APPELLATE COURT OPINIONS

A Davidson County grand jury indicted Lesergio Duran Wilson, the defendant, with first degree premeditated murder as a result of the death of David Hurst, the victim. Following trial, the jury returned a guilty verdict, for which the defendant received a life sentence. On appeal, the defendant challenges the trial court’s exclusion of his experts, denial of his motion to recuse the trial court, admission of certain photographic evidence, admission of evidence related to the actions of the victim’s girlfriend following his death, jury instructions regarding the use of deceptive practices by law enforcement, and imposition of a consecutive sentence. Discerning no errors, we affirm the judgment of the trial court.

The Defendant, Joshua Hill, appeals the trial court’s revocation of his probation, arguing that the court should have imposed an alternative sentence rather than ordering him to serve the balance of his original sentence incarcerated and therefore abused its discretion. After thorough review, we affirm the judgment of the trial court.

This is an appeal from an order denying a motion to set aside an order of protection. Because the appellant did not file his notice of appeal within thirty days after entry of the order as required by Tenn. R. App. P. 4(a), we dismiss the appeal.

This is the second appeal of this case, which involves the destruction of a TimberPro TL735B harvester by electrical fire. In the first appeal, we affirmed the grant of summary judgment for all claims against the defendants except for claims of the breach of the implied warranties of merchantability and fitness against appellee, Woodland Equipment, Inc. (“Woodland”). After the first appeal, the trial court found that Woodland breached the implied warranty of merchantability with respect to the protective plastic covering used to cover the wires that caused the electrical fire. Nonetheless, the trial court did not hold Woodland liable, finding appellant, J.W. Smith, leaving the master switch “on” was the “last precipitating cause” of the fire. The court also determined that if an appellate court was to reverse its findings, the damages Smith would be entitled to would be $330,000 for the harvester, which was determined by subtracting the salvage value of the harvester ($45,000) from the value of the harvester before the fire ($375,000). We conclude that Smith’s failure to turn “off” the master switch was not an intervening cause, and the evidence does not preponderate against the trial court’s prospective award of damages. We affirm in part, reverse in part, and remand for further proceedings.

Plaintiff siblings appeal the dismissal of their legal malpractice action on the basis of the statute of limitations. Because the trial court did not comply with Henderson v. Bush Bros. & Co., 868 S.W.2d 236 (Tenn. 1993), in ruling on Plaintiffs’ motions to amend their complaints, we vacate the trial court’s judgment and remand for reconsideration.

This is a sexual assualt/health care liability case wherein a female customer alleges she was assaulted while receiving a massage at a day spa. The customer sued both the massage therapist as well as the employer-business, bringing intentional tort, negligence, and vicarious liability claims. The customer complied with the pre-suit notice requirements as required by the Tennessee Health Care Liability Act; however, she failed to file a certificate of good faith with her complaint. The massage therapist and the business both moved for summary judgment and noted such failure, asking the trial court to dismiss the customer’s claims with prejudice. The trial court granted both parties’ motions for summary judgment, dismissing all of the customer’s claims. The customer appealed. Because we find that the requirements of the Tennessee Health Care Liability Act are not applicable to the claims against the massage therapist but are applicable to the claims against the employer, we affirm in part and reverse in part.

The pro se Defendant, Gregory L. Hatton, appeals the Giles County Circuit Court’s summary denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. After review, we affirm the judgment of the trial court.

The Petitioner, Lorenza Zackery, appeals the Davidson County Criminal Court’s denial of his petition for writ of habeas corpus. On appeal, the Petitioner argues that his convictions are invalid because the trial court clerk failed to file-stamp his judgments of conviction. We affirm the judgment of the habeas corpus court.

The pro se Defendant, James Arthur Johnson, appeals the Davidson County Criminal Court’s summary denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. After review, we affirm the judgment of the trial court.

An employee of Nashville Electric Service (“NES”) was terminated in 2015 due to false and misleading information he provided on his initial application for employment nine years earlier, in 2006. NES did not discover that the information was false until the employee submitted an application for promotion in 2015 and one of his supervisors noticed a discrepancy between the two applications. NES provided the employee with a due process hearing and a hearing by an administrative law judge before the Electric Employees’ Civil Service and Pension Board of the Metropolitan Government of Nashville and Davidson County (“the Board”), which voted to terminate his employment. The employee filed a petition for judicial review of the Board’s decision, which the chancery court affirmed. On appeal to this Court, we affirm the trial court’s judgment upholding the Board’s decision.

