APPELLATE COURT OPINIONS

In this divorce case, a husband appeals the trial court’s denial of his motion to alter or amend, arguing that the court should not have granted the divorce on the ground of irreconcilable differences or approved the parties’ marital dissolution agreement when the husband purportedly withdrew his consent to the divorce, lacked the capacity to enter into a marital dissolution agreement, and was under duress at the time he executed it. He also argues that his due process rights were infringed. Upon our review, we affirm the judgment of the trial court. We also award the wife her attorney’s fees for this appeal and remand to the trial court for a calculation of those fees.

The pro se Petitioner, Michael Bailey, appeals the denial of his petition for post-conviction relief in seven cases that resulted in his convictions for eight counts of aggravated robbery and one count of aggravated assault and an effective sentence of two consecutive life terms without the possibility of parole. Based on our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

The Wilson County Grand Jury charged Defendant, Clarence Willis Moore, Jr., with four counts of selling 0.5 grams or more of cocaine within 1,000 feet of a child care agency in violation of the Drug-Free School Zone Act.  Following trial, a jury convicted Defendant in counts one and three of sale of “Schedule II, cocaine, within 1,000 feet of a school zone.”[1]  The jury found Defendant not guilty in counts two and four.  At the sentencing hearing, the trial court determined that Defendant’s Class B felony convictions were not subject to a one classification increase under Tennessee Code Annotated section 39-17-432(b)(1) because the offenses occurred within the prohibited zone of a childcare center.  See Tenn. Code Ann. § 39-17-432(b)(3) (2016).  The court sentenced Defendant as a Range III persistent offender to twenty-five years in Count 1 and twenty-two years in Count 3, ran the sentences consecutively, and imposed a fine of $2,000 on each count.  Pursuant to Tennessee Code Annotated section 39-17-432(c), the court ordered Defendant to serve the minimum twenty-year sentence on each count.  Following a thorough review of the record and applicable law, we conclude that the evidence was insufficient to prove that the offenses occurred within 1,000 feet of a childcare center or a child care agency.  Because the evidence was insufficient to establish a violation of section 39-17-432(b), the court erred in ordering Defendant to serve the minimum sentences for the two Class B felonies.  Accordingly, we affirm the judgments of conviction and the total effective sentence of forty-seven years with a release eligibility of forty-five percent but modify the sentence to exclude the harsher penalty requiring service of the twenty-year minimum sentence on each count.  We remand for entry of new judgments of conviction for Counts 1 and 3 consistent with this opinion.

This case concerns the termination of a father’s parental rights to his son. The trial court predicated termination of parental rights on the ground of abandonment by failure to visit and found termination of the father’s parental rights was in the child’s best interest. We have determined that the record contains clear and convincing evidence to support the trial court’s findings and affirm the termination of the father’s parental rights. 

This is the third appeal in a dispute among a general contractor, a subcontractor, and an equipment supplier. Each party blamed the others for delays in a construction project. After the first appeal was dismissed for lack of a final judgment, the trial court held each party partially responsible for the delays and partially responsible for liquidated damages assessed by the owner. In the second appeal, this court modified the judgment in part, reversed it in part, and remanded for further proceedings. On remand, the subcontractor sought to recover from the general contractor discretionary costs of $10,962.42, attorneys’ fees of $220,724.53 under the Prompt Pay Act of 1991, Tenn. Code Ann. §§ 66-34-101 to -704, and “[a]dditional charges.” The trial court awarded some of the requested fees but excluded $100,350 of attorneys’ fees attributed to legal services rendered during the first and second appeal because the subcontractor’s request for appellate attorneys’ fees was untimely, i.e., the relief had not been requested in the pleadings in the prior appeals. The trial court also denied $29,685 in fees incurred in the trial court proceedings for legal services that were “unrelated to [the general contractor].” The trial court also found the subcontractor was not entitled to recover the “[a]dditional charges” because the remand from the Court of Appeals did not authorize such expenses. This appeal followed. The principal issues in this appeal concern the subcontractor’s claims for attorneys’ fees and additional expenses and whether the general contractor’s surety is secondarily liable for one of the judgments. Finding no error, we affirm the trial court’s judgment in all respects.

After being denied parole, Fred Auston Wortman, III (“Plaintiff”) filed suit against the State of Tennessee (the “State”), the Tennessee Board of Parole (the “Board”), several board members and other state employees, and two assistant district attorneys in the Chancery Court for Davidson County (the “trial court”). Several defendants moved for dismissal for failure to state a claim for which relief can be granted. The trial court granted the motion to dismiss and Plaintiff appealed to this Court. Because the trial court’s order is not final, however, we lack subject matter jurisdiction to hear this appeal. The appeal is therefore dismissed.

