APPELLATE COURT OPINIONS

At the heart of this appeal is a narrow procedural question: whether the 2021 amendment to Tennessee Code Annotated section 39-13-203 permits the Defendant, Byron Black, to move for a hearing on whether he has an intellectual disability and is therefore ineligible for the death penalty. The trial court dismissed the motion after determining that the Defendant was procedurally barred from bringing the issue. On appeal, we hold that because the issue of the Defendant’s intellectual disability has been previously adjudicated, he may not file a motion pursuant to Tennessee Code Annotated section 39-13-203(g)(1). We also hold that the General Assembly’s decision not to entitle the Defendant to a second hearing does not subject him to cruel and unusual punishment, nor does it deny him due process of law or the equal protection of the law. Accordingly, we respectfully affirm the judgment of the trial court.

A pro se petitioner seeks accelerated interlocutory review of an order denying a motion for
recusal. Because the filing does not comply with Tennessee Supreme Court Rule 10B, we
dismiss the appeal.

An injured truck driver brought suit against his alleged employer seeking to recover worker’s compensation benefits. The alleged employer did not appear at trial, and the trial court entered judgment in favor of the plaintiff. Eight months later, the alleged employer moved the trial court to set aside the judgment pursuant to Tennessee Rule of Civil Procedure 60.02, on the grounds that it did not receive notice of the trial date. The trial court denied the motion, finding that the alleged employer failed to notify the court and the plaintiff of its change of address and that plaintiff would be severely prejudiced if the court set aside the judgment. Discerning no error, we affirm.

A Madison County jury convicted the Defendant, Christopher Oberton Curry, Jr., of being a convicted felon in possession of a firearm, evading arrest while operating a motor vehicle, reckless driving, driving while unlicensed, violation of the registration law, and disobeying a stop sign.  The trial court sentenced the Defendant to an effective sentence of ten years.  On appeal, the Defendant contends that the evidence is insufficient to support his conviction for felony possession of a weapon and that an item of evidence was erroneously admitted.  He further contends that the jury instructions were inaccurate and incomplete.  After review, we affirm the trial court’s judgments.

This appeal involves the denial of a Tenn. R. Civ. P. 60.02 motion. In the original action,
the trial court granted summary judgment to the City of Mount Carmel, Tennessee (“the
City”), finding that it had negated an essential element of the plaintiff’s claim against it.
In the summary judgment pleadings, the City presented expert evidence concluding that
the retaining wall in question was failing due to lateral earth pressure and not a problem
with the foundation. In that report, the expert stated that the backfill of the retaining wall
was red clay but that regardless of whether the backfill consisted of red clay or crushed
stone, the wall would fail. The plaintiff presented no evidence to rebut this opinion. The
plaintiff filed a Rule 60.02 motion seeking to be relieved of the grant of summary judgment
after discovering that the backfill of the wall was crushed stone and not red clay as stated
in the expert’s report.1 The trial court denied the Rule 60.02 motion upon its determination
that even with a backfill of crushed stone, summary judgment still would have been
granted. Discerning no error, we affirm.

The Petitioner, Floyd Hall, III, appeals the Haywood County Circuit Court’s denial of his
petition for post-conviction relief from his conviction for second degree murder. On
appeal, the Petitioner argues that the post-conviction court erred by denying his claim that
he received the ineffective assistance of counsel by trial counsel’s failure to file a motion
to suppress a statement the Petitioner gave to the police. We affirm the post-conviction
court’s judgment.

After a fire at a rental home, suit was brought against the tenant.  During discovery, the tenant sought admissions related to the landlords’ insurance coverage and as to whether the suit was actually a subrogation action by the insurer brought in the names of the insured.  As a result of resistance to disclosure, the tenant moved to compel.  The trial court granted the motion.  Following admissions indicating that this suit is a subrogation action by the insurer brought in the names of the insured, the tenant moved for summary judgment asserting that under the Sutton Rule she is an implied co-insured under the landlords’ insurance policy.  Opposition to summary judgment was advanced based upon the purported inapplicability of the Sutton Rule and the purported applicability of the collateral source rule.  The trial court granted summary judgment to the tenant.  This appeal followed.  We affirm the trial court’s grant of the motion to compel and summary judgment in favor of the tenant.

I respectfully disagree with the majority's holding that the doctrine of prior suit pending is inapplicable here. The majority's discussion of prior suit pending is contained in footnote one of its opinion. Therein, the majority notes that the Rogers Group commenced an action (the "Cheatham County case") in Cheatham County against CKF Excavating and TBI. However, the majority omits the fact that TBI filed a cross-claim against CKF in the Cheatham County case. For the reasons discussed below, it is my opinion that TBI's cross-claim triggered the doctrine of prior suit pending and vested jurisdiction in the Cheatham County court. As such, the Davidson County court did not have authority to conduct a review of the arbitrator's decision.

An arbitrator awarded a subcontractor damages against a general contractor. In chancery court, the general contractor moved to vacate the award on the basis that the arbitrator exceeded his powers. The chancery court denied the motion to vacate and, at the request of the subcontractor, confirmed the arbitration award. We affirm.

