dismissed the Complaint on a Motion filed pursuant to Tenn. R. Civ. P. 12.02(6). We vacate and remand because the Motion to Dismiss did not comply with the Rules of Civil Procedure.
 

In this appeal, Husband seeks to be relieved from his obligation to pay alimony in futuro to his former wife. In support of his request, Husband asserts that his former wife’s cohabitation with another man terminated his obligation since Wife was being supported by that third person and was in no need of alimony. The trial court denied Husband’s petition finding Wife was not living with a third person, had rebutted presumption that she does not need the alimony, and that no material change in circumstances had occurred to warrant modification of the initial award of alimony. We affirm those holdings. However, we reverse the trial court’s award of attorney’s fees to Wife.
 

This is a divorce case. The parties were married for three years prior to their separation, and two children were born during the marriage. The mother filed a petition for divorce, and the father filed a counterclaim for divorce. After a bench trial, the trial court entered a final decree of divorce and a parenting plan. In the plan, the father was permitted supervised visitation with the children, but was required to undergo a psychological evaluation in order to continue that visitation. The plan also provided that the children’s guardian ad litem would be the “binding arbitrator” on all matters involving the father’s visitation. The father now appeals, claiming that the trial court erred in requiring him to undergo a psychological evaluation and in appointing the guardian ad litem as the arbitrator on matters involving his visitation schedule. Because the father did not properly object to the issues raised on appeal, they are deemed to be waived. Therefore, we affirm.

The majority opinion concludes that the defendants’ motion to dismiss is deficient. I agree.
In Willis v. Tennessee Dep’t of Corr., 113 S.W.3d 706 (Tenn. 2003), the Supreme Court opined that Tenn. R. Civ. P. 12.06(6), construed in light of Tenn. R. Civ. P. 7.02(1), requires that a motion filed pursuant to 12.06(6) must state “why the plaintiff has failed to state a claim for which relief can be granted.” Willis, 113 S.W.3d at 709 n.2 (emphasis added). For example, in the instant case, the motion should have recited, on its face, that (1) the motion was filed pursuant to Tenn. R. Civ. P. 12.06(6), and (2) that the complaint fails to state a claim upon which relief can be granted “in that the claim is for breach of contract but fails to reflect a promise by any of the defendants,” or words to this effect. Having said all of this, I would hasten to add that I do not believe Willis requires that we vacate the trial court’s judgment in the case at bar.

I concur with the results of the court’s opinion. However, I have elected to file this separate
opinion because I cannot concur with several parts of the court’s analysis.
 

This is a breach of contract case. The plaintiffs entered into a contract to sell their home and
farm to the defendant. On the scheduled closing date, the defendant refused to purchase the property. The plaintiffs sold the property to a third party for substantially less than the amount the defendant had agreed to pay. In April 2002, the plaintiffs filed the instant lawsuit against the defendant for breach of contract. The defendant argued that he was fraudulently induced into signing the contract, because the parties had a verbal understanding that the contract would not be enforced. The trial court granted summary judgment in favor of the plaintiffs. The defendant now appeals. We affirm, finding that the defendant alleges promissory fraud, that evidence of the parties’ verbal agreement is inadmissible under the parol evidence rule, and that the evidence submitted by the defendant does not create a genuine issue of material fact regarding fraudulent inducement.

This case arises from the trial court’s grant of Appellee’s Motion for Summary Judgment based on interpretation of T.C.A. § 36-3-103(a). Finding that T.C.A. § 36-3-103(a) requires couples to obtain a marriage license for a valid marriage in Tennessee and that Marriage by Estoppel does not apply, we affirm.

This is an arbitration case. The plaintiff borrower executed a note in favor of the defendant bank. The note included an arbitration clause, requiring all disputes between the "Borrower(s)" and "Note Holder" to be arbitrated. The term "Note Holder" is defined in the note as the "Lender or anyone who takes [the] Note by transfer and who is entitled to receive payments under [the] Note." The bank transferred the note and the borrower began making payments to a third party. The borrower then filed this lawsuit against the bank and others, alleging fraud in the inducement, negligent misrepresentation, promissory fraud, and violation of the Consumer Protection Act. The defendants filed a motion to stay the proceedings and to compel arbitration. The trial court denied the motion. We affirm, holding that under the note, the bank is no longer a "Note Holder" and therefore does not have standing to invoke the arbitration clause.

