APPELLATE COURT OPINIONS

A Davidson County jury convicted the defendant, Shermond Dewayne Dillard, Jr., of aggravated robbery, for which he received a
ten-year sentence. On appeal, the defendant argues the trial court should have granted a new trial based on the admission of irrelevant and unfairly prejudicial testimony and improper closing argument by the State. The defendant also contends the trial court erred in sentencing him. After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

This appeal arises from the divorce of Susan Smith Rawls (“Wife”) and Daniel Wexler Rawls (“Husband”). Wife sued Husband for divorce in the Circuit Court for Knox County (“the Trial Court”). After a trial, the Trial Court, inter alia, divided the marital estate and awarded Wife alimony and child support. Husband appeals to this Court raising a host of issues. However, Husband’s brief is non-compliant with the Rules of the Tennessee Court of Appeals and the Tennessee Rules of Appellate Procedure to such a degree that his issues are waived. Wife raises an additional issue of her own as to whether Husband is obligated, either by an oral contract he allegedly entered into or through promissory estoppel, to pay the college expenses of one of the parties’ adult children. The evidence does not preponderate against the Trial Court’s finding that Husband never committed to pay these college expenses. Wife also requests an award of attorney’s fees incurred on appeal. We decline to grant such an award. We affirm the Trial Court.

This appeal follows the trial court’s entry of an order of dismissal. Because the notice of appeal was not timely filed, we dismiss the appeal for lack of subject matter jurisdiction.

The Defendant entered a guilty plea to one count of sexual exploitation of a minor via electronic means pursuant to pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), with the sentence to be determined by the trial court. The trial court denied the Defendant’s request for judicial diversion and sentenced him to four years of supervised probation with thirty days to be served in confinement. On appeal, the Defendant asserts that the trial court erred in denying diversion because it considered an irrelevant factor and because its factual findings were against the weight of the evidence. He also argues he was entitled to full probation. After a thorough review of the record, we affirm the trial court’s sentencing decisions and remand for correction of the judgment form.

This appeal arises from a conservatorship action in which an attorney ad litem was appointed to represent the respondent. The dispositive issue is whether the trial court had the discretion to assess all or any portion of the fees of the attorney ad litem to a party other than the respondent when Tenn. Code. Ann. § 34-1-125(b) states “[t]he cost of the attorney ad litem shall be charged against the assets of the respondent.” The trial court ruled that it did not have the discretion to deviate from the clear mandate in the statute. We affirm.

The Petitioner, Christopher Brown, appeals the denial of his petition for post-conviction relief, in which he challenged his convictions for one count of first degree premeditated murder and three counts of aggravated assault and his effective sentence of life imprisonment plus ten years. On appeal, the Petitioner contends that: (1) post-conviction counsel had a conflict of interest that disqualified him from representing the Petitioner at the hearing; (2) trial counsel provided ineffective assistance; and (3) post-conviction counsel was ineffective at the post-conviction hearing. Upon reviewing the record and the applicable law, we conclude that the Petitioner is entitled to a new hearing based upon post-conviction counsel’s conflict of interest.

Defendant, Christopher Allen Smith, filed a Rule 35 Motion for Modification of Sentence. The trial court held a bifurcated hearing where it denied Defendant's Rule 35 motion and revoked Defendant's probation, ordering his two eight-year consecutive sentences into execution. Defendant now appeals the trial court's denial of his Rule 35 Motion for Modification of Sentence. After a thorough review of the record and applicable case law and discerning no error, the judgments of the trial court are affirmed.

The Defendant, Tremaine Wilbourn, appeals his convictions for first degree premeditated murder, carjacking, employing a firearm during the commission of a dangerous felony, and possession of a firearm while having a prior felony conviction involving the use or attempted use of violence, for which he received an effective sentence of life in prison without the possibility of parole plus thirty-eight years. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction for first degree premeditated murder; (2) the trial court erred in prohibiting defense counsel from referencing a prior shooting during opening statements; (3) the trial court erred in excluding evidence of the Defendant’s reason for turning himself in to the United States Marshals Service; and (4) the prosecutor improperly utilized a gun as a demonstrative aid and made improper comments during closing arguments. Upon reviewing the appellate record, the parties’ briefs, and the applicable law, we affirm the judgments of the trial court.

I respectfully dissent from the majority’s opinion, concluding that post-conviction counsel had an actual conflict of interest and granting a new hearing, because I conclude that the issue is waived.

