APPELLATE COURT OPINIONS

Defendant, Johnny DeWayne Boyd, was convicted by a jury of rape of a child and incest. The trial court imposed an effective thirty-year sentence in the Department of Correction. On appeal, Defendant contends (1) the trial court erred in denying his motion to dismiss due to the State’s failure to file a bill of particulars, and (2) that the trial court abused its discretion in denying Defendant’s motion to continue trial after a court security officer tested positive for COVID-19 and by failing to comply with the Tennessee Supreme Court’s Order on COVID-19 protocol. Following a review of the record, the briefs and oral arguments of the parties, we affirm the judgments of the trial court.

This is an employment discrimination case. The plaintiff, a female secretary at a high
school, sued the county school board for discrimination alleging that she was terminated
because of her sex in violation of the Tennessee Human Rights Act. Following a bench
trial, the trial court held in favor of the plaintiff and awarded damages. The school board
appeals, asserting that the plaintiff failed to make out a prima facie case of discrimination.
We have determined that the plaintiff failed to identify a “similarly situated” employee and
therefore failed to make out a prima facie case of sex discrimination. We reverse the
judgment of the trial court.

Because the notice of appeal was not timely filed, this Court lacks jurisdiction to consider
this appeal.

A mother and father appeal the termination of their parental rights to two children. The trial court concluded that the petitioner proved five statutory grounds for termination by clear and convincing evidence. The court also concluded that there was clear and convincing evidence that termination was in the children’s best interest. After a thorough review, we agree that clear and convincing evidence supports three grounds for termination and that termination was in the children’s best interest. So we affirm.

Defendant, Juan Lasean Perry, appeals the denial of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct an illegal sentence. Discerning no error, we affirm.

In this case, prospective adoptive parents Whayne D., Lauren D., James K., and Heather K.1 (“Petitioners”) filed a petition to terminate the parental rights of Miya M. (“Mother”) to two of her minor children. They alleged these grounds: (1) abandonment by failure to visit; (2) abandonment by failure to financially support the children; (3) abandonment by failure to provide a suitable home; (4) persistence of the conditions that led to the children’s removal; and (5) failure to manifest an ability and willingness to assume custody of the children. The trial court found that Petitioners established four of the five alleged grounds for termination by clear and convincing evidence and that termination of parental rights was in the children’s best interest. We reverse the trial court’s holding that Petitioners established the ground of abandonment by failure to provide a suitable home, and affirm the judgment of the trial court in all other respects, including its ultimate ruling terminating Mother’s parental rights.

The Petitioner, Cody Ricky Cofer, was convicted in the Cumberland County Criminal
Court of two counts of first degree felony murder and one count of attempted especially
aggravated robbery and received an effective sentence of two consecutive life terms. The
Petitioner filed a petition for writ of error coram nobis based on newly discovered evidence,
and the coram nobis court denied the petition without a hearing because the petition was
untimely. On appeal, the Petitioner claims that the coram nobis court erred by summarily
denying the petition without first considering whether the statute of limitations should be
tolled on due process grounds. The State argues that we should dismiss the appeal because
the Petitioner’s notice of appeal also was untimely. Based upon the oral arguments, the
record, and the parties’ briefs, we agree with the State and conclude that the appeal should
be dismissed.

A Madison County jury found the Defendant, Montreal Portis Robinson, guilty of felony
murder in the perpetration of a theft, especially aggravated kidnapping, robbery, and theft
of property. On appeal, the Defendant argues that the evidence is insufficient to sustain
his convictions. We conclude that the evidence is sufficient to support the Defendant’s
convictions for especially aggravated kidnapping and robbery. However, we also conclude
that the evidence is insufficient to support the Defendant’s convictions for theft and felony
murder in the perpetration of a theft. Accordingly, we dismiss the theft charge, and we
modify the Defendant’s conviction for felony murder to that of second degree murder as a
lesser-included offense. We respectfully remand the case for further proceedings
consistent with this opinion, including the entry of a modified judgment and a sentencing
hearing on the conviction for second degree murder.

