APPELLATE COURT OPINIONS

This appeal concerns a post-divorce motion to show cause filed by wife against husband for unpaid child support, extracurricular expenses and medical expenses for the children and a failure to divide certain financial accounts of the parties. Additionally, husband sought credit for premiums he had paid post-divorce toward a life insurance policy awarded to wife as part of the division of marital property. Given the nature of the relief being sought, the parties entered into an agreed order referring the matter to a special master. A hearing was held before the special master who subsequently filed his findings and recommendations with the trial court. Husband filed objections in the trial court to the special master’s findings. Following a hearing on husband’s objections, the trial court approved the special master’s findings and recommendations in their entirety and adopted them as the judgment of the court. The husband appeals. We affirm.

This appeal concerns the responsibilities of the parties, pursuant to the terms of their marital dissolution agreement, following their divorce. Appellant’s ex-wife filed a petition for contempt, contending that Appellant had failed to refinance a debt allegedly owed on a condominium he was awarded in the divorce. Although the trial court did not find Appellant to be in contempt, it did order Appellant to refinance the loan in question and remove his ex-wife’s name from it. We reverse.

The Petitioner, Rodolfo Guerra-Rosales, pleaded guilty in General Sessions Court to misdemeanor drug possession, and the court imposed a probation sentence of eleven months and twenty-nine days. The Petitioner timely filed a post-conviction petition in circuit court, alleging that his guilty plea in general sessions court was involuntary based upon the ineffective assistance of counsel. The post-conviction court summarily dismissed the petition, concluding that the claim was not cognizable and that the court lacked jurisdiction to hear the petition. On appeal, the Petitioner asserts, and the State concedes, that the post-conviction court had jurisdiction to consider the petition and that his petition stated a colorable claim. After review, we reverse the post-conviction court’s dismissal and remand for an evidentiary hearing on the Petitioner’s claim.

This case concerns alleged hazing against a student perpetrated by a college fraternity. When suit was brought by the hazed student against the college, the college sought summary judgment regarding the claims asserted against it. Summary judgment was thereafter granted to the college, and the student appealed to this Court. For the reasons that follow, we reverse in part and affirm in part.

This wrongful-death action arises out of the death of a Lemay Concrete employee who was struck and killed by a third party’s cement-mixer truck while acting in the course and scope of his employment. The issues in this appeal are post-settlement disputes concerning an attorney’s fee lien filed by the plaintiffs’ first attorney, a subrogation lien filed by the employer’s workers’ compensation carrier, and the assessment of postsettlement discretionary costs against the carrier. The employee’s family instituted this action after agreeing to pay their first attorney 33% of the gross recovery or “a reasonable attorney’s fee” if they discharged him before recovering. While the action was pending, the insurance carrier paid workers’ compensation benefits to the family and, after declining a settlement offer of $400,000, the plaintiffs discharged their attorney. The plaintiffs then retained substitute counsel. Months later, the wrongful-death claim was settled for $1,350,000. The plaintiffs then sought to void their first attorney’s fee agreement and requested the trial court deduct a portion of their substitute counsel’s fees from the carrier’s subrogation lien. The trial court referred all issues to a special master. The special master found the fee agreement was valid and recommended a fee of $133,333—or 33% of $400,000, the amount of the last “firm offer” secured during the first attorney’s representation. The special master’s report contained no findings and identified no factors relied upon in determining that $133,333 was a “reasonable fee,” other than finding the amount would be one-third of the last “firm offer” obtained by the first attorney. The special master also found the carrier’s own counsel protected its subrogation lien and, thus, recommended that the carrier not be liable for any portion of the plaintiffs’ attorneys’ fees. The trial court adopted verbatim the special master’s findings and recommendations. Additionally, the court assessed post-settlement discretionary costs against the carrier in lieu of a deduction for plaintiffs’ attorneys’ fees. This appeal followed. We have determined that the fee awarded to the plaintiffs’ first attorney was not based on the relevant legal principles or applicable facts because the trial court’s ruling was based entirely on the special master’s recommendation—which addressed only one of the guidelines in Tennessee Rule of Professional Conduct 1.5(a) for determining what a reasonable fee is. Therefore, we vacate the fee awarded to the plaintiffs’ first attorney and remand this issue to the trial court to award “a reasonable fee” that is based on the relevant facts and factors. We also reverse the trial court’s ruling that the workers’ compensation carrier was not liable for any portion of the plaintiffs’ attorneys’ fees and remand this issue for apportionment of the fees incurred by the plaintiffs’ attorneys. Accordingly, we also reverse the assessment of discretionary costs against the workers’ compensation carrier and remand this issue for reconsideration.

