APPELLATE COURT OPINIONS

The plaintiff purchased a house that was marketed by the defendant realtors. The house had been described as including over 5,800 square feet of living space. After the purchase, the plaintiff discovered that the actual square footage of the house was considerably less, depending on what was included. He sued for unfair or deceptive practices under the Tennessee Consumer Protection Act and for intentional misrepresentation. The trial court dismissed his complaint on summary judgment, and ordered the plaintiff to pay all the defendants' attorney fees. We affirm the dismissal, but modify the award of attorney fees.

Property owners filed suit against neighbors for trespass. Trial court entered judgment for plaintiffs in the amount of $13,740, applying the "mild rule" for calculation of damages for trespass. Trial court also made rulings establishing the boundary lines between property of plaintiffs and defendants, and confirmed the plaintiffs' continuing right of ingress and egress through defendant's property to their own property. On appeal, plaintiffs contend that trial court erred in failing to award damages based on "harsh rule" rather than mild rule; in failing to find that the boundary lines were in keeping with plaintiffs' expert's survey; and in granting summary judgment to defendant water utility district. We conclude that the trial court erred in granting summary judgment to the water utility district. In all other respects, we affirm.

A jury convicted the defendant, Steven Ray Thacker, of first degree murder. Following a capital sentencing hearing, the jury found two aggravating circumstances: (1) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant; and (2) the murder was knowingly committed by the defendant while the defendant had a substantial role in committing, or was fleeing after having a substantial role in committing, a first degree murder, rape, robbery, burglary, theft or kidnapping. Tenn. Code Ann. § 39-13-204(i)(6), (7)(1997). The jury also found that these aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. Accordingly, the jury imposed a sentence of death. The Court of Criminal Appeals affirmed both the conviction and sentence. Upon automatic appeal pursuant to Tennessee Code Annotated section 39-13-206 (2003) this Court entered an order specifying five issues for oral argument,1 including (1) whether the evidence is sufficient to support the conviction; (2) whether the trial court erred in limiting the testimony of Dr. Keith Caruso, a forensic psychiatrist, at the sentencing hearing; (3) whether the trial court committed reversible error when it refused to instruct on the defendant’s “history of abuse and neglect” as a non-statutory mitigating circumstance; (4) whether the State improperly relied upon aggravating circumstance (i)(6) to support the death penalty; and (5) whether the death sentence is comparatively proportionate and valid under the mandatory review provisions of Tennessee Code Annotated section 39-13-206(c)(1)(A)-(D) (2003). After a careful review of the record  and relevant legal authority, we affirm the judgment of the Court of Criminal Appeals.

This appeal involves a dispute between a former employee and her employer. Becky Elliott filed suit in Blount County Circuit Court alleging that Donna Akey failed to properly train and supervise employees at her restaurant in Loudon County, Tennessee resulting in an unsafe workplace. Because the workplace was unsafe, Ms. Elliott claims she had to quit her job and was damaged. According to the complaint, the Plaintiff resided in Blount County, the Defendant resided and operated the business in Loudon County, and the cause of action arose in Loudon County. The trial court granted the Defendant's motion to dismiss for improper venue and awarded sanctions to the Defendant. After careful review, we hold that 1) the trial court properly granted the Defendant's motion to dismiss for improper venue, 2) the trial court properly denied the Plaintiff's motion for default judgment, and 3) the trial court erred in awarding sanctions to the Defendant. Accordingly, we affirm the decision of the trial court in part and reverse in part.

On May 14, 2004, the petitioner filed a petition for post-conviction relief to challenge his 2002 Madison County Circuit Court conviction of assault and aggravated assault. See State v. Darrell M. Anderson, No. W2002-01269-CCA-R3-CD (Tenn. Crim. App., Jackson, May 15, 2003). The postconviction
court appointed counsel, and after conducting an evidentiary hearing, it rejected the petitioner’s claims of ineffective assistance of trial counsel and of trial error and denied relief. The petitioner appealed in a timely manner, but following our review upon the record, we affirm the order denying post-conviction relief.

