APPELLATE COURT OPINIONS

The trial court terminated the parental rights of Mother and Father on the grounds of abandonment and persistence of conditions, and upon finding that termination was in the best interests of the children. We affirm.

Physician appeals Chancery Court decision affirming his summary suspension of his license to practice medicine on the basis of his conviction in the State of Kentucky for facilitation to traffic in controlled substances. We affirm the Chancery Court judgment and the summary suspension of the physician’s license.

In this conservatorship case, a daughter filed a petition asking the court to appoint her as the conservator of her father, who had experienced cognitive decline after a stroke and required full-time care in an inpatient facility. The father’s spouse protested the appointment of the daughter as the conservator and requested that a neutral third party be appointed instead. After a hearing, the trial court determined that the daughter was the appropriate person to serve as conservator, and specifically enumerated the power to file for divorce on behalf of the ward to the conservator. The spouse appeals. We affirm. Our first opinion in this case originally was filed on January 21, 2011. Appellant thereafter filed a petition to rehear. The petition to rehear contained a meritorious assertion. Accordingly, we granted the petition, withdrew our original opinion and now submit this substitute opinion.

This is a dependency and neglect appeal from a finding of severe child abuse. The respondent mother gave birth to premature twins. Before the hospital released the premature infants to the mother’s care, she was given extensive instructions on their feeding. Two weeks later, one twin was hospitalized, near death from severe malnutrition and dehydration. Days later, the other twin was hospitalized, also severely malnourished and dehydrated. The twins were taken into State protective custody, and a petition for dependency and neglect was filed, alleging severe child abuse. The mother stipulated to dependency and neglect, but denied severe child abuse. The juvenile court held that the first twin had been subjected to severe child abuse, but not the second twin. The mother appealed this finding to the circuit court. After a de novo hearing, the circuit court held that both twins had been subjected to “severe child abuse” as defined in Tennessee Code Annotated § 37-1-102(b)(23)(A) and (B). The mother now appeals. We affirm, finding, inter alia, that subsection (B) of the statute does not require proof that the mother’s conduct was “knowing” in order to find severe child abuse.

The appellant appeals the trial court’s issuance of orders of protection against him. The appellant’s sister and brother-in-law filed petitions for ex parte orders of protection and alleged that on two separate occasions, the appellant fired shots toward their home. The appellant denies the allegations. After a hearing, the trial court found by a preponderance of the evidence that entry of the orders of protection was necessary. We affirm.

This is a breach of contract case. The trial court found two defendants liable for breaches of continuing guaranty agreements related to a construction loan and awarded judgment for the plaintiff. The trial court, however, did not adjudicate a pending cross-complaint. Although the court attempted to certify the judgment as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure, the court’s order did not make the express findings essential to certification. Because the trial court did not properly certify the judgment as final, we do not have jurisdiction to consider the issues raised before us. We dismiss the appeal.

Current owner of a life insurance policy filed a complaint for declaratory judgment, alleging that the life insurance company wrongfully terminated the policy after failing to notify the current owner of the impending lapse of the policy for nonpayment of premiums. The life insurance company filed a motion for summary judgment, along with an affidavit and a copy of the policy, in an attempt to  demonstrate that it had provided notice in accordance with the policy terms. The current owner filed a response along with an affidavit. The trial court granted summary judgment to the life insurance company. We affirm.

This is the second appeal of an action to partition 74 acres. Plaintiff is a widow who owns a one-half interest in the land as a tenant in common with Defendants, Plaintiff’s stepson and his wife. Plaintiff filed this action in 2008 to partition the property by sale. Defendants opposed a sale and sought partition in kind. The trial court ordered the property sold upon findings that a partition in kind was impractical and that the two tracts were more valuable if sold together. Defendants appealed, and we affirmed with instructions that the property be sold on remand. Before the sale, a survey was conducted which revealed that Defendants’ home, located on a one-acre tract owned separately by Defendants, encroached on the property held by the parties as tenants in common. In order to resolve the encroachment issue, the trial court ordered Plaintiff to quitclaim a mere 0.168 acres to Defendants and ordered Defendants to quitclaim a like-sized portion of the property of equal value to Plaintiff. Although this remedy was favorable to Defendants, they nonetheless appealed, claiming the trial court had no legal authority to order them to quitclaim any property to Plaintiff. We have determined the trial court is authorized to partition a portion of the property in kind, pursuant to Tenn. Code Ann. § 29-27-104, and to order that the remaining property be partitioned by sale. Thus, we affirm.

