APPELLATE COURT OPINIONS

Defendants appeal the judgment entered in favor of Plaintiff in this breach of contract action arising out of a failure to pay a promissory note.  Defendants argue that the trial court erred in several pretrial rulings, in concluding that the contract was ambiguous and considering parol evidence, in holding that the attorney that drafted the agreement represented Defendants and construing the ambiguous term against them, and in denying their motion to supplement the appellate record.  Upon our review, we discern no reversible error and affirm the judgment of the trial court.

The Defendant-Appellant, Joseph L. Ware, was convicted by a Davidson County jury of first degree felony murder (count 4), second degree murder (count 5), attempted especially aggravated robbery (count 6), attempted aggravated robbery (counts 3, 7), reckless endangerment (counts 8, 9), aggravated assault (count 10), and theft under $500 (counts 2, 11, 12), for which he received an effective sentence of life plus 10 years imprisonment. In this appeal as of right, the Defendant raises the following issues for our review: (1) whether the trial court “committed reversible error by the failure to charge the jury in the law regarding accomplice testimony;” (2) whether the trial court erred in admitting into evidence posts from the Defendant’s Facebook page; (3) whether the prosecutors engaged in prosecutorial misconduct during closing argument by “emotional displays . . . calculated to inflame and/or play to the sympathies of the jury” thereby denying the Defendant a fair trial; (4) whether the evidence is sufficient to support the conviction of first degree felony murder; and (5) whether the trial court erred in imposing consecutive sentencing. Upon our review, we reverse and remand count eight for a new trial because felony reckless endangerment is not a lesser included offense of attempted first degree murder. In all other respects, the judgments of the trial court are affirmed.

The Defendant-Appellant, Derek Wyche, was convicted by a Davidson County jury of felony murder and especially aggravated robbery, for which he received a mandatory life sentence plus twenty years’ imprisonment. In this appeal as of right, the Defendant challenges the sufficiency of the evidence in support of his convictions and the trial court’s imposition of consecutive sentencing. Upon our review, the convictions of the trial court are affirmed. However, we remand this matter for a new sentencing hearing.

Appellant/Father appeals the trial court’s denial of his petition to change the surnames of his minor children. The trial court held that Appellant failed to meet his burden to show that changing the children’s names is in their best interests. Discerning no error, we affirm.

Nearly three years after the court dismissed the plaintiff’s healthcare liability action against the defendant, Plaintiff filed this breach of contract action based on the same underlying facts and circumstances. The trial court dismissed the plaintiff’s breach of contract claim as barred by the doctrine of res judicata. We affirm.

In this interlocutory appeal, the defendants appeal the trial court’s denial of their motion to dismiss a medical malpractice lawsuit on the ground that the plaintiffs failed to comply with Tennessee Rule of Civil Procedure 25.01. We reverse the decision of the trial court and remand the case for further proceedings.

David Campbell (“Appellant”) was a police officer with the Chattanooga Police Department (“CPD”). On May 29, 2016, Mr. Campbell was dispatched to an apartment complex on report of a fight there. When Mr. Campbell arrived on scene, there were approximately 20-30 people in the parking lot. Mr. Campbell and other officers directed the crowd to clear the parking lot. While Mr. Campbell was giving these instructions, Hanson Melvin, a resident of the complex, walked by Mr. Campbell, and Mr. Campbell initiated an encounter with him. Mr. Melvin was known to Mr. Campbell because, on several previous occasions, Mr. Campbell had stopped Mr. Melvin for various alleged offenses, including driving without a valid driver’s license. Mr. Melvin was walking toward a silver vehicle with his friend, Coheleach Holmes. During this interaction, Mr. Campbell handcuffed Mr. Melvin and arrested him for disorderly conduct. Mr. Campbell placed Mr. Melvin in the back of his police car and took him to jail.

