APPELLATE COURT OPINIONS

This is an appeal from the circuit court’s dismissal of Appellant’s appeal from general sessions court. Upon filing the appeal, Appellant paid costs in the general sessions court pursuant to Tennessee Code Annotated Section 8–21–401(b)(1)(C)(i), but did not submit a surety bond under Tennessee Code Annotated Section 27-5-103. The circuit court held that failure to post the surety bond under Section 27-5-103 resulted in a lack of subject matter jurisdiction in the circuit court. Accordingly, the trial court granted Appellees’s motion to dismiss the appeal for lack of subject matter jurisdiction. Based upon this Court’s recent decision in Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013), we reverse the dismissal and remand for further proceedings.

Appellant, Michael Fields, was indicted by the Sullivan County Grand Jury for two counts of first degree murder, two counts of first degree felony murder, and two counts of especially aggravated robbery. After a jury trial, he was convicted as charged. The jury determined that the sentence for the first degree murder counts should be life without parole. The trial court merged the first degree murder convictions into the first degree felony murder convictions. The trial court imposed a twenty-five-year sentence for each especially aggravated robbery conviction. The twenty-five-year sentences were ordered to run concurrently to the life sentences. The two life sentences were ordered to run consecutively to each other and consecutively to a previously imposed sentence of life plus forty years. Appellant presents several arguments on appeal: (1) the trial court erred in denying his motion to change venue; (2) the trial court erred in denying his request for the trial judge to recuse himself; (3) the trial court erred in denying his motion for a mistrial when there was juror contact with the prosecuting officer; (4) there was prosecutorial misconduct during closing argument; (5) the trial court erred in denying his motion to suppress his statement to police; (6) the trial court erred in excluding the testimony of Appellant’s proffered expert witness, Dr. Charlton Stanley; (7) the trial court erred in allowing the use of a stun belt on Appellant during the trial; (8) the trial court erred in denying his motion for judgment of acquittal; (9) the evidence was insufficient to support his convictions; and (10) the trial court erred in imposing the sentence for especially aggravated robbery and in ordering consecutive sentences. Appellant argues several smaller miscellaneous issues concerning evidentiary rulings, closing argument of the State, the denial of his request to have both of his attorneys present separate closing arguments, the denial of funds to pay an expert witness, and the failure to assure that Appellant received his prescribed medication in jail. After a thorough review of the record, we find no error. Therefore, the judgments of the trial court are affirmed.

This case involves the construction of the parties’ marital dissolution agreement. Father appeals the transfer of his case from circuit court to chancery court, the trial court’s dismissal of his petition for a declaratory judgment, and the trial court’s ruling finding him in breach of the post-majority support provision of the marital dissolution agreement and awarding Mother attorney fees. We reverse as to the attorney fee award, but affirm as to the remainder.

This appeal involves the interpretation of a commercial lease. The lease gave the plaintiff tenant two successive options to extend the term of the lease, provided the tenant gave timely notice of its intent to exercise the renewal option. The tenant exercised the first renewal option, but did not give timely notice of intent to exercise the second option. The lease also contained language giving the tenant a grace period to exercise the option if the lessor gave notice that the lessor had not received notice of renewal. The lessor did not give the written notice to the tenant. The tenant filed a lawsuit against the defendant lessor, seeking a declaratory judgment and damages for breach of contract. The plaintiff tenant asserted in the lawsuit that the tenant had the grace period to exercise the renewal option because the lease required the lessor to give written notice, and the lessor had failed to do so. Both parties filed dispositive motions based on their interpretations of the lease. Construing the lease, the trial court held that the grace period was never triggered so the tenant’s renewal option lapsed and granted a judgment in favor of the lessor. The tenant appeals. Discerning no error, we affirm.

This is divorce case pertaining to the marriage of Carrie Mobley (“Mother”) and Mark Adam Mobley (“Father”). The parties were married for 15 years. They have three minor daughters (collectively “Children”). Following a two-day trial, the court divorced the parties, divided their marital property, and made decrees regarding the custody of the Children. With respect to the Children, the trial court designated Father as the primary residential parent; it then ordered a 50/50 shared residential parenting arrangement. Following the divorce, the court found Mother to be in willful contempt of multiple provisions of its judgment. It sentenced her to ten days in jail on each of five counts. The court suspended the sentences on condition that there be no further violations. Mother appeals. She challenges the trial court’s judgment as to (1) the designation of Father as the primary residential parent, (2) portions of the residential parenting schedule, and (3) the inclusion of a “paramour provision” in the divorce judgment. In addition, she appeals the contempt findings, sentences, and award of fees to Father on the contempt proceedings. We reverse in part and affirm in part.

