APPELLATE COURT OPINIONS

This appeal concerns a complaint for health care liability. Although Tennessee Code Annotated section 29-26-121(c) provides for an extension of the applicable statutes of limitations in health care liability actions when pre-suit notice is given, it also specifies that “[i]n no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for health care liability, nor shall more than one (1) extension be applicable to any [health care] provider.” After a prior lawsuit was voluntarily dismissed without prejudice, Plaintiff provided new pre-suit notice and refiled in reliance on the Tennessee saving statute and an extension under Tennessee Code Annotated section 29-26-121(c). The trial court dismissed the refiled complaint with prejudice, however, holding, among other things, that Plaintiff could not utilize the statutory extension in his refiled action because he had already utilized a statutory extension in the first lawsuit. For the reasons discussed herein, we affirm the trial court’s dismissal of Plaintiff’s lawsuit.

Although I ultimately agree with the majority’s conclusion, I write this separate concurrence to express my concerns with the result in this case.

Defendant, Rex Allen Moore, appeals the trial court’s revocation of his probation after
incurring new criminal charges related to his failing to report an email address to the sex
offender registry. On appeal, Defendant argues that the trial court abused its discretion by
finding that he knowingly violated the terms of his probation. Following a de novo review
of the record, we affirm.

The petitioner, Undray Luellen, appeals the denial of his Rule 36.1 motion to correct an
illegal sentence, asserting that his sentence is illegal because the trial court imposed
consecutive sentences without stating its reasons on the record. Upon our review of the
record and applicable law, we affirm the judgment of the trial court.

Petitioner, Benjamin Scott Brewer, appeals as of right from the Hamilton County Criminal
Court’s denial of his petition for post-conviction relief, wherein he challenged his
convictions for six counts of vehicular homicide by intoxication, four counts of reckless
aggravated assault, driving under the influence, violation of motor carrier regulations, and
speeding. Petitioner contends that he was denied the effective assistance of counsel based
upon counsel’s failure to object to witnesses’ descriptions of the crash scene as unfairly
prejudicial under Tennessee Rule of Evidence 403. Upon review, we affirm the judgment
of the post-conviction court.

The petitioner, Frederick D. DeBerry, appeals from the Fayette County Circuit Court’s summary dismissal of his pro se motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1.  Based on our review of the record, the parties’ briefs, and the applicable law, we conclude that the petitioner’s appeal is untimely, the interest of justice does not mandate waiver of the untimely notice, and therefore, the appeal should be dismissed.

A Board of Professional Responsibility hearing panel found that a Shelby County
attorney’s law license should be suspended for four years based on multiple violations of
the Rules of Professional Conduct (RPCs), including RPC 5.5(a). The attorney appealed
part of the hearing panel’s decision, and the trial court affirmed in part, reversed in part,
and modified the sanction to one year. The Board appeals the trial court’s decision that the
attorney did not violate RPC 5.5(a) by practicing law while his license was suspended. We
find that the attorney violated RPC 5.5(a) by continuing to manage and market his law
practice; by directly or indirectly communicating with office staff, attorneys, and former
clients; and by recruiting and hiring attorneys while his law license was suspended. The
hearing panel’s decision that the attorney violated RPC 5.5(a) is supported by substantial
and material evidence. We hold that the attorney’s law license shall be suspended for two
years, with eighteen months served on active suspension. This sanction is based on the
RPC 5.5(a) violation, as well as the hearing panel’s findings that he violated additional
RPCs, which he did not appeal, the American Bar Association’s Standards for Imposing
Lawyer Sanctions (ABA Standards), five aggravating factors, and no mitigating factors.
The attorney shall also make appropriate restitution, obtain additional continuing education
as ordered by the trial court, and engage a practice monitor during his probated suspension.

Defendant, Luis Alexis Briceno, was convicted of alternative counts of driving under the
influence of an intoxicant (second offense), driving on a revoked license, and violation of
the financial responsibility law. The trial court imposed an effective sentence of eleven
months, twenty-nine days, with seventy-five percent release eligibility, and service of fiftynine
days in confinement before release on probation. On appeal, Defendant argues that
the Tennessee Administrative Office of the Courts erred by denying his request of funding
for expert assistance; Rule 13 of the Tennessee Supreme Court is unconstitutional both on
its face and as applied in his case; and the trial court erred by denying his motion to suppress
the results of his breath test. After a thorough review of the record and the briefs and oral
arguments of the parties, we affirm the judgments of the trial court.

