APPELLATE COURT OPINIONS

The defendant, Darren Brown, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder and sentenced to life imprisonment. On appeal, he argues that (1) the evidence was insufficient to sustain his conviction; (2) the trial court erred in denying his motion for mistrial in light of the prosecutor’s improper closing argument; and (3) the State’s comment on the defendant’s post-arrest silence constitutes plain error. Following our review, we affirm the judgment of the trial court.

The petitioner, Tyrice L. Sawyers, filed in the Davidson County Criminal Court two petitions for post-conviction relief. The post-conviction court dismissed both petitions as untimely, and the petitioner appeals. Upon review, we affirm the judgments of the post-conviction court.

The Defendant, Ramone Pierre Gholston, was convicted by a Montgomery County jury of facilitation of first degree murder, a Class A felony, and facilitation of especially aggravated robbery, a Class B felony. The trial court sentenced the Defendant as a Range I, standard offender to twenty-one years for the facilitation of first degree murder and to ten years for the facilitation of especially aggravated robbery, to be served concurrently. On appeal, the Defendant contends that his sentence for the facilitation of first degree murder is excessive. Because no written waiver of ex post factor rights signed by the Defendant is in the record, the Defendant was improperly sentenced under the 2005 amendments to the Sentencing Act of 1989. We reverse the judgment of the trial court, and we remand the case for resentencing.

The petitioner, Alvis Leroy Sadler, appeals from the denial of his petition for post-conviction relief. In this appeal, he asserts that he was denied the effective assistance of counsel and that he did not knowingly and voluntarily plead guilty. Discerning no error, we affirm the judgment of the post-conviction court.

The petitioner, Christopher N. Orlando, appeals from the summary dismissal of his petition for post-conviction relief. Holding that the petition is time-barred, we affirm.

The Defendant, Joseph Benjamin Comer, IV, was convicted in the Loudon County Criminal Court on his guilty plea of reckless endangerment, a Class A misdemeanor, for which he received an eleven-month, twenty-nine-day sentence on probation. At issue in this appeal is the amount of restitution for damages caused by his crime. We affirm the judgment in part and remand the case to the trial court for entry of a corrected judgment reflecting that restitution is to be paid in monthly installments of $200.

Two residents of the Edgehill neighborhood of Nashville, as well as an organization of neighborhood residents, filed petitions for writ of certiorari with the aim of preventing the Metropolitan Government of Nashville and Davidson County from entering into a lease agreement with Belmont University. The same parties also brought a petition for declaratory judgment challenging the lease. The proposed lease provided that the University would construct an extensive sports complex in a public park located in the petitioners’ neighborhood for the use of the University as well as local schools and neighborhood residents. The first petition was filed after a public meeting at which the Metro Parks Board recommended that the lease be adopted, but before it was actually approved by the Metro Council. The trial court dismissed it without prejudice as premature. Subsequent petitions were filed after the Metro Council voted to approve the lease. The petitioners argued that the process the Parks Board  followed was arbitrary and capricious, that it deprived them of their right to procedural due process, and that the action of the Metro Council was invalid because it was based on a flawed process of recommendation. The trial court dismissed all the petitioners’ claims. Because the Board’s recommendation was not a final order or judgment resulting from the exercise of judicial functions, and because the record showed that there was a rational basis for the Metro Council’s decision, we affirm the trial court.

This is a termination of parental rights case. Father/Appellant appeals the trial court’s order, terminating his parental rights to four of his biological children. The trial court terminated Appellant’s parental rights upon its finding, by clear and convincing evidence, that Appellant had abandoned the children by engaging in conduct prior to his incarceration that exhibits a wanton disregard for the welfare of the children, that there is a persistence of conditions, and that termination of Appellant’s parental rights is in the best interests of the children. We find that the trial court erred in finding persistence of conditions. However, we affirm the trial court’s finding of abandonment and that termination is in the best interests of the children.

The Defendant, Terry Byington, appeals his convictions by a jury in the Sullivan County Criminal Court for driving under the influence (DUI), fourth offense, a Class E felony; driving under the influence, a Class A misdemeanor; and driving on a revoked license, a Class B misdemeanor. The trial court merged the DUI convictions and sentenced the Defendant to four years for DUI and to six months for driving on a revoked license, to be served concurrently, for an effective four-year sentence in the Department of Correction. In this delayed appeal, the Defendant contends that the trial judge committed reversible error by refusing to recuse herself because she had formerly prosecuted the Defendant. We affirm the judgments of the trial court.

