APPELLATE COURT OPINIONS

In 1996, the Petitioner, Alicia Shayne Lovera, was found guilty by a jury of first degree premeditated murder of her husband. On the morning of the sentencing hearing in which the State was seeking a sentence of life without the possibility of parole, the Petitioner agreed to plead guilty to first degree premeditated murder in return for a sentence of life with the possibility of parole. In March 1999, the Petitioner filed a petition for post-conviction relief. Following a hearing, the trial court denied relief, and the Petitioner appealed. This Court affirmed the trial court’s denial of post-conviction relief. On December 19, 2013, the Petitioner filed a writ of habeas corpus alleging the judgment of conviction was void on its face because it was entered upon her plea of guilty after she had been found guilty by a jury. The habeas corpus court dismissed the petition without an evidentiary hearing for failure to state a claim. After a thorough review of the record, we affirm.

This case arises out of an investigation by the Memphis police department of a business suspected of selling illegal inhalants. The business owner was arrested and charged with the criminal sale of inhalants. The police seized bank accounts belonging to the owner and two corporations related to the business and instituted forfeiture proceedings regarding the funds in those accounts. The bank account owner and the two corporations filed suit against the city and multiple police officers seeking damages pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988. The trial court granted the city’s motion to dismiss for failure to state a claim upon which relief could be granted. In denying the plaintiff’s motion to alter or amend, the trial court stated that the amended complaint failed to allege any Fourth or Fifth Amendment violations, the grounds upon which the plaintiffs sought relief. With respect to the only remaining individual defendant, the trial court denied the plaintiffs’ motion to amend the first amended complaint, holding, in part, that the existence of adequate post-deprivation remedies precluded any Fourth or Fifth Amendment claims. We affirm.

An employee was exposed to a chemical in the course of his employment. He alleged that he developed a disabling pulmonary condition as a result of the exposure.  His employer denied that the condition was caused by the exposure. The trial court found for the employee and awarded permanent partial disability and other benefits.  The employer has appealed, contending that the evidence preponderates against the finding of causation.  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.  

Dennis Turner was injured while playing softball in a charity tournament at Marvin Rich Field in Bean Station. He sued the City of Bean Station, among other defendants, alleging that the City negligently failed to properly maintain the pitcher’s mound, pitcher’s rubber, and the field as a whole, resulting in his injury. The City moved for summary judgment, arguing that its governmental immunity is not removed by the Governmental Tort Liability Act (GTLA), which removes immunity for “any injury caused by the dangerous or defective condition of any public building, structure, dam, reservoir or other public improvement owned and controlled by [a] governmental entity.” Tenn. Code Ann. § 29-20-204(a)(2012) (emphasis added). The City presented proof establishing that it does not own Marvin Rich Field. The trial court denied the motion but granted permission for an interlocutory appeal. We reverse the trial court’s judgment and grant the City’s motion for summary judgment.

The petitioner, Jeffery Yates, appeals the trial court’s denial of his petition for habeas corpus relief. He contends that the court abused its discretion by dismissing his petition without conducting a hearing. He claims that he is entitled to habeas corpus relief because his current sentence is illegal because it was enhanced based upon prior illegal sentences and that the illegal sentences were improperly used to impeach him at trial. After reviewing the record and the applicable law, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Mother’s parental rights to her children were terminated on grounds of abandonment by failure to visit, persistence of conditions, and noncompliance with a permanency plan. Mother challenged the ground of abandonment, arguing there was a no contact order in place that prevented her from visiting her children. When the no contact order was put into place, Mother was informed she would be able to visit her children if she passed drug tests and took parenting classes. Mother continued to test positive for illegal drugs and failed to take advantage of services offered by the Department of Children’s Services. We affirm the trial court’s judgment that Mother abandoned her children by failing to visit them and that it is in their best interest to terminate her rights. A petition for custody that may have been pending when Mother’s rights were terminated is part of a different proceeding and does not render the court’s decision to terminate Mother’s rights premature.

