APPELLATE COURT OPINIONS

At issue in this appeal is the legislature’s authority, under the Tennessee Constitution, to impose mandatory closing times on adult-oriented businesses in order to combat the secondary effects associated with those establishments. Appellants, Clinton Books, Inc. (“Clinton Books”) and Fantasy Warehouse, Inc. (“Fantasy Warehouse”), challenge the constitutionality of T.C.A. § 7-51- 1402 through 7-51-1406 (“the Act”), arguing that the Act violates several rights guaranteed by the Tennessee Constitution, among them the rights of religious and expressive freedom, due process, and equal protection of the law. Appellants further contend that the trial court erred in ruling on the merits of their claims during the hearing on a motion for temporary injunction. We affirm in part, reverse in part, and remand for further proceedings.
 

This is a termination of parental rights case. Mother appeals from the order of the Juvenile Court of Benton County, terminating her parental rights on the grounds of persistence of conditions. Specifically, Mother asserts that the trial court erred in admitting evidence of an event that occurred after the Petition to Terminate had been filed, that the termination of her parental rights is not supported by clear and convincing evidence in the record, and that termination is not in the best interest of the children. We reverse and remand.
 

The Defendant, Clinton Wade Ketron, pled guilty to one count of operating a motor vehicle while adjudged to be a Habitual Motor Vehicle Offender (HMVO), a Class E felony, and one count of criminal impersonation, a Class B misdemeanor. Pursuant to a plea agreement the Defendant was sentenced to concurrent terms of one year for his felony HMVO conviction and six months for his misdemeanor criminal impersonation conviction. The trial court denied alternative sentencing and ordered the Defendant to serve his sentences in confinement. The Defendant raises only one issue on appeal: The trial court erred in sentencing the Defendant to serve his one year felony sentence with the Tennessee Department of Corrections and in sentencing him to six months in the county jail for his misdemeanor conviction instead of placing him on enhanced probation or imposing some other form of alternative sentence. We affirm the judgments of the trial court.

This appeal arises out of a grant of summary judgment in favor of Appellees in a medical malpractice action. The trial court held a preliminary hearing, without a jury, to determine if Appellant could establish the essential elements of such an action, particularly the element of causation. After Appellant presented her experts’ testimony regarding causation for Appellant’s medical malpractice action, the trial court granted Appellees’ motions for summary judgment. Appellant filed an appeal to this Court, and, for the following reasons, we reverse and remand for further proceedings consistent with this opinion.

This appeal involves the termination of a commercial real estate lease agreement. Among a multitude of other claims, Plaintiff, Lessee, contends that Defendant, Lessor, breached the lease by failing to provide lessee with notice of default, sufficient to satisfy the terms of the lease. Additionally, Lessee argues that Lessor violated section 29-18-101, et seq. of the Tennessee Code Annotated (Forcible Entry and Detainer) by re-entering the leased premises without first obtaining a writ of possession. Lessee appeals from the trial court’s final judgment in favor of Lessor. We affirm as modified.
 

Appellants sought the rescission of a quitclaim deed from a mother to her son upon the grounds of undue influence, fraud, and lack of independent advice. The trial court found that the quitclaim was not invalid on any of these grounds. We affirm.
 

The defendant, Bennie Nelson Thomas, Jr., was convicted of sale of a Schedule II controlled substance, crack cocaine, a Class C felony, and sentenced as a Range I, standard offender to six years in the Department of Correction. He was also fined $2000. He raises two issues on appeal: (1) whether the evidence was sufficient to sustain his conviction; and (2) whether the trial court erred in refusing to declare a mistrial after the improper reference at trial to a prior drug sale by an undercover informant. Based on our review, we affirm the judgment of the trial court but remand for entry of a corrected judgment to reflect the defendant’s fine of $2000.

The petitioner, Kermit Penley, appeals from a denial of post-conviction relief. On appeal, the petitioner alleges ineffective assistance of counsel, and that his plea of guilty was not knowing or voluntary. We affirm the post-conviction court's denial of relief.

