APPELLATE COURT OPINIONS

Petitioner, Santeriaus D. Lavender, pled guilty to second degree murder in exchange for a sentence of thirty years to be served at 100 percent. Petitioner subsequently filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel and that his guilty plea was not knowing and voluntary. The post-conviction court denied relief, and upon our review of the record, we affirm the judgment of the post-conviction court.

This post-divorce appeal concerns the trial court’s modification of a permanent parenting plan. We affirm the parenting plan determination and all other rulings by the trial court.  

Defendant, Ronnie T. Baker, was convicted by a jury of aggravated assault, domestic assault, and interference with a 911 call. The trial court sentenced Defendant to a total effective sentence of ten years, eleven months, and twenty-nine days. On appeal, Defendant argues that (1) the evidence was insufficient to sustain his conviction of aggravated assault; (2) the trial court erred in admitting the victim’s prior consistent statements; (3) the trial court erred in admitting testimony and photos concerning the interior of the victim’s residence that showed destruction of the property by the Defendant; (4) the trial court erred by failing to merge the convictions for aggravated assault and domestic assault; and (5) the trial court erred in imposing the maximum sentence and by imposing partial consecutive sentencing. After conducting a full review of the record, we affirm the judgments of the trial court.

This appeal arises from a defamation action filed by one mayoral candidate against another for statements made during the City of Hendersonville, Tennessee mayoral race. Accordingly, the issues are to be judged based on the more stringent standards that apply in a defamation action brought by a public figure. After engaging in discovery, the defendant filed a motion for summary judgment, contending the plaintiff lacked evidence showing the defendant published the statements with actual malice. To withstand the motion for summary judgment, the plaintiff had the burden to demonstrate he would be able to prove clearly and convincingly that the defendant acted with actual malice, which required proof the defendant had knowledge that the facts he published about the plaintiff were false or that he acted with reckless disregard as to their truth or falsity. The trial court found that the plaintiff “did not produce clear and convincing evidence of actual malice at the summary judgment stage” and summarily dismissed the action. We affirm.

This appeal is from a final decree of divorce. The Husband challenges several of the trial court’s rulings regarding the parenting plan, division of the marital estate, calculation of child support, and denial of his motion to amend to file a counterclaim for alimony. For the following reasons, we affirm the judgment of the trial court.

A Davidson County grand jury indicted the defendant, Brandon E. Banks, for five counts of aggravated rape and two counts of aggravated sexual battery. After trial, a jury convicted the defendant of one count of each offense. On appeal, the defendant challenges the trial court’s denial of his motion to suppress evidence obtained from a warrantless search of his cell phone, the sufficiency of the evidence supporting his conviction for aggravated rape, and several of the trial court’s evidentiary rulings. After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

I join the majority in affirming the defendant’s convictions of aggravated rape and aggravated sexual battery. But I write separately to dissent from the majority’s conclusions that Detective Gish was qualified to describe and give his opinion regarding what the videos and images appeared to show and that the defendant waived his claim regarding Detective Mayo’s “editorial commentary.”

A Hamilton County jury found Defendant, Diontae Smartt, guilty of aggravated sexual battery, for which he received a sentence of eight years’ incarceration. On appeal, Defendant contends that the trial court erred by denying his motion to admit the video recording of his statement to police in its entirety, pursuant to Tennessee Rule of Evidence 106, after the State questioned Defendant about inconsistencies between the statement and Defendant’s trial testimony. Defendant further contends that the trial court erred by denying his request to instruct the jury on self-defense as the defense was fairly raised by the proof at trial. Following a thorough review, we affirm the judgment of the trial court.

The petitioner, Troy Love, 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. Following our review, we affirm the denial of the petition.

The defendant, Jenny Frye, appeals the order of the trial court revoking her community corrections sentence and ordering her to serve an increased sentence of eight years in confinement. Upon review of the record, we conclude the trial court did not abuse its discretion in finding the defendant violated the terms of her community corrections sentence. Accordingly, the judgment of the trial court is affirmed in part. However, because the trial court failed to conduct a sentencing hearing prior to increasing the defendant’s sentence, we remand the matter for a new sentencing hearing.

