APPELLATE COURT OPINIONS

The Petitioner, Dane Sayles, appeals the Hamilton County Criminal Court’s denial of his petition for post-conviction relief from his conviction of possession of three hundred grams or more of cocaine for resale and resulting forty-year sentence as a Range II, multiple offender. On appeal, the Petitioner contends that the post-conviction court erred by refusing to apply Riley v. California, 134 S. Ct. 2473 (2014), which prohibits the warrantless search of an arrestee’s cellular telephone incident to arrest, retroactively. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

This is an interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B (“Rule 10B”), from the trial court’s denial of a motion for judicial recusal filed by the plaintiff wife during the course of the parties’ divorce proceedings. Discerning no reversible error in the trial court judge’s denial of the motion, we affirm. 

After the plaintiff was arrested by a police officer employed by the defendant town, the plaintiff brought suit in federal court alleging that his civil rights were violated during the course of the arrest. Plaintiff further alleged that the town was negligent in its training and supervision of the arresting officer. The federal court dismissed the civil rights claims with prejudice, but declined to exercise supplemental jurisdiction over the plaintiff’s negligence claim against the town. As such, the plaintiff filed a second complaint in the Circuit Court for Washington County, in which the plaintiff again alleged that the town was negligent in its supervision and training of the arresting officer. After the town filed a motion to dismiss, the trial court concluded that immunity under the Tennessee Governmental Tort Liability Act was not removed as to the Plaintiff’s claims because the negligence claim arose out of the alleged violations of Plaintiff’s civil rights; accordingly, the trial court determined that Tennessee Code Annotated section 29-20-205(2) preserved the Defendant’s immunity, and dismissed the case with prejudice. Discerning no error, we affirm.

The Petitioner, Aurelio Garcia Sanchez, appeals the Macon County Criminal Court’s denial of his petition for post-conviction relief from his convictions of five counts of rape of a child and resulting effective sentence of one hundred twenty-five years to be served at one hundred percent. On appeal, the Petitioner contends that he received the ineffective assistance of trial counsel. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the post-conviction court.

Jerry Frazier alleged that he sustained a compensable injury in the course of his work as a truck driver for Venture Express. The trial court held that Mr. Frazier’s January 29, 2014 accident at work caused his neck, back and mental injuries, that the 1.5 times cap on permanent disability benefits did not apply, and that Mr. Frazier was permanently and totally disabled. Venture Express has appealed. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment.

The Defendant, Donalson Wells Carter, was convicted of the sale of fentanyl, simple possession or casual exchange of fentanyl, possession with intent to sell or deliver 0.5 grams or more of cocaine, and possession with intent to sell or deliver 0.5 grams or more of methamphetamine. He received an effective sentence of thirty years. The Defendant raises three issues on appeal, arguing that: (1) the trial court erred by allowing the State to introduce evidence of prior bad acts; (2) the trial court erred by failing to require the State to disclose favorable treatment of witnesses; and (3) his sentence is excessive. Upon reviewing the record and applicable law, we affirm the trial court’s judgments.

The Petitioner, Marty Holland, appeals from the Hardeman County Circuit Court’s denial of post-conviction relief. On appeal, the Petitioner argues generally that “the postconviction court erred in finding [the Petitioner] received effective assistance of counsel.” Based on the issues developed at the post-conviction hearing and the order of the post-conviction court, the issue presented is whether the Petitioner’s guilty pleas are constitutionally infirm due to trial counsel’s failure to investigate (1) a coerced confession; (2) the validity of a bench warrant concerning an unrelated offense; and (3) a search warrant executed at the Petitioner’s home concerning an unrelated case. Following our review, we deem it necessary to remand this matter to the post-conviction court for a hearing to determine whether the Petitioner was advised of the circumstances attendant to entering a guilty plea based upon an agreement that his state sentence would be served concurrently to a previously imposed federal sentence. In all other respects, the judgment of the post-conviction court it affirmed.

The defendant, Kevin McDougle, appeals from the Shelby County Criminal Court’s denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. Upon our review of the record and applicable law, we affirm the judgment of the trial court.

Defendant, Arbra Allen Sims III, pled guilty to two counts of accessory after the fact to aggravated robbery. Defendant agreed to serve four years on each count concurrently with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court ordered Defendant to serve the sentence in custody with the possibility of release pending the completion of a rehabilitative program. On appeal, Defendant argues that he should have been granted probation and that the trial court abused its discretion by relying solely on Defendant’s perceived untruthfulness about his participation in the underlying crime. We hold that the trial court did not abuse its discretion, and we affirm the trial court’s decision to deny probation.

This is a divorce case. Husband/Appellant appeals the trial court’s: (1) award of alimony in futuro to Wife; (2) award of alimony in solido for Wife’s attorney’s fees; and (3) classification of certain jewelry as Wife’s separate property. We affirm.