The Appellant, Kenneth Lloyd Hill, was convicted in the Davidson County Criminal Court of possessing a firearm while having a prior conviction for a felony involving the use or attempted use of force, violence, or a deadly weapon, a Class C felony, and the trial court sentenced him as a Range III, persistent offender to fifteen years in confinement. On appeal, the Appellant contends that the trial court erred by refusing to sever the offense from the remaining offenses for which he was on trial and that the trial court committed various sentencing errors. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

The plaintiff sued the administrator of the estate of his deceased business partner seeking a declaratory judgment over ownership of reel-to-reel tape recordings. The plaintiff claimed joint ownership of the tapes with the decedent. The estate administrator moved to dismiss on res judicata grounds, arguing that a federal court had previously determined that the decedent was the sole owner of the tapes. After a combined motion hearing and bench trial, the circuit court initially granted the motion to dismiss. The plaintiff then moved to alter or amend the judgment, and the court set aside its original ruling and granted the requested declaratory relief. We agree that res judicata does not apply. So we affirm.

The Petitioner appeals the summary denial of his petition for writ of habeas corpus in which he challenged his convictions for especially aggravated robbery and facilitation of first degree murder. After a review of the record and applicable law, we affirm the judgment of the habeas corpus court.

This is a premises liability action in which the plaintiffs, a husband and wife, filed suit against the defendant grocery store for personal injuries and other damages resulting from the wife’s slip and fall in the parking lot. The trial court granted the defendant’s motion for summary judgment, holding that the plaintiffs failed to establish that the defendant owed a duty of care to maintain the parking lot, which was owned and operated by a third party. The plaintiffs appeal. We reverse the decision of the trial court.

A jury convicted the Defendant, Nathan G. Fleming, of two counts of aggravated robbery, two counts of attempted first degree murder, four counts of employing a firearm during the commission of a dangerous felony, two counts of carjacking, and two counts of especially aggravated robbery.  The trial court merged various convictions and imposed an effective sentence of sixty-eight years.  On appeal, the Defendant challenges the sufficiency of the evidence supporting his convictions and the trial court’s imposition of partial consecutive sentences.  We affirm the judgments of the trial court. 

The petitioner, Eddie H. Pittman, appeals the summary dismissal of his petition for writ of habeas corpus, which petition challenged his 2015 Madison County Circuit Court jury conviction of reckless aggravated assault. Discerning no error, we affirm.

Aggrieved of his Hamilton County Criminal Court jury convictions of felony murder in the perpetration of aggravated child abuse and aggravated child abuse, the defendant, Rhasean Lowry, appeals. The defendant alleges that the trial court erred by denying his motion to disqualify the Hamilton County District Attorney General’s Office, by admitting into evidence photographs taken during the victim’s autopsy, by refusing to provide a jury instruction on facilitation as a lesser included offense of felony murder and aggravated child abuse, and by denying his motion for new trial based upon the admission of certain testimony. He also contends that the evidence was insufficient to support his convictions. Discerning no error, we affirm.

I join the majority in all issues except the issue regarding the trial court’s denial of Defendant’s request for the trial court to charge facilitation as a lesser included offense of felony murder. As to that issue, I concur in results only.

The Petitioner, William Floyd Cartwright, challenges the denial of his petition for post-conviction relief attacking his jury conviction for first degree premeditated murder. On appeal, the Petitioner first raises a free-standing claim that the jury instruction requiring the jury to “accept the law as given by the [trial] court” was violative of the Tennessee Constitution and warrants post-conviction relief. The Petitioner then alleges that he received ineffective assistance at trial due to trial counsel’s (1) failure to move for a new preliminary hearing due to an incomplete recording of the first; (2) failure to fulfill a promise made during opening statement that the victim was on house arrest with supporting proof at trial; (3) failure to adequately cross-examine the medical examiner about the victim’s cause of death; (4) failure to seek to have the proof re-opened in order to call the co-defendant to the stand after the co-defendant had accepted a plea; and (5) failure to object to the aforementioned jury instruction. He also submits that the cumulative effect of trial counsel’s errors deprived him of a fair trial. After a thorough review of the record, we affirm the judgment of the post-conviction court.

The Defendant, Robert Michael Wolfenbarker, pleaded guilty to one count of theft of property valued at more than $60,000 but less than $250,000, two counts of theft of property valued at more than $2,500 but less than $10,000, one count of theft of property valued at $1,000 or less, one count of attempted auto burglary, and one count of vandalism. The trial court sentenced the Defendant to nine years of confinement. On appeal, the Defendant contends that the trial court erred when it sentenced him. After review, we affirm the Defendant’s sentences.

