APPELLATE COURT OPINIONS

Plaintiff sued the owner of a hotel after she fell in its lobby. The trial court granted summary judgment in favor of the defendant, concluding that the defendant did not owe a duty to the plaintiff. Because the trial court’s order does not adequately explain how an expert report proffered by the plaintiff was treated in adjudicating the motion for summary judgment, we vacate and remand to the trial court for the entry of an order that addresses this issue.

The Petitioner, Braylen Bennett, appeals the denial of his petition for post-conviction relief,
arguing that he was denied the effective assistance of trial counsel, that his guilty pleas
were unknowing, unintelligent, and involuntary, and that the cumulative effect of trial
counsel’s deficiencies in performance warrants post-conviction relief. Based on our
review, we affirm the judgment of the post-conviction court.

The Tennessee Department of Revenue conducted an audit of a business and assessed unpaid taxes against the business. After an informal review by the Commissioner of the Tennessee Department of Revenue, the business filed suit in the Chancery Court for Davidson County to challenge the assessment. The trial court concluded that the complaint was not timely filed, thus preventing the court from exercising subject matter jurisdiction over the complaint. Finding no error, we affirm the chancellor’s decision.

The Tennessee Department of Revenue audited a car dealership and assessed unpaid taxes against the business. After an informal review by the Commissioner of the Tennessee Department of Revenue, the auto dealership filed suit in the Chancery Court for Davidson County to challenge the assessment. The trial court found that the auto dealership’s complaint had been filed one day past the applicable filing period and dismissed the action for lack of subject matter jurisdiction. Finding no error, we affirm.

This appeal involves the right to a nonsuit pursuant to Tennessee Rule of Civil Procedure 41.01. Two plaintiffs (an individual and a limited liability company) filed this lawsuit against several defendants, asserting eight causes of action arising out of a construction contract. The defendants filed a motion to dismiss. At a hearing, the trial judge orally ruled that the motion to dismiss was denied as to all claims, with one exception. The trial judge took under advisement whether Count 2, asserting a violation of the Tennessee Consumer Protection Act, was barred by the statute of limitations. Four days after the hearing, the plaintiffs filed a notice of voluntary dismissal without prejudice along with a proposed order to that effect. In response, the defendants filed a “motion in opposition” to the proposed order of voluntary dismissal, asking the trial court to delay entry of the order of voluntary dismissal until the trial court entered an order addressing the TCPA claim. The trial court ultimately ruled that the defendants had a “vested right” that prevented the plaintiffs from voluntarily dismissing the TCPA claim from the moment the trial court took the matter under advisement. The trial court then proceeded to analyze the TCPA claim. Although the issue taken under advisement related to the statute of limitations, the trial court sua sponte dismissed the TCPA claim asserted by the individual plaintiff because the court found that he did not meet the definition of a “consumer” pursuant to the TCPA. The trial court then considered the statute of limitations issue as it related to the TCPA claim asserted by the remaining plaintiff. The trial court found that the TCPA claim was not barred by the statute of limitations and denied the motion to dismiss on that basis. Having resolved the motion to dismiss as to the TCPA claim, the trial court ruled that the nonsuit then became “effective,” as of the date of the trial court’s order, resulting in voluntary dismissal of all claims except the individual plaintiff’s TCPA claim, which the trial court sua sponte dismissed with prejudice. The individual plaintiff appealed, asserting, among other things, that the trial court erred by concluding that the defendants had obtained a vested right and by delaying entry of the order of nonsuit so that the trial court could rule on the motion to dismiss. For the following reasons, we reverse the decision of the trial 06/12/2024 - 2 - court to the extent it dismissed the individual’s TCPA claim with prejudice and remand for entry of an order under Rule 41.01 dismissing all claims without prejudice.

This is a direct appeal of a disciplinary proceeding involving a Knoxville attorney who filed four motions containing pejorative statements about the trial judge in a child custody case involving the attorney’s minor child. A hearing panel of the Board of Professional Responsibility determined that the attorney violated multiple Rules of Professional Conduct and imposed a three-year suspension as punishment. The attorney appealed to the trial court. The trial court affirmed the hearing panel’s judgment in all respects with the exception of the attorney’s punishment. The trial court held that the hearing panel erred in imposing a suspension, and it increased the punishment to disbarment. The attorney appealed to this Court. We affirm the judgment of the trial court on all issues with the exception of the issue regarding the attorney’s punishment. We hold that the trial court erred in increasing the punishment to disbarment, and we reinstate the three-year suspension imposed by the hearing panel but modify it to take effect upon the filing of this Opinion.