In a joint trial, a Rutherford County jury convicted Ahmon Watkins of two counts of aggravated rape, four counts of rape, and two counts of sexual battery, and Peter Dodson, IV, of one count of aggravated rape, one count of rape, and two counts of sexual battery. The trial court sentenced Defendant Watkins to an effective sentence of twenty years and Defendant Dodson to an effective sentence of twenty-five years. On appeal, Defendant Watkins and Defendant Dodson assert that: (1) the trial court erred when it did not grant a new trial based upon newly discovered evidence; (2) the trial court erred when it did not grant a new trial based upon the victim’s false testimony; (3) the State committed prosecutorial misconduct during closing argument; (4) the trial court made improper “introductory comments” to prospective jurors during voir dire; (5) the trial court improperly excluded impeachment testimony; (6) the trial court failed to order the deposition of the victim; (7) the trial court erred when it gave jury instructions on the law before jury selection was complete; (8) the trial court improperly instructed the jury on reckless conduct; (9) the trial court improperly addressed a jury question during deliberations; (10) the defendants are entitled to relief based upon cumulative error; and (11) the evidence is insufficient to sustain the defendants’ convictions. Defendant Watkins additionally raises issues related to sentencing. After review, we reverse for cumulative error and remand for a new trial.

The defendant, James Dominic Stevenson, appeals his Marshall County Circuit Court jury convictions of attempted first degree murder, aggravated assault, and reckless endangerment involving the use of a deadly weapon. He challenges the sufficiency of the evidence as to the element of identity. Discerning no error, we affirm.

This is a dispute over a lease agreement for property upon which the lessor permitted the lessee to mine limestone. After the original lessor died, his estate demanded that the lessee provide weight tickets as provided in the lease agreement. When the lessee failed to comply, the estate filed suit and the lessee counterclaimed. The trial court granted summary judgment to the estate on its claim for declaratory judgment and declared that the lease agreement was terminated. The court also granted summary judgment in favor of the estate on the lessee’s counterclaim for intentional interference with a business relationship. We affirm the decision of the trial court in all respects.

This appeal arises from a finding of dependency and neglect. S.Z. (“Mother”) is the mother of both E.Z. and B.G. (“the Children,” collectively). C.G. (“Father”) is the father of B.G.1 In the wake of certain non-accidental injuries sustained by B.G., Father’s father filed a petition seeking custody of the Children. The Tennessee Department of Children’s Services (“DCS”) intervened, and the Children’s maternal grandfather filed a petition, as well. Mother and Father both denied abusing B.G. The Circuit Court for Knox County (“the Trial Court”) found the Children dependent and neglected. The Trial Court found also that Mother or Father abused B.G. and the other parent knows who committed the abuse, but the Trial Court held it could not determine which parent committed the abuse. Consequently, the Trial Court declined to find severe child abuse. DCS appeals to this Court, and Mother raises additional issues. We find, inter alia, that the evidence does not preponderate against the Trial Court’s factual finding that Mother or Father abused B.G. and the other knows who committed the abuse. Given that and other findings, we hold that the Trial Court erred in concluding that it could not find severe child abuse. We, therefore, reverse that aspect of the Trial Court’s judgment and hold that severe child abuse was proven by clear and convincing evidence. In all other respects, we affirm the judgment of the Trial Court.

This action involves petitions for orders of protection filed by a wife against her husband. Following a hearing on the merits, the trial court entered an order of protection against the husband and in favor of the wife on May 23, 2018. The order of protection prohibited the husband from having contact with the wife and granted the husband co-parenting time with his four children every other weekend. The husband has appealed. Discerning no reversible error, we affirm.

Innerimages, Inc. (“Innerimages” or “the developer”) filed suit against homeowners Robert Newman, David and Melba White, and David and Susan Schilt as trustees for the David Schilt and Susan Schilt Trust. It sought to recover unpaid maintenance fees required by the restrictive covenants governing their real property. The homeowners filed a counterclaim, seeking various forms of relief. The homeowners also joined the following third-party defendants: Sandra Gunn, the president of Innerimages, homeowners David and Joan Barrett, and property owner Cupid’s Rose, LLC.2 After a bench trial, the court dismissed the collection action filed by the developer. The court determined: (1) that the restrictive covenants are unenforceable as to the four homeowners and their successors in title; (2) that the developer is liable for breach of fiduciary duty for its failure to honor its obligations under the restrictive covenants; and (3) that Sandra Gunn is personally liable under an alter ego theory of piercing the corporate veil. Finally, the court awarded the homeowners damages in the amount of all fees paid since taking ownership of their property or, in the case of the Schilt family, fees paid over the last three years. In a subsequent order, the trial court clarified that only Mr. Newman was entitled to money damages because the other homeowners had not paid fees to the developer during the relevant time period. The court also denied the homeowners’ request for attorney’s fees. Innerimages, Sandra Gunn, and Cupid’s Rose, LLC appeal. Because this appeal presents novel issues relating to the enforceability of restrictive covenants, we take this opportunity to adopt the Restatement (Third) of Property: Servitudes § 6.19(1)-(2) (Am. Law Inst. 2000). We modify the trial court’s judgment pursuant to the principles set forth in the Restatement. As modified, we affirm the judgment of the trial court. 

