APPELLATE COURT OPINIONS

A father challenges the trial court’s child support determination, property division, and attorney fee award. In its calculation of gross income for child support purposes, the trial court properly declined to give the father credit for retirement benefits awarded as part of the property division. If the value of the father’s retirement benefits has significantly appreciated since the time of the divorce, the father may bring a petition to modify the child support award to reflect an increase in the mother’s gross income. We affirm the decision of the trial court in all respects.  

The appellee, Ruan Swafford (“Appellee”), filed a motion to dismiss this appeal alleging that the notice of appeal was not timely filed. Because the notice of appeal was not timely filed, this Court lacks jurisdiction to consider this appeal.

A real estate broker filed a complaint against a client alleging that the client breached the parties’ brokerage agreement by purchasing a property and not paying a commission to the broker.  The client filed a motion for summary judgment asserting that the brokerage agreement was void for vagueness because one of its provisions was illogical.  The trial court disagreed with the client after concluding that any confusion was due to a simple drafting error.  The trial court reformed the brokerage agreement to reflect the parties’ intentions and determined that the client breached the brokerage agreement as reformed. The trial court then, sua sponte, granted summary judgment to the real estate broker.  We affirm.

The Pro Se Defendant, James Earl Gordon, appeals the trial court’s summary denial of his motion to correct an illegal sentence, pursuant to Tennessee Rule of Criminal Procedure 36.1, in which he argues that he received ineffective assistance of counsel and raises various constitutional issues. After thorough review, we affirm the denial of the motion.

Plaintiff filed a claim in general sessions court for injuries she allegedly received when she fell in standing water on the defendant’s premises. Judgment was rendered in favor of the defendant, and the plaintiff appealed to circuit court. The defendant then filed a motion for summary judgment arguing that it owed no duty to the plaintiff and that she was at least 50% at fault for her injuries. In support, the defendant relied on plaintiff’s testimony from the trial in general sessions court. The circuit court granted the motion for summary judgment, and plaintiff again appealed. We vacate the judgment of the trial court.

This is a divorce case. Appellant Wife appeals the trial court’s division of property, arguing that the court erred in: (1) classifying the appreciation of her separate property as marital property; (2) excluding from the marital estate certain real property that Husband transferred to his father; (3) not finding that Husband dissipated the marital estate; and (4) inequitably dividing the estate. Wife argues that alimony in solido should have been granted in light of the inequitable division and that she should have been awarded her attorney’s fees. Wife also requests attorney’s fees incurred in this appeal. We affirm the trial court’s exclusion of the transferred property from the marital estate. We also conclude that Wife failed to prove dissipation by a preponderance of the evidence. However, we vacate the property division and remand for additional findings of fact with respect to the appreciation of Wife’s separate property, and for a reconsideration of the property division. The reconsideration of the property division necessitates a reconsideration of alimony; thus, we vacate the trial court’s denial of alimony in solido and remand for proceedings consistent with this opinion. We award Wife’s attorney fees for this appeal.

The Defendant, Javian Jakeil Hawkins, appeals from his twenty-five-year sentence imposed for his second degree murder conviction, contending that the trial court abused its discretion by imposing the maximum in-range sentence and by denying his motion to reduce sentence pursuant to Tennessee Rule of Criminal Procedure 35. Following our review, we affirm; however, we remand for correction of a clerical error on the judgment form.

A Knox County jury convicted the defendant, Baldomero Galindo, of first degree murder, for which he received a sentence of life imprisonment. In this delayed appeal, the defendant argues the trial court erred in denying his motion for mistrial following the late disclosure of several discovery materials in violation of Brady v. Maryland, 373 U.S. 83 (1963). After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

The Petitioner, Curtis Keller, appeals the summary dismissal of his petition for writ of error coram nobis, in which he sought relief from his convictions for three counts of especially aggravated kidnapping, three counts of aggravated robbery, four counts of attempted aggravated robbery, aggravated burglary, and intentionally evading arrest in a motor vehicle. The Petitioner seeks coram nobis relief related to an undiscovered report matching his DNA to DNA from a ski mask used during the home invasion that led to his convictions. The Petitioner asserts he is entitled to due process tolling and a hearing. We conclude that because there is no reasonable basis to conclude that the evidence might have led to a different outcome, the trial court did not err in dismissing the petition without a hearing, and we affirm the judgment.