I agree with virtually all of the majority’s thorough and well-reasoned opinion, with one exception: its determination that ABA Standards 6.21 and 7.1, which identify disbarment as the presumptive sanction, do not apply to this case. As explained below, I would hold that ABA Standards 6.21 and 7.1 apply, and consequently disbarment is the presumptive sanction, because Mr. Justice engaged in the misconduct with intent to obtain personal benefit. I nonetheless concur in the majority’s decision to impose a three-year suspension, based on the comparative cases cited in the majority opinion.

The Defendant, Orlando Nichols, was convicted in the Shelby County Criminal Court of especially aggravated kidnapping and aggravated rape, Class A felonies, and received consecutive twenty-five-year sentences to be served at one hundred percent.  On appeal, the Defendant contends that (1) the time delay between the commission of the offenses and the issuance of the indictment violated his right to due process; (2) his effective fifty-year sentence is excessive; and (3) the evidence is insufficient to support his convictions.  Upon review, we affirm the judgments of the trial court.

A Maury County jury found Defendant, Talvin D. Armstrong, guilty of one count of possession of 0.5 grams or more of cocaine with intent to sell and one count of possession of drug paraphernalia. The trial court imposed an effective sentence of fifteen years in the Tennessee Department of Correction (TDOC). On appeal, Defendant argues that: (1) he was coerced into waiving his confrontation rights as to two witnesses who contracted COVID-19 and were permitted to testify at trial remotely; (2) the trial court erred in introducing the affidavit of complaint supporting the search warrant for the house where the drugs and paraphernalia were found; and (3) he was entitled to a mistrial based on a witness’s reference to the Department of Probation and Parole. 1 After review, we affirm the judgments of the trial court.

The Defendant, Anthony Jared Ross, pled guilty to one count of carjacking, and after a sentencing hearing, the trial court sentenced him to serve a term of nine years and to pay restitution. On appeal, the Defendant argues that the trial court erred in imposing a sentence without having or considering the results of a validated risk and needs assessment as required by Tennessee Code Annotated section 40-35-210(b). Our review reveals that the General Assembly has mandated that a sentence must be based, in part, upon the risk and needs assessment. Because this required sentencing information was never prepared, and consequently not considered by the court and the parties, we respectfully remand this case for resentencing. We also remand the case for entry of a judgment reflecting the appropriate disposition of other charges.

I dissent from the majority’s conclusion that the case must be remanded for
resentencing on the basis that the record fails to reflect that the trial court considered a
validated risk and needs assessment (“RNA”). The majority concludes from the parties’
arguments and from the absence of an RNA in the appellate record that no RNA was
prepared and, therefore, that the trial court did not consider one. See T.R.A.P. 13(c)
(limiting an appellate court to consideration of those facts which appear in the record or
are within the parameters of certain post-judgment facts of which the court may take
judicial notice pursuant to T.R.A.P. 14); Threadgill v. Board of Prof’l Resp., 299 S.W.3d
792, 812 (Tenn. 2009) (stating that allegations in pleadings or a party’s brief are not
evidence that is before an appellate court for review), overruled on other grounds by
Lockett v. Board of Prof’l Resp., 380 S.W.3d 19, 28 (Tenn. 2012); State v. Draper, 800
S.W.2d 489, 493 (Tenn. Crim. App. 1990); State v. Roberts, 755 S.W.2d 833, 836 (Tenn.
Crim. App. 1988). As the majority has observed, the Defendant did not object to the trial
court’s sentencing the Defendant in the purported absence of an RNA at sentencing.

The plaintiff, a founding member of a law firm, filed this action against other members. The trial court found that the defendant members violated their duty of good faith and fair dealing, breached their contract with the plaintiff, violated their fiduciary duty toward the plaintiff, engaged in a conspiracy, and committed conversion. We affirm the ruling of the trial court.

The Petitioner, Terrance Reece, appeals from the Knox County Criminal Court’s denial of
post-conviction relief from his convictions for four counts of weapons violations, three
counts of aggravated assault, and one count of vandalism and his effective twenty-two-year
sentence. On appeal, the Petitioner contends that the post-conviction court erred by
denying relief on his ineffective assistance of counsel claims and that he was prejudiced by
the cumulative effect of counsel’s multiple instances of deficient performance. We reverse
the judgment of the post-conviction court and remand this case for a new trial.

