APPELLATE COURT OPINIONS

The issue in this appeal is whether the evidence preponderates against the Court of Workers’ Compensation Claims’ judgment that the employee is permanently and totally disabled due to his work-related injury. The Workers’ Compensation Appeals Board, in a 2-1 decision, reversed and remanded for a determination of the amount of permanent partial disability. Mr. Duignan appealed to the Tennessee Supreme Court, which referred the appeal to this Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Tenn. Sup. Ct. R. 51, § 1. We hold the evidence does not preponderate against the trial court’s judgment. Therefore, the decision of the Appeals Board is reversed and the judgment of the Court of Workers’ Compensation Claims is reinstated.

This is an appeal of an employer’s Petition for Judicial Review, which challenged a ruling by the Tennessee Department of Labor and Workforce Development that the employer’s former employee was entitled to unemployment benefits. The employer contended the employee was ineligible for benefits because she was terminated for “misconduct,” as defined in the Tennessee Employment Security Act, for violating a policy known to the employee by using the employer’s property for a non-businessrelated purpose. The Department found that the employee’s frequent use of the employer’s internal instant message system to “chat” with co-workers was an error in judgment or discretion but did not rise to the level of “misconduct,” which Tenn. Code Ann. § 50-7-303(b)(3) defines as excluding “good faith errors in judgment or discretion.” The chancery court affirmed the agency’s decision. The employer appeals, contending the “good faith exception” never applies when an employee is discharged for violating an employer’s policy or rule. The Department counters, insisting the good faith exception applies regardless of the employer’s reason for termination. Construing the statute according to the natural, ordinary meaning of the language chosen by the legislature, we have determined that an employee’s violation of an employer’s policy that is due to good faith errors in judgment or discretion does not constitute “misconduct” as that term is defined in Tenn. Code Ann. § 50-7-303. Accordingly, we affirm.

In this accelerated interlocutory appeal, Wife appeals the trial court’s denial of her motion to recuse the trial judge in her divorce case. Specifically, Wife argues that the trial court’s rulings demonstrate a bias against her because the trial court purportedly ruled in favor of Husband in excess of the relief requested. We affirm the trial court’s denial of Wife’s motion to recuse.

In this consolidated appeal, the Defendants, Thomas Bishop, Devonte Bonds, and Jason Sullivan, were convicted by a Knox County Criminal Court jury of attempted second degree murder, a Class B felony, aggravated assault, a Class C felony, and possession of a firearm during the commission of a dangerous felony, a Class D felony. See T.C.A. §§ 39-13-210 (2010) (subsequently amended) (second degree murder), 39-12-101 (2010) (subsequently amended) (criminal attempt), 39-13-102 (Supp. 2011) (subsequently amended) (aggravated assault), 39-17-1324 (2010) (subsequently amended) (firearm possession). The jury likewise determined that the Defendants committed a criminal gang offense, enhancing by one level the felony classifications of the attempted second degree murder and aggravated assault convictions. See id. § 40-35-121 (2010) (subsequently amended). The trial court sentenced Defendant Bishop to thirty-two years for attempted second degree murder, to fifteen years for aggravated assault, and to five years for the firearm violation and ordered consecutive service of the attempted second degree murder and firearm sentences as required by law, for an effective thirty-eight-year sentence. The court sentenced Defendant Bonds to twenty years, to ten years, and to three years, respectively, and ordered consecutive service of the attempted second degree murder and the firearm sentences as required by law, for an effective twenty-three-year sentence. The court sentenced Defendant Sullivan to thirty-five years, to eighteen-years, and to five years, respectively, and ordered consecutive service of the attempted second degree murder and firearm sentences as required by law, for an effective forty-year sentence. The Defendants appealed, in relevant part, challenging the constitutionality of the criminal gang enhancement statute, and this court determined that the statute violated due process of law and remanded the case to the trial court for a new sentencing hearing “based solely on the underlying offenses.” See State v. Bonds, 502 S.W.3d 118, 158, 167 (Tenn. Crim. App. 2016). Upon remand, the trial court sentenced Defendant Bishop to consecutive terms of sixteen years for attempted second degree murder,eight years for aggravated assault, and five years for the firearm violation, for an effective twenty-nine-year sentence. The court sentenced Defendant Bonds to consecutive terms often years, five years, and three years, respectively, for an effective eighteen-year sentence.The court sentenced Defendant Sullivan to consecutive terms of sixteen years, eight years,and five years, respectively, for an effective twenty-nine-year sentence. On appeal, the Defendants contend that the trial court erred by imposing consecutive service of the attempted second degree murder and aggravated assault sentences. We reverse the judgments of the trial court and remand for the entry of modified judgments reflecting concurrent service of the attempted second degree murder and aggravated assault sentences in each Defendant’s case. We likewise remand for the entry of a judgment relative to Defendant Sullivan’s firearm violation.

