APPELLATE COURT OPINIONS

Kathy Austin, Vickie Shipley, and Sherry Foshie (“Plaintiffs”) sued their brothers, Jacob Wilds, Jr. and James Wilds (“Defendants”), seeking to have certain deeds from their mother set aside due to alleged undue influence and/or duress. After a bench trial, the Chancery Court for Greene County (“Trial Court”) entered its order rendering judgment in favor of Defendants after finding and holding, inter alia, that Plaintiffs had failed to prove the existence of a confidential relationship necessary to show that the subject deeds were procured through undue influence. Plaintiffs appeal. We find and hold that the evidence does not preponderate against the Trial Court’s findings, and we affirm.

The only issue in this appeal is whether two property owners in a subdivision are entitled to an award of attorney fees for prevailing in a third-party action brought against them by the homeowners association to enforce restrictive covenants. The association argued that the property owners were not entitled to attorney fees because they did not prevail on every issue that came up during litigation, because the attorney fee provision in the restrictive covenants could be read to mean that no such award could be made if additional damages were not also awarded, and because they did not personally pay their own attorney fees. The trial court agreed with those arguments and denied the motion for attorney fees. We reverse the trial court and remand the case for a determination of the amount of the attorney fee award.

Keenan D. Singletary (“the Defendant”) pleaded guilty to facilitation of aggravated robbery. Following a sentencing hearing, the trial court sentenced the Defendant to five years’ incarceration and ordered the Defendant to pay $174 in restitution. On appeal, the Defendant challenges the length and manner of service of his sentence. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

I respectfully dissent from the holding of the majority. I do not believe that the fact that fees are available to the Pattons requires that they be awarded under the particular facts and circumstances of this case.

The petitioner, Mindy S. Dodd, appeals the denial of her petition for a writ of error coram nobis. On appeal, she contends that she presented newly discovered evidence that may have affected the outcome of her trial and that the error coram nobis court erred in denying her petition. Because the petition was not filed within the statutory limitations period, we affirm the denial of the petition.

Appellant medical providers appeal the trial court’s denial of their motions to dismiss a medical malpractice complaint for failure to strictly comply with Tennessee Code Annotated Section 29-26-122(d)(4). Because we conclude that the trial court had good cause to grant an extension, within which to file a certificate of good faith, we affirm the decision of the trial court.

This is a contract interpretation case involving the proper apportionment of proceeds from the sale of several properties owned by the parties as tenants in common. When Husband and Wife divorced in 2005, a marital dissolution agreement was incorporated into their Final Decree of Divorce. In pertinent part, the agreement required the parties to sell six properties and split the proceeds therefrom. The agreement listed each of the properties with a dollar amount beside it. The agreement provided that Wife could be compelled to accept an offer for a particular property so long as her share of the proceeds equaled the dollar amount listed with that property in the agreement. The sum of the amounts listed with the properties at issue was $565,800. Real estate values declined substantially after the agreement was entered, and the properties were finally sold together for $322,287.71 in 2012. Following the sale Husband filed a motion seeking an equal division of the sale proceeds. Wife answered, insisting that the agreement entitled her to $565,800 and that she was therefore entitled to all of the sale proceeds, less Husband’s expenses related to the properties. During a bench trial, the court found the agreement ambiguous and therefore considered parol evidence to determine the intent of the parties. Based on its findings, the trial court determined that the parties intended to split the sale proceeds equally. Additionally, the trial court concluded that the agreement entitled Husband to reimbursement for one-half of his expenses on the properties, which the parties stipulated to be $156,270.48. In its final accounting, the trial court awarded $234,834.09 to Husband and $87,453.62 to Wife. We affirm.

In this post-conviction appeal, the Petitioner contends that he received the ineffective assistance of counsel at trial because trial counsel was deficient in failing to file a written motion requesting jury instructions on lesser-included offenses and that this failure resulted in prejudice because it precluded appellate review of the trial court’s refusal to instruct the jury on any lesser-included offenses. After a review of the record and the applicable authorities, we reverse the judgment of the post-conviction court with respect to trial counsel’s failure to file a written motion requesting an instruction on lesser-included offenses of especially aggravated kidnapping. We affirm the judgment in all other respects.

I concur with the majority opinion except for one issue. I respectfully disagree with the majority’s conclusion that the failure to instruct the jury on the lesser-included offense of aggravated kidnapping constitutes reversible error in this post-conviction case. Such a failure to charge a lesser-included offense is harmless beyond a reasonable doubt when no reasonable jury would have convicted the petitioner of the lesser-included offense. State v. Banks, 271 S.W.3d 90, 126 (Tenn. 2008).

