APPELLATE COURT OPINIONS

Mother and Stepfather filed a petition to terminate Father’s rights to his fourteen year old son to allow Stepfather to adopt the child. Mother and Stepfather asserted Father abandoned the child because his visits constitute nothing more than “token visitation.” Father lives in Massachusetts and usually visits the child once a year. Father’s most recent visit was one month before Mother and Stepfather filed their petition. The trial court denied the petition and we affirm the trial court’s judgment. Father presented evidence that he has tried to communicate and visit more with the child but that Mother has thwarted his efforts. Based on the particular facts of this case we conclude Father has not abandoned the child by failing to visit, or engaging in “token visitation” as set forth in Tenn. Code Ann. § 36-1-102, in the four months preceding the filing of the petition for termination.
 

A teacher at Overton High School, who was also a sports coach, challenged the nonrenewal of his coaching contract, claiming the nonrenewal was not in accordance with Tenn. Code Ann. § 49-5-510. The trial court found the contract was not renewed because the teacher refused to follow the guidelines for handling money collected at the sporting events and that the former coach had not met his burden of proof under the statute. We conclude the evidence supports the trial court’s ruling and affirm the judgment.
 

In this workers’ compensation action, the employee alleged that she injured her neck in a forklift accident. Her employer did not deny that the event occurred but contended that her symptoms were caused by preexisting degenerative changes. The employee eventually had surgery and sought workers’ compensation benefits. In addition to causation, the employer asserted that the claim was barred by the statute of limitations. The trial court found that the employee had sustained a compensable injury and made a finding concerning the extent of her permanent disability. However, it held the record open to permit the taking of additional proof concerning the statute of limitations. After considering that evidence, the court found that the claim was timely and awarded benefits pursuant to its original ruling. The employer has appealed, challenging the trial court’s rulings on the statute of limitations and causation. Pursuant to Tennessee Supreme Court Rule 51, 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. We affirm the judgment of the trial court.

The employee alleged that he sustained an on-the-job injury in June 2004. The settlement of that claim was approved in December 2004. The employee alleges in this case that he suffered additional compensable injuries in June 2005 and July 2006. The employer contends that the new allegations pertain not to new injuries but rather a continuation of symptoms from the 2004 injury. The employee also filed a third-party tort action arising from the 2004 injury. The employer intervened in the tort case to protect its medical subrogation lien. The parties settled all claims at a joint mediation that resulted in the tort defendant paying a sum of money, the employee dismissing with prejudice this workers’ compensation case, and the employer reducing its medical subrogation lien. Accordingly, the workers’ compensation case was dismissed with prejudice. More than a year later, the employee moved to vacate the dismissal, contending that he had not authorized it, and the employer moved to strike that motion. While these motions were pending, the employee sought to depose the mediator, the third party’s attorney, and the employer’s attorney. After an evidentiary hearing, the trial court found that the employee had agreed to the dismissal, and it granted the employer’s motion to strike. The trial court also quashed the deposition subpoenas issued at the employee’s request. The employee has appealed from these orders, and 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.

Plaintiffs appeal the dismissal of their action for breach of contract, breach of express warranty, breach of implied warranty, violation of the Tennessee Consumer Protection Act, and fraudulent misrepresentation arising out of the purchase of a recreational vehicle from Defendant, a business located and incorporated in the State of Florida. The trial court dismissed the action on the finding that the court lacked personal jurisdiction over Defendant because the corporation had not purposely availed itself of doing business in Tennessee and did not have sufficient contacts with Tennessee. The trial court further found that the choice of venue clause in the purchase contract between the parties was enforceable and, thus, the proper venue for the action was Florida. Plaintiffs appealed arguing that the court may exercise personal jurisdiction over Defendant. We affirm the finding that the trial court lacks personal jurisdiction over Defendant as Plaintiffs did not establish the prima facie case of jurisdiction.

