APPELLATE COURT OPINIONS

A public figure filed a defamation lawsuit against an investigative reporter and a television station based on two news stories that were aired in February 2016. The defendants filed a motion to dismiss, claiming that their reports were constitutionally protected speech, were privileged as a fair and accurate report of pleadings and documents filed in two other lawsuits, and did not contain false or defamatory statements. The plaintiff served interrogatories and requests for documents on the defendants in an effort to discover the defendants’ investigative files. The defendants objected on the grounds of relevance and the Tennessee fair report privilege. The plaintiff filed a motion to compel, arguing that he needed the discovery to respond to the defendants’ motion to dismiss by uncovering evidence of actual malice. The trial court agreed and granted the motion to compel. The defendants filed an interlocutory appeal of the trial court’s decision granting the motion to compel. They argue that (1) actual malice is not an element of the fair report privilege and (2) the trial court erred in granting the plaintiff’s motion to compel. We agree with the defendants’ position on both issues and reverse the trial court’s judgment.

Jimmy L. Smith, the Petitioner, filed a pro se Application for Writ of Habeas Corpus (“the petition”), claiming that his convictions in Counts 1 through 4 of Case Number 87F1868 are void because the Davidson County District Attorney General only signed Count 5 of the multi-count indictment. The Petitioner also claimed that his conviction in Count 2 was void because the judgment failed to state that he had been found guilty by a jury. The habeas corpus court summarily dismissed the petition. We affirm.

Neighboring property owners disagree over the terms of an oral agreement for construction of a private road across their properties. After the road was completed, one property owner failed to pay his part of the construction costs or grant a permanent easement permitting use of the road. The other property owner filed a complaint for specific performance or, in the alternative, damages for breach of contract. The defendant admitted the parties had an agreement but disputed the terms and raised the defense of the statute of frauds. After a trial, the court ruled that the defendant was equitably estopped from asserting the statute of frauds and awarded specific performance. On appeal, the defendant argues that the plaintiff is not entitled to enforce the agreement because either the statute of frauds bars enforcement of the agreement or the plaintiff was the first party to breach. After a thorough review of the record, we affirm the judgment as modified.

In this interlocutory appeal involving a will contest, the trial court determined that Appellant did not have standing to contest the will at issue. In light of the Tennessee Supreme Court’s recent decision in In re Estate of Brock, No. E2016-00637-SC-R11-CV, 2017 WL 5623526 (Tenn. Nov. 22, 2017), we reverse and remand for further proceedings.

The Defendant, Cecil G. Dobbs, pleaded guilty to aggravated assault and theft of property valued at less than $500 in return for a sentence of seven years of split confinement with two years of incarceration followed by five years of probation. A probation violation warrant was issued based upon subsequently incurred charges and, after a hearing, the trial court revoked the Defendant’s probation sentence, ordering that he serve his sentence in confinement. On appeal, the Defendant asserts that the trial court abused its discretion when it revoked his probation sentence and by “not allowing him to be heard” at the probation revocation hearing. After review, we affirm the trial court’s judgment.

The divorced mother and father of a nine year-old child were sharing residential time equally when the mother notified the father of her intent to relocate to Gulfport, Mississippi, eight to nine hours away. The father opposed the relocation and asked the court to designate him as the primary residential parent. After determining that the parties spent substantially equal intervals of time with the child during the twelve months immediately preceding the trial, the court conducted a best interest analysis to determine whether it was in the child’s best interest to relocate with the mother. Concluding that it was not in the child’s best interest to relocate, the court designated the father as the primary residential parent and entered a new parenting plan in which the mother was awarded sixty-four days per year of residential time with the child. The mother appealed several aspects of the trial court’s decision, and we affirm the judgment in all respects.

This case involves a motion for attorney’s fees filed by Nyrstar Tennessee Mines – Strawberry Plains, LLC. Nyrstar and Claiborne Trucking, LLC are parties to a contract. Nyrstar prevailed in an underlying breach of contract action against Claiborne. After prevailing in the underlying case, Nyrstar filed a motion asking to be awarded its attorney’s fees pursuant to the parties’ contract. The issue before us is whether the language of the contract is sufficient to allow Nyrstar to seek fees. The trial court held that the language is not sufficiently specific to create a contractual right to recover attorney’s fees. Nyrstar appeals. We affirm.