Petitioner, Ramone Lawson, appeals from the dismissal of his petition for post-conviction relief following an evidentiary hearing. Petitioner asserts that he was denied effective assistance of counsel which led to his convictions of one count of first degree murder, two counts of attempted first degree murder, and two counts of employing a firearm during the commission of a dangerous felony. After reviewing the briefs of the parties and the entire record, we affirm the judgment of the post-conviction court.

A Shelby County grand jury indicted the Petitioner for two counts of burglary of a building. In March 2018, before being convicted of the charges, the Petitioner filed a habeas corpus petition seeking appointment of counsel and “an updated trial in another courtroom.” The habeas corpus court denied the petition because the Petitioner had not yet been convicted of the charged offenses and based upon the numerous procedural deficiencies in the petition. The Petitioner appeals the habeas corpus court’s denial. After review, we affirm the habeas corpus court’s judgment.

Lequita Nix Hilliard (“Plaintiff”) sued Dolgencorp, LLC (“Defendant”) alleging discrimination in violation of Tenn. Code Ann. § 8-50-103, of the Tennessee Disability Act, and Tenn. Code Ann. § 4-21-311, of the Tennessee Human Rights Act; and retaliatory discharge for filing a worker’s compensation claim. The Chancery Court for Polk County (“the Trial Court”) granted summary judgment to Defendant. Plaintiff appeals. We find and hold that there is no genuine disputed issue of material fact with regard to the fact that due to her medical restrictions Plaintiff is unable to perform the essential job functions of a store manager. Given this, Defendant was entitled to summary judgment on both of Plaintiff’s claims. We, therefore, affirm.

I concur in the conclusion that the judgments of the trial court should be affirmed if the decision of this court must be made addressing the merits of the case. However, I would dismiss the appeal because, as the State correctly points out, the notice of appeal was not timely filed, and Defendant has failed to seek a waiver of the timely filing of the notice.

This is a taxation dispute between the Commissioner of the Department of Revenue and a Tennessee corporation. The primary point of contention concerns the proper tax classification of the corporation under Tennessee’s Business Tax Act. After paying an amount of taxes that it deemed improper, the corporation filed a claim for refund. The Department of Revenue subsequently denied the claim for refund, and the corporation thereafter filed suit seeking a refund in the Shelby County Chancery Court. The litigation quickly advanced with the filing of competing cross-motions for summary judgment. After a hearing, the chancery court ruled in the corporation’s favor, specifically rejecting the Commissioner’s tax classification of the business. For the reasons stated herein, we affirm.

This is the second appeal of this wrongful termination of employment case. Appellant/Employee appeals the amount of post judgment interest awarded. Because the trial court’s order does not comply with Tennessee Rule of Civil Procedure 52.01, we cannot conduct a meaningful review. As such, we vacate and remand.

Appellant Mid South Title Services, LLC agreed to act as escrow agent for a real estate transaction in which Appellee Penklor Properties, LLC was the buyer. Appellee tendered earnest money, which, under the Purchase and Sale Agreement, was to be held by Appellant unless and until the parties to the Purchase and Sale Agreement submitted a signed written agreement changing the terms of the escrow. Very shortly after the Purchase and Sale Agreement was signed, Appellant received a purported amendment from the seller’s former attorney and real estate broker. The amendment requested that Appellant release $53,000.00 of the escrowed funds in satisfaction of the attorney/broker’s “former legal fees.” Without inquiring further, Appellant issued the requested check. Appellant later discovered that the amendment was not, in fact, authorized by the parties to the Purchase and Sale Agreement. Appellee filed suit against Appellant for breach of contract and breach of fiduciary duty, and the trial court entered judgment against Appellant. Appellant appeals. We affirm.

The Defendant, Louis Dane Devillier, pleaded guilty to misdemeanor theft, driving under the influence (“DUI”), and perjury, in exchange for concurrent sentences of eleven months and twenty-nine days, with the manner of service of the sentence to be determined by the trial court. At a sentencing hearing, the trial court imposed the agreed-upon sentence and ordered the Defendant to serve his sentence in confinement. On appeal, the Defendant contests the manner of service of the sentence, contending that the trial court failed to find specific facts supporting enhancement factors and failed to give “due weight” to mitigating factors. After review, we affirm the trial court’s judgments.

Because appellants’ notice of appeal was filed more than thirty days following the trial court’s final, appealable judgment, we dismiss this appeal for lack of subject matter jurisdiction.