A jury convicted the Petitioner, Ziberia Marico Carero, of possession of 0.5 grams or more of cocaine in a school zone with intent to sell, possession of 0.5 grams or more of cocaine in a school zone with intent to deliver, sale of 0.5 grams or more of cocaine, and delivery of over 0.5 grams or more of cocaine, and on appeal, his convictions were merged into a single conviction for possession of 0.5 grams or more cocaine in a school zone with intent to sell.  This court affirmed the convictions and sentence of twenty-three years in confinement.  The Petitioner filed a timely post-conviction petition asserting that he received ineffective assistance of counsel because trial counsel failed to: (1) move for a mistrial based upon the State’s presentation of “surprise” witnesses; (2) object to hearsay testimony; (3) object to a multiplicitous indictment; (4) adequately investigate; and (5) request a facilitation instruction.  Under a heading of “cumulative error,” the Petitioner also asserts that trial counsel failed to: (6) secure sequestration of the witnesses; (7) present witness testimony; and (8) protect the Petitioner’s right to testify.  The Petitioner also raises various trial errors and contends he is entitled to relief pursuant to cumulative error.  After a thorough review of the record, we conclude that the Petitioner’s claims fail to establish ineffective assistance of counsel or have been previously determined or waived, and we affirm the post-conviction court’s denial of relief.

Mother and Father had been divorced for less than two years when Mother and her new husband petitioned to terminate Father’s parental rights. A few weeks before trial, Father was arrested, and he did not appear for the trial. In Father’s absence, the chancery court concluded that two statutory grounds for termination had been proven by clear and convincing evidence: abandonment by willful failure to visit and abandonment by willful failure to support. The court also concluded that the evidence was clear and convincing that termination of Father’s parental rights was in the child’s best interest. As part of its analysis, the court applied the missing witness rule based on Father’s failure to testify at trial. And the court applied the doctrine of unclean hands to “repel[] [Father] at the courthouse steps from receiving any relief that he has requested in this cause.” We conclude that neither the missing witness rule nor the doctrine of unclean hands was applicable and that their application was fundamentally unfair to Father. We further conclude that the evidence of the two grounds for terminating Father’s parental rights was less than clear and convincing. So we reverse.

This appeal involves a trip and fall premises liability case filed against a supermarket by one of its customers. The trial court granted summary judgment to the defendant because the plaintiff’s evidence did not tend to show the defendant had either actual or constructive notice of a dangerous condition that would give rise to a duty to either warn the plaintiff of the condition or remove the condition. For the following reasons, we agree that the defendant lacked actual or constructive notice of a dangerous condition in its store, and affirm the trial court’s award of summary judgment.

The dispositive issue in this appeal is whether an amended pleading that seeks to vacate an arbitration award that was delivered to the parties more than 90 days earlier relates back to the date of the original pleading pursuant to Rule 15.03 of the Tennessee Rules of Civil Procedure when the original pleading only sought to modify the arbitration award. A dispute arose when an employer terminated the employment contract of its chief financial officer. The parties submitted the dispute to arbitration pursuant to the Tennessee Uniform Arbitration Act (“the Act”), Tenn. Code Ann. § 29-5-301 to -320. After the arbitrator issued a monetary award in favor of the corporation, the employer filed a petition to confirm the award in chancery court. Within 90 days of the delivery of a copy of the award to the employee, which is the limitation period set forth in Tenn. Code Ann. § 29-5-314(a) of the Act, the employee timely filed an answer to the petition in which he sought modification of the award with respect to prejudgment interest only. Otherwise, the employee admitted all material allegations in the petition. Significantly, the employee did not seek to vacate the award. After waiving any claim to prejudgment interest, the employer filed a motion for judgment on the pleadings to confirm the arbitration award in all other respects. Before the hearing on the motion, but more than 90 days after a copy of the award was delivered to the employee, the employee filed a Rule 15 motion to amend his answer to assert a counterclaim to vacate the award on grounds not previously raised. The trial court denied the employee’s Rule 15 motion to amend the answer as futile on the ground that it was not a timely application to vacate the final award and awarded the employer judgment on the pleadings. The employee appeals, contending the court erred because an amended pleading relates back to the date of the original pleading pursuant to Rule 15.03. We have determined that strict adherence to the 90-day limitation furthers the primary objectives of the Act, which is to bring the arbitration process to a speedy and final resolution. Furthermore, the limitations provided by Tenn. Code Ann. §§ 29-5-312 and -313(b) are more specific than the general relation-back provision of Tenn. R. Civ. P. 15.03. Therefore, we affirm the trial court’s denial of the motion to amend the answer as futile on the ground that the employee did not file a timely application to vacate the final award, and we affirm the entry of judgment on the pleadings in favor of the employer.

This appeal requires us to determine the scope of a real estate licensee’s duty under the Tennessee Residential Property Disclosures Act codified at Tennessee Code Annotated § § 66-5-201 et seq. to advise their client to disclose conditions of improved real property. We hold that a licensee’s duty under the Act encompasses a duty to advise his or her client/seller to disclose known material defects. We affirm denial of Plaintiff/Sellers’ motion for summary judgment on the issue of breach of statutory and contractual duties. In light of the undisputed facts of this case, we find Defendants are entitled to a judgment as a matter of law on the question of breach and remand for entry of a judgment consistent with this Opinion.

The petitioner, Doyan Anderson, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel at trial. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.