APPELLATE COURT OPINIONS

Parents appeal the termination of their parental rights to their two minor children. The children came into the custody of the Department of Children’s Services (“DCS”) after receiving a referral of domestic violence and subsequent concerns raised about the parents’ drug abuse and mental health. The children were adjudicated dependent and neglected in juvenile court. Several permanency plans were developed and monitored by DCS, all of which listed goals of good mental health, a safe environment free from domestic violence, and a drug free home. DCS filed a petition in circuit court to terminate the parents’ rights to the children on grounds of (1) abandonment by failure to provide a suitable home as to both parents; (2) abandonment by incarcerated parent as to Father; (3) substantial noncompliance with permanency plan as to both parents; and (4) persistence of conditions as to both parents. A guardian ad litem was appointed to represent the children in both the juvenile court dependency and neglect case and the circuit court termination case. The guardian ad litem filed a motion in juvenile court to modify the parents’ visitation, based in part on her personal observations. Father filed motions to disqualify the guardian ad litem in both juvenile and circuit court, asserting that the guardian ad litem began functioning as a necessary witness. The juvenile court granted the guardian ad litem’s motion to modify the parents’ visitation and denied the father’s motion to disqualify the guardian ad litem, specifically noting in its ruling that the court excluded any personal observations by the guardian ad litem. Thereafter, the circuit court also denied the father’s motion to disqualify the guardian ad litem, holding that the guardian ad litem was not a “necessary witness” as required under Tennessee Supreme Court Rule 8, Rule of Professional Conduct 3.7(a). Following a trial, the circuit court found that DCS had proven the grounds of abandonment for failure to provide a suitable home, substantial noncompliance with the permanency plan, and persistence of conditions, and that termination was in the children’s best interest. Based on these findings, the circuit court terminated both parents’ parental rights. We affirm.

The Defendant, Mark Anthony Clemmons, was convicted upon his guilty pleas of possession with intent to sell not less than one-half ounce nor more than ten pounds of marijuana, a Class E felony; possession with intent to sell a Schedule III controlled substance (dihydrocodeinone), a Class D felony; and two counts of sale of not less than one-half ounce nor more than ten pounds of marijuana, a Class E felony. See T.C.A. §§ 39-17-417 (a)(1), (g)(1) (2014); (possession with intent to manufacture, deliver, or sell marijuana); -417(a)(1), (d)(1) (possession with intent to manufacture, deliver, or sell a Schedule III controlled substance); -417(a)(3), (g)(1) (sale of marijuana). The trial court found that the Defendant was a Range III offender and imposed an effective twenty seven- year sentence. On appeal, the Defendant contends that the trial court erred in classifying him as a Range III offender because the State failed to provide an adequate notice of its intent to seek Range III sentencing. We affirm the judgments of the trial court.

In this appeal, the State challenges the trial court’s dismissal of a DUI by impairment charge as an impermissible “broadening and/or substantial amendment” to the original charge of DUI per se. The Defendant, Alisha Lynn Alsup, was initially indicted by the Lawrence County Grand Jury for driving while the alcohol concentration in her blood or breath was 0.08% or more (DUI per se), T.C.A. § 55-10-401(2); driving without her eyeglasses, id. § 55-50-331; and driving with inoperable headlights, id. § 55-9-402. Alsup filed a motion to suppress the results of the field sobriety tests, the blood sample, and the blood test results, and, shortly thereafter, the grand jury issued a superseding indictment, charging her with driving under the influence (DUI by impairment), id. § 55- 10-401(1), in addition to the previously charged offenses. Thereafter, Alsup filed a brief in the trial court asking that the superseding indictment be dismissed. Following an evidentiary hearing, the trial court granted the motion to suppress the blood alcohol results and stated that “in light of the . . . suppression of the blood sample in this case, the Court finds it unnecessary to address the dismissal of the superseding indictment in that Count II of said indictment is premised on [Alsup’s] blood alcohol content being 0.08[%] or more.” The trial court then held that the State would only be allowed to proceed on the original indictment, which the court mistakenly believed charged Alsup with DUI by impairment. Thereafter, the trial court entered a second order, the subject of the State’s appeal, correcting some errors in the previous order, reiterating its suppression of the blood test results, dismissing the DUI per se counts in the original and superseding indictments based on the suppression of the blood test results, and dismissing the DUI by impairment charge in the superseding indictment as time-barred after determining thatthis charge was “a broadening and/or substantial amendment” to the DUI per se charge in the original indictment. In response, Alsup argues that the trial court exceeded its jurisdiction by entering the second order amending its first order pursuant to Tennessee Rule of Criminal Procedure 36, that the State failed to timely appeal from the first order entered, and that the trial court properly determined that the DUI by impairment charge was barred by the statute of limitations. Although this was a very close case, we conclude that the DUI by impairment charge in the superseding indictment broadened and substantially amended the charge of DUI per se in the original indictment. Accordingly, we affirm the judgment of the trial court.

