APPELLATE COURT OPINIONS

Appellant filed a detainer action against Appellee, seeking possession of commercial property. The lawsuit was premised on Appellant’s assertion that Appellee breached the commercial lease, under which it purportedly leased Appellant’s property. Appellee, however, is not a party to the lease. As such, the judgment for breach and for back rents entered against Appellee is of no force or effect. Vacated and remanded.

The Appellant appeals the entry of an order of protection that was entered against him. Because that order of protection has expired, we dismiss the appeal as moot.

The Petitioner, Alberto Conde-Valentino, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief, seeking relief from his convictions of first degree felony murder and especially aggravated robbery and resulting effective sentence of life in confinement. On appeal, the Petitioner contends that he received the ineffective assistance of trial counsel. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Under the majority’s decision, qualified Tennessee voters can now vote by absentee mail ballot if voters, in their discretion, determine they have underlying medical or health conditions that make them more susceptible to contracting COVID-19 or if they are vulnerable to greater health risks should they contract COVID-19, or if they care for someone with such a condition.1 I concur in part because I welcome this result as to those plaintiffs, and I agree with much of what the majority has to say about the rest. This cascade of agreement includes: the presumption of constitutionality afforded to Tennessee Code Annotated sections 2-6-201(5)(C) and (D); the application of the Anderson-Burdick standard of review; the moderate burden on the right to vote of those plaintiffs who do not have (or care for someone with) an underlying condition; and the lack of persuasiveness of the Defendants’ evidence of voter fraud. And yet I must dissent.

A medical center employee sued the medical center under the Tennessee Public Protection Act (“the TPPA”) asserting that his employment was terminated because he refused to remain silent about the medical center’s failure to enact policies to safeguard its employees from workplace violence. The medical center moved to dismiss the employee’s complaint for failure to state a claim, and the trial court granted the motion. We conclude that the employee’s complaint satisfies the TPPA’s “illegal act” requirement because it alleges the violation of the Occupational Safety and Health Act’s general duty clause and describes activities that implicate important public policy concerns. Therefore, we reverse the trial court’s dismissal.

We assumed jurisdiction over these appeals pursuant to Tennessee Code Annotated section 16-3-201(d)(1) (2009 & Supp. 2019) and Rule 48 of the Rules of the Tennessee Supreme Court and ordered expedited briefing and oral argument. The issue we must determine is whether the trial court properly issued a temporary injunction enjoining the State from enforcing its current construction of the eligibility requirements for absentee voting stated in Tennessee Code Annotated section 2-6-201(5)(C) and (D) (2014 & Supp. 2019). The injunction temporarily mandated the State to provide any eligible Tennessee voter, who applies to vote by mail in order to avoid transmission or contraction of COVID-19, an absentee ballot in upcoming elections during the pendency of pandemic circumstances. The injunction further mandated the State to implement the construction and application of Tennessee Code Annotated section 2-6-201(5)(C) and (D) that any qualified voter who determines it is impossible or unreasonable to vote in-person at a polling place due to the COVID-19 situation shall be eligible to check the box on the absentee ballot application that ‟the person is hospitalized, ill or physically disabled and because of such condition, the person is unable to appear at the person’s polling place on election day; or the person is a caretaker of a hospitalized, ill or physically disabled person,” and have that absentee voting request duly processed by the State in accordance with Tennessee law. At oral argument before this Court, the State conceded that, under its interpretation of Tennessee Code Annotated section 2-6-201(5)(C) and (D), persons who have underlying medical or health conditions which render them more susceptible to contracting COVID-19 or at greater risk should they contract it (“persons with special vulnerability to COVID-19”), as well as those who are caretakers for persons with special vulnerability to COVID-19, already are eligible to vote absentee by mail. We hold that injunctive relief is not necessary with respect to such plaintiffs and persons. We instruct the State to ensure that appropriate guidance, consistent with the State’s acknowledged interpretation, is provided to Tennessee registered voters with respect to the eligibility of such persons to vote absentee by mail in advance of the November 2020 election.

With respect to those plaintiffs and persons who do not have special vulnerability to COVID-19 or who are not caretakers for persons with special vulnerability to COVID-19, we hold that the trial court erred in issuing the temporary injunction. Accordingly, we vacate the temporary injunction. Recognizing that absentee ballots already have been cast for the August 6, 2020 election consistent with the trial court’s temporary injunction, and mindful of the goal of avoiding alterations to election rules on the eve of an election, the absentee ballots of all Tennessee registered voters who timely requested and submitted an absentee ballot by mail for the August 6, 2020 election pursuant to the trial court’s temporary injunction and which absentee ballots otherwise meet the requirements of the absentee voting statutes shall be duly counted. These cases are remanded to the trial court for further proceedings consistent with this opinion.