In 2009, Ronald Brantley (“Employee”) settled a workers’ compensation claim with Brantley Excavating (“Employer”) regarding a hand injury he sustained during the course and scope of his employment. Employee returned to his authorized treating physician in 2017, seeking medication for pain he was experiencing in his injured hand. The diagnostic test results were normal. The treating physician declined to prescribe pain medication and offered no further treatment. Employee subsequently moved to compel Employer to provide a panel of pain management physicians, claiming the treating physician had made a referral. The trial court concluded the treating physician did not make a referral and denied Employee’s motion, citing Tenn. Code Ann. § 50-6-204(j)(2)(A). Employee has appealed. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.

A Lawrence County Circuit Court Jury convicted the Appellant, Larry Sexton, of aggravated statutory rape, a Class D felony, and the trial court sentenced him as a Range III, career offender to twelve years in confinement. On appeal, the Appellant contends that the trial court erred by allowing the State to reopen its proof after he moved for a judgment of acquittal and by sentencing him as a career offender. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

This appeal arises from an action commenced by two insured parties against their insurance agent and the insurance agency where he was employed after the insureds’ insurance carrier refused to provide excess uninsured motorist coverage because it was not included in the insureds’ policy. The insureds alleged that their insurance agent failed to procure the requested insurance on their behalf and that they consequently had suffered monetary losses. The Trial Court applied a statutory rebuttable presumption that the insureds had accepted the provided coverage by paying their insurance premiums, pursuant to Tennessee Code Annotated § 56-7-135(b). Upon its finding that the insureds had not rebutted that presumption, the Trial Court dismissed the insureds’ action. The insureds have appealed. Upon our determination that Tennessee Code Annotated § 56-7- 135(b) does not apply to actions against an insurance agent for failure to procure insurance coverage as directed, we reverse the Trial Court’s grant of summary judgment and remand for the action to proceed.

In this divorce action, the trial court equitably divided the marital estate, adopted a permanent parenting plan for the parties’ minor child, and set child support. On appeal, the husband challenges the allocation of marital debt, the denial of his request for equal parenting time, and the calculation of child support. We affirm.

Aggrieved of his Davidson County Criminal Court jury convictions of one count of felony murder in the perpetration of aggravated child neglect, one count of the facilitation of felony murder in the perpetration of aggravated child abuse, three counts of aggravated child abuse, one count of aggravated child neglect, and one count of the facilitation of aggravated child abuse, the defendant, Donald Lee Harris, appeals. The defendant alleges that the trial court erred by permitting the State to introduce the victim’s medical records on rebuttal, that the State’s election of offenses was insufficient to ensure jury unanimity, that the trial court erred in its jury instructions regarding criminal responsibility for the conduct of another, that the evidence was insufficient to support his convictions, and that the total effective sentence of life plus 75 years is excessive. The defendant’s convictions of felony murder (Count 9), facilitation of felony murder (Count 8), aggravated child abuse (Counts 2 and 3), aggravated child neglect (Count 7), and facilitation of aggravated child abuse (Count 1) are affirmed. We find no error in the sentencing decisions of the trial court. Because the State’s election of offenses was insufficient to safeguard the defendant’s right to a unanimous verdict in Count 6, the defendant’s conviction in Count 6 is reversed. Because dual convictions of aggravated child abuse in Counts 2 and 3 violate double jeopardy principles, those convictions must be merged. The case is remanded for a new trial on the offense of aggravated child abuse in Count 6 and for the entry of corrected judgment forms reflecting the merger of Counts 2 and 3.

In this post-divorce action, the husband sought to modify his alimony obligation to the wife. The trial court denied the husband’s petition to modify, determining that the husband had failed to prove that a substantial and material change in circumstance had occurred since entry of the divorce decree. The husband has appealed. Discerning no reversible error, we affirm.

