APPELLATE COURT OPINIONS

The petitioner, Marvin Bobby Parker, was convicted of reckless aggravated assault, two counts of assault, and one count of reckless endangerment after a violent confrontation at a racetrack.  He appeals the denial of his petition for post-conviction relief.  On appeal, the petitioner asserts that the post-conviction court erred in rejecting his argument that he received the ineffective assistance of counsel when: (1) trial counsel did not allow him to testify at the grand jury proceedings; (2) trial counsel did not request an instruction on self-defense during trial; (3) trial counsel failed to call certain witnesses at trial and at the preliminary hearing; (4) trial counsel failed to prepare him to testify; (5) trial counsel failed to pursue or advise him regarding pretrial diversion; (6) trial counsel did not introduce a videotape into evidence; and (7) trial counsel’s cumulative errors deprived him of a fair trial.  After a review of the record, we conclude that the petition was properly dismissed, and we affirm the judgment of the post-conviction court.

I respectfully dissent from the majority’s conclusion that the plaintiffs are not time barred to establish that they have standing to contest David Rose’s 2006 Trust Agreement. I fully concur with the affirmance of the dismissal of the other underlying cases.

The petitioner, Chivous S. Robinson, filed a petition for habeas corpus relief in the Hardeman County Circuit Court challenging his 2000 convictions of second degree murder and solicitation of first degree murder. Because the petition fails to present a cognizable claim for habeas corpus relief, we affirm the habeas corpus court’s summary dismissal of the petition.

A subcontractor filed this breach of contract action to recover damages against a general contractor for two types of damages: work performed but unpaid and damages resulting from delays caused bythe general contractor.The plaintiff alleged the general contractor breached the contract by failing to make the appropriate progress payments and otherwise withholding payments without cause. It further alleged that the general contractor failed to properly supervise the project and failed to maintain proper working conditions on the job site which caused the construction to drag on for nine months beyond the agreed-upon completion date. While suit was pending, the general contractor was terminated by the owner and a different contractor was hired to complete the project; the new contractor hired the plaintiff to complete the job. The plaintiff completed its work for which it was paid more than the balance owing on the subcontract.Following a bench trial,the courtfound the former general contractor had breached the subcontract but the plaintiff had failed to prove damages flowing from these breaches. The trial court specifically determined that the subcontractor recouped its damages for work performed but unpaid through the completion subcontract, and that it did not prove damages flowing from the delay of construction. The plaintiff appeals. Having determined that the evidence does not preponderate against the trial court’s findings, we affirm the trial court in all respects.

This is a termination of parental rights case, focusing on Kiara C., the minor child (“Child”) of Mark C. (“Father”) and Pamela B. (“Mother”). On April 9, 2012, Mother and Mother’s husband, Richard B. (“Stepfather”), filed a petition for termination of Father’s parental rights and adoption of the Child by Stepfather. Following a bench trial, the trial court granted the petition for termination upon its finding, by clear and convincing evidence, that Father had abandoned the Child by willfully failing to visit her and willfully failing to provide financial support in the four months preceding the filing of the petition. The court further found, by clear and convincing evidence, that termination of Father’s parental rights was in the Child’s best interest. Father has appealed. We affirm.

After the death of David Rose, his two putative non-marital sons became involved in three separate lawsuits related to the proper distribution of his property. When Mr. Rose’s Executrix filed to probate his Will in solemn form, the putative sons, who were named residuary beneficiaries, objected, but later withdrew their objection. They then filed suit to set aside a 2006 Trust Agreement in order to reinstate prior trusts, the assets of which were to be distributed to Mr. Rose’s issue at his death. They also filed a separate lawsuit to establish Mr. Rose as their biological father. Their attempts to obtain some of their father’s assets were all unsuccessful. In all three cases, the trial court held that they were barred from establishing a father-son relationship because their attempts were time barred. We affirm the trial court’s dismissal of the sons’ petition to establish paternity filed in the probate case two years after the order admitting the will to probate. However, we reverse the trial court’s dismissal of the petitioners’ complaint challenging the validity of the 2006 Trust Agreement because they have standing to attempt to establish that they are “issue” of Mr. Rose. The deadline imposed by the trial court applied only “for purposes of intestate succession,” and the trust case did not involve inheritance through the statute regarding heirs of a person dying without a will. Mr. Rose had a will, which was probated. Any assets to be distributed to Mr. Locke and Mr. Avian from the preexisting trust(s) would be pursuant to the terms of the trust document(s), not pursuant to intestate succession. For the purpose of establishing their interest in the prior trust(s), the purported children were entitled to present proof that they were the children of Mr. Rose and were not time barred.