The defendant, Robert Banks, was convicted in the General Sessions Court of Shelby County of the misdemeanor offense of patronizing prostitution, fined $1000, and sentenced to twenty days in the county correctional center, to be served on weekends. He then appealed to the Shelby County Criminal Court, where, following a bench trial, he was convicted of patronizing prostitution within a mile and a half of a school, a Class A misdemeanor, ordered to pay a $100 fine, and sentenced to eleven months, twenty-nine days, with forty-five days to be served consecutively in the county workhouse and the remainder on supervised probation. On appeal to this court, the defendant raises two issues: (1) whether the evidence is sufficient to sustain his conviction; and (2) whether the trial court erred in denying his motion for a jury trial based on his claim of ineffective assistance of general sessions counsel. We conclude the evidence is sufficient to sustain the conviction and the trial court did not err in denying the defendant’s untimely request for a jury trial, made after his notice of appeal had already been entered. Accordingly, we affirm the judgment of the trial court, but modify the fine imposed from $100 to $1000, in accordance with the provisions of Tennessee Code Annotated section 39-13-514(b)(3) (2003), and remand for entry of a corrected judgment to reflect the defendant’s conviction offense which was omitted from the judgment form.

The defendant, Shawn Rafael Bough, was convicted of felony murder and especially aggravated robbery. The Court of Criminal Appeals held that the motion for new trial, which was not filed until the date of the sentencing hearing on the especially aggravated robbery conviction, fifty-two days after judgment was entered on the felony murder conviction, was untimely as to the felony murder conviction. The Court of Criminal Appeals also held that two amended motions for new trial were untimely. On these two issues, we reverse the Court of Criminal Appeals, finding that the original motion for new trial, as well as the two amended motions for new trial, were timely filed as to both convictions. The Court of Criminal Appeals found that the evidence was sufficient to support both convictions. The remaining issues addressed by the Court only related to the especially aggravated robbery conviction because the Court had held that the motion for new trial was untimely. On those issues, the Court held that (1) while the State’s reference to a “missing witness” during closing argument was improper, the error was harmless beyond a reasonable doubt; (2) the witnesses Deanna Jones, Edie Jones and Dante Smith were not accomplices whose testimony needed corroboration, and therefore the trial court did not err in failing to give a jury instruction on accomplice testimony; and (3) the defendant waived any objection to the testimony of Isaiah Dixon regarding the defendant’s out-of-court confession by his failure to raise the issue at trial. We affirm the Court of Criminal Appeals on these issues. However, because the Court of Criminal Appeals did not address these last three issues with respect to the felony murder conviction or any of the issues raised in the amended motions for new trial as to either conviction, we remand the case to the Court of Criminal Appeals for consideration of those issues. Tenn. R. App. P. 11 Permission to Appeal; Judgment of the Court of Criminal Appeals is Affirmed in Part, Reversed in Part, and Remanded to the Court of Criminal Appeals
 

This is a claim against a union for negligence. The plaintiff was a correctional officer at a county correctional facility and a member of the defendant union. The employee was terminated from his job after he was arrested for possession of a controlled substance. The employee sought the union’s assistance in appealing his termination through the county grievance process. After his grievance was preliminarily denied, the union had fifteen days in which to appeal the denial by requesting arbitration of the employee’s case. The employee urged the union to file a request for arbitration, and the defendant union officer agreed to do so. However, the defendant union officer failed to submit the request for arbitration by the deadline, and consequently the request was denied as untimely. The employee then sued the union and the union officer, alleging that the union officer’s conduct was negligent and that it constituted a breach of contract. After a bench trial, the trial court rejected the employee’s breach of contract claim. It concluded that the defendants’ failure to request arbitration in a timely manner was negligent, but that the negligence did not cause the employee’s damages. The employee now appeals. We affirm the dismissal of the breach of contract claim, but reverse the dismissal of the negligence claim, finding that the evidence preponderates against the trial court’s conclusion that the employee failed to prove causation of his damages.