This is a case involving allegations of undue influence. The plaintiffs are the grandchildren of the decedent. The sole defendant at issue on appeal is the decedent’s niece, who also held power of attorney for the decedent during the last years of her life. The transaction at issue occurred roughly six months before the decedent died and consisted of a gift of $176,000 to the niece for the purchase of a house. The executor of the decedent’s estate declined to pursue the claim for undue influence and assigned the cause of action to the decedent’s four grandsons, who were the residuary beneficiaries of the estate. After a five-day bench trial, the trial court found that a confidential relationship existed between the decedent and the defendant niece and that multiple suspicious circumstances existed to support a finding of undue influence. As such, the trial court entered a judgment against the defendant niece for $176,000. However, the trial court denied the plaintiffs’ request for attorney fees on the basis that they were “not available under the current caselaw relating to undue influence.” The defendant niece appeals, challenging the finding of undue influence. The plaintiffs appeal the denial of their request for attorney fees. Having carefully reviewed the voluminous record, we affirm the finding of undue influence and the judgment against the defendant niece. We reverse the denial of the plaintiffs’ request for attorney fees and remand for a reasonable award of attorney fees incurred by the plaintiffs in the trial court and on appeal.

The Petitioner, Larry Lee Johnson, appeals from the Shelby County Criminal Court’s summary dismissal of his petition for writ of error coram nobis, wherein he claimed that first coram nobis counsel refused to amend the original coram nobis petition after discovery of two witnesses’ statements that might have led to a different result had they been available at trial. The Petitioner contends that the coram nobis court erred by summarily dismissing his petition as having been untimely filed and for failing to state a cognizable claim for relief. Following our review, we affirm the judgment of the coram nobis court.

The Petitioner, Revail Murphy, pled guilty in two separate cases to aggravated assault and sexual battery, respectively. The trial court sentenced the Petitioner as a Range III, persistent offender to a total effective sentence of ten years, to be served at forty-five percent. On appeal, the Petitioner asserts that he received ineffective assistance of counsel, contending that his guilty plea for aggravated assault was not “knowingly, voluntarily, and intelligently entered.” Upon our review, we affirm the judgment of the post-conviction court.

In 2014, the Petitioner, Walter Shegog, was convicted of theft of property valued at more than $1,000 but less than $10,000. The Petitioner received a twelve-year sentence as a Career Offender and later appealed his conviction to this court. We affirmed the judgment of the trial court. State v. Walter Shegog, No. W2014-02440-CCA-R3-CD, 2015 WL 12978195 (Tenn. Crim. App., at Jackson, Oct. 13, 2015), perm. app. denied (Tenn. Feb. 19, 2016). Subsequently, the Petitioner filed a petition for post-conviction relief alleging that the State had committed a Brady violation by withholding exculpatory evidence and that he had received the ineffective assistance of counsel on multiple bases. After a hearing, the post-conviction court denied the petition, and the Petitioner appeals. After review, we affirm the post-conviction court’s judgment.

Following a bench trial, the defendant, Christopher D. Todd, was convicted by the Robertson County Circuit Court with possession of marijuana with intent to sell, possession of marijuana with intent to deliver, and possession of drug paraphernalia, and he was sentenced to an effective term of eighteen months’ incarceration. On appeal, the defendant argues that he received ineffective assistance of counsel due to counsel’s failure to file a motion to suppress challenging the legality of the initial stop of his vehicle. Upon our review of the record and the applicable law, we affirm the judgment of the trial court.

The Defendant, Raymond Brandon Saffles, was charged by criminal information with one count of arson, and he entered a guilty plea to this charge the same day. See Tenn. Code Ann. § 39-14-301. The trial court, after accepting his plea agreement, sentenced the Defendant to six years, suspended this sentence, and then ordered the Defendant to serve 364 days in jail before serving six years on supervised probation. The trial court also ordered that the Defendant have no contact with the victim or her property and that restitution would be determined at a later hearing. Following this hearing, the trial court entered a restitution order requiring the Defendant to pay restitution in the amount of $99,017.78 with a payment schedule of $50 per month for the length of his probationary sentence, which the trial court determined to be six years. On appeal, the Defendant argues: (1) the trial court erred ordering him to pay nearly $100,000 in restitution and to pay $50 per month over the term of his probation; and (2) no amount of restitution is appropriate because his Social Security benefits are exempt from court-ordered collection under 42 U.S.C. § 407(a) and that even if his benefits are not exempt, he does not have the ability to pay any amount toward restitution. We reverse the judgment of the trial court as to restitution and remand this case for entry of a corrected judgment of conviction and probation order and for a new restitution hearing consistent with this opinion.