This is a sales tax case. The plaintiff owns an aluminum sheet and foil manufacturing plant. Located in the plant are two multi-ton roll grinders. In 1987, the defendant commissioner of revenue took the position that the roll grinders and roll grinder supplies were exempt from sales tax, because the roll grinders constituted "industrial machinery," which were exempt. In 1995, however, the department of revenue conducted an audit of the plaintiff and changed its position, concluding that the roll grinders were "equipment used for maintenance," which is an exception to the industrial machinery exemption. Accordingly, the plaintiff was assessed for sales tax on roll grinder supplies purchased between 1995 and 1998. The plaintiff paid the assessment under protest and filed the instant lawsuit, seeking to recover the sales tax paid on roll grinder supplies for the audit period. The trial court upheld the decision of the department of revenue, concluding that the roll grinders were "equipment used for maintenance." From that order, the plaintiff now appeals. We affirm, finding that the roll grinders fit within the "equipment used for maintenance" exception and that, consequently, roll grinder supplies are subject to sales tax.

This case involves a default judgment. The plaintiffs filed a civil warrant in general sessions court against the defendant for intentional infliction of physical injuries. The defendant did not appear, and the plaintiffs obtained a judgment by default. The defendant appealed to the circuit court for a trial de novo. The circuit court set the case for trial. On the trial date, however, neither the defendant nor his counsel appeared, and the default judgment was reinstated. The defendant filed a Rule 60.02 motion to have the default judgment set aside, based on excusable neglect. The defendant's lawyer attached his own affidavit, which explained that the lawyer was in the midst of closing his law office after thirty-eight years of practice and, in the confusion, failed to put the hearing date on his calendar. The motion to set aside was denied. The defendant now appeals. We vacate and remand to the trial court to consider whether the defendant has a colorable defense to the plaintiffs' claims and to reweigh the pertinent factors in light of that finding.

Plaintiffs, horse-drawn carriage operators, filed a declaratory judgment action challenging the constitutionality of a provision of one section of an ordinance adopted by theMemphis City Council. The trial court elided the provision as an unlawful delegation of the City’s police power and enforced the remainder of the ordinance. Plaintiffs appeal, asserting the trial court erred in its application of the doctrine of elision. Defendants cross-appeal, asserting the trial court erred by finding the elided portion unconstitutional. We affirm.

Plaintiff appeals the award of summary judgment to defendant physician based on the statute of limitations for medical malpractice actions. We reverse and remand for further proceedings.

This is a child custody dispute. The mother and father entered into a permanent parenting plan naming the mother the primary residential parent of their daughter. Under the plan, the father had supervised visitation because the mother was concerned about sexual abuse by the father. The father later sought to modify the parenting plan to allow for unsupervised visitation. The mother then filed a notice that she intended to move to Florida with the daughter, which the father opposed. The trial court granted the father's petition for unsupervised visitation and denied the mother's request to relocate to Florida with the child. The mother and daughter then left for a scheduled trip to Florida, with the understanding that they would return for the father's scheduled visitation. The mother remained in Florida with the daughter for six weeks, asserting that she, the mother, was too ill to travel. The father was granted an emergency change of custody. The father then retrieved the daughter through a private investigator, coordinating with Florida officials. Upon return to Tennessee, the trial court found the mother in criminal contempt for interfering with the father's visitation and for moving to Florida. The father was named the primary residential parent and the mother was granted supervised visitation. The mother was also required to pay the father for the cost of the private investigator. The mother appeals the denial of her request to move to Florida with the child, the award of unsupervised visitation to the father, the finding of contempt, the change of custody, the requirement that her visitation be supervised, and the requirement that she pay the private investigator's fee. We affirm.

