APPELLATE COURT OPINIONS

This appeal concerns premises liability. Michael Darren Franz (“Mr. Franz”) and his wife Pamela Franz (“Plaintiffs,” collectively) sued Oscar Funes (“Defendant”) in the Circuit Court for Blount County (“the Trial Court”) for injuries Mr. Franz sustained from falling down the stairs at a residential rental property built and owned by Defendant. The stairs, which led from the first floor to the second floor, lacked a code-compliant handrail going the length of the stairs. Defendant filed a motion for summary judgment, which the Trial Court granted. Plaintiffs appeal. We conclude that the reasonably foreseeable probability and gravity of harm to Plaintiffs, namely serious injury or death from falling down the stairs, outweighed the burden on Defendant to engage in alternative conduct which would have prevented a risk of harm, such as extending the railing to the top of the stairs. Under common law principles of negligence, as well as negligence per se from the code violation, Defendant owed a duty of care. In addition, genuine issues of material fact exist in this case regarding causation and comparative fault. We reverse the judgment of the Trial Court and remand for further proceedings consistent with this Opinion.

In 2015, a Shelby County jury convicted the Petitioner, Cordell Ash, of especially aggravated robbery, attempt to commit first degree murder, employing a firearm during the commission of a dangerous felony, and of being a convicted felon in possession of a firearm. The trial court imposed an effective sentence of thirty years in the Tennessee Department of Correction. The Petitioner filed a delayed appeal, and this court affirmed the trial court on appeal. Ash v. State, No. W2019-01172-CCA-R3-PC, 2020 WL 4919798, at *1 (Tenn. Crim. App. Aug. 20, 2020), no perm. app. filed. The Petitioner filed for postconviction relief, alleging ineffective assistance of counsel. After a hearing, the postconviction court denied relief. On appeal, the Petitioner maintains that his attorney was ineffective for failing to investigate possible defenses such as a third-party perpetrator. After review, we affirm the post-conviction court’s judgment.

The Defendant, Johnny Ray Deyton, appeals his Johnson County Criminal Court
convictions of possession of twenty-six (26) grams or more of methamphetamine with
intent to sell or deliver, felony tampering with evidence, and various other misdemeanor
drug and driving related offenses, for which he received an effective sentence of thirteen
years’ imprisonment. Before trial, the Defendant filed a motion to suppress all evidence
derived from the traffic stop which led to his arrest and indictment, arguing that the stop
was an unreasonable warrantless seizure of his person in violation of the Fourth
Amendment to the United States Constitution and Article 1, Section 7 of the Tennessee
Constitution. Following a hearing, the trial court denied the Defendant’s motion and
determined that the traffic stop was supported by reasonable suspicion of reckless driving.
The sole issue presented on appeal is whether the trial court erred in denying his motion to
suppress because the traffic stop was not supported by reasonable suspicion. After review,
we affirm the trial court’s judgment.

Defendant, Andy L. Allman, appeals his convictions for twelve counts of theft and six counts of falsely holding oneself out to be a lawyer in case Nos. 2017-CR-548, 2017-CR-548, and 2017-CR-875 for which he received an effective thirty-five year sentence to be served in confinement.  Multiple counts were either nolle prosequied by the State before trial or dismissed during trial.  On appeal, Defendant argues that (1) the evidence was insufficient to support his convictions; (2) the trial court erroneously charged the jury concerning his charges for falsely holding oneself out the be a lawyer; (3) his sentence is excessive; (4) a portion of the State’s closing argument resulted in plain error; (5) the trial court deprived Defendant of his right to present a defense by excluding evidence; (6) the trial court improperly admitted evidence of the Board of Professional Responsibility’s findings; (7) the trial court abused its discretion by denying Defendant’s motion to exclude evidence; and (8) the cumulative effect of these errors entitle him to a new trial. Following our review of the entire record, the briefs and oral arguments of the parties, and the applicable law, we affirm the judgments of the trial court but remand for entry of judgment forms for those counts that were either nolle prosequied by the State before trial or dismissed during trial.