We granted the Rule 9 application for an interlocutory appeal filed by Tennessee Farmers Mutual Insurance Company (“TN Farmers”) to consider whether material misrepresentations made on an application for a policy of insurance may become not material by virtue of later changes made to the policy. We find and hold that the misrepresentations made on the policy application increased the risk of loss and voided the policy or prevented its attaching pursuant to Tenn. Code Ann. § 56-7-103 and that subsequent changes to a void policy did not render the misrepresentations not material. We, therefore, reverse the June 22, 2017 order of the Circuit Court for Hawkins County (“the Trial Court”) denying TN Farmers’ motion for summary judgment and remand this case to the Trial Court for entry of an order granting summary judgment to TN Farmers.

Jason Keenan sued Jeffrey L. Hollifield for damages arising out of a two-vehicle collision on Interstate 40 in Knox County. By way of an order entered August 9, 2017, the plaintiff took a voluntary nonsuit, pursuant to the provisions of Tenn. R. Civ. P. 41.01(1). On the same date, the defendant filed a motion for discretionary costs. Following a hearing on September 8, 2017, the trial court, in an order entered September 15, 2017, denied the defendant’s motion. Defendant appeals, arguing that he is entitled to discretionary costs of $814.66. We reverse the trial court’s judgment and award the defendant discretionary costs of $814.66.

A man convicted of multiple criminal offenses sued his former criminal defense attorney for legal malpractice, and the trial court granted the defendant’s motion for summary judgment. On appeal, the plaintiff argues that the trial court erred in dismissing his legal malpractice action. Because the plaintiff failed to establish a necessary element of his claim for criminal legal malpractice—namely, exoneration—we affirm the trial court’s decision.

The Defendant, Ashley Juvinall, pleaded guilty to theft of property valued over $1,000, theft of property valued over $500 but less than $1,000, theft of property valued under $500, and fraudulent use of a credit card in exchange for an effective sentence of four years, eleven months, and twenty-nine days to be served on supervised probation. A probation violation warrant was issued alleging multiple violations and, after a hearing, the trial court revoked the Defendant’s probation sentence, ordering that she serve her sentence in confinement. On appeal, the Defendant asserts that the trial court abused its discretion when it revoked her probation sentence. After review, we affirm the trial court’s judgment.

In 2014, the General Assembly enacted a statute waiving Tennessee’s sovereign immunity for claims brought against the State pursuant to the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301 to 4335 (“USERRA”). The waiver of sovereign immunity became effective on July 1, 2014, and applied to USERRA claims “accruing on or after” that date. After passage of the statute, the plaintiff brought a USERRA claim against the defendant, an entity of the State, but his claim was based on facts that occurred prior to August 8, 2011. The trial court dismissed the claim, explaining that the claim accrued prior to July 1, 2014, and remained barred by sovereign immunity. The Court of Appeals reversed, holding that the claim accrued on July 1, 2014, when the plaintiff gained a judicial remedy by the enactment of the statute waiving sovereign immunity. We conclude that the claim accrued prior to July 1, 2014, and remains barred by sovereign immunity. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court.

