APPELLATE COURT OPINIONS

Former Husband and Wife owned a business together while they were married. In a post-divorce order, the trial court decreed that the business was to be wrapped up and sold. Former Husband failed to comply with the order and Former Wife filed a motion for a temporary restraining order (“TRO”) and a petition for civil contempt. The court granted Former Wife a TRO but did not rule on the petition for contempt. Former Wife filed a motion to set a hearing on her petition for contempt two years later, and the trial court dismissed the motion as moot. Former Wife appealed, and we reverse the trial court’s judgment. We conclude that this Court lacks subject matter jurisdiction over this appeal because the trial court failed to resolve all outstanding issues in the case.

This is a premises liability case. Appellant slipped and fell in a clear liquid on the floor of the St. Francis Hospital emergency room and filed suit against the hospital. In its answer, the hospital denied liability and alleged comparative fault on the part of Appellant and its housekeeping management service, Crothall Healthcare, Inc. Appellant amended her complaint to name Crothall as a defendant. Appellees filed motions for summary judgment. The trial court granted both motions, finding that Appellant had failed to show that Appellees had actual or constructive notice of a dangerous condition. Appellant appeals. Discerning no error, we affirm the trial court’s grant of summary judgment.

This is a teacher tenure case. Appellant, a tenured teacher employed by Appellee Shelby County Board of Education, was fired for insubordination and conduct unbecoming. Appellant appealed the Shelby County School Board’s decision to the Chancery Court for Shelby County. In a post-trial motion, Appellee petitioned the court to consider an email notification of the board’s decision that was sent to Appellant’s attorney. Specifically, Appellee argued that the email constituted statutory notice to the Appellant so as to start the thirty-day time period for filing an appeal of the board’s decision in the trial court. Tenn. Code Ann. 49-5-513(b). The trial court denied the motion as newly discovered evidence. We conclude that the email goes directly to the question of whether the Appellant’s petition was timely so as to confer subject-matter jurisdiction on the trial court. Accordingly, the trial court erred in treating the motion as one for permission to file “newly discovered evidence.” Because the trial court applied an incorrect legal standard in ruling on the admissibility of the email evidence and did not address the question of its subject-matter jurisdiction, we vacate the trial court’s order and remand for further proceedings.

Mother, who had been designated as the primary residential parent of her eight-year-old child, appeals an order changing the designation to the child’s Father, contending that the material change of circumstances since the entry of the original parenting plan, as found by the trial court, was not sufficient to justify the modification of custody. We have determined that the evidence does not show that the child’s well-being has been adversely affected by the difficulties the parents have encountered in complying with the parenting plan or that the modification is in the child’s best interest; accordingly, we reverse the order changing the designation of the primary residential parent. We reverse the order denying Mother’s request for attorney’s fees for services incurred in securing a judgment for back child support and remand for a determination of the amount of the award.

In 2011, the Petitioner, Herman Sowell, Jr., pleaded nolo contendreto attempted aggravated rape, attempted aggravated sexual battery, and incest, and the trial court sentenced him to fifteen years, at 30%.  The trial court ordered a “time served” sentence followed by probation.  In April 2013, after the statute of limitations had expired, the Petitioner filed a petition for post-conviction relief, using a separate case number but challenging as ineffective the representation of his counsel for the November 2011 case.  At some point thereafter, the trial court revoked the Petitioner’s probation.  The Petitioner amended his petition for post-conviction relief to challenge his November 2011 convictions.  The post-conviction court summarily dismissed the post-conviction petition.  We affirm the post-conviction court’s judgment.

This is a termination of parental rights case. Mother and Stepfather filed a petition to terminate the parental rights of Father to the child. The trial court found that the grounds of (1) abandonment for willful failure to visit as defined by Tennessee Code Annotated section 36-1-102(1)(A)(i), (2) abandonment for willful failure to visit by an incarcerated parent as defined by Tennessee Code Annotated section 36-1-102(1)(A)(iv), and (3) abandonment based on conduct demonstrating a wanton disregard for the welfare of the child had been proven by clear and convincing evidence. The trial court also found that termination was in the best interest of the child. Father appeals. We reverse the trial court’s finding of abandonment by willful failure to visit as defined by Tennessee Code Annotated section 36-1-102(1)(A)(i) but affirm the trial court in all other respects.

This is an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. In this health care liability action, we must determine whether the plaintiff properly complied with the pre-suit notice requirement found in Tennessee Code Annotated section 29-26-121(a)(1). The original defendants in this matter all filed a motion to dismiss and/or for summary judgment alleging that they did not provide medical treatment to the plaintiff/appellee. Subsequently, the plaintiff filed a response to the defendants' motion acknowledging that she had mistakenly identified a proper defendant in this suit. The plaintiff also filed a motion to amend her complaint attempting to remedy that mistake by substituting in the proper defendant. After both motions were heard, the trial court denied the original defendants' motion to dismiss and/or for summary judgment and granted the plaintiff/appellee's motion to amend her complaint. For the following reasons, we affirm the decision of the trial court and remand for further proceedings.