The defendant, Tory Nelson Nocho, appeals his sentence of life without possibility of parole. The defendant contends that the failure to set forth aggravating circumstances within the indictment is a constitutional infirmity. The defendant secondly asserts error in that the State had not filed statutory notice of intent to seek life without possibility of parole as to one victim prior to the entry of the guilty plea. We affirm the sentence as imposed, but we remand the case for entry of corrected judgments.

The petitioner, Arzolia Charles Goines, appeals the dismissal of his petition for writ of habeas corpus, in which he contends that: (1) the judge's handwritten signature was not subscribed on the judgments; (2) the judge ordered the present sentence to run concurrently with a previous unserved sentence in contravention of Tennessee Rule of Criminal Procedure 32(c); (3) in sentencing the petitioner, the court failed to consider a presentence report; and (4) the trial court erred in summarily dismissing his petition without appointment of counsel. After careful review, we affirm the dismissal of the petition.

The defendant, Robert L. Evans, Jr., was indicted for aggravated robbery, first degree premeditated murder, and first degree felony murder. A jury convicted the defendant on all counts. The two murder convictions were merged, and the jury imposed life without parole. The trial judge sentenced the defendant to life without parole plus twelve years for aggravated robbery. The twelve-year sentence was ordered served consecutively to the murder sentence and a previous sentence of death in Illinois. The defendant now appeals his convictions and the consecutive sentencing. We affirm both the convictions and sentencing.

The Appellant, Linc Sebastian Baird, appeals the sentencing decision of the Knox County Criminal Court. Baird pled guilty to the crimes of robbery and attempt to obtain a controlled substance by fraud and was sentenced to consecutive sentences of five years for robbery and three years for the criminal attempt. On appeal, Baird asserts that the trial court erred by: (1) imposing excessive sentences and (2) denying him an alternative sentence. After review of the record, we find no error and affirm the sentences.

The petitioner, Kevin L. Marshall, appeals the dismissal of his motion to correct an illegal sentence. Because this is not the appropriate context for this appeal and because we conclude that the record supports the trial court's determination that the petitioner failed to set forth a factual or legal basis on which to justify relief, we affirm the dismissal of the post-conviction petition.

The parties were married in 1980 with no children born of the marriage. The parties separated a number of times during their marriage. During a period of separation, in April of 1995, the parties signed a contract entitled Marital Dissolution Agreement, which, among other things, settled their rights in property acquired during their marriage. They reconciled in 1997 and lived together for some six months until their final separation, which was followed by Wife’s Complaint for Divorce filed June 11, 2001. The trial court held that the Agreement had been freely executed by both parties and meticulously followed until the time of the divorce Complaint. The parties were divorced by joint stipulation pursuant to Tennessee Code Annotated section 36-4-129, and following final hearing, the trial court held the 1995 Agreement to be fair and equitable and divided property accordingly. Wife appeals, and we affirm the judgment of the trial court.
 

The defendant, Lucy Thompson, contends that the trial court erred in overruling her motion for judicial diversion. Specifically, she contends that the court accorded controlling weight to the deterrence value and the circumstances of the case, while it ignored other factors that it was required to consider. Because we conclude that the trial court did not abuse its discretion, the judgment is affirmed.

The Petitioner, Darrell Braddock, appeals the trial court's denial of his petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because the petition for post-conviction relief is time-barred by the statute of limitations, we grant the State's motion and affirm the judgment of the lower court.

Rebecca Paige Mulkey (“Mother”) and Bradley Warren Mulkey (“Father”) were divorced in 1996. The parties agreed that Mother would be the primary residential parent of their two minor daughters with Father having reasonable visitation rights. Several years later and after Mother had remarried, Father filed a Petition for Change of Custody claiming the older child had been physically abused by her step-father. The Trial Court temporarily transferred custody of the children to Father and indicated this arrangement would be reviewed periodically. After the older child recanted her allegations of physical abuse, the Trial Court ordered that she be examined by a psychiatrist. An examination was undertaken and the psychiatrist concluded there was no evidence of abuse “of any kind.” The Trial Court later entered a judgment and held that its previous temporary decision to designate Father as the primary residential parent was to be the final determination. Mother appeals claiming the Trial Court erred when it transferred custody of the children to Father because Father failed to prove there had been a material change in circumstance. We agree and reverse the judgment of the Trial Court.
 