The Defendant, Danny Adams, was convicted by a jury of simple assault. On appeal, he challenges the sufficiency of the evidence for that conviction, including an argument therein of inconsistent verdicts. We have thoroughly reviewed the record on appeal, and although the evidence is sufficient, we must reverse the Defendant’s conviction because an incorrect mental state was included in the jury charge. Moreover, we cannot deem the error harmless beyond a reasonable doubt. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

This is the second appeal of this case, involving the application of Tennessee Code Annotated Section 31-1-105 to set aside certain transfers by decedent to his long-term companion, which transfers were allegedly made with intent to deny his surviving spouse of her share of his estate. From the totality of the circumstances, and applying the factors outlined by this Court in Finley v. Finley, 726 S.W.2d 923 (Tenn. Ct. App. 1986), we conclude that the evidence preponderates in favor of the trial court’s award of $8,500.00 in insurance proceeds to the surviving spouse for decedent’s funeral costs, but that the evidence preponderates against the trial court’s award of a $28,000.00 bank account to the surviving spouse. Affirmed in part, reversed in part, and remanded.

The Defendant, Jessica Root, appeals the trial court’s nine-year sentence to her open plea of guilt to vehicular homicide by intoxication, contending (1) that the trial court failed to consider applicable mitigating factors and a sentencing practices report; (2) that she should have received the minimum sentence; and (3) that the trial court improperly denied all forms of alternative sentencing. Upon consideration of the record and the applicable authorities, we affirm the judgment of the trial court.

This appeal involves the classification and division of Husband’s $66,000.00 personal injury settlement in a divorce proceeding. The trial court classified the settlement as marital property, it deducted $13,400.00 for what it found to be “legitimate expense[s] of the marriage” paid by Husband, and it awarded Wife one-half of the balance, or $26,300.00. We reverse the trial court’s award to Wife.

This post-divorce case concerns parental relocation. Father sought to relocate to Arizona, citing family ties and increased career opportunities. The parties agreed that Father spent substantially more time with the child than Mother; however, Mother objected to the relocation, arguing that the move had no reasonable purpose. The trial court agreed with Mother and entered a parenting plan naming Mother primary residential parent. Because the trial court made no best interest finding regarding either the proposed relocation, or the parenting plan, we vacate the judgment of the trial court and remand for further proceedings. Vacated and Remanded.

The trial court determined that no material and substantial change in circumstance had occurred and denied Father’s petition to modify the parties’ parenting plan. We affirm.

The Defendant-Appellant, Steven R. Bryson, was convicted by a Hardin County jury of aggravated sexual battery, a Class B felony. See T.C.A. § 39-13-504 (2011). The trial court sentenced him as a Range I, standard offender to eight years and six months in the Department of Correction. On appeal, Bryson argues that: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in denying his motion for judgment of acquittal; and (3) the trial court committed plain error in its jury instructions. Upon review, we affirm the judgment of the trial court.

Appellee, Jerry R. Shouse, was indicted by the Maury County Grand Jury with one count of driving under the influence and one count of violation of the open container law. Prior to trial, Appellee filed a motion to suppress the evidence on the basis that the warrantless seizure was arbitrary and oppressive. After a hearing, the trial court granted the motion to suppress by written order. The State filed a notice of appeal on the same day that the order of nolle prosequi was entered. After a review of the record and applicable authorities, we determine based on the recent decision of State v. Moats, 403 S.W.3d 170 (Tenn. 2013), the trial court properly granted the motion to suppress where the actions of the officer were not authorized under any exception to the warrant requirement. Consequently, the judgment of the trial court is affirmed.

The Defendant, Devin Jay Davis, was convicted by a Chester County jury of criminally negligent homicide and aggravated child abuse and neglect, for which he received an effective sentence of twenty years. In this appeal, the Defendant argues that the evidence is insufficient to sustain his conviction for aggravated child abuse and neglect, the jury’s verdicts in count one and count two are fatally inconsistent, and his convictions violate double jeopardy. Upon review, we affirm the judgment of the trial court.