Defendant, Rickey Na’Tarius Porter, appeals the consecutive six-year sentences he
received after pleading guilty to one count of aggravated burglary, two counts of
aggravated assault, and one count of employment of a firearm during the commission of a
dangerous felony. Because the trial court improperly sentenced Defendant to the maximum
sentence in the range on each offense as an especially mitigated offender, we reverse the
judgments of the trial court and remand for resentencing.

The Defendant, Mykhah Calvin Simon, appeals his convictions for possession of one-half gram or more of methamphetamine with intent to sell and deliver, possession of less than one-half gram of fentanyl with intent to sell and deliver, and driving on a suspended license, second offense. On appeal, the Defendant argues that (1) the evidence was insufficient to sustain his convictions and (2) his sentence was excessive. Following our review, we affirm the judgments of the trial court.

The Petitioners seek accelerated interlocutory review of an order denying their motion to
recuse. However, because the Petitioners’ filings fail to comply with Tennessee Supreme
Court Rule 10B, we dismiss the appeal.

This appeal involves the termination of parental rights of a mother.  The juvenile court found by clear and convincing evidence that five grounds for termination were proven and that termination was in the best interest of the child.  The mother appeals.  On appeal, DCS maintains that four grounds for termination were sufficiently proven against the mother.  We vacate one ground due to insufficient findings by the trial court.  We conclude that the three other remaining grounds for termination were sufficiently proven, but due to insufficient findings in the termination order, we vacate the court’s determination that termination of the mother’s parental rights was in the best interest of the child and remand for the court to consider all of the relevant best interest factors and detail its findings.  Accordingly, we affirm in part, reverse in part, vacate in part, and remand for further proceedings.

Mother appeals the termination of her parental rights.  The trial court found four statutory grounds for termination: abandonment by failure to visit, abandonment by failure to support, persistent conditions, and failure to manifest an ability and willingness to assume custody.  The trial court also concluded termination was in the child’s best interest.  Neither the guardian ad litem nor Mother received notice of the trial court’s Order.  Becoming aware of the trial court’s Order more than thirty days after the decision, Mother filed a motion asking the trial court to set aside and then re-enter its final order, seeking to ensure that she could still appeal.  The trial court granted Mother’s motion.  Mother appeals, arguing the trial court erred with regard to each ground of termination that it found and that its conclusion as to the best interest of the child was also in error.  On appeal, Petitioners, paternal grandparents seeking to terminate Mother’s parental rights, argue the trial court erred in setting aside and then re-entering its termination order and, consequently, that this court lacks jurisdiction over Mother’s appeal.  The Petitioners also defend the trial court’s termination decision on the merits.  We conclude this court has jurisdiction over Mother’s appeal, that the trial court did not err in finding that grounds were established for termination, and that the trial court did not err in finding that termination is in the best interest of the child.

The trial court furloughed the Defendant, Brady O’Brien Holmgren, to a mental health court program following his convictions for domestic assault and aggravated assault. The furlough was later revoked, and he was ordered to serve his sentence. Nearly a year later, the Defendant filed a motion to modify his sentence. The trial court denied the motion, and the Defendant appealed. Upon our review, we hold that the Defendant has waived any issues by failing to properly prepare his brief in accordance with Tennessee Rule of Appellate Procedure 27. Accordingly, we respectfully affirm the trial court’s judgment.

A homeowner’s association sought to enforce a recorded declaration of restrictive
covenants against a property owner in a subdivision. The property owner moved to dismiss
on the basis that the declaration did not appear in her chain of title and did not expressly
apply to her property. The HOA contended that language in the property owner’s chain of
title was sufficient to make the property subject to the restrictive covenants. And if not,
the restrictive covenants were enforceable as equitable servitudes. Without notice to the
parties, the trial court dismissed the action on an unasserted basis. We reverse.

In this consolidated appeal, the defendants, Emily Ashton Williams and Joel Scott
Sweeney, appeal their Davidson County Criminal Court jury convictions of aggravated
child neglect. Defendant Sweeney argues that the evidence was insufficient to support his
conviction, that the trial court committed plain error by failing to require the State to make
an election of offenses, and that the trial court erred in sentencing him. Defendant Williams
argues that the evidence was insufficient to support her conviction. Discerning no
reversible error, we affirm.

