APPELLATE COURT OPINIONS

This appeal addresses the authority of a county election commission to make a factual determination on the qualifications of a candidate seeking to be placed on a ballot. In this case, the defendant filed a petition to run for circuit court judge. A registered voter filed a complaint with the county election commission arguing that the defendant did not reside in the judicial district and, consequently, should not be placed on the ballot. The election commission held a hearing on the complaint and voted unanimously to place the defendant on the ballot. The defendant won the election. The plaintiff, the defendant’s defeated opponent in the election, filed this election contest based solely on the defendant’s alleged failure to meet the residency requirement. The trial court and the Court of Appeals dismissed the complaint. Both held that the substance of the plaintiff’s complaint was a challenge of the election commission’s administrative decision on the defendant’s residency, governed by the 60-day statute of limitations in Tennessee Code Annotated section 27-9-102 for a petition for a writ of certiorari. Because the complaint was not filed within sixty days of the county election commission’s final decision, it was dismissed as untimely. On appeal to this Court, we hold that, by necessary implication, the county election commission had the authority under Tennessee’s election statutes to hold a quasi-judicial hearing to make a factual determination to resolve the voter’s complaint challenging the defendant’s residency. We also hold that the county election commission’s decision to certify the defendant as a qualified candidate on the ballot was a final administrative decision subject to judicial review by common-law writ of certiorari. The plaintiff, who had actual notice of the county election commission’s actions, was “aggrieved” by the election commission’s final administrative decision within the meaning of Tennessee Code Annotated section 27-9-101 and, thus, had standing to file a petition for a writ of certiorari. Though the plaintiff’s complaint was styled as an election contest, the gravamen of the complaint is a request for judicial review of the county election commission’s decision, reviewable through a petition for a writ of certiorari and subject to the 60-day statute of limitations for such a petition. Because the plaintiff’s complaint was filed well after expiration of the 60-day period, we affirm the lower courts’ dismissal of the complaint as untimely

The trial court dismissed this action as a matter of law for failure to state a claim upon which relief can be granted pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. We affirm.

I cannot join the majority’s decision affirming the dismissal of William Thomas McFarland’s election contest lawsuit. No statute expressly authorizes a county election commission to convene a quasi judicial hearing and resolve a pre-election challenge to a circuit judge candidate’s satisfaction of constitutional residency requirements. Furthermore, the majority’s conclusion that county election commissions implicitly have such authority ignores the fact that, where the General Assembly intends for a county election commission to exercise such authority, it has enacted statutes expressly providing such authority. The majority compounds this error by applying its holding recognizing implicit authority in a manner that negates a statute explicitly granting Mr. McFarland the right to file this election contest lawsuit challenging Michael S. Pemberton’s satisfaction of constitutional residency requirements. Because the majority’s decision is inconsistent with relevant statutes, with longstanding decisions of this Court, and with commonsense, practical considerations, I dissent.

The majority’s decision misapplies Tennessee statutory and case law and creates practical problems for candidates for public office. For these reasons, I join in Justice Clark’s dissent and write separately to express my concerns. 

Jerry Thigpen sued the Trousdale County Highway Department and two individuals, alleging damage to his home caused by roadway resurfacing. The trial court dismissed the lawsuit, concluding that the claims were barred by the Tennessee Governmental Tort Liability Act (“GTLA”). We affirm.

Defendant, Savannah Humphrey, was convicted of one count of aggravated child abuse and one count of aggravated child neglect for injuries sustained by the three-month-old victim while in Defendant’s care.  On appeal, Defendant challenges the sufficiency of the evidence and argues that the trial court erred in denying her motion for judgment of acquittal.  Based upon our review of the record, we affirm the judgments of the trial court.

The State appeals after the post-conviction court granted Petitioner, Gabriel C. Torres, post-conviction relief in the form of a new trial.  Because the proper remedy was the grant of a delayed appeal, we reverse and remand the judgment of the post-conviction court.  

