APPELLATE COURT OPINIONS

Mother, whose daughter was placed in custody of the Department of Children’s Services at birth, appeals the termination of her parental rights on grounds of substantial non-compliance with the permanency plans and persistence of conditions. Finding no error, we affirm the termination of Mother’s rights.
   

The Defendant, Loreto Espinosa, Jr., was convicted by a Bedford County Circuit Court jury of eighteen counts of aggravated rape of a child, Class A felonies. See T.C.A. § 39-13-531 (2014). The trial court sentenced the Defendant as a Range III, persistent offender to sixty years for each conviction at 100% service and ordered partial consecutive sentences. The court ordered Counts 1 and 18 to run consecutively to each other and Counts 2 through 17 to run concurrently to each other but consecutively to Counts 1 and 18, for an effective 180-year sentence. On appeal, he contends that (1) the evidence is insufficient to support his convictions, (2) the State failed to make a proper election of the offenses for Counts 2 through 17, and (3) his sentence is excessive. We conclude that insufficient evidence exists relative to Counts 1 through 17, and we reverse the judgments of the trial court, vacate the convictions, and dismiss the charges relative to those counts. Although the trial court failed to require the State to make an election of the offense relative to Count 18, we conclude that the error was harmless beyond a reasonable doubt and affirm the judgment of the trial court.

Father appeals the parenting schedule contending it is not supported by the evidence and that the trial court erred by implicitly basing the parenting schedule on an erroneous legal standard, the tender years doctrine. Decisions concerning parenting plans are reviewed based on the deferential abuse of discretion standard. Nevertheless, discretionary decisions must be based on the applicable law and the relevant facts; accordingly, they are not immune from meaningful appellate review. In all actions tried upon the facts without a jury, the trial court is required, pursuant to Tenn. R. Civ. P. 52.01, to find the facts specially, state separately its conclusions of law, and enter judgment accordingly. The underlying rationale for this mandate is that it facilitates appellate review by affording a clear understanding of the basis of the trial court’s decision; in the absence of findings of fact and conclusions of law, this court is left to wonder on what basis the court reached its ultimate decision. When a trial court fails to comply with Rule 52.01, the appellate court cannot determine whether the trial court applied the correct legal standard or what reasoning it employed. In such circumstances, the appellate court is not required to review the discretionary decision with deference. In this case, the trial court established a parenting schedule without identifying the legal principles it applied or the factual basis for its decision; therefore, it failed to satisfy the Rule 52.01 mandate. Having no way of knowing the reasoning for the trial court’s decision, we conducted a de novo review of the record to determine where the preponderance of the evidence lies and found no factual or legal basis for the disparity in parenting time afforded the parents. Accordingly, we reverse the parenting schedule and remand with instructions for the trial court to establish a parenting schedule consistent with the statutory aspiration to maximize each parent’s participation in the life of the child based on all relevant facts and circumstances. Further, the court is to identify the factual and legal basis upon which the new parenting schedule is based as Tenn. R. Civ. P. 52.01 requires. 

The petitioner, Ginger Ilene Hudson Stump, pled guilty to seven counts of forgery, of which six were Class E felonies and one was a Class D felony.  The trial court sentenced her as a career offender to twenty-four years in the Department of Correction.  On direct appeal, this court affirmed the petitioner’s convictions and sentence.  State v. Ginger Ilene Hudson Stump, No. M2012-02723-CCA-R3-CD, 2013 WL 5310526, at *1 (Tenn. Crim. App. Sept. 20, 2013).  Subsequently, she filed a pro se petition for post-conviction relief, alleging she received the ineffective assistance of counsel.  Counsel was appointed and, following an evidentiary hearing, the post-conviction court denied the petition.  Based upon our review, we affirm the judgment of the post-conviction court.

A Shelby County Criminal Court Jury convicted the appellant, Gerald McEwen, of first degree premeditated murder and attempted first degree murder. The trial court imposed a total effective sentence of life imprisonment in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence sustaining his convictions and contends that the trial court erred by denying his motion for a mistrial. Upon review, we affirm the judgments of the trial court.