Elizabeth R. Doyle, who is not a party to this litigation, subdivided a parcel of property she owned in Jefferson County. Doyle sold “Tract #3” to the plaintiff, Norma Luttrell. Luttrell’s deed to Tract #3 also granted an “easement upon adjoining Tract #2 . . . for the existing septic system field lines servicing Tract #3.” The defendant, Hidden Valley Resorts, Inc., aka Mountain Properties, eventually acquired Tract #2, but not directly from Doyle. The defendant began to use its property in a way that interfered with the plaintiff’s easement, and the plaintiff filed her petition demanding that the defendant be enjoined from interfering with her easement rights. The case was tried without a jury, after which the trial court entered a judgment in favor of the defendant. The trial court found that the defendant had no actual notice of the easement prior to purchasing it, and further that the defendant had no constructive notice because a “standard title search of the chain of title for Defendant’s Tract #2 would not reveal Plaintiff’s easement.” The plaintiff moved for a new trial on two grounds: (1) that easements which run with the land do not depend on notice, and (2) that the trial court went beyond the scope of the pleadings in holding that the easement was unenforceable. The trial court denied the motion. The plaintiff appeals. We reverse the judgment and remand for
entry of a judgment in favor of the plaintiff.

A fired employee filed for unemployment benefits. The former employer opposed the benefits, maintaining that the employee was fired for misconduct. The Department of Labor and Workforce Development initially found for the employer and the employee appealed. After a hearing, the Appeals Tribunal found for the employee. The employer appealed. The Board of Review affirmed the Appeals Tribunal’s decision. The employer appealed to the chancery court, which vacated the administrative decision due to evidentiary issues and remanded the matter. On remand, the Board of Review considered the evidence in question and reaffirmed its earlier decision. The employer appealed to the chancery court, which affirmed the Board of Review. The employer appealed again. We affirm the chancery court’s decision.

The Defendant, William J. Wilson, pled guilty to two counts of attempted aggravated sexual battery, a Class C felony, and the trial court sentenced him to two consecutive sentences of six years, one year to be served in prison and the remainder to be served on probation. After a warrant was filed, the trial court found that the Defendant had violated his probation by dating, befriending, residing or uniting with someone who had children under the age of eighteen, because the Defendant has filed for a marriage license with a woman who had “several” children under the age of eighteen. The trial court ordered the Defendant returned to probation for ten years and required that he not have any contact with his fiancé, including telephone contact. The Defendant appealed, contending: (1) that the condition of probation requiring he not date or befriend a person with minor children had not been articulated to him by the trial court, as required by statute, and, further, is unconstitutional; and (2) that the condition that he refrain from telephone contact with his fiancé is unconstitutional. For the reasons stated herein, we affirm the judgment of the trial court.

This appeal involves the termination of parental rights. After State authorities received a report that
the mother of the two children at issue was using drugs, the mother admitted that she and the father
used drugs, and the parents stipulated that their children were dependent and neglected. The children
were initially placed with family members. After several months, a no-contact order was entered due to the parents’ continued drug use and related issues. The children were then placed in State custody and permanency plans were created. The plans required, inter alia, that the parents become drug-free and maintain a stable, safe, and drug-free home. Despite years of counseling, treatment, and periods of abstinence from drug use, the parents continued to intermittently test positive for drug use. DCS filed a petition for termination of the parental rights of both parents. After a trial, the trial court terminated their parental rights on grounds of abandonment, substantial noncompliance with the permanency plans, and persistent conditions. The parents now appeal. We affirm.

This appeal involves § 1983 claims against a county and its sheriff on the basis of injuries allegedly sustained by the plaintiff while in the custody of the sheriff’s department. We conclude that the trial court erred in denying the sheriff’s motion for summary judgment in his individual capacity because the plaintiff did not produce any evidence to rebut the sheriff’s testimony that he had no involvement in or knowledge of the events in question. We further conclude that the trial court erred in denying the county’s motion for summary judgment because there was no evidence of any causal connection between a county policy or custom and the plaintiff’s alleged injuries.