The Defendant, Darryl Robinson, was convicted by a Shelby County Criminal Court jury of aggravated robbery, a Class B felony, and there is a question as to whether his second conviction was for possession of a firearm by one previously convicted of a felony involving the use or attempted use of force, violence, or a deadly weapon, a Class C felony, or a felon in possession of a handgun, a Class E felony. The trial court sentenced him to an effective term of sixteen years in the Tennessee Department of Correction. On appeal, the Defendant argues that: (1) the evidence is insufficient to support his conviction for aggravated robbery; and (2) a witness’s reference to him by his nickname, “Trigger Man,” was prejudicially erroneous. He also raises a number of issues concerning his conviction for convicted felon in possession of a firearm or handgun. After review, we affirm the convictions for aggravated robbery and convicted felon in possession of a handgun but remand for resentencing on the convicted felon in possession of a handgun conviction.

A jury convicted the Petitioner, Joseph Newton, of rape, and he was sentenced to serve eight years in prison. In his motion for a new trial, the Petitioner alleged that he was denied his constitutional right to the effective assistance of his trial counsel. The trial court denied the motion, and this court affirmed the Petitioner’s conviction on appeal. The Petitioner filed a timely post-conviction petition, alleging ineffective assistance of counsel at the motion for a new trial and on appeal, and the post-conviction court denied his petition. On appeal, he asserts that his counsel were deficient in bringing claims against trial counsel prematurely, in failing to call witnesses and investigate, and in omitting issues on direct appeal. He contends he is entitled to relief based on cumulative error. After a thorough review of the record, we conclude that the Petitioner did not receive the ineffective assistance of his counsel, and we affirm the post-conviction court’s judgment.

M.V.C. , the mother of Danely C., an undocumented minor born in Honduras, filed a petition in the trial court seeking an order appointing M.V.C. as guardian of her daughter. She further asked the court to make findings as mandated by 8 U.S.C.A. § 1101(a)(27)(J) (2014). Findings favorable to the petitioner are a prerequisite for Danely C. to apply under federal law for special immigrant juvenile status. The petitioner prayed “[t]hat sevice of process issue as necessary upon [Danely C].” The trial court, acting sua sponte, dismissed the petition, finding “no justiciable controversy in this cause.” We vacate the judgment of the trial court and remand for a hearing with respect to the matters contemplated by 8 U.S.C.A. § 1101(a)(27)(J).

Megan England filed a petition for a restraining order, protective order and injunctive relief against Sonya Schnur, Roswell Schnur, and Lisa Schnur, alleging, among other things, that the respondents had taken actions that caused her to fear for her safety. The trial court granted her a temporary restraining order. Three days later, respondents filed motions to dismiss under Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief can be granted. Respondents subsequently filed two affidavits in support of the motions. Shortly thereafter, petitioner filed a notice of voluntary nonsuit asking for dismissal of her petition without prejudice. Respondents opposed the dismissal unless it was entered with prejudice. Contrary to the respondents’ request, the court dismissed the action without prejudice. We hold that the trial court did not consider matters outside the pleadings in making its decision. As a consequence, the motion of the respondents was not converted into a motion for summary judgment. In the alternative, even if the conversion occurred, the trial court had discretion to grant the petitioner’s request without prejudice under the authority of Stewart v. Univ. of Tenn., 519 S.W.2d 591, 593 (Tenn. 1974). The trial court did not abuse its discretion in declining to make its dismissal with prejudice. Accordingly, we affirm

This dispute arises from Buyer’s purchase of a home from Seller in 1994. After discovering extensive pre-existing fire damage to the home in 2010, Buyer filed a complaint against Seller, alleging misrepresentation, mistake, and violation of the Tennessee Consumer Protection Act. The trial court granted summary judgment in favor of Seller, finding that Buyer’s cause of action was barred by the applicable statute of limitations. Buyer appeals, alleging that Seller’s fraudulent misrepresentations and concealment and the discovery rule tolls the statutes of limitations. She also contends these are factual issues to be determined by a jury. We have concluded that a reasonable jury could not legitimately resolve the facts relied upon by Buyer in her favor; therefore, the trial court acted appropriately by summarily dismissing all of her claims as time barred. Accordingly, we affirm.

