APPELLATE COURT OPINIONS

In this post-divorce action involving the father’s petition to modify the parties’ existing permanent parenting plan and the mother’s subsequent counter-petition, the trial court increased the father’s co-parenting time by ten days during the summer, for a total of 130 parenting days per year, and granted the mother sole decision-making authority with respect to the children’s education and extracurricular activities. The father has appealed. Discerning no reversible error, we affirm the trial court’s ruling in all respects.

In 2008, the Petitioner, Christopher Young, pleaded guilty to possession of a Schedule II controlled substance with a six-year sentence to be served on Community Corrections. In 2017, the Petitioner filed a petition for post-conviction relief, which the post-conviction court summarily dismissed as untimely filed. On appeal, the Petitioner contends that this matter should be remanded to the lower court to allow him to file an amended petition in light of recent case law. After review, we affirm the post-conviction court’s judgment.

This case involves events that span a period of some twenty years following the death of Steven Lee Coffey in a plane crash on July 13, 1995. The deceased was a successful owner of a securities business. Plaintiff, Laura Cowan Coffey, is his widow. In the deceased’s will, David L. Coffey (David the senior), the deceased’s father, was designated executor of his son’s estate. Plaintiff alleges in her complaint for fraud, conversion, and breach of fiduciary duty, that David the senior breached his fiduciary duties and engaged in a fraudulent scheme to obtain for himself two highly-profitable assets of the estate, which ultimately sold for $45,000,000 in 2015 for the benefit of David the senior’s heirs. Plaintiff also sued David Michael Coffey (David the younger) - who is the son of David the senior - in the former’s capacity as trustee of the fortune resulting from the sale of the assets of the deceased. After a hearing on defendants’ motions for summary judgment, the court granted their motions, finding that the plaintiff’s claims were barred by the applicable statute of limitations. Plaintiff appeals. We hold that plaintiff has set forth specific facts showing that there are genuine issues of material fact pertaining to fraudulent concealment of plaintiff’s cause of action against the defendants rendering summary judgment inappropriate. Accordingly, we reverse the trial court’s judgment granting the defendants’ motions for summary judgment. This matter is remanded to the trial court for further proceedings. T

This is a wrongful death case. Decedent was operating his motor vehicle in the early morning when he struck a bull in the middle of the road. As a result of the collision, Decedent’s vehicle careened off the road and flipped upside down into a nearby creek, where Decedent drowned. Plaintiffs, Decedent’s surviving spouse and children, sued Defendant, alleging that he was negligent in his ownership and control of the bull. Defendant denied ownership, possession, or control of the bull and moved for summary judgment, which the trial court granted. On appeal, Plaintiffs argue that the trial court erred at the summary judgment stage by weighing the evidence and making determinations as to the credibility of witnesses. We agree and reverse.

A Bledsoe County jury convicted the Defendant, Matthew Marshall, of attempted rape and attempted aggravated statutory rape. The trial court imposed consecutive ten-year and four-year sentences, respectively, for a total effective sentence of fourteen years. At his motion for new trial, the trial court amended the judgments to run the sentences concurrently, for an effective ten-year sentence. On appeal, the Defendant contends that the trial court made numerous evidentiary errors when it admitted certain statements or testimony as evidence and when it allowed several witnesses to testify. After a thorough review of the record and relevant authorities, we affirm the trial court’s judgments.

In 2014, the Petitioner, Quinton Bonner, pleaded guilty to aggravated assault, and the trial court imposed a sentence of ten years. The Petitioner then sought to withdraw his guilty plea on the basis that it was not knowingly and voluntarily entered and that his trial counsel ineffectively advised him concerning his plea. The trial court denied his motion, and this court affirmed its judgment. State v. Bonner, No. W2015-00812-CCA-R3-CD, 2016 WL 1403308, at *1 (Tenn. Crim. App., at Jackson, April 7, 2016) no perm. app. filed. In 2016, the Petitioner filed a petition for post-conviction relief, alleging that his guilty plea was entered involuntarily and that he had received the ineffective assistance of counsel. The post-conviction court summarily dismissed his petition on the grounds that the claims had been previously determined. On appeal, the Petitioner contends that the trial court erred when it summarily dismissed his petition. After review, we affirm the post-conviction court’s judgment.

