APPELLATE COURT OPINIONS

Appellant, Thomas William Brown, was convicted by a jury of attempted aggravated burglary and sentenced to four years in the Tennessee Department of Correction.  On appeal, he argues that the trial court should have suppressed his statements to the police immediately after his arrest, that the verdict was contrary to the weight of the evidence, that the trial court erred by allowing the State to present evidence that witnesses identified appellant’s shirt in a “show up” procedure, that the trial court erred by allowing the CAD Operational Report into evidence during the State’s rebuttal proof, and that the trial court erred by denying a special jury instruction request.  Following our careful review of the evidence, we have concluded that the evidence was insufficient to support appellant’s conviction for attempted aggravated burglary and therefore reverse the judgment of the trial court.  Appellant’s charge is dismissed.

A Davidson County jury convicted the Defendant, Derrick Dewayne Lyons, of attempted voluntary manslaughter, aggravated assault, theft of property valued over $1,000.00, and evading arrest in a motor vehicle.  For these convictions, the trial court sentenced the Defendant to serve an effective sentence of eighteen years in the Tennessee Department of Correction.  On appeal, the Defendant claims that: (1) the trial court erred when it allowed the State to amend the indictment on the morning of trial; (2) the evidence is insufficient to support his convictions; (3) the State committed “prejudicial prosecutorial misconduct” during its closing argument; (4) the trial court improperly failed to instruct the jury on “mistake of fact” and “use of force”; and (5) the trial court erred when it failed to excuse a juror for cause.  After a review of the record and the foregoing authorities, we affirm the trial court’s judgments and the Defendant’s convictions.

This  is  a  termination  of parental  rights  case.  The  trial  court  terminated Appellant/Father’s parental  rights  on the grounds of:  (1)  abandonment; (2)  substantial  non-compliance  with  the  permanency plan;  and  (3)  persistence  of conditions. Because the grounds for termination of Father’s parental rights are  met by clear and  convincing  evidence,  and there  is  also  clear  and  convincing evidence that termination of Father’s parental rights is in the best interest of the child, we affirm and remand.

The petitioner, Justin Rashad Forrest, appeals the denial of his petition for writ of habeas corpus. On appeal, the petitioner contends that he is entitled to habeas corpus relief because his state sentence is void because the trial courtlacked jurisdiction to impose concurrentstate and federal sentences. He also contends that the State breached the plea agreement that called for concurrent federal and state sentences and that he received ineffective assistance of counsel that prevented him from entering a knowing and voluntary guilty plea. After thoroughly reviewing the record, the briefs of the parties, and the applicable law, we affirm the judgment of the habeas corpus court.

This appeal involves a limitation of liability in an insurance policy. Appellant Allstate Insurance Company seeks reduction of its uninsured motorist liability by amounts paid by Appellee insured’s automobile insurance carrier. In light of the legislative intent that offsets should be limited to monies received from legally responsible parties or entities, and the limiting language used in the Allstate policy, we conclude that the trial court correctly denied the offset in this case. Affirmed and remanded.

The Defendant, Dewayne Lee Williams, appeals the Hamilton County Criminal Court’s order revoking his probation for his convictions for aggravated burglary and vandalism and ordering his effective three-year sentence into execution. The Defendant contends that the trial court abused its discretion because insufficient evidence exists to support the revocation. We affirm the judgment of the trial court.

The Notice of Appeal was not timely filed, and we therefore have no jurisdiction to consider this appeal. Consequently, this appeal is dismissed.

During a prior lawsuit, a construction company – in exchange for a covenant not to execute against the company’s assets – assigned to the entity that obtained a judgment against it the company’s insurance coverage claims. The plaintiffs in the previous action thereafter assigned those rights to the current plaintiffs to allow them to step into the shoes of the construction company and bring suit against the insurance broker. The trial court entered judgment on the pleadings in favor of the insurance broker on the ground that the current plaintiffs would not be entitled to recover any compensatory damages at trial. The plaintiffs appeal. We reverse.

I respectfully disagree in the reasoning and result reached in the majority opinion.  The majority opinion concludes that our supreme court’s holding in Brotherton is dispositive and requires that this court affirm the defendant’s conviction.  However, in my view, Brotherton is clearly distinguishable from the instant case.

In this post-divorce action, Father filed a petition to modify the permanent parenting plan to make him the primary residential parent. The trial court found a material change of circumstance but concluded that it was not in the child’s best interest to change the primary residential parent. We find no error in the trial court’s decision and affirm.

