APPELLATE COURT OPINIONS

The plaintiff, American Heritage Apartments, Inc. (“American Heritage”), commenced this lawsuit to protest a monthly flat charge in the amount of $8.00 per unit imposed by the defendant, The Hamilton County Water and Wastewater Authority (“the County WWTA”), on all of its sewer customers. The charge was instituted to fund a program designed to repair and refurbish private service laterals, defined as pieces of pipe that connect private property to the sewer lines. American Heritage sought declaratory judgment that the County WWTA, inter alia, had exceeded its authority by imposing an unjust and discriminatory charge. The County WWTA filed a motion to dismiss the complaint, which the trial court initially denied. Upon the County WWTA’s amended motion to dismiss and motion for summary judgment, American Heritage’s motion for partial summary judgment, and supplemental briefs submitted by both parties, the trial court granted summary judgment in favor of the County WWTA. The court found that because the Utility District Law of 1937, Tennessee Code Annotated §§ 7-82-101 to -804, provided an administrative procedure for contesting utility charges, no private right of action was available. The court further ruled that in the alternative, if a private right of action were allowed by this Court on appeal, American Heritage’s complaint could be certified as a class action lawsuit. American Heritage has appealed. Having determined that the trial court erred by applying the Utility District Law of 1937 to a non-utility district water and wastewater treatment authority, we reverse the grant of summary judgment. We affirm the trial court’s ruling regarding the class action certification.

Petitioner, Willie Price, appeals from the post-conviction court’s denial of his petition for post-conviction relief. Petitioner was convicted of aggravated rape, two counts of aggravated burglary, and robbery. He received an effective sentence of 60 years in confinement. Petitioner challenged his convictions and sentences on appeal, and a panel of this court affirmed the judgments of the trial court. State v. Willie Price, No. W2009-00083-CCA-R3-CD, 2010 WL 376625 (Tenn. Crim. App., Feb. 3, 2010), perm. app. denied (Tenn., June 17, 2010). On appeal, Petitioner contends that his trial counsel was ineffective for failing to properly investigate Petitioner’s case, failing to call witnesses at trial, and by not seeking to suppress DNA evidence. He also asserts that his appellate counsel rendered ineffective assistance of counsel, but Petitioner submitted no argument as to this issue in his brief. After a careful review of the record, we affirm the judgment of the post-conviction court.

The quasi-parties in this matter had their bids accepted at a judicial sale, but they failed to carry out their purchases and close on the properties. After a re-sale was conducted, the trial court charged the quasi-parties with the difference between the amount of the original bids and the amount received for the properties at the re-sale. They were also assessed the expenses resulting from the re-sale. The quasi-parties appeal. We affirm.

In a suit arising out of a construction project at a wastewater treatment facility, the City of South Pittsburg brought an action against an engineering firm and a construction firm for breach of contract, negligence and professional negligence. The insurance company which issued a performance bond covering the project was added as a partyand moved for summary judgment on the ground that the City had not instituted a proceeding to recover under the bond within the two year period specified in the bond for doing so. The insurance company appeals the denial of its motion. Finding no error, we affirm the judgment of the trial court.

Petitioner, Christopher Jones, was convicted of one count of first degree premeditated murder and sentenced to life imprisonment. State v. Christopher Alexander Jones, No. W2011-01990-CCA-R3-CD, 2012 WL 4049175 (Tenn. Crim. App., Sept. 14, 2012), perm. app. denied (Tenn., Feb. 19, 2013). A panel of this court affirmed Petitioner’s conviction on appeal. Id. Petitioner filed a petition seeking post-conviction relief, alleging that he was denied the effective assistance of counsel at trial. Following an evidentiary hearing, the postconviction court denied relief. Having carefully reviewed the record before us, we affirm the judgment of the trial court.

This case involves the propriety of an award of punitive damages in the amount of $600,000. The plaintiffs sued the defendant timeshare developer, seeking to rescind a contract for purchase of a timeshare interest. The plaintiffs alleged, inter alia, that the defendant was guilty of fraud and misrepresentation, as well as violations of the Tennessee Time-share Act and the Tennessee Consumer Protection Act. Following the hearing, the trial court ruled in favor of the plaintiffs and allowed them to rescind the contract, ordering repayment of their purchase money. The trial court found that the defendant had violated the respective statutory provisions and was guilty of fraud and misrepresentation. The trial court thus determined that an award of punitive damages was proper, and following a second hearing regarding the amount of the punitive damage award, set such award at $600,000. The defendant has appealed this award. While we affirm the determination of the trial court that $600,000 represents a reasonable award of punitive damages considering all applicable factors, we must order remittitur of that award to $500,000 in accordance with the statutory cap found in Tennessee Code Annotated § 29-39-104(a)(5).

