APPELLATE COURT OPINIONS

Plaintiff/Appellant appeals the trial court's dismissal of his complaint on the ground that it was barred by the doctrine of res judicata. Specifically, Appellant argues that a prior dismissal on the basis of the expiration of the statute of limitations was not an adjudication on the merits. Because dismissals on statute of limitations grounds generally operate as adjudications on the merits, we affirm.

Plaintiff filed a health care liability action against defendant doctor but did not file the certificate of good faith required by Tenn. Code Ann. § 29-16-122. Defendant filed a motion to dismiss; the motion was granted by the trial court. Plaintiff appeals the dismissal of her complaint. Finding no error, we affirm. 

A Williamson County jury convicted the Defendant, Lecarvis Marquis Miller, of reckless aggravated assault and simple assault.  The trial court merged the convictions and sentenced the Defendant to serve ten years as a Range III, persistent offender.  On appeal, the Defendant asserts that the trial court erred when it failed to give the jury a supplemental unanimity instruction.  After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

In this child support arrearage case Harold Newman, Jr. (“Respondent”) appeals the December 23, 2014 order of the Circuit Court for Roane County (“the Trial Court”) finding Respondent in civil contempt and ordering that Respondent be incarcerated in the Roane County Jail until he pays a purge amount of $150.00. We find and hold that no evidence was produced showing that Respondent had the present ability to pay $150.00, or any amount, and, therefore, the order finding Respondent in contempt and sentencing him to incarceration was in error. We reverse that portion of the Trial Court's December 23, 2014 order finding Respondent in civil contempt and sentencing Respondent to indefinite incarceration in the Roane County Jail with the ability to purge himself of contempt by making a $150.00 purge payment and remand this case to the Trial Court for further proceedings.

The defendant, Michael Richard Miller, was convicted of three counts of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated burglary, and one count of employing a firearm in the course of a dangerous felony.  On appeal, he challenges the trial court’s imposition of an effective forty-six-year sentence based upon partial consecutive sentencing.  Specifically, the defendant argues that: (1) the trial court misapplied the consecutive sentencing factors in making its sentencing determination; and (2) the trial court erred in ordering that the conviction for employing a firearm in the course of a dangerous felony be served consecutively to all his convictions rather than only to the underlying dangerous felony.  Following review of the record, we affirm the sentences as imposed.

In this child support arrearage case Harold Newman, Jr. (“Respondent”) appeals the December 23, 2014 order of the Chancery Court for Roane County (“the Trial Court”) finding Respondent in civil contempt and ordering that Respondent be incarcerated in the Roane County Jail until he pays a purge amount of $150.00. We find and hold that no evidence was produced showing that Respondent had the present ability to pay $150.00, or any amount, and, therefore, the order finding Respondent in contempt and sentencing him to incarceration was in error. We reverse that portion of the Trial Court's December 23, 2014 order finding Respondent in civil contempt and sentencing Respondent to indefinite incarceration in the Roane County Jail with the ability to purge himself of contempt by making a $150.00 purge payment and remand this case to the Trial Court for further proceedings.

This is a termination of parental rights case. The trial court terminated Appellant/Mother‘s parental rights on the grounds of: (1) abandonment; (2) substantial non-compliance with the permanency plan; (3) persistence of conditions; and (4) severe child abuse. We vacate the termination of Mother‘s parental rights on the grounds of substantial non-compliance with the permanency plan and failure to support. However, the remaining grounds for termination of Mother‘s parental rights are met by clear and convincing evidence, and there is also clear and convincing evidence that termination of Mother‘s parental rights is in the best interest of the children. Therefore, we affirm the termination and remand for further proceedings.

This is a contract action involving an alleged oral contract between the plaintiffs, landlords Jim Hicks and Betty Hicks (“Landlords”), a married couple who own the rental property at issue, and the co-defendant, Duane Seitz, who located and paid the first month's rent on the property on behalf of his former wife, Debbie Seitz. Ms. Seitz, also originally named as a co-defendant, resided in the home on the property with her adult daughter, her adult daughter's boyfriend, and the daughter's two small children (collectively, “Tenants”). Following several months during which the rent was paid late, partially, or not at all and upon discovery of unkempt conditions in the home, Landlords served Tenants with a notice of eviction. After Tenants had moved from the home, Landlords filed a civil warrant in the Sevier County General Sessions Court against the defendants, Ms. Seitz and Mr. Seitz, alleging unpaid rent and vandalism. Upon hearing, the General Sessions Court entered a judgment in favor of Landlords and against both defendants in the amount of $7,000 plus 5.25% interest and court costs. The defendants appealed to the Circuit Court. Following a bench trial, the Circuit Court entered a judgment in favor of Landlords and against only Mr. Seitz in the amount of $6,285 in damages, plus 5.25% interest and court costs, based upon breach of an oral contract. Having found that Mr. Seitz had entered an oral contract with Landlords but that Ms. Seitz had not, the Circuit Court dismissed Ms. Seitz from the action. Mr. Seitz appeals, contending that the trial court erred by (1) finding an enforceable oral contract between Mr. Hicks and Mr. Seitz and (2) dismissing Ms. Seitz from the action. Because Ms. Seitz was never served with notice of this appeal, we conclude that this Court does not have subject matter jurisdiction over the issue of her dismissal from this matter. As to the trial court's judgment in favor of Landlords, we discern no error and affirm.

