APPELLATE COURT OPINIONS

Jennifer Walden (Plaintiff) sued Central Parking System of Tennessee, Inc. (Central Parking) and Fort Sanders Regional Medical Center (Fort Sanders) for negligence after she allegedly suffered injuries as a result of a fall in a parking garage located in Knoxville, Tennessee. Defendants filed a motion for summary judgment. The Circuit Court for Knox County (the Trial Court) granted defendants summary judgment after finding and holding, inter alia, Athat no alleged fault on the part of the defendants was the cause of plaintiff's accident and injuries, that the same occurred due to her own failure to observe the open and obvious condition of the premises that was there to be seen, and that reasonable minds could not differ on this issue. We find and hold that there is a genuine disputed issue of material fact regarding whether Plaintiff's fault was greater than defendants. We, therefore, reverse the grant of summary judgment and remand this case for further proceedings.

In this appeal, R.C.B. (“Mother”) contends that the trial court erred in terminating her parental rights. Because the grounds for termination are met by clear and convincing evidence, and there is also clear and convincing evidence that termination is in the best interests of the minor children at issue, we affirm

The plaintiff appeals the trial court's dismissal of his action against the defendant hospital. The plaintiff averred that he had entered into a contract with the hospital to pay $6,720.00 for a bariatric surgical procedure. Due to complications following surgery, the plaintiff required a second surgery, incurring additional charges. The plaintiff brought this action, alleging negligence, breach of contract, money had and received, and unjust enrichment. The hospital moved to dismiss the action pursuant to Tennessee Rule of Civil Procedure 12.02(6). Following consideration of the pleadings and argument of counsel, the trial court dismissed the action with prejudice, finding that the complaint sounded in medical malpractice and that the plaintiff had failed to comply with the requirements of Tennessee Code Annotated §§ 29-26-121 and -122, as well as the statute of limitations provided by the Governmental Tort Liability Act. See Tenn. Code Ann. 29-20-305(b). The plaintiff concomitantly filed a motion to alter or amend the judgment and a motion seeking permission to amend the complaint. Following a hearing, the trial court denied the plaintiff's motion to alter or amend the judgment but granted the plaintiff's motion to amend the complaint. The plaintiff appeals the trial court's denial of his motion to alter or amend the judgment and the court's dismissal of his action. On appeal, the hospital raises the issue of whether the trial court erred by simultaneously upholding its dismissal of the action while granting the plaintiff's motion to amend the complaint.

The Defendant, Michael Lambdin, appeals as of right his conviction for first degree murder committed during the perpetration of an attempted robbery. In this appeal, the sole issue presented for our review is whether the evidence is sufficient to support his conviction for felony murder. Specifically, the Defendant contends that the State failed to prove felony murder because the evidence was insufficient to support the elements of the underlying felony and because he abandoned his intent to commit the underlying felony prior to the shooting and killing of the victim by his co-defendant. After reviewing the record and the applicable authorities, we affirm the judgment of the trial court.

In this parental termination case, the Department of Children’s Services (DCS) took emergency custody of J.R.C. (the Child) following the arrest of his mother, B.C. (Mother) on charges of (1) promoting the manufacture of methamphetamine and (2) child neglect. The Child was adjudicated dependent, neglected, and severely abused. After a trial, the court terminated Mother’s parental rights after finding, by clear and convincing evidence, that (1) grounds for termination were established, and (2) termination is in the best interest of the Child. Mother appeals and challenges each of these determinations. We affirm.