The Appellant, David Mitchell Bentley, pled guilty in the Davidson County Criminal Court to reckless aggravated assault, a Class D felony, and leaving the scene of an accident resulting in injury, a Class A misdemeanor. After a sentencing hearing, the trial court ordered that he serve consecutive sentences of three years and eleven months, twenty-nine days, respectively, in confinement. On appeal, the Appellant contends that we should remand this case to the trial court for a new sentencing hearing. In the alternative, he contends that the trial court improperly enhanced his felony sentence and failed to apply mitigating factors, that the trial court erred by ordering consecutive sentencing, and that the trial court erred by ordering that he serve his sentences in continuous confinement. Based upon the record and the parties’ briefs, we conclude that a new sentencing hearing is necessary because the trial court failed to place any findings on the record with regard to applicable enhancement factors, the order of consecutive sentencing, and the denial of alternative sentencing. Accordingly, the judgment of the trial court is reversed, and the case is remanded to the trial court.

The petitioner, Kalyn Polochak, appeals the denial of her petition for post-conviction relief, which petition challenged her 2012 Overton County Criminal Court jury convictions of first degree premeditated murder, first degree felony murder, conspiracy to commit first degree murder, especially aggravated robbery, and theft of property valued at $1,000 or more but less than $10,000. Discerning no error, we affirm the denial of post-conviction relief.

The Appellant, Ronald Turner, appeals the Knox County Criminal Court’s imposing a ten-year sentence for possession of one-half gram or more of cocaine with intent to deliver in case number 105636 and a twelve-year sentence for attempted second degree murder in case number 105481. On appeal, he contends that the trial court erred by not sentencing him to the minimum punishment in the range, eight years, for the offenses, Class B felonies. Based upon the record and the parties’ briefs, we affirm the sentences but remand the case to the trial court for correction of judgments of conviction.

The Petitioner, Christina Jones Thomas, was convicted by a jury of especially aggravated robbery and especially aggravated kidnapping, for which she received an effective sentence of eighteen years’ imprisonment. State v. Christina Jones Thomas, No. E2013- 01531-CCA-R3-CD, 2014 WL 3440687, at *1 (Tenn. Crim. App July 14, 2014), perm. app. denied (Tenn. Nov. 20, 2014). The Petitioner subsequently filed a petition seeking post-conviction relief, arguing that trial counsel was ineffective on multiple grounds, including (1) failure to secure an expert witness for trial; (2) failure to seek scientific testing of evidence presented by the State and failure to challenge such evidence; (3) failure to present a plea offer to the Petitioner; (4) failure to challenge and remove a juror whom the Petitioner knew and felt would be biased against her; (5) failure to impeach the victim about inconsistencies in his statements; (6) failure to address merger of the underlying offenses; and (7) failure to question the victim or present evidence of other injuries sustained by the victim that could have alleviated the seriousness of the Petitioner’s crimes. The trial court denied relief by written order, which the Petitioner now appeals. In addition, the Petitioner also argues that she is entitled to a second postconviction hearing because post-conviction counsel was suspended from the practice of law by the Tennessee Supreme Court shortly after the post-conviction hearing. Following our review, we affirm.

Due to the deficiencies in Appellant’s brief, we conclude that he waived consideration of all issues on appeal and hereby dismiss the appeal.

The Defendant, Kyle Alex Batiz, was convicted of aggravated child abuse and reckless homicide and was sentenced, respectively, to concurrent sentences of 21 years at 100% and 3 years at 30 percent. On appeal, he argues that the evidence was insufficient to sustain the conviction for aggravated child abuse; the trial court erred by not suppressing his text messages and statement to police; the trial court erred by allowing a forensic pathologist to testify regarding matters not within her expertise; he should have been sentenced as an especially mitigated offender; and the conviction for aggravated child abuse should be reversed because of cumulative errors that occurred during the trial. We have reviewed the record in this matter and conclude that the issues raised by the Defendant are without merit. Accordingly, we affirm the judgments of the trial court.

Wilbert Lamari Lottie, III, (“Defendant”) pled guilty, as a Range I standard offender, to one count each of possession of 0.5 grams or more of cocaine with intent to sell and possession of 0.5 grams or more of cocaine with intent to deliver and received a ten-year community corrections sentence. Six months into his sentence, the trial court issued a violation of community corrections warrant, which alleged that Defendant had tested positive for cocaine. Following a hearing, the trial court found that Defendant had violated the terms of his community corrections sentence. The trial court revoked Defendant’s community corrections sentence and resentenced Defendant to twelve years to serve in the Tennessee Department of Correction. On appeal, Defendant argues that his sentence is excessive and that the trial court “did not follow the established sentencing guidelines.” Upon review, we affirm the judgment of the trial court.

