APPELLATE COURT OPINIONS

The Petitioner, Richard Kelley, appeals the Montgomery County Circuit Court’s denial of his petition for post-conviction relief from his convictions of four counts of rape of a child, three counts of aggravated sexual battery, and one count of misdemeanor assault and resulting effective sentence of thirty years to be served at 100%. On appeal, the Petitioner contends that he received the ineffective assistance of counsel at trial. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

The parties to a wrongful death action reached a mediated settlement under which the settlement proceeds were divided between the surviving spouse and the deceased’s children. After the settlement agreement was judicially approved and the proceeds disbursed, the trial court ruled that the surviving spouse had waived his right to collect any settlement proceeds. The deceased’s children filed a legal malpractice action against the estate of the attorney who had represented their guardian ad litem in the wrongful death action because he failed to contest the surviving spouse’s standing. As part of the settlement of the legal malpractice action, the children assigned their claims against the surviving spouse to the estate of the attorney. The estate then filed this equitable action
against the surviving spouse and his girlfriend, seeking recovery of the settlement proceeds and a constructive trust on any property purchased with those proceeds. Both the estate and the surviving spouse filed cross-motions for summary judgment. The trial court denied the spouse’s motion but granted the estate summary judgment based on unjust enrichment. We reverse the grant of summary judgment.

This case involves the plaintiff’s purchase of real property and the alleged fraud by others as to the property’s real value. On December 20, 2016, the plaintiff filed a pro se complaint against several defendants, including Regions Financial Corporation. The plaintiff labeled his six counts as sounding in fraud in the inducement, breach of contract, conspiracy, intentional infliction of emotional distress, negligent infliction of emotional distress, and improper foreclosure of deed of trust. The trial court dismissed the plaintiff’s complaint against the defendants, holding that the complaint is barred by the three year statute of limitations. See Tenn. Code Ann. § 28-3-105 (2017). In so holding, the court determined that the complaint, on its face, shows that the plaintiff, as early as 2006, knew, or should have known, that the property was worth substantially less than the plaintiff paid for it and, as a consequence, he had been injured by the acts of others. In response, the plaintiff argues that the trial court erred when it failed to rely upon the sixyear statute of limitations as to his claim for breach of contract. See Tenn. Code Ann. § 28-3-109(a)(3) (2017). Plaintiff appeals. We affirm

Appellant alleges intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent hiring, supervision, and retention against a University and its employees. The trial court granted Appellees’ motion to dismiss for failure to state a claim upon which relief can be granted. Discerning no error, we affirm.

The Defendant, Bradley Mitchell Eckert, committed three acts of vandalism and one burglary when he was sixteen years old, and the juvenile court granted a motion to transfer the proceedings to criminal court. The trial court found the Defendant guilty of vandalism of property valued at more than $1,000 but less than $2,500; vandalism of property valued at $10,000 or more but less than $60,000; vandalism of property valued at $60,000 or more but less than $250,000; and burglary. After a hearing, the trial court sentenced the Defendant to serve twelve years in prison. The Defendant appeals the juvenile court’s decision to transfer the proceedings, and he appeals his sentence. We conclude that there was no abuse of discretion, and we affirm the judgments.

Employee, Wesley David Fly, was injured in the course of his employment, and the parties agree that Employee is permanently and totally disabled. The circuit court found that Employee was not capable of gainful employment and awarded benefits for permanent total disability. On appeal, Employer, Mr. Bult’s, Inc., argues that non-work-related factors acting independently of Employee’s work injury contributed to his disability. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the circuit court.

Paul A. Westby (“Employee”) suffered gradual hearing loss during his employment with Goodyear Tire & Rubber Company (“Employer”). Employee filed a workers’ compensation claim when Employer closed its plant. Employer argued the claim was barred by the statute of limitations because Employee failed to report his injury despite learning of his hearing loss years earlier. The trial court allowed the claim based on the “last-day-worked” rule and awarded Employee 60 percent permanent partial disability (“PPD”) to both ears. Employer has appealed, arguing that the trial court erred in applying the last-day-worked rule and that the PPD award is excessive. This appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court in all respects.

