APPELLATE COURT OPINIONS

The trial court terminated Father’s parental rights on several grounds and determined that the termination of his parental rights was in the best interest of the children. We affirm.
 

We granted Robert Ledford Funeral Home, Inc.’s (“the Funeral Home”) application for extraordinary appeal pursuant to Tenn. R. App. P. 10 to consider the issue of whether the Funeral Home was entitled to summary judgment as a matter of law if the undisputed material facts demonstrate that its “on call” employee, Johnny Tipton, was not acting within the course and scope of his employment with the Funeral Home when the vehicle accident causing injuries to the plaintiffs occurred. We find and hold that the undisputed material facts demonstrate that Mr. Tipton was not acting within the course and scope of his employment with the Funeral Home, and that the Funeral Home is entitled to summary judgment as a matter of law.

Andrew Spencer (“Plaintiff”) sued Norfolk Southern Railway Company (“Railroad”) for negligence under the Federal Employers’ Liability Act. After a jury trial, the Trial Court entered judgment on the jury’s verdict finding and holding, inter alia, that the Railroad was not at fault for Plaintiff’s injury. Plaintiff appeals raising an issue regarding jury instructions concerning foreseeability and notice. We find that the jury instruction regarding foreseeability and notice was misleading, and we vacate and remand for a new trial.

This is an appeal from the dismissal of an inmate’s petition for common law writ of certiorari. Because the inmate did not file his notice of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.

Petitioner, Michael Gibbs, Jr., filed a petition for writ of habeas corpus in the Morgan County Circuit Court, claiming that his sentence was expired and that he was being illegally restrained. The State filed a motion to dismiss on the grounds that petitioner failed to comply with the statutory requirements governing petitions for writ of habeas corpus. The habeas corpus court granted the State’s motion and summarily dismissed the petition. Following our review, we affirm the judgment of the habeas corpus court.

In this dispute concerning a real estate sale contract, we have concluded that the gravamen of the action is for injury to property and that, under the applicable legal principles, the evidence preponderates against the trial court’s finding as to when the statute of limitations began to run. Because the action is barred by the statute of limitations, we reverse the decision of the trial court.

The petitioner, Sherry Sulfridge, appeals the summary dismissal of her petition for post-conviction relief as untimely. The petitioner pled guilty to aggravated child neglect and reckless homicide, and she is currently serving an effective eighteen-year sentence in the Department of Correction. Almost four years after the judgments were entered, the petitioner filed a pro se petition for post-conviction relief. The post-conviction court summarily dismissed the petition as untimely. Following review, we affirm the dismissal.

Mother appeals the designation of Father as the primary residential parent of the parties’ two minor children and the parenting schedule which gave Father substantially more parenting time. We affirm the trial court’s designation of Father as the primary residential parent finding that the evidence does not preponderate against the trial court’s decision which was primarily based on the importance of continuity in the children’s lives. As for the parenting schedule, which awards Father 245 days and Mother only 120 days a year, we find that the evidence preponderates against such a disparity of parenting time; therefore, we reverse the parenting schedule and remand this issue for the trial court to adopt a revised parenting schedule that permits each parent to enjoy the maximum participation possible in the children’s lives that is consistent with the factors set forth in Tennessee Code Annotated § 36-6-106(a).

Following a trial where Plaintiffs were awarded compensatory and punitive damages, Defendants filed a motion seeking a new trial based on juror misconduct. Defendants alleged the jurors arrived at the punitive damages amount using a quotient, or gambling, verdict. The trial court denied Defendants’ motion for a new trial and Defendants appealed. We affirm the trial court’s judgment because the jurors’ affidavits indicate that not all jurors agreed in advance to be bound by the mathematical process involved in arriving at a quotient verdict.

The plaintiff, an attorney representing himself, filed this action against the Metropolitan Government of Nashville and Davidson County, the Metro Clerk in her official capacity, and the Director of the Metro Department of Parks and Recreation Services in his official capacity. He asserts a 42 U.S.C. § 1983 claim that arises from him being prohibited from speaking on behalf of his clients at two separate meetings of the Board of the Metro Department of Parks and Recreation, because he failed to give timely notice to the Board. He alleges the defendants deprived him of his rights under the Fourteenth Amendment to the United States Constitution and Article I, section 8 of the Tennessee constitution and seeks nominal damages for the alleged deprivation of his rights. He also seeks a declaratory judgment that the Parks’ Board rule requiring fourteen days’ notice to be heard at a Board meeting is invalid. We have determined, as the trial court did, that the plaintiff’s claims related to the first Board meeting are time-barred. As for the claims related to the second Board meeting, we have determined that the plaintiff’s rights were not violated because the plaintiff had actual notice of the Board policy requiring fourteen days’ notice well in advance of the second meeting. Finally, we have determined the plaintiff is not entitled to a declaratory judgment because he failed to demonstrate that he is seeking to vindicate an existing right under presently existing facts. The trial court summarily dismissed the claims. We affirm.