Following a jury trial, the Petitioner, Tyrone Bohanna, was convicted of especially aggravated robbery, reckless endangerment, aggravated burglary, and three counts of aggravated assault. The trial court imposed an effective sentence of 120 years, eleven months, and twenty-nine days. This court affirmed the Petitioner’s convictions and sentences on direct appeal. See State v. Tyrone Bohanna, No. W2011-01273-CCA-R3- CD, 2013 WL 2393050, at *1 (Tenn. Crim. App. May 29, 2013), perm. app. denied (Tenn. Nov. 14, 2013). The Petitioner filed a petition for post-conviction relief, which the post-conviction court denied following an evidentiary hearing. On appeal, the Petitioner contends that trial counsel was ineffective at trial and during proceedings on his motion for new trial, that the State failed to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that the Petitioner did not receive a fair trial after his trial was severed from the trial of his co-defendant. Upon reviewing the record, the parties’ briefs, and the applicable law, we affirm the judgment of the post-conviction court.

Defendant, Floyd Antonius Taylor, was indicted for two counts of delivery of a Schedule II controlled substance of .5 grams or more, with the second count occurring within a drug-free zone. The counts were severed, and Defendant received a jury trial on Count 2. The jury found Defendant guilty as charged. Count 1 was subsequently dismissed. Defendant received a fifteen-year sentence. Defendant filed a motion for new trial, which the trial court denied. Defendant filed a notice of appeal and argues that certain evidence was inadmissible under Tennessee Rule of Evidence 404(b) and that the evidence was insufficient to sustain his convictions. After a thorough review of the record, we affirm the judgment of the trial court.

Michael Bland, Petitioner, was indicted for and convicted of first-degree murder. Petitioner received a life sentence. This Court affirmed Petitioner’s conviction and sentence on direct appeal, and our supreme court denied further appellate review. State v. Michael Bland, No. W2014-00991-CCA-R3-CD, 2015 WL 3793697, *1 (Tenn. Crim. App. June 16, 2015), perm. app. denied (Tenn. Oct. 15, 2015). Petitioner filed a petition for post-conviction relief in which he raised claims of ineffective assistance of counsel. After an evidentiary hearing, the post-conviction court denied relief. Finding no error, we affirm the judgment of the post-conviction court.

The Petitioner, Charles Hampton, appeals the denial of post-conviction relief from his conviction for first degree premeditated murder, arguing (1) the post-conviction court erred in refusing to consider an expert’s testimony, (2) trial counsel was ineffective in failing to seek the suppression of the Petitioner’s statements to police, and (3) his mandatory life sentence as a juvenile offender is unconstitutional because it is the “functional equivalent” of life without parole. After review, we affirm the judgment of the
post-conviction court.

The Petitioner, Devin Torquin Watkins, appeals the denial of his petition for postconviction relief, arguing that the post-conviction court erred in finding that he received effective assistance of counsel. Following our review, we affirm the judgment of the postconviction court denying the petition.

I concur in the well-reasoned majority opinion but write separately on the issue of “extraordinary cause” to excuse failure to give pre-suit notice under Tennessee Code Annotated section 29-26-121(b) (“The court has discretion to excuse compliance with this section only for extraordinary cause shown.”).

I agree with the majority that the Defendants, Dr. Timothy Strait and Dr. Jeffrey Colburn, are entitled to summary judgment. It is a harsh and unfortunate result. The Defendants did not comply with the notice requirement of Tennessee Code Annotated section 29-26-121(a)(5) and gained a tactical advantage which allowed them to win this case. While I agree with the result, I disagree that the Defendants sufficiently alleged comparative fault in their answers so that the Plaintiff had ninety days to amend his complaint under Tennessee Code Annotated section 20-1-119.