The Appellant, Antonio Tywan James, appeals as of right from his convictions of firstdegree
premeditated murder and tampering with evidence, for which he received an
effective sentence of life imprisonment. The Appellant argues the trial court erred in
denying funds to obtain expert services and in excluding the Appellant’s conversation with
his aunt, Annie Merriweather, as inadmissible hearsay. Based upon the combination of
these two alleged trial errors, the Appellant contends reversal under the cumulative error
doctrine is required. The Appellant additionally argues the trial court erred in not requiring
the State to elect which item it was using in its prosecution of tampering with evidence.
Upon our review, we affirm.

Citizens of Tennessee may apply to the Tennessee Department of Revenue (the “Department”) for license plates featuring unique, personalized messages. Tennessee Code Annotated section 55-4-210(d)(2) provides that “[t]he commissioner shall refuse to issue any combination of letters, numbers or positions that may carry connotations offensive to good taste and decency or that are misleading.” After her personalized plate featuring the message “69PWNDU” was revoked by the Department, Leah Gilliam (“Plaintiff”) filed suit against David Gerregano (the “Commissioner”), commissioner of the Department, as well as the then-Attorney General and Reporter. Plaintiff alleged various constitutional violations including violations of her First Amendment right to Free Speech. The Department and the State of Tennessee (together, the “State”) responded, asserting, inter alia, that the First Amendment does not apply to personalized plate configurations because they are government speech. The lower court, a special three judge panel sitting in Davidson County, agreed with the State. Plaintiff appeals, and we reverse, holding that the personalized alphanumeric configurations on vanity license plates are private, not government, speech. We affirm, however, the panel’s decision not to assess discovery sanctions against the State. Plaintiff’s other constitutional claims are pretermitted and must be evaluated on remand because the panel did not consider any issues other than government speech. This case is remanded for proceedings consistent with this opinion.

Petitioner, Jose Gonzalez Bonilla, appeals as of right from the Sumner County Criminal Court's denial of his petition for post-conviction relief, wherein he challenged his convictions for rape of a child and aggravated sexual battery. On appeal, Petitioner asserts that he received ineffective assistance of trial counsel because counsel (1) did not inform Petitioner during plea negotiations that he would be subject to lifetime community supervision and registration on the sex offender registry if he was convicted at trial; (2) failed to object to the admission of the victim's forensic interview recording during a pretrial severance hearing; and (3) failed to object to the racial composition of the jury venire. Petitioner also argues that the cumulative effect of these errors requires relief. Following our review, we affirm.

Plaintiffs brought an action against the Davidson County Election Commission, asserting that the Election Commission violated the Tennessee Open Meetings Act and Metro Code 2.68.020. The chancery court granted judgment on the pleadings to the Election Commission, concluding no violation occurred and that even if there had been a violation it was cured by a subsequent public meeting. Plaintiffs appealed. Defending the chancery court’s judgment, the Election Commission argues that the trial court’s ruling was correct on the merits and that the Plaintiffs are also not entitled to relief because they lack standing and because the matter has become moot. Because the Election Commission presented a well-developed and well-supported argument in favor of mootness and because the Plaintiffs have failed to respond to that argument, we conclude that opposition to the Election Commission’s mootness argument has been waived. Accordingly, we dismiss this appeal.

The plaintiff filed this personal injury action following an automobile accident in which
the other driver died. The plaintiff originally named the defendant as “John Doe, as
Administrator of the Estate of [the deceased driver].” The trial court dismissed the action
on the basis that the plaintiff failed to timely commence the action against the personal
representative of the estate within the applicable statute of limitations. We affirm and
remand.

A mother appeals the trial court’s decision to terminate her parental rights based on the
grounds of (1) abandonment by failure to support, (2) persistence of conditions, and (3)
failure to manifest an ability and willingness to personally assume custody or financial
responsibility of the children. She further challenges the trial court’s finding by clear and
convincing evidence that termination of her parental rights was in the best interest of the
children. We affirm the trial court in all respects.

The Defendant, Quincy D. Moutry, appeals the dismissal of his Tennessee Rule of Criminal
Procedure 36.1 motion to correct an illegal sentence for his possession of a firearm with
the intent to go armed during the commission of a dangerous felony conviction.
Specifically, the Defendant argues that the trial court’s entry of corrected judgment forms
increasing the mandatory minimum service term on his sentence constituted an ex parte
sentencing in violation of Tennessee Rule of Criminal Procedure 43(a)(3). After review,
we reverse the judgment of the trial court and remand the case for entry of a corrected
judgment form.

A Shelby County jury convicted the defendant, Ovitta Vaughn, of driving with a blood
alcohol concentration of .08 percent or more (DUI per se) and driving under the influence
of an intoxicant (DUI) for which she received a sentence of 11 months and 29 days,
suspended to supervised probation after serving 10 days in confinement. On appeal, the
defendant contends the evidence presented at trial was insufficient to support her
convictions. The defendant also argues the trial court erred in failing to allow the
introduction of Deputy Goodman’s prior adjudication for untruthfulness, in failing to issue
a curative instruction following the prosecution’s inappropriate closing argument, in failing
to allow the inclusion of a special jury instruction on the operability of the defendant’s
vehicle, and in failing to require the State to make an election as to whether the defendant
was driving her vehicle or merely had physical control. After reviewing the record and
considering the applicable law, we affirm the judgments of the trial court. However, we
remand the case for a corrected judgment form in count two.