In this workers’ compensation action, the employee alleged that she sustained permanent disability from a work-related injury to her right shoulder. Her employer denied that the injury caused a permanent disability. The trial court found that the employee was permanently and totally disabled as a result of her work injury and entered a judgment to that effect. The employer has appealed, contending that the trial court erred by finding permanent and total disability. 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.

Father in child custody and support proceeding appeals the trial court’s findings: (1) that he was in criminal contempt of court; (2) that he was in civil contempt of court and setting the amount necessary to purge himself of contempt; (3) in suspending his parenting time; (4) modifying his child support obligation; and (5) ordering him to pay Mother’s attorney fees. We have determined that the finding of criminal contempt, the order modifying his child support obligation, and the order that Father pay Mother’s attorney fees should be vacated and the case remanded for further proceedings in connection therewith. In all other respects we affirm the trial court’s judgment.

In this workers’ compensation action, the employee sustained multiple injuries in a work-related incident in April 2005, when approximately 1,500 pounds of stockade gates fell on him. The employee later returned to work for the employer in his previous position as a truck driver. The parties settled the employee’s claim for workers’ compensation benefits based upon a 34.5% permanent partial disability to the body as a whole, plus future medical benefits. The employee continued having bilateral shoulder pain as a result of his injuries and in August 2008 had surgery on his left shoulder to repair a torn rotator cuff. After the surgery, however, he developed an infection and required a second surgery, which revealed the failure of the rotator cuff repair. Because of the poor result of those surgeries, the employee declined the recommended surgery on his right shoulder. In February 2011, the employee filed a complaint seeking reconsideration of his previous award, alleging that he had ceased working for the employer in January 2010 because he could no longer physically perform his duties due to his earlier compensable injuries. The trial court found that the employee was entitled to reconsideration and awarded additional permanent partial disability benefits (with credit for the benefits previously paid). The employer has appealed. Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation 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. We affirm the trial court’s finding that the employee is entitled to reconsideration but reverse its finding as to permanent partial disability.

A painting contractor filed a complaint against Nashville’s Metropolitan Housing and Development Agency (MDHA) alleging that the agency had violated its own rules by failing to choose him as the lowest bidder on a painting contract. The trial court dismissed the complaint, holding that it lacked subject matter jurisdiction because an administrative decision, such as the award of a painting contract, can only be challenged through a petition for writ of certiorari, and the contractor had filed his complaint after the sixty day time limit for filing the writ had passed. See Tenn. Code Ann. § 27-9-102. We affirm.

The Defendant, Jody Candace Seaman, pleaded guilty to identity theft, a Class D felony, second offense driving under the influence (DUI), a Class A misdemeanor, and fifth offense driving on a revoked license, a Class A misdemeanor. See T.C.A. §§ 39-14-150 (2010), 55- 10-401 (2012), 55-50-504 (2012). The trial court sentenced her as a Range I, standard offender to four years for identity theft, eleven months, twenty-nine days for second offense DUI, and eleven months, twenty-nine days for fifth offense driving on a revoked license. The court ordered partial consecutive sentences, for an effective sentence of four years, eleven months, and twenty-nine days. On appeal, she contends that the trial court erred by ordering consecutive sentences. We affirm the judgments of the trial court.

The Defendant, Forrest Melvin Moore, Jr., was convicted at a bench trial of second offense driving under the influence (DUI) and second offense DUI while his blood alcohol concentration was .20% or more, Class A misdemeanors. See T.C.A. § 55-10-401 (2012). He was sentenced to eleven months and twenty-nine days, with forty-five days to be served. On appeal, he contends that the trial court erred in denying the motion to suppress and that the evidence is insufficient to support the convictions. We affirm the Defendant’s convictions but vacate the judgments and remand the case for entry of a single judgment noting merger of the two offenses.

The Defendant, Upton Dabney, Jr., pleaded guilty to sexual exploitation of a minor, a Class C felony. See T.C.A. § 39-17-1003 (2010). Although the Defendant agreed to a six-year sentence with the manner of service to be determined by the trial court, the court sentenced the Defendant as a Range I, standard offender to one year’s confinement and ten years on community corrections. On appeal, the Defendant contends that (1) his ten-year community corrections sentence is excessive and (2) the trial court erred by ordering one year’s confinement. We reverse the ten-year community corrections sentence and remand the case for the trial court to enter a judgment reflecting a sentence of one year’s confinement and five years on community corrections.