This is an appeal from the denial of Appellant’s Tennessee Rule of Civil Procedure 60.02 motion to set aside a settlement reached by Appellee, the decedent’s mother, in the underlying wrongful death lawsuit. Appellant brought the Rule 60.02 motion on behalf of her minor child, who was born out of wedlock. The decedent had executed a voluntary acknowledgment of paternity of the minor child in Mississippi; Appellant argued that the acknowledgment was entitled to full faith and credit in Tennessee such that the child would be the rightful plaintiff in the wrongful death lawsuit. Appellee filed a challenge to paternity, arguing that the decedent was incarcerated at the time of the child’s conception. The Circuit Court stayed all proceedings and transferred the question of paternity to the Probate Court, which had no authority to enroll the foreign acknowledgment of paternity under the Uniform Enforcement of Foreign Judgments Act. Furthermore, because the child’s paternity was challenged, there was a question as to whether the mere filing of the VAP in a Tennessee Court, pursuant to Tennessee Code Annotated Section 24-7-113(b)(3), was sufficient to establish paternity for purposes of the Wrongful Death Statute. If there is a challenge to the VAP, Tennessee Code Annotated Section 24-7-113(e) requires the trial court to first find that there is a substantial likelihood that fraud, duress, or material mistake of fact existed in the execution of the VAP. If the court so finds, then, under Tennessee Code Annotated Section 24-7-113(e)(2), DNA testing is required to establish paternity. Alternatively, the trial court could find that there is not a substantial likelihood of fraud, duress, or material mistake, deny the challenge to the VAP, and enroll the VAP as conclusive proof of paternity. Here, the trial court made no finding concerning fraud, duress, or material mistake under Section 24-7-113(e). Despite the fact that the court never resolved the paternity question, it, nonetheless, denied Appellant’s Rule 60.02 motion and granted attorney’s fees to the defendant in the underlying wrongful death action and to the Appellee/mother for Appellant’s alleged violation of the order staying all proceedings in the Circuit Court. We conclude that the Rule 60.02 motion was not ripe for adjudication until such time as the trial court conclusively established the child’s paternity under either Tennessee Code Annotated Section 24-7-113 or 24-7-112. Accordingly, we vacate the trial court’s order denying Rule 60.02 relief and remand the case for further proceedings, including, but not limited to, entry of an order that complies with Section 24-7-113(e). We reverse the award of attorney’s fees and the order staying proceedings in the Circuit Court.

The employee sustained a work-related lower back injury, which required surgery. Her treating physician assigned an 8% permanent impairment rating, and referred her to a pain management specialist. The employee’s lawyer arranged for an independent medical evaluation with a neurologist, who assigned the employee 23% permanent impairment for her back injury and 2% permanent impairment for the sleep interruption she experienced as a result of ongoing back pain. Because the impairment ratings differed, the employee was seen by a physician in the Tennessee Medical Impairment Rating Registry (“MIR”), as established by statute. The MIR physician, an orthopedic surgeon, assigned the employee a 9% permanent impairment. The depositions of the evaluating physician and the MIR physician were introduced at trial, as well as the medical records of the treating physician, the employee’s testimony, and that of several lay witnesses. The trial court refused to allow the employer to call a vocational expert to testify, because the employer had failed to disclose the identity of this witness at an earlier time. At the conclusion of the proof, the trial court found that, regardless of the permanent impairment rating applied, the employee is unable to work and is therefore entitled to permanent and total disability benefits. Alternatively, the trial court found that the employee had introduced clear and convincing evidence to rebut the statutory presumption of accuracy that applies to the MIR physician’s impairment rating and adopted the 23% permanent impairment rating of the evaluating physician, even though his assignment of 2% permanent impairment for the employee’s sleep interruption was inconsistent with The AMA Guides to Permanent Impairment, 6th Edition (“AMA Guides”). The employer appealed. The appeal was referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Supreme Court Rule 51. We conclude that: (1) the trial court did not err by excluding the employer’s vocational expert; (2) the evidence preponderates against the trial court’s finding of permanent and total disability; and (3) the trial court erred by concluding that the employee rebutted by clear and convincing evidence the statutory presumption of accuracy that applies to the MIR physician’s impairment rating. Accordingly, we reverse and modify the judgment of the trial court, and considering the MIR physician’s impairment rating and the lay testimony concerning the employee’s limitations, award the employee 45% permanent partial disability benefits.

