APPELLATE COURT OPINIONS

The pro se defendant in an unlawful detainer action appeals an award of summary judgment in favor of the ultimate purchaser at foreclosure.  Because the purchaser has demonstrated undisputed facts that show the existence of the elements of its unlawful detainer action, and because the defendant has failed to show the existence of a genuine issue of material fact, we affirm the trial court’s grant of summary judgment. We further dismiss the defendant’s remaining issues.

The pro se defendant in an unlawful detainer action appeals an award of summary judgment in favor of the ultimate purchaser at foreclosure. Because the purchaser has demonstrated undisputed facts that show the existence of the elements of its unlawful detainer action, and because the defendant has failed to show the existence of a genuine issue of material fact, we affirm the trial court's grant of summary judgment. We further dismiss the defendant's remaining issues.

This appeal involves the denial of a claim for job tax credits by the Commissioner of Revenue. The taxpayer asserts that it qualifies for the credits pursuant to Tenn. Code Ann._ 67-4-2109 (c)(2)(A). The trial court determined that the taxpayer, as a successor to the entity that originally earned the credits, is barred by Tenn. Code Ann. _ 67-4-2109(e)(1) from utilizing the remaining credits for the years at issue. The taxpayer appeals. We affirm.

Father appeals the termination of his parental rights to his children. The trial court found three grounds upon which Father's parental rights could be terminated: lack of mental capacity to care for the children, abandonment by failure to visit, and substantial noncompliance with the permanency plan. The psychologist who testified at trial stated that Father was presently unable to properly care for his children due to the diagnosis of schizoaffective disorder. The psychologist also testified that it was possible Father could become a competent parent with the proper medication and treatment. The Department, however, provided no mental health services to assist Father. The statutory ground of mental incompetency as a basis for the termination of a parent's rights requires clear and convincing proof that the parent's mental condition is presently so impaired and is so likely to remain so that it is unlikely the parent will be able to care for the children in the near future. The Department proved that Father's mental condition was such that he could not presently care for the children; however, the Department failed to prove that Father's mental condition is likely to remain impaired to the degree that it is unlikely Father will be able to care for the children in the near future. We have also determined the Department was not excused from exerting reasonable efforts and yet it failed to establish that it exerted reasonable efforts to assist Father to accomplish the goal of reunification because it provided no services that dealt with the root of Father's problems, his mental illness. For the above reasons, we find the Department failed to prove any ground upon which Father's parental rights could be terminated. Accordingly, we reverse the termination of Father's parental rights.

Employee, whose employer provided services pursuant to a contract with hospital, sustained injuries from a fall while working on hospital's premises. Employee subsequently filed a negligence action against hospital. The trial court permitted employer to intervene in the suit. Hospital filed a motion for summary judgment, and after an evidentiary hearing, the trial court found that hospital was the principal contractor pursuant to Tenn. Code Ann. _ 50-6-113 and the exclusive remedy rule barred employee's negligence suit. The trial court granted summary judgment in favor of hospital, and employee appealed. We affirm.

This appeal arises from a post-divorce case in which the trial court found the appellant to be in criminal contempt. Procedural deficiencies by the trial court require reversal.

The defendant, James Paul Kinard, was convicted of three counts of rape of a child, a Class A felony, and one count of aggravated sexual battery, a Class B felony. He was sentenced to twenty-five years for each Class A felony conviction and twelve years for the Class B felony conviction. The sentences for the Class A felonies were ordered to be served consecutively, and the sentence for the Class B felony was to be served concurrently for an effective seventy-five-year sentence. On appeal, the defendant argues that: the evidence was insufficient to support his convictions; the trial court abused its discretion in finding that the victim's prior allegations of abuse were inadmissible; and the defendant was sentenced improperly. After careful review, we affirm the judgments from the trial court.