This opinion is not subject to rehearing under Tennessee Rule of Appellate Procedure 39, and the Clerk is directed to certify this opinion as final and to immediately issue the mandate.

Under the majority’s decision, qualified Tennessee voters can now vote by absentee mail ballot if voters, in their discretion, determine they have underlying medical or health conditions that make them more susceptible to contracting COVID-19 or if they are vulnerable to greater health risks should they contract COVID-19, or if they care for someone with such a condition.1 I concur in part because I welcome this result as to those plaintiffs, and I agree with much of what the majority has to say about the rest. This cascade of agreement includes: the presumption of constitutionality afforded to Tennessee Code Annotated sections 2-6-201(5)(C) and (D); the application of the Anderson-Burdick standard of review; the moderate burden on the right to vote of those plaintiffs who do not have (or care for someone with) an underlying condition; and the lack of persuasiveness of the Defendants’ evidence of voter fraud. And yet I must dissent.
 

We assumed jurisdiction over these appeals pursuant to Tennessee Code Annotated section 16-3-201(d)(1) (2009 & Supp. 2019) and Rule 48 of the Rules of the Tennessee Supreme Court and ordered expedited briefing and oral argument. The issue we must determine is whether the trial court properly issued a temporary injunction enjoining the State from enforcing its current construction of the eligibility requirements for absentee voting stated in Tennessee Code Annotated section 2-6-201(5)(C) and (D) (2014 & Supp. 2019). The injunction temporarily mandated the State to provide any eligible Tennessee voter, who applies to vote by mail in order to avoid transmission or contraction of COVID-19, an absentee ballot in upcoming elections during the pendency of pandemic circumstances. The injunction further mandated the State to implement the construction and application of Tennessee Code Annotated section 2-6-201(5)(C) and (D) that any qualified voter who determines it is impossible or unreasonable to vote in-person at a polling place due to the COVID-19 situation shall be eligible to check the box on the absentee ballot application that ‟the person is hospitalized, ill or physically disabled and because of such condition, the person is unable to appear at the person’s polling place on election day; or the person is a caretaker of a hospitalized, ill or physically disabled person,” and have that absentee voting request duly processed by the State in accordance with Tennessee law. At oral argument before this Court, the State conceded that, under its interpretation of Tennessee Code Annotated section 2-6-201(5)(C) and (D), persons who have underlying medical or health conditions which render them more susceptible to contracting COVID-19 or at greater risk should they contract it (“persons with special vulnerability to COVID-19”), as well as those who are caretakers for persons with special vulnerability to COVID-19, already are eligible to vote absentee by mail. We hold that injunctive relief is not necessary with respect to such plaintiffs and persons. We instruct the State to ensure that appropriate guidance, consistent with the State’s acknowledged interpretation, is provided to Tennessee registered voters with respect to the eligibility of such persons to vote absentee by mail in advance of the November 2020 election.

With respect to those plaintiffs and persons who do not have special vulnerability to COVID-19 or who are not caretakers for persons with special vulnerability to COVID-19, we hold that the trial court erred in issuing the temporary injunction. Accordingly, we vacate the temporary injunction. Recognizing that absentee ballots already have been cast for the August 6, 2020 election consistent with the trial court’s temporary injunction, and mindful of the goal of avoiding alterations to election rules on the eve of an election, the absentee ballots of all Tennessee registered voters who timely requested and submitted an absentee ballot by mail for the August 6, 2020 election pursuant to the trial court’s temporary injunction and which absentee ballots otherwise meet the requirements of the absentee voting statutes shall be duly counted. These cases are remanded to the trial court for further proceedings consistent with this opinion.

This opinion is not subject to rehearing under Tennessee Rule of Appellate Procedure 39, and the Clerk is directed to certify this opinion as final and to immediately issue the mandate.
  