Mother challenges the modification of the parenting plan, specifically the designation of Father as the primary residential parent and the new parenting schedule. Mother contends that the trial court’s best interest determination was flawed because the trial court failed to consider the expert testimony of a psychologist who examined the child in Tennessee. She also contends the court erred by failing to require the guardian ad litem to investigate the records of a psychologist who examined the child in Georgia. Because Mother failed to provide a transcript of the evidence or a statement of the evidence, we must assume there was sufficient evidence to support the trial court’s factual determinations. We find no error with the investigation by the guardian ad litem because he was not required to investigate the records of every medical professional that examined the child; instead, by rule, the guardian ad litem is to “conduct an investigation to the extent that the guardian ad litem considers necessary to determine the best interests of the child. . . .” Tenn. Sup. Ct. R. 40A, § 8(b)(1). Further, Mother failed to proffer a summary of the Georgia psychologist’s records or testimony; therefore, there is no factual basis for us to conclude that testimony of the Georgia psychologist would have affected the court’s decision. As for the Tennessee psychologist, the record reveals that the trial court did consider the expert’s testimony. As a result, we affirm the judgment of the trial court. We also declare this a frivolous appeal pursuant to Tenn. Code Ann. § 27-1-122. 

This appeal arises from a suit by a borrower against a bank and its servicing agent. In its amended complaint, the borrower sought to enjoin a foreclosure sale and set aside the assignment of the deed of trust. Additionally, the borrower sought damages for several statutory violations, including alleged violations of the Tennessee Consumer Protection Act (“TCPA”). Though the trial court granted summary judgment in favor of the defendants on most of the claims, there is no final judgment with regard to the borrower’s TCPA claim. Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction and remand the case to the trial court for further proceedings.

A Shelby County Criminal Court Jury convicted the appellant, Anthony Draine a.k.a. Anthony Draine-Love, of aggravated burglary. He was sentenced as a Range II, multiple offender to nine years in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court’s denial of his motion to suppress and contends that the evidence was insufficient to sustain his conviction. Upon review, we affirm the judgment of the trial court.

At issue in this appeal is a custody dispute between Albert Franklin Summers (“Father”) and Nakisha Layne (“Mother”). In addition to finding that Mother failed to comply with the parental relocation statute codified at Tennessee Code Annotated § 36-6-108, the trial court determined that it would be in the minor child’s best interests to designate Father as the primary residential parent. Although we conclude that the trial court erred in finding the parental relocation statute to be applicable to this case, we nonetheless determine that it conducted the proper analysis with respect to its custody decision. We affirm the trial court’s designation of Father as the primary residential parent.

A Davidson County jury convicted appellant, Casey Dewayne Moon, of aggravated burglary, a Class C felony, and theft of property valued under $500, a Class A misdemeanor.  The trial court sentenced him to four years for the aggravated burglary conviction and a concurrent sentence of eleven months, twenty-nine days for the misdemeanor theft conviction.  The trial court ordered him to serve the first six months in confinement with the remainder to be supervised in community corrections.  On appeal, appellant argues that the trial court erred by allowing the State to introduce evidence of a prior theft conviction; that the evidence was insufficient to support his convictions; and that the trial court erred in its sentencing.  Following our review, we affirm the judgments of the trial court.

A Grundy County Grand Jury indicted Kurt Brewer, the Defendant, for one count of first degree premeditated murder, two counts of reckless endangerment with a deadly weapon, and one count of employing a firearm during the commission of a dangerous felony. A jury found the Defendant guilty of the lesser-included offense of reckless homicide and not guilty on both counts of reckless endangerment with a deadly weapon. The charge of employing a firearm during the commission of a dangerous felony was not submitted to the jury. The jury set the maximum fine for a class D felony, $5,000. The trial court imposed a four-year sentence to be served. The Defendant claims the trial court erred in not granting an alternative sentence and in denying judicial diversion. After a thorough review of the record, we affirm.

This is a divorce action. The trial court designated Father primary residential parent of the parties’ minor children and denied Mother’s request for alimony. We affirm designation of Father as primary residential parent, reverse the trial court’s denial of Mother’s request for alimony, and remand this matter to the trial court to fashion an award of transitional alimony consistent with this Opinion.

