APPELLATE COURT OPINIONS

This appeal involves an order of protection. After several public confrontations with his former girlfriend, the petitioner sought an order of protection from the Chancery Court for Sumner County. The trial court granted the order of protection, and the former girlfriend appealed to this court. Because the evidence does not preponderate against the trial court's decision, we affirm.

This is an appeal from the trial court’s order, which increases Appellant/Father’s child support obligation to an amount consistent with the Tennessee Child Support Guidelines. Appellant contends that the trial court erred in failing to consider his extensive visitation with the child in declining to deviate downward from the guidelines. We affirm.

While I concur with the decision to affirm the trial court’s dismissal of Mr. Demers’s claims in this case, I write separately to point out that the outcome may very well have been different had we employed the standard customarily used to review orders granting a Tenn. R. Civ. P. 12.02(6) motion to dismiss. However, by using affidavits to oppose the motion to dismiss, Mr. Demers has succeeded in converting the Tenn. R. Civ. P. 12.02(6) motion to a motion for summary  Thus, rather than reviewing Mr. Demers’s amended complaint to determine whether it states claims upon which relief can be granted, we need only determine whether, based on the undisputed facts, the defendants have demonstrated that they are entitled to a judgment as a matter of law.

This case involves a claim for negligence brought by Appellant, an inmate in the custody of the Tennessee Department of Correction. Appellant filed a claim with the Tennessee Division of Claims Administration, which was subsequently transferred to the Tennessee Claims Commission. The Commission determined the claim was time barred, and Appellant appealed this decision to this Court. We reverse and remand for further proceedings.
 

This appeal involves the juvenile court's termination of parental rights to two children, A.L.B. (d.o.b. 10/25/96), and B.L.B. (d.o.b. 12/01/98). Appellant argues that the trial court's findings regarding abandonment of the children, persistent conditions, and the children's best interests are unsupported by clear and convincing evidence. We affirm the trial court.

In this appeal an unsuccessful plaintiff seeks review of a jury verdict approved by the trial court, in favor of the defendant manufacturer. We affirm.

This case involves the death of a passenger who was involved in a high speed police chase. The Tennessee Claims Commission granted summary judgment to the State and passenger's personal representative appealed, primarily on the ground that the Claims Commission erred in granting summary judgment prior to an opportunity to take the discovery deposition of the involved highway patrolman. We affirm.

Employee was discharged from employment for refusing to follow orders. The Commissioner denied employee unemployment benefits, and employee appealed to the Court which affirmed the ruling of the Commissioner. On appeal to this Court, we affirm.

The trial court awarded plaintiff judgment for rents on property occupied by defendants, but refused judgment for defendants for improvements made by them to plaintiff's property. On appeal, we reverse and award defendants judgment for improvements made to the property and modify plaintiff's judgment for the rental value of land.

Plaintiffs sought recovery of cashier's check on theory of bailment or resulting or constructive trust. From an adverse Judgment by the Chancellor, plaintiffs appealed. We affirm.

Former employee of Nissan North America, Inc. filed this action against Nissan alleging retaliatory discharge following his filing of a workers' compensation claim. A discovery dispute ensued wherein Nissan objected claiming the requests were not relevant and that it would violate the Americans with Disabilities Act if it provided the discovery. The trial court modified the discovery and ordered Nissan to: 1) list every employee terminated between August 2000 and January 2002 and the reason for the termination; 2) identify which of these employees filed workers' compensation claims or received workers' compensation benefits within one year preceding their respective termination; and 3) identify each employee that Nissan or its agents either conducted surveillance on or requested that surveillance be conducted on between August 2000 and January 2002. We reverse, finding that the plaintiff failed to make a compelling showing of relevance and failed to establish that the value of the discovery sought, which pertained to information contained in the personnel and medical records of current and former employees of Nissan, outweighed the privacy interests of those individuals who were not parties to this action.