The paramount issue in this parental relocation action arises from a contractual provision in the parenting plan that reads: “If either party should relocate from Lincoln County, Tennessee, the children shall reside primarily with the party remaining so as to keep the children in the Lincoln County School System.” The parties were divorced in 2009 at which time Mother was designated the primary residential parent. In 2014, Mother notified Father that she intended to relocate to Brentwood, Tennessee, because her husband accepted a job there. Father filed a petition opposing relocation relying, in part, on a contractual provision in the parenting plan. Because the parents were exercising substantially equal parenting time, the relocation issue was to be decided pursuant to Tenn. Code Ann. § 36-6-108(c), which states that no presumption in favor of or against relocation with the child shall arise and that “the court shall determine whether or not to permit relocation of the child based upon the best interests of the child.” Tenn. Code Ann. § 36-6-108(c). Following a full evidentiary hearing, the trial court denied Mother’s request to relocate. The sole basis for the ruling was that Mother was estopped to relocate with the children based on the parenting plan. Having decided the case based on estoppel, the court stated it was not necessary to conduct a best interest analysis. Mother filed a Motion to Alter or Amend insisting the trial court was required to conduct a best interest analysis pursuant to Tenn. Code Ann. § 36-6-108(c). The court then conducted the required analysis and additionally found that relocation was not in the children’s best interests. The court modified its order stating that it was denying relocation on the basis of estoppel and its best interest findings. We have determined that the trial court erred in finding Mother was estopped to relocate based upon the parenting plan because the parties contractual agreement merged into the final decree, and the trial court retained jurisdiction on issues concerning the care, custody, and control of the minor children. Nevertheless, we affirm the decision to deny relocation based upon the trial court’s finding that relocation was not in the children’s best interests. Mother also filed a petition to hold Father in civil contempt for failing to pay a debt for which they were jointly liable. The court ruled that Father was not in civil contempt because he had cured his contemptuous conduct and we find no error with the contempt ruling. 

Petitioner, Melissa Barnett, appeals the dismissal of her second petition for a writ of error coram nobis, in which she alleged that her codefendant's recantation of his trial testimony constitutes newly-discovered evidence of her innocence. Upon our review of the record, we agree with the coram nobis court that Petitoner was previously granted a meaningful opportunity to present this claim, and we affirm its decision to dismiss the petition.

Mother and Father were divorced in 2009; the final divorce decree incorporated a permanent parenting plan designating Mother as primary parent. On May 17, 2010, Mother filed a petition in Davidson County Juvenile Court to have two of the parties’ children declared dependent and neglected based on Father’s alleged physical abuse of the children in two incidents in Davidson County on May 12. At the time of the incidents neither party nor the children were residents of Davidson County. Following a hearing in Juvenile Court, a trial de novo was held in Circuit Court; the court held that the evidence did not support a finding that the children were dependent and neglected and dismissed the petition. Mother appeals, asserting that the court erred in limiting proof to the events which occurred in Davidson County and in excluding the testimony of certain expert witnesses; Mother also argues that the evidence supports a finding that the children were dependent and neglected. Determining that the court did not abuse its discretion in the admission of evidence and that the evidence does not clearly and convincingly show that the children were dependent and neglected, we affirm the dismissal of the petition.

Petitioner, Nathan Young Payne, appeals the dismissal of his motion to withdraw his guilty plea, which the lower court subsequently treated as a petition for post-conviction relief. Because Petitioner has not proven that due process requires tolling of the statute of limitations for post-conviction purposes, the decision of the post-conviction court is affirmed.

Because the order appealed is not a final judgment, this Court lacks subject matter jurisdiction. Therefore, we dismiss this appeal.