The Petitioner, Martha Patlan-Cano, appeals the Davidson County Criminal Court’s denial of her petition for post-conviction relief from her convictions of first degree felony murder and aggravated child abuse and resulting effective sentence of life plus twenty years in confinement. On appeal, the Petitioner contends that she received the ineffective assistance of counsel. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

A Hamblen County jury convicted the Defendant, Tracy H. Graves, of driving under the influence (“DUI”) second offense, and the trial court sentenced the Defendant to eleven months and twenty-nine days’ incarceration. On appeal, the Defendant contends that the evidence is insufficient to sustain his DUI conviction because his vehicle was not in a location named in the indictment. After a thorough review of the record and the relevant authorities, we affirm the trial court’s judgment.

Petitioner, Jeffery Miller, appeals from the trial court’s summary dismissal of Petitioner’s petition for writ of habeas corpus. After reviewing the record and the parties’ briefs we affirm the judgment of the trial court.

In an indictment returned by the Hamilton County Grand Jury, Petitioner, Harold Holloway, Jr., was charged in count 1 with felony murder during the perpetration of, or attempt to perpetrate, a theft. He was also charged in count 2 with felony murder committed in the perpetration of, or attempt to perpetrate robbery. Additional counts alleged offenses which are not pertinent to this case on appeal. Following a jury trial, he was found guilty of second degree murder in both counts which charged felony murder. The conviction in count 2 was merged with the conviction in count 1. On direct appeal, this court affirmed the murder conviction. State v. Harold Holloway, Jr., No. E2004-00882-CCA-R3-CD, 2005 WL 1981791 (Tenn. Crim. App. Aug. 16, 2005). Petitioner now appeals from the trial court’s order dismissing his petition for habeas corpus relief without an evidentiary hearing. The habeas corpus petition alleged that Petitioner was entitled to relief because (1) each count of the indictment that charged felony murder was invalid, and therefore led to a void judgment because it failed “to include the statutory element of specific ‘intent’ for the underlying offense;” and (2) the convicting criminal court erroneously amended the felony murder counts of the indictment with its jury charge. After review of the briefs, the record, and the applicable law, we affirm the judgment of the trial court in this case.

The Defendant, James A. Adkins, entered a best-interest plea of guilt to driving while declared a motor vehicle habitual offender, failing to obey a traffic-control device, violation of the financial responsibility law, and reckless aggravated assault. The trial court ordered the Defendant to serve an effective sentence of six years in the Tennessee Department of Correction. The Defendant appeals, asserting that the trial court erred when it denied his request for alternative sentencing. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

The State obtained a probation revocation warrant seeking to revoke the probation of appellant, Freda Darlene Garrett, for committing new criminal offenses, failing to report, and failing to pay court-ordered restitution. Following a revocation hearing, the trial court revoked appellant’s probation in the case listed on the warrant (case number 08-028) and also on a case not listed on the warrant (case number 01-359). On appeal, appellant argues that she did not have notice of the probation revocation in the latter case and that her probationary sentence in that case had expired and was not subject to revocation. Following our review, we reverse the judgment of the trial court revoking appellant’s probation in case number 01-359 and affirm the judgment of the trial court revoking appellant’s probation in case number 08-028.

This appeal arises from the denial of Appellant’s Tennessee Rule of Civil Procedure 60.02 motion for relief from a default judgment. Appellee’s original complaint was filed against the Appellant’s company for breach of a commercial lease agreement. Appellee was granted leave to amend the complaint to add Appellant, individually, as a party-defendant. Appellant failed to file any responsive pleadings in the case and a default judgment was entered against him. Several months later, Appellant filed a Rule 60.02 motion to set aside the default judgment against him. We conclude that the trial court did not err in piercing the corporate veil to add Appellant as a defendant, or in the amount of damages awarded in the default judgment. Because Appellant failed to meet his burden of proof on the Rule 60.02 motion, we also conclude that the trial court did not err in denying the motion. Affirmed and remanded.

Upon remand by our supreme court, see State v. Cooper, 321 S.W.3d 501 (Tenn. 2010), Defendant Ralph Byrd Cooper, Jr., was resentenced by the trial court to serve sixty (60) years as a career offender for his conviction of aggravated rape, a Class A felony. Defendant appeals his sentence, asserting as his sole issue that the trial court erred by determining he was a “career offender.” After a thorough review, we affirm the judgment of the trial court.