Petitioner, Jermaine Davis, claims that he received ineffective assistance of counsel. Following a hearing, the post-conviction court denied his petition for post-conviction relief, finding that Petitioner failed to prove deficient performance and prejudice. Discerning no error, we affirm.

A private university dismissed a graduate student for poor academic performance. The student sued the university for breach of contract, claiming the university failed to follow its own procedures in considering his grade appeal and other post-dismissal requests. The university moved to dismiss for failure to state a claim upon which relief can be granted, and the trial court dismissed the complaint with prejudice. Because the complaint adequately alleges a claim for breach of contract, we reverse.

Pro se appellants appeal from the trial court’s judgment in favor of their former landlord. We affirm the trial court.

This is an appeal of the trial court’s decision to summarily dismiss a claim of vicarious liability against the owner of the vehicle that was involved in a fatal vehicular accident. The driver of the vehicle was the son and employee of the vehicle owner, and it is alleged that the driver was acting in the course and scope of his employment with the vehicle owner at the time of the collision. The owner of the vehicle filed for summary judgment, and the trial court found the affidavits and deposition testimony of the owner and his son refuted the prima facie evidence of vicarious liability created by Tenn. Code. Ann. §§ 50-10-311 and -312 that the son was acting in the course and scope of his employment at the time of the collision. The plaintiff appeals contending that summary judgment was not proper because the owner and his son were interested witnesses and their credibility was at issue. We agree. It is undisputed that the son’s employment necessitated his travel on the road where the collision occurred, and whether the son had deviated from the defendant’s business prior to the collision is a material fact that is in dispute. For this reason, we reverse the trial court’s grant of summary judgment and remand for further proceedings.

We granted this interlocutory appeal to review the trial court’s suppression of an incriminating statement the Defendant, Joseph Woodruff, made to police. The Defendant was arrested in May 2015 related to an aggravated robbery and an attorney was appointed to represent him. The Defendant later asked to speak with police and, following a waiver of his Miranda rights and without his attorney present, confessed to the robbery. Following his indictment, the Defendant sought to suppress his statement to police and, after a hearing, the trial court granted the motion to suppress. The State filed a motion for an interlocutory appeal challenging the suppression of the statement, which the trial court granted, and this court granted the State’s application for a Rule 9 appeal. After review, we reverse the trial court’s judgment.

In this appeal from a final decree of divorce, the husband contends the trial court abused its discretion in awarding spousal support. He challenges the type, amount, and duration of the alimony awarded. Discerning no abuse of discretion, we affirm.

Following surgery to remove a cancerous kidney, part of a gelport device was left inside the patient. The patient and her husband brought this health care liability action against multiple defendants, including the surgeon who removed the kidney and the radiologist who initially failed to detect the foreign object. The defendants admitted fault, so the trial focused solely on causation and damages. The jury returned a verdict in favor of the plaintiffs and awarded $4 million in noneconomic damages to the patient for pain and suffering and loss of enjoyment of life and $500,000 in noneconomic damages to her husband for loss of consortium. The trial court initially applied the statutory cap on noneconomic damages to the total damages award and entered a judgment of $750,000 in favor of both plaintiffs. In response to the plaintiffs’ motion to alter or amend, the trial court issued a revised judgment of $750,000 in favor of the patient and $500,000 in favor of the husband. But the court refused to address the plaintiffs’ arguments premised on the constitutionality of the statutory cap, ruling that the issue had been waived. The court also denied the defendant’s motion for a new trial or for a remittitur. Upon review, we conclude that the trial court erred in refusing to consider the plaintiffs’ constitutional issue. But because we also conclude that the statutory cap on noneconomic damages is constitutional and was applied properly and that the defendant is not entitled to a new trial or a remittitur, we affirm.

The Petitioner, Luis Jorge Diaz, was convicted of six counts of aggravated sexual battery and subsequently sentenced to twenty years in confinement. See Tenn. Code Ann. § 39-13-504. Following an unsuccessful direct appeal, the Petitioner filed a petition seeking post-conviction relief, alleging, among other things, that trial counsel was ineffective because of his failure to communicate multiple plea offers from the State to the Petitioner. The post-conviction court denied the petition, and the Petitioner filed a timely appeal. Following our review, we affirm.

