APPELLATE COURT OPINIONS

Ray W. Buck (“Plaintiff”) appeals the January 4, 2017 order of the Circuit Court for Anderson County (“the Trial Court”) granting summary judgment to Accurate C & S Services, Inc. (“Accurate”) and R&R Properties of Tennessee, LLC (“R&R”) in this suit for premises liability. We find and hold that the defendants made properly supported motions for summary judgment and that Plaintiff failed to respond with genuine disputed issues of material fact showing that a rational trier of fact could find in his favor. We, therefore, affirm the grant of summary judgment.

This is a case about an unleashed German shepherd. The dog belonged to Appellant’s neighbor, who allowed the dog to remain unleashed in his yard. Appellant reported this to several employees of the City of Memphis, who ultimately determined that the dog was appropriately restrained in the neighbor’s yard by an invisible electric fence. Appellant was unsatisfied with this determination and filed suit against the City and its employees for tort claims and violations of her constitutional rights. The trial court dismissed Appellant’s suit for failure to state a claim upon which relief could be granted. We affirm.

This is a conservatorship dispute. The trial court found that there was clear and convincing evidence that Appellant was in need of a conservator. We conclude that the evidence presented at trial was not clear and convincing as to whether Appellant was in need of a conservator. Because there is some question in the record, however, as to whether the parties reached an agreement to allow the appointment of a conservator, we vacate and remand this case to determine this issue. Reversed in part, vacated in part, and remanded.

The Defendant, Zachary Michael Johnson, was indicted for five counts of rape by force or coercion, a Class B felony, all involving the same victim and occurring over a short period of time. The jury convicted him of the lesser offense of sexual battery, a Class E felony, in two counts of the indictment and acquitted him of the remaining three counts of the indictment. The trial court subsequently sentenced him as Range I, standard offender to concurrent terms of two years for each conviction, suspended to three years of supervised probation. On appeal, the Defendant challenges the sufficiency of the convicting evidence and argues that the trial court committed plain error by not instructing the jury on the lesser-included offense of assault by extremely offensive or provocative physical contact. Following our review, we conclude that the evidence is sufficient to sustain the convictions but that the trial court erred in not instructing the jury as to the lesser-included offense. Accordingly, we reverse the judgments of conviction and remand for a new trial.

This is the second appeal of this governmental tort liability action. After his son committed suicide while in custody at the Shelby County Jail, Appellee filed suit against the Appellant Shelby County for negligence under a theory of vicarious liability. On remand from this Court, the trial court held a bench trial and determined that Appellant’s employee’s failure to perform wellness checks was negligent conduct but not intentional. Accordingly, the trial court held that Appellant was not immune from suit under the Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-205, and entered judgment in favor of Appellee. Shelby County appeals. Discerning no error, we affirm and remand.

This appeal involves attorney’s fees awarded during the course of a conservatorship. Upon a petition filed by the ward’s eldest two children, a response filed by the ward’s spouse, the report of a court-appointed guardian ad litem, and a mediated agreement, the probate court entered an order establishing a conservatorship for the ward and appointing the ward’s spouse as conservator on May 11, 2015. During the course of the conservatorship, the trial court found in three instances at issue that the conservator was entitled to attorney’s fees in disputes involving various requests to release information concerning the ward in a public forum. The trial court subsequently denied a motion to set aside, vacate, and stay enforcement filed by the original petitioners, who have appealed to this Court. Having determined that the original petitioners were given insufficient notice of two of the three hearings resulting in the assessment of attorney’s fees and costs against them, we vacate the trial court’s respective orders awarding attorney’s fees and costs in those two instances. We affirm the trial court’s judgment in all other respects at issue on appeal.