Before filing this personal injury action arising from an automobile accident, the plaintiff filed for Chapter 7 bankruptcy. Although the plaintiff’s personal injury action accrued prior to his filing for bankruptcy, he omitted the potential claim from a schedule of assets in the bankruptcy petition. The plaintiff received a discharge in bankruptcy, and, shortly thereafter, filed the instant action. After the defendants moved for summary judgment, the plaintiff moved to amend his complaint in order to add the bankruptcy Trustee as a party. The trial court did not rule on the plaintiff’s motion to amend, and instead granted the defendants summary judgment, finding that the plaintiff lacked standing and was judicially estopped from pursuing his personal injury claim. On appeal, we conclude that the trial court erred when it failed to rule on the plaintiff’s motion to amend his complaint prior to adjudicating the defendants’ summary judgment motion.

The mother has filed a notice of appeal challenging the trial court’s decision regarding the father’s child support obligation. Because the mother did not file her notice of appeal within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.

This is an appeal from a judgment dismissing an inmate’s petition for writ of certiorari challenging a disciplinary decision. Because the appellant did not file his notice of appeal within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.

This appeal arises out of an action to hold UT Medical Group, Inc. vicariously liable for the alleged negligence of its employees. In 1997, the original plaintiff filed an amended complaint for medical malpractice and wrongful death which specifically named two doctors as employees of the defendant who negligently caused the death of a patient. As trial approached, a substitute plaintiff attempted to add new allegations concerning the negligence of a third doctor. The trial court denied the motion to amend and later granted a motion in limine to exclude evidence concerning  the alleged negligence of the third doctor as beyond the scope of the 1997 amended complaint. The plaintiff consequently was unable to offer expert testimony at trial to prove an employee of the defendant negligently caused the patient’s death, and the trial court granted judgment in favor of the defendant. We affirm.

Buyer of real property brought suit against seller for intentional misrepresentation, fraudulent misrepresentation, breach of contract, and breach of express warranty. The trial court determined that the buyer’s reliance upon the seller’s representations was reasonable. On appeal, the seller argues that the evidence does not support the trial court’s decision and that the trial court erred in excluding expert testimony offered by the seller. Because we have determined that the trial court erred in excluding the expert testimony in question, we reverse and remand.

Unlike the majority, I do not believe the trial court abused its discretion by prohibiting Mr. Akers’ two expert witnesses from giving their opinions on whether Mr. Goodall’s reliance on Mr. Akers’ representations was reasonable. Furthermore, even if the exclusion of this testimony was error, I find it to be harmless error. Therefore, I respectfully dissent.

In a Governmental Tort Liability Act (“GTLA”) action, the City of Lebanon appeals the trial court’s decision to hold it liable for an accident that occurred on a swing in a city park. The City asserts that the court erred in failing to find that the swing was in a dangerous or defective condition or that the City had notice of such a condition. Additionally, the City insists that any defective condition was latent and governmental immunity was therefore not removed under the GTLA. The City also challenges the trial court’s denial of its motion for involuntary dismissal, its characterization of the case as “hybrid” in nature, its reliance on the doctrine of res ipsa loquitur in establishing negligence, and its admission of the plaintiff’s expert testimony. We conclude that the swing was in a dangerous or defective condition, which was not latent, and that the City had constructive notice of that condition. We find against the City on its remaining issues.

This is the second appeal of this case, which arises from the grant of a writ of certiorari by the Shelby County Chancery Court. Upon review of the Memphis City Council's record, the trial court found that the Appellee City had not acted arbitrarily, capriciously, or illegally in either approving a planned development, or in approving the companion street closure. The trial court granted partial summary judgment in favor of the City, thereby affirming the City Council’s action in approving the planned development. The issue of the companion street closure proceeded to hearing, with the trial court ultimately affirming the City Council’s decision. Appellant appeals, arguing that the City Council’s decision was made in violation of the Memphis City Charter and ordinances, and that the decision was the product of corruption within the City Council. Discerning no error, we affirm the action of the trial court and remand for further proceedings.

This is a dependent and neglected case concerning Nirvanna S. (“the Child”), the minor child of Heather S. (“Mother”) and Mark S. (“Father”). Following the death of the Child’s infant sister, the Department of Children’s Services (“DCS”) filed a petition in juvenile court alleging that, in the care of Mother and Father, the Child was dependent, neglected and severely abused. The juvenile court held an adjudicatory hearing and determined that the Child was dependent and neglected – but not severely abused – by her parents. The juvenile court awarded temporary custody of the Child to DCS and charged the department with undertaking reasonable efforts toward reunifying the Child with Mother and Father. DCS appealed the order to the trial court. Following a bench trial, the court found that both parents had committed severe abuse against the Child’s sister pursuant to Tenn. Code Ann. § 37-1-102(b)(23)(A) and that the Child was dependent and neglected and “severely abused” within the meaning of the law. The court ordered DCS to retain custody of the Child; it relieved DCS of its obligation to work toward reunifying the Child with Mother and  Father. Mother appeals. Following our review, we modify that part of the trial court’s opinion finding that the Child was “severely abused.” In all other respects, the judgment is affirmed.