The Notice of Appeal in this case indicates on its face that the appellant is appealing from a decision entered on May 22, 2018. However, there is no final judgment in the proceedings below entered on May 22, 2018, or any other date. Because the case remains pending in the Chancery Court, we lack jurisdiction to consider this appeal.

The Defendant, Demetric Johnson, appeals the trial court’s revocation of his probation, arguing that the court should have imposed an alternative sentence rather than ordering him to serve the balance of his original sentence incarcerated, and therefore abused its discretion. After thorough review, we affirm the judgments of the trial court.

The Petitioner, Brian Allen Osborne, appeals the post-conviction court’s dismissal of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel. After review, we affirm the dismissal of the petition.

Vicki Gandee (“Employee”) sustained a knee injury in 2004 during the course of her employment with Christ United Methodist Church (“Employer”). Employee returned to work after her injury; however, she left her job in April 2006 before reaching maximum medical improvement. Employee filed this claim against Employer’s worker’s compensation carrier (“Insurer”) maintaining she failed to make a meaningful return to work. Employee was seeking permanent partial disability benefits at six times the impairment rating. The parties disputed whether Employee was terminated for misconduct or resigned due to her injury. The trial court found the claim compensable but capped the award at two and one-half times the impairment rating having concluded Employee was terminated for misconduct. Employee appeals claiming the trial court erred in finding she was terminated for misconduct; in applying the lower cap; and in adopting Insurer’s expert’s impairment rating. 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 trial court’s decision to adopt the impairment rating assigned by Insurer’s expert; however, we reverse the trial court’s decision to cap the award based on misconduct and remand for modification of the award.

A trust beneficiary sued co-trustees for breach of their fiduciary duties and for procuring the creation of two trusts through undue influence. The trustees moved to dismiss for failure to state a claim upon which relief can be granted. Following the hearing on the motion to dismiss, the trust beneficiary moved to amend his complaint. Prior to ruling on the motion to amend, the trial court granted the motion to dismiss based on the expiration of the statute of limitations and the grounds of res judicata and collateral estoppel. Subsequently, the trial court denied the motion to amend. On appeal, the trust beneficiary asserts the trial court abused its discretion by not granting his post-hearing motion to amend. The trust beneficiary also argues that the court erred in dismissing his complaint. We conclude the court did not err in denying his motion to amend. We further conclude that the trial court properly dismissed the complaint on the ground of res judicata.

After the wildfires in Gatlinburg destroyed the Village East Condominiums, the unit owners decided unanimously not to rebuild. The Village East Association filed an interpleader petition in the Chancery Court for Sevier County, requesting that the court determine the appropriate distribution of the insurance proceeds among the unit owners. The trial court interpreted the Master Deed as requiring a proportionate distribution of the insurance proceeds based on the insurance coverage for each unit. The owners who desired equal distribution of the insurance proceeds appeal. We affirm.

The Defendant, Richard Shawn O’Rourke, was convicted by a Lawrence County Circuit Court jury of rape, a Class B felony. See T.C.A. § 39-13-503 (2014). The trial court sentenced the Defendant as a Range I, standard offender to ten years, six months’ incarceration at 100% service. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction and (2) the State engaged in prosecutorial misconduct. Because the State engaged in multiple instances of prosecutorial misconduct during closing argument, we reverse the judgment of the trial court and remand the case for a new trial.

An easement owner filed a complaint against the dominant estate owner, arguing that the dominant estate owner’s installation of locked gates across the easement unreasonably interfered with his use of the right-of-way. The dominant estate owner moved for summary judgment, arguing that the easement owner was not entitled to an “open” right of- way, without impediments. The trial court granted the summary judgment motion and the easement owner appealed. Upon review of the record, we conclude there is a genuine issue of material fact regarding whether the locked gates are necessary to the dominant estate owner’s use and enjoyment of his property and whether the gates unreasonably interfere with the easement owner’s use of his right-of-way. Accordingly, we reverse the trial court’s judgment and remand for further proceedings.