Defendant, Lester Tolliver, appeals as of right from his jury conviction for aggravated rape,
for which he received a sentence of twenty-five years. On appeal, Defendant contends that
the evidence was insufficient to support his conviction and that the trial court erred by (1)
admitting hearsay statements, specifically the victim’s reporting the rape to a friend and
the victim’s statement to a police officer; (2) admitting the victim’s testimony that she had
been sexually assaulted previously; (3) admitting testimony from an expert witness
regarding why a victim might lie about having had sexual activity in the days preceding a
sexual assault; and (4) denying Defendant’s request for a special jury instruction.
Following our review, we affirm.

The Petitioner, Tyler D. Bolton, appeals the Washington County Criminal Court’s denial of his petition for post-conviction relief from his guilty-pleaded convictions for possession of twenty-six grams or more of methamphetamine with intent to sell, unlawful possession of a firearm, and two counts of aggravated burglary.  On appeal, the Petitioner argues that the post-conviction court erred by denying his motion in limine to exclude jail call recordings from the post-conviction hearing.  The Petitioner also argues that the post-conviction court erred by denying relief on his claims alleging that he received the ineffective assistance of trial counsel by trial counsel’s failing to adequately investigate the Petitioner’s mental health history and request a mental health evaluation prior to advising him to accept a plea offer.  We affirm the judgment of the post-conviction court.

In this case involving a petition to terminate the mother’s parental rights to her child and
to allow the petitioners to adopt the child, the trial court determined that one statutory
ground for termination had been proven by clear and convincing evidence. However, the
trial court further determined that the petitioners had failed to establish clear and
convincing evidence that termination of the mother’s parental rights was in the child’s
best interest. The trial court accordingly dismissed the petition and remanded to the
juvenile court’s protective jurisdiction. The petitioners have appealed the best interest
determination, and the mother has raised an issue regarding the statutory ground. We
affirm the trial court’s finding as to the statutory ground of failure to support. However,
having determined that under the facts of this case the trial court erred in applying the
statutory best interest factors applicable to the initial termination petition rather than
those applicable to the amended petition, we reverse the trial court’s best interest finding
and remand for reconsideration applying the amended best interest factors contained in
Tennessee Code Annotated § 36-1-113(i) (Supp. 2022).

This appeal arises from a suit to rescind a contract for the sale of a home due to fraud. The
trial court found clear and convincing evidence of fraud justifying rescission. It ordered
the buyer to convey the property back to the sellers, with the sellers returning the purchase
price, minus the fair rental value of the property, with a credit to the buyer for various
expenses he had incurred. However, the trial court declined to award any offset to the
buyer for improvements he had made to the property. It also declined to award punitive
damages but did award the buyer attorney fees. Taken together, the parties present twentyfive issues for review on appeal. We vacate in part, reverse in part, and remand for further
proceedings.

Plaintiff alleges she was injured from a fall at a skilled nursing facility while using a defective shower chair with a broken lock and torn netting. The circuit court concluded the Plaintiff did not need to file a certificate of good faith under the Tennessee Health Care Liability Act because the common knowledge exception is applicable and the complaint’s negligence allegations do not require expert testimony. The nursing facility appeals, arguing expert testimony is required to establish both the standard of care and proximate causation; therefore, a certificate of good faith must be filed. Because the allegations set forth in the complaint do not require expert testimony to maintain the Plaintiff’s claim, we affirm the circuit court’s judgment.

The Defendant, Antwain Tapaige Sales, appeals the Bedford County Circuit Court’s order dismissing his claim that his judgments of conviction for second degree murder and attempted second degree murder are fraudulent and void. After review, we conclude that the appeal should be dismissed.