Kevin E. Trent pled guilty to one count of vehicular homicide by intoxication. He was sentenced by agreement as a Range I standard offender to eight years with the manner of service to be determined by the trial court after a hearing. The trial court subsequently ordered the Defendant to serve his sentence in confinement. On direct appeal, the Court of Criminal Appeals reversed the trial court’s ruling and, additionally, affirmatively ordered the Defendant to be placed on full probation. We granted the State’s application for permission to appeal to review the Court of Criminal Appeals’ decision to reverse the trial court’s order that the Defendant serve his sentence in confinement and to affirmatively order that the Defendant be placed on full probation. We agree with the Court of Criminal Appeals that the trial court failed to make sufficient findings for the appellate courts to review the sentence with a presumption of reasonableness. Moreover, our review of the record reveals it is inadequate to conduct an independent review of the sentence imposed by the trial court. As a result, we also hold that the record is not sufficient to support the Court of Criminal Appeals’ modification of the Defendant’s sentence to order full probation. Accordingly, we reverse the judgment of the Court of Criminal Appeals, vacate the sentencing determination of the trial court, and remand this matter to the trial court for a new sentencing hearing.   

Petitioner, Phillip Alexander McWilliams, appeals the denial of his petition for post-conviction relief from his convictions for aggravated domestic assault and reckless endangerment with a deadly weapon. Petitioner argues that he received ineffective assistance of counsel. After a review of the record and the briefs of the parties, we determine Petitioner has failed to establish that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

A Davidson County Criminal Court Jury convicted the Appellant, D’Maris Laquann Fuller, of aggravated robbery. The trial court sentenced the Appellant as a Range I, standard offender to ten years in the Tennessee Department of Correction. On appeal, the Appellant contends that the trial court erred by refusing to allow him to play a recording of a 911 call, that the evidence was insufficient to sustain his conviction, and that the trial court erred when determining the length of his sentence. Upon review, we affirm the judgment of the trial court.

Sheila Holbert filed this action seeking workers’ compensation benefits for the death of her husband, Dennis Holbert (“Decedent”).  Ms. Holbert alleged Decedent died as a result of an inhalational exposure to dust in the course of his job for JBM, Incorporated (“Employer”).  After hearing the evidence, the trial court ruled Ms. Holbert had sustained her burden of proof as to causation.  It awarded death benefits and ordered Employer to pay Decedent’s medical expenses into the registry of the court.  It further ruled medical expenses were governed by the Tennessee workers’ compensation schedule.  Employer appeals, claiming the trial court erred in finding work-related causation and in ordering medical expenses to be paid into the treasury of the court.  Ms. Holbert challenges application of the Tennessee medical payment schedule.  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 in part, reverse in part, vacate in part, and remand the case to the trial court.

Matthew B. Foley, the Petitioner, filed a petition for post-conviction relief thirteen years after he entered a guilty plea; he argued that the statute of limitations should be tolled on due process grounds and that the State had breached a material element of his plea agreement. The post-conviction court summarily dismissed the petition on the ground that the statute of limitations should not be tolled. On appeal, this court held that the statute of limitations should be tolled based on due process grounds and remanded the case for an evidentiary hearing on the merits. Matthew B. Foley v. State, No. M2015-00311-CCA-R3-PC, 2016 WL 245857, at *8 (Tenn. Crim. App. Jan. 20, 2016), no perm. app. filed. On remand, the post-conviction court again denied relief on the ground that the statute of limitations should not be tolled based on due process. We again reverse and remand this case for an evidentiary hearing on the merits of the post-conviction relief petition.

A Knox County jury convicted the Defendant, Tommy Lee Houser, Jr., of felony theft. After a sentencing hearing, the trial court classified the Defendant as a career offender and imposed a mandatory twelve year sentence. On appeal, the Defendant asserts that the evidence supporting his conviction is insufficient and that the trial court erred in applying the Class D felony offense classification rather than the “new” Class E felony offense classification. After review, we affirm the trial court’s judgment.

The Defendant, Joey Tyrone Simpson, entered an open guilty plea to aggravated assault, a Class C felony, and was sentenced as a Range I, standard offender to three years in the Department of Correction. Additionally, he was ordered to pay $2880 in restitution for the victim’s medical expenses. On appeal, he argues that he should have been granted alternative sentencing. Following our review, we affirm the judgment of the trial court but remand for entry of a corrected judgment to reflect the amount of restitution as $2880, rather than $2280.