After a jury awarded a terminated employee compensatory damages for a county’s violation of the Public Employee Political Freedom Act (“PEPFA”), the trial court awarded equitable damages. On appeal, the county argues that the trial court erred in excluding the findings of a neutral committee appointed by the mayor. We find no abuse of discretion in the trial court’s decision to exclude the findings as hearsay. As to the county’s assertion that the trial court erred in awarding damages related to the employee’s termination because the verdict form did not ask the jury to make a finding that her termination resulted from the PEPFA violation, we conclude that the county waived this issue by failing to raise it before the jury returned its verdict. We reject the county’s challenges to the amount of back pay awarded to the employee. Furthermore, we find that the trial court did not err in awarding front pay, or in declining to include benefits in the front pay award. The employee asserts that the trial court erred in concluding that she failed to mitigate her damages, and we agree that the county failed to meet its burden of proof on the issue of mitigation of damages. On the sole issue of mitigation of damages, we reverse the trial court’s decision. 

A father appeals the termination of his parental rights to his son on the grounds of abandonment by failure to visit and failure to support. Upon our review, we reverse the court’s holding of abandonment by failure to visit; in all other respects, the judgment is affirmed.

Father appeals the juvenile court’s judgment terminating his parental rights to two of his children. We conclude that DCS did not provide Father with a reasonable amount of time to comply with the permanency plan requirements and the record does not contain clear and convincing evidence to terminate his rights on this ground. Further, we conclude that the juvenile court’s order fails to comply with Tennessee Code Annotated section 36-1-113(k)’s requirement that the court make specific factual findings, which precludes our review of the remaining grounds and the best-interests determination. Therefore, we vacate the judgment of the juvenile court and remand for entry of an order that complies with subsection 113(k).

This matter involves a dispute between record owners of adjacent lots. Plaintiffs claim ownership of both lots. Defendant claims ownership of one lot and a shed situated on the other lot. Each sought compensation for damages and loss of use of their respective personal and real property during the dispute. The trial court held that each side owned the lot to which it was the record owner and that the shed was on plaintiffs’ lot. It held that both sides failed to meet its burden of proof on the issue of damages. Accordingly, the court declined to award damages. Plaintiffs appeal. We affirm.

The defendant, Jacob Bergum, was sentenced to ten years in confinement by the trial court for his Class B felony conviction of aggravated sexual battery. On appeal, the defendant argues the trial court improperly enhanced his sentence as a Range I offender from the minimum of eight years to ten years in violation of the purposes and principles of the Tennessee Criminal Sentencing Reform Act. Following our review of the briefs, the record, and the applicable law, we affirm the judgment of the trial court.

In this appeal, Westgate Resorts, Ltd., L.P., asserts that the trial court erred in awarding plaintiffs John M. North and Vickie C. North $29,716.19 in attorney’s fees and expenses. Before trial, the Norths accepted Westgate’s offer of judgment pursuant to Tenn. R. Civ. P. 68. It provided that Westgate would pay “an award of reasonable attorney’s fees and expenses, in an amount to be set by the [trial] court.” The Norths argue that because Westgate agreed to this provision under Rule 68 without specifically reserving the right to appeal, it may not appeal the award of attorney’s fees. Westgate argues that the fee amount was unreasonable. We hold that Westgate did not waive its right to appeal the attorney’s fee and expense award. We further hold that the trial court did not abuse its discretion in finding the amount awarded to be reasonable. The judgment of the trial court is affirmed.

This appeal arises from a lawsuit over the construction of a house. Wardley Homes, LLC (“Wardley Homes”), owned by James A. Wardley, II, and Teresa Smith Wardley (“the Wardleys”), contracted with Michael C. Johnson and Deborah A. Johnson (“the Johnsons”) to build the Johnsons’ house. A dispute arose over payment, and Wardley Homes sued the Johnsons in the Chancery Court for Loudon County (“the Trial Court”). The Johnsons, in turn, filed a counterclaim against Wardley Homes. The Johnsons later attempted to bring the Wardleys into the case individually under a theory of piercing the corporate veil. The record contains no order relating to whether the Wardleys were brought into this suit. Despite there being no order in the record bringing them into this suit, the Wardleys filed a motion for partial summary judgment relating to their individual liability. The Trial Court at a hearing apparently orally granted the Wardleys’ motion, although the record contains no order to that effect either. The Johnsons later filed a Tenn. R. Civ. P. 60.02 motion for relief, which the Trial Court denied. Wardley Homes and the Johnsons settled their dispute. The Johnsons appeal to this Court with respect to their effort to bring the Wardleys into the case individually. The absence of key orders precludes our review. We, therefore, vacate the Trial Court’s judgment, to the extent it exists, as it relates to partial summary judgment and remand for the Trial Court to (1) enter an order on the Johnsons’ motion to bring in the Wardleys, and if granted, (2) enter an order on the Wardleys’ motion for partial summary judgment that states the legal grounds and complies with Tenn. R. Civ. P. 56.04. We otherwise affirm the Trial Court.