In this post-divorce action, Father filed a petition to modify the permanent parenting plan to make him the primary residential parent. The trial court found a material change of circumstance but concluded that it was not in the child’s best interest to change the primary residential parent. We find no error in the trial court’s decision and affirm.

This is a garnishment case. Appellee bank served a writ of garnishment on the Appellant realty company for the wages of Appellee’s debtor, Walter Burke. Appellant answered the garnishment stating that Mr. Burke was an independent contractor, and that Appellant owed him no funds at the time of the garnishment. During the six-month period after the garnishment was served, Appellant paid Mr. Burke commissions totaling $10,671.23, but paid no monies pursuant to the garnishment filed by Appellee. Appellee later filed a motion for judgment against Appellant for its failure to honor the garnishment for the statutory six-month period. Appellant responded to the motion, arguing that it was not subject to continuous garnishment because Tennessee Code Annotated Section 26-2-214 only applies to employers. The trial court held that the Appellant was subject to the six-month, continuous garnishment period and awarded Appellee bank judgment in the amount of $2,667.81, representing twenty-five percent of commissions paid to Mr. Burke. Appellant appeals. We reverse and remand.

Defendant, Linzey Danielle Smith, entered a plea of guilty to the offense of driving while her blood or breath alcohol concentration was 0.08% or more (DUI) in violation of T.C.A. § 55-10-401(2), but explicitly reserved the right to appeal a certified question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(A).  The certified question of law limits this court to the following narrow issue: whether probable cause that Defendant had committed the Class C misdemeanor offense described in T.C.A. § 55-8-123(1) (a driver must maintain a vehicle entirely within a single lane “as nearly as practicable”) authorized a stop of Defendant’s vehicle by a state trooper or, alternatively, whether the trooper had reasonable suspicion, based on specific and articulable facts, that Defendant had committed or was about to commit the Class C misdemeanor offense set forth in T.C.A. § 55-8-123(1).  Based upon the General Assembly’s classification as a criminal offense the failure of a driver to maintain her vehicle totally within a single lane of traffic “as nearly as practicable” and guidance from our supreme court’s decision in State v. Brotherton, 323 S.W.3d 866 (Tenn. 2010), we affirm the judgment of the trial court.

The plaintiff, American Heritage Apartments, Inc. (“American Heritage”), commenced this lawsuit to protest a monthly flat charge in the amount of $8.00 per unit imposed by the defendant, The Hamilton County Water and Wastewater Authority (“the County WWTA”), on all of its sewer customers. The charge was instituted to fund a program designed to repair and refurbish private service laterals, defined as pieces of pipe that connect private property to the sewer lines. American Heritage sought declaratory judgment that the County WWTA, inter alia, had exceeded its authority by imposing an unjust and discriminatory charge. The County WWTA filed a motion to dismiss the complaint, which the trial court initially denied. Upon the County WWTA’s amended motion to dismiss and motion for summary judgment, American Heritage’s motion for partial summary judgment, and supplemental briefs submitted by both parties, the trial court granted summary judgment in favor of the County WWTA. The court found that because the Utility District Law of 1937, Tennessee Code Annotated §§ 7-82-101 to -804, provided an administrative procedure for contesting utility charges, no private right of action was available. The court further ruled that in the alternative, if a private right of action were allowed by this Court on appeal, American Heritage’s complaint could be certified as a class action lawsuit. American Heritage has appealed. Having determined that the trial court erred by applying the Utility District Law of 1937 to a non-utility district water and wastewater treatment authority, we reverse the grant of summary judgment. We affirm the trial court’s ruling regarding the class action certification.

Petitioner, Willie Price, appeals from the post-conviction court’s denial of his petition for post-conviction relief. Petitioner was convicted of aggravated rape, two counts of aggravated burglary, and robbery. He received an effective sentence of 60 years in confinement. Petitioner challenged his convictions and sentences on appeal, and a panel of this court affirmed the judgments of the trial court. State v. Willie Price, No. W2009-00083-CCA-R3-CD, 2010 WL 376625 (Tenn. Crim. App., Feb. 3, 2010), perm. app. denied (Tenn., June 17, 2010). On appeal, Petitioner contends that his trial counsel was ineffective for failing to properly investigate Petitioner’s case, failing to call witnesses at trial, and by not seeking to suppress DNA evidence. He also asserts that his appellate counsel rendered ineffective assistance of counsel, but Petitioner submitted no argument as to this issue in his brief. After a careful review of the record, we affirm the judgment of the post-conviction court.