Brian Kerr ("the Defendant") was convicted after a jury trial of driving under the influence, reckless driving, and failure to maintain his lane of travel. The trial court also found that the Defendant had violated the implied consent law. Following a sentencing hearing, the trial court sentenced the Defendant to an effective sentence of eleven months, twenty-nine days, suspended to probation after service of ten days in confinement. The Defendant appeals, challenging the sufficiency of the evidence for each conviction. The Defendant also contends that the trial court erred in instructing the jury regarding the Defendant’s failure to submit to a blood alcohol test when the trial court had not yet ruled on whether the Defendant violated the implied consent law. Lastly, the Defendant contends that, if the trial court first rules that a defendant violated the implied consent law and then gives the jury instruction regarding the defendant’s failure to submit to a blood alcohol test, the trial court is indirectly commenting on the evidence in violation of Article VI, Section 9 of the Tennessee Constitution. Upon our thorough review of the record, we affirm the Defendant’s convictions for driving under the influence and failure to maintain his lane of travel. However, we reverse and dismiss the Defendant’s conviction for reckless driving.

A Davidson County jury convicted the defendants, James L. Dowell, III, and Rivera L. Peoples, of five counts of aggravated robbery and five counts of especially aggravated kidnapping. The trial court sentenced each defendant to an effective sentence of 100 years in the Tennessee Department of Correction. On appeal, Defendant Dowell asserts that the trial court erred when it: (1) denied his motion to dismiss for breach of an immunity "Cooperation" agreement with the State; (2) admitted into evidence a form in which Defendant Peoples disclosed Defendant Dowell’s phone number; (3) admitted into evidence items obtained from Defendant Peoples’s Chevrolet Impala; (4) allowed Agent Richard Littlehale to testify as an expert witness; (5) denied his motion for acquittal; (6) failed to define "substantial interference" for the jury; and (7) imposed a sentence of 100 years. Defendant Peoples asserts that: (1) the evidence is insufficient as to his convictions; (2) the trial court erred when it allowed Agent Richard Littlehale testify as an expert witness; (3) the trial court erred when it failed to define "substantial interference" for the jury; and (4) his sentence is excessive. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

In this condemnation action, the condemning authority appeals the jury’s valuation of property taken and award of compensation to landowner. Finding that the valuation of the property is within the range of opinions of fair market value testified to at trial, that the jury was properly instructed, and that the court’s conduct of the trial was proper, we affirm the judgment entered upon the jury’s verdict.

This appeal concerns an overcollection of child support by the State in a Title IV-D matter. Anthony Phillips (“Father”) and Suzanna R. Phillips (“Mother”) divorced, and Father was ordered to pay child support. Later, Father’s child support obligation was suspended on account of his disability status. The State of Tennessee (“the State”) garnished Father’s Social Security checks to satisfy an arrearage. The Chancery Court for Monroe County (“the Trial Court”) found that Father had paid his arrears and, in fact, had overpaid. The Trial Court ordered the State to reimburse Father the overpayment and to pursue Mother for the overpayment sum. The State appeals, arguing that the Trial Court lacked authority because of the State’s sovereign immunity to render such an order. We affirm as modified.

I write separately to address two issues. The first pertains to jury instruction T.P.I. 11.15 and the failure to give a curative instruction when requested by the jury.

The Petitioner, John Joseph Kratochvil, appeals the Davidson County Criminal Court’s denial of his petition for a writ of error coram nobis regarding his conviction for second degree murder, for which he is serving a Range II, thirty-five year sentence. The Petitioner contends that the trial court erred by denying him relief. We affirm the judgment of the trial court.

Mother appeals the trial court’s termination of her parental rights with respect to the six children at issue in this appeal. She concedes that grounds exist for termination, but she claims that termination is not in the children’s best interest. We affirm the decision of the trial court.

Purchaser of land brought action to recover damages for shortage in acreage and road frontage of property purchased; sellers contended that sale was in gross rather than by acre. Trial court determined that there was a discrepancy between the amount of land both parties thought was being sold and the amount determined by a survey to have been sold, and that sellers did not own land which would provide access to the property; accordingly, it granted purchaser judgment for the discrepancy in the amount of land conveyed. Discerning no error, we affirm the judgment.