Plaintiff, Defendant’s former employee, filed suit under the Fair Labor Standards Act
alleging that he had suffered a loss of overtime wages. The trial court entered a judgment
denying Plaintiff any recovery. For the reasons stated herein, we conclude that the trial
court’s findings are insufficient. Although under the specific circumstances presented here
we would generally remand the case to allow the trial court an opportunity to more clearly
state its findings, as well as offer specific findings and conclusions in reference to the
appropriate legal standards, the judge who tried this case is no longer on the bench.
Accordingly, we are compelled to vacate the judgment and remand for a new trial on the
question of whether Defendant improperly denied Plaintiff overtime pay.

The Petitioner, Ricky Campbell, Jr., pleaded guilty to theft of more than $10,000.
Thereafter, the Petitioner filed a petition for post-conviction relief, claiming that he
received the ineffective assistance of counsel, which the post-conviction court denied after
a hearing. After review, we affirm the post-conviction court’s judgment.

The Defendant, Marquez Travell Billingsley, pleaded guilty to conspiracy with intent to
sell over fifteen grams of heroin in a drug-free zone, a park. In exchange, the State
dismissed other charges pending against him. Pursuant to the plea agreement, the trial
court sentenced the Defendant to twelve years, to be served at 100%. Several years later,
the Defendant filed a motion to be resentenced pursuant to Tennessee Code Annotated
section 39-17-432(h). After a hearing, the trial court denied relief. On appeal, we conclude
that an appeal as of right does not lie from a trial court’s decision regarding a motion for
discretionary resentencing pursuant to the Drug-Free School Zone Act. Accordingly, the
Defendant’s appeal is dismissed.

This action involves the termination of a father’s parental rights to his child. Following a
bench trial, the court found that clear and convincing evidence existed to establish the
following statutory grounds of termination: (1) abandonment by wanton disregard; (2)
incarceration for a period of ten or more years; and (3) the persistence of conditions which
led to removal. The court also found that termination was in the best interest of the child.
We affirm the trial court’s ultimate termination decision.

In this case involving termination of the father’s parental rights to his children, the trial
court found by clear and convincing evidence three statutory grounds for termination of
the father’s parental rights to all three of his children, and the court found by clear and
convincing evidence additional putative father grounds for termination of his parental
rights to his youngest child only. The trial court further determined that clear and
convincing evidence established that termination of the father’s parental rights was in the
children’s best interest. The father has appealed. Having determined that the trial court
found two statutory grounds, abandonment by failure to visit and abandonment by failure
to support, that were not included in the petitioners’ original or amended petitions, we
reverse the court’s findings on these two grounds. We must also reverse the four statutory
grounds applicable to a putative father inasmuch as the petitioners did not present evidence
to establish that the father qualified as a putative father. We affirm the trial court’s
judgment in all other respects, including termination of the father’s parental rights based
upon the remaining ground and best interest analysis.

A Shelby County jury convicted the Petitioner, Martrice Thomas, of first degree premeditated murder.  The Petitioner appealed her conviction, and this court affirmed the trial court’s judgment.  State v. Martrice Thomas, No. W2017-02489-CCA-R3-CD, 2018 WL 6266277, at *1 (Tenn. Crim. App., Nov. 29, 2018), perm.  app. denied (Tenn. March 28, 2019).  On April 6, 2020, more than a year after the expiration of the statute of limitations, the Petitioner filed a petition for post-conviction relief, alleging that her trial counsel was ineffective.  After a hearing, the trial court denied relief, finding that the Petitioner had received the effective assistance of counsel.  The Petitioner appeals, maintaining that her trial counsel was ineffective for failing to introduce evidence of Battered Woman Syndrome at trial.  Because the post-conviction court treated the petition as timely from the outset of the hearing, thereby preempting any proof the Petitioner may have presented to show that due process considerations required tolling of the statute of limitations, we remand the case for a hearing on the sole issue of the statute of limitations.  