This case is on appeal from a trial court judge’s decision not to recuse herself based on a telephone call to a university department director concerning a potential expert witness’ qualifications. Upon the trial court’s denial of the defendant’s motion for recusal of the trial court judge, the defendant filed an accelerated interlocutory appeal in the Court of Appeals pursuant to Tennessee Supreme Court Rule 10B, section 2. The Court of Appeals reversed the trial court’s decision, holding that recusal of the trial judge was necessary. We granted the plaintiff’s accelerated application for permission to appeal to this Court. Having thoroughly reviewed the filings of both parties and the applicable law, we conclude that the trial court’s denial of the motion to recuse was appropriate in this case. Therefore, we reverse the decision of the Court of Appeals.

Jerome V. and Teresa V. (“Petitioners”) appeal the May 26, 2015 order of the Circuit Court for Sumner County (“the Trial Court”) dismissing their Petition for Adoption and Termination of Parental Rights (“the Petition”) based upon Tenn. Code Ann. § 36-1-119. We find and hold that Petitioners have shown good cause why the Petition should not be dismissed, and we vacate the Trial Court’s May 26, 2015 order, reinstate the Petition, and remand this case for further proceedings.

I maintain that the Court of Appeals properly concluded that recusal was necessary in this case. While I adhere to the position expressed by both the appellate court’s majority and concurring opinions that “[n]othing in the record on appeal leads this Court to believe that the trial judge holds a prejudice or bias against any party or that the trial judge cannot remain impartial despite this communication,” Holsclaw v. Ivy Hall Nursing Home, Inc., No. E2016-02178-COA-T10B-CV, 2016 WL 7364901, at *8 (Tenn. Ct. App. Dec. 19, 2016), perm. app. granted (Tenn. Feb. 17, 2017), I nonetheless perceive an appearance of impropriety that is expressly disfavored by the Canons of Judicial Conduct, see Tenn. Sup. Ct. R. 10, Canon 1.2 (“A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”). Therefore, I respectfully disagree with the decision of the majority of this Court that recusal is unnecessary.

This appeal arises from a lawsuit filed by plaintiffs Shay and Brian Simpson (“the Simpsons,” collectively, or “Ms.” or “Mr. Simpson,” respectively) against defendants National Fitness Center, Inc. and National Fitness Center, LLC (“National Fitness,” collectively). Ms. Simpson and National Fitness orally contracted to allow the Simpsons “a couple of weeks” additional time to consider whether to cancel their club membership. After more than two weeks elapsed, the Simpsons elected to cancel but National Fitness refused to accept the cancellation. This case was tried before the Circuit Court for Knox County (“the Trial Court”). The Trial Court found that National Fitness breached the contract and committed a deceptive act under the Tennessee Consumer Protection Act (“TCPA”). The Trial Court ordered “a return of all monies paid [by the Simpsons] to [National Fitness] . . .” and awarded attorney’s fees to the Simpsons. National Fitness appealed to this Court. We affirm the Trial Court in its determination that the Simpsons effectively exercised their right to cancel and that they were entitled to a refund of any monies paid. However, we reverse the Trial Court in its determination that National Fitness violated the TCPA. We, therefore, reverse the award of attorney’s fees. We affirm, in part, and reverse, in part, the judgment of the Trial Court.

Defendant, Henry Lee Jones, was convicted of two counts of premeditated first degree murder and two counts of felony murder for his role in the 2003 murders of two Shelby County citizens. The jury sentenced Defendant to death for each murder. Defendant now appeals from these convictions and sentences. Defendant argues that the trial court erred by allowing Defendant to represent himself and committed other errors with regard to the provision of elbow counsel; the trial court erred by declaring a witness unavailable and allowing testimony from that witness regarding a prior bad act; the trial court erred by admitting photographs of the victims’ bodies and wounds; the State utilized improper closing argument; the evidence was insufficient to support the convictions; the trial court erred in denying Defendant a mitigation expert or investigator in preparation for sentencing; and the death sentence is arbitrary and disproportionate. After a thorough review of the record and the applicable law, we affirm Defendant’s convictions and sentences of death.

