APPELLATE COURT OPINIONS

This case involves an award of retroactive child support. Following her divorce from the man she claimed was the minor child’s biological father, Appellant/Mother filed a petition to establish paternity against the Appellee herein. Genetic testing revealed that the Appellee was the father, and the court awarded child support retroactive to the date of filing of the Appellant/Mother’s petition, which award was a deviation from the Child Support Guidelines. Finding that the trial court’s deviation from the guidelines is supported by the record, we affirm.

The Appellant appeals the trial court's dismissal of his petition for post conviction relief. The Appellant filed his petition outside the statute of limitations. Accordingly, the judgment of the trial court is affirmed. Rodney Lamont Love, pro se.

This is a termination of parental rights case. Mother appeals the trial court's termination of her parental rights on grounds of persistence of conditions, abandonment by willful failure to visit or support, failure to substantially comply with the permanency plans, and mental incompetence. Finding that the grounds for termination of Mothers's parental rights are established by clear and convincing evidence in the record, and that termination is in the best interests of the minor children, we affirm.

The Defendant, Barry Randy Hall, pled guilty to one count of facilitation to sell 0.5 grams or more of cocaine within 1,000 feet of a school and one count of selling 0.5 grams or more of cocaine, both Class B felonies. The parties agreed to a ten-year sentence on the facilitation to sell conviction and an eight year sentence on the selling of 0.5 grams or more conviction, to be served concurrently. At the sentencing hearing, the trial court denied probation and alternative sentencing and ordered the Defendant to serve the entirety of  sentence in confinement. The Defendant challenges the denial of alternative sentencing in this appeal. After reviewing the record, we conclude that the trial court properly sentenced the defendant and affirm the judgments of the trial court.

The defendant, Jerion Craft, was convicted of separate counts of unlawful possession of cocaine with intent to sell and to deliver. The trial court merged the convictions and sentenced the defendant to serve eleven years as a standard offender. On appeal, the defendant contends that the evidence was insufficient to demonstrate that: he possessed cocaine with the intent to distribute it; the trial court interfered with his right to a fair trial; and the trial court erred in failing to declare a mistrial. After careful review, we affirm the judgments from the trial court.

The defendant, Roy Shotwell, Jr., was convicted of two counts of rape, each a Class B felony, and one count of sexual battery, a Class E felony. The defendant was sentenced to ten years for each Class B felony and to two years for the Class E felony. The defendant received a total effective sentence of twenty years. The defendant appeals, arguing that the trial court erred in: denying his motion for a severance; allowing the State to offer expert witnesses on DNA and forensic nursing; and in sentencing. After careful review, we affirm the trial court’s decisions to join the indictments in one trial and to admit the State’s expert testimony. Moreover, the trial court did not abuse its discretion in applying the enhancement factors or in ordering consecutive sentences. Therefore, the judgments from the trial court are affirmed.

In this appeal, Father asks this Court to consider whether the arbitrator erred in finding California to be the home state of the parties’ children under the UCCJEA, and in finding that Father failed to prove a material change of circumstances warranting modification of the parties’ parenting plan. Mother asks us to consider whether, pursuant to Tennessee’s Uniform Arbitration Act, Father is limited to the Act’s statutory grounds for vacating or modifying the arbitration award. We find that the courts of this state do not have jurisdiction to enforce the parties’ arbitration agreement or to modify the parties’ parenting plan. Accordingly, the actions and orders of the trial court and the arbitrator are vacated, and the case is dismissed.

This Court accepted a question of law certified by the United States District Court for the Western District of Tennessee regarding the authority of municipal utility boards to enter into employment contracts with at-will employees that provide for severance benefits if the employee is terminated without cause. While the Court has decided that “some form of severance compensation . . . [may be] permissible,” it has concluded that the particular severance provisions in the two employment contracts at issue in this case are not enforceable. I respectfully disagree.

