APPELLATE COURT OPINIONS

A Roane County Criminal Court jury convicted the defendant, Vincent A. Hester, of attempted first degree murder, a Class A felony, and felony reckless endangerment, a Class E felony, and the trial court sentenced him to twenty years for the attempted murder and two years for the reckless endangerment to be served concurrently in the Department of Correction. The defendant appeals, claiming that the evidence is insufficient and that the trial court failed to perform its duty as the thirteenth juror pursuant to Rule 33(f) of the Tennessee Rules of Criminal Procedure. We affirm the judgments of the trial court.

In this post-divorce case, Richard Austin Demonbreun ("Father"), filed a petition to modify the parties' visitation arrangement, seeking additional time with one of the parties' three children. Rhonda Fay Demonbreun ("Mother"), the primary residential parent of the children, countered with a petition requesting an increase in child support and the imposition of an obligation upon Father to pay the children's unreimbursed medical expenses. In addition, Mother sought one-half of the refund associated with the parties' 1998 income tax return, and an award of her attorney's fees and court costs. Following a bench trial, the trial court (1) denied Father's petition to modify visitation with his oldest son; (2) increased Father's child support obligation and his share of non-covered medical expenses; (3) awarded Mother one-half of the 1998 income tax refund; (4) awarded Mother $5,000 in attorney's fees; and (5) ordered Father to pay all court costs. Father appeals all of the trial court's decrees, and Mother seeks an award of attorney's fees for the filing of a frivolous appeal. We affirm in part and reverse in part, but do not find this appeal to be frivolous in nature.

The appellant, Joseph Vermeal, was convicted by a jury in the Warren County Circuit Court of attempted aggravated sexual battery and was sentenced to four years incarceration in the Tennessee Department of Correction. On appeal, the appellant complains that the evidence is insufficient to support his conviction, the trial court erred in refusing to permit his expert witness to testify, and the trial court erred in imposing consecutive sentencing. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

This is an action for conversion involving two ex-spouses. The wife was the lone signatory on two trust accounts for their daughters. Without authorization from the wife, the defendant bank transferred all of the funds in both trust accounts to the husband’s account. The wife then filed this lawsuit for conversion, fraud and breach of fiduciary duty against the bank, the bank employee who transferred the funds, and the husband. The defendants filed motions for summary judgment. As part of the plaintiff wife’s response, she admitted that she originally put the money into the trust accounts in order to defraud creditors during their divorce. The trial court granted summary judgment to the defendants, based in part on the doctrine of unclean hands. The plaintiff wife appeals. We affirm, finding that the trial court properly applied the doctrine of unclean hands.

The petitioner, James Leath, appeals the denial of his petition for post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is reversed and the cause is remanded with instructions.

In this case, the biological father of a child contends that the trial court erred in terminating his parental rights. Father argues that the evidence presented is not sufficient to establish statutory grounds for termination and that the Tennessee Department of Children's Services failed to make reasonable efforts toward reunification. Upon our finding that father was incarcerated when the petition to terminate was filed and failed to visit the child for four consecutive months immediately preceding his incarceration and our further finding that the Department made reasonable efforts at reunification, we affirm the judgment of the trial court.

This case involves business interruption insurance. The furniture store owned by the plaintiff typically sells furniture under “rent to own” payment plans, whereby customers purchase the furniture through payments over time. The furniture store was damaged by a tornado. As a result, the store was closed for eight months for repairs. The plaintiff store owner had a business interruption insurance policy with the defendant insurance company that covered the loss of business income during the time in which the store was closed for restoration. The store owner sued the insurance company for the loss of business income it would have received during the eight-month period of restoration. Cross-motions for partial summary judgment were filed regarding how to measure the loss of income. The store owner claimed he was entitled to the entire value of sales contracts that would have been signed during the period of closure, even though most of the payments under those contracts would be due after the eight-month restoration period. The insurance company, on the other hand, claimed that the store owner was entitled only to the value of payments that actually would have been received by the store during the eight-month restoration period. The trial court granted partial summary judgment to the store owner, finding that the store owner was entitled to the entire value of the contracts that would have been signed during the restoration period. The insurance company was granted permission to file this interlocutory appeal.
We affirm.

Plaintiff homeowner filed a cause of action against Defendant builder alleging breach of express warranty, breach of implied warranty of good workmanship, misrepresentation, and violation of the Tennessee Consumer Protection Act. Plaintiff alleged damages in the amount of $15,000 and “other damages,” and also sought punitive damages. The trial court found no violation of the Consumer Protection Act and awarded Plaintiff damages in the amount of $11,103 for the cost of repairs.  Plaintiff appeals and Defendant cross-appeals. We affirm in part, reverse in part, and remand.

Mother appeals custody order of the Juvenile Court of Williamson County relative to her oldest child who had been previously determined by that Court to be a dependent and neglected child. The appeal is dismissed for lack of subject matter of jurisdiction and the case remanded to the Williamson County Juvenile Court.