The plaintiff, an inmate proceeding self-represented, filed a “Petition for Declaratory Judgment” (“Petition”) on June 24, 2016, alleging that the Hardeman County Correctional Facility (“HCCF”) staff had failed to follow numerous policies established by the Tennessee Department of Correction (“TDOC”).  In conjunction with the Petition, the plaintiff filed a motion seeking a temporary restraining order and a preliminary injunction.  The plaintiff subsequently filed a document entitled, “Complaint.”  On September 12, 2016, the defendants filed a motion to dismiss, asserting, inter alia, that the plaintiff’s action was statutorily barred.  The trial court entered two orders on October 7, 2016, respectively denying the plaintiff’s request for a temporary restraining order and preliminary injunction and granting the defendants’ motion to dismiss.  The plaintiff filed a notice of appeal.  Determining that the trial court did not err in dismissing the plaintiff’s claims, we affirm.

A jury convicted the Petitioner, John Moffitt, of reckless aggravated assault, and the trial court sentenced him to four years of incarceration. The Petitioner appealed, and this court affirmed his conviction and sentence. State v. John Moffitt, No. W2014-02388-CCA-R3-CD, 2016 WL 369379, at *1 (Tenn. Crim. App., at Jackson, Jan. 29, 2016), perm. app. denied (Tenn. June 24, 2016). The Petitioner filed a petition for postconviction relief, alleging that he had received the ineffective assistance of counsel. After a hearing, the post-conviction court denied the petition. On appeal, we affirm the post-conviction court’s judgment.

A Shelby County jury convicted the Defendant, Mario Patterson, of first degree felony murder, and the trial court imposed a mandatory life sentence. On appeal, the Defendant asserts that the State failed to prove that he intended to commit a robbery and, therefore, he was improperly convicted of first degree felony murder. After review, we affirm the trial court’s judgment.

This is a medical malpractice action1 in which the plaintiff filed suit against the hospital and her physicians following the death of her newborn son hours after his delivery. The case proceeded to a jury trial. The jury found in favor of the defendants. Following the denial of post-trial motions, the plaintiff appeals, claiming the trial court erred in excluding testimony and when it gave a jury instruction on the sudden emergency doctrine. We reverse and remand for a new trial.

In this divorce action, Father contends the trial court erred by adding substantive restrictions to the parties’ agreed upon Permanent Parenting Plan that, inter alia, imposed “paramour” and “lifestyle” restrictions on Father that were not imposed on Mother. We have determined that the trial court unilaterally imposed substantive and material restrictions on Father’s activities during his parenting time without affording him an evidentiary hearing. We have also determined that some of the restrictions placed on Father are too vague to be enforceable and that the Statement of the Evidence does not provide a factual basis for the restrictions placed on Father. For these reasons we vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.

The Defendant, Rico Carter Whisnet, was convicted by a Hardeman County Circuit Court jury of delivery of less than 0.5 gram cocaine, a Class C felony, and delivery of 0.5 gram or more of cocaine, a Class B felony. See T.C.A. § 39-17-417 (2014). The trial court sentenced the Defendant as a Range II, multiple offender to concurrent terms of eight and sixteen years in confinement. On appeal, the Defendant contends that the trial court erred in its application of the mitigating and enhancement factors and by imposing more than the minimum sentence. We affirm the judgments of the trial court.

Petitioner, Jerome Johnson, was convicted of reckless endangerment, aggravated assault, and solicitation of the filing of a false police report. His convictions and effective sentence of fifteen years, eleven months, and twenty-nine days were affirmed on direct appeal. See State v. Jerome Johnson, No. W2012-01754-CCA-R3-CD, 2013 WL 5488522, at *1 (Tenn. Crim. App. Sept. 30, 2013), perm. app. denied (Tenn. Feb. 11, 2014). Petitioner subsequently sought post-conviction relief for ineffective assistance of both trial counsel and appellate counsel. The post-conviction court denied relief after a hearing. On appeal, we hold that Petitioner failed to show that counsels’ actions were deficient and that Petitioner was prejudiced thereby. Accordingly, the judgment of the
post-conviction court is affirmed.

