APPELLATE COURT OPINIONS

In this case, the plaintiffs sued the defendants for constructing a gate that interfered with their use of an existing gravel road located on the defendants’ farm. According to the plaintiffs, access to their property required use of the gravel road. The gravel road in question crosses two separate tracts owned by the defendants and runs southwest to northeast from a state highway through the defendants’ farm and then east to west through another tract. Although the plaintiffs claimed that the easement was fifty-feet in width along its entire length, the court found that the section of the road running through the defendants’ farm was a public road with a width of only twelve feet. The court also denied the plaintiffs’ request for discretionary costs. The plaintiffs appeal the court’s finding concerning the width of the public road and the denial of discretionary costs. Discerning no error, we affirm.

This case involves a contract dispute concerning four simultaneously executed agreements that, if completed, would have essentially constituted a trade of two parcels of improved real property. The plaintiff buyers entered into the four agreements with the defendant sellers on October 1, 2013, giving the buyers a lease on the sellers’ property, located on Walnut Breeze Lane in Knoxville, Tennessee (the “Walnut Breeze Property”), with an option to purchase that property in the unspecified future. The buyers agreed to trade equity in their own property, located on First Street in Corryton, Tennessee (“First Street Property”), as partial payment for the Walnut Breeze Property if they chose to exercise the option. On January 6, 2014, the parties met for a “closing,” and the buyers conveyed title to the First Street Property to the sellers. However, the “REAL ESTATE SALES CONTRACT” related to the Walnut Breeze Property stipulated that the transfer of title to the Walnut Breeze Property was subject to the existing mortgagee’s approval, which neither party had obtained. The buyers continued to reside at the Walnut Breeze Property, making monthly payments to the sellers until a year later when the buyers vacated the Walnut Breeze Property and stopped making payments. The sellers sent the buyers a notice to vacate three months later. In November 2016, the buyers filed a complaint in the Union County Chancery Court (“trial court”), claiming breach of contract, unjust enrichment, and fraud. The buyers requested $75,000 in compensatory damages, $150,000 in punitive damages, return of the First Street Property, and reasonable attorney’s fees. The sellers filed an answer and subsequent amended answer, denying all substantive allegations and raising affirmative defenses. The sellers concomitantly filed a counterclaim, asserting, inter alia, that the buyers had breached the lease agreement and requesting an award of unpaid rent and reasonable attorney’s fees. Following a bench trial, the trial court found that the buyers breached the terms of the lease agreement by withholding payments on the Walnut Breeze Property for three months. The trial court also found that the buyers had exercised their option to purchase the Walnut Breeze Property by signing over title to the First Street Property but that the sellers knew at that time that the buyers could not satisfy the financing condition of the sale. The trial court awarded to the buyers the equity value of the First Street Property as stipulated in the sales agreement concerning that property, minus the value of three months’ unpaid rent, which the trial court awarded to the sellers. The trial court denied the parties’ respective requests for attorney’s fees. The sellers have appealed. Having determined that each party is entitled to some award of attorney’s fees under the overarching contract, we reverse the trial court’s denial of attorney’s fees and remand for a determination of the respective attorney’s fee awards. We affirm the trial court’s judgment in all other respects.

Mother appeals the termination of her parental rights to two children. The juvenile court found six statutory grounds for termination and that termination of the mother’s parental rights was in the children’s best interest. We conclude that the evidence was less than clear and convincing as to one of the statutory grounds and that two other statutory grounds did not apply in this instance. But the record contains clear and convincing evidence to support three grounds for termination and that termination is in the children’s best interest. So we affirm the termination of the mother’s parental rights.

The defendant, Denton Jones, appeals his Knox County Criminal Court jury conviction of theft of property valued at $1,000 or more, arguing that the State should not have been permitted to aggregate into a single count of theft the value of property taken on five separate occasions from two different locations; that the trial court erred by permitting testimony concerning evidence that suggested the defendant had committed other offenses; that the trial court erred by denying his motions for mistrial, including one based upon an alleged violation of Brady v. Maryland; that the evidence was insufficient to support his conviction; and that the cumulative effect of the errors at trial entitle him to a new trial. Discerning no error, we affirm.

I concur fully in the majority’s opinion in this case. I write separately solely to express my opinion that inasmuch as the majority opinion relies on this Court’s decision in In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7 (Tenn. Ct. App. May 31, 2018), for the standard of proof concerning Tennessee Code Annotated § 36-1-113(g)(14) (2017), I believe that this statutory ground allows termination of parental rights if the petitioner proves by clear and convincing evidence that the parent “has failed to meet the requirement of manifesting both a willingness and an ability to assume legal and physical custody of the child or has failed to meet the requirement of manifesting both a willingness and an ability to assume financial responsibility of the child.” See In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *12-15 (Tenn. Ct. App. June 20, 2018); see also In re Neamiah R., No. E2017-02000-COA-R3-PT, 2018 WL 2331868, at *7 (Tenn. Ct. App. May 23, 2018).