James Bidwell filed this health care liability action individually and on behalf of his deceased wife, Clarissa Bidwell, and her estate against Drs. Timothy Strait and Jeffrey Colburn (“the physician Defendants”) and the entities he believed to be their employers—The Neurosurgical Group of Chattanooga, P.C., EmCare Inc., and Envision Healthcare Corporation.  Mr. Bidwell timely provided pre-suit notice to the named defendants and timely filed his lawsuit.  Mr. Bidwell did not provide Chattanooga-Hamilton County Hospital Authority (“Erlanger”) with pre-suit notice, nor did he name Erlanger as a defendant.  Furthermore, Dr. Strait and Dr. Colburn did not provide Mr. Bidwell written notice of Erlanger as their correct employer within thirty days of receiving pre-suit notice.  See Tenn. Code Ann. § 29-26-121(a)(5).  Dr. Strait answered Mr. Bidwell’s complaint, denying the allegations made against him and asserting that he was employed by Erlanger at all relevant times.  Dr. Colburn similarly answered, denying the allegations made against him and that either EmCare Inc. or Envision Healthcare Corporation was his employer.  Drs. Strait and Colburn then moved for summary judgment arguing that, pursuant to the Governmental Tort Liability Act, no judgment could be rendered against them because Mr. Bidwell had failed to name as a defendant their actual employer, Erlanger.  See Tenn. Code Ann. § 29-20-310(b).  Within ninety days of Dr. Strait’s and Dr. Colburn’s answers, Mr. Bidwell filed two motions for leave to amend his complaint to add Erlanger as a defendant.  Mr. Bidwell relied on Tennessee Code Annotated section 20-1-119, which provides a plaintiff with a ninety-day “grace period” within which to amend a complaint when comparative fault “is or becomes an issue,” and section 29-26-121(a)(5), which he argued required the physician Defendants to notify him of Erlanger within thirty days of receiving pre-suit notice.  The trial court granted Dr. Strait’s and Dr. Colburn’s motions for summary judgment, finding that Mr. Bidwell’s motions to amend were futile because he had not provided Erlanger with pre-suit notice.  Mr. Bidwell appealed, and the Court of Appeals vacated the trial court’s orders granting summary judgment and remanded the case for further proceedings.  Dr. Strait and Dr. Colburn subsequently filed an application for permission to appeal with this Court.  We hold that, although the physician Defendants failed to comply with section Tennessee Code Annotated 29-26-121(a)(5), the statute provides no remedy for noncompliance, and their noncompliance does not constitute extraordinary cause sufficient to excuse Mr. Bidwell’s failure to provide Erlanger with pre-suit notice.  However, we additionally hold that Dr. Strait’s and Dr. Colburn’s answers sufficiently asserted Erlanger’s comparative fault.  Therefore, Mr. Bidwell was entitled to amend his complaint to name Erlanger as a defendant pursuant to section 20-1-119, so long as he amended his complaint and caused process to issue to Erlanger within ninety days of Dr. Strait’s answer—the first answer alleging Erlanger’s fault.  Because section 20-1-119 applied, Mr. Bidwell was not obligated to provide Erlanger with pre-suit notice under Tennessee Code Annotated section 29-26-121(c).  We conclude that, because the record on appeal reflects that Mr. Bidwell failed to file an amended complaint and cause process to issue, he is not entitled to amend his complaint to add Erlanger as a defendant.  Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals on the grounds stated herein and reinstate the trial court’s orders granting the physician Defendants’ motions for summary judgment and denying the Plaintiff’s motions to amend. 

The Defendant, Jack Edward Thomas, pled guilty to arson and received a five-year sentence, with one year of incarceration to be followed by four years of probation. Following a hearing, the trial court ordered restitution in the amount of $4,320, with the Defendant to make installment payments of $90 per month. The Defendant appeals the restitution award, arguing that the State failed to present sufficient evidence of the victim’s pecuniary loss because the victim’s testimony was uncertain and unreliable. The Defendant also asserts that the judgment form erroneously reflects a restitution award of $7,000, which was the victim’s total pecuniary loss as determined by the trial court, because it exceeded the total amount the trial court found that the Defendant was able to pay in $90 per month installments for four years ($4,320). After reviewing the record, we conclude that the State introduced inadequate proof regarding the valuation of the loss. Accordingly, we reverse and remand for a new restitution hearing. The Defendant’s alternative argument regarding correction of the judgment form is rendered moot, though it does have merit.

This appeal concerns the termination of a mother’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Cocke County (“the Juvenile Court”) seeking to terminate the parental rights of Shauntel C. (“Mother”) to her minor children Azariah R. and Ahleigha C. (“Azariah” and “Ahleigha” respectively; “the Children” collectively). After a hearing, the Juvenile Court entered an order terminating Mother’s parental rights to the Children. Mother appeals, arguing that the Juvenile Court erred in its best interest determination by failing to account for her improvements over the course of the case. Although we reverse the ground of failure to visit, we affirm the grounds of substantial noncompliance with the permanency plan and failure to manifest an ability and willingness to assume custody. We also affirm the Juvenile Court’s best interest determination, finding Mother’s improved efforts in some areas to be real but insufficient. We thus affirm, in part, and reverse, in part, resulting in our affirming the termination of Mother’s parental rights to the Children.