This appeal arises from a multi-faceted business dispute. LDI Design, LLC, an engineering firm, was engaged by Dukes & Co., a real estate developer, to design plans for Spencer Hall, a planned subdivision in Franklin, Tennessee. LDI provided its engineering services, however, Dukes failed to fulfill its financial obligation to LDI. The parties negotiated a new agreement in April 1999 compromising a claim for damages by Dukes in consideration of a reduced fee for LDI's services. After Dukes failed to honor the new agreement, LDI filed this action. Dukes filed an answer denying liability and filed a counter complaint for damages due to deficiencies in the plans prepared by LDI. Spencer Hall, LLC, owner of the Spencer Hall subdivision, while not a party to the contract, joined in the counter complaint claiming to be a co-developer of the project and the third-party beneficiary of the contract between LDI and Dukes. The trial court dismissed the counterclaim finding the renegotiated agreement between LDI and Dukes constituted an accord and satisfaction that barred Duke's claims, and the evidence insufficient to prove any claim for damages against LDI. Although we find the new agreement did not bar Dukes' claim, we affirm the trial court's finding that the evidence failed to prove any claim for damages against LDI. We, therefore, affirm the dismissal of all claims against LDI.

In this appeal, we are called upon to review the trial court’s order entering summary judgment in favor of the bank. After one of its customers deposited a counterfeit check into its account at the bank, the bank filed a claim with its insurance company to recover for its loss under a bond.  Specifically, the bank sought coverage under two provisions in the bond. The bank filed its first motion for summary judgment on one of the bond’s provisions. The insurance company responded by agreeing that, for purposes of ruling on the motion for summary judgment, the bank’s customer intended to commit a fraud when he deposited the check. By doing so, the insurance company sought to trigger an exclusion provision in the bond. Thereafter, the bank filed a second motion for summary judgment on the other provision in the bond. In response, the insurance company, in an effort to create a disputed issue of material fact as to this provision, asserted that the customer did not intended to commit fraud when he deposited the check. The trial court granted the bank’s motions for summary judgment. In regards to the bank’s motions for summary judgment, we reverse the trial court’s award of summary judgment to the bank and find that genuine issues of material fact remain to be decided, therefore, summary judgment is inappropriate.

Donna Renee Morgan ("Mother") filed a complaint for divorce from her husband of 11 years, Jeffrie W. Morgan ("Father"). The trial court awarded Mother a divorce and designated her as the primary residential parent of the parties' minor child. In addition, the trial court divided the parties' property and awarded Mother alimony and child support, basing its child support award on an annual salary for Father of $110,000. Father appeals, arguing that he should have been awarded primary residential parent status and contending that the trial court erred in its determination of his annual income. We affirm.

The petitioner, Stephen Lajuan Beasley, appeals the summary dismissal of his petition for habeas corpus relief. In this appeal, he alleges that his conviction is void because the indictment was defective and because the sentence was illegal. The judgment of the trial court is affirmed.

Fourteen members of a church filed a complaint against the church leadership seeking an injunction to prevent the church from renewing the pastor’s contract and to enjoin the church leadership from utilizing church funds in a manner which displeased them. The parties ultimately settled the case by entering into a settlement agreement, which the chancery court incorporated into its order dismissing the case with prejudice. Shortly thereafter, the members filed a petition seeking to hold the church leadership in contempt for violating the terms of the settlement agreement. The chancellor found the church leadership to be in civil and criminal contempt of the order dismissing the case and imposed fines and jail time. The church leadership appealed to this Court. After reviewing the record in this case, we hold that the chancery court lacked subject matter jurisdiction over this case from the outset. Accordingly, the resulting order, which served as the basis for the chancery court’s finding of contempt, is void. We reverse the chancery court’s ruling in this case and dismiss the case in its entirety.

In this conservatorship case, we are asked to evaluate the probate court's decision that an elderly female was mentally disabled and in need of the court's assistance. The elderly female executed two powers of attorney for health care; one in 1996 and the other in 2003 after the nieces of the elderly female filed their petition in this case to appoint a conservator. The attorney-in-fact under both powers of attorney filed a counter-petition asking the probate court to appoint her conservator over the elderly female. The probate court ruled that the power of attorney executed in 1996 was void due to improper execution and that the power of attorney executed in 2003 was void because it was executed while the elderly female was mentally disabled. The probate court found that the elderly female's nieces and the attorney-in-fact should not serve as conservators in this case. Instead, the probate court appointed the public guardian to serve as the elderly female's conservator. The attorney-in-fact and the elderly female filed an appeal to this Court. We affirm in part and reverse in part.

This medical malpractice case focuses on the correct interpretation of Tenn. R. Civ. P. 3 as we attempt to ascertain whether this suit, filed pursuant to the saving statute, was pursued so as to “toll the running of [the] statute of limitations.” The trial court held that, since no process was issued within 30 days of the filing of the plaintiff’s complaint 1 and since the process that was eventually issued and later served on the defendants was not issued within one year of the filing of the complaint, the plaintiff’s suit was filed outside the one-year statute of limitations. The trial court dismissed the plaintiff’s complaint. She appeals. We affirm.