I concur in the majority opinion’s denial of West Tennessee Health Network and West Tennessee Healthcare, Inc.’s Motion to Dismiss and/or for Summary Judgment. Like the majority, I express no opinion whatsoever on whether dismissal of these two parties might be appropriate under other theories. However, I must respectfully dissent from the majority opinion’s holding that pre-suit notice was provided to the District and that amendment of Ms. Runions’ complaint was proper. The majority opinion states: “we cannot ignore the unmistakable acknowledgement from Ms. Zamata’s letter that Ms. Runions did, in fact, provide written notice of a potential claim against the District.” Herein lies my disagreement with the majority opinion.

In this premises liability case, the plaintiff appeals the trial court’s grant of summary judgment to the defendant property owner. Discerning no error, we affirm.

The defendant, Roxann Lee Cruse, appeals the revocation of the probationary sentence imposed for her Dyer County Circuit Court guilty-pleaded convictions of the sale of a Schedule III narcotic. Discerning no error, we affirm.

The Defendant, Richard W. Wilburn, was sentenced to an effective ten-year sentence for his guilty-pleaded convictions to one count of initiating the methamphetamine manufacturing process and three counts of driving on a revoked license, second offense or more.  On appeal, the Defendant contends that the trial court erred by applying enhancement factor 10—the Defendant had no hesitation about committing a crime when the risk to human life was high—to increase his sentence for initiating the manufacturing methamphetamine process because, he asserts, there was no proof that anyone was endangered by his actions.  He also submits that the trial court erred by denying any form of alternative sentencing based upon his need for drug treatment.  Following our review, we find no abuse of discretion in the trial court’s sentencing decision.  Accordingly, the judgments are affirmed.

In this accelerated interlocutory appeal, Appellants appeal from separate orders denying two motions for recusal filed in this case. After thoroughly reviewing the record on appeal, we affirm the decision of the trial court to deny the recusal motions. 

Wesley Howard Luthringer (“the Defendant”) was convicted of two counts of aggravated vehicular homicide by a Bedford County jury.  The trial court sentenced the Defendant to twenty-four years for each count to be served consecutively as a Range I standard offender.  On appeal, the Defendant argues that the evidence was insufficient for a rational juror to find him guilty of aggravated vehicular homicide beyond a reasonable doubt and that the trial court erred in ordering his sentences to be served consecutively.  After a thorough review of the record and case law, we affirm.

The defendant, Misty Ann Miller, appeals the trial court’s denial of her Rule 35 motion to modify the sentences imposed against her pursuant to a negotiated plea deal.  On appeal, the defendant argues the trial court abused its discretion in finding no new post-sentencing developments exist to justify a modification of her sentences.  After our review, we affirm the decision of the trial court.

In this drug forfeiture case, we have concluded that the trial court lacked subject matter jurisdiction because the property owner failed to filed a petition for judicial review within the sixty-day time period required under Tenn. Code Ann. § 4-5-322(b).  We, therefore, vacate the trial court’s decision.

A purchaser of property entered into an installment contract and signed a promissory note specifying the day on which monthly payments were to be made. The purchaser began making payments on different days of the months and the seller accepted these payments over a course of years. Over seven years after the contract was executed, the seller sought to declare the contract null and void because the purchaser failed to tender his payment on the day specified in the note. The trial court awarded the seller relief and granted it possession of the property. The purchaser appealed, and we reverse the trial court’s judgment. We conclude the parties modified the terms of the promissory note through their course of conduct and that the purchaser did not breach the contract.

This is the second appeal in this case involving a long-running battle between foster parents and the Tennessee Department of Children’s Services (“DCS”). In 2014, DCS removed the three-year-old child at issue from her foster home of three years. In the context of this already pending termination and adoption proceeding, the chancery court held an evidentiary hearing and determined that there was insufficient evidence to justify removal and that DCS had taken steps adverse to the child’s best interest. The chancery court ordered DCS to return the child to her foster home. On extraordinary appeal, this Court determined that a trial court cannot direct the placement of a foster child within DCS legal custody, but we recognized that the trial court could remove legal custody from DCS and place custody directly with the foster parents if warranted. One week prior to the hearing on remand, DCS participated in a surrender proceeding under a separate docket number and contemporaneously obtained an order of full guardianship over the child. DCS then moved to dismiss as moot the termination, adoption, and custody petitions pending in this case because DCS, as guardian, refused to consent to an adoption by the child’s former foster parents. The child’s current foster mother attempted to intervene. After a two-day trial, the trial court dismissed the former foster parents’ petitions as moot and granted the adoption to the current foster mother, as DCS in its role as guardian would only consent to an adoption by her. The child’s guardian ad litem appeals. The former foster parents and DCS raise additional issues. We affirm in part, vacate in part, reverse in part, and remand for further proceedings.