A Weakley County jury convicted the Defendant, Jason Cook, of three counts of forgery and three counts of facilitation of forgery. The Defendant now appeals, contending that the evidence was insufficient to sustain his convictions. Finding no error in the judgments of the trial court, we affirm the Defendant’s convictions.

Plaintiffs obtained a permit and built a "garage and storage building" on their property. The zoning officer received complaints after the building was built, and the Board of Zoning Appeals determined that plaintiffs' use of the building was not allowed in the zoning classification. On certiorari, the Trial Judge affirmed the Board of Zoning Appeals' decision and enjoined plaintiffs from using the building in violation of the zoning ordinance. On appeal, we affirm.

The issues presented in this divorce case are whether the trial court erred in awarding alimony in futuro rather than rehabilitative alimony; whether the alimony award to the wife was excessive; and whether the trial court erred by refusing to hear evidence regarding the relative fault of the parties.  The trial court awarded the wife $1,500 per month in alimony when the wife requested alimony of $1,248 per month and her income and expense statement showed a need of $1,248 per month. We hold that the wife was properly awarded alimony in futuro, but we modify the alimony award to $1,248 per month and affirm the trial court’s judgment in all other respects.

Mother appeals termination of her parental rights to her two minor children. She and her two infant children immigrated to the United States illegally in 1998 when the children were two and one years of age, respectively. In 1999, Mother was arrested on felony theft charges. Being unable to make bond, she remained incarcerated for over a year following which she pled guilty to a felony. She was then turned over to immigration officials and was detained for an additional two years only to be deported to Nigeria in December 2002, where she remains. The children have remained in foster care for more than five years. Mother appeals claiming the evidence to be insufficient to prove grounds for termination and that termination is not in the children's best interest. We affirm.

The petitioner appeals the trial court’s denial of his petition for habeas corpus relief. Upon our review, we conclude that the petitioner has failed to allege any ground that would render the judgment void. Therefore, we affirm the judgment of the lower court pursuant to Tennessee Court of Criminal Appeals Rule 20.

The Defendant was found guilty by jury verdict of second offense driving under the influence of an intoxicant (DUI), simple possession of marijuana, and possession of drug paraphernalia, all Class A misdemeanors. He was sentenced to concurrent sentences of eleven months and twenty-nine days with eighty-five days to be served, had his driver's license suspended for two years, and was fined a total of $3,150. The Defendant now appeals his DUI conviction claiming: 1) the trial court erred in admitting testimony from an expert witness; and 2) the evidence was insufficient to support his DUI conviction. We affirm the judgment of the trial court.

The defendant, Charles Tawwater, pled guilty in Franklin County Circuit Court to facilitation of the manufacture of methamphetamine, a Class D felony, and received two years probation in the Community Corrections Program. The defendant appeals upon certified questions of law from the
denial of his motion to suppress evidence seized pursuant to a warrantless search of his car. He claims the trial court should have granted his motion because (1) the officers lacked probable cause or reasonable suspicion to believe he had committed a criminal offense when stopping his vehicle; (2) his consent to the search of his car was not voluntary; and (3) statements made by him to officers during his detention were inadmissible because he was not advised of his rights under Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). We affirm the trial court.

