APPELLATE COURT OPINIONS

Plaintiff, owner of an apartment complex, filed suit seeking damages caused by a fire in an apartment occupied by Defendants. The parties consented to arbitration. The parties stipulated to the damages in the amount of $73,414.64. Further, it was stipulated that Plaintiff settled with two of the three Defendants whereby the two Defendants payed 50%, $36,707.32, of the property damage. Subsequently, the arbiter ruled that the remaining Defendant was 100% at fault and liable for the total amount of damages, $73,414.64. Plaintiff filed a motion with the trial court to confirm the arbiter's award. In response, the remaining Defendant filed a motion to modify, correct, and/or to vacate the arbitration award and a motion for credit, set off and reduction of award. The trial court confirmed the arbiter's award, thereby denying Defendant's motions. Defendant appeals. For the following reasons, we reverse the decision of the trial court and modify the arbitration award.

This is a suit for damages arising out of personal injuries sustained by Mike T. Hunter (Hunter) when he was hit by an automobile driven by the defendant Damian V. Burke (Burke). Burke's vehicle ws owned by the defendants Donnie Wear (Wear) and Joe Guffey (Guffey). The trial court directed a verdict against all of the appealing defendants. 1. The jury then awarded Hunter compensatory damages of $270,000. These defendants appealed, raising the following questions for our resolution:

Patty Jean Talbott and her husband, Sam Talbott, appeal a judgment entered in the Circuit Court for KNox County which, in accordance with a jury verdict, awarded her $2264.59 for personal injuries received in an automobile accident. The jury obviously found that Mr. Talbott suffered no damages and fixed his recovery at zero.

I concur with the court’s conclusion that Mr. Montague’s complaint fails to state a claim for which relief can be granted under Tenn. Code Ann. §§ 4-5-223 through 4-5-225 (1991 & Supp. 1997).

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. "

This appeal involves an action for breach of an employment agreement. Defendants, Carol Cordell Coletta and Coletta & Company, Inc., appeal from the judgment of the chancery court which entered judgment in the amount of $31,800.00 in favor of the plaintiff, Clyde Norman Brewer, Jr.

This appeal presents a multifaceted challenge to the constitutionality of Tennessee’s abortion statutes. After a physician and a clinic in Knoxville were charged with violating these statutes, two other clinics in Memphis and Nashville, joined by three physicians, filed suit in the Circuit Court for Davidson County seeking declaratory and injunctive relief under the Constitution of Tennessee. The trial court struck down the residency requirement, the waiting period, and the requirement that physicians inform their patients that an abortion is a major surgical procedure. After making its own substantive revisions in the statutory text, the trial court upheld the mandatory hospitalization requirement, the remaining informed consent requirements, and the newly enacted parental consent requirement. We have determined that the trial court erred by revising the text of several provisions. We have also determined that the emergency medical exception enacted by the General Assembly is unconstitutionally narrow, that the combined effect of the waiting period and the physician-only counseling requirement places an undue burden on women’s procreational choice, and that the remaining challenged provisions as construed herein pass constitutional muster.
 

This extraordinary appeal involves a Tenn. R. Civ. P. 35.01 request for a physical examination of an opposing party. Following a vehicular collision in Wilson County, one of the drivers and her passenger filed suit in the Circuit Court for Wilson County seeking damages from the driver and owners of the other vehicle. Issues involving the extent and permanency of the plaintiff driver's injuries caused by this collision arose after the plaintiff driver was injured in another accident, and the defendants requested permission for their medical expert to examine the plaintiff driver. The trial court denied the request, and the defendants filed a Tenn. R. App. P. 10 application with this court. We have determined that, under the facts of this case, the trial court's denial of the defendants' Tenn. R. Civ. P. 35.01 motion departs from the accepted and usual course of judicial proceedings of this sort. Therefore, we grant the Tenn. R. App. P. 10 application and reverse the order denying the Tenn. R. Civ. P. 35.01 motion.

Lamar Advertising of Tennessee (Lamar) appeals from an order of the Chancerty Court of Knox County that upheld the validity of a provision of the kNoxville City Code, Article V, Section 10-N (Ordinance) that assesses a license fee per annum for the inspection of all existing ground and portable signs within the City of Knoxville. Lamar owns and maintains 350 outdoor advertising sturctures within the City of Knoxville and has challenged the validity of the ordinance.

Mother and father of three children appeal termination of their respective parental rights. Mother appeals arguing that the trial court erred in finding persistence of conditions sufficient to terminate her rights. We reverse, finding that the Department failed to make reasonable efforts to reunite Mother with her children. Father appeals alleging that he was denied counsel and/or the effective assistance of counsel. The trial court appointed counsel to represent Father but thereafter relieved appointed counsel without stating a basis and did not appoint substitute counsel. Father retained an attorney on the eve of trial but this retained attorney only appeared on four of the seven days of trial and was absent during significant portions of the days he attended. Since the trial court initially found that Father was entitled to appointed counsel and never made a finding that Father was no longer entitled to appointed counsel or that he had waived the right to counsel, we find that the trial court erred when it failed to appoint substitute counsel. Father attempted to retain counsel; however, retained counsel's repeated failures to attend the hearings was equivalent to Father having no counsel. Thus, Father was deprived of the right to counsel. Accordingly, we vacate the judgment terminating Father's parental rights.