After conducting a bench trial, the trial court found the Defendant, Richard Anthony Arriola, guilty of one count of first degree murder, one count of attempted first degree murder, and two counts o fattempted second degree murder. The trial court sentenced the Defendant to an effective sentence of life imprisonment plus fifteen years. This Court remanded the case to the trial court for an order clarifying its findings on the insanity defense. On appeal, the Defendant claims: (1) the trial court erred when it used an improper legal standard for the insanity defense; and (2) the evidence presented at trial proved by clear and convincing evidence that the Defendant was not guilty by reason of insanity. After a thorough review of the record and the applicable law, we conclude that the trial court applied an improper legal standard for the insanity defense. Therefore, we reverse the convictions and remand for a new trial.

The United States District Court for the Western District of Tennessee has submitted a certified question of law pursuant to our Rule 23 as to the validity of certain provisions within two separate employment contracts: “Whether a municipal utility board has the authority to enter into a contract with an appointed city official who serves at the will and pleasure of the Board of Mayor and Aldermen whereby the utility board contracts to continue to pay the official’s salary for a multiyear time period [8 and 14 years] after the official’s employment is terminated.” Because it is within our discretion to do so, we have elected to answer the question in a manner designed to fit the facts and circumstances in this particular case. Our conclusion is that neither Ripley Power and Light nor Ripley Gas, Water, and Wastewater, utility boards for the City of Ripley, Tennessee, had the authority to enter into multi-year contracts with Mike Allmand, the former superintendent of the two utilities, or to obligate the City for the payment of salary and benefits as provided by the terms.

On June 1, 2009, the Tennessee Supreme Court remanded this case for reconsideration in light of its opinion in State v. Byington, 284 S.W.3d 220 (Tenn. 2009). This court initially dismissed the defendant’s appeal for lack of jurisdiction after both the defendant’s motion for new trial and the trial court’s order denying the motion were absent from the record. This court also denied the defendant’s subsequent petition to rehear and motion to supplement the record with the missing documents. On remand, the defendant, who was convicted of second degree murder and sentenced to eighteen years in the Department of Correction, again argues that the trial court erred by allowing certain out of court statements into evidence and that the State engaged in prosecutorial misconduct based on certain statements made during closing argument. After reviewing the record, we conclude that the trial court erred in admitting testimony by the defendant’s mother regarding a telephone conversation between the defendant and the victim, but that such error was harmless. We also conclude that the defendant’s contentions regarding the other challenged statements and the State’s closing argument are waived for the defendant’s failure to include them in the motion for new trial and that the issues do not merit plain error review. We therefore affirm the judgment of the trial court.

An association of cable providers sued the Electric Power Board of Chattanooga in Davidson County challenging the Board’s plan to provide a cable and internet network under Tenn. Code Ann. § 7-52- 601 et seq. Specifically, the association alleged that the Board was improperly funding the network in violation of Tenn. Code Ann. § 7-52-603 and that the plan submitted to the comptroller for review in Davidson County under Tenn. Code Ann. § 7-52-602 was defective. The trial court dismissed finding that since no violation allegedly occurred in Davidson County then the trial court lacked jurisdiction and venue under Tenn. Code Ann. § 7-52-609. We affirm.

The trial court concluded that decedent’s nephew had express oral authority to bind decedent to an optional arbitration agreement with a nursing home. It further determined that the arbitration agreement was not unconscionable. Plaintiff, decedent’s son, appeals. We reverse.

The Defendant, Enrique Alejandro Perez, appeals as of right from his jury conviction in the Hamblen County Criminal Court for aggravated kidnapping, a Class B felony, for which he received a sentence of ten years as a violent offender. On appeal, he argues that (1) the trial court erred in denying his motion to suppress his statement, (2) the trial court erred in denying his motion to strike the jury panel based upon his allegation of an under-representation of Latino persons, (3) the aggravated kidnapping statute, as applied in this case, is unconstitutional because he was not separately indicted for the underlying offense of rape, (4) there is insufficient evidence to support his conviction for aggravated kidnapping, and (5) the trial court imposed an excessive sentence. Following our review, we affirm the judgment of the trial court.