This case began as an action for legal separation between a husband and wife. The two quickly entered into an agreed temporary parenting plan providing for the custody of their children. However, the children’s maternal grandmother intervened, seeking registration and enforcement under the Tennessee Uniform Child Custody Jurisdiction and Enforcement Act of a Kentucky grandparent visitation order. The circuit court granted registration and enforcement of the order. The parents appealed. Because we conclude that the grandmother was required to seek visitation under the Tennessee Grandparent Visitation Statute, we reverse the trial court’s decision.

Petitioner, Vernon Motley, appeals from the trial court’s summary dismissal of Petitioner’s petition for writ of habeas corpus relief. Petitioner was convicted by a Shelby County jury for first degree premeditated murder and received a sentence of life imprisonment. His conviction was affirmed on appeal. See State v. Vernon Motley, No. W2010-01989-CCA-R3-CD, 2012 WL 1080479 (Tenn. Crim. App. Mar. 29, 2012). Petitioner asserts he is entitled to habeas corpus relief because the trial court, in effect, imposed a sentence of life without possibility of parole without jurisdiction to do so. Our review of the record shows that Petitioner was properly sentenced to the only sentence he could receive, and we therefore affirm the judgment of the trial court.

During his thirty-seven years working for the employer, the employee suffered a gradual loss of hearing, especially at frequency levels of sound above 3000 hertz. Shortly after his retirement, he made a claim for workers’ compensation benefits. After hearing the proof, the trial court ultimately found that the AMA Guides did not cover hearing losses at the higher frequencies and awarded a 30% vocational disability,notonlyfor the anatomical impairment between 2000 and 3000 hertz but also for the impairment between 3000 and 4000 hertz. The employer appealed, asserting that the AMA Guides did not consider as an impairment hearing losses at levels higher than 3000 hertz and objecting to the method used by the employee’s physician to ascertain anatomical impairment above that level. Because the evidence clearly established a hearing impairment above 3000 hertz and there was evidentiary support for the trial court’s determination that expert testimony established an “appropriate” method for rating the impairment in a manner “used and accepted by the medical community,” the judgment is affirmed.

Defendant, David Wortman, pled guilty to two counts of aggravated assault and one count of possession of a firearm by a convicted felon in exchange for an effective sentence of four years and six months, with the manner of service of the sentence to be determined by the trial court at a sentencing hearing. After the sentencing hearing, the trial court denied alternative sentencing, ordering Defendant to serve his sentence in incarceration. Defendant appeals the denial of alternative sentencing. Because the trial court did not abuse its discretion in denying alternative sentencing, we affirm the judgments of the trial court.

This appeal concerns a guardianship proceeding for four children. The mother of the children (“Mother”) was killed while on duty as a police officer. The children’s maternal grandmother and the father (“Father”) of three of the children sought custody of all four children. The trial court ultimately awarded custody to the children’s maternal grandfather “Grandfather”), although Grandfather was not a party to the proceedings and did not request guardianship of the four children. Father appeals, asserting that the trial court erred in not awarding custody to him. We have determined that the trial court erred in awarding Grandfather guardianship of Father’s three biological children without first determining that there would be a substantial risk of harm to the children should Father be appointed guardian. Furthermore, we find that the trial court erred in awarding Grandfather guardianship of Mother’s fourth child without conducting a thorough best interest analysis. Therefore, we vacate the trial court and remand for further proceedings.

The Petitioner, William Charles Angel, Jr., appeals the Giles County Circuit Court’s denial of post-conviction relief from his guilty plea to three counts of first degree premeditated murder (counts 1, 2, and 3), three counts of first degree felony murder (counts 4, 5, and 6), one count of aggravated arson, one count of setting fire to personal property, one count of aggravated burglary, one count of theft under $500, and one count of aggravated cruelty to an animal, for which he received an effective sentence of life imprisonment without parole.  He argues that his convictions were based upon a coerced confession to law enforcement and that he received ineffective assistance of counsel, which rendered his guilty plea involuntary.  Upon review, we affirm the judgment denying post-conviction relief.  However, because the judgments of conviction in this case fail to reflect the merger of the first degree premeditated convictions with the surviving first degree felony murder convictions, we vacate the judgments in counts 1 through 6 and remand the case for entry of three judgments of conviction showing that count 1 was merged with count 4, count 2 was merged with count 5, and count 3 was merged with count 6.