In this divorce action, the husband seeks reversal of the allocation of marital debt, the parenting plan, and the grant of alimony in futuro. The wife requests alimony in solido. We affirm the trial court's decision on all issues.

BRANDON O. GIBSON, J., concurring in part, and dissenting in part.

Following a jury trial, Petitioner, Matrin Becton, was convicted of first degree premeditated murder and sentenced to life imprisonment without possibility of parole. He was also convicted in the same trial for especially aggravated robbery and two counts of especially aggravated kidnapping. The trial court sentenced Petitioner to serve twenty-five years’ incarceration for each conviction of especially aggravated kidnapping and especially aggravated robbery and ordered consecutive sentencing which resulted in an effective sentence of life imprisonment without possibility of parole plus seventy-five years’. Petitioner’s convictions were affirmed on appeal. State v. Matrin Becton and Antonio Sykes, No. W1999-00581-CCA-R3-CD, 2002 WL 1349530 (Tenn. Crim. App. June 19, 2001). Petitioner filed a timely petition for post-conviction relief, which was amended and supplemented. After several years of delays, an evidentiary hearing was finally held in 2013. The post-conviction trial court denied relief and Petitioner has timely appealed that ruling. Following a thorough review we affirm the judgment of the post-conviction court.

A Shelby County jury convicted the Petitioner, Cole Woodard, of sale of cocaine, possession of cocaine with intent to sell, and possession of cocaine with intent to deliver. The trial court sentenced the Petitioner to serve three concurrent sentences of ten years each for these convictions. On appeal, this Court affirmed the convictions, but it vacated the judgments and remanded the case for entry of judgments reflecting merger of the jury verdicts into a single conviction for sale of cocaine. State v. Cole Woodard, W2011-02224-CCA-R3-CD, 2012 WL 4057266 (Tenn. Crim. App., at Jackson, Sept. 17, 2012), no Tenn. R. App. P. 11 application filed. The Petitioner filed a petition seeking post-conviction relief on January 28, 2014, alleging that he had received the ineffective assistance of counsel. After a hearing regarding whether the Petitioner petition was untimely filed, the post-conviction court dismissed the petition as time-barred. We affirm the post-conviction court’s judgment.

The Defendant, Michael Lambdin, appeals as of right his conviction for first degree murder committed during the perpetration of an attempted robbery. In this appeal, the sole issue presented for our review is whether the evidence is sufficient to support his conviction for felony murder. Specifically, the Defendant contends that the State failed to prove felony murder because the evidence was insufficient to support the elements of the underlying felony and because he abandoned his intent to commit the underlying felony prior to the shooting and killing of the victim by his co-defendant. After reviewing the record and the applicable authorities, we affirm the judgment of the trial court.

In this parental termination case, the Department of Children’s Services (DCS) took emergency custody of J.R.C. (the Child) following the arrest of his mother, B.C. (Mother) on charges of (1) promoting the manufacture of methamphetamine and (2) child neglect. The Child was adjudicated dependent, neglected, and severely abused. After a trial, the court terminated Mother’s parental rights after finding, by clear and convincing evidence, that (1) grounds for termination were established, and (2) termination is in the best interest of the Child. Mother appeals and challenges each of these determinations. We affirm.

James Michael Adler and Kim Kidner Adler filed this action against Johnson City and Purofirst of Tri-Cities, LLC, alleging damage from sewage that backed up and entered their basement. Later, they filed another complaint alleging that their attorneys in the sewage case were guilty of malpractice. In the sewage case, the trial court dismissed the defendant Purofirst with prejudice as a sanction for the Adlers' repeated failure to comply with the court's discovery orders. The Adlers did not attempt to amend their malpractice complaint to include a claim based on Purofirst's dismissal until almost six years after the dismissal of Purofirst. Their motion to amend was filed on July 2, 2012, in violation of the trial court's scheduling order, which provided that “[n]o amendments shall be allowed after May 15, 2012.” The trial court denied the Adlers' motion to amend. The trial court also refused to allow the Adlers to bring Purofirst back into the sewage litigation. It did so despite the fact that another defendant had recently alleged the comparative fault of Purofirst. This latter action of the trial court was taken in an order entered pursuant to Tenn. R. Civ. P. 54.02. We hold that the Adlers did not timely appeal this order. We further hold that the trial court did not abuse its discretion in denying the Adlers' motion to amend their malpractice action. The trial court's judgment is affirmed.