The Defendant, Aaron Michael King, appeals his jury convictions for rape, rape of a child, statutory rape by an authority figure, incest, aggravated sexual battery, especially aggravated sexual exploitation of a minor, tampering with evidence, especially aggravated kidnapping, and aggravated kidnapping. For these convictions, he received an effective seventy-seven-year sentence. On appeal, the Defendant argues that (1) there was insufficient evidence to support his kidnapping convictions because they were merely incidental to the contemporaneous rapes; (2) the trial court erred by failing to grant his motion for a mistrial after a State’s witness impermissibly vouched for the victim’s credibility; (3) the trial court erred by failing to grant his motion for new trial where defense counsel, who was acting as treasurer for the prosecuting assistant district attorney general’s campaign for a general sessions court judgeship during the Defendant’s trial, had an impermissible conflict of interest; and (4) the cumulative effect of these errors entitle him to a new trial. After our review, we conclude that sufficient evidence supports the challenged convictions, that the trial court properly denied a mistrial, and that the Defendant is not entitled to relief pursuant to the cumulative error doctrine. We further conclude that no adverse effect resulted from the improper conflict of interest. We affirm the judgments of the trial court.

I join in the majority in concluding that the evidence is sufficient to support the
Defendant’s kidnapping convictions and that the trial court did not err in denying the
motion for a mistrial. However, I part ways with the majority’s analysis and conclusion
regarding the court’s denial of a new trial based upon defense counsel’s personal,
concurrent conflict of interests. For the reasons that follow, I conclude that the record fails
to support a conclusion that the Defendant was assured his constitutional right to a fair trial
and that due process requires that he receive a new trial. See U.S. Const. amends. VI
(guaranteeing a criminal defendant’s right to counsel), XIV, §1 (no State shall “deprive
any person of life, liberty, or property, without due process of law”); Tenn. Const. art. 1,
§§ 6 (guaranteeing a criminal defendant’s right to a jury trial), 9 (rights of a criminal
defendant); Strickland v. Washington, 466 U.S. 668, 684-85 (1984) (stating that the right
to counsel exists to protect a criminal defendant’s fundamental right to a fair trial, which
is rooted in the Due Process Clause); see also Smith v. State, 357 S.W.3d 322 , 336 (Tenn.
2011).

In this case of first impression, we consider whether a defendant can be convicted of
criminally negligent homicide when he incites, encourages or coerces another person to
commit suicide and whether the State of Tennessee has territorial jurisdiction over a
defendant when he affirmatively reaches out to Tennessee via electronic means. A Knox
County jury convicted Defendant, Hayden Jennings Berkebile, of criminally negligent
homicide after the victim, Grace Anne Sparks, shot and killed herself for Defendant’s
sexual pleasure while on a video call with Defendant. Defendant argues on appeal that: (1)
the evidence is insufficient to support his conviction because (a) the State did not prove
that Defendant’s actions were the proximate cause of the victim’s death, and (b) the
negligent homicide statute as construed here violates the First Amendment to the United
States Constitution; (2) the State did not establish territorial jurisdiction over Defendant
because he was in Indiana at the time of the victim’s death and only communicated with
her electronically; (3) the trial court erred in admitting an alleged hearsay statement by the
investigator; (4) the trial court erred in allowing the jury to utilize a transcript of
Defendant’s interrogation that contained inaccurate transcriptions; (5) cumulative error
requires a new trial; and (6) the trial court erred in denying judicial diversion because it
relied on evidence not in the record. After reviewing the parties’ briefs and oral arguments,
the record, and the relevant law, we affirm in all respects.

In this case, the State relied exclusively upon online communications sent between
the Defendant, who resided in Indiana, and the suicide decedent, who resided in Tennessee,
to establish a conviction of criminally negligent homicide. In my view, the State failed to
establish the essential elements of territorial jurisdiction and proximate cause. No matter
how “dark” or “diabolical” the online communications leading up to the decedent’s death
may have been, there is simply no law in Tennessee making it a crime to verbally persuade
or coerce someone to commit suicide.1 Because Tennessee has yet to criminalize
incitement, inducement, or encouragement to commit suicide, words alone cannot serve as
the basis for a criminal conviction.2 Accordingly, I must respectfully dissent