Petitioner, Quantel Taylor, appeals from the denial of his petition for post-conviction relief. Petitioner entered “best interest” guilty pleas to second degree murder, attempted first degree murder, and especially aggravated robbery, and received agreed upon sentences of 20 years for each offense to be served concurrently at 100 percent. In this direct appeal, Petitioner asserts that the trial court erred by denying post-conviction relief because Petitioner’s trial counsel was ineffective and his plea was involuntarily and unknowingly entered. The post-conviction court erred by granting the State’s prehearing motion to quash subpoenas and by refusing to allow Petitioner to present an offer of proof at that hearing. However, in light of the proof at the post-conviction hearing the error, though flagrant, was harmless. The judgment is therefore affirmed.

The petitioners are holders of special use permits issued by the federal government allowing them to own and use for non-commercial recreational purposes certain improvements on federally-owned national forest land. The Polk County tax assessor valued and assessed the petitioners’ interests in the properties as leasehold interests. The Petitioners brought this action challenging their real estate tax assessments. The issues presented include whether the appraisal methodology used in valuing the petitioners’ leasehold interests violated the governing leasehold valuation statute, Tennessee Code Annotated § 67-5-605, and whether the petitioners should receive an offsetting tax credit for monies allegedly paid by the federal government to Polk County pursuant to 16 U.S.C. § 500. We affirm the judgment of the trial court holding that the appraisal methodology violated the statute by arbitrarily applying a static 99-year term when the express term of the special use permits was less than seven years during the tax years in question, 2003 through 2008. We reverse the trial court’s judgment ordering the tax assessor to allow an offsetting credit because the petitioners have cited no legal authority requiring or permitting such a result. The case is remanded with instructions to the Polk County Tax Assessor to reassess the petitioners’ leasehold interests for the years 2003 through 2008 in a manner consistent with this opinion.

In this workers’ compensation action, the employee suffered a compensable back injury. Surgery did not relieve his symptoms of severe pain. The trial court awarded 84% permanent partial disability benefits. The employer filed a motion to set aside the judgment based on the employee’s alleged failure to supplement his discovery responses. The trial court denied the motion. The employer has appealed, contending that the award is excessive and that the trial court erred by denying its post-trial motion. The appeal has been 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 affirm the judgment of the trial court.

This is the second appeal of this case, involving the question of whether Appellant acted in good faith in seeking to enforce an arbitration clause in a consulting contract, which was entered by and between Appellant and Appellee. The trial court determined that Appellant failed to act in good faith in unilaterally demanding arbitration in a forum of its choice, in setting an arbitrary deadline, and then in unilaterally accelerating the deadline. We affirm the decision of the trial court that Appellant breached the duty of good faith and remand with instructions to consider whether Appellant’s lack of good faith operates as a waiver of its right to seek arbitration pursuant to the contract.

The defendant, Kevin James Callahan, pleaded guilty to one count of delivery of Percocet and one count of delivery of Oxycodone, both Schedule II controlled substances, and the Williamson County Circuit Court sentenced him as a Range I, standard offender to concurrent terms of four years’ imprisonment, suspended to probation following the service of six months’ incarceration in the county jail. On appeal, the defendant argues that the sentence imposed was excessive in manner of service. Discerning no error, we affirm the judgments of the trial court.

The trial court granted summary judgment to a judgment creditor of the decedent’s estate on a claim that the decedent fraudulently deeded an interest in real property to his wife so she would receive it free from the claims of his legitimate creditors after his death. The trial court’s judgment was based on circumstances surrounding the property transfer that satisfied the elements of fraudulent conveyance under both Tenn. Code Ann. § 66-3-305(a)(1) and (a)(2). The widow denies that there was any fraudulent intent behind the transfer of the disputed property to her, but insists that it arose naturally from the love and affection that existed between husband and wife. We affirm the trial court.

The Petitioner, Sidney Cason, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his convictions of second degree murder and especially aggravated robbery and resulting effective sentence of forty years in confinement. On appeal, the Petitioner contends that he received the ineffective assistance of trial counsel, which resulted in his guilty pleas being unknowing and involuntary. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Mother appeals the termination of her parental rights for abandonment by willful failure to visit, contending that her failure to visit the children was not willful and that termination of her parental rights was not in the children’s best interest. Discerning no error, we affirm the judgment terminating her parental rights.