This is a surveyor negligence case. Appellee developer filed suit against Appellant surveyor, claiming two distinct acts of negligence on surveyor’s part. The first claim of negligence involved an error allegedly made by surveyor in a 1993 survey. The second claim of negligence involved Appellee’s claim that, upon discovering the 1993 survey error in a subsequent survey that it performed in 2002, surveyor had a duty to inform Appellee of the error. We conclude that any negligence arising from the 1993 survey claim is barred by the statute of repose, Tennessee Code Annotated Section 28-3-114(a). Despite Appellant’s numerous motions to exclude this cause of action as time barred, the trial court ultimately allowed the 1993 negligent survey claim to be tried to the jury. The jury was then instructed as to both claims of negligence and the jury returned a verdict, wherein it found Appellant surveyor to be forty percent at fault and awarded damages in favor of Appellee. Appellant surveyor appeals. Because the jury was improperly instructed and was allowed to consider the time-barred claim of negligence, we conclude that the jury was mislead by the instructions. Accordingly, we vacate the judgment on the jury verdict and remand for a new trial. Vacated and remanded.

In this case, we address the bond requirements for an appeal from General Sessions Court to Circuit Court. The plaintiff property owners were leasing commercial space to the defendant. The plaintiffs filed a forcible entry and detainer action against the defendant in General Sessions Court. During the pendency of the proceedings, the plaintiffs allegedly locked the defendant out of the property prematurely, causing property damage to the defendant. The defendant then filed a cross-claim in the original General Sessions Court lawsuit for unlawful ouster. The defendant also filed a separate action in the General Sessions Court based on the same allegations of unlawful ouster. The General Sessions Court consolidated the two cases for trial. Ultimately, the General Sessions Court held in favor of the plaintiffs on their forcible entry and detainer claim and awarded attorney fees under the lease. As to the defendant’s cross-claim and separate lawsuit based on unlawful ouster, the General Sessions Court found in favor of the defendant and awarded damages. The plaintiffs sought a de novo appeal to Circuit Court of the rulings in favor of the defendant on his cross-claim and separate claim; the defendant appealed the Circuit Court’s ruling in favor of the plaintiffs. In doing so, all of the appellants — the plaintiffs and the defendant — filed notices of appeal and paid $211.50 to the General Sessions Court clerk, pursuant to T.C.A. § 8-21-401(b)(1)(C)(i). None of the appellants filed any further bond at that time. The defendant filed a motion to dismiss the plaintiffs’ appeals, arguing that the Circuit Court lacked subject-matter jurisdiction because they had not complied with the appeal-bond requirement in T.C.A. § 27-5-103. The Circuit Court granted the motion and dismissed the plaintiffs’ appeals. The Circuit Court also dismissed the defendant’s appeal sua sponte based on the same reasoning. The plaintiffs now appeal to this Court. We reverse the Circuit Court’s dismissal of the plaintiffs’ appeals in light of our recent decision Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013), and remand for further proceedings.

In this case, the majority concludes that the plaintiffs’ payment of $211.50 to the General Sessions Court clerk satisfied the requirements of Tennessee Code Annotated section 27-5-103, and therefore, that the Circuit Court erred in dismissing their appeal for lack of subject matter jurisdiction. In reaching this conclusion, the majority relies upon the recent case of Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013). Because I believe Bernatsky is based upon a flawed premise, I respectfully dissent.

A beneficiary of the decedent’s estate contends the Executor should be held personally liable for paying two debts of the decedent for which no claim was filed pursuant to Tennessee Code Annotated § 30-2-307. The Executor insists that Tennessee Code Annotated § 30-2318(b) afforded him the discretion to pay debts of the decedent because the estate was solvent and the time in which the claims could have been filed had not expired. The probate court ruled in favor of the Executor, finding the payment of the debts was authorized pursuant to Tennessee Code Annotated § 30-2-318(b). We affirm.
 