Mother appeals the termination of her parental rights to her two children. The circuit court found that Mother was in substantial noncompliance with the permanency plan, that she failed to remedy the persistent conditions that prevented her child's return, and that termination was in the child's best interest. We affirm. The record contains numerous extraneous documents that do not pertain to the petition to terminate parental rights or the issues raised on appeal. The parties and the clerk have a responsibility to abridge the record. Tenn. R. App. P. 8A(c). Failure to abridge the record may result in a reduction of the circuit court clerk's fee for the cost of preparing and transmitting the record.

This litigation arises out of a two-vehicle collision in Hawkins County. Teresa A. Martin ("the plaintiff") and her husband sued the driver of the other vehicle, Johnny L. Drinnon ("the defendant"), seeking damages and charging him with common law and statutory acts of negligence. The defendant answered and filed a counterclaim. The jury returned a verdict, finding the parties equally at fault. Judgment was entered on the jury's verdict and the trial court denied the plaintiff's motion for a new trial. The plaintiff appeals, raising, in effect, three issues. We vacate the trial court's judgment and remand for further proceedings.

Mother appeals termination of her parental rights. The juvenile court found that Mother was in substantial noncompliance with the permanency plan, that she failed to remedy the persistent conditions that prevented her child's return, and that termination was in the child's best interest. We affirm. The record contains numerous extraneous documents that do not pertain to the petition to terminate parental rights or the issues raised on appeal. The parties and the clerk have a responsibility to abridge the record. Tenn. R. App. P. 8A(c). Failure to abridge the record may result in a reduction of the juvenile court clerk's fee for the cost of preparing and transmitting the record. Tenn. R. App. P. 40(g).

This is an unemployment compensation case in which Appellant was denied benefits by the Tennessee Department of Labor and Workforce Development. At all administrative levels it was determined that Appellant was discharged for “misconduct connected with such claimant’s work” and that he was, therefore, disqualified from receiving benefits under Tenn. Code Ann. § 50-7-303. This ruling was then affirmed by the lower court. Appellant then timely filed this appeal challenging the ruling of the lower court. For the following reasons, we affirm and remand for further proceedings.

Robert T. Irvin sued the defendants for refusal to continue to accept his donation of plasma to The Plasma Center. Defendants filed a motion for summary judgment. The trial court entered an order stating that the complaint failed to state a cause of action and, that if Mr. Irvin’s cause of action lies in medical malpractice, he failed to meet his requisite burden in responding to the defendants’ motion for summary judgment. The motion for summary judgment was granted and Mr. Irvin appeals.

In this action for damages for breach of lease, the Trial Judge awarded damages in the amount of $25,000.00 and defendant has appealed.

TBC Corporation (“Plaintiff”) filed suit in the Chancery Court of Shelby County against Joe Wall, Helen Wall, Gene Wall and Geraldine Wall (collectively “The Walls” or “Defendants”) seeking a judgment for an amount due on an account secured by personal guaranties signed by defendants. The defendants filed an answer and a thirdparty complaint, the latter against Marvin Bruce, plaintiff’s president, (“Bruce”), by which they sought indemnification in the event plaintiff obtained a judgment against them. In their answer, the defendants denied that the guaranties were still in effect, and in addition, raised the affirmative defenses of release, waiver, abandonment and estoppel.1 The answer and third-party complaint also demanded a jury.

Melvin Thomas Hartman, Jr., appeals a divorce judgment rendered by the Circuit Court for Hamilton County, On apeal he insists that the Trial Court erred in its award of certain jewelry to his wife, Paua Ruth Sheffied Hartment, as separate property which was in fact marital preperty. Mr. Hartman also insists that the Trial Court made an inequitable division of the marital estate since the Trial Court refused to consider the tax consequences of awarding Mr. Hartman certain retirement funds in exchange for Ms. Hartman receiving the equity in their home and other real property. Mr. Hartman filed a motion for reference to a Special Master due to the "complex valuation and categorization issues. "