Petitioner, Stevie Dickson, was indicted by the Montgomery County Grand Jury for first degree murder, attempted first degree murder and aggravated assault. Petitioner entered a best interest plea to second degree murder and attempted second degree murder. He was sentenced to an effective sentence of twenty years. Petitioner subsequently filed a petition for post-conviction relief arguing that he was afforded ineffective assistance of counsel. After conducting an evidentiary hearing, the post-conviction court denied the petition. On appeal, Petitioner argues that the post-conviction court erred. After a thorough review of the record, we conclude that the record supports the post-conviction court’s denial of the petition.

The Petitioner, Jason Osmond Hines, appeals the post-conviction court’s denial of relief for his conviction of second-degree murder. On appeal, the Petitioner argues that he received ineffective assistance of counsel based on counsel’s failure to properly impeach the State’s witnesses and adequately present a theory of self-defense. Upon review, we affirm the judgment of the post-conviction court.

Following a jury trial, the Defendant, Joseph H. Adkins a/k/a Joseph H. Morrison, was convicted of first degree premeditated murder; first degree felony murder; aggravated burglary, a Class C felony; and three counts of aggravated assault, a Class C felony. See Tenn. Code Ann. §§ 39-13-102, -13-202, -14-403. The trial court merged the felony murder conviction into the premeditated murder conviction and imposed a sentence of life with the possibility of parole. The trial court sentenced the Defendant to six years for each of the remaining convictions and ordered all of the sentences to be served consecutively for an effective sentence of life plus twenty-four years. In this appeal as of right, the Defendant contends (1) that the trial court erred in denying the Defendant’s pro se motion to remove appointed trial counsel; (2) that the trial court erred by not allowing the Defendant to cross-examine a witness about a prior instance where the witness allegedly lied under oath; (3) that the trial court improperly allowed the admission of hearsay evidence at trial; (4) that the trial court erred by instructing the jury on flight; (5) that the evidence was insufficient to sustain the Defendant’s conviction for first degree premeditated murder; (6) that the evidence was insufficient to sustain the Defendant’s convictions for two of the aggravated assault charges; (7) that the trial court erred by correcting a “typographical error” on the jury’s verdict form; and (8) that the trial court erred by imposing consecutive sentences. Following our review, we affirm the judgments of the trial court.

Father appeals the trial court’s determination that he is willfully and voluntarily underemployed and the parenting schedule established by the trial court. Mother appeals the trial court’s determination that it lacked the authority to award attorney’s fees under Tennessee Code Annotated § 36-5-103(c). We affirm the trial court’s judgment with respect to the parenting schedule and the finding of voluntary underemployment, and vacate with respect to the issue of attorney’s fees. We remand for further proceedings consistent with this Opinion.

The defendant, Joseph Samuel Kyle, was convicted by a Benton County Circuit Court jury of aggravated criminal trespass, a Class A misdemeanor, and was sentenced to eleven months and twenty-nine days, suspended to probation after serving thirty days in jail. On appeal, he argues: (1) interrelated issues that the trial court erred in overruling his motions for judgment of acquittal and new trial and that the evidence is insufficient to sustain his conviction; and (2) the trial court erred in allowing hearsay testimony into evidence over his objection. After review, we affirm the judgment of the trial court.

This appeals arises from the post-divorce modification of child support following the emancipation of the parties’ oldest of three children. Both parents appeal numerous rulings by the trial court including its child support calculations, a judgment against Mother arising from Father’s overpayment of child support following the emancipation of their oldest child, the imputation of income to Mother for voluntary unemployment, an upward deviation for extraordinary education expenses, allocation of the uncovered medical expenses, allocation of the tax exemptions for the two minors, and attorney’s fees. We have determined that although the trial court was justified in finding a deviation for extraordinary education expenses, the trial court erred by applying the deviation prospectively rather than retroactively to the date of the petition. We reverse the trial court only on this issue and remand for the trial court to recalculate the amount of child support and the judgment against Mother consistent with this finding. We affirm the trial court in all other respects and deny both parties’ request to recover attorneys’ fees incurred in this appeal.

This case presents the issue of whether citizens who reside on real property that is proposed for deannexation by a municipal ordinance may, pursuant to Tennessee Code Annotated § 6-51-201 (2011), properly bring a quo warranto or declaratory judgment action against the municipality to challenge adoption of the deannexation ordinance. The trial court dismissed these claims against the municipality, and the plaintiffs have appealed. The plaintiffs have also taken issue with the propriety of the trial court’s determination regarding who would be qualified to vote in the referendum election, as well as other procedural and evidentiary issues. Discerning no error, we affirm the decision of the trial court.