Lashay Nicole Scruggs (“the Defendant”) appeals from the trial court’s denial of judicial diversion. On appeal, the Defendant argues that the trial court abused its discretion by (1) placing heavy emphasis on charges listed as “pending” in the pre-sentence report but that were actually disposed of prior to the sentencing hearing; (2) placing emphasis on the presence of marijuana in the Defendant’s system when marijuana use was not an element of vehicular manslaughter as charged in this case; and (3) placing emphasis on the need to deter others from driving irresponsibly when there was no evidence of such a need in the record. Upon review, we find that the trial court did not abuse its discretion and affirm the judgment of the trial court.

This is a parental termination case. It focuses on the three children of a married couple, D.G.B. (Mother) and D.C.B. (Father), and Mother’s child (V.L.J.) from an earlier relationship. The four children came into the custody of the Department of Children’s Services (DCS) in 2009. Nearly four years later, DCS filed a petition to terminate the rights of the parents. Following a trial, the court granted the petition based upon its finding (1) that multiple grounds for termination exist and (2) that termination is in the best interest of the children. Both findings were said by the trial court to be made by clear and convincing evidence. Mother and Father appeal. We affirm.

This is an appeal from an order denying a motion to compel arbitration. The beneficiaries of a trust filed this lawsuit against the trustee alleging trustee self-dealing arising from a transaction in which the trustee and his wife purchased certain real property from the trust as tenants by the entirety. The beneficiaries sought to set aside a portion of the sale. The trustee filed a motion to compel arbitration pursuant to an arbitration clause in the trust agreement. The beneficiaries opposed the motion, arguing that they could not be compelled to arbitrate their claims against the trustee’s wife. The trial court agreed and denied the motion. The court found that the trustee’s wife was a necessary party to the resolution of the dispute, but because she was not a party to the trust agreement, there was no enforceable arbitration agreement between her and the beneficiaries. We affirm the decision of the trial court.

Suit for breach of contract to recover on a homeowners policy for losses sustained when policyholder’s home was allegedly burglarized and was allegedly damaged as a result of a storm. Upon defendant’s motion, the trial court granted summary judgment, holding that the insurance company defendant had demonstrated that policyholder could not meet his burden of proof as to any of his claims.  After a thorough review of the record, we discern no error and affirm the judgment of the trial court.

Antonio Williams (“the Petitioner”) pleaded guilty to three counts of possession with intent to sell a Schedule II controlled substance within a drug-free zone and agreed to a revocation of probation on a prior sentence. Pursuant to his plea agreement, the Petitioner received a total effective sentence of ten years to be served at 100%. In this appeal from the denial of post-conviction relief, the Petitioner contends that the post-conviction court erred in finding: (1) that his plea was intelligently and voluntarily made; and (2) that trial counsel’s performance was not deficient. After a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

The Defendant, Angel Geovanna Hurtado, was convicted by a Davidson County jury of three counts of aggravated child abuse, one count of reckless aggravated assault as a lesser-included offense of aggravated child abuse, and one count of aggravated child neglect.  The trial court imposed an effective sentence of twenty-five years for her convictions.  In this direct appeal, the Defendant contends that (1) the trial court committed plain error by failing to grant a mistrial given the “significant problems that arose during trial revealing the existence of potential new witnesses and exculpatory evidence”; (2) the trial court erred by permitting the State to elicit testimony about and argue that evidence of domestic violence established the Defendant’s guilty knowledge, under a theory of criminal responsibility, of the child abuse and neglect of the victim by her live-in boyfriend; and (3) the evidence was insufficient to support the convictions, including a challenge of material variance between the proof and the State’s election of offenses.  Following our review of the record and the applicable authorities, the judgments of the trial court are affirmed.  However, we must remand for entry of a corrected judgment in count two to reflect the proper conviction of reckless aggravated assault.