This is the second appeal of an action to recover, under either the theoryof unjust enrichment or a resulting trust, the value of improvements paid by the plaintiff for a house constructed on her son’s property. The plaintiff paid the construction costs to build a new home on her son’s land for both of them to reside. This action was commenced when the son refused to put his mother’s name on the deed after the house was constructed. Following the first trial, the trial court found that the plaintiff never intended to convey an inter vivos gift to her son, and, after considering the plaintiff’s alternative claims for relief, the court established a resulting trust in favor of the plaintiff in the amount of $417,000. In the first appeal, we ruled that a resulting trust was not an available remedy and remanded for further proceedings. On remand, the trial court awarded the estate a judgment against the son based on unjust enrichment. The son appeals again, this time contending the estate waived its unjust enrichment claim in the first appeal and that the estate did not prove the value of the improvements. We affirm.

This is a health care liability action appeal. The case was tried before a jury, resulting in a judgment for the defendant physicians. The trial court excluded the testimony of one of the plaintiff’s expert witnesses on the applicable standard of care after finding that he was not qualified under the locality rule. The plaintiff appealed to this Court arguing, among other things, that the trial court erred in its application of the locality rule. We hold that it was error for the trial court to exclude the witness, but find that any error was harmless under the facts of this case. We therefore affirm.

I respectfully dissent from the majority’s conclusion that the plaintiffs are not time barred to establish that they have standing to contest David Rose’s 2006 Trust Agreement. I fully concur with the affirmance of the dismissal of the other underlying cases.

Marvin Magay James Green (“the Defendant”) pleaded guilty to several offenses, including possession with intent to sell or deliver .5 grams or more of cocaine within 1000 feet of a school zone (“the cocaine conviction”). The trial court sentenced the Defendant to fifteen years of incarceration for the cocaine conviction, to be served at 100%. The Defendant subsequently filed motions, a petition for post-conviction relief, and a petition for writ of habeas corpus, all attacking the cocaine conviction and sentence. The trial court consistently denied relief, and the Defendant appealed. This Court consolidated the Defendant’s appeals. Upon our thorough review of the record and applicable law, we conclude that the Defendant is entitled to no relief. We also have determined that the judgment order entered on the cocaine conviction contains a clerical error. Therefore, we remand this matter for the correction of that error. In all other respects, we affirm the trial court’s rulings and judgments.

Father appeals the modification of the primary residential plan and specifically the designation of Mother as the primary residential parent of the parties’five-year-old daughter. In 2010, Father was designated as the primary residential parent of their two-year old child and the parents were awarded equal and shared parenting time based on an alternating weekly schedule. Over the next two years, the employment and marital status of each parent changed and Mother had three additional children. Based on these changes, Mother filed a petition in July 2012 to modify the primary residential plan requesting that she be designated as the primary residential parent. Finding, inter alia, that Mother was no longer employed, that she worked in the home caring for the parties’ child as well as her three younger children who were born after the initial plan went into effect, and that she had been acting as the de facto primary residential parent, the court granted Mother’s petition and designated her as the primary residential parent. We affirm.

This appeal arises from a petition for judicial review of the Tennessee Department of Transportation’s decision to deny the petitioner’s applications for billboard permits. Discerning no error, we affirm the chancery court’s decision upholding the Department’s denial.