The Defendant, Carlos Williamson, pleaded guilty to aggravated burglary, aggravated assault, and evading arrest and agreed to allow the trial court to determine the length and manner of service of his sentence. The trial court subsequently ordered the Defendant to serve concurrent twelve-year, three-year, and four-year sentences, respectively, in confinement. On appeal, the Defendant contends that the trial court erred when it applied two enhancement factors to his sentence. After review, we affirm the trial court’s judgments.

In 2009, a Blount County jury convicted the Petitioner, Anthony Todd Ghormley, of two counts of attempted first degree murder, one count of especially aggravated kidnapping, two counts of especially aggravated burglary, and three counts of aggravated assault. The trial court sentenced the Petitioner to an effective sentence of 105 years. See State v. Anthony Todd Ghormley, No. E2010-00634-CCA-R3-CD, 2012 WL 171940, at *1 (Tenn. Crim. App., at Knoxville, Jan. 20, 2012), no perm. app. filed. On March 13, 2019, the Petitioner filed a petition for writ of habeas corpus, alleging that his indictment was void because it failed to include the requisite level of mens rea for the charged offenses and that the affidavit of complaint had been improperly amended. The habeas corpus court summarily dismissed the petition because the Petitioner failed to state a colorable claim. On appeal, the Petitioner maintains his claims and argues that the trial court improperly dismissed his petition. After review, we affirm the habeas corpus court’s judgment.

This is a healthcare liability action resulting from injuries sustained by a guidewire left in the plaintiff’s neck following a procedure. The defendants moved to dismiss the action for failure to comply with notice requirements in Tennessee Code Annotated section 29-26-121(a)(2)(E). The trial court dismissed the action without prejudice, and the plaintiff appealed. We affirm.

The Defendant, Calvin Cole, appeals the denial of his Rule 36.1 motion to correct an illegal sentence. Following our review, we affirm the judgment of the trial court summarily denying the petition.

Petitioner, Jonquarius Cunningham, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief. In 2015, Petitioner was convicted of one count of attempted second degree murder, one count of reckless endangerment, two counts of employing a firearm during the attempt to commit a dangerous felony, and two counts of aggravated assault, for which he received an effective sentence of twenty-three years’ incarceration. This court affirmed the judgments of conviction on direct appeal. State v. Jonquarius Cunningham, No. W2016-00065-CCA-R3-CD, 2017 WL 3616667, at *1 (Tenn. Crim. App. Aug. 23, 2017), no perm. app. filed. Thereafter, Petitioner instituted a collateral proceeding seeking post-conviction relief. Following a hearing, the post-conviction court denied relief. On appeal, Petitioner contends that he was denied the effective assistance of counsel based on trial counsel’s failure to introduce at trial the deposition transcript of one of the victims. He further contends that his judgment of conviction in count five is void based on inconsistent verdicts. Following a thorough review, we affirm the judgment of the post-conviction court.

This is a partition suit. The residential property at issue was purchased approximately three months before Plaintiff’s father died from a terminal condition. The deed to the property listed the owners as Plaintiff’s father and his former girlfriend, and the two of them resided together at the property for the last three months of his life. After Plaintiff’s father died, Plaintiff, his sole heir, brought this partition suit individually and as executor of his father’s estate. Plaintiff asserted that his father’s former girlfriend should not receive any of the proceeds from the sale of the home because she did not financially contribute to its purchase. The former girlfriend took the position that Plaintiff’s father gifted her a one-half interest in the home because she agreed to act as his live-in caregiver in the last three months of his life. The trial court found clear and convincing evidence to establish the elements of a gift and split the proceeds of the sale of the home equally, after accounting for some expenses paid by Plaintiff. Plaintiff appeals, arguing that the proof did not establish a gift. We affirm and remand for further proceedings.

This is an appeal of the post-divorce modification of a parenting plan. Father ceased making regular contributions into an account for the children’s education that was established in the original parenting plan agreed upon in 2004, but was not included in a modified plan adopted by agreement seven years later. Mother sought to recover the contributions that were not made by Father after 2011 in addition to the amount Father withdrew from the college fund account without her consent. Mother also sought reimbursement for the cost of a vehicle she purchased for one of the children and for an upward adjustment to Father’s child support obligation to pay for extracurricular expenses. The court held that Father was not obligated to contribute to the college fund after 2011, but ordered Father to reimburse the fund for the amount he withdrew; the court denied Mother’s request for reimbursement of the cost of the vehicle and for an upward adjustment of child support, and granted Mother a money judgment for expenses incurred when the children moved out of Father’s home to reside with her. Mother appeals. Upon a thorough review of the record, we discern no error and affirm the judgment.