On September 30, 2016, Appellee Tennessee Secretary of State, Business Services Division assessed $25,000.00 in civil penalties against Appellant David M. Sloane for his violations of the Athlete Agent Reform Act of 2011. Mr. Sloane requested a hearing to dispute the penalties, and the Administrative Law Judge (“ALJ”) reduced the penalties to $5,000.00 for each violation and $740.00 in investigatory costs. Mr. Sloane then filed a petition for judicial review with the trial court; the trial court affirmed the ALJ’s order. Mr. Sloane appeals. We affirm.  

I respectfully dissent from the majority’s opinion granting the delayed appeal because I conclude that the Tennessee Supreme Court, in denying the Petitioner’s request to late-file his appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure (“Rule 11 application”), has already reviewed the substantive underlying issues of the appeal in determining not to accept the late-filed appeal in the interest of justice.

Appellant appeals from the dismissal of his complaint seeking damages for the improper forfeiture of his property seized incident to an arrest. The trial court dismissed the action on the basis of lack of subject matter jurisdiction. We affirm the trial court’s dismissal of Appellant’s claim for the return of his seized property, as the trial court lacked subject matter jurisdiction to adjudicate that claim. We reverse, however, the dismissal of Appellant’s claim for damages related to a bad faith seizure under Tennessee Code Annotated section 40-33-215.

This appeal involves a review of the denial of a motion pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. We affirm the ruling of the trial court.

This case presents a boundary line dispute between the owners of adjacent properties. Gloria Juanita Milton (plaintiff), owner of a roughly 2.44-acre lot in the Morton Acres subdivsion in Campbell County, brought this action against the owners of the adjacent lot to the north, Donald Powell and Donna Powell Fredricks Carson (defendants). The issue at trial was the location of the boundary line between the properties. Each side hired a surveyor. Plaintiff’s surveyor, William Easter, presented a survey of plaintiff’s property that conformed very closely to the calls and boundaries established by the original subdivision plat. Defendants’ surveyor, Dwight Crutchfield, presented a survey of the boundary line that gave defendants property in the amount of about 0.46 acre more than that described in the subdivison plat and Easter’s survey. The trial court credited the survey presented by plaintiff and established the boundary line as presented in the Easter survey. Defendants appeal, arguing that the trial court erred by disregarding wellestablished principles for determining disputed boundaries as prescribed in Thornburg v. Chase, 606 S.W.2d 672 (Tenn. Ct. App. 1980) and Wood v. Starko, 197 S.W.3d 255 (Tenn. Ct. App. 2006). We affirm.

An insured sued his health insurance provider, seeking damages for breach of contract and bad faith refusal to pay valid insurance claims after coverage was denied for medical expenses related to the removal of a kidney stone. The defendants moved for summary judgment based on a benefit exclusion rider to the insurance contract that excluded coverage for treatment, surgery, or expenses related to kidney stones. The trial court rejected the insured’s argument that the exclusion rider did not apply and granted summary judgment to the defendants. Because the defendants were entitled to a judgment of dismissal as a matter of law based on the undisputed facts, we affirm.

A mother appeals the termination of her parental rights to her child. Before trial, the mother moved to dismiss the petition to terminate her parental rights for failure to join the father of the child as a necessary party. The juvenile court denied the motion. And after a trial, the court found six statutory grounds for termination and that termination of the mother's parental rights was in the child's best interest. We discern no error in the trial court's denial of the motion to dismiss. But we conclude that the evidence was less than clear and convincing as to one of the statutory grounds relied on by the trial court for the termination of the mother's parental rights. Still, the record contains clear and convincing evidence to support the remaining five grounds for termination and that termination is in the child's best interest. So we affirm the termination of the mother's parental rights.