A creditor filed suit in general sessions court to collect an outstanding debt alleged to be due on a sworn account. The debtor’s counsel permitted the creditor to take a default judgment and appealed the judgment to the circuit court. In circuit court, the debtor filed a motion to strike three affidavits filed by the creditor. Later, the debtor filed another motion to strike the creditor’s affidavits and a motion to dismiss for improper service of process. The trial court denied the debtor’s motions to strike and to dismiss and entered judgment for the creditor in the amount of the claimed debt. On appeal, the debtor argues that the trial court erred in denying her motions and in admitting into evidence the documents by which the creditor proved the debt. We affirm the judgment of the trial court.

The Defendant, Wayne Leonard Yelton, appeals his convictions of rape of a child, three counts of aggravated sexual battery, incest, and attempted incest and his effective sentence of forty-one years. On appeal, the Defendant asserts that the evidence is insufficient to support his convictions and that his sentence is excessive. Upon reviewing the record and the applicable law, we affirm the trial court’s judgments. However, we remand to the trial court for entry of corrected judgments to reflect that the trial court imposed an eleven-year sentence for each aggravated sexual battery conviction in counts three and four and a three-year sentence for the attempted incest conviction in count five.

Following the post-conviction court’s granting of a delayed appeal, the petitioner challenges the trial court’s application of enhancement factor (6) in determining the petitioner’s sentence. After reviewing the record and considering the applicable law, we conclude the post-conviction court did not follow the proper procedures in granting a delayed appeal and remand the case to the post-conviction court for further proceedings consistent with this opinion.

This post-divorce appeal concerns the court’s denial of the mother’s motion for relief from an order of the court calculating her child support arrearage. We reverse the court’s denial of relief and hold the challenged judgment void. We remand for further hearing.

This appeal arises from an action for default on a promissory note. Approximately eight and a half years after the debtors stopped making monthly payments under an installment note, the creditor filed suit for missed monthly payments going back six years from the date of the filing of the complaint, as well as for future installments and the final payment that were to become due under the terms of the note. The debtors asserted that the debt, or some portion thereof, was time-barred. As a result, the debtors raised the statute of limitations as a defense and filed a counterclaim, alleging that the creditor violated the Fair Debt Collection Practices Act and the Tennessee Consumer Protection Act by seeking a judgment on a time-barred debt. The creditor moved for summary judgment on all issues. The trial court granted the motion, concluding that the amounts that the creditor sought are not barred by the statute of limitations and that the undisputed material facts established the creditor’s claim against the debtor as a matter of law. This appeal followed. We affirm. 

Following a bench trial, the trial court awarded the Defendant/Appellee $28,372.06 in attorney’s fees based upon an attorney’s fees provision in the parties’ written agreement. Plaintiff/Appellant appeals the award of attorney’s fees on the basis that the relevant provision is inapplicable under the circumstances. Because we conclude that the trial court did not err in awarding the Appellee its attorney’s fees, we affirm.

The Defendant, Christian Blackwell, was convicted by a Shelby County Criminal Court jury of rape of a child, a Class A felony, and sentenced to twenty-five years in the Tennessee Department of Correction. On appeal, he argues the trial court erred in excluding unrelated allegations of sexual abuse made by the victim’s sister, in admitting the victim’s forensic interview into evidence, and that the evidence is insufficient to support his conviction. After review, we affirm the judgment of the trial court.

This is the third appeal to address the issue of alimony between these parties. Pursuant to our decision in the first appeal, Husband was required to pay Wife $6,000 per month in alimony in futuro. In this proceeding, Husband sought termination or reduction of his alimony obligation due to a disability that rendered him unable to work. After Husband filed his petition, he unilaterally reduced the amount of alimony that he paid during the proceeding. Following a hearing, the trial court found that a substantial and material change in circumstances had occurred due to Husband’s disability, and the court concluded that a reduction of the alimony obligation was warranted. The trial court reduced the alimony in futuro award from $6,000 per month to $3,900 per month. However, the trial court found Husband in contempt for willfully failing to pay alimony in accordance with the existing order during this proceeding. The trial court awarded Wife a judgment for the arrearage but calculated it based on the reduced rate of $3,900 per month. Wife appeals, asserting that Husband maintains the ability to pay alimony at the previous level of $6,000 per month despite his disability. She also requests recalculation of the arrearage and seeks an award of attorney’s fees. For the following reasons, we reverse the decision of the trial court and reinstate the alimony award of $6,000 per month. The arrearage should also be recalculated based on the original award of $6,000 per month plus post-judgment interest. We further conclude that Wife is entitled to an award of attorney’s fees on appeal and remand for the trial court to determine an appropriate award. The trial court should reconsider Wife’s request for attorney’s fees incurred in the trial court.