Anna Faye Floyd, Michael Everette Floyd, and David Earl Floyd, minor children, by and through their mother and natural guardian Linda Floyd ("Plaintiffs"), sued Johnny Tesar, Marsell Tesar, Jobey Green, Wilburn Green, and Martha Lee ("Defendants") to quiet title to land in Sevier County, Tennessee. After a bench trial, the Trial Court held, inter alia, that the minor Plaintiffs are the true owners of the land, and that Defendants Johnny Tesar and Marsell Tesar had committed fraud upon the Plaintiffs, knowingly clouded Plaintiffs' title, and trespassed upon Plaintiffs' land. The Trial Court also awarded Plaintiffs damages and attorney's fees against Defendants Johnny Tesar and Marsell Tesar. Defendants appeal but raise no specific issues on appeal and point to no error in the record. We affirm.

Knox County Commissioner Wanda Moody ("Plaintiff") made a Public Records Act request for numerous documents in the possession of Timothy Hutchison, the Sheriff of Knox County ("Defendant"). Defendant responded and provided some, but not all of the requested documents. Plaintiff eventually sought to have Defendant held in criminal contempt claiming at least fifty of his responses to the various document requests were false. After a trial on the criminal contempt charges, the Trial Court concluded Defendant made "at least six" false representations which amounted to criminal contempt, and imposed the maximum fine of $50 for each offense, for a total of $300. Defendant appeals claiming, among other things, that the proof failed to establish that he was guilty beyond a reasonable doubt of criminal contempt. We affirm the judgment of the Trial Court.

Larry Gene Varner and Todd Duncan (“Defendants”) contracted with Joel Frazier d/b/a Timberline Construction Company (“Timberline”) for construction of a building on Defendants’ property. Timberline then contracted with Ruffin Building Systems, Inc. (“Plaintiff”) for Plaintiff to provide certain materials for the construction. Defendants paid Timberline, but Timberline never paid Plaintiff. Plaintiff sued Defendants on its materialman’s lien. The Trial Court granted Defendants summary judgment holding, inter alia, that Plaintiff did not comply with the notice requirements of Tenn. Code Ann. § 66-11-115. Plaintiff appeals. We affirm.
 

This case arises out of a motor vehicle accident, which resulted in the death of Deceased, a farepaying passenger of a bus. Plaintiffs, Deceased’s heirs, brought a wrongful death action against the driver of the Cadillac in the bus/car collision and Defendants, the driver of the bus and the Memphis Area Transit Authority. At the close of Plaintiffs’ proof, the trial court granted Defendants’ motion for involuntary dismissal pursuant to Rule 41.02(2) of the Tennessee Rules of Civil Procedure. For the reasons stated below, we affirm the decision of the trial court.
 

Natural father of minor twin children appeals trial court's final order of custody and visitation on multiple grounds, alleging primarily that (1) the trial court erred in awarding visitation to stepfather; (2) the trial court erred in refusing to change children's surname to that of their natural father; and (3) the trial court improperly based its opinion on a sealed psychological report. We affirm in part,  reverse in part, and remand.

Plaintiff, a minor student, brought suit for damages arising from an eye injury he sustained during recess at school. The Defendants, which are both governmental entities, moved for summary judgment, arguing that they are immune from suit and that Plaintiff cannot, as a matter of law, establish the elements of his negligence claim. After conducting a hearing, the trial court granted the Defendants summary judgment on both grounds. For the following reasons, we affirm the ruling of the lower court.
 

Plaintiff First National of North America, LLC (FNNA) brought a claim for unjust enrichment against Michael Marks. Marks had refinanced his home mortgage through Morgan International, which was owned by Jerry Levine. The purpose of the refinancing was to pay off an existing mortgage owing to a third party and to obtain net proceeds of approximately $44,000 for Marks’ other needs. Unknown to Marks, the funds for Marks’ loan were provided to Levine by FNNA pursuant to a Commercial Loan and Servicing Agreement between FNNA and Levine. The refinancing transaction closed and Marks received net proceeds of $44,394 at the closing; however, National Bank. For almost a year Marks was unaware that the pre-existing mortgage was not paid making the payments, First American initiated foreclosure proceedings against Marks. Marks paid the arrearage and maintained the mortgage with First American. Marks sued Levine and Morgan International. FNNA intervened as a party plaintiff against Levine and Marks. FNNA obtained a judgment based on contract against Levine but Levine was discharged in bankruptcy without any recovery to FNNA. Thereafter, FNNA obtained a judgment against Marks for $38,000, on the theory of unjust enrichment, plus pre-judgment interest. Marks appealed claiming he had a contractual relationship with FNNA that precluded a recovery under unjust enrichment. We affirm.