The Defendant, Franklin James Howe, appeals the Hamilton County Criminal Court’s order revoking his probation and ordering him to serve his sentence in confinement. The State has filed a motion to affirm the trial court’s order pursuant to Tennessee Court of Criminal Appeals Rule 20. Following our review, we conclude that the State’s motion is well-taken and affirm the order of the trial court.

In this post-divorce matter, the trial court ordered the father, Harold W. Duke, III (“Father”), to deposit $5,729.17 and $5,312.50 per month, respectively, into the educational accounts of the parties’ two daughters. The court determined that the children’s separate trust accounts were not required to be utilized to fund their college expenses. The court also awarded the mother, Kathryn A. Duke (“Mother”), $4,006.00 for attorney’s fees incurred in pursuing a civil contempt petition against Father, as well as $25,000.00 for attorney’s fees and $1,237.50 in discretionary costs related to establishment of the proper amounts to be contributed by Father to the educational accounts. Father has appealed. Discerning no error, we affirm the trial court’s judgment. We decline, however, to award Mother attorney’s fees incurred in this appeal.

Defendant, Quincy D. Scott, appeals his conviction for aggravated robbery for which he was sentenced to seventeen years as a Range II, multiple offender at 85%. On appeal, Defendant contends that the cumulative effect of various errors at trial entitled him to a new trial. Upon reviewing the record and the applicable law, we affirm the judgment of the trial court.

The Petitioner, Chris Jones, appeals the dismissal of his petition for post-conviction relief upon the post-conviction court’s determination that it was filed outside the statute of limitations and that the Petitioner failed to prove that his mental incompetence required its tolling. After review, we affirm the dismissal of the petition.

The Knox County Grand Jury indicted the Defendant, Nehad Sobhi Abdelnabi, on two counts of especially aggravated kidnapping, two counts of aggravated assault, and one count of aggravated burglary. The Defendant’s first trial resulted in a mistrial. At the Defendant’s second trial, the jury convicted him of aggravated kidnapping in count one, especially aggravated kidnapping in count two, and aggravated assault in counts three and four. The jury acquitted the Defendant of aggravated burglary in count five. The trial court sentenced the Defendant to serve twelve years for count one, seventeen years for count two, and six years for counts three and four, respectively. The trial court merged the Defendant’s conviction in count one into count two and merged count four into count three and ordered that he serve the sentences concurrently, for a total effective sentence of seventeen years in the Tennessee Department of Correction (TDOC) at 100% release eligibility. On appeal, the Defendant argues the following: (1) the trial court erred in denying the Defendant’s motion to dismiss the indictment because the State violated the rule against double jeopardy by intentionally eliciting objectionable testimony from a State witness in the Defendant’s first trial; (2) the trial court erred by denying the Defendant’s motion for mistrial when the victim told the Defendant to “[b]e a man” and “[t]ake the stand” during the victim’s cross-examination; (3) the State committed prosecutorial misconduct by allowing the victim’s objectionable testimony, which violated the Defendant’s right to not testify; (4) the victim’s objectionable testimony and “the subsequent denial of the motion for mistrial[] violated his constitutional right to a fair trial”; (5) the trial court erred by limiting the Defendant’s cross-examination of the co-defendant, Lowi Akila, which violated the Defendant’s right to confrontation; (6) the trial court erred by excluding testimony regarding the victim’s alleged bias; (7) the trial court erred under Tennessee Rule of Evidence 604 and Tennessee Supreme Court Rule 42 in denying the Defendant’s request to require witnesses to testify in the language that the testimony was originally given in; (8) the trial court violated the Defendant’s right to due process by allowing witnesses to testify in English about conversations that occurred in Arabic; (9) the trial court erred by admitting the victim’s medical records; (10) the State violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose that the victim received compensation from the State of Tennessee; (11) the evidence was insufficient for a rational juror to have found the Defendant guilty of aggravated kidnapping, especially aggravated kidnapping, and aggravated assault beyond a reasonable doubt; (12) the trial court erred in its application of enhancement factors to the Defendant’s sentence; (13) the Defendant’s sentence contravenes the principles and purposes of the Tennessee Sentencing Act; and (14) the Defendant is entitled to cumulative error relief. After a thorough review of the facts and applicable case law, we affirm.