The State of Tennessee Department of Children’s Services (“DCS”) filed a petition seeking to terminate the parental rights of Lori D.F.P. (“Mother”) to the minor child Bryce F. (“the Child”). After a trial the Juvenile Court for Knox County (“the Juvenile Court”) terminated Mother’s parental rights to the Child after finding and holding, inter alia, that grounds had been proven by clear and convincing evidence to terminate Mother’s parental rights for abandonment by willful failure to pay child support pursuant to Tenn. Code Ann. § 36-1- 113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(i); for failure to substantially comply with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2); and for severe child abuse pursuant to Tenn. Code Ann. § 36-1-113(g)(4), and that the termination was in the Child’s best interest. Mother appeals to this Court. We find that the evidence does not preponderate against the Juvenile Court’s findings made by clear and convincing evidence, and we affirm.

The petitioner, Mike Settle, appeals from the denial of his sixth petition for writ of habeas corpus, which challenged his 2001 guilty-pleaded convictions of felony escape, especially aggravated kidnapping, aggravated robbery, and two counts of aggravated assault. Discerning no error, we affirm.

The plaintiff in this interlocutory appeal filed a complaint asserting health care liability claims against the original defendants, at which time she included a certificate of good faith in accordance with Tennessee Code Annotated section 29-26-122. The original defendants asserted comparative fault against non-party health care providers. The plaintiff waived compliance by the original defendants with section 29-26-122(b), which required the defendants to file a certificate of good faith regarding the non-party health care providers. The plaintiff thereafter amended her complaint to add the named non-party health care providers as new defendants but did not file a new certificate of good faith. The new defendants moved to dismiss the amended complaint. The trial court denied the motions and granted this interlocutory appeal. We reverse.

The Defendant, Boyce Turner, was indicted by the Washington County Grand Jury on two counts of driving under the influence (“DUI”), two counts of DUI 4th offense, evading arrest, resisting arrest, and driving on a revoked license. The Defendant refused law enforcement’s request to submit to a blood test to determine his blood alcohol content, and his blood was taken, without a warrant and over his objections, pursuant to Tennessee Code Annotated section 55-10-406(f)(2) (2012). The trial court subsequently granted the Defendant’s motion to suppress evidence of his blood alcohol content test, concluding that the Defendant’s Fourth Amendment rights were violated. In this appeal, the State argues that the trial court erred in granting the Defendant’s motion to suppress because the Defendant consented to the test by driving on the roads in Tennessee and exigent circumstances justified the warrantless search. Upon our review of the record, we affirm the judgment of the trial court.

The Defendant, Katius J. Williams, was indicted on one count each of aggravated burglary, aggravated rape, and aggravated robbery. See Tenn. Code Ann. §§ 39-13-402, -13-502, -14-403. Following a jury trial, the Defendant was convicted of aggravated burglary, aggravated rape, and the lesser-included offense of theft of property valued at $500 or less. See Tenn. Code Ann. §§ 39-14-103, -105. The trial court sentenced the Defendant as a Range II, multiple offender to an effective forty-year sentence. On appeal, the Defendant contends (1) that the evidence was insufficient to sustain his convictions; (2) that the trial court erred by making “no findings as to why maximum sentences were appropriate”; and (3) that the total effective sentence was excessive. Following our review, we affirm the judgments of the trial court.

The pro se petitioner, Marcus Terry aka Marcus Benson aka Torian Benson, appeals the summary dismissal of his petition for writ of error coram nobis, which petition challenged his 1997 Shelby County Criminal Court guilty-pleaded conviction of escape. Discerning no error, we affirm.

This appeal arises from divorced parents’ child custody dispute. After Mother was arrested twice for driving under the influence, Father requested that he be designated as the primary residential parent and that Mother have supervised parenting time only. Without making any specific factual findings, the trial court found that there had been a “substantial and material change in circumstances” since the prior custody order, and the trial court designated Father as the primary residential parent. Mother’s parenting time was decreased by 196 days, her decision-making authoritywas removed, and she was ordered to pay child support to Father. Because the trial court’s order fails to comply with Tennessee Rule of Civil Procedure 52.01, we vacate the trial court’s judgment and remand.