James Michael Adler and Kim Kidner Adler filed this action against Johnson City and Purofirst of Tri-Cities, LLC, alleging damage from sewage that backed up and entered their basement. Later, they filed another complaint alleging that their attorneys in the sewage case were guilty of malpractice. In the sewage case, the trial court dismissed the defendant Purofirst with prejudice as a sanction for the Adlers' repeated failure to comply with the court's discovery orders. The Adlers did not attempt to amend their malpractice complaint to include a claim based on Purofirst's dismissal until almost six years after the dismissal of Purofirst. Their motion to amend was filed on July 2, 2012, in violation of the trial court's scheduling order, which provided that “[n]o amendments shall be allowed after May 15, 2012.” The trial court denied the Adlers' motion to amend. The trial court also refused to allow the Adlers to bring Purofirst back into the sewage litigation. It did so despite the fact that another defendant had recently alleged the comparative fault of Purofirst. This latter action of the trial court was taken in an order entered pursuant to Tenn. R. Civ. P. 54.02. We hold that the Adlers did not timely appeal this order. We further hold that the trial court did not abuse its discretion in denying the Adlers' motion to amend their malpractice action. The trial court's judgment is affirmed.

A hospital instituted a review of an orthopaedic surgeon’s removal of spinal hardware from patients within one year of implantation; the review resulted in a peer review proceeding under the hospital’s bylaws and the eventual revocation of the doctor’s surgical privileges. The doctor filed suit for breach of contract, defamation, common law and statutory disparagement, and intentional interference with business relationships, arising out of the revocation of his surgical privileges. Upon the hospital’s motion to dismiss all claims for failure to state a claim for relief, the court dismissed the breach of contract claims. The hospital subsequently moved to dismiss the remaining claims for lack of subject matter jurisdiction or, in the alternative for summary judgment; the court granted the motion to dismiss and denied summary judgment. Doctor appeals the dismissal of his claims; hospital appeals the denial of its motion for summary judgment. We affirm the dismissal of the breach of contract claims and reverse the dismissal of the tort claims for lack of subject matter jurisdiction; we hold that the hospital is entitled to summary judgment on the remaining claims and dismiss the case.

A Coffee County jury found the Defendant, Tracy Lynn Carman-Thacker, guilty of willful abuse, neglect, or exploitation and false imprisonment. The Defendant appeals, asserting that the trial court erred when it: (1) failed to compel the State to make an election of offenses; (2) denied the Defendant’s motion for acquittal as to both charges; and (3) determined that the victim was competent to testify at trial. After a thorough review of the record and applicable law, we reverse and remand in part, and affirm in part.

Petitioner, Andrew Soimis, filed a petition for writ of habeas corpus alleging that his judgment was void because he was convicted without an indictment.  The habeas corpus court summarily dismissed the petition.  Upon our review, we affirm the judgment of the habeas corpus court.

This case involves a dispute over legal maternity of twin children born as the result of a surrogacy agreement. The intended parents of the children filed a joint petition, along with the surrogate mother and her husband, asking the juvenile court to declare the intended parents as the legal parents of the children and to require the Tennessee Department of Health to list them as the parents on the children’s birth certificates. The trial court initially granted the requested relief, but upon consideration of a motion to alter or amend filed by the Department of Health, the trial court ruled that the surrogate mother was the legal mother of the children and the party to be listed on the birth certificates. The intended parents, the surrogate, and her husband appeal. We affirm in part, vacate in part, and remand for further proceedings.

This case involves an employment contract. After the employee’s employment was allegedly constructively terminated, he sued the employer for damages. The parties proceeded to trial, and the trial court ruled that the employer breached its employment contract with the employee and that the employee was entitled to an award of damages. The trial court then ordered that all issues of damages would be referred to a Special Master. After trial, the Special Master issued a report calculating employee’s damages, to which the employee objected. Upon sustaining several of the employee’s objections, the trial court again referred the matter to the Special Master. The trial court subsequently concurred in the revised findings of the Special Master, and the employer appealed, raising several issues. We vacate the ruling of the trial court and remand for further proceedings.

In connection with the purchase of a newly constructed home, buyers signed an application for a home warranty, providing for arbitration of warranty disputes. After the buyers experienced several problems with their home, they sued the builders for breach of the implied warranty of habitability and negligent construction, among other things. Over five years after answering the buyers' complaint, the builders moved to stay the litigation and compel arbitration based on the home warranty's arbitration provision. The trial court denied the motion because the arbitration provision did not comply with the Tennessee Uniform Arbitration Act. The trial court also found that the builders' delay in seeking to compel arbitration constituted a waiver of their right to arbitrate. The builders appeal. Because we conclude that the Federal Arbitration Act governs the arbitration provision and consideration of the waiver defense was premature, we vacate and remand.