In this case involving termination of the father’s parental rights to his children, the trial court found that six statutory grounds for termination had been proven by clear and convincing evidence. The trial court further found that clear and convincing evidence demonstrated that termination of the father’s parental rights was in the children’s best interest.  The father has appealed.  Upon thorough review, we affirm the trial court’s judgment in all respects.

A Loudon County jury convicted the Defendant, Ronald Matthew Lacy, of theft of property over $60,000. The Defendant, a Kentucky resident, entered into a transaction for the sale of a car with a Tennessee resident, but with the intent not to perform as promised and to misappropriate the money instead. The trial court sentenced him to ten years, which was suspended after service of eleven months and twenty-nine days in confinement. On appeal, the Defendant argues that the evidence was legally insufficient to support his conviction. He also asserts that the trial court lacked territorial jurisdiction and that the case should be addressed as a civil matter. Alternatively, the Defendant contends that he is entitled to a new trial because his trial counsel failed to provide effective assistance. Upon our review, we respectfully affirm the judgment of the trial court.

This is a breach of contract case involving a purchase and sale agreement for real property.  Because the parties’ mutual mistake of law concerning ownership of the subject property negates the prima facie element of mutual assent, there is no enforceable contract.  Reversed and remanded.

Pro se appellant appeals the trial court’s judgment in favor of the plaintiff in this dispute about real property. Due to the deficiencies in the appellant’s brief, we dismiss the appeal. We also conclude the appeal is frivolous and remand for an assessment of damages.

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

A mother appeals the termination of her parental rights to her child.  The chancery court found clear and convincing evidence of two statutory grounds for termination.  The court also determined termination was in the child’s best interest.  After a thorough review, we agree and affirm.

A Hancock County Criminal Court jury convicted the defendant, Ricky Rex Corlew, as
charged of allowing a dog to run at large causing serious bodily injury, a Class E felony.
See Tenn. Code Ann. § 44-8-408(b), (g)(4) (Supp. 2021). Following a sentencing hearing,
the trial court ordered Corlew to serve two years in confinement and to pay the $3000 fine
set by the jury. On appeal, Corlew argues that the evidence is insufficient to sustain his
conviction because it supported his affirmative defense that he exercised reasonable care
in attempting to confine or control his dog. After review, we affirm the judgment of the
trial court.

Following the death of his minor child, the appellant filed suit against the State of Tennessee in the Tennessee Claims Commission (the “Claims Commission”) asserting claims for wrongful death and for violation of his rights as a crime victim. The Claims Commission granted partial summary judgment and partial judgment on the pleadings in favor of the State. The appellant appeals the judgment of the Claims Commission. Having determined that the appellant’s brief is not compliant with the relevant rules of briefing in this Court, we conclude that his issues purportedly raised on appeal are waived. The appeal is dismissed.

Defendant, Timothy Dewayne Pinion, was convicted after a jury trial of vehicular homicide
by recklessness, reckless endangerment, two counts of driving under the influence (DUI),
driving with a revoked license, failure to drive on the right side of the roadway, and
violation of the financial responsibility law. For these convictions, Defendant was
sentenced to an effective fourteen years, eleven months, and twenty-nine days in
confinement. On appeal, Defendant argues that his dual convictions for vehicular homicide
by recklessness and reckless endangerment violate principles of double jeopardy. After a
thorough review of the record, we affirm.

I believe that the majority opinion accurately reflects existing law.  Therefore, I concur.  I write separately to express my concern that the existing law on voluntary nonsuits as outlined in this opinion allows a plaintiff to avoid sanctions for  his bad actions taken before the nonsuit.  In my opinion, defendant Osborne had at least an inchoate right to receive an undetermined amount of attorney’s fees based on the trial court’s order that “the Plaintiff should be ordered to pay all of each Defendant’s attorney’s fees associated with Plaintiff’s delays, including attendance at prior hearings on Motions to Withdraw, today’s hearing and all preparations for any such hearings.”  The sanction was ordered.  Only the amount was yet to be determined.  A voluntary nonsuit should not allow Plaintiff to escape responsibility for his actions or to prevent Osborne from being properly compensated for Plaintiff’s wrongdoing.