This is a divorce case. The parties, Donna Lynae Watson ("Wife") and Harold Guy Watson ("Husband"), ultimately stipulated to the existence of grounds for divorce and reached an agreement pertaining to the disposition of much of their marital property. A bench trial was held to resolve the parties' disputed issues, which, among other things, included the issue of how the marital real property should be disposed of in the overall division of the parties' marital property. The trial court awarded the marital real property to Wife, subject, however, to the mortgage on the property; Husband appeals this action by the trial court. We affirm.

The petitioner, James McKinnon, pled guilty to aggravated burglary and especially aggravated robbery. As a result, he was sentenced to an effective sentence of seventeen years in the Tennessee Department of Correction to be served at 100%. The petitioner subsequently filed a petition for post-conviction relief. The post-conviction court denied the petition. Following our review of the record and the parties’ briefs, we affirm the post-conviction court.

This appeal involves the division of property upon divorce where there existed a valid Antenuptial Agreement that included provisions governing such distribution. Because we find that the trial court's distribution was consistent with the terms of the agreement and supported by the record, we affirm.

In this appeal, we are asked by the appellant to determine whether the chancery court erred when it granted summary judgment to the appellees, finding that there was no consideration to support the Pastor’s Spouse Benefits agreement between the parties and that the theory of promissory estoppel is inapplicable in this case. On appeal, the appellant asserts that her presence as first lady of the church, her loss of benefits previously received from the Church, and/or the restraint of marriage provision in the agreement constituted legally adequate consideration for the Agreement. In the alternative, the appellant asserts that the doctrine of promissory estoppel is applicable in this case.  We affirm.

After being indicted for aggravated assault and vehicular assault, the defendant, Andrew Boone, was convicted by jury of reckless aggravated assault, a Class D felony. He was sentenced as a standard offender to four years in the county workhouse, and his driver’s license was suspended for one year for violating the implied consent statute. On appeal, he presents five issues for our review: (1) whether the trial court erred in admitting irrelevant evidence; (2) whether the trial court properly
instructed the jury as to the elements of reckless aggravated assault; (3) whether the trial court erred in refusing to instruct the jury on reckless driving as a lesser-included offense of reckless aggravated assault; (4) whether the evidence was sufficient to support his conviction for reckless aggravated assault; and (5) whether the trial court erred in determining the length and the manner of service of his sentence. Upon review, we affirm the judgment of the trial court.

This is a termination of parental rights case. In 1999, DCS removed three of the four children living with mother from the mother’s home. They were found to be dependent and neglected, and placed in the custody of DCS. The children were in foster care until October 2002, when they were returned to the mother. By that time, the fourth child had been born. In May 2003, all four children were again removed from the mother’s custody based on reports that the mother had left the children unsupervised, and that the eighteen-month-old was found in the street and was almost hit by a car.  Authorities later discovered that minors had been drinking alcohol in the mother’s home, and that the mother had struck one of the children in the eye and told her to lie about the resulting bruise. The trial court again found the children to be dependent and neglected. The mother and DCS entered into a permanency plan with several requirements for the mother to complete in order to regain custody of the children. Eight months later, DCS filed the instant petition to terminate the mother’s parental rights, alleging, inter alia, that the conditions which led to the removal of the children from the mother’s home persisted. The trial court granted the petition and terminated the mother’s parental rights. The mother now appeals. We affirm, finding ample evidence on the ground of persistent conditions, as well as clear and convincing evidence that termination of the mother’s parental rights was in the children’s best interest.

The Defendant, Celeste Hall, pled guilty to child abuse and neglect and facilitation of the aggravated sexual battery of her minor child. The Defendant received an effective three year sentence in prison. On appeal, the Defendant argues that the trial court erred in denying alternative sentencing. We affirm the judgment of the trial court.

The defendant, Joshua Schaeffer, was convicted of aggravated robbery. The trial court imposed a Range I sentence of eight years in the Department of Correction. In this appeal as of right, the defendant alleges (1) that the evidence is insufficient; (2) that the trial court provided an incorrect definition of the term "deadly weapon" in its instructions to the jury; (3) that the trial court committed plain error by giving the "result-of-conduct" definition of "knowingly" in its instructions to the jury; (4) that the trial court improperly allowed into evidence a newspaper headline related to the offense; (5) that a detective impermissibly referred to the crime as "robbery" during his testimony; (6) that the prosecutor's closing argument was improper; and (7) that the cumulative effect of the errors deprived him of the right to a fair trial. The judgment of the trial court is affirmed.

The Defendant, Markettus L. Broyld, appeals the judgment of the trial court revoking his probation. Because the notice of appeal was untimely filed, this appeal is dismissed.