The Defendant, Kenneth Darrin Fisher, was convicted by an Anderson County Circuit Court jury of attempted first degree murder, a Class A felony, for which he is serving an eighteen-year sentence as a Range I, standard offender. See T.C.A. §§ 39-12-101 (2014) (criminal attempt), 39-13-202 (2014) (first degree murder). On appeal, he contends that (1) the indictment is deficient, (2) the evidence is insufficient because the State failed to prove the offense occurred before the return of the indictment, (3) the trial court erred in failing to require the State to provide an election of the offense, and (4) the trial court erred in admitting testimony of a law enforcement officer regarding what the officer thought the Defendant would have done if the Defendant had not been stopped by the police. We affirm the judgment of the trial court.

The parents of a minor child filed a petition to change the first and middle names of their child but not the surname. The trial court denied the petition without a hearing on the ground: “The Petition fails to state a valid reason for the name change, especially in light of the fact that Petitioners seek to change someone else’s name.” The parents filed a motion to alter or amend the judgment. They supported their motion with letters written by the sixteen-year-old child, the child’s doctor, the child’s therapist, and one of the child’s teachers, each explaining why the name change was in the child’s best interest. Without ruling on the motion, the trial court set the matter for an evidentiary hearing during which the mother, father, and child testified, and the letters from the doctor, therapist, and teacher were admitted into evidence. Thereafter, the trial court denied the motion to alter or amend because “the controlling law has not changed,” no “previously unavailable evidence became available,” and “Petitioners have not shown that there was a clear error of law or that an injustice occurred.” The trial court also ruled on the merits of the petition and denied and dismissed the petition. This appeal followed. We have determined that the trial court erred by denying the motion to alter or amend the initial order because the petition stated a claim for which relief could be granted. As for the court’s ruling on the merits of the petition following the evidentiary hearing, we have determined that the evidence preponderates against the trial court’s finding that Petitioners failed to show that it was in the child’s best interest to change his first and middle names. We have also determined that the court’s legal conclusions were based on an erroneous assessment of the law. Having determined that (1) Petitioners complied with and satisfied all procedural and legal requirements for a name change, (2) the preponderance of the evidence established that changing the child’s first and middle names was in the child’s best interest, and (3) there is no legal basis upon which to deny the petition, we reverse the judgment of the trial court and remand with instructions to enter judgment approving the petition to change the child’s name as requested in the petition.

The personal representative, on behalf of the decedent’s estate, brought this negligence action against the defendant based, inter alia, on the defendant’s alleged acts of displaying and failing to properly store and prevent accessibility to the firearm with which the decedent ultimately committed suicide. The trial court granted summary judgment in favor of the defendant, determining that he owed no duty of care to the decedent and that her suicide was an independent, intervening cause that broke the chain of causation. The estate has appealed. Based upon the applicable balancing test, we conclude that the defendant owed a legal duty of care to the decedent and that summary judgment was improperly granted in the defendant’s favor on the basis of lack of duty. We further determine that the estate’s evidence at the summary judgment stage was sufficient to establish the existence of a genuine issue of material fact for trial regarding causation. We therefore vacate the trial court’s grant of summary judgment and remand for further proceedings consistent with this opinion. We affirm, however, the trial court’s determination that no special relationship existed such as to impose liability for nonfeasance.

Appellant appeals the denial of its Tennessee Rule of Civil Procedure 24 motion to intervene in the underlying lawsuit. Because the order appealed is not final, this Court has no subject-matter jurisdiction to hear the appeal. Tenn. R. App. P. 3(a). Appeal dismissed.