The defendant, Albert Jackson, was convicted by a Shelby County Criminal Court jury of attempted voluntary manslaughter, a Class D felony; aggravated assault, a Class C felony; employing a firearm during the commission of a felony, a Class C felony; reckless endangerment with a deadly weapon, a Class E felony; and felon in possession of a handgun, a Class E felony. He was sentenced to an effective term of twenty-four years in the Tennessee Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence. After review, we affirm the judgments of the trial court.

The Petitioner, Frederick O. Edwards, appeals the Weakley County Circuit Court’s summary dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The Petitioner contends that the trial court erred by treating his Rule 36.1 motion as a petition for post-conviction relief and further asserts that he has presented a colorable claim for relief. We agree that the trial court’s treatment of the Petitioner’s motion to correct an illegal sentence as a petition for post-conviction relief was error, but because we conclude that the Petitioner has not presented a colorable claim, the trial court’s order denying relief is affirmed.

Patient brought a health care liability action against his eye surgeon, alleging that the surgeon’s negligence in performing a LASIK procedure resulted in several eye injuries. The trial court granted a directed verdict for the surgeon, finding the patient failed to present evidence establishing the standard of care and causation. Because we find the evidence was sufficient to create an issue for the jury, we reverse and remand to the trial court.

A funeral director sustained injuries to his shoulder and back while assisting with carrying a casket. His injury was accepted as compensable. Within a few days, he submitted a letter of resignation to his employer. After recovering from his injuries, he filed this action seeking permanent disability benefits. He also sought reconsideration of a previous settlement pursuant to Tennessee Code Annotated section 50-6-241(d). His employer asserted that the employee was not entitled to reconsideration of the earlier settlement and that any award for his later injury was subject to the one and one-half times impairment cap because of his voluntary resignation. The trial court found that the employee did not voluntarily resign, granted the petition for reconsideration, and awarded benefits for the second injury in excess of the cap. The employer appealed. 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 of the trial court.

This litigation is a dispute between the boards of education of the cities of Athens and Etowah (“the City School Boards”) on the one hand and McMinn County (“the County”) over the distribution of tax revenues among the various school systems within the county. Tenn. Code Ann. § 49-3-315(a) (2013) mandates that “[a]ll school funds for current operation and maintenance purposes collected by any county . . . shall be apportioned by the county trustee” among the local education agencies in the county based upon average daily school attendance. Over the years spanning from 1996 to 2011, the County apportioned funds in the account designated “general purpose school fund” to the City School Boards, but did not apportion funds from the County’s “educational capital projects fund.” The County argues that funds appropriated for and spent on school capital projects are not “school funds for current operation and maintenance purposes” under the language of the statute. The trial court agreed and granted the County summary judgment. It dismissed the complaint of the City School Boards. We affirm.

At an earlier time, in 2011, Betty Graham had filed a lawsuit arising out of a failed real estate transaction against (1) her real estate agent, Ginny Hall; (2) Crye-Leike Realty Corporation; (3) S&J Southeast Investments, LLC, the potential buyer of her condominium with whom she had unsuccessfully negotiated a contract; and (4) attorney Ellie Hill, her trial court appointed guardian ad litem. The trial court granted the defendants’ Rule 12.02(6) motions to dismiss the complaint for failure to state a claim upon which relief could be granted. Graham appealed, but later voluntarily dismissed her appeal. Following her dismissal, our mandate, see Tenn. R. App. P. 42, 43, was issued on January 4, 2013. On April 26, 2013, Graham, acting pro se, “refiled” a lawsuit that is functionally identical to her first complaint. In her second suit, she relied upon the saving statute, Tenn. Code Ann. § 28-1-105(a) (2000). The trial court dismissed her second complaint on the ground of res judicata. We affirm that dismissal. Furthermore, we conclude that Graham’s suit is frivolous. Hence, this case is remanded to the trial court for a determination of the defendants’ reasonable fees and expenses associated with this appeal.