APPELLATE COURT OPINIONS

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.

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.

Kelvin Brown, Petitioner, filed a pro se Petition for Post-Conviction Relief (“the Second Petition”). The post-conviction court summarily denied the Second Petition, finding that Petitioner had previously filed a Petition for Post-Conviction Relief (“the First Petition”); that counsel had been appointed for Petitioner; and that Petitioner appeared at an evidentiary hearing with counsel and withdrew the First Petition after specifically being warned by the court that “any dismissal would be with prejudice.” Petitioner appealed, claiming the post-conviction court erred in summarily dismissing the Second Petition. Discerning no error, we affirm.

The Defendant was convicted upon his guilty plea to theft of property valued at more than $1,000 but less than $10,000, a Class D felony. See T.C.A. § 39-14-103(a) (2018) (theft), 39-14-105 (Supp. 2015) (amended 2016) (grading of theft). The trial court sentenced the Defendant to serve eight years as a Range II, multiple offender. On appeal, the Defendant contends that the trial court erred in sentencing. We affirm the judgment of the trial court.

Both the plaintiffs and the defendant have appealed from an order granting in part and denying in part the defendant’s motion for summary judgment. The trial court determined that there was no just reason for delay and directed the entry of a final judgment under Tennessee Rule of Civil Procedure 54.02. Because the partial summary judgment is not appropriate for certification as a final judgment under Tennessee Rule of Civil Procedure 54.02, we dismiss the appeal.

The defendant, Whitcliffe McLeod, appeals his sentences for second degree murder and attempted second degree murder. The defendant argues the trial court abused its discretion in ordering the defendant to serve his sentences consecutively. Following our review, we affirm the judgments and sentence of the trial court.

This appeal concerns a municipality’s authority to order structures demolished pursuant to the Slum Clearance and Redevelopment Act, Tenn. Code Ann. § 13-21-101 et seq., and local ordinances implementing that Act. The trial court vacated a decision of the Metropolitan Board of Property Standards and Appeals that required demolition of the structures at issue. In light of the evidence that the cost to repair the structures exceeds fifty percent of their value, we reverse the decision of the trial court.

Following a trial, a Madison County jury convicted Defendant, Tony F. Boyle, of driving under the influence (DUI). The trial court imposed a sentence of eleven months and twenty-nine days, which was suspended to community corrections supervision following the service of thirty days in jail. On appeal, Defendant contends that the evidence presented at trial was insufficient to support his conviction. Following a thorough review, we affirm the judgment of the trial court.

In this case involving the Tennessee Public Records Act (“TPRA”), Tenn. Code Ann. §§ 10-7-101 – 10-7-702 (2012 & Supp. 2019), the petitioner filed a petition alleging that the respondent, the City of Memphis (“the City”), had violated the TPRA by failing to promptly disclose unredacted crash reports for all traffic accidents to which the City’s police officers had responded on two specific days in November 2017. The City filed a motion to dismiss the petition or, in the alternative, to stay proceedings pending resolution of what it averred would be a determinative issue in a related federal case. Following a non-evidentiary hearing, the trial court denied the City’s motion to dismiss and motion to stay pending resolution of the federal action. Finding that the City had violated the TPRA by failing to promptly disclose unredacted crash reports for public inspection, the trial court ordered such disclosure; however, upon also finding that a substantial legal issue was to be determined, the trial court stayed its disclosure order pending resolution of this appeal pursuant to Tennessee Code Annotated § 10-7-505(d)-(e) (2012). Upon finding that the City’s violation of the TPRA had not been willful, the trial court denied the petitioner’s request for attorney’s fees. The City timely appealed. During the pendency of this appeal, the federal district court in the related case certified the legal question posed by the City for presentation to the Tennessee Supreme Court, but the High Court subsequently entered an order declining certification. By the time of oral arguments before this Court, the parties acknowledged that the sole issue remaining for adjudication in this appeal was the petitioner’s request for attorney’s fees. We determine that under the version of the TPRA in effect at the time this action was filed, the trial court properly found that the City failed to promptly disclose the public records at issue. We further determine that the City’s violation of the TPRA was willful pursuant to Tennessee Code Annotated § 10-7-505(g) (2012). We therefore reverse the trial court’s finding in this regard. We remand for the trial court to consider, in light of our determination concerning willfulness, whether reasonable attorney’s fees incurred during the trial court proceedings should be awarded to the petitioner. However, because the petitioner has not properly raised an issue concerning attorney’s fees on appeal, we deem the petitioner’s request for attorney’s fees on appeal to be waived.

The State appeals from the trial court’s dismissal with prejudice of a two-count indictment against the Defendants, Rontavious S. Ferguson and Tramon T. Key, for attempted second-degree murder and attempted aggravated robbery. The State contends that it had discretion to nolle prosequi the charges and that dismissal without prejudice would not have placed the public interest at stake. After review, we affirm the dismissal of the indictment against the Defendants but remand to the Dyer County Circuit Court for entry of an amended order dismissing the case without prejudice.