The Petitioner, William M. Phillips, pled guilty in the Giles County Circuit Court to possession of one-half gram or more of cocaine with intent to sell and was sentenced as a Range II, multiple offender to twenty years in confinement. Subsequently, the Petitioner filed a pro se motion to withdraw his guilty plea, which the trial court denied, and a petition for post-conviction relief, which the post-conviction court denied. On appeal, the Petitioner contends that he is entitled to post-conviction relief because he was prejudiced by “a derogatory, racially based remark” made by the trial court during a hearing and because he was prejudiced by the trial court’s denial of his pro se motion to withdraw his guilty plea without the appointment of counsel. Based upon the oral arguments, the record, and the parties’ briefs, the denial of the petition for post-conviction relief is affirmed.

I concur with the conclusion reached by Judge Ogle that the post-conviction court properly denied the petition for post-conviction relief. I further agree with Judge Ogle’s conclusion that any claims regarding judicial bias and recusal are waived. I write separately to address the Petitioner’s claim that he was disadvantaged by not having appointed counsel to represent him at the hearing on his motion to withdraw his guilty plea. I do not believe a post-sentencing motion to withdraw a guilty plea pursuant to Tennessee Rule of Criminal Procedure 32(f) is a critical stage of the prosecution to which the right to counsel attaches.

A husband appeals the trial court’s division of marital assets and denial of attorney’s fees.  Both parties sought a divorce. Prior to trial, the parties stipulated that the husband was entitled to a divorce based on the wife’s admitted adultery. The parties also stipulated to the value of the husband’s premarital interest in his 401(k) retirement account. As to the division of marital assets, the parties stipulated that the husband would receive the marital home, and the wife would receive another piece of real property. The parties stipulated to the values of all remaining assets and debts but not to their division, and the wife waived any claims to alimony. After a four day bench trial, the trial court granted the husband a divorce and approved a permanent parenting plan which designated him as primary residential parent for the parties’ one child. In addition, the trial court classified the parties’ assets and divided the remaining marital estate, awarding fifty-four percent (54%) of the marital estate to the wife and forty-six percent (46%) to the husband, and declined to award either party attorney’s fees. The husband takes issue on appeal with the manner in which the trial court divided the marital estate and with the trial court’s decision to not award him any attorney’s fees. We affirm the trial court’s division of the parties’ marital estate, as well as the trial court’s decision not to award the husband any attorney’s fees. We also decline to award the wife her attorney’s fees on appeal.

This is a State appeal of the Hardin County Circuit Court’s grant of post-conviction relief. The Petitioner was convicted by a jury of various drug related offenses including sale of .5 grams or more of a Schedule II controlled substance within 1000 feet of a school zone, see Tenn. Code Ann. §§ 39-17-417(c)(1), 39-17-432(b)-(c), for which he received an effective sentence of 25 years with no parole. State v. Marlon Yarbro, No. W2015-00475-CCA-R3-CD, 2015 WL 5813383, at *3 (Tenn. Crim. App. Oct. 5, 2015), perm. app. denied (Tenn. Feb. 18, 2016). After his conviction was affirmed by this court, the Petitioner filed a pro se petition for post-conviction relief which did not include as grounds for relief that trial counsel was ineffective in advising the Petitioner of his sentence range or a due process claim based on the Petitioner’s rejection of a more favorable settlement offer from the State. Post-conviction counsel was appointed, and no amendments were filed. An evidentiary hearing was held, and the post-conviction court granted the Petitioner relief based on the evidence adduced at the post-conviction hearing. The State now appeals, raising the following issues: (1) whether the postconviction court may, on its own initiative, constructively amend a post-conviction petition; (2) if the constructive amendment were proper and if the basis for relief was that the petitioner’s rejection of the State’s plea offer was unknowing, whether that basis is a cognizable ground for post-conviction relief where there is no constitutional right to a knowing and voluntary rejection of a plea offer; and (3) if the constructive amendment were proper and if the basis for relief was ineffective assistance of counsel, whether the post-conviction court erred in granting relief where the court did not conduct the Strickland two-pronged analysis. Upon our review, we affirm the judgment of the postconviction court.