Paula Christine Hutcherson, Defendant, appeals after a jury found her guilty of eight counts of unlawful possession of a firearm in violation of Tennessee Code Annotated section 39-17-1307(b)(1)(B).  The trial court subsequently sentenced her to ten years for each conviction, to be served concurrently, and ordered the sentences suspended to supervised probation.  On appeal, Defendant argues that her prior convictions for obtaining drugs by fraud are not “felony crimes of violence” or “felony drug offenses” within the meaning of Tennessee Code Annotated section 39-17-1307(b)(1) and that her convictions must be reversed.  Because we determine that Defendant’s prior convictions for obtaining drugs by fraud are felony drug offenses for the purposes of Tennessee Code Annotated section 39-17-1307(b)(1)(B), we affirm Defendant’s convictions.  However, during our review of the record, we identified possible clerical errors on the judgment forms concerning the arrest date and pretrial jail credit dates.  On remand, the trial court should enter corrected judgment forms if necessary.   

In this quiet title action, the pro se defendant appeals the trial court’s decision to permit
constructive service by publication in lieu of personal service, pursuant to Tennessee Code
Annotated section 21-1-203(a)(2). Because Plaintiff met the statutory requirements of
service by publication and because constructive service by publication was effective to
establish the trial court’s personal jurisdiction over Defendant, we affirm.

This appeal involves a capital post-conviction petitioner’s expert funding requests under
Tennessee Supreme Court Rule 13. A jury convicted the Petitioner, Jessie Dotson, of six
counts of premeditated first-degree murder and sentenced him to death. This Court
affirmed the jury’s verdict. The Petitioner filed for post-conviction relief, alleging several
grounds of ineffective assistance of counsel. He requested funds under Tennessee Supreme
Court Rule 13 to hire expert witnesses to assist in establishing his claims of ineffective
assistance of counsel. The post-conviction court authorized the funds, but the Director of
the Administrative Office of the Courts (AOC) and the Chief Justice denied approval for
some of the Petitioner’s requested experts. After an evidentiary hearing, the
post-conviction court denied relief. The Court of Criminal Appeals affirmed the ruling
without deciding the Petitioner’s Rule 13 constitutional challenges. We granted review to
consider the Petitioner’s constitutional issues regarding Rule 13. We hold the provisions
of Rule 13 are constitutional as applied; the Petitioner was not unconstitutionally denied
appellate review of the denial of his request for expert funds; and the Petitioner was not
deprived of a full and fair post-conviction hearing due to the denial of expert funds.

This appeal arises from a petition to establish parentage and a parenting plan pursuant to Tennessee Code Annotated § 36–2–311 for a child born out of wedlock. In finding that the statutory best interest factors set forth in Tennessee Code Annotated § 36-6-106(a) favored the father, the trial court designated the father as the primary residential parent of the parties’ minor child and ruled that the child would live with the father in Tennessee during the school year and spend the majority of the summers and holidays with Mother in Texas. The mother appeals. We affirm.

This is an appeal from a final order entered on March 6, 2023. The Notice of Appeal was
not filed with the Appellate Court Clerk until April 6, 2023, more than thirty days from the
date of entry of the order from which the appellant is seeking to appeal. Because the Notice
of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

The defendant, James Pitts, pled guilty to one count of aggravated assault in exchange for
a sentence of six years with the manner of service to be determined by the trial court.
Following a sentencing hearing, the trial court ordered the defendant’s six-year sentence
be served in confinement. On appeal, the defendant argues that the trial court erred in
imposing a sentence of incarceration rather than an alternative sentence. After reviewing
the record, the parties’ briefs and oral arguments, and the applicable law, we conclude the
trial court failed to acknowledge most of the relevant statutory considerations or articulate
the reasons for the sentence of confinement in accordance with the purposes and principles
of sentencing. Therefore, we remand the case for the limited purpose of having the trial
court make the appropriate findings on whether the defendant should receive an alternative
sentence or a sentence of incarceration, noting that the trial court shall fully articulate its
reasoning in accordance with the applicable statutes and case law. Accordingly, the
judgment of the trial court is reversed, and the case is remanded to the trial court.