Personal injury action arising out of accident between a pickup truck and a dump truck hauling materials for a company that paved roadways. The pickup truck driver sued the driver of the dump truck and the paving company to recover for injuries he sustained in the accident. The trial court granted the paving company’s motion for summary judgment, holding that the driver of the dump truck was an independent contractor and that the paving company was not liable for the dump truck driver’s negligence. The injured driver appeals. Upon a thorough review of the record, we affirm the grant of summary judgment.

Tabitha B. (“Mother”), represented by counsel, appeals the May 31, 2017 order of the Juvenile Court for Davidson County (“the Trial Court”). Mother’s brief on appeal fails to comply in any meaningful way with Tenn. R. App. P. 27. We, therefore, find that Mother has waived her issues on appeal.

Appellant/Father appeals the trial court’s order, charging Appellant with $23,663.54 in child support arrearage. Specifically, Appellant asserts that he is entitled to certain credits against the arrearage. Discerning no error, we affirm and remand.

This is an appeal in a health care liability action from the dismissal of the action for Plaintiffs’ failure to comply with Tennessee Code Annotated section 29-26-121(a)(2)(E) when they failed to provide the Defendants with HIPAA compliant authorizations for release of medical records. The trial court held that, as a result of the failure, Plaintiffs were not entitled to an extension of the one-year statute of limitations for bringing suit and the action was barred. Plaintiffs appeal. Upon our review, we find that Plaintiffs substantially complied with the requirements of section 29-26-121 and that the Defendants have not shown that they were prejudiced by the deficiencies in the authorizations; accordingly, we reverse the decision of the trial court and remand the case for further proceedings. 

The Defendant, Brian Allen Spears, appeals as of right from the Sevier County Circuit Court’s judgment revoking his community corrections sentence and ordering the Defendant to serve the remainder of his sentence in confinement. The Defendant argues that the trial court abused its discretion in ordering the sentence served in confinement. The State has filed a motion to affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Following our review, we conclude that the State’s motion is well-taken and affirm the order of the trial court.

Lorenzoe Wilson (“the Defendant”) appeals the trial court’s revocation of his community corrections sentence and the imposition of his sentence of confinement, claiming that the trial court abused its discretion in finding that he violated the terms of alternative sentencing and that he should have been reinstated to community corrections. After a review of the record and applicable law, we conclude that the trial court did not abuse its discretion. The judgment of the trial court is affirmed.

In this appeal, the State challenges the trial court’s application of the general savings statute to the Defendant’s theft conviction, which occurred prior to the amendment of the theft statute, see T.C.A. §§ 39-14-103 (2014) (theft); 39-14-105 (2014) (amended 2017). Because no appeal as of right lies for the State pursuant to Tennessee Rule of Appellate Procedure 3 or Tennessee Code Annotated section 40-35-402, this court lacks jurisdiction to review this issue. Accordingly, we dismiss this appeal. We nevertheless detect errors in the judgment and remand for entry of a corrected judgment to reflect a Class A misdemeanor consistent with the amended theft statute.

Believing that it is not a forced interpretation of Tennessee Code Annotated section 40-35-402(b)(1) to provide the State an avenue for appeal and thus convey appellate jurisdiction, I respectfully dissent.

A Davidson County jury convicted the Petitioner, Roderick Dewayne Crosby, of four counts of aggravated kidnapping, three counts of aggravated robbery, one count of burglary, one count of aggravated assault, and one count of possession of a firearm during the commission of a dangerous felony, and the Petitioner received an effective sentence of thirty-four years. On appeal, this court affirmed the judgments. See State v. Roderick Dewayne Crosby, No. M2014-00914-CCA-R3-CD, 2015 WL 4197613, at *1 (Tenn. Crim. App., at Nashville, July 13, 2015), perm. app. denied (Tenn. Oct. 15, 2015). The Petitioner filed a post-conviction petition, and the post-conviction court denied relief following a hearing. On appeal, the Petitioner maintains that he received the ineffective assistance of counsel. After review, we affirm the post-conviction court’s judgment.