The majority Opinion notes that the Trial Court talked to the minor children in camera in the presence of the parties’ attorneys, but no court reporter was present, and a record of that proceeding is not before us. We directed in Rutherford v. Rutherford, 971 S.W.2d 955 (Tenn. Ct. App. 1997), p. 956: The Trial Judge has discretion to interview children apart from the courtroom setting if he considers it is in the best interest of the child. However, if he elects to follow this procedure, he must examine the child “in the presence of attorneys for each side and in the presence of the court reporter.” Newburger v. Newburger, 10 Tenn. App. 555, 566 (1930), and in order to have a complete record on appeal, a transcript of such evidence must be filed. This procedure was not followed in this case and the failure to follow this procedure is grounds, standing alone, to vacate and/or reverse the Judgment of the Trial Court, as we noted in Rutherford.
 

The petitioner, Donald Mays, appeals the trial court's denial of post-conviction relief. Although the petitioner bases his claim on three grounds, the primary issue is whether the petitioner was denied the effective assistance of counsel at trial and on appeal. The judgment is affirmed. Because the post-conviction court failed to address the issue of whether counsel were ineffective by failing to challenge the trial court's failure to charge the jury on certain lesser included offenses, the cause is remanded for further proceedings.

This is a construction case. The defendant homeowners had an oral contract with the plaintiff contractor to perform renovations on their home. After problems with the renovations arose, including flooding of the home after a rainstorm, the homeowners terminated the contractor. The contractor filed a claim seeking enforcement of a lien on the improved property or payment for the work done on theories of breach of contract, quantum meruit, and unjust enrichment. The homeowners counter-claimed that the contractor owed them for the cost of repairing the contractor’s defective work. After a bench trial, the trial court found that the contractor’s work fell well below the applicable standard and awarded the homeowners damages for the repair of the contractor’s defective work. We affirm.

This is a post-divorce child custody case. The parties were divorced by a final decree which incorporated the parties’ marital dissolution agreement (“MDA”). The MDA provided, among other things, that the parties would have joint custody of their two minor children, and that the mother would be the primary residential parent. The MDA also stated that the father would provide life insurance on the children’s lives, and that the maternal grandmother would arbitrate the parties’ disputes. Approximately two years later, the mother filed a motion for contempt, claiming that the father had failed to provide the required life insurance on the children’s lives. In response, the father filed a motion to increase his residential time with the children and also sought court approval to provide term-life insurance as opposed to whole-life insurance on the children’s lives. In addition, the father asked the court to strike the MDA provision stating that the maternal grandmother would be the final arbiter of the parties’ child rearing disputes. The trial court denied the mother’s motion for contempt and granted the father’s motion for modification of the MDA. The mother now appeals. We affirm.

This appeal challenges the chancery court’s subject matter jurisdiction to hear a will contest. The petitioner daughter filed a petition to probate the last will and testament of her father. Other siblings filed an objection to probate, alleging that their father did not have the requisite testamentary capacity to execute the will. After a hearing, the chancery court rejected the siblings’ claims and admitted the will to probate. Later, the siblings filed another petition contesting the will, again challenging testamentary capacity and, in addition, alleging undue influence. The chancery court certified the will contest to the circuit court. The circuit court granted summary judgment to the petitioner, finding that the issues raised by the siblings had been addressed in the former proceedings and were res judicata. The siblings then filed a Rule 60 motion in chancery court to set aside the order probating the will. The motion was denied. The siblings now appeal, arguing that the chancery court did not have subject matter jurisdiction to hear the will contest. We affirm, finding that the chancery court had concurrent jurisdiction with the circuit court to adjudicate a will contest.