This interlocutory appeal considers an issue of uninsured motorist coverage following an automobile accident in which Plaintiff Randall D. Kiser was permanently injured. The plaintiff was working within the scope of his employment, driving for a towing company, when his truck was struck by Defendant Ian J. Wolfe’s vehicle. The defendant driver tendered his liability policy limits to the plaintiff and is not a party to this appeal. The employer towing company was insured by Defendant Consumers Insurance Company. In anticipation of arbitration for determination of damages and liability, the insurance company moved for partial summary judgment. The trial court denied summary judgment but granted the insurance company permission for an interlocutory appeal to determine two issues, on which we hold: (1) On a policy of vehicle insurance, the statutory requirement of Tenn. Code Ann. § 56-7-1201(a)(2) for a written rejection of uninsured/underinsured motorist benefits or written selection of uninsured/underinsured motorist benefits lower than liability limits is met when the insured signs an application containing a lower selection but neglects to initial a block provided for that purpose; and (2) the insurer bears the burden of proof to show that the insured signed an insurance contract application containing a stated limit of uninsured/underinsured motorist coverage, but once that burden has been met, the insured must raise any issue that the insurer obtained the insured’s signature unlawfully under Tenn. Code Ann. § 56-7-1201(a)(2). We vacate the trial court’s denial of the insurance company’s
Motion for Partial Summary Judgment and remand for reconsideration in light of this holding.

A Shelby County jury found the defendant guilty of carjacking, a Class B felony, and the trial court sentenced him to ten years, six months, in the Tennessee Department of Correction. On appeal, the defendant argues that (1) the evidence was insufficient to support his conviction, and (2) the trial court improperly weighed the enhancement and mitigating factors in sentencing. Following our review, we affirm the judgment of the trial court.

I concur in the majority’s analysis of the ecclesiastical doctrine and its holding that we do not have subject matter jurisdiction of Mr. Redwing’s claims of negligent hiring and retention, but that we do have subject matter jurisdiction to adjudicate his claim of negligent supervision. I must dissent, however, from the majority’s holding that, as a matter of law, Mr. Redwing’s claim of negligent supervision is barred by the statute of limitations. I believe that, in this case, dismissal based on the pleadings is premature and that Mr. Redwing is entitled to conduct discovery on facts pertinent to whether the statute of limitations is tolled.

The Defendant, Shawn Macklin, is charged with sale of less than one-half gram of cocaine, a Class C felony. He sought pretrial diversion, and the prosecutor denied his request. Upon consideration of the Defendant's petition for writ of certiorari, the trial court found that the prosecutor did not abuse his discretion in denying pretrial diversion. We granted this interlocutory appeal to consider whether the trial court properly denied the writ of certiorari by finding that the prosecutor did not abuse his discretion. We hold that the trial court erred in finding that the prosecutor acted within his discretion. We reverse the order of the trial court and remand the case with instructions that the prosecutor shall reconsider the Defendant's application for pretrial diversion in light of only the relevant factors.

The defendant, Raymond Stanley Hilliard, appeals from his Sullivan County Criminal Court guilty-pleaded convictions of facilitation of possession of .5 grams or more of cocaine, two counts of the facilitation of the sale of .5 grams or more of cocaine, two counts of the possession of drug paraphernalia, possession of a legend drug, three counts of the possession of a schedule IV drug, possession of a schedule II drug, and maintaining a dwelling where controlled substances are used and sold. He argues that the trial court erred by ordering that he serve the entirety of his agreed seven-year effective sentence in confinement. Discerning no error, we affirm the judgments of the trial court.

Plaintiff filed an action against the Catholic Bishop for The Diocese of Memphis, asserting the Diocese was liable for damages arising from the negligent hiring, retention and supervision of a priest, who Plaintiff alleged abused him when he was a child. The Diocese moved to dismiss for lack of subject matter jurisdiction and on the grounds that the statute of limitations prescribed by Tennessee Code Annotated § 28-3-104 had expired. The trial court denied the motions. It also denied the Diocese’s motion for permission to seek an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. We granted the Diocese’s motion for extraordinary appeal under Rule 10. We affirm the trial court’s judgment with respect to subject matter jurisdiction over Plaintiff’s claim of negligent supervision, but hold that Plaintiff’s claims of negligent hiring and negligent retention are barred by the ecclesiastical abstention doctrine. We reverse the trial court’s judgment with respect to the expiration of the statute of limitations.