WILLIAM C. KOCH, JR., P.J., M.S., dissenting. Both First National of North America, LLC and Michael Marks were victimized by Jerry Levine’s shady mortgage brokering. When the dust settled, Mr. Levine did not effectively assign Mr. Marks’s note and deed of trust to First National, thereby leaving First National with no security. At the same time, Mr. Levine did not pay off Mr. Marks’s existing mortgage, leaving him even deeper in debt than he was before. The majority has decided that Mr. Marks should bear the brunt of Mr. Levine’s defalcations by requiring him to partially indemnify First National. I disagree.

Several years after Dana Bryan Ellis ("Father") and Susan Lynn Ellis (Johnson) ("Mother") were divorced, Mother filed a petition seeking to increase Father's child support payments. Father filed a counterclaim seeking a downward deviation in his child support payments claiming he was exercising visitation in excess of that contemplated by the Child Support Guidelines. After a trial, the Trial Court found Father's annual gross wages were $80,000 and set current child support  payments based on that amount. The Trial Court also awarded retroactive child support to the date the petition for modification was filed and concluded the retroactive support also should be based on Father's current salary of $80,000. The Trial Court denied Father's request for a downward deviation after concluding it was in the best interests of the children not to reduce Father's child support payment. Father appeals. We affirm in part, vacate in part, and remand.

Appellants sued Appellee on theories of common law misrepresentation and violation of the Tennessee Consumer Protection Act, arising from the sale of a used vehicle. A jury returned a verdict for Appellants on both theories and Appellants elected to take their remedy under the common law claim, which included an award of punitive damages. The trial court denied Appellants’ prayer for attorney fees, which were not available under the common law remedy but only under the Consumer Protection Act claim. Having been denied attorney fees, Appellants requested that they be allowed to amend their election of remedies. This request was denied. Appellants appeal. We affirm.
 

I disagree with the standard of review employed by the court in this case for the reasons discussed at more length in In Re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *18-22 (Tenn.Ct.App. June 3, 2003) (No Tenn. R. App. P. 11 application filed); Estate of Acuff v. O’Linger, 56 S.W.3d 527, 533-37 (Tenn.Ct.App. 2001). I agree, however, that a review of the evidence in the case discloses that the truth of the factual conclusions made by the trial are “highly probable” and thus the clear and convincing evidence standard is met. Therefore, I concur with the court’s decision to affirm the order terminating R.G.L.’s parental rights.

This is primarily a child custody dispute. The father and mother lived together with their infant son and the mother's two older sons in the mother's house trailer before moving into a house purchased by the mother with a down payment provided by the father. When their son was approximately eight months old, the parties separated and thereafter began a contentious legal battle over his custody. Following a bench trial, the trial court awarded the mother primary custody, granted the father broad visitation rights, and denied the father's request for the return of his down payment and closing costs, finding there was no equity in the house. The father appeals the trial court's award of primary custody to the mother and its denial of his request for the return of his down payment and closing costs. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

This appeal involves the termination of the parental rights of an incarcerated biological father of a five-year-old child. The child’s mother and her new husband filed a petition in the Chancery Court for Lincoln County seeking to terminate the biological father’s parental rights and to approve the new husband’s adoption of the child. Following a bench trial, the trial court entered an order on August 29, 2003 granting the petition to terminate the biological father’s parental rights on the ground of abandonment. The biological father appealed. We concur with the trial court’s conclusion that the father abandoned his child by willfully failing to support and visit the child and that terminating the biological father’s parental rights is in the child’s best interests. Accordingly, we affirm the judgment.