APPELLATE COURT OPINIONS

A trial court held two attorneys in contempt, assessing damages and sanctions against them. Shortly before another hearing in which the court was to consider a supplemental award of attorney’s fees, the judge of the trial court made comments in an unrelated case about one of the attorneys held in contempt. That attorney moved to recuse based, in part, on the judge’s comments. The trial court denied the motion to recuse and later entered a supplemental order of damages against the attorneys. Because the judge’s comments provide a reasonable basis for questioning his impartiality, we reverse the denial of the motion to recuse. And because retroactive recusal is appropriate, we also vacate the contempt and damages orders.

The Defendant, Trammel Williams, pleaded guilty to aggravated kidnapping and aggravated assault, and he agreed to serve an effective sentence of eight years on probation. A violation of probation warrant was issued, and following a hearing, the trial court found that the Defendant violated the terms of his probation, revoked his probation, and ordered the Defendant to serve his sentence in confinement. On appeal, the Defendant contends that the trial court lacked substantial evidence to find that he violated the terms of his probation and that the trial court abused its discretion in sentencing him to confinement. Following our review, we affirm the judgment of the trial court.

This is a defamation case that was dismissed by the trial court on a motion to dismiss. Plaintiff, a former riverboat captain, predicated his defamation claim on a letter sent by a lawyer for the owner of a drawbridge to the riverboat captain’s former employer. The purpose of the letter was to put the employer on notice that damage had been caused to the drawbridge by one of the employer’s towboats. In its oral ruling, which was incorporated into its dismissal order, the trial court identified several grounds which it concluded supported dismissal. Not addressed by the trial court were several procedural defenses raised by the defendant, including a defense based on an alleged lack of personal jurisdiction. Notably, the defendant has not waived its personal jurisdiction defense on appeal. Because jurisdiction is a prerequisite to an adjudication on the merits of the case, we vacate the trial court’s dismissal order and remand the matter for a consideration of the defendant’s personal jurisdiction defense.

This appeal concerns the authority of an administrative judge when sitting with the Tennessee Underground Storage Tanks and Solid Waste Disposal Control Board during its review of an initial order in a contested case. In 2016, the Tennessee Department of Environment and Conservation issued an order pursuant to the Tennessee Petroleum Underground Storage Tank Act to recover funds spent for investigating and closing a petroleum site. The Department alleged that petroleum was released from three underground storage tanks on the respondents’ property. The respondents filed a petition for review and sought a contested case hearing. Following the hearing before an administrative judge sitting alone, the administrative judge issued an initial order that upheld the assessment. The judge concluded that the respondents were “responsible parties” because they owned the site in 2010 when the tanks were removed. The respondents then filed a petition for appeal, seeking a review hearing before the Board. A different administrative judge was assigned to sit with the Board for the hearing. After the parties submitted their briefs but prior to the hearing, the second administrative judge issued an order independent of the Board that reversed several substantive rulings in the initial order and prohibited the Department from making certain legal arguments to the Board. Instead of proceeding with the review hearing, the Department obtained a stay from the Board to file a petition for judicial review to challenge the intermediate order issued by the second administrative judge. The trial court reversed the intermediate order, finding that inter alia, the administrative judge’s decisions were “in excess of his authority and an abuse of discretion” because the statutory interpretation issue was a substantive matter for the Board to consider. The trial court also remanded the matter to the Board for a hearing with the burden of proof assigned to the respondents. This appeal followed. We respectfully disagree with the trial court’s ruling as to the burden of proof because it is the duty of an administrative judge who “sits with” a Board to advise the Board on the applicable law. In all other respects, we affirm the judgment of the trial court and remand for further proceedings consistent with this opinion.

A church filed a complaint in 2019 against a lending institution asserting causes of action for fraud and breach of contract based on conduct that occurred in 2008 and 2009. An earlier complaint the church filed in 2009 was dismissed in 2017 for failure to prosecute, and the church voluntarily dismissed a second complaint it filed in 2018. The lending institution moved to dismiss the 2019 complaint based on the running of the statute of limitations. The trial court granted the motion to dismiss, and the church appeals. We affirm the trial court’s judgment dismissing the complaint.

This case involves a petition to terminate the parental rights of the parents of two minor children. After a trial on the petition, the trial court granted the petition and terminated the parents’ parental rights. The trial court found that the ground of “severe child abuse” was proven by clear and convincing evidence and that it was in the best interest of the children to terminate the parents’ parental rights. Both of the parents appealed. We affirm the trial court’s decision and remand.

This action concerns the trial court’s dismissal of a complaint for injunctive relief in which Jefferson County sought to enforce its zoning ordinance as applied to a commercial wedding event venue operated in a rural residential area. We affirm the trial court’s holding that the activities are immune from the County’s authority to enforce its zoning powers by virtue of the agricultural use of the property.