Parents in a dependency and neglect proceeding appealed a juvenile court decision finding their six minor children dependent and neglected and awarding custody to DCS. The circuit court dismissed the parents' appeal as untimely; parents appeal the dismissal to this Court. Finding error, we reverse and remand.

The defendant, William "Bill" Bosley, Jr., was convicted by a Hardin County Circuit Court jury of aggravated sexual battery, a Class B felony, and sentenced to twelve years in the Department of Correction. On appeal, he argues that (1) the evidence was insufficient to support his conviction, (2) the trial court erred in denying his motion for new trial based on the State's withholding of evidence in violation of Brady v. Maryland, and (3) the trial court erred in failing to address the need for a change of venue. After review, we affirm the judgment of the trial court but remand for entry of a corrected judgment.

The petitioner, Jason Martindill, pled guilty to first degree murder on August 28, 2007, and received a life sentence. He filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel and that he did not enter his guilty plea voluntarily, knowingly, and intelligently. The post-conviction court denied relief. Following our review, we affirm the judgment of the post-conviction court.

The defendant was convicted of aggravated child abuse and felony murder in the perpetration of aggravated child abuse. The defendant appealed the felony murder conviction, and the Court of Criminal Appeals affirmed his conviction. We granted permission to appeal and address the issue of whether the trial court committed reversible error by failing to instruct the jury on the lesser-included offenses of felony murder, which include second degree murder, reckless homicide, and criminally negligent homicide. We conclude that the trial court erred by failing to instruct the jury as to these lesser-included offenses, and accordingly, we reverse the felony murder conviction and remand the case for a new trial on the felony murder count.

A Sullivan County jury convicted the Defendant, Gary Edward Dougherty, of two counts of attempt to commit first degree murder and two counts of aggravated assault. The trial court merged all counts and sentenced the Defendant, a Range I offender, to twenty-two years in the Tennessee Department of Correction. The Defendant appealed, contending: (1) the evidence is insufficient to sustain his convictions; and (2) the trial court erred when it enhanced his sentence. This Court held that a written order disposing of the motion for a new trial or a minute entry disposing of the motion and bearing the signature of the trial judge is required to confer upon this court jurisdiction of this appeal, and because neither was part of the record, dismissed the appeal for lack of jurisdiction. See State v. Dougherty, No. E2008-00131-CCA-R3-CD, 2002 WL 445070 (Knoxville, March 17, 2009). On August 31, 2009, our supreme court remanded this case to us, directing us to reconsider our opinion in light of State v. Byington, 284 S.W.3d 200, 223 (Tenn. 2009) (noting that "the procedure for correcting and modifying the record reflects the dual goals of avoiding technicality and expediting a just resolution of the case on its merits"). Based upon Byington, we conclude that we do have jurisdiction to review this case on the merits. After a thorough review of the record and relevant authorities, we affirm the trial court's judgment.

The petitioner, Marcus D. Lee, appeals the summary dismissal of his “motion for delayed appeal and post-conviction relief,” claiming that he was deprived of the opportunity to seek appellate review of his convictions and sentences and that he is entitled to due process tolling of the statue of limitations. The trial court summarily dismissed the motion because the statute of limitations had expired and the petitioner failed to present an appropriate basis for tolling the statute of limitations. The State has filed a motion to affirm the judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. After careful review, we grant the motion of the State to affirm the judgment from the post-conviction court pursuant to Rule 20.

The State appeals the grant of Petitioner James Alvin Castleman’s petition for writ of error coram nobis, arguing, inter alia, that the trial court erred in finding that the statute of limitations should be tolled for due process reasons. We agree with the State and, accordingly, reverse the judgment of the trial court and reinstate the judgment of conviction.

The defendant, Raymond Stanley Hilliard, appeals from his Sullivan County Criminal Court guilty-pleaded convictions of facilitation of possession of .5 grams or more of cocaine, two counts of the facilitation of the sale of .5 grams or more of cocaine, two counts of the possession of drug paraphernalia, possession of a legend drug, three counts of the possession of a schedule IV drug, possession of a schedule II drug, and maintaining a dwelling where controlled substances are used and sold. He argues that the trial court erred by ordering that he serve the entirety of his agreed seven-year effective sentence in confinement. Discerning no error, we affirm the judgments of the trial court.