This is an appeal from a judgment in a contested divorce. After a trial of approximately one week, the court entered a judgment that, with regard to the issues on appeal: (1) split the family by making Angelia Lynette Maupin (“Mother”) the primary residential parent of the parties’ daughter and designating Paul Wayne Maupin (“Father”) the primary residential parent of the parties’ two sons; (2) ordered Mother to pay prospective child support ; and (3) awarded the marital residence to Father and made him solely responsible for the debt securedby the residence, and ordered Mother to pay half of any deficiency balance in the event of a foreclosure. On Father’s motion to alter or amend, the court made the child support obligation retroactive to the date of the parties’ separation. The record shows that Mother has been unable to spend any individual parenting time with her sons since the parties separated in April 2009. Mother appeals. We reverse that portion of the trial court’s judgment ordering that Mother shall be responsible for paying half of any deficiency in the event of a foreclosure. We modify the trial court’s judgment to provide for family counseling. In all other respects, the trial court’s judgment is affirmed.

Following a traffic stop on Interstate 40, Appellant, Edward Shawndale Robinson, was indicted by the Hickman County Grand Jury in August of 2009 for possession of more than ten pounds of marijuana with the intent to deliver and following traffic too closely. Appellant sought unsuccessfully to have evidence seized from him suppressed prior to trial. After a jury trial, Appellant was convicted of possession of more than ten pounds of marijuana and sentenced to six years as a Range II, multiple offender. Appellant presents the following issues for our review on appeal: (1) whether Appellant received a fair and impartial jury; (2) whether the stop and subsequent search of Appellant’s vehicle was valid; and (3) whether Appellant received ineffective assistance of counsel at trial. After a review of the law and applicable authorities, we conclude Appellant’s failure to include transcripts of the hearing on the motion for new trial and hearing on the motion to suppress results in a waiver of the issues raised on appeal. Further, Appellant has failed to show plain error that would result in our review of the issues despite the waiver. Accordingly, the judgment of the trial court is affirmed.

This action against David Higgins (“the Instructor”) and his employer, the Knox County Board of Education (“KCBE”), is based upon events that occurred while the plaintiff Jane Doe (“the Student”) was a freshman ROTC student at West High School in Knoxville. In simple terms, the Instructor allowed the Student and other female ROTC students to drink alcohol to the point of intoxication and, while they were intoxicated, he persuaded them to expose their breasts. The Student reported the episodes to the school and her parents when the Instructor’s demands escalated to the point that he repeatedly encouraged the Student to allow him to film her and others in a sexual “threesome.” The case went to trial. The claims against the Instructor were tried to a jury. The claims against KCBE pursuant to the Governmental Tort Liability Act (“the GTLA”) were heard simultaneously by the trial court. The jury awarded the Student damages against the Instructor in the amount of $65,000 for negligent infliction of emotional distress. It rejected the claim of intentional infliction of emotional distress. The portion of the court’s judgment pertaining to the claims against the Instructor is not at issue in this appeal. The trial court determined that KCBE was not liable for the Instructor’s actions because the court concluded he was acting outside the scope of his employment. The court further determined that there was no negligence upon which liability as to KCBE could be imposed. After the judgment was entered, the Student learned that the trial judge’s wife was a retired employee of KCBE. On that basis, the Student moved the court to recuse itself and award her a new trial. The court denied the Student’s post-trial motion. The Student appeals only as to the claims against KCBE. We affirm.

Appellant, William Lance Walker, was indicted by the Marshall County Grand Jury with one count of the sale of .5 grams or more of cocaine and one count of the delivery of .5 grams or more of cocaine. After a jury trial, Appellant was convicted as charged. As a result, the trial court merged the two offenses and sentenced Appellant to a term of twelve years, to be served consecutively to Appellant’s sentence in a previous case, for a total effective sentence of forty-seven years. After a motion for new trial and a hearing on the motion, the trial court amended Appellant’s sentence from twelve years to twenty years but ordered it to run consecutively to a prior sixteen-year parole violation but concurrently with a prior nineteen-year sentence, for a total effective sentence of thirty-six years. On appeal, Appellant claims that the evidence was insufficient, the trial court erred in denying a mistrial after a witness made reference to his incarceration, and that his sentence is excessive. After a review of applicable authorities and the record, we conclude that the evidence was sufficient to support the convictions; the trial court did not abuse its discretion in denying a mistrial where the Appellant elicited the claimed offending testimony, the proof against Appellant was strong and Appellant rejected a curative instruction. We also determine that the trial court did not abuse its discretion in sentencing Appellant where Appellant’s sentence is within the appropriate range and the record demonstrates that the sentence is otherwise in compliance with the purposes and principles listed by statute. Finally, we note that the record does not appear to contain amended judgment forms to reflect the trial court’s amendment to Appellant’s sentence at the hearing on the motion for new trial. Consequently, the judgments of the trial court are affirmed, but the matter is remanded to the trial court for entry of corrected judgments.