Defendant, William Vess Binkley, stands convicted by a Dickson County jury of one count of rape of a child, a Class A felony, and was sentenced to forty years in the Tennessee Department of Correction. On appeal, he argues: (1) the trial court erred by not declaring a mistrial after the State introduced evidence during trial that had not been disclosed to Defendant during discovery; (2) the trial court erred by admitting the victim's forensic interview as substantive evidence; (3) the State committed prosecutorial misconduct during its closing arguments; and (4) the trial court imposed an excessive sentence. After review, we affirm the judgment of the trial court.

Plaintiff sued several defendants over social media posts and the unauthorized use of his and his child’s name, image, and likeness. Plaintiff requested both damages and injunctive relief. In response, defendants petitioned to dismiss under the Tennessee Public Participation Act. Plaintiff then filed notice of a voluntary nonsuit, which defendants opposed. The trial court dismissed the case without prejudice. Because we conclude that nothing in Tennessee Rule of Civil Procedure 41 precludes the voluntary dismissal, we affirm.

A Rutherford County jury found Defendant, Sebakire Crode, guilty of driving under the influence (DUI), third offense. The trial court sentenced him to eleven months, twenty-nine days, with Defendant to serve 150 days in jail and the balance on probation. On appeal, Defendant argues the evidence was insufficient to convict him of driving under the influence and that he received an excessive sentence. After review, we affirm the judgment of the trial court.

Defendant, Hopie Conley, pled guilty to two counts of aggravated assault, one count of
reckless aggravated assault, and one count of reckless endangerment, with an agreed
sentence of six years, split confinement, with Defendant serving 180 days incarcerated and
the remainder of her sentence on supervised probation. Following a restitution hearing,
the trial court ordered Defendant pay $83,366.68 in total restitution through monthly
payments of $500. On appeal, Defendant contends the trial court erred in determining the
restitution amount because the total amount awarded could not be satisfied prior to the end
of her sentence, Defendant lacked the financial ability to pay the ordered monthly
restitution amount, and the State failed to prove the victim’s pecuniary loss. The State
concedes that the trial court erred in ordering a monthly restitution payment schedule that
would not satisfy the total restitution award prior to the end of Defendant’s sentence.
However, it contends the trial court properly determined the monthly restitution amount
and submits that the matter does not need to be remanded. After reviewing the record, the
briefs and oral arguments of the parties, and considering the applicable law, we reverse the
judgments of the trial court in part and remand for a new restitution hearing consistent with
this opinion.

Plaintiff sued for personal injuries under the Tennessee Governmental Tort Liability Act, alleging she had experienced a fall due to an unsecure water meter valve cover located in her sister’s yard. Following a bench trial, the trial court entered an order finding that Plaintiff had not met her burden of proof. Although Plaintiff appeals the dismissal of her case, we affirm the trial court’s judgment.

A landlord leased property to company A. When company A breached the lease, the landlord filed suit against the company to recover monetary damages. A default judgment was entered against company A and, when company A failed to make any payments on that judgment, the landlord filed suit against company B and company C. The landlord alleged that the corporate veil should be pierced to hold company B and company C liable for company A’s debt because they were the alter egos of company A. After a default judgment was entered against company B and company C, they motioned to have the judgment set aside because the landlord’s complaint failed to allege sufficient facts to state a claim for piercing the corporate veil. The trial court denied the motion to set aside, and the two companies appealed. Discerning that the complaint does not state sufficient factual allegations to articulate a claim for piercing the corporate veil, we reverse and remand.

This appeal stems from a lengthy and acrimonious divorce, wherein the trial court, inter
alia, divided the parties’ marital assets and debts, established a permanent parenting plan
and child support obligations, and declined to award alimony to the husband. Entry of
the trial court’s divorce decree did not occur for approximately twenty-two months
following the trial, however, which the husband argues on appeal constituted a due
process violation. Husband also appeals the trial court’s valuation of certain assets, its
division of the marital estate, its imputation of income to him for child support purposes,
and its failure to join his mother as a necessary and indispensable party. Following our
review, we affirm the trial court’s classification of the parties’ marital residence as
marital property. We also affirm the trial court’s dismissal of the husband’s contempt
petition, its denial of the husband’s motion to join his mother as a party, and its
imputation of income to the husband due to his voluntary unemployment. We vacate the
trial court’s valuation of the parties’ retirement accounts and its division of marital
property, and we remand those issues to the trial court for further proceedings consistent
with this opinion.

The defendant, Christopher David McIntosh, appeals his effective 10-year sentence
imposed by the Union County Criminal Court as a result of his guilty-pleaded convictions
of six counts of sexual battery by an authority figure and two counts of theft of property
valued at $1,000 or less. On appeal, the defendant contends that the trial court erred in
imposing partially consecutive sentences and in ordering him to serve nine months of his
sentence in confinement. Discerning no error, we affirm.