This appeal arises from Appellant’s action to enforce a restrictive covenant in a residential subdivision. The matter was heard by the trial court in a non-jury trial on August 12, 2008. Before Appellant completed its presentation of evidence, the trial court sua sponte ended the proceeding and entered an order of involuntary dismissal. Finding that the trial court erred in dismissing the case before Appellant completed its presentation of evidence, we reverse.

This appeal involves a breach of an employment agreement. The plaintiff company recruits health care workers from the Philippines to come to the United States to work for its clients. The company recruited the defendant nurse by using written recruitment materials. The nurse signed an employment agreement that differed from the recruitment materials in that one of the benefits listed as “free” in the recruitment materials was not free. Approximately one year into the nurse’s threeyear term of employment, the nurse resigned. When notified of the nurse’s intent to resign, the company’s management threatened to report the nurse to immigration officials. Despite the threats, the nurse left the employ of the company. The company then filed the instant lawsuit against the nurse, asserting breach of contract. In his answer, the nurse asserted, inter alia, that the employment agreement violated public policy and was unenforceable because the company’s threats constituted involuntary servitude. Although unconscionability was not pled, the nurse was permitted to assert the defense at trial. The trial was bifurcated, with the issue of damages reserved. After the trial, the trial court held that the company’s threats constituted involuntary servitude, and that the employment agreement was unenforceable because it was unconscionable and contrary to public policy. The trial court also, sua sponte, enjoined the company in the future from using recruitment materials that differed from the employment agreements and from threatening to report employees to immigration officials. The company appeals. We reverse the holding that the employment agreement is unenforceable because unconscionability was never pled, the employment agreement is not unconscionable, and the agreement is not contrary to public policy. We vacate the injunctive relief as to the recruitment materials and affirm as to the remaining injunctive relief. The cause is remanded for consideration of the plaintiff company’s damage claim and the defendant nurse’s counterclaims.

This appeal addresses whether a judgment is final and appealable. The plaintiff municipality sued the defendant owner of the city’s minor league baseball team for breach of contract. The city also sought prejudgment interest and attorney’s fees. A consent order was entered allowing the defendants to complete a planned sale of the team to a third party; the third party was to forward the sales proceeds to the court clerk to be held in escrow. The defendants then filed a counterclaim against the city, sounding in both contract and tort, as well as third-party claims against the mayor and a city employee. The contract issues were tried, and the trial court held that the city was entitled to damages and dismissed the defendants’ contract counterclaim against the city. The trial court did not address the city’s request for prejudgment interest and attorney’s fees. The defendants nonsuited their remaining claims and an order was entered dismissing the claims on June 11, 2007. The city filed a motion to assess attorney’s fees and prejudgement interest, and the defendants filed a motion to release the funds held in escrow. On September 15, 2008, the trial court denied the city’s motion for prejudgment interest and attorney’s fees, finding that the June 11, 2007 order was a final judgment because the request for prejudgment interest and attorney’s fees was not a claim but was instead an amount of the city’s recovery of damages. The trial court found that it did not have jurisdiction to consider the city’s request for prejudgment interest or attorney’s fees because the city failed to file a timely motion to alter or amend the judgment. The issue of the funds held in escrow was not addressed by the trial court. The city now appeals the September 15, 2008 order, arguing that the June 11, 2007 order was not final. We find that the trial court erred in holding that the June 11, 2007 order was a final judgment, and conclude that this Court does not have jurisdiction to hear this appeal. Therefore, we dismiss the appeal and remand the case to the trial court.

This case arises from a dispute over a timber contract. Appellees, through their attorney-in-fact, executed a timber deed in favor of John Jones, which deed was recorded. Mr. Jones then assigned the deed to the Appellant herein, and this assignment was not recorded. When the Appellees discovered that Mr. Jones’ checks were insufficient, they re-sold the timber to the third-party defendant. 1 The third party paid value for the timber, and proceeded to cut and remove it. Appellant then filed suit against the Appellees and the third party defendant. The trial court found that Appellant was a bona fide purchaser for value, but declined to award double or treble damages pursuant to Tenn. Code Ann. § 43-28-312. The trial court also relieved the Appellees’ attorney-infact from liability, and determined that the third party defendant was also a bona fide purchaser and, therefore, not liable. Appellant appeals. We affirm.

