APPELLATE COURT OPINIONS

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.

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.

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.

Melanie C. Moore, the Defendant, entered an open plea of guilty to Class C felony theft of property valued at $10,000 or more but less than $60,000 (Count 1), Class D felony, theft of property valued at $1,000 or more but less than $10,000, (Count 2), Class E felony reckless endangerment (Count 3), and Class A misdemeanor escape (Count 4). The trial court sentenced the Defendant to four and one-half years on Count 1, three years on Count 2, two years on Count 3, and three months for Count 4. The trial court ordered Counts 2, 3 and 4 to be served consecutively to Count 1 but concurrently with each other for an effective sentence of seven and one-half years. The trial court ordered Count 1 to be served in the Department of Correction and suspended the other sentences. On appeal, the Defendant argues that the trial court abused its discretion in its sentencing decisions. After a thorough examination of the facts and applicable case law, we affirm the sentences except for the partial consecutive alignment of the misdemeanor escape. We remand for correction of the judgment sheets to provide for consecutive alignment of Count 4 with Counts 2 and 3.

Shortly after entry of an agreed permanent parenting plan, Father filed a petition to find Mother in contempt and to modify the parenting plan. The petition alleged that a material change in circumstance had occurred since the adoption of the agreed plan, such as Mother allegedly interfering with Father’s parenting time. The juvenile court found a material change in circumstance had occurred and modified the parenting plan by increasing Father’s parenting time. From this ruling, Father appealed, claiming that the court erred by not granting him equal parenting time. Because the court’s order modifying the plan contains insufficient findings of fact and conclusions of law, we vacate and remand.

The Defendant, Daniel Stephen Collins, was convicted by a Hawkins County jury of the aggravated sexual battery of his eight-year-old daughter, a Class B felony, and was sentenced by the trial court to nine years at 100% in the Department of Correction. The Defendant raises three issues on appeal: (1) whether the evidence was sufficient to sustain his conviction; (2) whether the trial court erred by not qualifying the victim as a competent witness and by allowing the prosecutor to lead her testimony; and (3) whether the presentment was constitutionally defective because it failed to charge the crime for which he was convicted. Following our review, we affirm the judgment of the trial court.

Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction.

This appeal follows the trial court’s confirmation of an arbitration award. There are four participating parties on appeal, the Appellant and three separate Appellees. With respect to the claims asserted by Appellee Blue Water Bay against the Appellant, we hereby vacate the trial court’s orders and remand for further proceedings because the trial court erred in not allowing the Appellant pre-arbitration discovery regarding issues pertaining to arbitrability. With respect to the claims involving the other two Appellees, we reverse the trial court’s orders due to the absence of a sufficient basis to establish arbitrability.

In this case, the petitioner had a repairman’s lien on personal property and filed an action in federal district court to enforce the lien by original attachment of the lien-subject property. During the pendency of the federal court action, the lien-subject property was sold to a purchaser and was no longer available for attachment, so the lienholder sought to reach the proceeds from the sale of the lien-subject property. The federal court then sought certification under Tennessee Supreme Court Rule 23 of two questions: (1) May a repairman’s lien arising under Tennessee Code Annotated section 66-19-101 (2015) be enforced by a method other than attachment of the lien-subject property itself? and (2) In Tennessee, under what circumstances, if any, may a court attach the proceeds of the sale of lien-subject property, or otherwise reach them with a judgment, where the owner has rendered attachment of the lien-subject property impracticable or impossible after the initiation of a foreclosure proceeding? We answer the first question by interpretation of Tennessee Code Annotated section 66-21-101 (2015), which addresses enforcement of a statutory lien by original attachment where the lien statute does not specify a method to enforce the lien. The lienholder has no statutory lien on the proceeds from the sale of the lien-subject property, and section 66-21-101 addresses only enforcement of a statutory lien. Accordingly, section 66-21-101 is not a statutory vehicle for the lienholder to reach the proceeds from the sale of the lien-subject property. Section 66-21-101 neither provides for nor excludes other remedies that may be available to the lienholder to reach the proceeds from the sale of the lien-subject property. The second question certified by the federal district court in this case is not a defined question of unsettled Tennessee law, but it is more in the nature of an open-ended inquiry regarding other remedies that might enable the lienholder to reach the proceeds from the sale of the lien-subject property. Such an open-ended inquiry is not suitable for certification under Tennessee Supreme Court Rule 23, and there is ample Tennessee case law available to the parties on other possible remedies, so we respectfully decline to address the merits of the second certified question.

A former state employee filed suit claiming that he should have been paid for the state holiday on November 27, 2015, because he worked on October 12, 2015, the day from which the holiday was shifted pursuant to Tenn. Code Ann. § 4-4-105(a)(3). His position was terminated before the November 27, 2015 holiday occurred. The general sessions and circuit courts granted the Department of General Services Commissioner’s motion to dismiss based on sovereign immunity. We reverse.

After being charged by presentment with three counts of the Class A felony, criminal conspiracy to commit first degree murder, as well as one count of criminal conspiracy to possess more than ten pounds of marijuana with the intent to sell or deliver and one count of simple possession of marijuana, Defendant, Raymond Banjard Mims, entered a quite favorable plea agreement. Defendant pled guilty to greatly reduced counts of conspiracy to commit assault, Class B misdemeanors, in addition to conspiracy to possess over ten pounds of marijuana for sale or delivery and simple possession of marijuana in exchange for an effective sentence of two years. He reserved the right to seek an alternative sentence. The trial court denied alternative sentencing. Defendant appeals the denial of an alternative sentence. After a review, we determine that the trial court did not abuse its discretion in ordering Defendant to serve his sentence in confinement. Accordingly, the judgments of the trial court are affirmed.

This is the second time we have considered this child custody case on appeal. The parties have been embattled in post-divorce litigation almost continuously since entry of the final decree of divorce in 2007. In 2012, the parties sought to modify their parenting arrangement, and the trial court allowed a divorce referee to hear the matter. The court then attempted to retroactively appoint the divorce referee as a Special Master and adopted a modified version of the findings and recommendations of the divorce referee/Special Master. Father appealed, and on December 28, 2015, this Court vacated the trial court’s order and remanded the case for further proceedings as needed to adjudicate the parties’ petitions related to custody and parenting. On remand, the trial court held a three day hearing to determine whether to modify the parties’ current permanent parenting plan. The court concluded that the primary residential parent of the parties’ remaining minor child should be changed from Father to Mother. Father appeals. We hold that the trial court erred in refusing to consider all of the applicable best interest factors set forth in Tennessee Code Annotated section 36-6-106, specifically the preference of a child age twelve or older. We, therefore, vacate the order of the trial court and remand for further proceedings consistent with this Opinion. We decline mother’s request for attorney’s fees incurred on appeal.

The defendant, Marcus Thomas, appeals the summary dismissal 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 2013 Shelby County Criminal Court
guilty-pleaded convictions of aggravated robbery. Discerning no error, we affirm.