Homeowners of a new residence brought an action against a subcontractor for breach of contract, negligent misrepresentation, professional negligence, and violation of the Tennessee Consumer Protection Act. The trial court found that there was a breach of contract and awarded attorney's fees under the Tennessee Consumer Protection Act. Subcontractor appealed insisting that because no violation of the TCPA was found, the trial court lacked a basis to award attorney's fees. We agree and reverse the judgment of the trial court with respect to the award of attorney's fees.

The trial court terminated Father’s parental rights based on Tenn. Code Ann. § 36-1-113(g)(6) and Mother’s parental rights based on Tenn. Code Ann. § 36-1-113(g)(1). Mother and Father appeal. We affirm.
 

The trial court terminated Mother’s parental rights. We affirm.
 

This is a post-divorce custody case wherein the Trial Court denied the Father’s petition for change of custody and denied the Mother’s petition for payment of uncovered medical expenses and attorney fees. Both parties appealed. We have determined that the Trial Court did not err and we affirm its decision.

In boundary line dispute, owner of southern tract of real property (appellee) brought action against adjacent land owner to the north (appellant) to quiet title and restrain appellant from alleged offending use of disputed piece of property. Appellant filed counter-claim to quiet title and have appellee ejected from property. Trial court decreed appellee lawful owner of disputed property, relying upon evidence of three iron pins referenced in deed to appellee as the proper boundary markers. We affirm.
 

In this divorce case, Mark K. McGehee ("Father") appeals the Trial Court's order regarding child support, its award of primary residential parenting responsibility to Julie A. McGehee ("Mother"), the propriety of the Court's decision to amend its final decree of divorce pursuant to Mother's  Tenn.R.Civ.P. 60 motion and the granting of Tenn.R.Civ.P. 11 sanctions against Father's attorney.

The niece of a decedent filed a claim against his estate, contending that she was entitled to compensation for allowing her late uncle to live rent-free for more than four years in a house that she inherited from another uncle. The trial court granted her claim. We reverse.

Appellants/buyers appeal from judgment entered for Appellees/sellers on promissory note given for purchase of real estate. The note contained a condition precedent wherein the principal would not be due until Appellants/buyers sold commercial property they owned. The trial court imposed five years as a reasonable time for performance of the contract and awarded prejudgment interest. Appellants/buyers appeal. We affirm in part, reverse in part, and remand.
 

This is a retaliatory discharge case wherein the plaintiff/employee alleged that his employment was terminated, inter alia, in violation of the Family and Medical Leave Act and because he obeyed a lawful subpoena. The trial court granted the employer's motion for summary judgment. The employee appealed. We vacate the trial court's grant of summary judgment because we have determined that (1) a claim for retaliatory discharge in violation of Tennessee public policy lies in cases where a substantial factor in an employer's decision to terminate an employee is the fact that the employee honored a lawful subpoena, (2) a genuine issue of material fact exists as to whether the employee was terminated for honoring a lawful subpoena, and (3) a genuine issue of material fact exists as to whether the employee was terminated in violation of the Family Medical and Leave Act. Accordingly, we vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.

This is a child custody case. After a trial, the trial court designated the Father as primary residential custodian of the parties’ child. Mother appeals, arguing that the trial court should have awarded her primary residential custody. We find that the evidence does not preponderate against the trial court’s finding that the child’s best interests are served by awarding Father primary residential custody. Consequently, we affirm the judgment of the trial court.
 

Jon and Rebecca Shell ("Plaintiffs") sued D. Scott King ("King") after a limited liability company formed by the three of them went out of business. Plaintiffs sought dissolution of the company known as The Big Red Barn, LLC ("the Company" or "the LLC"). Plaintiffs also claimed King had breached his fiduciary obligations to both them and the LLC. The trial court referred this case to a Special Master and after a trial, the Special Master issued a report concluding King was negligent and had breached his fiduciary obligations and recommending that plaintiffs be awarded a judgment which included some, but not all, of plaintiffs' attorney fees and expert witness fees. The trial court confirmed the report of the Special Master in all respects. We modify the judgment of the trial court and affirm as modified.

Purchasers of real property sued sellers and real estate company seeking rescission for tortious misrepresentation and violation of the Tennessee Consumer Protection Act. The trial court rescinded the transaction and dismissed the real estate company on the basis that the salesperson was an independent contractor. Purchasers appealed asserting: (1) the salesperson was an agent rather than independent contractor; (2) the trial court did not place the purchasers in the position in which they would have been since the transaction was rescinded; and (3) the purchasers should have been awarded their attorney's fees. We agree with the trial court that the salesperson was an independent contractor, but modify and remand for further proceeding (1) relative to placing the parties in the position in which they would have been had there been no transaction and (2) concerning the allowance of purchasers' attorney's fees.