This case arises out of a long-running dispute between Steven Travis Dorrough and his former wife, Susan Diane Jones over possession of the parties' former residence which was awarded to Ms. Jones in the divorce, but was subsequently leased to Mr. Dorrough. Ms. Jones first filed suit against Mr. Dorrough and his new wife for possession of the residence and for unpaid rents, penalties, interest and attorney's fees. The Dorroughs counterclaimed asserting that Ms. Jones had agreed to sell them the property and that they had paid her in full and were entitled to specific performance. The trial court granted a summary judgment in favor of Ms. Jones, awarded her possession of the property, judgment for unpaid rents and attorney's fees, and dismissed the counterclaim. The Dorroughs appealed and we affirmed the trial court's decision as to the dismissal of the Dorroughs' counterclaim and remanded for further findings as to the funds allegedly paid by Mr. Dorrough. The Dorroughs then filed suit against Ms. Jones and this suit was consolidated with the remanded suit. In the second suit, the Dorroughs alleged breach of contract, fraudulent misrepresentation, and outrageous conduct. The trial court granted Ms. Jones' motion for summary judgment on the contract and tort claims. The trial court held an evidentiary hearing on the remanded issue as to whether Mr. Dorrough was entitled to a set-off based on alleged payments by him to Ms. Jones of $192,000. The trial court denied the set-off and awarded judgment to Ms. Jones for rents, late fees, prejudgment interest and attorney's fees. The Dorroughs appealed this adverse decision. After a careful review of the record, we hold that 1) the trial court's grant of summary judgment to Ms. Jones was proper as to the breach of contract claim because the Dorroughs' contract claim was a compulsory counterclaim that they were required to have presented in the original case, 2) the trial court's grant of summary judgment was proper as to the claims for outrageous conduct and fraudulent misrepresentation since the claims were time barred by the applicable statutes of limitation, 3) the evidence does not preponderate against the trial court's finding of fact regarding the rents due, payments made by Mr. Dorrough, and the award of attorney's fees. Accordingly, we affirm the decision of the trial court.

A Bedford County jury convicted the defendant, Robert Wayne Pryor, of robbery, a Class C felony. Following a sentencing hearing, the trial court sentenced him as a Range I, standard offender to five years and six months in the Department of Correction consecutive to sentences in another case for which he was on probation. In this appeal, the single issue presented for our review is whether the evidence was sufficient to support the conviction. We affirm the judgment of the trial court.

This is a class action on behalf of purchasers of 3,876 lots at Hidden Valley Lakes Development, a residential development in Hickman County. Plaintiffs seek to recover compensatory damages resulting from a breach of contract by the developer, National Development Company, Inc., and its alleged alter ego, Clyde W. Engle. Plaintiffs allege that National breached its contract by failing to provide the centerpiece of the development, a thirty-acre lake. The lake failed to hold water and thus became a thirty-acre hole in the ground. It was stipulated that the failure of National to provide the thirty-acre lake was a breach of contract. The trial was bifurcated into two phases. The first was limited to the plaintiffs' claim for damages against National, following which the plaintiffs were awarded compensatory damages in the amount of $2,540,867 against National. The second phase of the trial was limited to the plaintiffs' claim that Clyde Engle was the alter ego of National and thus liable for the damages assessed against National. Following an evidentiary hearing, the trial court pierced the corporate veil and held Engle personally liable for the judgment against National. The defendants appeal contending that the plaintiffs' proof of damages was neither competent nor sufficient, that the wrong legal standard was applied to pierce the corporate veil and that the proof was insufficient to pierce the corporate veil. Engle also appeals contending that the court did not have personal jurisdiction over him and thus the judgment against him is void. Finding no error, we affirm.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) (Supp. 2003) for hearing and reporting to the Supreme Court, findings of fact and conclusions of law. The trial court found the employee proved that his injury was compensable.  We affirm.

The defendant, Jesse Lee Creasman, entered a plea of guilt to burglary of a business. Pursuant to a plea agreement, the trial court imposed a Range I sentence of two years and ordered probationary supervision for a period of four years. After an evidentiary hearing, the trial court directed restitution as follows: $207.05 for the replacement of the store window, $239.90 for stolen cigarettes, and $6,300 for increased insurance premiums. In this appeal of right, the defendant argues that the amount of restitution is excessive. Restitution is reduced by $6,300 to $436.95. Otherwise, the judgment of the trial court is affirmed.