The primary issue in this appeal is whether Tennessee’s theft statute, Tennessee Code Annotated section 39-14-103, encompasses theft of real property. The defendant physically entered and occupied for over a week a vacant East Memphis house valued at more than two million dollars and filed documents with the Shelby County Register of Deeds Office purporting to reflect her ownership of the property. A jury convicted the defendant of theft of property valued at over $250,000 and aggravated burglary. The defendant challenges her convictions, arguing that Tennessee’s theft statute does not encompass theft of real property. We conclude that our theft statute applies to theft of real property by occupation, seizure, and the filing of a deed to the property and that the evidence is sufficient to support the defendant’s convictions. We also reject the defendant’s arguments that the trial court improperly limited her cross-examination of a prosecution witness and her closing argument. Accordingly, we affirm the judgment of the Court of Criminal Appeals upholding the defendant’s convictions and remanding to the trial court for resentencing.

The Defendant, Kenneth Marcus Jones, appeals from the revocation of his probation by the Dyer County Circuit Court. Upon our review, the judgment of the circuit court is affirmed.

This appeal arises from a family dispute over joint bank accounts. Phillip Daniel Haire (“Danny Haire”) sued First Tennessee Bank National Association (“the Bank”) in the Chancery Court for Knox County (“the Trial Court”) alleging, among other things, breach of contract. The Bank had allowed Danny Haire’s late mother Ella Mae Haire (“Decedent”) to remove him unilaterally as joint tenant with right of survivorship from certain accounts. The Bank filed a motion to dismiss, which the Trial Court granted. Danny Haire appealed. We hold, inter alia, that Danny Haire’s complaint failed to identify which contract term the Bank allegedly breached, and that Decedent could have removed all of the funds from the account, thus effectuating the same practical result as that which actually occurred. We affirm the judgment of the Trial Court.

The Metropolitan Government of Nashville and Davidson County (“Metro”) sued Teleport Communications America, LLC (“TCG”) in the Chancery Court for Davidson County (“the Trial Court”) to recover a fee for TCG’s use of Metro’s public rights-of-way. TCG contended the fee was unlawful and refused to pay. Metro and TCG previously had entered into a franchise agreement in keeping with an ordinance requiring telecommunications providers to pay 5% of their gross revenues to Metro. The Tennessee Court of Appeals later ruled in another case against an ordinance purporting to set a gross revenue franchise fee as being akin to a tax. The Trial Court cited this holding to invalidate the ordinance in the present case. Metro nevertheless pursued this action further, seeking to recover under a contractual theory. After extensive litigation, the Trial Court found that TCG owed damages to Metro in the amount of $550,000. The Trial Court reasoned that even though the underlying ordinance was invalid, the parties had entered into a franchise agreement and Metro was entitled to some measure of compensation. TCG appealed. We affirm the judgment of the Trial Court.

Pro se Defendant, Reba Nell Woods, appeals the denial of her “Motion to Modify Judgment,” which was interpreted by the trial court as a motion to reduce sentence pursuant to Tennessee Rule of Criminal Procedure 35. In this appeal, the Defendant argues that the trial court retained jurisdiction to decide her motion, even though she was in custody of the Tennessee Department of Correction. In response, the State contends that the Defendant’s motion was untimely by 118 days, an alternative basis upon which the trial court relied in denying relief. Upon our review, we affirm the judgment of the trial court.

Defendant, Rodney Paul Starnes, II, was indicted by the Dyer County Grand Jury for one count of possession with intent to sell or deliver synthetic cannabinoids. Defendant filed a motion to suppress, alleging that the affidavit in support of a search warrant was defective and failed to give rise to probable cause because the affidavit contained no information establishing a confidential informant’s basis of knowledge. The trial court granted Defendant’s motion based upon the then controlling authority of State v. Jacumin, 778 S.W.2d. 430 (Tenn. 1989), and the State appealed. Following our review of the record and pertinent authorities, including the Tennessee Supreme Court’s recent decision in State v. Tuttle, 515 S.W.3d 282 (Tenn. 2017), we reverse the judgment of the trial court and remand for further proceedings in the trial court.