This is a breach of contract action in which the lessor filed suit against the lessee for non-payment of rent, utilities, and repairs pursuant to the terms of a lease agreement for two units in a commercial building. Following a hearing, the trial court entered a judgment in favor of lessor. The lessee appeals. We affirm.

Purchasers of real estate brought suit against the seller as well as the real estate agent and agency that assisted the buyers, alleging, inter alia, fraudulent misrepresentation, breach of duty to disclose adverse facts related to the purchased property, and violations of the Tennessee Consumer Protection Act. The buyers argued that the defendants misrepresented the age and history of the home and did not disclose that it had a mold problem. Upon motion for summary judgment, the agent and the agency were dismissed as defendants. The trial court subsequently denied the buyers' motion to reconsider the summary judgment order. The buyers appeal. Finding no error, we affirm.

This is an interlocutory appeal limited to the issue of whether the orders of an Indian court regarding matters pending in India is entitled to full faith and credit, such that this state’s trial court lacks jurisdiction over custody of the minor child pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act. The mother, an Indian citizen but permanent resident of the United States, filed an action in India seeking the return of her minor son. She contends that her son, a citizen of the United States, is being detained illegally in India by her husband and his family. The Indian court ruled that the child should remain with the paternal grandparents in India at this time. The mother, thereafter, filed an action for divorce in Shelby County. After a hearing, the state trial court ordered, inter alia, that the father, also an Indian citizen but permanent resident of the United States, return the child to Tennessee within seven days. Upon the trial court’s denial of the father’s request for an interlocutory appeal pursuant to Rule 9, the father sought a Rule 10 extraordinary appeal of the trial court’s ruling. We find that the appeal was improvidently granted. Accordingly, we decline to address the issue presented and dismiss the appeal.

This appeal involves a suit filed in the Tennessee Claims Commission against the State of Tennessee for the wrongful death of Tammy Hale. The claimant, Ms. Hale’s father, titled his cause of action as one for “negligent care, custody, and control of persons” pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(E). The claimant alleged that the State was responsible for the actions of an inmate whose release was not conditioned upon participation in community supervision for life as required by section 39-13-524. The State sought dismissal, alleging that the claim was really one for “negligent deprivation of statutory rights” based upon the failure to adhere to section 39-13-524, which does not confer a private right of action. Following a hearing, the Claims Commission, William O. Shults, Commissioner, agreed and dismissed the claim. The claimant appeals. We affirm.

This case concerns modification of a parenting plan. Following her divorce in Tennessee, Mother moved with her child to Maryland. Father initially opposed the move, but an agreed order entered after the move adopted an amended permanent parenting plan, which named Mother the primary residential parent. The amended permanent parenting plan granted Father parenting time over the summer, during certain holidays, and when either Father traveled to Maryland or Mother traveled to Tennessee. After experiencing difficulties exercising parenting time and growing concern over Mother’s care of the child, Father filed a petition requesting to be named primary residential parent. The trial court denied the request. Although it found a material change in circumstances based on the child’s serious mental health issues, the court determined that it was in the best interest of the child to remain with Mother. Father appeals arguing that the trial court erred in: (1) finding it was in the child’s best interest for Mother to remain the primary residential parent; (2) not finding Mother in contempt; and (3) awarding attorney’s fees to Mother. We affirm the decision of the trial court.  

Mother has appealed the trial court’s decisions regarding parenting time, criminal contempt, child support, and the child’s surname. We have determined that the trial court erred in finding Mother in criminal contempt as to one of the three incidents at issue, in setting temporary child support, in failing to order Father to pay child support by wage assignment, and in ordering the child’s surname to be changed to Father’s surname. In all other respects, we affirm the decision of the trial court.

This appeal involves the termination of a mother’s parental rights to six children and a father’s parental rights to three of those children. The juvenile court found clear and convincing evidence of five grounds for termination of parental rights and that termination of parental rights was in the children’s best interest. We conclude that DCS did not prove abandonment by an incarcerated parent by clear and convincing evidence. Because the record contains clear and convincing evidence to support four grounds for termination, namely, abandonment by failure to provide a suitable home, substantial noncompliance with the requirements of the permanency plan, persistence of conditions, and severe child abuse, and that termination is in the best interest of the children, we affirm.

This is a termination of parental rights case. Father appeals the termination of his parental rights, to two minor children, on the grounds of: (1) severe child abuse, Tenn. Code Ann. §§ 36-1-113(g)(4) and 37-1-102(22)(C); and (2) abandonment by willful failure to support and willful failure to visit, Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i).  Father also appeals the trial court’s finding that termination of his parental rights is in the children’s best interests.  Because Appellees did not meet their burden to show that Father willfully failed to provide support for the children, we reverse the trial court’s finding as to the ground of abandonment by willful failure to support.  The trial court’s order is otherwise affirmed.