The defendant was indicted for statutory rape and contributing to the delinquency of a minor.  Thereafter, the trial court ordered an investigation to determine whether the defendant was suitable for pretrial diversion. Before the defendant filed an application for pretrial diversion, but after a pretrial investigation report was submitted, the prosecutor denied pretrial diversion. The trial court granted the defendant’s writ of certiorari and reversed the prosecutor’s decision. Pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the State was granted permission for an interlocutory appeal to this Court. On appeal, this Court reversed the decision of the trial court and remanded the case for further proceedings. State v. Daniel Shane Malone, No. W1999-01678-CCA-R9-CD (Tenn. Crim. App., at Jackson, Nov. 8, 2000), perm. app. denied (Tenn. March 4, 2002). The defendant then filed an original application for pretrial diversion.  Again, the prosecutor denied pretrial diversion. The trial court granted a writ of certiorari and, thereafter, determined that the prosecutor did not abuse his discretion. The defendant sought, and was granted, permission to take an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. We granted the appeal to address the defendant's contention that the prosecutor abused his discretion in denying pretrial diversion. Upon review, we conclude that the prosecutor failed to consider and weigh all relevant factors including substantial evidence favorable to the defendant. Consequently, we reverse the judgment of the trial court and remand this case to the prosecutor for further consideration of all relevant factors attendant to the defendant’s pretrial diversion application.

The petitioner, Joseph W. Jones, appeals the denial of his petition for post-conviction relief, arguing that his guilty plea was unknowing and involuntary and that he was denied the effective assistance of trial counsel. Following our review, we affirm the post-conviction court’s denial of the petition.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff re-injured his back while operating a jackhammer allegedly in violation of his lifting limitations.  The thrust of the defense centered on the asserted misconduct of the plaintiff. The trial judge disallowed the defense. We affirm.

On April 7, 2003, Amy J. Doss ("Mother") filed divorce and custody proceedings in the Circuit Court for Lake County, Illinois (the "Illinois Court"). On that same day, Timothy L. Doss ("Father") filed divorce and custody proceedings in the Family Court for Rhea County, Tennessee (the "Tennessee Court"). Both the Illinois Court and the Tennessee Court have asserted subject matter jurisdiction over the custody proceedings and inconsistent orders have been entered regarding child support and visitation. The issues on this Tenn. R. App. P. 10 interlocutory appeal by Mother center around whether the Tennessee Court had subject matter jurisdiction over the custody proceedings and, if so, whether it properly exercised that jurisdiction. We conclude that: 1) the Tennessee Court did not have "home state" subject matter jurisdiction; and 2) even if the Tennessee Court had "significant connection" subject matter jurisdiction, it nevertheless should have declined to exercise that jurisdiction because the Illinois Court clearly is the more appropriate forum. Accordingly, we vacate the judgment of the Tennessee Court with regard to the custody proceedings.

The defendant, Frank Peter Pinchak, entered a nolo contendere plea to vehicular assault, aggravated assault, and violation of the implied consent law. The trial court deferred the imposition of two concurrent two-year sentences for vehicular assault and aggravated assault, placing the defendant on judicial diversion for a term of six years. For violating the implied consent law, the trial court suspended the defendant's license for one year. The trial court then dismissed sua sponte the implied consent law violation, noting that the indictment failed to charge a criminal offense. The State appeals the single issue of whether the trial court erred in dismissing the implied consent violation and argues that diversion is inappropriate if the offense is reinstated. Concluding that an indictment is not a necessary prerequisite to adjudication of a civil implied consent law violation, we reverse the trial court's dismissal of the charge, remand the case for reinstatement of the trial court's original imposition of a one-year suspension of the defendant's driver's license, and conclude that diversion is not appropriate for this civil offense.

The opinion of the Court asserts:

The heightened burden of proof required by Tenn. Code Ann. § 36-1-113(c)(1) requires us to adapt Tenn.R.App.P.13(d)’s customary standard of review for cases of this sort. First, we must review the trial court’s specific findings of fact de novo in accordance with Tenn.R.App.P.13(d). Thus, each of the trial court’s specific factual findings will be presumed to be correct unless the evidence preponderates otherwise. Second, we must determine whether the facts, either as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements required to terminate a biological parent’s parental rights. Jones v. Garrett, 92 S.W.3d at 838; In re Valentine, 79 S.W.3d at 548-49; In re S.M., 149 S.W.3d at 640; In re M.J.B., 140 S.W.3d at 654.

The Appellant, Larry Mitchell, appeals the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. On appeal, Mitchell argues that he was denied his Sixth Amendment right to the effective assistance of counsel. After a review of the record, we affirm the denial of post-conviction relief.