The trial court denied Appellant’s motion to set aside a default judgment in this parentage action. Because Appellant was not properly served notice of the default judgment under Rule 55.01 of the Tennessee Rules of Civil Procedure, we reverse and remand the trial court’s decision for further proceedings pursuant to this opinion. 

An asphalt paving company brought suit against the developer of a subdivision, and its managing member and guarantor, for breach of contract based on the developer’s failure to pay for services rendered under the contract. The developer answered, asserting multiple affirmative defenses, and counterclaimed, asserting that the company breached the contract, violated the Tennessee Consumer Protection Act, and mispresented that it would perform the work for the price specified in the contract. The trial court held that the developer breached the contract by failing to pay and awarded damages, interest, and attorney’s fees to the paving company. The developer appeals. Upon a thorough review of the record, we affirm the judgment in all respects.  

The plaintiff Kathy Carroll, an employee of the defendant Morgan County Board of Education, was transferred to a position that she alleges she was physically unable to perform. She notes that her transfer occurred after she sent an email to a school board member complaining about school policy and practice regarding cancellation for bad weather. She brought this action stating claims for (1) age and gender discrimination under the Tennessee Human Rights Act; (2) breach of contract; (3) violation of the consitutional right to free speech; and (4) invasion of privacy. The trial court granted summary judgment on the invasion of privacy claims, stating that “all other issues are reserved for trial.” During the bench trial that followed, plaintiff’s counsel stated that plaintiff was not asserting a claim pursuant to a private right of action for violation of her right to free speech. The attorney also stated that the plaintiff was not seeking damages for such a claim. The trial court found in defendant’s favor on all claims. On appeal, plaintiff raises the sole issue of whether the trial court erred in dismissing her claim for violation of her right to free speech. We hold that plaintiff waived and abandoned this issue at trial. Accordingly, the judgment of the trial court is affirmed.

Three years after the juvenile court in Tennessee approved a parenting plan for a child, the child’s father filed a petition to modify custody, alleging a material change in circumstances. The mother, who had filed a modification petition in Alabama, requested that the Tennessee court communicate with the Alabama court to determine which court had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The Tennessee court, after communicating with the Alabama court, determined that Alabama was a more convenient forum, declined to exercise jurisdiction, and dismissed the father’s petition. On appeal, the father argues that the Tennessee court failed to allow the parties access to a record of its communication with the Alabama court or an opportunity to present evidence before making its decision. Because we conclude that the juvenile court abused its discretion in declining to exercise jurisdiction without allowing the parties an opportunity to present evidence, we vacate the court’s decision and remand for further proceedings.  

In an agreed order settling a widow’s claim for exempt property and homestead against her husband’s estate, the parties included language that they were settling “all claims that the Petitioner asserted or might have asserted in the Petition.” When the widow subsequently petitioned for a year’s support and elective share, the trial court held that her claim was barred by res judicata. We affirm the judgment of the trial court. 

A Father appeals the trial court’s decision to name the Mother as Primary Residential Parent of the parties’ two children. Discerning no error, we affirm the decision of the trial court, award the Mother her attorneys’ fee incurred on appeal, and remand the case for a determination of the amount.

Petitioner, James McKinley Cunningham, was convicted of first degree murder after shooting his father.  The conviction was affirmed on direct appeal.  State v. James McKinley Cunningham, No. M1999-01995-CCA-R3-CD, 2000 WL 1520247, at *1 (Tenn. Crim. App. Oct. 13, 2000), perm. app. denied (Tenn. Apr. 23, 2001).  Petitioner initially sought post-conviction relief in 2002 and amended the petition in 2015.  Nearly fourteen years after the original petition was filed, the post-conviction court held a hearing and denied relief.  We affirm the denial of post-conviction relief.