The Petitioner, Tommy Taylor, appeals as of right from the Lauderdale County Circuit Court’s summary dismissal of his petition for writ of habeas corpus, in which he contended that his thirteen-year sentence was illegal and that his guilty plea was void because the affidavit of complaint and arrest warrant were not signed by a magistrate or a neutral and detached court clerk. On appeal, the Petitioner contends that summary dismissal was improper and that the petition stated a cognizable claim for habeas corpus relief. Discerning no error, we affirm the judgment of the habeas corpus court.

A mother and an unknown father were the subjects of a petition to terminate parental rights and to adopt a child.  Only mother appeals.  She argues that she lacked notice of the proceedings and that the petitioners failed to comply with the parental termination statutes.  She also contests the statutory grounds relied on for terminating her parental rights and the trial court’s determination that termination was in her child’s best interest.  We affirm the termination of the mother’s parental rights.  But because the record does not reflect that the unknown father was served under the Tennessee Rules of Civil Procedure or the statutes governing substituted service, we vacate the judgment terminating his parental rights.

A Dickson County jury convicted the defendant, Stephen C. Wallick, for the Class B felony of theft of property valued over $60,000 but less than $250,000.  The trial court imposed a sentence of eight years in the Tennessee Department of Correction, suspended to supervised probation, and ordered the defendant pay $60,000 in restitution.  The defendant filed this timely appeal, challenging the evidence supporting his conviction.  Following our review, we affirm the judgment of the trial court.

The Petitioner, Windie L. Perry, appeals from the Montgomery County Circuit Court’s denial of her petition for post-conviction relief from her convictions for two counts of especially aggravated kidnapping, two counts of aggravated child abuse, one count of facilitation of rape of a child, two counts of false imprisonment, and six counts of reckless endangerment and her effective twenty-year sentence.  On appeal the Petitioner contends that the post-conviction court erred by denying relief on her ineffective assistance of counsel claims.  We affirm the judgment of the post-conviction court.

Following the denial of a suppression motion, the defendant, Frederick Dean Givens, pled guilty to possession of more than 0.5 grams of methamphetamine with the intent to sell or deliver, simple possession of marijuana, and possession of a firearm by a convicted felon. As a condition of his plea agreement, the defendant reserved the right to appeal two certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(A). Upon our review, we conclude the issues are not dispositive of the defendant’s case, and the appeal is dismissed. Additionally, we remand the case for entry of judgment forms in counts 3 and 4. 

The Petitioner, Errol Johnson, appeals as of right from the Shelby County Criminal Court’s denial of his petition for post-conviction relief, wherein he challenged his convictions for aggravated child neglect and criminally negligent homicide. On appeal, the Petitioner asserts that he was denied the right to represent himself at trial and that he received the ineffective assistance of trial counsel because counsel failed to advise him that the State could introduce rebuttal evidence after he testified. Following our review, we affirm.

The defendant, Paul D. Page, pleaded guilty to two counts of sale of 0.5 grams or less of methamphetamine, and the trial court imposed an effective sentence of nine years’ incarceration in the Tennessee Department of Correction. On appeal, the defendant argues the trial court erred in denying his request to serve his sentence on probation. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court. 

A husband and wife sought to end their long-term marriage. After a prolonged trial, the court classified, valued, and equitably divided the marital estate. The court also ordered both parties to pay their own attorney’s fees. The wife filed a motion to alter or amend the final decree. Acknowledging errors in the initial decree, the court issued an amended divorce decree. Among other things, the court amended the value of the marital residence. Both parties raise issues on appeal. We find the evidence does not preponderate against the court’s classification of the husband’s interest in several parcels of real property as marital property. We also conclude that the court did not abuse its discretion in amending the value of the marital residence, dividing the marital estate, or declining to award attorney’s fees to the wife. So we affirm.

In 1998, the Petitioner, James Morrow, was convicted of two counts of first-degree premeditated murder and sentenced to life imprisonment. The Petitioner appealed his convictions to this court, and we affirmed the judgments. State v. James Morrow, No. W1998-0583-CCA-R3-CD, 1999 WL 1529719 (Tenn. Crim. App., at Jackson, Dec. 29, 1999), perm. app. denied (Tenn. June 26, 2000). Subsequently, the Petitioner filed a petition for post-conviction relief, which the post-conviction court dismissed after multiple hearings. After review, we affirm the post-conviction court’s judgment.