The plaintiffs, Martina and Eddie Smith (“Buyers”), filed suit in the Madison County
Circuit Court (“Trial Court”) regarding their purchase of a piece of real property from the
defendant, Donna Jean Walker (“Seller”). Buyers alleged intentional misrepresentation,
negligent misrepresentation, and failure to disclose the presence of mold within the home.
The Trial Court granted summary judgment in favor of Seller. Buyers previously filed an
appeal to this Court regarding the grant of summary judgment. During that appeal, this
Court held that the Trial Court had not provided a sufficient basis for granting Seller’s
motion for summary judgment and remanded for entry of a new order explaining its
reasoning. Thereafter, the Trial Court entered a revised order providing detailed reasoning
for its grant of summary judgment in favor of Seller on each of Buyers’ claims against her.
Buyers timely appealed the revised order to this Court. During this second appeal, Buyers
filed essentially the same brief as in the previous appeal despite entry of the Trial Court’s
revised order following remand. Because Buyers failed to address the revised order in their
appellate brief and failed to cite to the record submitted to this Court in this appeal, Buyers
waived their issues for appeal by failing to comply with Tenn. R. App. P. 27 and Tenn. Ct.
App. R. 6. We, therefore, affirm the judgment of the Trial Court in its entirety.

The Defendant, Frank M. Green, was convicted by a Davidson County Criminal Court jury of rape in Counts 1 and 3 and assault by extremely offensive or provocative physical contact in Counts 2 and 4 and was acquitted of the charge of aggravated kidnapping in Count 5. The Defendant filed a post-trial motion for judgment of acquittal as to the rape conviction in Count 3 and the assault conviction in Count 4. The trial court denied this motion but merged Count 3 with Count 1 and merged Count 4 with Count 2. Following a sentencing hearing, the trial court imposed a sentence of ten years for each of the rape convictions and a sentence of eleven months and twenty-nine days for each of the assault convictions and ordered the rape and assault convictions served concurrently, for an effective sentence of ten years. On appeal, the Defendant argues: (1) the State’s faulty election of offenses led the trial court to provide erroneous and misleading jury instructions, which undermined the integrity of the jury’s verdict; (2) the evidence is insufficient to sustain the convictions in count 3 for rape and count 4 for assault; and (3) the convictions in Counts 2 and 4 reflect the incorrect offense class and sentence. Because the State failed to demonstrate beyond a reasonable doubt that errors regarding the election, the charge, and the supplemental jury instructions were harmless, we reverse the Defendant’s convictions and remand the case for a new trial on the offenses of rape in Counts 1 and 3 and the offenses of assault by extremely offensive or provocative physical contact in Counts 2 and 4.

I agree with the majority’s conclusion that the State’s election of the offenses was flawed and that the trial court erred in instructing the jury pursuant to the State’s faulty election. Cf. State v. Ellis, 89 S.W.3d 584, 596 (Tenn. Crim. App. 2000) (“[B]ecause the election requirement is ‘fundamental, immediately touching the constitutional rights of an accused,’ a trial court has a duty even absent a request by the defendant to ensure the timely election of offenses by the State and to properly instruct the jury concerning the requirement of a unanimous verdict.” (quoting Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973)). I part ways with the majority regarding the remedy to which the Defendant is entitled for the double jeopardy issue which resulted from the State’s flawed election and the court’s reliance upon the election in its jury instructions.

Michael Mosley, Defendant, claims the evidence was insufficient to support his conviction of attempted aggravated assault, that the trial court erred by not requiring the State to make an election as to the precise definition of serious bodily injury for which a conviction was being sought, and that the trial court erred by denying Defendant’s request for two special jury instructions. Discerning no error, we affirm the judgment of the trial court.

This is a conservatorship action initiated by University of Tennessee Medical Center with
respect to one of its patients. The trial court granted the hospital’s petition for
conservatorship based in part on a physician’s affidavit and medical examination report
attached to its petition. The respondent has appealed, arguing that the trial court erred by
considering the physician’s affidavit and report, by denying her motion for a continuance,
and by finding clear and convincing evidence that she was disabled and in need of a
conservator. Given that no party introduced the physician’s affidavit and report into
evidence, we conclude that the trial court erred by considering these documents as
evidence. We further conclude that the trial court’s final judgment is deficient due to its
dearth of factual findings. We therefore vacate the trial court’s judgment appointing a
conservator for the respondent and remand for a new hearing on the petition.