This appeal arises from a trial court’s judgment granting State Farm Mutual Automobile Insurance Company (“State Farm”) and Agent Thomas Harry Jones’ motion for summary judgment and dismissing the Barricks’ action for negligence and violation of the Tennessee Consumer Protection Act. The Barricks held automobile insurance coverage through State Farm, with Thomas Jones as their agent, from 1985 until 2009, and their coverage limits remained the same throughout this period. The Barricks sued, claiming State Farm and Jones had a duty of care to advise the Barricks of their need for increased coverage. The Barricks now appeal, arguing the trial court erred in dismissing their claims. We affirm the trial court’s decision to grant summary judgment regarding the negligence claim. We reverse the trial court’s judgment based on the assumption of duty, which the trial court did not directly address, and the Tennessee Consumer Protection Act claims, since State Farm and Mr. Jones cannot meet their burden under Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 5 (Tenn. 2008), in these claims. We also reverse the trial court’s summary judgment in favor of State Farm for vicarious liability and failure to supervise in regard to the alleged assumption of duty by the agent.

This case presents issues regarding the propriety of the trial court’s rulings on evidentiary issues as well as a motion for directed verdict. The plaintiff sustained damages when his personalty, which was stored in a warehouse owned by the defendant, was subjected to water damage after the roof of the warehouse collapsed. The plaintiff filed the instant action seeking compensatory damages for the value of his damaged property. Prior to trial, the trial court ruled that the plaintiff could present evidence that the defendant also filed a claim with respect to his own damaged property stored in the warehouse. The trial court ruled, however, that the defendant would not be allowed to present evidence regarding the profitability of the plaintiff’s business. During the three-day trial, the defendant made a motion for directed verdict that was denied by the trial court. Following deliberations, the jury returned a verdict, finding the defendant to be 100% liable for the plaintiff’s loss and awarding damages to the plaintiff of $325,000. The defendant filed a renewed motion for directed verdict, a motion for new trial, and a motion for remittitur. All of the post-trial motions were denied by the trial court. The defendant appeals. Having determined that the trial court committed reversible error by allowing the plaintiff to present prejudicial evidence regarding the defendant’s own claim for damages, we vacate the jury’s award and remand for a new trial.

The defendant, Jacob Aaron Ervin, was convicted by a Marshall County jury of simple assault, a Class A misdemeanor, and was sentenced by the trial court to eleven months, twenty-nine days in jail at 75%.  On appeal, he challenges the sufficiency of the evidence and argues that the trial court imposed an excessive sentence.  Following our review, we affirm the judgment of the trial court.

This action arose over the sale of improved real property (“the Property”), consisting of approximately twenty-five acres located in Morgan County, Tennessee. Co-plaintiffs, James E. and Karen M. Whalen, entered into an agreement to purchase the Property from the defendant, Quint Bourgeois. The Whalens subsequently entered into an agreement with coplaintiffs, Alan and Kathleen Bone, to borrow the purchase price of the Property in return for an executed promissory note, secured by a deed of trust. The parties closed the purchase and sale of the Property on January 19, 2012, at the Roane County office of US Title of Tennessee, Inc. (“US Title”). On January 20, 2012, Mr. Bourgeois, upset that he had not received $900.00 in rent he believed the Whalens owed him, returned to the US Title office and convinced staff there to accept his uncashed check from the sale and give him the unrecorded deed. The plaintiffs filed this action against Mr. Bourgeois, ultimately amending their complaint to allege breach of contract, breach of the duty of good faith and fair dealing, and intentional interference with contractual relations. Following a bench 1 trial, the trial court found that Mr. Bourgeois had committed the tort of intentional interference with the
contractual relationship between the Whalens and the Bones. The court further found that because the purchase and sales contract between the plaintiffs and Mr. Bourgeois had been completed at closing, Mr. Bourgeois did not breach that contract but did intentionally commit egregious acts by, inter alia, demanding the deed from the title company. The court awarded the Whalens $110,000.00 in compensatory damages, $14,736.99 in prejudgment interest, and $55,000.00 in punitive damages. The court awarded the Bones $76,733.50 in compensatory damages and $40,000.00 in punitive damages.