A bondsman for Appellant Cumberland Bail Bonding (“Cumberland”) was arrested after law enforcement determined that he was trading bonds for sex. A panel of circuit court judges entered a sua sponte order suspending Cumberland’s authority as a bonding company in Marion County and a subsequent order suspending the authority of A Bail Bonding Company (“A Bail Bonding”) and A+ Bail Bonding, whose proprietor was also the owner of Cumberland. After a hearing, the trial court determined that the bondsman engaged in professional misconduct, that Cumberland did not explicitly prohibit the misconduct in its employee manual, and that Cumberland failed to notify the court of the bondsman’s arrest. The bonding privileges of all three Appellants were suspended for a period of six months. The Appellants challenge the suspension, asserting that they were denied their due process rights and that the trial court erred in suspending their bail bonding authority. The State responds that the appeal is moot but that there was in any event no error. We have addressed the underlying issues and have determined that the trial court’s actions were in error. Accordingly, the judgment of the trial court is vacated.

The Defendant, Matthew P. Ladewig, appeals as of right from the Madison County Circuit Court’s judgment of conviction of theft over $500. On appeal, the Defendant contends that the trial court abused its discretion in denying his motion for mistrial after a witness for the prosecution, while testifying, referred to the Defendant’s possible involvement in a similar investigation. Following our review, we affirm the judgment of the trial court.

This appeal arises from a delinquent taxpayer action. The appellants were lienholders on a parcel of real property sold to a separate purchaser during a delinquent tax sale. Following the tax sale, the lienholders filed a petition for redemption. In response, the purchaser filed a motion to protest the validity of the lien or, alternatively, a claim to recover $8,579.60 in “lawful charges” that he and a friend had incurred to clear debris and personalty from the real property. The lienholders then filed a “cross claim” against the purchaser, alleging conversion and trespass to chattels. The lienholders sought an award of actual damages for removal of personalty and a “steel building” from the real property, as well as punitive damages for the purchaser’s allegedly malicious actions. The purchaser filed an answer, denying all substantive allegations. The purchaser subsequently withdrew his objection to the validity of the lien. Following a bench trial, the trial court granted the lienholders’ petition for redemption upon the conditions that the lienholders pay all delinquent taxes, penalties, and fees; reimburse the purchaser and his friend in the amount of $8,579.60 for expenses incurred in the removal of debris and personalty; and reimburse the purchaser and his friend in the amount of $600.00 for storage of personalty. The lienholders have appealed. Having determined that the order appealed from fails to resolve the lienholders’ claims of conversion and trespass to chattels, we conclude that it is not a final order. Accordingly, we dismiss the appeal for lack of subject matter jurisdiction.

This is a termination of parental rights case. Appellant/Father appeals the trial court’s termination of his parental rights to the two minor children on the grounds of: (1) abandonment by an incarcerated parent by wanton disregard, Tenn. Code Ann. §§ 36-1- 113(g)(1) and 36-1-102(1)(A)(iv); (2) abandonment by failure to provide a suitable home, Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(ii); (3) substantial noncompliance with the reasonable requirements of the permanency plan, Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2). Appellant also appeals the trial court’s finding that termination of his parental rights is in the children’s best interests. Because there is clear and convincing evidence to support both the grounds for termination of Appellant’s parental rights and the trial court’s finding that termination is in the children’s best interest, we affirm.

This is an accelerated interlocutory appeal as of right from the denial of a motion for recusal. In their petition for recusal appeal, Petitioners admit that they did not promptly file the recusal motion after the facts forming the basis for the motion became known. As such, Petitioners waived their right to challenge the probate judge’s impartiality. The record is also insufficient to support a finding of error on the part of the probate judge because the motion for recusal was unaccompanied by an affidavit as required by the rules. Thus, we affirm the probate court’s denial of the recusal motion.

This appeal involves a dispute between an insurance company and one of its insureds. Following a fire to her home, the insured brought suit requesting that the insurance company be required to pay a claim for personal property damage. The insurance company defended on the ground that the insurance policy was void because a misrepresentation by the insured on her application for insurance increased the “risk of loss.” See Tenn. Code Ann. § 56-7-103. The trial court agreed with the insurance company and granted summary judgment in its favor. For the reasons stated herein, we affirm.

