APPELLATE COURT OPINIONS

Health care liability action filed in November 2002 in which patient alleges that physician was negligent in failing to assess her condition, failing to provide proper medical care, failing to admit her to the hospital or refer her to another doctor, and failing to properly follow-up with her. The trial court granted summary judgment on all claims and, following an appeal to this court in which we reversed the grant of summary judgment on all claims, the Supreme Court reinstated summary judgment on the failure to admit claim and remanded the case for trial on the remaining claims. On remand, on the patient’s motion, the trial court set aside the summary judgment on the failure to admit claim, applying the “substantially different evidence” exception to the law of the case doctrine; following further discovery, the court reinstated summary judgment on that claim. After a trial, the jury found that the physician did not breach the standard of care and judgment was entered in her favor. Patient appeals, contending that the court erred in granting partial summary judgment on the failure to admit claim in 2006 and in reinstating the claim on remand; in restricting and excluding certain evidence at trial; in allowing evidence designed to shift blame from the physician to the patient and others; and in awarding sanctions against counsel for the patient. Finding no error or abuse of discretion, we affirm the judgment in all respects.
     

This appeal involves the termination of a mother and father’s parental rights to their children. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of each parent’s rights on the statutory grounds of abandonment for failure to visit, abandonment based upon each parent’s conduct prior to incarceration that exhibited a wanton disregard for the children’s welfare, substantial noncompliance with the permanency plans, and the persistence of conditions which led to removal. The court further found that termination was in the best interest of the children. The parents appeal. We affirm the judgment of the trial court as modified in this opinion.
 

This appeal arises from post-divorce efforts to modify a permanent parenting plan. Mother filed a petition in which she requested a modification to the permanent parenting plan. Father filed a counter-petition in which he requested to be named the primary residential parent of their children. The trial court found that Father failed to prove a material change in circumstance as necessary to change the primary residential parent designation and that Mother failed to prove a material change in circumstance as necessary to modify the permanent parenting plan. After reviewing the record, we find the evidence preponderates against the trial court’s finding that there was no material change in circumstance sufficient to modify the residential parenting schedule. Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings.
 

In 2013, the Petitioner, Justin L. Horstead, entered a best interest plea to aggravated robbery.  The trial court sentenced him in accordance with the plea agreement to ten years, to be served concurrently with a previous probationary sentence of six years.  The Petitioner timely filed a petition for post-conviction relief alleging that he had received the ineffective assistance of counsel and that, but for counsel’s errors, he would have insisted on taking his case to trial.  After a hearing, the post-conviction court denied the petition.  On appeal, the Petitioner contends that the post-conviction court erred when it denied his petition.  We affirm the post-conviction court’s judgment.

In 2013, a Davidson County jury convicted the Petitioner, Joseph Gilbert Williams, Jr., of violation of the sex offender registry, third offense.  The Petitioner appealed, and this Court dismissed the appeal for failure to file a brief as ordered.  State v. Joseph Gilbert Williams, Jr., No. M2014-00019-CCA-R3-CD, (Tenn. Crim. App., at Nashville, July 10, 2014).  In 2015, the Petitioner filed a pro se petition for post-conviction relief, contending that the State failed to disclose favorable evidence to him and that he was denied the effective assistance of counsel.  The trial court summarily dismissed the petition as untimely filed.  The Petitioner then untimely filed his notice of appeal.  On appeal, the Petitioner contends that the post-conviction court erred when it summarily dismissed his petition.  Finding that the post-conviction petition was not timely filed, we dismiss the appeal.

The Williamson County Grand Jury indicted the Defendant-Appellant, Robert Henry Jackson, for two counts of aggravated stalking, one count of coercion of a witness, and one count of contributing to the delinquency of a minor.  During trial, the State dismissed the coercion of a witness count.  The jury acquitted the Defendant-Appellant of the aggravated stalking counts but found him guilty of the count charging him with contributing to the delinquency of a minor, a Class A misdemeanor.  See T.C.A. § 37-1-156.  Following a sentencing hearing, the trial court imposed a sentence of eleven months and twenty-nine days, with the Defendant-Appellant to serve ninety days’ confinement before serving the remainder of his sentence on supervised probation.  On appeal, the Defendant-Appellant argues that the evidence is insufficient to sustain his conviction and that his sentence is excessive.  Upon review, we affirm the judgment of the trial court.

This appeal arises from a contract dispute. The Tennessee Department of Environment and Conservation (“TDEC”) contracted with a third party for the collection and disposal of certain types of waste. The contract required the waste to be disposed of within the United States. TDEC claimed the contractor allowed waste to move outside the United States and, as a result of the alleged contract violation, recouped a portion of the contract payments by “short-paying.” The contractor filed a complaint with the Tennessee Claims Commission to recover the recouped payments. On cross-motions for summary judgment, the Claims Commission granted summary judgment in favor of the contractor but denied its request for pre-judgment interest. Although for purposes of summary judgment it assumed that some waste collected by the contractor left the country, the Claims Commission found such a breach by the contractor to be immaterial. TDEC and the contractor both appeal. We affirm the grant of summary judgment to the contractor, although on different grounds; we reverse the denial of pre-judgment interest. 