The question presented on this appeal is whether a covenant, i.e., a promise, by a grantor to pay – in a deed conveying an undivided one-third interest in a piece of property – all property taxes and other expenses associated with the 100% interest in the property is binding on successor grantees of her remaining two-thirds interest. Sonja Taylor conveyed an undivided one-third interest in the property to Fred T. Hanzelik. Taylor agreed to pay “all taxes, expenses and obligations regarding” the property, including those on Hanzelik’s portion. Taylor later conveyed her remaining two-thirds interest to Shane Coughlin, who later conveyed it to Fifth Project, LLC, which later conveyed it to defendants Ilya Dyskin and Tatiana Dyskin. Hanzelik argues that Taylor’s covenant to pay property taxes for the entire ownership interest, including Hanzelik’s one-third interest, is binding on the Dyskins. The trial court agreed and ordered the Dyskins to pay the entire property tax bill. After examining the deeds in the chain of title, we find no evidence of an intention that Taylor’s covenant would run with the land and bind successor grantees of the two-thirds interest. Accordingly, we reverse the judgment of the trial court.

This is a parental termination case regarding R.L.M., the daughter of unmarried parents, V.R.G. (Mother) and J.M. (Father). The trial court found clear and convincing evidence of (1) a failure to provide a suitable home and (2) persistence of the conditions that led to the child’s removal. The court also found, again by clear and convincing evidence, that termination is in the child’s best interest. Father appeals. He contends 1 generally that the evidence does not clearly and convincingly establish the grounds for termination and best interest. The Department of Children Services (DCS) takes a different approach. It concedes that an essential element of its case was not established by the proof. It contends that, as a consequence, the judgment of the trial court must be reversed. Because we agree with the State, we (1) reverse the judgment of the trial court terminating Father’s rights and (2) dismiss the petition in this case.

The plaintiff, Trails End Campground, LLC (Trails End) and the defendant Brimstone Recreation, LLC (Brimstone) are competitors in an outdoor recreation-oriented market in and around Scott County. In 2012, the defendant Town of Huntsville executed a lease with Brimstone giving it “the exclusive use, control and enjoyment” of a centrally-located open area in the town, sometimes referred to as Town Square, during the weeks prior to and including Memorial Day and Labor Day. Trails End brought this action alleging (1) that the Town acted without authority under its charter to execute such a lease; (2) that it created a perpetuity and monopoly in violation of the state constitution; and (3) that it violated the Tennessee Trade Practices Act (TTPA), Tenn. Code Ann. § 47-25-101 to -112 (2013). The trial court granted the defendants summary judgment. We hold (1) that, under its charter, the Town had authority to enter into the lease, (2) that the lease does not create an unlawful monopoly or perpetuity, and (3) that the TTPA is not implicated by the facts of this case. The judgment of the trial court is affirmed.

Juanita W. (“the Juvenile”) appeals an order of the Criminal Court for Knox County (“the Criminal Court”) finding her delinquent by committing the act of aggravated assault pursuant to Tenn. Code Ann. § 39-13-102(a)(1)(B). We find and hold that the required element of bodily injury was not proven, and we, therefore, reverse the Criminal Court’s order finding the Juvenile delinquent and dismiss the case.

The Defendant, Elke Babette Paster, was charged with multiple Tennessee Code Annotated traffic offenses. These charges were initially set for adjudication in Somerville City Court but were later transferred to Fayette County General Sessions Court, where that court found the Defendant guilty of speeding. Upon her appeal to the Fayette County Circuit Court from the General Sessions Court’s judgment, the Circuit Court granted the Defendant’s motion to dismiss, declaring the General Sessions Court order void and reinstating the City Court’s adjudication of her charges. She now appeals challenging the jurisdiction of the City Court, the authority of that court to transfer the case to the General Sessions Court, and the Circuit Court’s reinstatement of the City Court’s adjudication. Following our review, we reverse the order of the Circuit Court dismissing the case and remand to that court for further proceedings consistent with this opinion.

The Defendant, Bobby Daniel Pettie, was found guilty by a Bedford County Circuit Court jury of initiating the manufacture of methamphetamine, a Class B felony, promotion of methamphetamine manufacture, a Class D felony, possession of a firearm during the commission of a dangerous felony, a Class D felony, and possession of methamphetamine, a Class A misdemeanor.  See T.C.A. §§ 39-17-435 (2014), 39-17-433 (2014), 39-17-1324 (2014), 39-17-418 (2014).  The trial court sentenced the Defendant to sixteen years for initiating the manufacture of methamphetamine, six years for promotion of methamphetamine manufacture, six years for possession of a firearm during the commission of a dangerous felony, and eleven months, twenty-nine days for possession of methamphetamine.  The court ordered the initiating the manufacture of methamphetamine and the promotion of methamphetamine manufacture sentences be served concurrently with each other and consecutively to the possession of a firearm during the commission of a dangerous felony and to the possession of methamphetamine sentences, for an effective sentence of twenty-two years, eleven months, and twenty-nine days.  On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) the trial court erred by denying his motion to suppress, and (3) his sentence is excessive.  We affirm the judgments of the trial court.