In this termination of parental rights case, Appellant/Father appeals the trial court’s termination of his parental rights to the minor child on the ground of failure to manifest an ability and willingness to parent the child, Tenn. Code Ann. § 36-1-113(g)(14). While Appellant does not appeal the trial court’s finding that termination of his parental rights is in the child’s best interest, we are required to review that question. Discerning no error, we affirm.

This case stems from injuries suffered by a minor while he was a resident at a juvenile treatment facility. The plaintiff initially filed suit against the former owner and operator of the facility. Nearly a year later, the plaintiff amended his complaint to include the party that owned and operated the facility during the relevant time period. Both of the defendants moved for summary judgment. The trial court granted summary judgment for the original defendant, in part, because it found that the original defendant did not owe a duty of care to the plaintiff at the time the alleged injuries occurred. The court granted summary judgment for the second defendant because the plaintiff failed to include the party in the suit within the applicable statute of limitations. After the trial court denied the plaintiff’s
post-judgment motion to set aside its ruling, the plaintiff appealed. We affirm the trial court’s ruling and remand.

In terminating a mother’s parental rights, the trial court concluded that there were two statutory grounds for termination: abandonment by willful failure to visit and failure to manifest an ability and willingness to assume custody and financial responsibility. The trial court also concluded that termination of the mother’s parental rights was in the child’s best interest. Because we conclude that the evidence of the grounds for terminating the mother’s parental rights was less than clear and convincing, we reverse.

The Petitioner, Rocky Joe Houston, appeals from the Roane County Criminal Court’s dismissal of his petition for the writ of habeas corpus from his 2010 conviction of felony evading arrest, for which he served a one-year sentence. On appeal, he contends that the habeas corpus court erred in dismissing his petition. Because the Petitioner failed to state a cognizable basis for relief, we affirm.

Defendant, Bryant Lamont Thomas, was employed as a probation officer with the Tennessee Department of Correction. He pled guilty to Class E felony sexual contact with a probationer. Following a sentencing hearing, the trial court denied Defendant judicial diversion and sentenced Defendant to two years to be served on supervised probation. Defendant claims the court abused its discretion by denying diversion. After a review of the record and applicable law, we affirm.

The Defendant, Ida Veronica Thomas, pleaded guilty to theft of property valued at $60,000 or more, but less than $250,000. Pursuant to a plea agreement, the trial court ordered the Defendant to serve twelve years on community corrections and scheduled a subsequent restitution hearing. At the restitution hearing, the trial court ordered restitution in the amount of $151,385 to be paid at a rate of $75 per month. On appeal, among other issues, the Petitioner challenges the trial court’s payment schedule for the restitution, $151,285 at $75 per month for twelve years, which cannot be completed during the length of the Defendant’s sentence. The State concedes this is error and agrees that a remand is the appropriate remedy as to this issue. After reviewing the record, we conclude that restitution is appropriate in this case, but we remand for the trial court: (1) to order a presentence report as required by statute in restitution cases; and (2) to consider the Defendant’s financial resources, future ability to pay, and length of her community corrections sentence as it relates to a payment schedule for restitution.

This appeal arises from a personal injury action. The plaintiff filed this action more than one year after the vehicle collision from which the cause of action accrued. The defendant filed a motion for summary judgment, arguing that the plaintiff’s action was untimely. The plaintiff filed a response arguing that the statute of limitations for personal injury actions was extended to two years, pursuant to Tennessee Code Annotated § 28-3-104(a)(2), due to the traffic citation issued to the defendant for failure to exercise due care in violation of section 55-8-136 as a result of the vehicle collision. The Trial Court found that section 28- 3-104(a)(2) was applicable to extend the statute of limitations to two years because the defendant had been charged with a criminal offense and a criminal prosecution had been commenced against him. Discerning no error, we affirm.

In this appeal from a final decree of divorce, Husband challenges the trial court’s division of the marital estate and the award of alimony in futuro. He also raises issues concerning the court’s denial of his request to rescind a mediated settlement agreement and to pay the alimony in solido award in installments. Discerning no abuse of discretion, we affirm.

Craig Dagnan, Defendant, violated the conditions of probation, and the trial court revoked his probation but ordered his probation reinstated after eleven months and twenty-nine days’ incarceration. Defendant was granted a furlough from jail to attend an inpatient drug and alcohol program. After being dismissed from the inpatient program, Defendant failed to report back to jail and absconded. He was charged with escape, and a revocation warrant was issued. He was apprehended in Georgia and returned to Tennessee. Following a hearing, the trial court revoked Defendant’s probation and ordered Defendant to serve the balance of his six-year sentence. Discerning no error, we affirm.