This appeal involves a non-judicial foreclosure by Brandywine Homeowners’ Association (the HOA) for non-payment of assessments due to the HOA by former property owner, plaintiff Michael McKenzie. It is undisputed that there was no irregularity in the recording, notice or foreclosure of the HOA’s lien on the property. Plaintiff argues that the foreclosure sale price, $4,445.90, is shockingly low in light of the trial court’s finding that the property was worth about $100,000. Plaintiff does not allege, nor did the trial court find, any “misconduct, fraud, or unfairness on the part of the [HOA] that caused or contributed to an inadequate price.” Holt v. Citizens Central Bank, 688 S.W.2d 414, 416 (Tenn. 1984). The trial court granted the HOA summary judgment, refusing plaintiff’s request to set aside the foreclosure on equitable grounds. Because the Supreme Court in Holt held that the “lone infirmity” of a “conscience shocking inadequate price . . . will no longer justify voiding a foreclosure sale,” id., we are compelled to affirm the trial court’s judgment.

A Davidson County grand jury indicted the defendant, Demetrius Bailey, with one count of aggravated burglary, one count of employing a firearm during the commission of a dangerous felony, two counts of aggravated robbery, and one count of aggravated assault. Following trial, a jury found the defendant guilty of all counts, and the trial court imposed an effective sentence of eighteen years. On appeal, the defendant challenges the trial court’s evidentiary rulings allowing the admission of a Kal-Tec .380 pistol. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

The Defendant, Michael Jerome Lee, pleaded guilty to burglary of a vehicle and simple possession in exchange for an agreed concurrent sentence of five years, with the trial court to determine the manner of service of that sentence. After a hearing, the trial court ordered that the Defendant serve his sentence in confinement. On appeal the Defendant contends that the trial court erred when it denied him an alternative sentence. After review, we affirm the trial court’s judgments.

The claim at issue relates to the alleged negligent post-operative care of Bobbie Seals Stubblefield (“Plaintiff”) at Morristown-Hamblen Hospital Association (“the Hospital”). On October 20, 2010, Plaintiff underwent a cardiac catheterization performed by Pragnesh Patel, M.D. at the Hospital. Plaintiff remained at the Hospital overnight for routine post-operative care and was attended to by Angela Adams, R.N., among others. Per Dr. Patel’s instruction, Nurse Adams administered nitroglycerin intravenously throughout the night. Plaintiff later complained that the nitroglycerin was causing “an unbearable headache and nausea.” Plaintiff claims that she “begged” Nurse Adams to stop administering nitroglycerin, while Nurse Adams claims that Plaintiff consented to further doses once she was advised of the medical necessity. It was later discovered that Plaintiff developed a hematoma and pseudoaneurysm in her groin at the catheterization site. The hematoma continued to grow, despite treatment provided by the nurses on staff. The nurses paged the cardiologist on-call, Sunil T. Ramaprasad, M.D. for assistance. He did not report to the Hospital. Instead, he ordered placement of a device to stop the bleeding and arranged for the intervention of a vascular surgeon, who reported to the hospital immediately and performed emergency surgery to repair the femoral artery in the early morning hours of October 21.

In this child-custody dispute, father filed a petition for legitimation and to establish a parenting plan. Father was subsequently determined to be the biological father of the minor child M.K. After mother took the child to excessive medical visits, made unsubstantiated claims that the child suffers from ailments and had her treated for the same, and accused father of physically and sexually abusing the child, the trial court ordered mother to undergo a mental-health evaluation. Mother was subsequently diagnosed with Factitious Disorder Imposed on Another, formerly known as Munchausen Syndrome by Proxy. After a bench trial, the court held that it is in the child’s best interest for father to be designated the primary residential parent of M.K. Mother’s parenting time was limited to eleven hours of supervised visitation a week. Mother appeals. We affirm.

The Defendant, Jermaine Antwoine Crayton, pleaded guilty to several drug offenses in 2015 and to another drug offense in 2016. The trial court placed the Defendant on probation, and the Defendant’s probation officer filed an affidavit alleging that he violated his probation. After a hearing, the trial court revoked the Defendant’s probation and ordered that he serve the balance of his sentence in confinement. On appeal the Defendant contends that the trial court erred when it ordered that he serve the balance of his sentence in confinement. After review, we affirm the trial court’s judgment.