Defendant, Alina Frankie Sherlin, was indicted for first degree murder. After a jury trial, she was found guilty of second degree murder and sentenced to fifteen years in incarceration. The trial court denied the motion for new trial, and Defendant appealed to this Court. On appeal, Defendant raises the following issues for our review: (1) whether the trial court erred by admitting a videotape from the ambulance ride depicting Defendant’s actions after the incident; (2) whether the trial court erred by admitting the preliminary hearing testimony of a witness that the trial court deemed unavailable; (3) whether the trial court erred by permitting the State to call a surprise witness; (4) whether the trial court erred by excluding testimony about the victim’s motorcycle gang membership; (5) whether the trial court erred by prohibiting Defendant from introducing nude photographs and sexual videos of a witness for impeachment purposes; (6) whether the trial court properly excluded testimony regarding a threat made by the victim toward Defendant; (7) whether the trial court erred by excluding Defendant’s medical records; (8) whether the trial court erred by refusing to allow defense counsel to point out specific areas of photographs that were discussed during the videotaped deposition of the unavailable witness; (9) whether the trial court erred by refusing to grant Defendant’s motion for judgment of acquittal at the close of the State’s proof; (10) whether the State committed prosecutorial misconduct during opening and closing statements (11) whether the evidence was sufficient to support the conviction ; and (12) whether cumulative error by the trial court necessitates a reversal of Defendant’s conviction. For the following reasons, the judgment of the trial court is affirmed.

Joseph J. Levitt (“Owner”), the owner of the Applewood apartment complex located in Oak Ridge, Tennessee, appeals the September 14, 2016 order of the Chancery Court for Anderson County (“the Trial Court”) granting summary judgment to the City of Oak Ridge, the Oak Ridge Board of Building and Housing Appeals, and Denny Boss (collectively “the City”) in this suit seeking to overturn the City’s order that six of the Applewood buildings be vacated and demolished. Owner raises issues on appeal regarding the adminstrative warrants and whether the decision of the board was arbitrary, capricious, or illegal. We find and hold that the adminstrative warrants satisfied the requirements of Tenn. Code Ann. § 68-120-117 and that the decision of the board was not arbitrary, capricious, or illegal. We, therefore, affirm the Trial Court’s grant of summary judgment.

The Defendant, Mardoche Olivier, was convicted by a jury of one count of evading arrest while operating a motor vehicle, a Class E felony. On appeal, the Defendant challenges the sufficiency of the evidence supporting his conviction, arguing that there was insufficient evidence that he “received any signal” from law enforcement “while operating a motor vehicle” to bring that vehicle to a stop or that he “intentionally fle[d] or attempt[ed] to elude” either officer. Following our review, we affirm the judgment of the trial court.

This appeal arises from an action for grandparent visitation. The child’s father died when she was seven weeks old, and when the mother denied visitation to the paternal grandmother, the paternal grandmother filed a petition for grandparent visitation. After a trial, the court determined that the mother opposed visitation, the presumption of substantial harm was not overcome, and grandparent visitation was in the child’s best interests. The court ordered grandparent visitation the third weekend of each month, Thanksgiving break in odd years, every Christmas break, and every summer break. The court also gave the grandmother four of the parental rights found in Tenn. Code Ann. § 36-6-101(a)(3)(B)—the right to educational records, the right to be free from derogatory remarks, the right to be notified of medical emergencies, and the right to be notified of extracurricular activities and the opportunity to participate in or observe them. The mother filed a motion to alter or amend the judgment, and the grandmother filed a response and a motion to strike the hearsay contained in mother’s motion. Grandmother also requested attorney’s fees in connection with her motion to strike hearsay. The trial court entered an “amended” order that was substantively the same as its original decision granting grandparent visitation, and it ordered the mother to pay the grandmother’s attorney’s fees in connection with the grandmother’s motion to strike hearsay. On appeal, the mother asks this court to determine (1) whether the trial court erred “by awarding appellee grandmother a visitation schedule which is essentially a ‘tweaked’ parenting plan, along with the rights of a parent under Tennessee law,” and (2) whether the trial court erred by awarding the grandmother her attorney’s fees in opposing the mother’s motion to amend. We have determined that the extensive visitation schedule impermissibly interferes with the mother’s parental rights under the Tennessee Constitution, and therefore, it is not “reasonable” under Tenn. Code Ann. § 36-6-306(c). We have also determined that Tenn. Code Ann. § 36-6-101(a)(3)(B) is inapplicable in actions for grandparent visitation; therefore, the grandmother is not entitled to any of the rights listed in Tenn. Code Ann. § 36-6-306. Further, we have determined that the trial court erred by awarding attorney’s fees to the grandmother because we find no contractual or statutory basis for the award. Therefore, the judgment of the trial court is vacated and this matter is remanded with instructions for the trial court to establish a grandparent visitation schedule that comports with Tenn. Code Ann. § 36-6-306(c) and minimizes interference with the mother’s fundamental constitutional rights