I concur fully with the conclusion reached by the majority that there was overwhelming evidence to support the trial court's decision to revoke Defendant's probation and to order Defendant to serve the balance of his six-year sentence in incarceration. I write separately to simply express my belief that once a determination is made that a defendant has violated the conditions of his or her probation, neither an additional hearing not any additional findings are statutorily mandated of a trial court to determine the manner in which the original sentence should be served.¹ Thus, there is no opportunity for an abuse of discretion when a "second exercise of discretion" is not required by either sections 40-35-310 or 40-35-311 of Tennessee Code Annotated.

A father challenges the trial court’s child support determination, property division, and attorney fee award. In its calculation of gross income for child support purposes, the trial court properly declined to give the father credit for retirement benefits awarded as part of the property division. If the value of the father’s retirement benefits has significantly appreciated since the time of the divorce, the father may bring a petition to modify the child support award to reflect an increase in the mother’s gross income. We affirm the decision of the trial court in all respects.  

The Appellant, Derrick Jefferson, was convicted of first degree premeditated murder, and he received a sentence of life imprisonment. On appeal, the Appellant contends that (1) the trial court erred by allowing the State to enter the Appellant’s prior mug shots into evidence; (2) the trial court erred by allowing the State to admit photographs of the victim’s body and the bullets taken from the victim’s body during the autopsy; (3) the trial court gave an erroneous oral jury instruction regarding the presumption of innocence; (4) the trial court gave an erroneous oral jury instruction that the stipulation regarding the Appellant’s mug shot, which revealed the Appellant’s prior arrests, was relevant only on the issue of the Appellant’s appearance; (5) the trial court erred by denying the Appellant’s request for a mistrial when, during voir dire, the jury pool entered the courtroom before the Appellant came out of “lockup”; (6) the cumulative errors require reversal of the Appellant’s conviction and a new trial. Upon review, we conclude that the trial court committed no reversible error, and we affirm the judgment of the trial court.

This appeal arises from a divorce proceeding after a short-term marriage. The husband challenges the trial court’s decisions regarding his parenting time, the calculation of his income, and its award of alimony to the wife. We affirm.

The Defendant, Ronald D. McCallum, Jr., was convicted by a Davidson County Criminal Court jury of two counts of aggravated robbery, a Class B felony, and vandalism, a Class A misdemeanor. See T.C.A. § 39-13-402 (2018) (aggravated robbery); § 39-14-408 (2018) (vandalism); § 39-14-105 (2018) (grading for vandalism). The trial court sentenced the Defendant as a Range I, standard offender to ten years’ confinement at 85% service for each aggravated robbery conviction and to eleven months, twenty-nine days for the vandalism conviction. The court imposed partial consecutive service, for an effective twenty-year sentence at 85% service. On appeal, the Defendant contends that the prosecutor engaged in misconduct during her closing argument. We affirm the judgments of the trial court.

A real estate broker filed a complaint against a client alleging that the client breached the parties’ brokerage agreement by purchasing a property and not paying a commission to the broker.  The client filed a motion for summary judgment asserting that the brokerage agreement was void for vagueness because one of its provisions was illogical.  The trial court disagreed with the client after concluding that any confusion was due to a simple drafting error.  The trial court reformed the brokerage agreement to reflect the parties’ intentions and determined that the client breached the brokerage agreement as reformed. The trial court then, sua sponte, granted summary judgment to the real estate broker.  We affirm.

A Knox County jury convicted the defendant, Baldomero Galindo, of first degree murder, for which he received a sentence of life imprisonment. In this delayed appeal, the defendant argues the trial court erred in denying his motion for mistrial following the late disclosure of several discovery materials in violation of Brady v. Maryland, 373 U.S. 83 (1963). After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

The Defendant, Javian Jakeil Hawkins, appeals from his twenty-five-year sentence imposed for his second degree murder conviction, contending that the trial court abused its discretion by imposing the maximum in-range sentence and by denying his motion to reduce sentence pursuant to Tennessee Rule of Criminal Procedure 35. Following our review, we affirm; however, we remand for correction of a clerical error on the judgment form.

Following a jury trial, the Petitioner, Tyrone Bohanna, was convicted of especially aggravated robbery, reckless endangerment, aggravated burglary, and three counts of aggravated assault. The trial court imposed an effective sentence of 120 years, eleven months, and twenty-nine days. This court affirmed the Petitioner’s convictions and sentences on direct appeal. See State v. Tyrone Bohanna, No. W2011-01273-CCA-R3- CD, 2013 WL 2393050, at *1 (Tenn. Crim. App. May 29, 2013), perm. app. denied (Tenn. Nov. 14, 2013). The Petitioner filed a petition for post-conviction relief, which the post-conviction court denied following an evidentiary hearing. On appeal, the Petitioner contends that trial counsel was ineffective at trial and during proceedings on his motion for new trial, that the State failed to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that the Petitioner did not receive a fair trial after his trial was severed from the trial of his co-defendant. Upon reviewing the record, the parties’ briefs, and the applicable law, we affirm the judgment of the post-conviction court.