Defendant, Ricky Jan Stevison, pled guilty to theft of property and was sentenced to two years on supervised probation with the trial court to determine the issue of restitution at a hearing. Defendant subsequently filed a motion to withdraw his guilty plea. The trial court denied the motion after a hearing. Because we determine that the trial court did not abuse its discretion, we affirm the judgment of the trial court. However, because the judgment form does not include the amount of restitution or the terms of the repayment, we remand to the trial court for entry of an amended judgment form.

I respectfully dissent from the conclusion reached by the majority affirming the trial court’s denial of the Defendant’s motion to withdraw his guilty plea. Based on my review of the record, the Defendant’s guilty pleas were not knowingly, voluntarily, and understandingly entered as to their effect and consequences. Accordingly, I would have concluded that the trial court erred by denying his motion to withdraw the guilty plea.

In this post-divorce dispute, Father petitioned to modify custody, and Mother filed a counter-petition to modify child support. At trial, both parents agreed to specific modifications to the parenting plan and to set child support according to the Child Support Guidelines. But they could not agree on a location for exchanging the children. After hearing limited testimony from the parents, the court chose an exchange location, set child support, and approved the agreed parenting plan. Unhappy with aspects of the new plan, Father filed a motion to alter or amend or for a new trial. The court denied Father’s motion but granted Mother’s motion to recalculate child support to reflect the parents’ actual parenting time. Because the court’s order approving the modified plan does not comply with Tennessee Rule of Civil Procedure 52.01 and the record lacks a sufficient basis to support a best interest determination, we vacate the modification of the parenting plan and remand for the court to conduct a new evidentiary hearing on whether modification of the parenting plan is in the children’s best interest and enter an order compliant with Rule 52.01. In all other respects, the decision of the trial court is affirmed.

Richard Moser (“Employee”) worked for Hara, Inc. d/b/a Hot Shot Delivery (“Employer”) as a truck driver. Employee filed this action against Employer and its workers’ compensation insurance carrier, Auto-Owners Insurance Company, alleging that he sustained a compensable injury in August 2013, when he attempted to pull a duffel bag out of his truck. Employer asserts that the injury occurred in August 2014, when Employee used a crank to lower the landing gear on a trailer. In its defense, Employer specifically asserts that Employee’s failure to provide adequate notice of the 2014 injury contravenes his claim for compensation. Employee concedes he did not provide adequate notice of the 2014 injury. The trial court found that Employee suffered a compensable injury in August 2013 during the course and scope of his employment and retained a permanent anatomical impairment of 25% to the body as a whole as a result of the 2013 injury. Employer has appealed that decision. 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.

This is an interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B, from the trial court’s denial of a motion for judicial recusal filed by the wife during the course of the parties’ divorce proceedings. Having determined that the trial court made insufficient findings in denying the motion as required by Section 1.03 of Rule 10B, we vacate the trial court’s order denying wife’s motion to recuse—as well as any other orders entered subsequent to the filing of Wife’s recusal motion—and remand for further proceedings consistent with this opinion.

The facts before the court on appeal depend upon the procedural posture of the case. John Riebsame, a former employee of Holland Enterprises (“Holland”), filed a complaint in the Circuit Court for Hamilton County, Tennessee on June 18, 2018, against Bradley Schemel, the vice president of Holland, a trucking company headquartered in Mapleton, North Dakota. On July 20, 2018, Mr. Schemel filed a motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(2) and (4) for lack of personal jurisdiction and insufficient service of process. With his motion, Mr. Schemel submitted his own affidavit, the contents of which will be detailed as relevant below.

In this divorce appeal, Wife argues that the trial court erred in dividing the equity in the marital home and in calculating her net award. We find no error in the trial court’s division of the equity in the marital home, but we have determined that the court erred in its calculation of the net award by crediting the marital debt against Wife twice. We, therefore, affirm in part and reverse in part.

The defendant, Christopher Ogle, appeals the order of the trial court revoking his probation and ordering him to serve his original
five-year sentence 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 his probation, and the imposed sentence is proper. Accordingly, the judgment of the trial court is affirmed.

On February 8, 2018, a Knox County jury convicted Roshaun Colbert, Defendant, on one count each of reckless endangerment, evading arrest, reckless driving, attempted tampering with evidence, and possession of drug paraphernalia. The trial court sentenced Defendant to a total effective sentence of twelve years. On November 14, 2018, the trial court vacated Defendant’s conviction for reckless endangerment because reckless endangerment was not properly charged in the indictment as a lesser-included offense of aggravated assault. On appeal, Defendant argues that there was insufficient evidence to convict Defendant of attempted tampering with evidence and that the trial court erred in instructing the jury on flight. After a thorough review of the facts and applicable case law, we affirm.