This case concerns a dispute involving Lisa Akins, Kimberly Floyd, and Donna Helms, the three daughters of Eldon Shirley (the deceased). The initial dispute regards a deed from the deceased to Akins, reserving a life estate. Prior to the execution of the deed, the deceased executed a power of attorney appointing Akins as his attorney-in-fact. Thereafter, Floyd filed this action to set aside the deed on the ground of undue influence. She also alleged that Akins converted other assets of the deceased. Helms later filed an intervening complaint adopting the allegations in Floyd’s complaint. Helms prayed that the real property deeded to Akins be declared a resulting and/or constructive trust. Akins filed a counterclaim alleging that Helms was indebted to her. Akins asked the court to compel Helms to file an accounting of the funds in dispute. The trial court bifurcated the trial. It first heard the undue influence claim. The court held that the deed was procured by the undue influence of Akins. The second stage of the trial involved the status of other assets and accounts. The court determined that specific payments to Helms were loans. The court found that other payments to and charges made by Helms involved no promise to repay and were gifts or payments for the care of the deceased. Akins appeals. We affirm.

This appeal arises from the adoption of a permanent parenting plan and the determination of a father’s child support obligation. The father argues that the juvenile court erred in both its fashioning of the parenting plan and its calculation of his child support obligation. Because the court made insufficient findings of fact and conclusions of law, we vacate and remand. 

Following a jury trial, Defendant, Courtney Fifer, was convicted of first degree murder, attempted robbery, and being a felon in possession of a handgun. He was sentenced to life for first degree murder, two years for attempted robbery, and one year for being a felon in possession of a handgun. On appeal, Defendant argues that his right to a fair trial was violated because the trial court improperly restricted his closing argument, and the prosecutor misstated evidence during closing argument. After a thorough review of the record, we affirm the judgments of the trial court.

The Defendant, Steven Dare Steelman, Jr., was convicted by a Knox County Criminal Court jury of aggravated vehicular homicide, vehicular homicide by intoxication, vehicular homicide by reckless conduct, vehicular assault, reckless endangerment with a deadly weapon, third offense driving under the influence (DUI) per se, third offense DUI, driving on a revoked license after two prior DUI convictions, and failure to provide proof of financial responsibility. See T.C.A. §§ 39-13-218 (2014) (aggravated vehicular homicide), 39-13-213 (2014) (amended 2015) (vehicular homicide by intoxication or vehicular homicide by reckless conduct), 39-13-106 (2014) (amended 2015) (vehicular assault), 39-13-103 (Supp. 2014) (amended 2015) (reckless endangerment with a deadly weapon), 55-10-401 (2012) (amended 2013, 2015) (third offense DUI per se), 55-10-401 (2012) (amended 2013, 2015) (third offense DUI), 55-50-504 (2012) (amended 2016) (driving on a revoked license after two prior DUI convictions), 55-12-139 (Supp. 2014) (amended 2015) (failure to provide proof of financial responsibility). The trial court merged the vehicular homicide by intoxication and vehicular homicide by reckless conduct convictions with the aggravated vehicular homicide conviction. The court merged the third offense DUI conviction with the third offense DUI per se conviction. The court sentenced the Defendant to an effective thirty-two years’ confinement. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions for aggravated vehicular homicide and vehicular assault, (2) the trial court should have merged the reckless endangerment with a deadly weapon and vehicular assault convictions, and (3) the trial court erred during sentencing. Although we affirm the Defendant’s convictions, we remand the case to the trial court for the entry of corrected judgments reflecting the merger of the third offense DUI per se conviction with the vehicular assault conviction.

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation 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. See Tenn. Sup. Ct. R. 51. Employee injured his back at work and subsequently developed a serious infection that required hospitalization and treatment. He filed a petition seeking to recover temporary total disability benefits and his medical expenses. The Court of Workers’ Compensation Claims determined Employee “failed to prove by a preponderance of the evidence that he sustained a compensable injury primarily arising out of and in the course and scope of his employment.” After reviewing the record and applicable authority, we affirm the judgment.