A Knox County jury convicted the Defendant, John M. Fletcher, of initiating a false report
to a law enforcement officer and presenting a false or fraudulent insurance claim. The trial
court imposed an effective sentence of four years. On appeal, the Defendant challenges
the legal sufficiency of the evidence supporting his convictions. Upon our review, we hold
that the evidence is legally sufficient to sustain the Defendant’s conviction for presenting
a false or fraudulent insurance claim. However, we also conclude that the evidence is
insufficient to sustain his conviction for initiating a false report, and we vacate that
judgment and remand for dismissal of that charge. We respectfully affirm the judgments
of the trial court in all other respects.

In this appeal arising from a divorce action, the husband raises issues pertaining to the trial court’s classification, valuation, and distribution of marital assets, as well as the alimony award to the wife. Upon our review, we affirm the determination of the trial court.

Father appeals the termination of his parental rights based on abandonment and failure to manifest a willingness and ability to parent. After our review, we affirm the termination of Father’s parental rights.

The parental rights of Cedric G., Sr. (“Father”) were terminated by the Davidson County Juvenile Court (“the trial court”) on November 20, 2023. Father appeals. We affirm the termination of Father’s parental rights as to Cedric G., Jr. (“the Child”) for abandonment by an incarcerated parent for failure to visit, failure to support, and exhibiting a wanton disregard for the Child’s welfare; substantial noncompliance with the permanency plans; persistence of conditions; and failure to manifest an ability and willingness to personally assume custody or financial responsibility of the Child. We also affirm the trial court’s conclusion that termination is in the Child’s best interests.

The defendant, Jerry Donald Brown, III, appeals the order of the trial court denying his motion to withdraw his guilty plea. Upon our review of the record and the parties’ briefs, we affirm the trial court’s decision.

Michael Halliburton (“Halliburton”) filed a lawsuit against his former attorney, Blake Ballin (“Ballin”) and Ballin’s law firm, Ballin, Ballin & Fishman, P.C. (“Ballin Firm”) in the Circuit Court for Shelby County (“the Trial Court”). Ballin and Ballin Firm filed a motion to dismiss Halliburton’s amended complaint. The Trial Court granted the motion to dismiss, and Halliburton has appealed. Having reviewed the record and briefs in this case, we conclude that Halliburton presents an issue unreviewable by this Court and that Halliburton’s appellate brief, accordingly, does not comply with Tennessee Rule of Appellate Procedure 27. We affirm the Trial Court.

In this post-divorce action, the father filed a petition seeking to modify the parties’ agreed permanent parenting plan based on alleged mental and emotional instability of the mother. During trial, the father sought to remove the guardian ad litem for purportedly violating her duties pursuant to Tennessee Supreme Court Rule 40A; however, the trial court denied the father’s motion. The father also sought to introduce statements by the minor children indicating that the mother had told them private information regarding the parties’ divorce. Upon objection by the mother and the guardian ad litem, the trial court determined such statements to be inadmissible hearsay. The trial court ultimately entered an order on August 4, 2023, determining that modification of the parties’ permanent parenting plan was neither necessary nor in the best interest of the parties’ children despite certain changes in the parties’ circumstances. The trial court also denied the father’s motion for a restraining order against the mother, although the court found that the mother’s actions had been inappropriate. The trial court further ordered that each party would pay his or her own attorney’s fees. The father timely appealed. Upon our thorough review, we vacate the trial court’s determination concerning child support and its finding regarding the mother’s gross income. We remand for further hearing as needed and a determination of the mother’s gross income with instructions to the trial court to consider whether gifts or payment of living expenses by her family should have been included. The trial court shall then be required to recalculate child support utilizing the proper gross income amount for the mother. The trial court’s judgment is affirmed in all other respects. We deny the father’s request for an award of attorney’s fees incurred on appeal.

A Stewart County jury found Defendant, Lloyd Allard, guilty of two counts of aggravated rape of a child, two counts of aggravated sexual battery, and twenty-eight counts of especially aggravated sexual exploitation of a minor. The trial court imposed an effective sentence of 144 years in the Tennessee Department of Correction (“TDOC”). On appeal, Defendant contends: (1) the trial court erred in failing to suppress the entirety of his custodial statement after he invoked his right to counsel; (2) the trial court erred in denying Defendant’s motion to suppress evidence on chain of custody grounds; (3) his sentence is excessive; and (4) the evidence produced at trial supported his insanity defense. After review, we affirm the judgments of the trial court.