This is an appeal from a summary judgment order dismissing the plaintiff's complaint. Because the order does not dispose of the defendants' claim for damages under Tenn. Code Ann. § 47-18-109(e)(2), we dismiss the appeal for lack of a final judgment.   

Gary Sulo Alto (“the Defendant”) pleaded guilty to theft of property valued at $10,000 but less than $60,000. After a sentencing hearing, the trial court denied alternative sentencing and ordered restitution in the amount of $60,000. On appeal, the Defendant argues that (1) the trial court erred when it denied alternative sentencing and (2) the trial court erred when it ordered restitution in the amount of $60,000 without considering the Defendant’s future ability to pay. Upon review, we affirm the trial court’s denial of alternative sentencing. However, because the trial court failed to make findings as to the Defendant’s future ability to pay restitution, and based on the record, we reduce the restitution from the ordered amount of $60,000 to $27,000 and affirm the judgment as to restitution as modified.

This is a parental termination case that focuses on the minor children of J.D.B. (Father) and J.A.B. (Mother). After Father and Mother divorced, Father married J.M.B. (Stepmother). A year later, Father and Stepmother (collectively, Petitioners) filed a petition seeking (1) the termination of Mother's parental rights and (2) adoption of the children by Stepmother. After a trial, the court found, by clear and convincing evidence, (1) that Mother had abandoned the children by failing to pay child support, and (2) that termination is in the best interest of the children. Mother appeals. We affirm.

This is the third appeal of this case, involving the issue of child support and arrears. In the second appeal, this Court remanded the case to the trial court for a determination of Appellant Father and Appellee Mother’s respective incomes for the period of August 22, 2008 through September 28, 2009. Based upon Mother’s testimony at the hearing on remand, the trial court set Mother’s income for the relevant period at $300 per month. Father appeals, arguing that, based upon the trial court’s previous finding that Mother was voluntarily unemployed, the trial court should have imputed income to Mother at the statutory rate. Because the law of the case is that the trial court should determine the parties’ actual circumstances, we conclude that the court correctly set Mother’s income as the amount she actually earned. Affirmed and remanded.

In 2011, the Petitioner, James R. Cranmer, pleaded guilty to one count of second degree murder, one count of attempted second degree murder, and two counts of reckless aggravated assault. The trial court sentenced him to an effective sentence of fifteen years in the Tennessee Department of Correction. The Petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel, and the post-conviction court held an evidentiary hearing after which it denied the petition. On appeal, the Petitioner contends that the post-conviction court erred when it denied his post-conviction petition because he received the ineffective assistance of counsel at trial, and he further contends that his guilty plea was not voluntary, knowing, or intelligent because the State committed a Brady violation. After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

This appeal arises from a jury verdict in favor of Plaintiff in the amount of $11,513.78. On appeal, Plaintiff raises several evidentiary issues, contends that juror misconduct requires a new trial, and asserts that the verdict is not supported by the evidence. We affirm.

Larry Stephen Brumit (“the Petitioner”) appeals from the summary dismissal of his Petition for Writ of Error Coram Nobis. Upon review, we affirm the judgment of the coram nobis court.

Taxpayer brought action against the Tennessee Department of Revenue (“Department”) to challenge its assessment of business taxes against taxpayer. Taxpayer asserted it was entitled to an exemption for its leasing trucks and trailers to a public utility. Taxpayer and the Department filed cross-motions for summary judgment. The trial court granted summary judgment in favor of the Department finding that the exemption provision was unambiguous and did not apply to the taxpayer’s business activities. On appeal, we hold that the exemption provision is ambiguous, but also that the taxpayer failed to meet its burden in proving it was entitled to the exemption. Accordingly, we affirm the trial court’s grant of summary judgment in favor of the Department.