A mother and father’s parental rights to two children were terminated on the grounds of abandonment, persistence of conditions, failure to manifest an ability and willingness to assume custody, and upon a determination that terminating the parents’ rights would be in the best interest of the children. Each parent appeals; we reverse in part as to certain statutory grounds but affirm the termination of the parental rights of each parent.

concur with the majority’s opinion except as to the holding that the ground as to the “failure to manifest an ability and willingness to assume custody” was not satisfied as to Mother. This Court is split on this issue, and I agree with the line of cases that hold that the parent has to be able and willing rather than just either of the two. See In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *12-14 (Tenn. Ct. App. June 20, 2018). I would affirm the Trial Court’s determination “that the Petitioners have proven by clear and convincing evidence that the Mother has demonstrated an unwillingness to assume custody of the minor children.” I agree with the Trial Court that Mother’s “sobriety was only very recently established, and her continued success in her sobriety is questionable . . . .” Mother’s unwillingness to assume custody satisfies this requirement of Tenn. Code Ann. § 36-1-113(g)(14). I concur in all the rest of the majority’s opinion including termination of Father’s and Mother’s parental rights. Given this Court’s recurring clear and irreconcilable split as to this question of statutory interpretation, I request the Tennessee Supreme Court accept and resolve this issue once it has the opportunity to do so.

Defendant, Jessica M. Thompson, appeals from the trial court’s revocation of her probation. Upon our review of the record, we affirm the judgment of the trial court.

This appeal arises from a petition filed by a former wife alleging that the former husband breached their marital dissolution agreement. Wife sought $10,000 in damages to property that husband had allegedly damaged in the manner in which the property was stored. The trial court awarded Wife $7,820 in damages. Husband appeals, asserting that the court erred in adopting the values stated in the marital dissolution agreement in assessing Wife’s damages and in not holding that Wife failed to mitigate her damages. Wife asserts that she was entitled to attorney’s fees in accordance with the enforcement provision of the MDA. We affirm the award of damages and reverse the denial of Wife’s application for attorney’s fees.    

A Rutherford County jury convicted Defendant, Jonathan Montgomery, of driving under the influence (“DUI”) per se, DUI with blood alcohol content over .08 percent, DUI, sixth offense, and driving on a revoked license. The trial court sentenced Defendant to three years with a thirty percent release eligibility for DUI and to a concurrent sentence of six months for driving on a revoked license. On appeal, Defendant contends the evidence presented at trial was insufficient to support his convictions. Following a thorough review, we affirm the judgments of the trial court.

A Fayette County Circuit Court Jury convicted the Appellant, Kenneth D. Rudd Sr., of rape and incest. The Appellant was sentenced as a Range II, multiple offender to a total effective sentence of seventeen years in the Tennessee Department of Correction. On appeal, the Appellant challenges the sufficiency of the evidence sustaining his convictions and the length of the sentences imposed by the trial court. Upon review, we affirm the judgments of the trial court.

Petitioner, Harvey Lee Webster, appeals the trial court’s summary dismissal of his motion filed pursuant to Tennessee Rule of Criminal Procedure 36.1. He alleges that his sentences are illegal because his concurrent sentences had to run consecutively because he was on probation at the time of the offenses. After a thorough review, we affirm the judgment of the trial court.

This is a wrongful death healthcare liability action against two defendants, a hospital and an emergency room physician. Following extensive discovery and scheduling orders, the physician defendant filed a motion for summary judgment, and the hospital joined in the motion. The trial court granted each defendant partial summary judgment by dismissing 17 claims alleging the defendants breached standards of care. When the hospital filed its motion to summarily dismiss the remaining claims against it, the plaintiff filed a response and a motion to substitute his physician expert witness for a different expert witness. The defendants opposed the motion, and the trial court denied the motion to substitute the plaintiff’s expert witness. The court also summarily dismissed all remaining claims against the hospital, leaving only the claims against the emergency room physician for trial. Upon motion of the plaintiff, the court certified the summary dismissal of all claims against the hospital as a final judgment pursuant to Tenn. R. Civ. P. 54.02. This appeal followed. We have determined that the trial court erred in certifying the order as a final judgment under Tenn. R. Civ. P. 54.02 because, inter alia, any decision we make regarding the adjudicated claims against the hospital may encroach upon the unadjudicated claims to be tried against the emergency room physician. Moreover, there is no basis upon which to conclude that an injustice may result from the delay in awaiting adjudication of the entire case. Therefore, there is a just reason for delaying the expedited appeal of the summary dismissal of all claims against the hospital. Accordingly, we vacate the trial court’s order certifying the judgment as final under Rule 54.02 and remand for further proceedings.

This case involves an oral contract for construction services at a residential home. The parties agreed for the contractor to make various improvements to the property, including painting; repairing cabinets; and replacing countertops. The parties dispute the agreed-upon time of completion. Unbeknownst to the homeowner at the time of contracting, the contractor had several severe physical ailments. On multiple occasions, the homeowner expressed her displeasure with the contractor’s lack of progress. Eventually, the homeowner informed the contractor that a third party would complete the majority of the agreed-upon services. The homeowner initiated this case by filing suit against the contractor and his wife, alleging violations of the Tennessee Consumer Protection Act. The contractor and his wife filed a counter-claim, alleging breach of contract by the homeowner. After a bench trial, the trial court rescinded the contract, finding a mutual mistake regarding the length of the contract term, and dismissed the parties’ claims. All parties appealed. We reverse the trial court’s decision and remand for further proceedings.