Plaintiff filed this action against defendant after she slipped and fell in defendant’s bathroom. Defendant filed a motion for summary judgment asserting that plaintiff could not establish the elements of her claim. The trial court found that plaintiff could not establish the elements of a premises liability claim and granted summary judgment in favor of defendant. Finding that defendant did not meet its burden at the summary judgment stage, we reverse.

The Appellant appeals the trial court's dismissal of his petition for post conviction relief. The Appellant filed his petition outside the statute of limitations. Accordingly, the judgment of the trial court is affirmed.

The plaintiff appeals the summary dismissal of his legal malpractice action against his former attorney. In the Complaint, the plaintiff alleges that the defendants, the attorney and his law firm, represented themselves to be “competent in securities law related matters,” and that the defendants breached their duty by failing to utilize the requisite skill and competency while representing him in a claim against a brokerage firm in arbitration before a panel of the National Association of Securities Dealers. The defendants moved for summary judgment, which was supported by the affidavit of the attorney who represented the plaintiff in arbitration. The trial court granted the motion, finding that the plaintiff had failed to present evidence sufficient to create a genuine issue of material fact regarding damages and causation. We have determined that the defendants’ motion and supporting affidavit failed to either affirmatively negate an essential element of the plaintiff’s claim or establish that the plaintiff cannot prove an essential element of his claim at trial. Having failed to shift the burden of production to the plaintiff, the defendants’ motion for summary judgment should have been denied without consideration of the sufficiency of the affidavits of the plaintiff’s expert witnesses. Accordingly, we reverse the grant of summary judgment.

This is a personal injury suit arising out of an automobile accident. Plaintiff appeals the trial court’s dismissal of her punitive damages claim, as well as its exclusion of evidence regarding Defendant’s underage consumption of alcohol prior to the accident and leaving the scene of the accident. Because Plaintiff has failed to show a genuine issue of material fact exists regarding Defendant’s intoxication, we affirm the trial court’s dismissal of Plaintiff’s punitive damages claim. Because liability has been stipulated in this matter, and the punitive damages claim properly dismissed, we find Defendant’s underage consumption of alcohol and leaving the scene of the accident irrelevant. Thus, we affirm the exclusion of such evidence.

The Defendant, Deonte McBee, appeals from his convictions of first degree felony murder in the perpetration of robbery; especially aggravated robbery, a Class A felony; and four counts of aggravated robbery, a Class B felony. He was sentenced to life for the murder conviction, to twenty-five years as a violent offender for the especially aggravated robbery conviction, and to twelve years as a Range I offender for each of the aggravated robbery convictions. The aggravated robbery convictions were imposed consecutively to each other and to the murder conviction, and the effective sentence is life plus forty-eight years. In this appeal, the Defendant claims (1) that there was insufficient proof to support the felony murder conviction, (2) that the trial court erred in instructing the jury to consider the murder offense and its lesser included offenses in sequential order, and (3) that the trial court erred in giving a criminal responsibility instruction. We affirm the judgments of the trial court.

This case involves issues arising out of the parties’ divorce. Prior to the parties’ marriage, both Husband and Wife owned separate residences. In its property division, the trial court found that during the parties’ marriage, Husband’s home increased in value by $61,700.00, and the court awarded each party one-half of the appreciation, or $30,850.00. The trial court found Wife’s home to be her sole and separate property, as the value of her home decreased during the marriage. Finally, the trial court awarded Wife $3,000.00 in attorney fees to be paid by Husband. On appeal, Husband contends that Wife was entitled only to $9,000.00 of the increased value of Husband’s home–onehalf of the value of an addition made to the home during the marriage. Husband further claims that the trial court erred in failing to offset Wife’s award for debts paid on her home during the marriage, and in its award of attorney fees. We reverse the trial court’s award to Wife, and we affirm both the trial court’s award of attorney fees to Wife, and its finding that Wife’s home did not increase in value during the parties’ marriage such that Husband could recover a share of such increase.