The Defendant, Timothy Roy Bozza, was convicted of first degree murder by a Davidson County Criminal Court Jury.  See T.C.A. § 39-13-202 (2014). He was sentenced to life in prison.  On appeal, he contends that the evidence is insufficient to support his conviction and that the trial court erred in denying him counsel of his choice.  We affirm the judgment of the trial court.

In 2014 the Defendant, Richard Barefoot, pleaded guilty to identity theft, fraudulent use of a credit card, and theft of property.  The trial court sentenced him to fifteen years in the Tennessee Department of Correction.  The Defendant reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) about whether the trial court improperly denied his motion to dismiss by holding that the time limitation for prisoner transfer as proscribed by the Interstate Compact on Detainers was not applicable.  After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

The Petitioner, Dale Wayne Wilbanks, entered a best interest plea with an agreed upon sentence of twenty years for second degree murder and a concurrent twenty-five years for attempted first degree murder. The Petitioner filed a motion to withdraw his guilty plea and a petition seeking post-conviction relief. After a hearing, the post-conviction court denied the Petitioner relief. The Petitioner now appeals, maintaining that his guilty plea was involuntary and that he received the ineffective assistance of counsel. We affirm the postconviction court’s judgments.

Defendant, William Jernigan, entered into a negotiated plea agreement and pled guilty as charged in a two-count criminal information to the Class D felony offense of possession with intent to sell Alprazolam and to the Class E felony offense of possession with intent to sell one-half ounce or more of marijuana. The agreed sentences were thirty months for the Class D felony and two years for the Class E felony, to be served concurrently. Reserved for determination by the trial court was what amount, if any, of the effective sentence of thirty months would be served on probation. At the sentencing hearing, Defendant sought full probation. The State requested that Defendant be incarcerated “at least for a time” because Defendant was “not worthy of complete probation.” From the bench at the conclusion of the sentencing hearing the trial court ordered the sentence to be served by split confinement as follows: sixty days’ incarceration in the Shelby County workhouse followed by thirty months’ probation. Defendant appeals, arguing that the trial court should have granted full probation. We affirm the judgments of conviction and sentence of the trial court but reverse the trial court’s order of stay of incarceration which was filed after the notice of appeal conferred jurisdiction with this Court.

Petitioner, David Lee Leggs, appeals the denial of his petition for post-conviction relief. He claims that he received ineffective assistance of counsel during trial and on appeal. After thorough review, we affirm the decision of the post-conviction court.

Defendant, Richard Alan Hatchel, was indicted by the Tipton County Grand Jury for first degree premeditated murder and felony reckless endangerment under T.C.A. § 39-13- 103(b)(3). Defendant was convicted as charged by a jury. Following a sentencing hearing, the trial court sentenced Defendant to life imprisonment for his first degree murder conviction and three years for his reckless endangerment conviction, with the sentences to be served concurrently. In this appeal as of right, Defendant asserts and the State concedes that the evidence is insufficient to support Defendant’s conviction for reckless endangerment because the proof at trial showed that Defendant was inside the house, and an element of the offense for which Defendant was charged is that he discharged a firearm from outside of the house. Defendant also asserts that the evidence was insufficient to sustain his conviction for first degree premeditated murder. After a careful review of the record before us, we conclude that the evidence was sufficient to support Defendant’s conviction for first degree premeditated murder, but the evidence was insufficient to support Defendant’s conviction for felony reckless endangerment as charged. Accordingly, the judgment of conviction for first degree murder is affirmed. The judgment of conviction for felony reckless endangerment is reversed and the charge of felony reckless endangerment is dismissed with prejudice.

This appeal arises from a petition in juvenile court to modify custody. In December 2006, the juvenile court issued an order granting Mother primary residential custody of the parties’ two children and granting Father visitation. In May 2013, Father petitioned the court for custody of the children. A hearing was conducted in October 2013. The court found that Father met his burden of showing a material change of circumstances but determined that the children’s best interests would not be served by granting Father custody. We affirm.