In May 1997, Paul Leonard ("the Homeowner") discovered termites in his home. On June 11, 1997, he contracted with Leo's Exterminating Services, Inc., to treat his home. Leo's performed the initial treatment. The contract provided for annual renewals at a reduced rate. The Homeowner renewed twice. The last renewal was on June 11, 1999, which renewal qualified the Homeowner to receive, free of additional charge, retreatment for a "live infestation" until June 11, 2000. Unfortunately, the initial treatment did not eliminate the termites. The Homeowner reported a recurrence of termites several times between 1997 and 1999. Leo's made additional treatments. In 1998, Leo's assisted the homeowner with repairs to a sagging hallway over the area of infestation. In 1999, the Homeowner switched to another exterminator who installed a "bait" system to control the termites. On July 24, 2000, the Homeowner filed this action against Leo's in which he alleged that his home had been damaged as a result of deficient treatment by Leo's. He alleged a breach of contract and violation of the Tennessee Consumer Protection Act ("the TCPA"), Tenn. Code Ann. _ 47-18-101 et seq. (2001). In the bench trial that ensued, Leo's challenged almost every aspect of the Homeowner's case including the causal connection between the deficiencies and the damage. Leo's also raised the defense that the contract limited the Homeowner's remedy to retreatment only, and that the statute of limitations had expired on the TCPA claim. In its opinion and order, entered as the final judgment, the trial court found that Leo's had failed to control the termites and that its failure amounted to a breach of the contract; that the Homeowner sustained damages of $39,910.87 as a result of the breach; and that Leo's was guilty of willful deception in violation of the TCPA, justifying trebled damages of $119,732.61. The trial court also awarded the Homeowner his resonable attorney's fees of $30,000. Leo's appeals. We affirm that part of the judgment awarding damages of $39,910.87 for breach of the contract. We reverse that part of the judgment awarding treble damages and attorney's fees under the TCPA because we find that the TCPA claim is barred by the statute of limitations.

In this divorce case, Kimberly Ruth McDaniel ("Mother") appeals raising numerous issues, including a challenge to the admission of a tape recorded conversation between Mother and one of her children from a previous marriage. Neither party to this telephone conversation knew that it was being recorded. Admission of the tape recorded conversation damaged Mother's credibility because, prior to its admission, Mother expressly denied making numerous comments contained in this recording. In addition, Mother's father, Homer Jerrolds ("Jerrolds") appeals the Trial Court's finding that he was in criminal contempt for threatening the guardian ad litem outside the courtroom after the Trial Court announced its judgment from the bench. Jerrolds claims he did not receive proper notice pursuant to Tenn. R. Crim. P. 42. We affirm the Trial Court's award of a divorce to Father based on Mother's admitted affair. However, we conclude that the tape recorded conversation should not have been admitted and that its admission was not harmless error. We further conclude that Jerrolds did not receive proper notice pursuant to Tenn. R. Crim. P. 42. The judgment of the Trial Court is affirmed in part, vacated in part, and remanded for further proceedings consistent with this Opinion.

The defendant, Timothy Allen Sumner, appeals from the order of the Criminal Court of Sullivan County revoking his probation. On appeal, he claims that the evidence supported neither the trial court's revocation of probation nor the resulting order that he serve his sentence in confinement. Upon our review, we affirm the order of the trial court.

A Shelby County jury convicted the defendant, Andor Williams, of one count of possession with intent to sell marijuana and one count of possession with intent to deliver marijuana. The trial court merged the convictions and sentenced the defendant, as a Range II multiple offender, to serve a four-year sentence in the workhouse. On appeal, the defendant argues that the evidence at trial was insufficient to sustain his conviction and that the trial court erred when sentencing him. After reviewing the record, the parties’ briefs, and applicable law, we affirm the judgment of the Shelby County Criminal Court.