The quasi-parties in this matter had their bids accepted at a judicial sale, but they failed to carry out their purchases and close on the properties. After a re-sale was conducted, the trial court charged the quasi-parties with the difference between the amount of the original bids and the amount received for the properties at the re-sale. They were also assessed the expenses resulting from the re-sale. The quasi-parties appeal. We affirm.

In a suit arising out of a construction project at a wastewater treatment facility, the City of South Pittsburg brought an action against an engineering firm and a construction firm for breach of contract, negligence and professional negligence. The insurance company which issued a performance bond covering the project was added as a partyand moved for summary judgment on the ground that the City had not instituted a proceeding to recover under the bond within the two year period specified in the bond for doing so. The insurance company appeals the denial of its motion. Finding no error, we affirm the judgment of the trial court.

Petitioner, Christopher Jones, was convicted of one count of first degree premeditated murder and sentenced to life imprisonment. State v. Christopher Alexander Jones, No. W2011-01990-CCA-R3-CD, 2012 WL 4049175 (Tenn. Crim. App., Sept. 14, 2012), perm. app. denied (Tenn., Feb. 19, 2013). A panel of this court affirmed Petitioner’s conviction on appeal. Id. Petitioner filed a petition seeking post-conviction relief, alleging that he was denied the effective assistance of counsel at trial. Following an evidentiary hearing, the postconviction court denied relief. Having carefully reviewed the record before us, we affirm the judgment of the trial court.

This case involves the propriety of an award of punitive damages in the amount of $600,000. The plaintiffs sued the defendant timeshare developer, seeking to rescind a contract for purchase of a timeshare interest. The plaintiffs alleged, inter alia, that the defendant was guilty of fraud and misrepresentation, as well as violations of the Tennessee Time-share Act and the Tennessee Consumer Protection Act. Following the hearing, the trial court ruled in favor of the plaintiffs and allowed them to rescind the contract, ordering repayment of their purchase money. The trial court found that the defendant had violated the respective statutory provisions and was guilty of fraud and misrepresentation. The trial court thus determined that an award of punitive damages was proper, and following a second hearing regarding the amount of the punitive damage award, set such award at $600,000. The defendant has appealed this award. While we affirm the determination of the trial court that $600,000 represents a reasonable award of punitive damages considering all applicable factors, we must order remittitur of that award to $500,000 in accordance with the statutory cap found in Tennessee Code Annotated § 29-39-104(a)(5).

This case began as an action for legal separation between a husband and wife. The two quickly entered into an agreed temporary parenting plan providing for the custody of their children. However, the children’s maternal grandmother intervened, seeking registration and enforcement under the Tennessee Uniform Child Custody Jurisdiction and Enforcement Act of a Kentucky grandparent visitation order. The circuit court granted registration and enforcement of the order. The parents appealed. Because we conclude that the grandmother was required to seek visitation under the Tennessee Grandparent Visitation Statute, we reverse the trial court’s decision.

Petitioner, Vernon Motley, appeals from the trial court’s summary dismissal of Petitioner’s petition for writ of habeas corpus relief. Petitioner was convicted by a Shelby County jury for first degree premeditated murder and received a sentence of life imprisonment. His conviction was affirmed on appeal. See State v. Vernon Motley, No. W2010-01989-CCA-R3-CD, 2012 WL 1080479 (Tenn. Crim. App. Mar. 29, 2012). Petitioner asserts he is entitled to habeas corpus relief because the trial court, in effect, imposed a sentence of life without possibility of parole without jurisdiction to do so. Our review of the record shows that Petitioner was properly sentenced to the only sentence he could receive, and we therefore affirm the judgment of the trial court.