Property owners applied to the City of La Vergne for a building permit to install new doors on their car wash. Their purpose was to convert the car wash to a car lot. The city issued a building permit to the property owners, who proceeded to perform the work necessary to convert the property to a car lot. Months later, the city informed the property owners that they had to obtain planning commission approval of a site plan before they could operate a car lot on the property. The property owners appealed to the board of zoning appeals, which upheld the city’s decision. The plaintiffs filed a petition for writ of certiorari in the chancery court, and the court upheld the decision of the board of zoning appeals. We affirm the chancery court’s decision.

More than ten years after the final decree was entered in this divorce action, Wife filed a contempt action to enforce a provision in the marital dissolution agreement, which had been incorporated into the final decree. Husband filed a separate breach of contract action to recover amounts that he had paid on Wife’s behalf when the parties resumed living together for a five year period following the entry of the divorce decree; the matters were consolidated for the court to rule on whether the controversy should proceed as a contempt action or as a contract action. The court ruled that the action would continue as an action for contempt and, following a hearing, entered an order granting Wife judgment for the $50,000 Husband had been ordered to pay her in the final decree, subject to set-offs for the cost of an automobile, furniture, and medical and dental expenses Husband provided to Wife or paid on her behalf. Husband appeals. We hold that because Wife’s action was filed more than ten years after entry of the judgment, it is barred by the statute of limitations at Tennessee Code Annotated section 28-3-110(a)(2); accordingly, we reverse the judgment of the trial court.

Defendant, James Robert Black, Jr., was charged in a seven-count indictment returned by the Lawrence County Grand Jury with DUI second offense, DUI per se second offense, reckless driving, violation of the open container law, violation of the child restraint law, driving his vehicle left of the center of the road, and violation of the implied consent law. All the charges were the result of one traffic stop of Defendant by a trooper of the Tennessee Highway Patrol. Defendant filed a motion to suppress all evidence seized on the basis that the trooper made an unconstitutional stop of Defendant’s vehicle without probable cause or reasonable suspicion supported by specific and articulable facts that a crime had been, or was about to be, committed. After an evidentiary hearing, the trial court granted the motion. As a result, the charges were dismissed upon motion of the State and the State filed an appeal as of right. After review, we affirm the judgment of the trial court.

A bus and a trailer sustained water damage when the lot where they were stored flooded following a rainstorm. The owner of the bus and trailer sued the operator of the lot, alleging negligence, gross negligence, and breach of contract. Before filing the complaint, the owner disposed of the bus and trailer. The trial court granted the lot operator’s motion to dismiss the negligence and breach of contract causes of action. The trial court then dismissed the owner’s claim for gross negligence due to spoliation of evidence. The owner appealed the dismissal of its gross negligence claim, and we affirm the trial court’s judgment.

In this probate action, Iva Zan Thrall (“Decedent”) had named the original respondent, Marion Dodd, as a payable-on-death (“POD”) beneficiary on several of Decedent’s bank accounts.1 The petitioner, Jerry Cunningham, acting as executor of Decedent’s estate (“Executor”), initiated the instant action by filing a petition to enforce Decedent’s last will and testament in the Sullivan County Chancery Court (“trial court”). Executor named as respondents Ms. Dodd and the two financial institutions where Decedent’s accounts were maintained. Upon notice of Ms. Dodd’s death, her estate (“the Dodd Estate”) was subsequently substituted as a respondent. The two financial institutions were eventually dismissed from this action and are not participating in this appeal. Following a bench trial, the trial court determined that the Dodd Estate must provide to Executor all account funds that Ms. Dodd had received as a POD beneficiary. Following a review of Decedent’s testamentary documents, including a codicil to her last will and testament, the trial court concluded by clear and convincing evidence that Decedent intended for Ms. Dodd, who had originally been named as executrix in the last will and testament, to act in a representative capacity with regard to the account funds. The trial court held that a constructive trust be imposed regarding the funds to give effect to Decedent’s intent, which the court found to be the creation of “a resulting trust and/or implied trust” concerning the account funds. The effect of the constructive trust was that it dispossessed the account funds from the Dodd Estate and transferred those funds to Decedent’s estate via Executor. The trial court further determined that the Dodd Estate would be unjustly enriched if the trial court did not impose equitable principles. The Dodd Estate has appealed. Because we are unable to ascertain whether the trial court’s final order represents the independent judgment of the court, we vacate the order and remand for sufficient findings of facts and conclusions of law that reflect the trial court’s independent analysis and judgment.