The Defendant-Appellant, Kenneth Epperson, was charged by affidavit of complaint on November 28, 2012, for driving under the influence (DUI) second offense, violation of the open container law, violation of the implied consent law, driving on a revoked license, and improper display of a license plate. See T.C.A. §§ 55-4-110, 55-10-401, -406, -416, 55-50-504. Epperson entered guilty pleas to improper display of a license plate and violating the open container law and was convicted by a jury as to the remaining charges. On appeal, Epperson contends that the affidavit of complaint made against him was void and that the State therefore failed to initiate a prosecution against him within the statutory period. He contends that this error requires vacating his convictions. He also challenges the sufficiency of the evidence supporting his DUI conviction. Upon our review, we conclude that the evidence was sufficient to support Epperson's conviction for DUI. However, we agree with Epperson that the State failed to initiate a prosecution against him within the statutory period. Accordingly, we reverse the judgments of the trial court and vacate Epperson's convictions.

The defendant, Jasper Clayton, was convicted of three counts of aggravated robbery, a Class B felony, and two counts of attempted aggravated robbery, a Class C felony. On appeal, he argues that the evidence is insufficient to sustain his convictions. Following our review, we affirm the judgments of the trial court.

A Shelby County jury convicted the Defendant-Appellant, Maurice Blocker, as charged of one count of first degree premeditated murder and one count of theft of property valued at $1000 or more but less than $10,000. See T.C.A. §§ 39-13-202(a)(1); 39-14-103, -105(3) (Supp. 2011). Blocker was sentenced to consecutive sentences of life imprisonment and eight years, respectively. His sole argument on appeal is that the evidence is insufficient to sustain his convictions. Upon review, we affirm the judgments of the trial court.

Defendant, Pamela Moses, was indicted by the Shelby County Grand Jury for theft under $500. Defendant was convicted by a jury as charged. The trial court imposed a $350 fine. Defendant appeals and raises the following issues for our review: 1) the trial court improperly allowed a witness for the State, who was an inmate, to wear “street” clothing when she testified; 2) the trial court erred by limiting cross-examination of a State's witness; and 3) the State committed prosecutorial misconduct during closing argument. Having reviewed the record on appeal, we conclude that the judgment of the trial court should be affirmed.

The Petitioner, Craig Abston, appeals as of right from the Shelby County Criminal Court’s denial of his petition for post-conviction relief. On appeal, he raises the same lone issue that he raised in his petition and at the evidentiary hearing: that trial counsel was ineffective for failing to file a motion to suppress a statement given to police following his arrest. The State first challenges our jurisdiction to hear this appeal, and, alternatively, contends that the Petitioner has failed to prove that the post-conviction court erred in denying him relief. In reply, the Petitioner disagrees with the State’s jurisdictional argument and asks that we proceed to consider the issue on its merits. Upon careful review, we reject the State’s jurisdictional challenge. After considering the merits of the Petitioner’s claim, we conclude that he is not entitled to relief. Accordingly, the judgment of the post-conviction court is affirmed.

In this divorce, the trial court's main challenge was to classify and divide corporate debentures worth over two million dollars. After considering the evidence, the trial court classified all of the debentures as marital property and awarded Wife a share equal to $450,000. After this Court granted Husband's motion to stay execution on distribution of the assets, the trial court awarded Wife temporary alimony. We have concluded that the trial court erred in its division of the debentures and in awarding attorney fees to Wife for her attorney's work regarding Husband's motion to stay execution. In all other respects, we affirm the trial court's decision.

The defendant, a practicing attorney, prepared a deed of trust for the benefit of the plaintiff lender concerning a loan made by the lender to the defendant‘s brother. The subject property was subsequently foreclosed upon by the first mortgage holder without notice to the lender. The lender later discovered that its deed of trust contained certain defects. The lender filed the instant action against the defendant, claiming that the defendant was liable for professional negligence, breach of contract, fraudulent misrepresentation, and a violation of the Tennessee Consumer Protection Act. The trial court granted summary judgment in favor of the lender on the professional negligence claim while granting summary judgment in favor of the defendant on the breach of contract claim.

The Defendant-Appellant, Larry Michael Berkley, was convicted by a Lauderdale County jury of two counts of rape, four counts of aggravated statutory rape, four counts of sexual battery by an authority figure, and four counts of statutory rape by an authority figure. On appeal, Berkley argues that (1) the evidence was insufficient to support his convictions; (2) the trial court erred in admitting cumulative and unduly prejudicial testimony; and (3) the trial court erred in allowing a witness to testify about a news report regarding Berkley in violation of Rule 404(b) of the Tennessee Rules of Evidence. Upon review, we affirm the judgments of the trial court.