Defendant, Dexter Octavius Parker, was indicted for attempted first degree murder in Count One, “aggravated domestic assault” in Count Two, and especially aggravated kidnapping in Count Three. After a jury trial, Defendant was convicted of attempted second degree murder in Count One, aggravated assault in Count Two, and especially aggravated kidnapping in Count Three. He received a total effective sentence of forty-six years. On appeal, Defendant argues that the trial court improperly excluded the conclusion of one expert witness while allowing the conclusion of another expert witness regarding Defendant’s mental state. Defendant also argues that the trial court erred by reinstating and amending Count Two of the indictment after dismissing it during the trial. Concluding that the trial court committed structural constitutional error by reinstating Count Two of the indictment, we reverse and vacate the judgment in Count Two and affirm the judgments in Counts One and Three.

The Petitioner, Richard Earl Madkins, Jr., filed a petition in the Trousdale County Circuit Court seeking habeas corpus relief from his conviction of especially aggravated robbery and resulting twenty-five-year sentence, alleging that the trial court did not have jurisdiction to convict or sentence him because he was arrested for the offense without a warrant. The habeas corpus court denied relief without a hearing, and the Petitioner appeals. Upon review, we affirm the judgment of the habeas corpus court.

This appeal involves the filing of a termination petition by the mother and stepfather against the father of two minor children. The court denied the termination petition but appointed the stepfather as the permanent guardian of the children. The father appeals. We vacate the order of permanent guardianship.

The Petitioner, Christopher Clifton, appeals the post-conviction court’s dismissal of his petition for post-conviction relief, wherein the Petitioner argued that he entered an involuntary and unknowing guilty plea to aggravated assault. After thorough review of the record and applicable law, we affirm the dismissal of the petition.

Pro se Petitioner, Charles Owens, appeals the dismissal of his petition for writ of habeas corpus by the Hickman County Circuit Court. On appeal, the Petitioner argues that his convictions for aggravated sexual battery are void because (1) the trial court announced his sentence through written order, without the Petitioner present, in violation of Tennessee Rule of Criminal Procedure 43(a)(3); and (2) the trial court ordered partial consecutive sentencing in violation of Tennessee Code Annotated section 40-20-111(a). Following our review, we affirm the dismissal of the petition, pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Drayton Beecher Smith, II (“Attorney”) pled guilty in 2007 to federal charges of receipt and possession of images depicting child pornography and was sentenced to five years of imprisonment. In conjunction with these charges, Attorney consented to his disbarment, which was ordered in 2008. In August 2014, after being discharged from prison and while on probation, Attorney petitioned to be reinstated to the practice of law in Tennessee. The Board of Professional Responsibility (“BPR”) opposed Attorney’s petition, and a hearing panel was appointed (“the Panel”). After an evidentiary hearing, the Panel denied Attorney’s petition. Attorney sought review in chancery court, and the chancery court reversed the Panel’s decision and ordered Attorney reinstated. The BPR sought review in this Court. Initially, we hold that the chancery court had subject-matter jurisdiction of Attorney’s petition in spite of the BPR’s untimely filing of its application for costs. We further hold that the chancery court misapplied the applicable standard of review and thereby committed reversible error. Accordingly, we reverse the chancery court’s ruling and reinstate the Panel’s decision.

The Petitioner, Rhyunia Lamont Barnes, was convicted of first degree murder and sentenced to life. In his appeal, the Petitioner argues that the trial court erred in summarily dismissing his petition for writ of error coram nobis. Upon review, we affirm the judgment of the coram nobis court.

Appellants’ employee embezzled funds from Appellants using the employee’s Bank of America account. The employee wrote checks on Appellants’ accounts to legitimate third party vendors but deposited the checks into her own personal account by way of Bank of America’s ATMs. Appellants filed suit against Bank of America alleging that the bank’s failure to either prevent this activity or alert Appellants thereto constituted causes of action for aiding and abetting conversion, aiding and abetting fraud, civil conspiracy, and negligence. The trial court granted Bank of America’s motion to dismiss Appellants’ claims for aiding and abetting fraud and conversion and for civil conspiracy based on Bank of America’s lack of knowledge of Appellants’ employee’s wrongdoing. The court subsequently granted Bank of America’s motion for summary judgment on the remaining negligence claim finding that the bank owed no duty to Appellants. We affirm.   

A Williamson County Circuit Court Jury convicted the Appellant, Frederick D. Curll, of aggravated cruelty to an animal, a Class E felony, and the trial court sentenced him as a Range II, multiple offender to four years in confinement. On appeal, the Appellant contends that the trial court erred in its jury instruction of “sadism,” that the evidence is insufficient to support the conviction, and that he received the ineffective assistance of counsel because trial counsel failed to call a veterinary expert to testify on his behalf and failed to file a motion to suppress the officer’s search of his back yard and seizure of the animal’s body without a warrant. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.