A hospital instituted a review of an orthopaedic surgeon’s removal of spinal hardware from patients within one year of implantation; the review resulted in a peer review proceeding under the hospital’s bylaws and the eventual revocation of the doctor’s surgical privileges. The doctor filed suit for breach of contract, defamation, common law and statutory disparagement, and intentional interference with business relationships, arising out of the revocation of his surgical privileges. Upon the hospital’s motion to dismiss all claims for failure to state a claim for relief, the court dismissed the breach of contract claims. The hospital subsequently moved to dismiss the remaining claims for lack of subject matter jurisdiction or, in the alternative for summary judgment; the court granted the motion to dismiss and denied summary judgment. Doctor appeals the dismissal of his claims; hospital appeals the denial of its motion for summary judgment. We affirm the dismissal of the breach of contract claims and reverse the dismissal of the tort claims for lack of subject matter jurisdiction; we hold that the hospital is entitled to summary judgment on the remaining claims and dismiss the case.

Dorothy Lewis and Roscoe Lewis, although not legally married, held themselves out as husband and wife for over 41 years. At an earlier time, Roscoe Lewis had been married. He had three sons by that marriage, one of whom is the defendant Sam Lewis. In 2010, after Roscoe Lewis' health declined, Sam Lewis took care of his father and Dorothy. On April 7, 2011, Sam Lewis took his father to several banks. While there, Roscoe Lewis authorized the banks to add the names of Sam Lewis and Dorothy to multiple accounts that had previously been only in Roscoe Lewis' name.1 On April 26, 2011, Dorothy and Roscoe Lewis each executed an individual power of attorney granting Sam Lewis authority and control over their financial and medical decisions. On that same day, Dorothy and Roscoe Lewis executed a warranty deed conveying a remainder interest in their home and farm to Sam Lewis and his wife Lora Lewis for $40,000, less than one-third of the fair market value as found by the trial court. On March 9, 2012, two days before Roscoe Lewis died, Sam Lewis withdrew funds totaling over $600,000 from the accounts held jointly in the names of Sam, Roscoe, and Dorothy Lewis. He placed the withdrawn funds in accounts held in the names of Sam Lewis and his wife, Lora Lewis. Dorothy Lewis brought this action alleging, among other things, that the real estate and bank account transfers should be rescinded because of Sam Lewis' undue influence on his father and Dorothy. The trial court found and held (1) that Sam Lewis exercised undue influence over them and (2) that he committed conversion and fraud. The court's judgment against Sam Lewis included an award of attorney's fees to Dorothy Lewis. The same fees were also awarded against a constructive trust established by the trial court. On appeal, we hold that the trial court's award of attorney's fees against the constructive trust is not supported by the evidence or by any legal or equitable principle.

The defendant, William Davidson Hamby, Jr., was convicted after a bench trial of aggravated kidnapping, a Class B felony, and he was sentenced to serve fourteen years in prison. On appeal, the defendant challenges the sufficiency of the convicting evidence. He also asserts that the trial court erred in not ordering a second evaluation of his competency after he initially refused to attend his own trial. After a thorough review of the record, we conclude that the evidence is sufficient to support the verdict and that the trial court’s failure to order a second evaluation was not error, and we accordingly affirm the judgment.

This appeal arises from inmate Victor D. McMiller, Sr.'s (“Claimant”) lawsuit against the State of Tennessee (“the State”) for negligence. According to Claimant, he was injured when he fell off a bunk bed, and, given his medical status, the State never should have required him to use a top bunk as it did. The Tennessee Claims Commission found that the State was predominantly at fault in the incident but that Claimant failed to prove he actually was injured by the fall, thus defeating the negligence claim. Claimant appeals. We affirm the judgment of the Claims Commission.