The Petitioner, Robert Derrick Johnson, appeals as of right from the Bedford County Circuit Court’s denial of his petition for post-conviction relief, wherein he challenged his conviction for robbery. On appeal, the Petitioner asserts that he received the ineffective assistance of trial counsel because counsel failed to (1) advise him of a statutory right to at least fourteen days to prepare for trial, see Tennessee Code Annotated § 40-14-105; (2) file a motion to continue the trial; (3) suppress the victim’s in-court identification of the Petitioner; (4) file a motion or object at trial to the destruction of video-recorded evidence; and (5) challenge the Petitioner’s second trial as violative of double jeopardy. The Petitioner also contends that the post-conviction court erred by striking his pro se amendment to the post-conviction petition. Following our review, we affirm.

This appeal arose from a 2011 divorce decree awarding to the wife one-half of the husband’s military retirement pay that had accumulated during the term of the marriage. At the time of the husband’s retirement in 2018, the United States Defense Finance and Accounting Service would not disburse retirement funds to the wife due to deficient award language contained in the 2011 order. The Defense Finance and Accounting Service explained in a letter addressed to the wife that the 2011 order had failed to provide a method to calculate the marital portion of the husband’s retirement pay and that it had no way to calculate retirement pay that had “accumulated during the term of the marriage.” In order to effectuate the enforcement of its intended division of the husband’s military retirement pay, the trial court attempted to correct its order by replacing “accumulated during the term of the marriage” with language compliant with the United States Department of Defense Financial Management Regulations (“DoD Regulations”) and specifying that the wife should be awarded fifty percent of the husband’s disposable military retired pay based upon his military pay grade rank and his creditable service years as of the date of the divorce.

A non-attorney filed a notice of appeal as next friend of Andrew Jackson Heaton. As a non-attorney next friend may not practice law while acting on behalf of an infant or incompetent, this appeal is hereby dismissed.

This is a termination of parental rights case focusing on Kierani C., the minor child (“the Child”) of Christopher A., Sr. (“Father”), and Keona C. (“Mother”). In August 2017, Mother surrendered her parental rights to the Child before the Shelby County Chancery Court (“chancery court”).1 At that time, the Child was placed in the legal custody and partial guardianship of Hannah’s Hope United Methodist Adoption and Pregnancy Counseling (“Hannah’s Hope”) and the physical custody of pre-adoptive parents, Katherine B. and Adrian B. In September 2017, Hannah’s Hope filed a petition in the chancery court to terminate Father’s parental rights to the Child. In January 2018, Father filed a petition to establish parentage in the Memphis and Shelby County Juvenile Court (“juvenile court”), and in May 2018, Katherine B. and Adrian B. filed a petition in the Shelby County Circuit Court (“trial court”) to terminate Father’s parental rights to the Child. Upon motions filed by Katherine B. and Adrian B., all matters pertaining to the Child were subsequently transferred to the trial court, which consolidated the actions. Following a bench trial, the trial court granted both termination petitions upon its finding clear and convincing evidence of ten statutory grounds, including four abandonment grounds, specifically that Father had willfully failed to (1) visit the Child in the four months preceding the petition’s filing by Hannah’s Hope, (2) financially support the Child in the four months preceding each petition’s filing, (3) visit Mother during the four months preceding the Child’s birth, and (4) make reasonable payments toward Mother’s financial support during the four months preceding the Child’s birth, as well as six grounds applicable to a putative father, specifically that Father had failed to (5) pay a reasonable share of expenses related to the Child’s birth, (6) make reasonable and consistent payments for the Child’s support, (7) seek reasonable visitation with the Child, (8) file a petition to establish paternity within thirty days of receiving notice of alleged paternity, and (9) manifest an ability and willingness to assume legal and physical custody of the Child, and, additionally, that (10) placement of the Child in Father’s legal and physical custody would pose a risk of substantial harm to the Child’s welfare. The trial court further found by clear and convincing evidence that it was in the Child’s best interest to terminate Father’s parental rights. Father has appealed. We hold that under Tennessee Code Annotated § 36-1-113(g)(9)(A)(ii) and (iii), a putative father’s efforts made after the termination petition’s filing may be considered in reviewing the respective grounds involving failure to support the child and failure to seek or maintain visitation with the child. Therefore, having determined that clear and convincing evidence did not support the trial court’s findings that Father’s efforts to support and visit the Child made after the respective petitions’ filings were unreasonable or token, we reverse the trial court’s findings as to these two grounds. We affirm the trial court’s judgment terminating Father’s parental rights in all other respects.