APPELLATE COURT OPINIONS

Buyers of unimproved real property seek rescission of a Lot/Land Purchase and Sale Agreement on the ground of mutual mistake. Buyers purchased the property for the purpose of constructing a house. It is undisputed that at the time of contracting, Buyers and Sellers believed the property was suitable for that purpose. One week after obtaining the necessary building permits and commencement of construction, Buyers were informed by the county that the property was substantially below the required Base Flood Elevation (“BFE”) and that construction must cease immediately. Buyers halted construction and hired a professional engineer to address the issue. Based on unique drainage and flooding concerns, the engineer concluded that the property was not suitable for construction of a residential building and it had not been suitable for such purpose since the land was subdivided in 1999. After Buyers sued for rescission of the contract, both parties filed motions for summary judgment. The trial court found that when the contract was entered into the property was suitable for construction of a house and it only became unsuitable due to the subsequent action of the county in setting the BFE. Therefore, the court concluded there was no mutual mistake of fact. Based on this finding the court granted Sellers’s motion for summary judgment and summarily dismissed the complaint. Buyers appeal. We conclude that, at the time of contracting, the parties were operating under a mutual mistake as to a contemporaneously verifiable fact; nevertheless, the contract assigned the risk of mistake to Buyers. Therefore, rescission on the ground of mutual mistake is not available. Accordingly, we affirm.

A Davidson County jury found the Defendant, Antonio M. Crockett, guilty of first degree felony murder, for which the Defendant received a life sentence. On appeal from his conviction, the Defendant contends that (1) the trial court erred in denying the Defendant’s motion to sever his case from that of his co-defendant; (2) the evidence was insufficient to support his conviction; (3) the trial court erred in admitting the statement of the victim under the dying declaration hearsay exception; and (4) the trial court erred in ordering the Defendant’s life sentence to be served consecutively to a prior sentence. Upon review, we affirm the judgment of the trial court.

Certiorari proceeding in which an inmate seeks review of a disciplinary proceeding finding him guilty of assault on another inmate. Petitioner asserts that the disciplinary board violated various Tennessee Department of Correction regulations in the conduct of the hearing and that the trial court erred in dismissing the petition. Finding no error, we affirm the decision of the trial court.

The defendant, Shuan Terrell Marsh, appeals his Marshall County Circuit Court jury conviction of third offense possession of a controlled substance, claiming that the evidence was insufficient to support his conviction. Discerning no error, we affirm.

This appeal involves a health care liability action filed by the plaintiff against Blount Memorial Hospital, Inc. (“BMHI”) and the doctor who treated the plaintiff at BMHI from September 8, 2012, to September 13, 2012. The plaintiff filed his complaint on December 13, 2013, alleging that the defendant doctor had misdiagnosed his illness, causing a delay in treatment and resultant permanent injuries. Both defendants filed motions to dismiss, which were converted into motions for summary judgment with the filing of additional affidavits. The trial court granted summary judgment in favor of BMHI based on, inter alia, the applicable statute of limitations and BMHI's immunity as a governmental entity.

Plaintiff filed a health care liability action against multiple healthcare providers but did not comply with the statutes governing healthcare liability actions. Defendants filed motions to dismiss and for summary judgment. The trial court granted the motions. Plaintiff appeals, and finding no error, we affirm.

The petitioner, Courtney Wesley, appeals the denial of his petition for post-conviction relief from his 2013 Shelby County Criminal Court jury convictions of aggravated burglary and theft of property valued at $1,000 or more, alleging that he was denied the effective assistance of counsel. Discerning no error, we affirm.

I concur fully in the majority’s decision in this case. I write separately only to express my opinion that the appropriate summary judgment standard to be applied by Tennessee courts now is as set forth in Rye v. Women’s Care Center of Memphis, MPLLC, ___ S.W.3d ___, 2015 WL 6457768 (Tenn. 2015), rather than Tenn. Code Ann. § 20-16-101. I believe our Supreme Court intended for the retroactive application of Rye when it stated: “In civil cases, judicial decisions overruling prior cases generally are applied retrospectively.” Rye, ___ S.W.3d at ___n.9, 2015 WL 6457768 at *35 n.9. While there may be very little, if any, difference between the summary judgment standard as set forth in Rye and as contained in Tenn. Code Ann. § 20-16-101, I believe Rye sets the standard and is controlling on the courts of this State.