Defendant was convicted of possession of hydrocodone with intent to sell, a felony, possession of a firearm during the commission of a dangerous felony, a Class D felony, and possession of marijuana, a Class A misdemeanor. He received a total effective sentence of eight years. On appeal, the defendant challenges the sufficiency of the convicting evidence, the trial court’s denial of his motion to suppress, and numerous evidentiary rulings. The defendant also claims that the trial court erred by failing to find mitigating factors and by sentencing him for a Class C felony with respect to his conviction for possession of hydrocodone with intent to sell or distribute, when the crime at issue was in fact a Class D felony. After review, we conclude that the trial court committed no reversible error with respect to the defendant’s convictions. However, the trial court erroneously sentenced the defendant with respect to at least one of his offenses. Consequently, we remand the case to the trial court for re-sentencing.

The defendant, Cody Garris, appeals from his Giles County Circuit Court guilty-pleaded conviction of child abuse, claiming that the trial court erred by imposing a fully-incarcerative sentence. Because the record supports the sentence imposed by the trial court, we affirm.

The trial court granted the parties a divorce, named the father as the primary residential parent of their one and a half year old child, and permitted him to return with the child to North Carolina, where both parties originally came from and where their families still resided. The mother was granted three days of supervised visitation with the child each month in North Carolina. She argues on appeal that the trial court’s decision was flawed because the court failed to analyze the best interest of the child in accordance with the appropriate statutory factors. She also argues that by allowing Father to take the child to North Carolina and limiting her visitation so severely, the court deprived her of her right to maintain the parent-child relationship, and that its actions were inconsistent with case law stating that “the least restrictive visitation limits are favored in order to encourage the parent-child relationship.” We affirm the trialcourt’s designation of the father as the primary residential parent, and its finding that it was in the child’s best interest that the father be permitted to relocate with the child. We also affirm the parenting plan.

Defendant, Christopher Bomar Wenzler, was indicted by the Fayette County Grand Jury for driving under the influence of an intoxicant (DUI) in Count 1, and for DUI, third offense, in Count 2. Defendant pled guilty to DUI as charged in Count 1, and waived a jury trial and submitted to a bench trial as to the issues in Count 2. Count 2 alleged two prior DUI convictions: (i) in the Justice Court of DeSoto County, Mississippi on June 7, 2006, and (ii) in the General Sessions Court of Shelby County on February 9, 2006. Defendant argued in the trial court that the Mississippi conviction could not be lawfully used to enhance his current offense to DUI, third offense, but the trial court found Defendant guilty as charged. The trial court merged the conviction in Count 1 with the conviction in Count 2, and sentenced Defendant to serve 11 months and 29 days, with all but 120 days suspended as a third offense DUI offender. Defendant appeals, arguing that he should have been sentenced for DUI, second offense, because the judgment form used to prove Defendant’s prior conviction in DeSoto County, Mississippi is silent as to whether he was represented by counsel or waived his right to counsel. After review of the record, we affirm the judgment of the trial court.

The appellant, Fredrick John Deen Clark, pled guilty in the Grundy County Circuit Court to vehicular assault, a Class D felony. Pursuant to the plea agreement, the appellant received a six-year sentence with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered that the appellant serve his sentence in confinement. On appeal, the appellant contends that the trial court erred by denying his request for alternative sentencing. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.

This is an appeal from a judgment entered on January 2, 2013. Because the appellant 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.

The Defendant-Appellant, Lamar Kashief Allen, entered guilty pleas to possession of cocaine with intent to sell an amount less than one-half gram and tampering with evidence, Class C felonies, and received an effective six-year sentence with the manner of service to be determined by the court. After a sentencing hearing, the court ordered confinement in the Tennessee Department of Correction. The sole issue on appeal is whether the trial court erred in denying Allen’s request for alternative sentencing. Finding no error, we affirm the judgments of the trial court.

Mother’s and Father’s parental rights to four children were terminated based on findings that they committed severe child abuse upon a sibling and that the best interests of the remaining four children (the parents’ rights to the two severely abused children having been previously surrendered) required termination of their rights. Parents appealed, challenging only the best interest finding. We affirm.

The plaintiff filed a medical malpractice action against numerous healthcare providers. The defendants moved to dismiss the complaint based on the plaintiff’s failure to comply with Tennessee Code Annotated sections 29-26-121 and -122. The trial court granted the motions and dismissed the action with prejudice. The plaintiff appeals. We affirm.

