APPELLATE COURT OPINIONS

A law firm filed suit against a former partner and a former paralegal. Both former employees filed motions to compel arbitration. The trial court consolidated the cases and stayed discovery except as to the issue of whether the cases were subject to arbitration. Subsequently, the trial court ordered the parties to engage in mediation and to disclose “all necessary documents to conduct a meaningful attempt at resolution” despite the prior order limiting discovery. After the trial court denied their motion to vacate the order, the former partner and paralegal sought an extraordinary appeal to the Court of Appeals under Rule 10 of the Tennessee Rules of Appellate Procedure, which was denied. We granted extraordinary appeal. We hold that the trial court erred in ordering discovery without limiting the scope of discovery to the issue of arbitrability, in contravention of the unambiguous language of the Tennessee Uniform Arbitration Act, and erred in referring the parties to mediation in an effort to resolve all issues. We vacate the order of the trial court, and we remand the case to the trial court for a determination on the motions to compel arbitration.

The Petitioner, Sandra Beavers, pled guilty to sale or delivery of less than .5 gram of methamphetamine, a Schedule II controlled substance. Pursuant to the plea agreement, the trial court sentenced the Petitioner as a Range II offender to ten years, with one year to be served in confinement and the remainder on supervised probation. After her release from jail, the Petitioner violated a condition of her probation that required that she successfully complete the Next Door rehabilitation program, and the trial court revoked her probation. The Petitioner filed a petition for post-conviction relief claiming that she received the ineffective assistance of counsel due to her attorney’s failure to communicate with her and failure to request a bond hearing. After a hearing, the post-conviction court dismissed the petition. After a thorough review of the record and applicable authorities, we affirm the post-conviction court’s judgment.

Executrix of an estate filed a complaint against the officers of a corporation in an effort to pierce the corporate veil and recover a debt she alleges is due from the corporation to the estate of her late husband. The trial court granted her motion for summary judgment and awarded her a $52,000 judgment. The individuals appealed, asserting genuine issues of material fact should have precluded the trial court’s award. We conclude the trial court erred in awarding damages at the summary judgment stage because material facts are in dispute regarding whether a debt actually exists and regarding the amount of money that is at issue.
 

At the time of the parties’ divorce, both parties lived in Tennessee, and Mother was named primary residential parent. Shortly thereafter, Mother was allowed to relocate to Georgia with the children, and Father’s requests that he be named primary residential parent were denied. Following the move, the parties were unable to agree to a parenting plan, and the circuit court resolved the remaining parenting issues and transferred future disputes to Georgia. On appeal, the pro se parties raise numerous issues related to various decisions of the trial court. We affirm in part and we reverse in part, and we remand for further proceedings.

Brandon Trae Wagster (“the Defendant”) was indicted for driving under the influence and violation of the implied consent law. He filed a motion to suppress, challenging the legality of the stop of his vehicle. After an evidentiary hearing, the trial court granted the Defendant’s motion and dismissed the charges against him. The State appeals. After a thorough review of the record and the applicable law, we reverse the judgment of the trial court and reinstate the Defendant’s charges.

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.

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.

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.

On January 19, 2011, appellant, Benji L. Creech, pled guilty to selling oxycodone, a schedule II drug, in violation of Tennessee Code Annotated section 39-17-417. Appellant received a sentence of three years in the Tennessee Department of Correction, which was suspended to probation. On February 8, 2012, his probation was revoked. In lieu of serving his three-year sentence in the Department of Correction, appellant entered the drug court program. On June 14, 2012, appellant was summarily dismissed from the drug court program upon the allegation that he falsified a sponsor contact sheet. After a hearing on July 25, 2012, appellant’s probation was revoked again. On appeal, he argues that the evidence does not support the trial court’s decision to revoke his probation and serve his sentence in confinement. We disagree and affirm the trial court’s judgment.

A Montgomery County jury convicted the Petitioner, Clifford Eric Burgess, of five counts of rape of a child, a Class A felony. The trial court sentenced the Petitioner to an effective twenty-five-year sentence in the Department of Correction. The Petitioner appealed his convictions, and this Court affirmed the Petitioner’s convictions and sentences. See State v. Clifford Eric Burgess, M2008-01370-CCA-R3-CD, 2009 WL 2433059 (Tenn. Crim. App. at Nashville, Aug. 10, 2009), perm. app. denied (Tenn. July 20, 2009). The Petitioner timely filed a petition for post-conviction relief in which he claimed that he had received the ineffective assistance of counsel due to his attorney’s failure to have him evaluated for mental illness. After a hearing, the post-conviction court dismissed the petition. After a thorough review of the record and applicable authorities, we affirm the post-conviction court’s judgment.

This appeal involves whether a document purporting to be a joint will meets the statutory requirements for a valid will. The trial court concluded that the document did not meet the statutory requirements for probate, but did not indicate the statute to which it referred or the requirements that were not met. We are unable to effectively review the trial court’s decision and must remand for findings of fact and conclusions of law under Rule 52.01 of the Tennessee Rules of Civil Procedure.

This case presents the question of whether certain notes on a final subdivision plat constitute restrictive covenants, which prevent the purchasers of property in the subdivision from installing an experimental wetland sewage disposal system on their property or on an easement for the benefit of their property. The trial court concluded that the plat notes constitute restrictive covenants preventing the installation, and permanently enjoined the purchasers from installing or constructing such a system on their own property or on the easement. We affirm and remand.

This consolidated appeal concerns Director’s non-renewal of Teacher’s contract, his refusal to recommend her for tenure, and his refusal to schedule a hearing regarding his decision. Upon learning that she had not been recommended for tenure, that her contract would not be renewed, and that Director would not schedule a hearing with the Board, Teacher filed suit, alleging that Director’s actions were unlawful and beyond the scope of his duty and that the Board had abdicated its responsibility by allowing Director to act in such a manner. Likewise, Board Member filed suit, alleging that the Board abdicated its responsibilities and that Director’s actions were unlawful. The trial court initially ruled in favor of Teacher and Board Member; however, the court altered its judgment to hold that Teacher and Board Member did not have standing to bring their respective complaints. Teacher and Board Member appeal. We affirm the decision of the trial court.

The State of Tennessee Department of Children’s Services (“DCS”) filed a petition seeking to terminate the parental rights of Nicholas K.S. (“Father”) to the minor children, Brooklyn J.S., Bailey L.S., and Cadince N.S. (collectively “the Children”). After a trial the Juvenile Court terminated Father’s parental rights to the Children after finding and holding, inter alia, that clear and convincing evidence had been proven of grounds to terminate pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(iv), and that the termination was in the Children’s best interest. Father appeals the termination of his parental rights to this Court. We affirm.

This appeal arises out of the second consolidated case to be tried in a number of related cases involving accidents that occurred in Mexico and allegedly were caused by defective tires and/or vehicles. The trial judge denied the plaintiffs’ motion that he recuse himself. The motion was based upon allegations of the appearance of bias or prejudice. Having reviewed the filings in this appeal under the required de novo standard of review, we affirm the trial court’s denial of the motion.