A patron of a tanning salon and her husband filed this action seeking to recover damages for injuries the patron sustained when the lid of a tanning bed fell on her head as she was attempting to exit the tanning bed. The plaintiffs allege that the owner and operator of the tanning salon acted negligently by failing to properly maintain or inspect the tanning bed she used, which caused the lid of the tanning bed to become too heavy for the patron to lift and safely exit, and by failing to have a way for a patron to call for help from within the tanning room in the event of an emergency. The trial court summarily dismissed the complaint finding, inter alia, the plaintiffs cannot demonstrate essential elements of a prima facie case, specifically that a defective condition existed or that the defendants had actual or constructive notice of any alleged defective or dangerous condition of the premises. We affirm.

The father of a young child born out of wedlock petitioned the juvenile court to be awarded custody of the child. The mother responded by asking the court to award custody to her. After many delays, the juvenile court referee conducted a lengthy hearing and granted the father’s petition, holding that although it was a close question, it was in the child’s best interest for the father to exercise custody. The mother appealed to the Juvenile Court Judge, who reached the same conclusion after another hearing. The mother now appeals to this court, contending that custody should have been awarded to her for several reasons, including the operation of the tender years doctrine. We affirm the trial court.

In this divorce case, the trial court’s judgment ended the relatively-long marriage of Carol Denice Pettijohn (“Wife”) and Patrick Carl Pettijohn (“Husband”). Husband appeals the trial court’s division of the marital property, its award of alimony in solido to Wife, and the duration of the alimony in futuro award. We affirm.

As this action was pleaded and tried, it was (1) a claim by Nancy Gates (“the plaintiff”) seeking to be declared the owner of a life estate in a tract of property; and, as a consequence of her estate, seeking the removal of Katie Williams (“the defendant”), the widow of the plaintiff’s son, Tony, from the property; and (2) a counterclaim by the defendant alleging that she had become the owner of an interest in the property by adverse possession due to her having lived on the property since the late 1960s or early 1970s. The trial court held that, as to these claims, neither party was entitled to relief against the other. The court found, however, that the plaintiff did, in fact, have a life estate in the subject property, and that the defendant had not proven adverse possession because her entry onto the property was with the plaintiff’s permission. The court then held, sua sponte, that the defendant had a license in the property coupled with an interest therein that had been acquired by building numerous structures on the property with the plaintiff’s knowledge and that it would not be equitable to require the defendant to move. The plaintiff appeals. We affirm the trial court’s judgment in part and reverse in part and remand for a hearing on the issue of what it would take to do equity given the facts of this case.

Charles Pesce (“the Owner”) is a practicing dentist. He contracted with East Tennessee Construction Services, Inc. (“the Builder”) to build him a new office for his practice on a lot owned by him. The Builder constructed the building, but with numerous undisputed defects. The Owner filed this action which culminated in a bench trial that lasted several days. Based upon diminution in value, the trial court awarded the Owner $282,000 in damages. The trial court expressly found that the cost to repair the structure was an unacceptable measure of damages because it “is disproportionate . . . to the difference in the value of the structure actually constructed and the one contracted for.” The court awarded the Owner discretionary costs of over $10,000. The Owner appeals challenging the measure of damages as well as the amount awarded under the diminution in value measure. The Owner also challenges the trial court’s failure to order the Builder to reimburse him for fees charged by one of the Owner’s experts in connection with his discovery deposition taken by the Builder. The Builder challenges the award of discretionary costs and argues that the damages awarded are excessive. We reverse in part and affirm the remaining judgment as modified.

The trial court affirmed the Report of a special master interpreting the parties’ Marital Dissolution Agreement as granting Wife a proportionate share of Husband’s retirement based on the duration of the marriage and not based upon the thirty years he was in the military. We affirm.

Given the record presented to us on appeal, I concur fully in the majority’s Opinion. I write separately, however, to express my concern as to the diminution in value damages of $382,000 awarded to the Owner. I agree with the majority that, given the record presented to us, this result is correct. I also agree with the majority that the Owner is “in possession of a fully operational, profitable, dental office...” which the Owner had used for several years by the time of trial. As stated by the majority, the Owner incurred “construction cost of approximately $460,000...” in constructing this building. The diminution in value award of $382,000, with which I concur given the record  presented to us, means that the owner will end up with construction costs of only approximately $78,000 for “a fully operational, profitable, dental office.”

This appeal involves post-divorce modification of child support. After a prior appeal, the case was remanded to the trial court to determine whether the father was entitled to a reduction in his child support obligation when one of the parties’ children reached majority. On remand, the trial court declined to reduce the father’s child support. The father appeals. We affirm.