Appellant, an inmate of the Tennessee Department of Correction, filed a claim in the Claims Commission, alleging that the Department of Correction had failed to apply 831 days of pretrial jail credit to his criminal sentences. Appellee State of Tennessee filed a motion to dismiss. The Claims Commission granted the State’s motion to dismiss on the ground that Appellant had not exhausted his administrative remedies, and denied Appellant’s motion for new trial or amendment of judgment.  Appellant appeals. We affirm.

I join in the results reached by the majority insofar as we do not have an adequate record in which to review the particulars of the Defendant’s case. I write separately to express my concern that the probation rule in question, if applied to all probationers, offends due process. The rule prohibits contact or association with any adults who have minor children. The breadth of such a prohibition is problematic and the relationship of the prohibition to the goals of probation is questionable.

The plaintiff/appellant voluntarily withdrew from graduate school when it became certain he would not successfully remediate a previously failed course. The school permitted the student to re-enroll the following academic quarter subject to several specific conditions of readmission. The school eventually dismissed the student after it determined that he had failed to earn a “C” or better in two audited courses, which it considered a violation of the student’s readmission conditions. The student filed suit following his dismissal, but not until after he entered into an agreement resolving the underlying dispute. The school counterclaimed for breach of contract, damages, and enforcement of the parties’ agreement. The jury determined that (1) the school violated its policies and procedures when it dismissed the student, (2) the parties agreed to settle any differences that they may have had as set forth in the proof, and (3) neither party violated the agreement. The trial court accordingly entered judgment in favor of the school. Finding material evidence to support the jury’s verdict, we affirm.

This is a contest between two neighboring towns in Roane County over common territory that both have purported to annex. The defendant, Kingston, sought to add the territory through a successful referendum election conducted on February 5, 2008. The plaintiff, Harriman, sought to add the territory through its annexation ordinance No. 200801-1 adopted on first reading January 28, 2008. The disputed territory is outside the “[u]rban growth boundary” of both municipalities; it is within the “[r]ural area” of Roane County as those terms are respectively defined in Tenn. Code Ann. § 6- 58-101 (7) and (6) (2005). Harriman’s complaint to void the Kingston referendum asserts that Harriman’s ordinance takes priority because Harriman, as a larger municipality, is granted statutory priority. Kingston argues that the Harriman ordinance was of no effect because Harriman did not first secure an amendment to its urban growth boundary before passing the ordinance. Harriman responded that it did in fact “propose” an amendment and that a proposal was all that was required under Tenn. Code Ann. § 6-58-111(d)(1) (Supp. 2009). The parties tried the case on stipulated facts. The trial court agreed with Kingston and dismissed Harriman’s complaint without reaching the issue of priority. Harriman appeals, asking us to reverse and remand for a determination of the pretermitted issues. We vacate the judgment of the trial court and remand for further proceedings.

The Defendant, Xavier Tyrone Nolan, was convicted by a Knox County Criminal Court jury of attempted voluntary manslaughter, a Class D felony, and aggravated assault, a Class C felony. The trial court merged the attempted voluntary manslaughter conviction into the aggravated assault conviction and sentenced the Defendant to a Range I sentence of five years in the Department of Correction. On appeal, he argues that the trial court improperly enhanced his sentence. We affirm the judgment of the trial court.

Plaintiffs alleged that defendant had constructed a bridge over Lick Creek which was adjacent to their property, and the bridge had caused their property to repeatedly flood. They further alleged that they were entitled to recover damages under the theory that the County maintained a temporary nuisance which damaged their property. Defendant filed a Motion for judgment on the pleadings which characterized plaintiffs’ cause of action as an inverse condemnation action. Affidavits and other documents were filed in the record and the Trial Court agreed with the defendant that plaintiffs’ action was based on inverse condemnation and the statute had run on that action. The Trial Judge also ruled that the statute had run on the nuisance claim. On appeal, we affirm the Trial Judge’s holding that plaintiffs’ action was a nuisance type taking and was governed by the inverse condemnation statute, and we agree that the record demonstrates that the statute of limitations had run on plaintiffs’ claims.

Employee received an award of workers’ compensation benefits for a 1994 injury that
aggravated a pre-existing condition, Legg-Perthes disease. He received medical care for the condition thereafter through workers’ compensation. In 2007, his treating physician recommended hip replacement surgery. The trial court found that the necessity for surgery was not caused by the original injury. Employee has appealed. We affirm the judgment.1