A sheriff’s office demoted an employee for failing to follow official policies and procedures during an arrest. The employee appealed to the civil service merit board. After a hearing, the board found the employee had neglected his duty as the ranking officer at the scene of the arrest. But the board modified the disciplinary action to a 30-day suspension and ordered the employee’s reinstatement to his former rank. The employee then sought judicial review. The chancery court determined that the board’s decision was arbitrary and capricious and modified the disciplinary sanction. We conclude that the board’s decision was not arbitrary and capricious. So we reverse.

This is the second appeal of this case involving a former state employee’s claim for alleged unpaid holiday compensation. In 2015, pursuant to statutory authority, the governor decided that the State would observe the Columbus Day holiday on Friday, November 27, 2015, instead of on Monday, October 12, 2015. Plaintiff, who was an employee of the Tennessee Department of General Services in 2015, was terminated through a reduction-in-force, and his last day of pay, prior to the holiday, was Tuesday, November 24, 2015. Plaintiff filed a civil warrant in general sessions court, arguing that he did not receive the substituted Columbus Day holiday compensation despite having worked on October 12, 2015. The Department filed a motion to dismiss on the basis of sovereign immunity, which the general sessions court granted. Plaintiff then filed a de novo appeal to the circuit court, where the Department filed another motion to dismiss on sovereign immunity grounds, which was also granted. On the first appeal to this Court, however, we reversed the granting of the motion to dismiss and remanded the case back to the circuit court. Ultimately, the Department filed a motion for summary judgment with supporting affidavits, again on the grounds of sovereign immunity, which the circuit court granted. Having concluded that the Department proved, by undisputed facts, the necessary criteria for sovereign immunity to apply, we affirm.

Defendant, Kurk Mitchell Slater, was indicted by a Lawrence County Grand Jury on eight counts: Count 1, attempted aggravated kidnapping; Count 2, attempted rape; Count 3, aggravated assault; Count 4, assault; Count 5, aggravated burglary; Count 6, vandalism under $1000; Count 7, reckless endangerment; and Count 8, assault. Defendant pled guilty to Counts 1, 3, and 5. The remaining counts were nolled pursuant to the plea agreement. Defendant agreed that he would be sentenced as a Range I, standard offender, at a separate sentencing hearing. The trial court sentenced Defendant to five years for each count, with partial consecutive alignment, for a total effective sentence of ten years incarceration. Defendant timely appeals the consecutive sentencing and the trial court’s denial of alternative sentencing. After a review, we affirm the judgments of the trial court.

Petitioner, Larry Donnell Golden, Jr., appeals from the denial of his petition for postconviction relief from his 2016 convictions for second degree murder and reckless endangerment. Petitioner contends that he received the ineffective assistance of counsel at trial and on direct appeal. Following our review of the record, we affirm the denial of the petition.