This is the second appeal of this case involving various financial issues relative to a divorce. Husband appeals the trial court‘s determination of several factual findings relative to alimony, including Wife‘s ability to secure employment, Husband‘s ability to earn in the future, the award of attorney‘s fees to wife, and the value of several marital assets divided in the property division, including the value of an LLC jointly owned by the parties. We now vacate the order of the trial court and remand for further proceedings.

The Petitioner, Timothy L. Diggs, Sr., appeals the Montgomery County Circuit Court’s denial of his petition for post-conviction relief from his convictions for aggravated child abuse and felony murder and his effective life sentence. The Petitioner contends that the post-conviction court erred by denying relief on his due process and ineffective assistance of counsel claims. We affirm the judgment of the post-conviction court.

This appeal arises from a dispute over modification of child support. Daniel W. Mitchell (“Petitioner”) filed a petition against his ex-wife Tricia Lurlene Hall (“Respondent”) in the Circuit Court for Sevier County (“the Trial Court”) seeking a modification of his child support obligation given the parties’ second oldest child turning 18. The matter was referred to a Special Master. The Trial Court designated the date of the final hearing, March 31, 2014, as the effective date for the modification of child support rather than the date when the child at issue reached age 18, and ordered Petitioner to pay an arrearage accordingly.

The trial court, upon finding that Christopher Cornell Eskridge (Respondent) repeatedly violated orders of protection issued to protect Stephanie Nicole Lee (Petitioner), sentenced him to ten days in jail and required him to post a $2,500 bond in accordance with Tenn. Code Ann. § 36-3-610(b)(2) (2014). On appeal, Respondent challenges the constitutionality of this statute. None of the issues raised on appeal, including the constitutional issue presented by Respondent, were raised with the trial court. Furthermore, Respondent did not timely notify the Attorney General of his constitutional challenge, as required by Tenn. Code Ann. § 29-14-107(b) (2000) and Tenn. R. Civ. P. 24.04. We hold that Respondent waived these issues. Accordingly, we affirm the judgment of the trial court.

The petitioner, Jay Earl Haynes, appeals the denial of his petition for post-conviction relief from his two rape convictions, arguing he received ineffective assistance of counsel. After review, we affirm the denial of the petition.

The petitioner, Marlon Yarbro, was convicted of selling .5 grams or more of a Schedule II controlled substance within 1000 feet of a school zone, a Class A felony; simple possession of a controlled substance, a Class A misdemeanor; and possession of drug paraphernalia, a Class A misdemeanor. He was sentenced to twenty-five years at 100% for the Class A felony; two years for the simple possession conviction, and eleven months and twenty-nine days for the drug paraphernalia conviction, with all sentences to be served concurrently. On direct appeal, this court affirmed the convictions and remanded for correction of the judgment for simple possession to reflect the conviction as a Class A misdemeanor and a sentence of eleven months, twenty-nine days. Following his convictions, but while his direct appeal was pending, he filed a pro se petition for writ of habeas corpus, arguing, as best we can understand, that he was being illegally detained because his Class A felony conviction should be served at 35%, rather than 100%; the indictment was defective in stating the offenses with which he was charged; the indictment was defective because it failed “to state the facts of the crime scene;” the judgment violates the plain language requirement of Tennessee Supreme Court Rule 17; and the judgment is “absent of Counsel,” resulting in the trial court’s losing jurisdiction and voiding the judgment. The trial court dismissed the motion, determining that the petitioner could not simultaneously maintain a direct appeal and a petition for writ of habeas corpus. We agree and affirm the dismissal of the petition, according to Rule 20, Rules of the Court of Criminal Appeals.