This case involves the modification of a parenting plan. The trial court denied Appellant Father's petition to modify the permanent parenting plan and to be appointed primary residential parent. However, the trial court granted Appellee Mother's petition to modify the permanent parenting plan without explicitly acknowledging a material change in circumstance. Mother's petition did not seek to alter the designation of the primary residential parent, and instead sought to modify the parenting schedule. Father appeals. Discerning no error, we affirm and remand.

The Defendant, Eric Darnell Whitaker, was found guilty by a Maury County Circuit Court jury of attempt to commit first degree premeditated murder, a Class A felony, two counts of aggravated assault, Class C felonies, reckless endangerment, a Class E felony, and theft of property valued at $1000 or more but less than $10,000, a Class D felony.  See T.C.A. §§ 39-13-202 (2014), 39-12-101 (2014), 39-13-102 (Supp. 2011) (amended 2013), 39-13-103 (2010) (amended 2011, 2012, 2013), 39-14-103 (Supp. 2011) (amended 2014).  The trial court sentenced the Defendant as a Range I, standard offender to twenty years for attempted first degree murder, five years for each aggravated assault, two years for reckless endangerment, and three years for theft.  The court ordered consecutive service for one aggravated assault, the reckless endangerment, and the theft sentences, for an effective thirty-year sentence.  On appeal, the Defendant contends that the evidence is insufficient to support his attempted first degree murder and theft convictions.  We affirm the judgments of the trial court.

This is a Tennessee Supreme Court Rule 10B interlocutory appeal as of right from the trial court’s denial of a motion for recusal. The appellant contends the trial judge should be disqualified on the ground of bias, which is evident from multiple rulings that were adverse to the appellant. Having reviewed the petition for recusal appeal, we affirm the trial court’s decision to deny the motion for recusal. 

The Defendant, Emily Brittany Davis, pleaded guilty to one count of vandalism under $500 and was sentenced to serve eleven months, twenty-nine days on supervised probation and pay restitution to the victim.  After a hearing, where the victim testified about the cost of the Defendant’s vandalism, the criminal court ordered the Defendant to pay $800 in restitution, and the Defendant appeals this order.  Following a careful review of the record and applicable law, we affirm.

This appeal concerns a home inspector’s liability for a guest’s injury following the collapse of a homeowner’s second-story deck railing.  The accident occurred just one month after the home inspection was performed.  In his report to the homeowner, the inspector noted that the deck flooring was warped but failed to report the improper construction of the deck railing.  The injured guest filed suit against the homeowner and the home inspector, among others.  The inspector moved for summary judgment.  The trial court granted summary judgment, finding that the inspector did not owe a legal duty to the guest.  We affirm.

Following a jury trial, Antonio Bigsbee (“the Petitioner”) was convicted of especially aggravated kidnapping and reckless endangerment and sentenced as an especially mitigated offender to thirteen and a half years’ incarceration.  The Petitioner filed a petition for post-conviction relief alleging that trial counsel failed to communicate a plea offer of eight years’ incarceration.  After a hearing, the post-conviction court denied relief.  Discerning no error, we affirm the judgment of the post-conviction court.

The Defendant-Appellant, Jesse Allen Christman, entered guilty pleas to aggravated assault and kidnapping, Class C felonies, with the trial court to determine the length and manner of service of the sentences.  Aftera sentencing hearing, the trial court sentenced him to twelve years in the Tennessee Department of Correction.  On appeal, the Defendant argues that the trial court abused its discretion in imposing an excessive sentence and in denying him an alternative sentence.  Upon review, we affirm the judgments of the trial court.

The Defendant, Anthony Todd Ghormley, entered a nolo contendere plea to sexual battery by an authority figure and received an effective five-year sentence to be served on community corrections. Approximately nine years after the judgment was filed, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence. The trial court summarily dismissed the motion as moot on the basis the Defendant had already served his sentence. On appeal, the Defendant contends that the trial court erred in dismissing his motion. We affirm the judgment of the trial court.

Plaintiffs, a debt collection company and a motor carrier, filed suit in general sessions court against defendant to collect unpaid transportation and delivery charges. Defendant filed a motion for summary judgment and a motion for sanctions against plaintiffs, arguing that plaintiffs continued to pursue their claims despite knowledge that defendant was not the proper defendant. Plaintiffs eventually voluntarily nonsuited their claim; however, defendants pursued their motion for sanctions. The general sessions court ordered plaintiffs to pay defendants' attorney's fees as sanctions. Plaintiff appealed the award of sanctions to the circuit court, and the circuit court modified the amount of sanctions awarded, but otherwise affirmed the award. On appeal, we reverse, holding the general sessions court did not have the authority to impose attorney's fees as sanctions.