The Petitioner, Charlie M. Gardner, appeals from the summary dismissal of his petition for coram nobis relief. In 1999, the Petitioner was convicted of first degree murder and two counts of reckless aggravated assault for which he received an effective sentence of life without parole plus eight years. Eleven years later, he filed a petition for writ of error coram nobis alleging due process requires tolling the statute of limitations based upon an undisclosed "third party confession" and an "inconclusive T.B.I. report on ballistic evidence." Upon review, we affirm dismissal of the petition.

The Petitioner, Edgar Bailey, Jr., appeals the Lauderdale County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. On appeal, the Petitioner claims entitlement to habeas corpus relief because of alleged defects in the felony murder count of his indictment and because the trial court dismissed the felony murder count after remand by this court on direct appeal. We conclude that there is no error in the judgment of the habeas corpus court and affirm.

This is the second appeal as of right by Defendant, Robert Edward Boling, from his conviction in the Sullivan County Criminal Court for aggravated robbery. In his first appeal as of right, this Court addressed only the issue of the sufficiency of the evidence to sustain the conviction, affirmed the conviction on that issue, and refused to address all other issues because they were waived by Defendant’s attorney’s failure to timely file a motion for new trial. See State v. Robert Edward Boling, No. E2008-00351-CCA-R3-CD, 2009 WL 482763 (Tenn. Crim. App. Feb. 26, 2009) no perm. app. filed. Subsequently, Defendant timely filed a petition for post-conviction relief. The post-conviction court granted Defendant a delayed appeal pursuant to Tennessee Code Annotated section 40-30-113(a)(1)(“When the trial judge conducting a hearing pursuant to [the Post-conviction Procedure Act] finds that the petitioner was denied the right to an appeal from the original conviction in violation of the Constitution of the United States or the Constitution of Tennessee . . . the judge can . . . grant a delayed appeal;”). In accordance with our supreme court’s opinion in Wallace v. State, 121 S.W.3d 652 (Tenn. 2003), the untimely motion for new trial being a nullity, Defendant was granted the ability to file a timely motion for new trial. He did, and it was overruled. Defendant now appeals his conviction for the second time and appropriately raises two issues for our review in this appeal: (1) the trial court erred by denying his motion for new counsel; and (2) the trial court erred by denying his objection to certain photographs and testimony, which Defendant asserts were “fruit of the poisonous tree” of his coerced confession. Defendant’s third issue, the post-conviction claim of ineffective assistance of counsel at the trial, is premature. After a review of Defendant’s two properly presented issues, we again affirm the judgment of conviction.

Defendant-Appellant, Victor Trezevant, appeals as of right his conviction for first degree murder committed during the perpetration of an attempted aggravated robbery, for which he received a life sentence. In this appeal, the sole issue presented for our review is whether the evidence is sufficient to support his conviction of felony murder. Specifically, Trezevant contends that the State failed to corroborate the testimony of his accomplices. After reviewing the record and the applicable authorities, we affirm the judgment of the trial court.

The appellant, Alexander Fuller, appeals the Davidson County Criminal Court’s revoking his probation for theft of property valued one thousand dollars or more but less than ten thousand dollars and ordering that he serve his eight-year sentence in confinement. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

The plaintiff filed a medical malpractice action against numerous healthcare providers. The defendants moved to dismiss the complaint based on the plaintiff’s failure to comply with Tennessee Code Annotated sections 29-26-121 and -122. The trial court granted the motions and dismissed the action with prejudice. The plaintiff appeals. We affirm.

A crane struck a large metal container, pushing a door on the container into an employee and causing an injury to the employee’s back. The employee filed a claim for workers’ compensation benefits. The trial court entered a judgment finding that the employee’s inability to work and depression were caused by a preexisting condition that was unrelated to his work-related injury and that the employee sustained a 21% permanent partial disability for the injuries to his lumbar spine. The employee has appealed, contending that the trial court erred by finding that his pre-existing condition was not aggravated by his work injury. The employer contends that the trial court erred by finding that the employee is permanently disabled as a result of his injury.