The Defendant, Paul Brent Baxter, appeals as of right from his jury convictions for aggravated assault and aggravated kidnapping.  Following a sentencing hearing, the trial court imposed consecutive terms of fifteen years and twenty years, respectively.  On appeal, the Defendant contends that the evidence is insufficient to support his convictions and that his effective thirty-five-year sentence is excessive.   After a review of the record, we affirm the judgments of the trial court.

This appeal arises from a termination of parental rights. The Tennessee Department of Children‘s Services ("DCS") filed a petition in the Juvenile Court for Knox County ("the Juvenile Court") seeking to terminate the parental rights of Remus W. ("Father") to his five children ("the Children"). After a trial, the Juvenile Court found that the grounds of wanton disregard, persistent conditions, and severe child abuse had been proven against Father by clear and convincing evidence, and that termination of Father‘s parental rights was in the Children‘s best interest. Father appeals. We reverse the judgment of the Juvenile Court as to the grounds of wanton disregard and persistent conditions. We affirm the Juvenile Court as to the ground of severe child abuse and as to its best interest determination. Having reversed the Juvenile Court as to only two of the three grounds found for termination, we, therefore, affirm the judgment of the Juvenile Court terminating Father‘s parental rights.

This is an appeal of the trial court’s award of alimony. Husband appeals the trial court’s decision to award alimony in futuro as well as the amount of alimony awarded. We vacate both the trial court’s award of alimony in futuro and the amount awarded.

The trial court found by clear and convincing evidence that Father had committed severe child abuse by knowingly exposing his three minor children to methamphetamine. Father appealed the trial court's decision to admit positive drug tests for the children into evidence and the trial court's finding of severe child abuse. We affirm.

This is an appeal from an order denying summary judgment. The appellee signed a YMCA membership application and release agreement prior to tripping and falling on a sidewalk in front of the YMCA. The appellee filed suit, alleging negligence. The YMCA then filed a motion for summary judgment, claiming that the appellee expressly assumed the risk of her injuries. The trial court denied the YMCA’s motion for summary judgment but granted a motion for interlocutory appeal. We reverse the trial court’s order denying summary judgment and remand with instructions to enter summary judgment.      

This is a breach of contract action involving a residential kitchen remodeling project. The plaintiff homeowner filed a complaint against the defendant contractor and his construction company, alleging that the contractor had breached the parties' contract by failing to complete the project and walking off the job. The contractor filed a counter-complaint, alleging, inter alia, that the homeowner owed the construction company funds for work completed and reimbursement of material costs. Following a bench trial, the trial court dismissed the individual contractor as a party but found that the construction company had materially breached the contract. Setting off the amount the homeowner owed contractually from the damages determined, the court awarded a judgment to the homeowner in the amount of $3,555.40. The homeowner appeals the amount of the damages award and the set-off. She further appeals the trial court's denial of her oral motion to allow her substitution as party plaintiff in the capacity of trustee for her son, to whom she had conveyed her interest in the home in trust. Having determined that the trial court made two mathematical errors in calculating the final award to the homeowner, we modify the award to $4,055.40. We affirm the judgment in all other respects.

The Petitioner, Jennifer Hannah, appeals as of right from the post-conviction court’s denial of her petition for post-conviction relief, wherein she challenged her convictions for four counts of child neglect, one count of first degree felony murder during the perpetration of aggravated child neglect, and two counts of delivering a controlled substance to a minor.  On appeal, the Petitioner contends that she received ineffective assistance of counsel based on trial counsel’s failure to call a “material” witness for the defense.  Following our review, we affirm the judgment of the post-conviction court.

The Defendant, James Allen Perry, pled guilty to fifty-nine counts of especially aggravated sexual exploitation of a minor, a Class B felony; three counts of statutory rape by an authority figure, a Class C felony; and one count of sexual exploitation of a minor, a Class D felony. See Tenn. Code Ann. §§ 39-13-532, -17-1003, -17-1005. The trial court imposed a total effective sentence of 106 years. In this appeal as of right, the Defendant contends that the trial court erred in imposing partially consecutive sentences. Following our review, we affirm the judgments of the trial court.

The defendant, Donald Keith Watts, a/k/a “Duck,” was convicted of rape and sentenced to eight years at 100%.  On appeal, he argues that the trial court erred in denying his motion for mistrial because of an allegedly improper argument by the State and that the evidence is insufficient to sustain the verdict.  Following our review, we affirm the judgment of of the trial court.

This is a negligence case. Appellee, an elevator maintenance company, contracted with building owner to provide maintenance service for the building’s elevators. Plaintiff was injured when one of the elevators allegedly did not level properly, causing her to fall as she was exiting the elevator. Plaintiff and her husband brought suit against the building’s owner, the building’s management company, and Appellee. Appellee filed a motion for summary judgment, which the trial court granted. Appellants appeal.