The Defendant, Tyrone R. Teasley, pleaded guilty before the Circuit Court for Williamson  County in case number II-CR087471 to first offense driving under the influence (DUI), a Class A misdemeanor, driving on a revoked, suspended, or cancelled license, a Class A misdemeanor, and reckless driving, a Class B misdemeanor.  See T.C.A. §§ 55-10-401 (Supp. 2014), 55-50-504 (2012), 55-10-205 (Supp. 2014).  The Defendant also pleaded guilty in case number II-CR017000 to first offense per se DUI, a Class A misdemeanor, resisting arrest, a Class B misdemeanor, and failure to report an accident, a Class C misdemeanor.   See id. §§ 55-10-401 (Supp. 2014), 39-16-602 (2014), 55-10-106 (2012).  The trial court sentenced the Defendant to two consecutive terms of eleven months, twenty-nine days for the DUI convictions to be served on probation after 180 days’ concurrent confinement.  The Defendant also received concurrent sentences of six months for the resisting arrest and the reckless driving convictions to be served on probation after thirty days’ concurrent confinement, of eleven months, twenty-nine days for the driving on a revoked license conviction to be served on probation after 180 days’ concurrent confinement, and of thirty days’ concurrent confinement for failure to report an accident, for an effective sentence of twenty-three months and twenty-eight days with all but 180 days to be served on probation.  The trial court also ordered as a condition of probation that the Defendant “lose” his license for five years.  On appeal, the Defendant contends that the trial court erred by ordering a five-year license suspension.  We reverse the judgments of the trial court and remand for entry of modified judgments reflecting the loss of the Defendant’s driving privilege for two years in compliance with Tennessee Code Annotated section 55-10-404(a)(1)(A) (Supp. 2014).

In this post-divorce proceeding, Wife filed a petition for civil contempt to compel Husband to comply with the parties’ marital dissolution agreement (“MDA”) by either refinancing, paying in full, or selling real property mortgaged in her name in order to remove her from any liability on the indebtedness. Husband responded by filing a series of petitions for contempt, contending, inter alia, breach of the duty of good faith and fair dealing, unclean hands, breach of contract, and abuse of process for Wife’s alleged failure under the MDA to execute certain documents which would have facilitated Husband’s “assumption” of the existing mortgage. On the eve of the evidentiary hearing on Wife’s petition for contempt, Husband paid off the indebtedness. At the hearing that followed, the trial court ruled that the issue of Husband’s civilcontempt was moot due to the fact that he belatedlycomplied with the MDA; nevertheless, the court also ruled that Wife was entitled to recover her reasonable attorney’s fees, pursuant to the enforcement provision of the MDA, because she was the prevailing party. The enforcement provision of the MDA states: “In the event it becomes reasonably necessary for either party to institute legal proceedings to procure the enforcement of any provision of this Agreement, the prevailing party shall also be entitled to a judgment for reasonable expenses, including attorney’s fees, incurred in prosecuting the action.” Husband appeals contending Wife was not the prevailing party because there was never a ruling on the merits of her claim, and, therefore, she is not entitled to recover any of her attorney’s fees; he also challenges numerous other rulings by the trial court. For her part, Wife seeks all of her attorney’s fees incurred in the trial court, as well as attorney’s fees related to this appeal. We affirm the trial court’s determination that Wife was the prevailing party because, as the trial court correctlyfound,it was reasonablynecessaryfor Wife to institute legal proceedings to enforce Husband’s compliance with the MDA, and even though there was no hearing or ruling on the merits of her enforcement claim, “but for” Wife’s petition, Husband would not have fulfilled his obligation under the MDA to remove Wife from all liability on the mortgage debt. See Fannon v. City of LaFollette, 329 S.W.3d 418 (Tenn. 2010). We also affirm the trial court’s discretionary decision to award Wife a portion of her attorney’s fees. As for Husband’s remaining issues, we find that these are moot or they have been waived. Finally, we have determined that Wife is entitled to her attorney’s fees on appeal because she is the prevailing party on appeal.

Defendant, Benjamin Gunn, was indicted by the Shelby County Grand Jury in Count 1 with possession of more than .5 grams of cocaine with intent to sell, in Count 2 with possession of more than .5 grams of cocaine with intent to deliver, and in Count 3 with felony possession of marijuana. Defendant was convicted as charged by a jury. The trial court merged Count 2 with Count 1 and sentenced Defendant to 12 years’ incarceration. The trial court imposed a sentence of two years’ incarceration for Count 3, to be served consecutively with Defendant’s sentence for his conviction in Count 1. In this appeal as of right, Defendant challenges the trial court’s failure to exclude evidence that prior search warrants were executed on the defendant’s residence. We conclude that the trial court erred by allowing evidence of the prior searches of Defendant’s residence. Accordingly, we reverse the judgments of the trial court and remand this case for a new trial.

The defendant, Leon Booker, pled guilty to theft over $500, a Class E felony, and theft under $500, a Class A misdemeanor, and was sentenced as a Range III offender to six years for the felony conviction and to eleven months and twenty-nine days for the misdemeanor conviction, to be served consecutively.  On appeal, he argues that the trial court erred in sentencing him as a Range III offender.  After review, we affirm the sentencing decision of the trial court.