Due to the inadequacies of appellant’s brief and appellant’s failure to provide a transcript or statement of the evidence, we conclude that he has waived consideration of this appeal, and we affirm the judgment of the chancery court.

In 1991, the Defendant, Anthony Hill, pleaded guilty to two counts of unlawful possession of more than 26 grams of cocaine with intent to sell, in case numbers 90-09874 and 90-15702, with agreed concurrent sentences of 7.2 years’ incarceration for each of the two convictions. In 2014, the Defendant filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 seeking to correct an illegal sentence, and the trial court held a hearing on the motion. At the conclusion of the hearing, the trial court held the Defendant’s sentences should have been ordered to run consecutively and thus were illegal. The trial court denied the Defendant’s 36.1 motion, holding that his sentences had expired which rendered the issue moot. On appeal, the Defendant contends that the trial court erred because he should have been allowed to withdraw his guilty plea because his illegal sentence was a material component of his plea agreement. After a thorough review of the record and applicable authorities, and in accordance with the Tennessee Supreme Court’s recent holding in State v. Adrian R. Brown, __ S.W.3d __, No. E2014-00673-SC-R11-CD, 2015 WL 7748275, at *7 (Tenn. Dec. 2, 2015), we affirm the trial court’s judgment.

Plaintiffs and Defendant were involved in a motor vehicle accident. Plaintiffs allege Defendant was negligent in causing her van to run into the rear of their car and that as a result of Defendant’s negligence, Plaintiffs suffered damages. During trial, Defendant introduced photographs of the vehicles taken immediately after the collision, which the trial court permitted, over Plaintiffs’ objection, for the purpose of impeaching Plaintiffs’ testimony. The evidence was heard by a jury, which determined Defendant was not at fault. Plaintiffs filed a motion for a new trial, which the trial court denied. On appeal, Plaintiffs argue the trial court erred by allowing the jury to consider Defendant’s photographic evidence for purposes of impeachment. We conclude the trial court did not err and affirm its judgment.

The surviving husband of the decedent challenges the validity of their 1992 antenuptial agreement and a 2010 quitclaim deed from the decedent to her son. The decedent, Glenda Joyce Panter Hillis, presented her husband with an antenupital agreement on the day before their wedding. The agreement stated that each party waived “all claims of inheritance, descent and distribution in and to the parties [sic] private and real property . . . which in any way or manner arise or accrue by virtue of said marriage . . . .” However, it did not include any financial or asset disclosures. The husband signed the agreement, and the parties married on December 30, 1992. In March of 2010, Mrs. Hillis executed a will that left her husband a car and a life estate in her real property, including some of the personal property in the marital residence, with the residue of her estate going to her son. Three months later, she executed a quitclaim deed pursuant to which she transferred a life estate in all of her real property to herself and her husband, with the remainder to her son. Mrs. Hillis died in 2012, following which her will was admitted to probate. Soon thereafter, her husband filed a petition for an elective share and a separate civil action in which he sought to invalidate the 2010 quitclaim deed as a fraudulent conveyance. The executor and Mrs. Hillis’s son opposed both petitions. The son demanded a jury trial regarding the validity of the antenuptial agreement, but the trial court concluded there was no way to separate the legal and factual issues without confusing a jury and consolidated both cases for trial. Following a bench trial, the court concluded that the antenuptial agreement was invalid because it did not include the required disclosures about Mrs. Hillis’s assets and because it contained contradictory provisions. As for the 2010 quitclaim deed, the court ruled that the conveyance was not fraudulent and refused to set the deed aside. All parties appeal. The son contends the court erred in denying him a jury trial. The son also contends the court erred by invalidating the antenuptial agreement. The husband contends the trial court erred by denying his petition to invalidate the 2010 quitclaim deed. We find no reversible error with the decision to deny the son’s request for a jury trial. We affirm the trial court’s decision to invalidate the antenuptial agreement because the agreement did not include the requisite financial and asset disclosures. We affirm the decision concerning the 2010 quitclaim deed because the evidence does not preponderate against the trial court’s finding that the 2010 transfer was not fraudulent. 