At issue in this appeal is whether the trial court had jurisdiction to award attorney’s fees after the plaintiff filed a notice of voluntary dismissal pursuant to Tennessee Rule of Civil Procedure 41.02. This action arose when Gregory F. Heerdink (“Plaintiff” or “Mr. Heerdink”) filed a complaint for a declaration of an easement by implication on adjoining property owned by defendant Dawn A. Osborne (“Osborne”) and previously owned by defendant Robert K. Garrett (“Garrett”) (collectively “Defendants”). Defendants each filed an answer but neither filed a counterclaim. More than a year later, Defendants each filed a motion to dismiss for failure to prosecute pursuant to Tennessee Rules of Civil Procedure 41.02(1). In an order entered October 9, 2020, the trial court denied Defendants’ motions to dismiss but ruled that Tennessee Rule of Civil Procedure 37 sanctions were appropriate and ordered Plaintiff to, inter alia, pay “all of each Defendant’s attorney’s fees associated with Plaintiff’s delays, including attendance at prior hearings on Motions to Withdraw, today’s hearing and all preparations for any such hearings.” The order further directed defense counsel to “Submit an Affidavit of itemized time for approval by the Court.” Five days after the entry of this order, but before either defendant filed a fee application, Plaintiff filed notice of voluntary dismissal. The court entered an order granting Plaintiff’s voluntary dismissal on November 2, 2020. Shortly thereafter, Garrett filed an application for fees, however, Osborne did not file a fee application until approximately two years later, when she filed a motion to enforce sanctions along with an attorney’s fee affidavit. Plaintiff opposed Osborne’s motion, arguing that the case had been dismissed and that, as a consequence, the trial court no longer had jurisdiction to award the fees. Alternatively, Plaintiff argued that Osborne waived the right to fees due to the over two-year delay. Defendants contended that they had a “vested right” to recover their attorney’s fees, which vested right prevented Plaintiff from dismissing the case pursuant to Rule 41.01. They also relied on the precedence of Menche v. White Eagle Prop. Grp., LLC, No. W2018-01336-COA-R3-CV, 2019 WL 4016127 (Tenn. Ct. App. Aug. 26, 2019) to contend that the order of dismissal was not a final order because the attorney’s fees claim was pending, and that the trial court therefore retained jurisdiction to rule on the unresolved issue of attorney’s fees. The trial court agreed and awarded attorney’s fees. This appeal followed. We have determined that Defendants did not have a vested right to recover their attorney’s fees and that Menche is inapposite. Therefore, the trial court lacked jurisdiction to award any fees following the voluntary dismissal of the action. Accordingly, we vacate the award of fees. 

This appeal arises from a civil action that was commenced and voluntarily dismissed without prejudice twice before the plaintiff refiled the same action for a third time. The defendants responded to the third filing by moving to dismiss on the ground that the third action was filed outside of the applicable statute of limitations. Relying on the authority in Payne v. Matthews, 633 S.W.2d 494 (Tenn. Ct. App. 1982), the trial court agreed with the defendants and dismissed the action with prejudice. The plaintiff appeals. We affirm. In their brief, the defendants/appellees ask this court to award them their attorney’s fees and expenses incurred in defending this appeal, contending that the appeal is frivolous. Finding that the appeal is devoid of merit and, therefore, frivolous, we remand this matter to the trial court to award the defendants/appellees their reasonable and necessary attorney’s fees and expenses incurred in defending this frivolous appeal.

An employer sought to enforce restrictive covenants against a former employee. In response, the former employee filed a counterclaim for retaliatory discharge, and the employer moved to compel arbitration on the counterclaim. The former employee opposed the motion, arguing that the arbitration agreement was either unenforceable or inapplicable. The trial court agreed that the arbitration agreement did not apply to the counterclaim. So it denied the motion to compel. We affirm.