An interstate pipeline company filed this direct appeal from a decision of the Tennessee Board of Equalization rejecting the company’s claims for equalization relief. Having considered the company’s arguments that Tenn. Code Ann. § 67-5-501(10)(B)(iii) has been inconsistently applied, we affirm the Board’s decision.  

This appeal arises out of a divorce action in which the wife requested alimony. Following a trial, the trial court awarded the wife alimony in futuro and alimony in solido to assist her in paying for health insurance premiums and attorney’s fees, respectively. On appeal, the husband claims the wife had no need for such support; rather, the trial court used the alimony awards as a means to punish the husband for his infidelity. We find that, while the trial court considered the husband’s fault in making its decision, it did so in conjunction with other relevant factors in accordance with Tenn. Code Ann. § 36-5-121(i), including the wife’s financial need, her relative earning potential, her contributions to the marriage, and the parties’ standard of living. Having determined that the trial court applied the correct legal principles, made factual findings supported by the evidence in the record, and reached a decision within the range of acceptable dispositions, we affirm the trial court’s decision.

I join only in Section III of the majority opinion, agreeing that we should increase Mr. Sitton’s punishment to a four-year suspension from the practice of law with one year on active suspension and the remainder on probation.

I do not join in Sections I and II because those sections exceed the scope of our review under Tennessee Supreme Court Rule 9, section 15.4 and this Court’s March 20, 2020 Order. See Order, In re Sitton, No. M2020-00401-SC-BAR-BP (Tenn. Mar. 20, 2020) (order deeming attorney discipline to be “inadequate” and “propos[ing] that the punishment should be increased”).

This case is a cautionary tale on the ethical problems that can befall lawyers on social media. The attorney had a Facebook page that described him as a lawyer. A Facebook “friend” involved in a tumultuous relationship posted a public inquiry about carrying a gun in her car. In response to her post, the attorney posted comments on the escalating use of force. He then posted that, if the Facebook friend wanted “to kill” her ex-boyfriend, she should “lure” him into her home, “claim” he broke in with intent to do her harm, and “claim” she feared for her life. The attorney emphasized in his post that his advice was given “as a lawyer,” and if she was “remotely serious,” she should “keep mum” and delete the entire comment thread because premeditation could be used against her “at trial.” In the ensuing disciplinary proceedings, a Board of Professional Responsibility hearing panel found that the attorney’s conduct was prejudicial to the administration of justice in violation of Rules of Professional Conduct 8.4(a) and (d). It recommended suspension of his law license for sixty days. Under Tennessee Supreme Court Rule 9, § 15.4, this Court determined that the punishment imposed by the hearing panel appeared inadequate and, after briefing, took the matter under advisement. We now hold that the sanction must be increased. The attorney’s advice, in and of itself, was clearly prejudicial to the administration of justice and violated the Rules of Professional Conduct. In addition, his choice to post the remarks on a public platform amplified their deleterious effect. The social media posts fostered a public perception that a lawyer’s role is to manufacture false defenses. They projected a public image of corruption of the judicial process. Under these circumstances, the act of posting the comments on social media should be deemed an aggravating factor that justifies an increase in discipline. Accordingly, we modify the hearing panel’s judgment to impose a four-year suspension from the practice of law, with one year to be served on active suspension and the remainder on probation.

The petitioner, Ronald L. Cosper, appeals the denial of his petition for post-conviction relief, which petition challenged his convictions of first degree felony murder and attempted especially aggravated robbery, alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

This appeal stems from a petition to remove a co-conservator for a person with a disability. Several years ago, the ward’s brother and her personal attorney were appointed as coconservators of the ward’s person and estate. Subsequently, the ward’s remaining siblings filed this action to remove the brother as a co-conservator, alleging that the brother had failed to act in the best interest of the ward. After a hearing on the petition, the trial court dismissed the petition to remove the brother as a co-conservator and awarded the coconservators attorney’s fees. Some of the siblings appealed the trial court’s award of attorney’s fees. We reverse the trial court’s award of attorney’s fees and remand.