This is an uninsured motorist case.  Appellee State Farm Insurance Companies denied Appellants’ uninsured motorist coverage after the uninsured motorist, defendant, discharged the claim in bankruptcy.  The trial court granted State Farm’s Tennessee Rule of Civil Procedure 12.02(6) motion, finding that the policy language that State Farm was liable for “bodily injury an insured is legally entitled to collect from the [uninsured motorist],” relieved State Farm from providing coverage after the uninsured motorist discharged the claim in bankruptcy.  Because the order appealed is not final, we dismiss the appeal for lack of subject matter jurisdiction.

The Petitioner, James M. Meese, entered guilty pleas to aggravated statutory rape, aggravated assault, simple possession of marijuana, and contributing to the delinquency of a minor, with a negotiated Range I seven-year sentence to be served on probation. The Petitioner filed a post-conviction petition, asserting that his trial counsel failed to properly investigate his charges and inaccurately advised him regarding his cumulative exposure. We conclude that trial counsel was ineffective in failing to accurately advise the Petitioner of his range of punishment and that as a result, the Petitioner did not knowingly enter into the plea agreement. Accordingly, we reverse the post-conviction court’s judgment, and we remand for a new trial on all charges.

Trial court dismissed the plaintiff’s complaint due to its failure to state a claim, pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. Plaintiff appeals. We affirm.

This is an extraordinary appeal, filed pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure, seeking review of an injunction entered with respect to the August 2, 2018 Democratic primary ballot for Tennessee’s Ninth Congressional District election. For the reasons stated herein, we conclude that an extraordinary appeal should be granted and that the trial court’s injunction should be vacated.

The Defendant, Mark Anthony Clemmons, was convicted upon his guilty pleas of possession with intent to sell not less than one-half ounce nor more than ten pounds of marijuana, a Class E felony; possession with intent to sell a Schedule III controlled substance (dihydrocodeinone), a Class D felony; and two counts of sale of not less than one-half ounce nor more than ten pounds of marijuana, a Class E felony. See T.C.A. §§ 39-17-417 (a)(1), (g)(1) (2014); (possession with intent to manufacture, deliver, or sell marijuana); -417(a)(1), (d)(1) (possession with intent to manufacture, deliver, or sell a Schedule III controlled substance); -417(a)(3), (g)(1) (sale of marijuana). The trial court found that the Defendant was a Range III offender and imposed an effective twenty seven- year sentence. On appeal, the Defendant contends that the trial court erred in classifying him as a Range III offender because the State failed to provide an adequate notice of its intent to seek Range III sentencing. We affirm the judgments of the trial court.

In this appeal, the State challenges the trial court’s dismissal of a DUI by impairment charge as an impermissible “broadening and/or substantial amendment” to the original charge of DUI per se. The Defendant, Alisha Lynn Alsup, was initially indicted by the Lawrence County Grand Jury for driving while the alcohol concentration in her blood or breath was 0.08% or more (DUI per se), T.C.A. § 55-10-401(2); driving without her eyeglasses, id. § 55-50-331; and driving with inoperable headlights, id. § 55-9-402. Alsup filed a motion to suppress the results of the field sobriety tests, the blood sample, and the blood test results, and, shortly thereafter, the grand jury issued a superseding indictment, charging her with driving under the influence (DUI by impairment), id. § 55- 10-401(1), in addition to the previously charged offenses. Thereafter, Alsup filed a brief in the trial court asking that the superseding indictment be dismissed. Following an evidentiary hearing, the trial court granted the motion to suppress the blood alcohol results and stated that “in light of the . . . suppression of the blood sample in this case, the Court finds it unnecessary to address the dismissal of the superseding indictment in that Count II of said indictment is premised on [Alsup’s] blood alcohol content being 0.08[%] or more.” The trial court then held that the State would only be allowed to proceed on the original indictment, which the court mistakenly believed charged Alsup with DUI by impairment. Thereafter, the trial court entered a second order, the subject of the State’s appeal, correcting some errors in the previous order, reiterating its suppression of the blood test results, dismissing the DUI per se counts in the original and superseding indictments based on the suppression of the blood test results, and dismissing the DUI by impairment charge in the superseding indictment as time-barred after determining thatthis charge was “a broadening and/or substantial amendment” to the DUI per se charge in the original indictment. In response, Alsup argues that the trial court exceeded its jurisdiction by entering the second order amending its first order pursuant to Tennessee Rule of Criminal Procedure 36, that the State failed to timely appeal from the first order entered, and that the trial court properly determined that the DUI by impairment charge was barred by the statute of limitations. Although this was a very close case, we conclude that the DUI by impairment charge in the superseding indictment broadened and substantially amended the charge of DUI per se in the original indictment. Accordingly, we affirm the judgment of the trial court.