In this interlocutory appeal, the Defendant, Timothy Wayne Woodard, challenges the district attorney general’s denial of his application for pretrial diversion and the trial court’s affirmance of that denial with respect to his charges for nine counts of removal of government records and nine counts of theft of property valued less than $500. On appeal, the Defendant argues that the district attorney general abused his discretion in denying pretrial diversion and that the trial court erred in finding no abuse of discretion. Upon reviewing the record and the applicable law, we affirm the denial of pretrial diversion.

This appeal concerns whether a confidentiality agreement was assigned from one corporation to another. Danny M. Lingerfelt (“Lingerfelt”) was an employee for many years of P.I., Inc. (“P.I.”), a manufacturer. In 2015, Lingerfelt left P.I and a year later went to work for another company. In the meantime, Hydra Pools, the P.I. division in which Lingerfelt had worked, had become a separately chartered corporate entity, Hydra Pools, Inc. In 2016, Hydra Pools, Inc. filed a verified complaint against Lingerfelt in the Chancery Court for McMinn County (“the Trial Court”) alleging that he violated the terms of a non-competition and confidentiality agreement (“the Agreement”) he had entered into with P.I. Lingerfelt filed a motion for summary judgment asserting, among other things, that Hydra Pools, Inc. had no privity of contract with him because he had worked for P.I. and not its supposed successor. The Trial Court granted summary judgment to Lingerfelt on the basis that Hydra Pools, Inc. was not a party to or successor in interest to the rights or obligations of the Agreement. Hydra Pools, Inc. appeals. We hold that there is a genuine issue of material fact as to whether the Agreement was assigned by P.I. to Hydra Pools, Inc. We reverse the Trial Court’s grant of summary judgment and remand for further proceedings consistent with this Opinion.

The defendant, Raymond Dana Canter, entered an open plea to ten counts of felony theft, one count of failure to appear, one count of simple possession of marijuana, one count of aggravated burglary, one count of felony vandalism, and two counts of evading arrest. The trial court sentenced the defendant to an effective sentence of thirteen years of incarceration in the Tennessee Department of Correction. On appeal, the defendant challenges the trial court’s imposition of consecutive sentencing. Upon our review of the record, arguments of the parties, and pertinent authorities, we affirm the judgments of the trial court. However, we remand the case for a corrected judgment in 2016-CR-512.

When the defendant failed to answer a petition for declaratory judgment, the plaintiff sought and obtained a default judgment.  The defendant moved to set aside the default judgment, arguing that it never received the motion for default judgment nor notice of the hearing date on the motion.  The trial court denied the defendant the requested relief, finding that the defendant’s failure to answer the petition until months after entry of the default judgment was willful.  Discerning no abuse of discretion, we affirm. 

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

This appeal follows the trial court’s confirmation of an arbitration award. Insofar as this appeal relates to Dreamaker Properties, LLC, we must dismiss the appeal because the company is not represented by counsel and has therefore failed to validly participate and properly raise any issues for our review on appeal. With regard to the remaining appellant, who is proceeding pro se, we affirm the trial court’s judgment because his raised issue lacks merit. As we understand his argument, the appellant maintains that the trial court lacked subject matter jurisdiction to enforce the arbitration award because he was never a party to an agreement to arbitrate. As the record transmitted to us on appeal confirms, however, an “Agreed Order” was entered in this case directing that the case be ordered to arbitration. Moreover, the record reveals that, prior to the actual arbitration, the contesting appellant entered into an “Agreement to Arbitrate” regarding “any and all disputes.”

Defendant, Sangria Venturia Baker, Jr., was convicted of two counts of aggravated assault, one count of felony evading arrest, one count of possession of an imitation controlled substance with intent to sell or deliver, one merged count of possession of marijuana with intent to sell or deliver, one count of possession of drug paraphernalia, and one count of resisting arrest. On appeal, Defendant challenges the sufficiency of the evidence supporting his convictions and argues that the trial court erred by denying his motion in limine to exclude mention of the subject matter of the warrant the officers were serving at the time of this incident and by denying his request for a jury instruction on misdemeanor reckless endangerment as a lesser-included offense of aggravated assault. Because the evidence was insufficient to establish that the white powder substance found in the back of Defendant’s vehicle met the statutory definition of an imitation controlled substance, we reverse and vacate Defendant’s conviction for possession of an imitation controlled substance with intent to sell or deliver. In all other respects, we affirm the judgments of the trial court and remand the case for the imposition of a sentence in Count 6, which merged into Count 7.