The appellant has filed a notice of appeal from an order denying her motion to alter or amend. Because the motion to alter or amend was not timely filed and the court has already dismissed the appellant’s prior appeal from the underlying judgment as untimely, we dismiss the appeal for lack of jurisdiction.

This appeal arises from an action where the plaintiff sought to reform a deed that did not transfer a disputed acre of property to him. The plaintiff alleged that a mutual mistake had occurred and that both plaintiff and defendants had intended for the disputed acre to be sold. The trial court held that the mutual mistake existed and that the error was clear and convincing enough to allow for reformation of the deed. The defendants appeal. We affirm the decision of the trial court.

This appeal involves the termination of a father’s parental rights. The trial court found that grounds existed to terminate parental rights based on a prior adjudication of severe child abuse and abandonment by willful failure to visit and support. The trial court also found, by clear and convincing evidence, that termination was in the best interest of the child. The father appeals. We vacate the trial court’s finding regarding one ground for termination but otherwise affirm the order terminating parental rights

The administrator of an estate appeals the trial court’s award of attorney fees to a beneficiary in a contempt action filed by him against the beneficiary. We reverse, holding that the trial court abused its discretion in its award of attorney fees because the fees awarded did not inure to the benefit of the estate.

The brother of a decedent filed a petition to admit to probate a purported holographic will. The decedent’s widow protested. After a hearing, the trial court ruled that the document was not a holographic will and that the decedent had died intestate. The brother appeals. We affirm. 

In this post-divorce case, Angela Michelle Newberry appeals the trial court’s modification of the permanent parenting plan. She challenges the trial court’s decision to change the designation of primary residential parent from her to her former spouse, Jeremy Mack Newberry. She also attacks the court’s decree reducing her co-parenting time. We hold that father failed to meet his burden of establishing a material change in circumstances affecting the children’s well-being, as required by Tenn. Code Ann. § 36- 6-101(a)(2)(B) (2017). Consequently, we reverse the trial court’s judgment and reinstate the parenting plan as originally agreed to by the parties and ordered by the court in the final divorce judgment.

A mother of four children had her parental rights terminated based on the grounds of abandonment by failure to support, abandonment by failure to provide a suitable home, abandonment by wanton disregard, substantial noncompliance with permanency plans, severe child abuse, and persistence of conditions. Mother appealed the trial court’s judgment. We affirm the termination of her rights as to all grounds other than abandonment by failure to support, abandonment by failure to provide a suitable home, and persistence of conditions.

The Defendant, Kentrell Lebron Lindsey, appeals the trial court’s order requiring him to serve in confinement his effective six-year sentence for his guilty-pleaded convictions of possession of dihydrocodeinone, a Schedule III controlled substance, with the intent to sell or deliver; possession of oxycodone, a Schedule II controlled substance, with the intent to sell or deliver; and possession of a firearm with the intent to go armed during the commission of a dangerous felony. The trial court found that Tennessee Code Annotated section 39-17-1324(e), which required that the Defendant serve his three-year sentence for the firearm conviction in confinement and consecutively to his sentences for the drug convictions, rendered the Defendant statutorily ineligible for probation for his drug convictions. We conclude, and the State concedes, that the trial court erred in finding the Defendant statutorily ineligible for probation for his drug convictions. Accordingly, we reverse the trial court’s denial of probation for the drug convictions and remand the case for the trial court to consider the Defendant’s suitability for probation on his three-year sentences for the drug convictions. The trial court’s judgments are otherwise affirmed.