A delinquent taxpayer’s property was sold at a tax sale on January 22, 2014. The taxpayer subsequently conveyed her interest in the property to a third party that redeemed the property within the one-year statutory redemption period. The proceedings were stayed a year and a half due to the redeeming party’s bankruptcy; after the stay was lifted, the trial court held a hearing on the tax-sale purchaser’s motion for additional costs and then entered an order finalizing the redemption. In that order, the trial court ruled that the redeeming party was required to, among other things, pay interest on the price paid by the tax-sale purchaser at the tax sale for the entire period between the tax sale and entry of the final order. The redeeming party appeals, arguing that the statute only allowed interest to be charged from the date of the tax sale through the date the redemption process began. We agree, and we therefore reverse the judgment of the trial court and remand for further proceedings.

The defendant, Michael White, appeals the denial of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence imposed for his 2005 Marshall County Circuit Court jury convictions of rape. Discerning no error, we affirm the denial of relief.

A Sullivan County jury convicted the Petitioner, Bashan Murchison, of nine counts of felony drug offenses. The trial court imposed an effective sentence of fifty years in the Tennessee Department of Correction. On appeal, this court affirmed the judgments and sentence. See State v. Bashan Murchison, No. E2014-01250-CCA-R3-CD, 2016 WL 659844 (Tenn. Crim. App., at Knoxville, Feb. 12, 2016), perm. app. denied (Tenn. Aug. 18, 2016). The Petitioner filed a post-conviction petition claiming that he had received the ineffective assistance of counsel, and the post-conviction court denied relief following a hearing. On appeal, the Petitioner maintains that his counsel was ineffective. After review, we affirm the post-conviction court’s judgment.

The Defendant, Melvin Dwayne Dunn, Jr., was convicted by a jury of nine counts of burglary; one count of attempted theft of property valued at $10,000 or more but less than $60,000; one count of evading arrest; and one count of possession of burglary tools. He was sentenced as a career offender and received an effective sentence of thirty-six years’ imprisonment. On appeal, the Defendant challenges the sufficiency of the evidence to sustain his attempted theft conviction. He also argues that the trial court erred in admitting statements made by the Defendant during bond negotiations. After thorough review of the record and applicable law, we affirm the judgments of the trial court.

The trial court granted summary judgment to defendant publisher of an allegedly defamatory newspaper article concerning plaintiff. The article was based upon a one-onone, private interview between the public information officer for the White County Sheriff’s Office and a newspaper reporter. The court determined that the interview given by the public information officer constituted an “official action” of government that the article fairly and accurately reported. As such, the court concluded that any alleged defamatory statements included in the article were privileged under the common-law “fair report privilege.” Plaintiff appealed, arguing in part, that the fair report privilege does not apply. Because we conclude that the interview did not constitute an official act of government, we reverse the grant of summary judgment.

In this health care liability action, the defendant doctor filed an unopposed motion for summary judgment. After the motion was granted, he filed a motion pursuant to Tennessee Code Annotated section 29-26-122, requesting the court to compel the plaintiff or his counsel to provide the court with a copy of the expert’s signed written statement that was relied upon in executing the certificate of good faith that accompanied the complaint. The trial court denied the motion, holding that the matter should have been raised in the Defendant’s motion for summary judgment or a motion for discretionary costs. Upon our review of the statute, we do not find a requirement that the request for the expert witness’ statement be made in the manner held by the trial court; accordingly, we reverse the judgment of the trial court and remand for further consideration of the defendant’s motion.

This is a divorce case. The trial court entered a final decree of divorce designating Husband as the primary residential parent for the parties’ minor child and concluding that Husband is not under-employed for purposes of calculating child support. Because the trial court did not make sufficient findings of fact and conclusions of law as required under Tennessee Rule of Civil Procedure 52.01, we vacate the trial court’s judgment as to the issues raised on appeal.

An inmate in state custody who was being housed in a county jail filed suit under the Tennessee Governmental Tort Liability Act to recover for injuries he suffered while on a work detail. The trial court dismissed the suit, holding that Tennessee Code Annotated section 41-2-123(d)(2) grants counties that allow inmates to work on road details and other projects immunity from liability for injuries. The inmate appeals, contending he was not in the class of inmates defined in section 41-2-123 and, consequently, that the county’s immunity was removed. Concluding that section 41-2-123(d)(2) controls over the provisions of the Tort Liability Act, we affirm the trial court’s judgment that the county was immune and its dismissal of the suit.