In this appeal, a mother challenges the trial court’s award of equal parenting time to the child’s father. The mother contends she should be awarded more parenting time because, among other things, she was the child’s primary caregiver during the parties’ marriage. We have reviewed the record and find that the trial court did not abuse its discretion in naming mother the primary residential parent and awarding equal parenting time to the parties.

This appeal involves termination of a father's rights to three children. The trial court found the father, who was incarcerated at the time of the final hearing, had abandoned the children by engaging in such conduct prior to incarceration as to exhibit a wanton disregard for their welfare, in that there was a history of domestic violence between the father and the children's mother. Further, the father had violated his probation by failing a drug screen. The court also found clear and convincing evidence revealed the father had not substantially complied with the provisions of the permanency plans. As a result, the court found termination was in the best interest of the children. The father appeals. We affirm.

In 2006, Lamar Tennessee, LLC began the conversion of two of its billboards from ―vinyl-faced to ―digital display‖ utilizing light-emitting diode (LED) technology. Before Lamar could complete these conversions, a sign inspector for the City of Knoxville issued a stop-work order on each of the billboards. A zoning inspector for the City, in her own name, subsequently filed a complaint against Lamar, grounded in Tenn. Code Ann. § 13-7-208(a)(2) (Supp. 2005), seeking temporary and permanent injunctive relief prohibiting Lamar from ―repurposing‖ the two vinyl-faced billboards into billboards featuring LED digital displays. In response, Lamar filed a complaint against the City seeking a declaration that the two billboards were not in violation of the zoning regulations and/or that the provisions of the zoning regulations pertaining to billboards with digital displays were unconstitutional. These cases were eventually consolidated. Each party filed a motion for summary judgment. The trial court granted the City‘s motion and permanently enjoined Lamar from converting the billboards at issue from vinyl structures into billboards with LED digital displays. Lamar appeals. We affirm.

This case began as a petition for dependency and neglect filed in juvenile court by the child’s grandmother. The child’s father filed his own petition seeking custody. The juvenile court found the child to be dependent and neglected and awarded custody to the father. Upon appeal to circuit court, mother stipulated the child was dependent and neglected as of the date the petition was filed. The circuit court accepted the stipulation and found the child dependent and neglected on the date of the petition. After a five-day hearing on the proper disposition of the child, the circuit court awarded custody jointly to the child’s mother and grandmother, with certain conditions. The father appeals the circuit court’s decision, arguing the court erred in awarding custody to the mother and the grandmother. Because the circuit court failed to determine whether the child was dependent and neglected as of the date of the de novo hearing, we vacate the circuit court’s order and remand for a new hearing.

This appeal involves a petition to terminate a mother’s parental rights on the grounds of abandonment by willful failure to support and willful failure to visit. We affirm the trial court’s finding that grounds for termination do not exist as to either ground. Accordingly, we affirm the trial court’s decision not to terminate the parental rights of the mother.

Employee suffered a work-related accidental injury to his back on April 27, 2001; he reported the injury, received conservative treatment, and returned to work without restriction in 2001. In 2011, his pain recurred, and he filed a second injury report. Employer denied Employee's claim for workers' compensation benefits. The trial court found Employee's claim timely and his injury compensable. The trial court awarded Employee temporary total disability benefits for the six-week period following his August 17, 2011 lumbar surgery and permanent partial disability benefits of thirty percent to the body as a whole. Employer appeals. Pursuant to Tennessee Supreme Court Rule 51, 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. We affirm.

Petitioner, Charles Everett Lowe-Kelley, appeals the denial of his petition for post-conviction relief, arguing that he received the ineffective assistance of counsel.  He also argues that his consecutive life sentences violate Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012).  We conclude that Petitioner has not proven that he received ineffective assistance of counsel and that his effective sentence does not violate Miller.  Accordingly, the decision of the post-conviction court is affirmed.