A Tipton County jury convicted the Defendant, Marvis Deshun Pollard, of possession of 0.5 grams or more of methamphetamine with the intent to deliver; delivery of 0.5 grams or more of methamphetamine; simple possession of oxycodone; tampering with evidence; felony evading arrest posing a risk of danger to others; and driving on a canceled, suspended, or revoked driver’s license. The trial court imposed an effective sentence of sixteen years. On appeal, the Defendant contends that the evidence is insufficient to support his methamphetamine convictions. Upon reviewing the record and the applicable law, we affirm the judgments of the trial court. We remand the case to the trial court for entry of corrected judgments reflecting merger of the methamphetamine convictions.

Thomas Lee (“Employee”) worked for Federal Express Corporation (“Employer”). He worked in the Audio-Visual department, located in Collierville, Tennessee. He filed this claim, alleging that he sustained a compensable injury to his left shoulder on July 24, 2014. Employer denied the claim, based on conflicting descriptions of the incident to various medical personnel. A Compensation Hearing was held on August 15, 2016. The trial court found Employee had failed to sustain his burden of proof and dismissed the claim. Employee appealed to the Supreme Court pursuant to Tennessee Code Annotated section 50-6-239(c)(7). 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.

Mother appeals the termination of her parental rights to her son resulting from a petition for termination and adoption filed by her son’s Father and Stepmother. The trial court terminated Mother’s rights on the grounds of abandonment by failure to support and persistence of conditions, and on a finding that termination was in the child’s best interest. Upon a thorough review of the record, we reverse the termination of Mother’s rights on the ground of persistence of conditions; we affirm the termination of her rights on the ground of abandonment by failure to support and the holding that termination is in the child’s best interest.

We granted an interlocutory appeal pursuant to Tenn. R. App. P. 9 in this case to consider whether the allegations set forth in the Complaint make this a ‘health care liability action’ as defined by Tenn. Code Ann. § 29-26-101 et seq. (“the Tennessee Health Care Liability Act”) such that the pre-suit notice and certification requirements set forth in Tenn. Code Ann. §§ 29-26-121 and – 122 are applicable. We find and hold that the allegations set forth in the Complaint filed in this case do not make this suit a health care liability action as defined by the Tennessee Health Care Liability Act. We affirm that portion of the judgment of the Circuit Court for Loudon County (“the Trial Court”) finding and holding that the allegations set forth in the Complaint filed in this case do not make this suit a health care liability action as defined by the Tennessee Health Care Liability Act.1

The primary issue in this appeal is whether the former spouse of a military retiree is entitled to a share of his military retirement.  The military retiree submits that, because of his service-connected disability rating of 100%, his former spouse is not entitled to a share of his military retirement.  Based on its interpretation of the parties’ marital dissolution agreement, the trial court ruled in favor of the former spouse and awarded her a percentage of the retiree’s “total military retired pay,” including disability benefits.  Upon our de novo review, we conclude that the trial court erred in awarding the former spouse a percentage of the retiree’s disability benefits.  But the trial court correctly determined that the military retiree’s disability rating did not deprive his former spouse of an interest in his military retirement.

A plan administrator filed an interpleader action asking the court to determine the proper beneficiary of death benefits in a retirement plan. After the plan participant died, both his former wife and his estate demanded payment from the plan administrator. Although the former wife was listed as the designated beneficiary in the plan, the estate claimed that the beneficiary designation had been revoked in the couple’s marital dissolution agreement. The former wife filed a motion for judgment on the pleadings and a counterclaim alleging breach of the implied covenant of good faith and fair dealing in the administration of the plan. The trial court denied the former wife’s motion, awarded the disputed proceeds to the estate, and dismissed the counterclaim. The former wife appealed. Upon review, we conclude that the marital dissolution agreement did not revoke the previous beneficiary designation. We also conclude that the trial court erred in dismissing the counterclaim. Thus, we reverse in part, vacate in part, and remand this case for further proceedings consistent with this opinion.

This is a Rule 10B appeal of the denial of a petition for recusal. The trial court denied Appellant’s motion to recuse, and Appellant filed this accelerated interlocutory appeal pursuant to Rule 10B of the Rules of the Tennessee Supreme Court. We affirm in part, modifying the trial court’s order to deny the motion to recuse and vacate its order regarding the validity of the will. We remand for further hearing regarding the validity of the will at issue.