A Shelby County jury convicted the Defendant, Jermaine Davis, of nine counts of aggravated rape, and the trial court ordered him to serve an effective sentence of seventy-five years in the Tennessee Department of Correction. On appeal, the Defendant contends that: (1) the trial court committed plain error when it included “recklessness” in the definition of aggravated rape in the jury instruction; (2) the trial court committed plain error by failing to instruct the jury on voluntary intoxication; (3) the trial court committed plain error by failing to compel the State to elect facts to support three of the counts charged; (4) the evidence is insufficient to sustain his convictions; (5) the trial court erred when it sentenced the Defendant by ordering him to serve twenty-five years for each of the convictions and by imposing partial consecutive sentencing. After a thorough review of the record and applicable authorities, we affirm the judgments of the trial court.

The defendants, Charles Hampton and Deanthony Perry, were convicted by a Shelby County Criminal Court jury of first degree premeditated murder and sentenced to life imprisonment. In this consolidated appeal, Defendant Perry argues that the trial court committed plain error by failing to instruct the jury that Ladarrius Borrum was an accomplice as a matter of law and that the evidence presented at trial is insufficient to sustain his conviction for first degree murder. Defendant Hampton argues that the trial court erred in denying his right to compulsory process and excluding relevant evidence, as well as challenges the sufficiency of the evidence convicting him of first degree murder. After review, we affirm the judgments of the trial court.

Homeowners association brought declaratory judgment action against homeowners to enforce the development’s restrictive covenants. The trial court determined that the homeowners association’s architectural review committee (“ARC”) acted within its discretion in ordering homeowners to remove improvements the ARC found to be inconsistent with other homes in the neighborhood. We affirm.

Appellant, Kenneth Krasovic, was charged with one count of vehicular homicide by reckless conduct and five counts of reckless endangerment with a deadly weapon stemming from an automobile crash that occurred in Grundy County.  The jury found Appellant guilty on all counts and the trial court sentenced Appellant to a total effective sentence of twelve years and six months.  Appellant filed a motion for a new trial which was denied after a hearing.  Appellant then filed this appeal, arguing (1) that the evidence was insufficient to support the convictions, and (2) that the trial court improperly limited counsel’s closing argument as to the defense of “sudden emergency.”  Upon review of the record, we find that the evidence presented at trial was sufficient to support the convictions and that there was no improper limitation of defense counsel’s closing argument.  We affirm the decision of the trial court.

This is an appeal from a bench trial in a suit over the sale of a used vehicle. The trial court originally ruled in favor of the seller-defendants, finding that the plaintiff-buyer failed to meet his burden of proving fraud or misrepresentation in the sale of the vehicle. The court found that defendant-sellers had violated one subsection of the Tennessee Consumer Protection Act, but that plaintiff-buyer had failed to prove any actual damages, so the trial court dismissed the complaint. Upon considering the plaintiff-buyer’s motion to alter or amend, the trial court changed its original decision and found that the defendant-sellers had engaged in fraud, and the court rescinded the sale of the vehicle. Upon considering plaintiffbuyer’s second motion to alter or amend, the trial court clarified its ruling and awarded attorney’s fees to the plaintiff-buyer. Both parties appeal. For the following reasons, we reverse the trial court’s decision, reinstate its original ruling, and remand for further proceedings consistent with this opinion.

The jury found that Defendants were liable for damages arising from breach of contract and that Plaintiff was liable for damages arising from negligence. It also found that Defendants were entitled to treble damages under Tennessee Code Annotated § 62-2-503. Plaintiff appeals. Finding material evidence to support the jury verdict, we affirm.

The Petitioner, Michael Daniels, appeals the Hamilton County Criminal Court’s denial of post-conviction relief from his convictions for first degree murder and conspiracy to commit first degree murder. On appeal, the Petitioner argues that he received ineffective assistance of counsel. Upon review, we affirm the judgment of the post-conviction court.

I concur fully with the result reached in this case and agree with virtually all of the analysis. I write separately only to draw out and emphasize a couple of issues.

Petitioner, Marvin Green, appeals the Lauderdale County Circuit Court's summary dismissal of his petition for habeas corpus relief in which he alleged that an insufficient indictment and an improper offense classification rendered his conviction void. Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition for habeas corpus relief and that this case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the judgment of the trial court is affirmed.