This is an insurance policy coverage dispute between Tennessee Farmers Mutual Insurance
Company (“Tennessee Farmers”) and its insured, Hayes Family Partnership (“Hayes”). At
issue is property damage to a commercial building owned by Hayes and insured by
Tennessee Farmers. The damage, which was in excess of two hundred thousand dollars,
was caused by a third-party tortfeasor, George Hardey, who drove his vehicle into the
insured building. Shortly after the accident and without the knowledge or consent of
Tennessee Farmers, Hayes executed a release of all claims against Hardey and his insurer,
Allstate Property & Casualty Company (“Allstate”), in consideration for the $25,000 policy
limits paid by Allstate. After Hayes submitted its claim to Tennessee Farmers for benefits
under its policy, Tennessee Farmers denied Hayes’ claim based on Hayes’ violations of
material provisions in the insurance policy, including the provision that required Hayes to
“do everything necessary to secure [Tennessee Farmers’] rights” and “do nothing after loss
to impair them.” The trial court denied Tennessee Farmers’ Motion for Summary Judgment
based, in part, on the “made whole” doctrine, and it ruled that “the release executed by
Hayes in favor of the third-party tortfeasor George Hardey does not foreclose Hayes’ right
to pursue recovery from Tennessee Farmers.” The trial court also reasoned that Tennessee
Farmers may not avoid coverage “on the basis of breach of the insurance policy condition
that its insured must do everything necessary to secure its rights and nothing to impair those
rights, and Hayes[’] release of Hardey.” The trial court then granted Tennessee Farmers’
motion for permission to file an interlocutory appeal, which we also granted. The
dispositive issue on appeal is whether Hayes forfeited its right to coverage under the
Tennessee Farmers’ policy by, inter alia, releasing all of Hayes’ claims against the thirdparty
tortfeasor and his insurance company without the knowledge or consent of Tennessee
Farmers. We have determined that Hayes materially breached the insurance policy by
releasing the third-party tortfeasor and his insurer from liability without the consent of Tennessee Farmers; therefore, Tennessee Farmers was entitled to summary judgment as a
matter of law. Accordingly, we reverse the decision of the trial court and remand with
instructions to summarily dismiss the complaint.

Petitioner, Joshua Allen Felts, appeals from the Davidson County Criminal Court’s denial of post-conviction relief from his 2013 convictions for theft of property valued at less than $500 (Counts One and Four), attempted theft of property valued at less than $500 (Counts Two and Three), and theft of property valued at $1,000 or more but less than $10,000 (Count Five). Petitioner contends that he was denied the effective assistance of counsel based upon trial counsel’s failure to: (1) file a motion to withdraw as requested by Petitioner; (2) object to a witness’s hearsay testimony regarding the ownership of the stolen items in Counts One through Four; (3) challenge the value of the stolen laptop in Count Five; (4) adequately prepare for trial; and (5) adequately communicate with Petitioner. Petitioner further contends that the cumulative effect of trial counsel’s errors entitles him to relief. Following our review, we affirm the post-conviction’s court denial of relief as to Petitioner’s conviction in Count Five; however, we reverse the denial of post-conviction relief as to Counts One through Four. We vacate the judgments of conviction in Counts One through Four and remand for a new trial on those counts.

The Defendant, Myles Wiseman, was convicted by a Shelby County Criminal Court jury of rape, a Class B felony; two counts of incest, a Class C felony; and two counts of statutory rape by an authority figure, a Class C felony.  He was sentenced by the trial court to thirty years at 100% as a Range IV, career offender for the Class B felony rape conviction and fifteen years at 45% as a Range III, persistent offender for each of the Class C felony incest and statutory rape convictions.  The trial court ordered that the sentences be served consecutively, for a total effective sentence of ninety years in the Department of Correction.  The Defendant raises the following issues on appeal: (1) whether the trial court erred by allowing the State to introduce the Defendant’s recorded phone calls from the jail; (2) whether the evidence was sufficient to sustain the convictions; and (3) whether the trial court imposed an excessive sentence.  Based on our review, we affirm the judgments of the trial court.   

This is an appeal from a summary judgment dismissal entered in favor of all defendants in a civil enforcement action involving violations of the Tennessee Consumer Protection Act and the Government Imposters and Deceptive Advertising Act. We vacate the dismissal and remand for further proceedings consistent with this opinion.

The appellant is a property owner who sought review of a decision by the Metropolitan Historic Zoning Commission by filing a petition for writ of certiorari in chancery court. The chancery court affirmed the decision of the Historic Zoning Commission. The appellant property owner appeals. We affirm.