This appeal concerns a father’s continued failure to remit payment for his child support
obligation. Following the mother’s contempt petitions, the trial court determined the
father’s current child support obligation and arrearage amount and awarded the mother her
attorney fees. The father appeals arguing that the trial court lacked subject matter
jurisdiction, erred in awarding the mother attorney fees, and erred in setting the arrearage
payment amount. We affirm the trial court’s rulings on these issues.

A Sumner County jury convicted the defendant, Steven Lamont Anderson, of unlawful possession of a firearm after being convicted of a felony involving violence and unlawful possession of a handgun by a convicted felon, for which he received an agreed-upon sentence of twelve years in confinement. On appeal, the defendant contends the evidence presented at trial was insufficient to support his convictions. The defendant also argues the trial court erred in denying his motion to suppress and in sentencing the defendant as a Range II offender. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

The Defendant, Marlon Jackson, appeals the trial court’s revocation of his three-year
probationary sentence for attempted possession of methamphetamine with the intent to sell
or deliver. The trial court revoked the Defendant’s probation after determining that he
materially violated his probation sentence for engaging in criminal activity and being
charged with new offenses. On appeal, the Defendant asserts that the trial court abused its
discretion when it revoked his probation because the evidence to support the violation was
“inconclusive, contradictory, and based upon unreliable hearsay.” After review, we
conclude that the record supports the trial court’s finding that the Defendant violated the
terms of his probation sentence.

Fredrick Munn, Defendant, appeals from the Shelby County Criminal Court’s order
revoking his probation and ordering him to serve his original three-year sentence in
confinement. Upon review, we reverse the judgment of the trial court and remand for a
new revocation hearing.

This appeal arises from a health care liability action. The plaintiffs filed their complaint
against a physician and a surgical practice after the expiration of the statute of limitations,
relying on the 120-day extension under Tennessee Code Annotated section 29-26-121(c).
However, the physician was not employed by the surgical practice during the treatment at
issue but was employed by a governmental entity that was not named as a defendant. Both
the physician and the surgical practice filed motions to dismiss, which were ultimately
treated as motions for summary judgment due to consideration of matters outside the
pleadings. Afterward, the plaintiffs filed a motion for leave to amend their complaint to
substitute parties. Pursuant to section 29-20-310(b) of the Tennessee Governmental Tort
Liability Act, the trial court found that the plaintiffs had to sue the governmental entity in
order to sue the physician individually. The court found that the motion for leave to amend
the complaint was futile because the statute of limitations had run as to any claim against
the governmental entity. The court explained that any claim against the governmental
entity would be time-barred even if it related back to the date of the filing of the complaint.
The court further explained that the plaintiffs relied on the 120-day extension contained in
section 29-26-121(c) when they filed their complaint and that the extension did not apply
to any potential claim against the governmental entity because they failed to provide presuit
notice to it. The court also noted that the plaintiffs unduly delayed seeking to amend
their complaint despite being explicitly informed before filing their complaint who the
physician did and did not work for. Additionally, the court found that the surgical practice
was not involved in the treatment at issue and did not employ the physician or any of the
medical providers involved. Thus, the court found that the surgical practice negated an
essential element of the plaintiffs’ claim against it and demonstrated the evidence was
insufficient to establish such a claim. Accordingly, the court granted the defendants’
motions and denied the plaintiffs’ motion for leave to amend the complaint to substitute
parties. The plaintiffs appeal. We affirm.

Property owner sued owners of an adjacent property for damages allegedly caused by the installation of a pipe culvert. The plaintiff alleged that, due to improper installation, the pipe culvert obstructed the downstream flow of water and caused the plaintiff’s property to flood. Both sides filed cross-motions for summary judgment. The trial court granted summary judgment to the adjacent property owners based on the statute of repose for defective improvements to real property. We conclude that the statute of repose could not be asserted by the adjacent property owners. So we reverse the grant of summary judgment.