The Petitioner, Ugenio Dejesus Ruby-Ruiz, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his 2013 convictions for nine counts of rape of a child, two counts of rape, five counts of aggravated sexual battery, and three counts of sexual exploitation of a minor and his 121-year sentence at 100% service. The Petitioner contends that he received the ineffective assistance of appellate counsel. We reverse the judgment of the post-conviction court and remand the case for the entry of an order granting the Petitioner a delayed appeal for the limited purpose of filing an application for permission to appeal to our supreme court. The Petitioner’s remaining allegations shall be held in abeyance in the post-conviction court until the resolution of the delayed appeal.

Defendant, Trenell Lamar Copeland, appeals from his convictions of four counts of aggravated sexual battery of a child. Defendant was found guilty following a jury trial in 2010. On appeal, Defendant argues that (1) the evidence at trial was insufficient to support the convictions, (2) the trial court erred in its instructions to the jury, and (3) the trial court erred by allowing the victim’s prior consistent statements to be admitted into evidence. After review of the record and the parties’ briefs, we affirm the judgments of the trial court.

This appeal arose from the parties’ divorce proceedings. After the husband failed to appear at a motion hearing wherein the wife was seeking to compel discovery and requesting sanctions against the husband, the Trial Court granted a default judgment against the husband. Although requesting sanctions to include default judgment if the husband failed to comply with discovery, the wife had not specifically requested immediate entry of default judgment against him. The Trial Court thereafter scheduled a final trial for the divorce. The husband filed nothing with the Trial Court to attempt to remedy the default judgment against him prior to trial. The husband was provided notice of the trial but failed to appear. On the day of the trial, the Trial Court heard the evidence presented by the wife regarding the grounds for divorce, marital assets, marital debts, property division, and alimony. Based on the wife’s uncontested testimony and evidence presented at trial, the Trial Court granted a divorce, divided the marital estate, and awarded wife alimony in futuro and alimony in solido. Subsequently, the husband filed two motions pursuant to Tennessee Rule of Civil Procedure 60.02, both of which were denied by the Trial Court. The husband appealed. Upon a review of the record before us, we determine no reversible error exists in this matter. We, therefore, affirm the Trial Court’s judgment in all respects.  

In this divorce, Wife appeals the trial court’s decision to deny her alimony notwithstanding a previously executed separation agreement that provided a non-modifiable award of alimony in futuro. Wife also appeals the trial court’s denial of a arrearage judgment for school and extracurricular expenses under the separation agreement. Discerning no reversible error, we affirm.

The defendant, Terry D. Winters, was indicted for and convicted of aggravated kidnapping, aggravated assault, and domestic assault for which he received an effective twenty-year sentence. He now appeals the denial of his motion for new trial wherein he alleged he received ineffective assistance of counsel and challenged a statement made during the State’s closing argument. Following our review, we affirm the denial of the motion.

Following a jury trial, the defendant, Gregory Randall South, was convicted of two counts of selling morphine, a Schedule II controlled substance. On appeal, the defendant contends the prosecutor improperly commented on his right not to testify and used an improper hypothetical during closing argument. Having thoroughly reviewed the record, we conclude the prosecutor’s comments on the defendant’s right not to testify constitute reversible non-structural constitutional error. Accordingly, we reverse the judgments of the trial court and remand the matter for a new trial.

I agree with the majority’s conclusion that the defendant’s convictions must be reversed and the case remanded for a new trial due to the prosecutor’s improper remarks during closing argument. I write separately to express my concern about the trial judge’s ex parte discussion with the jury during deliberations.

In this post-divorce action concerning modification of the father’s child support obligation, the trial court determined that a significant variance existed between the parties’ incomes at the time of the modification hearing and the amount of income the parties earned at the time of the divorce. The trial court modified the father’s child support obligation accordingly. The trial court declined, however, to modify the father’s child support obligation for any time period prior to the filing of the mother’s modification petition in 2015 despite language in the parties’ agreement providing that recalculation would take place in 2011. The trial court also ordered that the father would pay 65% of the children’s private school tuition and the mother would pay 35%. The trial court further awarded to the mother a portion of her attorney’s fees and expert witness fees incurred up to the time of the hearing. The mother has appealed. Discerning no reversible error, we affirm the trial court’s judgment in all respects. We decline to award attorney’s fees to either party on appeal.