The Petitioner, Dearick Stokes, was denied post-conviction relief from his convictions for felony murder and attempted especially aggravated robbery and his effective life sentence. On appeal, the Petitioner alleges that trial counsel was ineffective for failing to: (1) interview and subpoena four eyewitnesses who identified another individual as being present at the crime scene; (2) investigate and adequately cross-examine a police officer regarding the crime scene; (3) investigate or present rebuttal witnesses concerning admissions allegedly made by the Petitioner; (4) obtain and review the victim’s cellular phone records; (5) investigate and discuss the case with the Petitioner; and (6) properly investigate a witness for the State and request Jencks material relative to him. The petitioner additionally contends that either the State committed a Brady violation by failing to provide a witness’s supplemental statement to trial counsel or, if it was provided, counsel’s failure to use it during cross-examination was ineffective assistance of counsel. Furthermore, the Petitioner argues that he received ineffective assistance of appellate counsel because appellate counsel should have asserted on direct appeal that the trial court (1) improperly denied his motion for a mistrial due to juror intimidation, and (2) committed plain error by allowing a witness to testify as to how he discovered the Petitioner’s real name. After a thorough review of the record, we discern no error and affirm the post-conviction court’s judgment.

Defendant, Kenneth R. Boyd, appeals from the trial court’s denial of his motion requesting additional pre-trial jail credits. The State responds that the appeal should be dismissed because it was untimely filed and that the sentence is legal. Because Defendant has failed to state a colorable claim for relief, we affirm the trial court’s denial of the motion and the denial of additional pre-trial jail credits. However, we remand the matter to the trial court for correction of a clerical error on the corrected judgment form for Count Three.

This appeal arises from the dismissal of a personal injury action in which the alleged tortfeasor died before suit was filed.  Upon a motion to dismiss, the trial court determined that the suit was barred by the applicable statute of limitations.  Because no personal representative was appointed for the deceased tortfeasor and more than a year had elapsed following the accrual of the plaintiff’s cause of action, we affirm the dismissal.  

This is an appeal from the trial court’s denial of a motion to recuse and award of summary judgment.  Plaintiff-homeowner took out a loan secured by a deed of trust on a parcel of real property.  After defaulting on the loan, plaintiff and defendant-bank entered into a loan modification agreement.  Plaintiff, however, again defaulted on the loan, and, after she failed to make the required acceleration payments, defendant initiated foreclosure proceedings pursuant to the deed of trust.  The real property ultimately was sold at foreclosure for less than the balance owed on the loan.  Plaintiff then sued defendant for breach of contract and wrongful foreclosure.  Defendant moved for summary judgment.  Plaintiff never responded to defendant’s motion for summary judgment.  Three days prior to the hearing on the summary judgment, plaintiff filed a motion for a change of venue, which the trial judge treated as a recusal motion pursuant to Tennessee Supreme Court Rule 10B and which, following a hearing, he denied.  The trial court subsequently granted defendant’s summary judgment motion and dismissed plaintiff’s claims with prejudice.  Plaintiff appeals both the trial court’s denial of the motion to recuse and its granting of the motion for summary judgment.  We affirm.

The trial court entered an order awarding a mother retroactive child support and calculating the amount of support the father owed.  The father filed a motion for relief from the judgment pursuant to Tenn. R. Civ. P. 60.02.  Several months later, he amended his motion to assert that he was entitled to relief from the judgment because his attorney sustained an injury and died, which prevented the father from timely receiving a copy of the judgment so he could appeal it.  The trial court denied the motion, finding that the father failed to raise the issue within a reasonable time, and then awarded the mother one-half of her attorney fees.  The father appeals.  We affirm the trial court’s denial of the motion, but we vacate the award of attorney fees because the trial court failed to consider their reasonableness.