This appeal arises from a business dispute between the two members of a Tennessee limited liability company, 4 Points Hospitality, LLC (“4 Points”), each owning a 50% interest. The plaintiff-member, Terrell K. Raley (“Raley”), commenced this action asserting, individually and on behalf of the LLC, inter alia, that the defendant-member, Cees Brinkman (“Brinkman”), breached the operating agreement by failing to make a $175,000 capital contribution. Brinkman asserted counter claims, individually and on behalf of the LLC, for breach of contract and breach of fiduciary duty, alleging that Raley misappropriated funds for his personal benefit and that he withheld a large portion of Brinkman’s distributions and salary. Brinkman also claimed that Raley was liable for conversion and punitive damages. Brinkman sought to terminate Raley’s membership interest because he willfully and persistently breached his fiduciary duty, and because it was no longer reasonably practicable for the two men to continue operating the business. Brinkman also claimed he was entitled to recover his attorneys’ fees in accordance with Tenn. Code Ann. §§ 48-249-804 and -805, and the operating agreement. Upon Raley’s pre-trial motion, the trial court summarily dismissed Brinkman’s claim for attorneys’ fees under the operating agreement, holding that the attorneys’ fees provision only pertained to disputes submitted to arbitration. Following a lengthy bench trial, the court ruled that (1) Brinkman breached the operating agreement by failing to make a $175,000 capital contribution; (2) Raley was liable for breach of fiduciary duty, breach of contract, and conversion for underpaying Brinkman’s distributions and salary and for using 4 Points’ funds to satisfy unrelated, personal expenses; (3) Raley was not liable for punitive damages because his conduct was not egregious; and (4) Brinkman was not entitled to attorneys’ fees under §§ 48-249-804 and -805. The court also terminated Raley’s membership interest in 4 Points in accordance with Tenn. Code Ann. §§ 48-249-503(a)(6)(B) and (C), finding that Raley’s wrongful conduct adversely and materially affected the business, and it was no longer reasonably practicable for the members to continue operating the business together. Brinkman filed a motion to alter or amend the court’s order, and the court denied his motion in all respects but one, ruling, in accordance with Tenn. Code Ann. § 48-249-805, that Brinkman was entitled to equitable relief in the form of attorneys’ fees. Therefore, the court revised its order to allow half of the $240,275.59 Raley owed 4 Points as reimbursement for personal expenses to be paid to Brinkman, individually. Brinkman then filed notice that 4 Points intended to purchase Raley’s membership interest in accordance with Tenn. Code Ann. §§ 48-249-505 and -506, which necessitated an evidentiary hearing to determine the “fair value” of Raley’s interest. In preparation for the hearing, Brinkman’s expert prepared a valuation report applying shareholder-level discounts for lack of control and lack of marketability and adjusting 4 Points’ income for the corporate income tax. Raley responded by filing a motion in limine to determine the meaning and components of “fair value” under Tenn. Code Ann. § 48-249-506(3), arguing that any testimony or other evidence relating to discounts for lack of control and marketability and the corporate income tax should be excluded at the evidentiary hearing. In response, Brinkman submitted the affidavit of his valuation expert, explaining the expert’s valuation methodology and the reasons for applying a corporate income tax rate. The court ruled that because the company, rather than a third-party, was purchasing the membership interest, the fact that the interest was non-controlling was irrelevant to its fair value. The court also excluded evidence and testimony on discounts for lack of marketability. As for the applicability of the corporate income tax, the court ruled that “no entity level tax should be applied in the valuation analysis for a non-controlling interest in an electing S corporation, absent a compelling demonstration that independent third parties dealing at arms-length would do so as part of a purchase price negotiation.” Following the evidentiary hearing, the court determined that the fair value of 4 Points was $4,774,278.18, and that Raley’s 50% interest was $2,387,139.09. Brinkman timely filed this appeal contending the trial court erred in determining that (1) Brinkman breached the operating agreement by failing to make a capital contribution; (2) Raley was not liable for punitive damages; and (3) Brinkman was not entitled to attorneys’ fees pursuant to the operating agreement and/or §§ 48-249-804 and -805. As for the trial court’s valuation of Raley’s membership interest, Brinkman contends the trial court erred in (1) disallowing discounts for lack of control and lack of marketability and (2) determining that tax-affecting did not constitute relevant evidence of the fair value of Raley’s membership interest in 4 Points. We affirm the trial court’s judgment in every respect but one. We have determined that the trial court erred by failing to consider evidence relative to tax-affecting when determining the fair value of Raley’s membership interest, because Tenn. Code Ann. § 48-249-506 provides that relevant evidence of fair value includes the “recommendations of any of the appraisers of the parties to the proceeding.” Brinkman’s valuation expert stated in his affidavit that the application of a 38% tax rate “comports with generally accepted valuation standards and methods” and reasoned that, there is a risk of inaccurate valuation when the components of the capitalization rate are based on after-tax values, and no tax-affecting is applied to the income of the company. Therefore, we vacate the judgment valuing Raley’s interest and remand for the trial court to consider evidence relative to tax-affecting in determining the fair value of Raley’s membership interest and to enter judgment accordingly. 

The defendant, Edward Powell, appeals his Dyer County Circuit Court jury conviction of the sale of cocaine, challenging the sufficiency of the convicting evidence. Discerning no error, we affirm.

A McMinn County jury convicted the Defendant, Ricky Lee Womac, of two counts of attempted first degree premeditated murder and one count of reckless endangerment. In a separate proceeding, the Defendant pleaded guilty to possession of a firearm by a convicted felon. For these convictions, the trial court sentenced the Defendant to serve an effective sentence of eighty years in the Tennessee Department of Correction. On appeal, the Defendant asserts that the evidence is insufficient to support his convictions for attempted first degree premeditated murder and that his trial counsel was ineffective. After review, we affirm the trial court’s judgments.

The Petitioner, Roosevelt Bigbee, Jr., appeals the denial of his petition for writ of habeas corpus. The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20. Said motion is hereby granted.