The Petitioner, Natasha Bates, appeals the Bradley County Criminal Court’s denial of her petition for post-conviction relief from her convictions of two counts of first degree felony murder and two counts of aggravated child neglect and resulting effective sentence of two consecutive life terms. On appeal, the Petitioner contends that the trial court should have granted her motions to suppress evidence and that she 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.

This appeal involves a complaint for damages for breach of an alleged oral agreement to conduct an estate sale. After a bench trial, the trial court awarded Appellee damages for breach of contract, negligent bailment, and violation of the Tennessee Consumer Protection Act (“TCPA”). For violation of the TCPA, the trial court trebled the compensatory damages awarded Appellee and also awarded attorney’s fees and costs against Appellant. Because the parties did not have a sufficiently definite agreement to be enforceable, we reverse the trial court’s award of damages for breach of contract. We also reverse the trial court’s findings of negligent bailment and violation of the TCPA, which resulted in the award of treble damages and attorney’s fees. We affirm the trial court’s award of the sale proceeds to Appellee.

Here, as I perceive it, the majority opinion contains four central holdings: (1) both Defendant Burrell and Defendant Gould’s are “health care providers,” and, as such, any claims against them that relate to the provision of health care services are governed by the Tennessee Health Care Liability Act (“THCLA”); (2) the intentional tort claims against Defendant Burrell are not governed by the THCLA because they are not related to the provision of health care services; (3) all vicarious liability claims against Defendant Gould’s fail to state a claim upon which relief can be granted; and (4) the remaining direct liability claims against Gould’s, i.e., the claims of negligent retention and supervision, are governed by the THCLA and fail due to the lack of a good faith certificate. While I agree with the result reached by the majority with regard to the first three holdings, I cannot agree that Plaintiff’s negligent retention and supervision claims fail due to the lack of a good faith certificate. As such, I respectfully file this partial dissent.

Joe Butler (“Employee”) alleged he developed invasive pulmonary aspergillosis due to his exposure to the aspergillus fungus during the course and scope of his employment with the Oneida Water Department (“Employer”).  After a trial, the court concluded Employee failed to prove by a preponderance of the evidence his work activities were the proximate cause of his injury.  Employee appeals, arguing the evidence preponderates against the trial court’s findings. 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.  After review, we reverse the trial court’s judgment and remand for further proceedings.

Defendant, Martinos Derring, was convicted by a jury of robbery, theft, felony evading arrest, and evading arrest. The trial court sentenced Defendant to a total effective sentence of fourteen years, eleven months, and twenty-nine days. Defendant appealed, asserting various challenges to his convictions and effective sentence. On appeal, we determine that the trial court should have merged Defendant’s convictions for robbery and theft and committed a clerical error by marking the box rendering Defendant infamous for misdemeanor evading arrest. For those reasons, we reverse and remand to the trial court for entry of amended judgment forms. In all other respects, the judgments of the trial court are affirmed.

Defendant, Mack Transou, seeks appellate review of his motion to reopen his post-conviction petition, which has its origin in the rapes he committed over seventeen years ago. After a review of the filings in this case, we conclude that Defendant failed to meet the procedural requirements for seeking review of the dismissal of his motion and that Defendant’s claims are devoid of merit and frivolous. Therefore, we dismiss the appeal.

Defendant, Jay R. Hassman, pled guilty to unspecified charges in August of 2016 in exchange for a four-year sentence to be served on probation. The trial court subsequently revoked Defendant’s probation after a hearing and ordered Defendant to serve his original sentence. Defendant filed a “Motion for New Revocation Hearing” in which he argued that he received ineffective assistance of counsel at the revocation hearing. The trial court denied relief on the basis that the motion was untimely as a motion for reduction of sentence under Tennessee Rule of Criminal Procedure 35 and that the motion could not be construed as a petition for post-conviction relief. After a review of the scant record, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

The Petitioner, Larry Johnson, appeals from the Shelby County Criminal Court’s denial of his petition for a writ of error coram nobis from his 1999 conviction for first degree premeditated murder and his sentence of life imprisonment. The Petitioner contends that the court erred by denying relief. We affirm the judgment of the coram nobis court.

This appeal concerns whether a circuit court has jurisdiction to consider a post-trial motion once it dismisses an appeal by a defendant from general sessions court for failure to appear. Ken Smith Auto Parts (“Plaintiff”) brought an action against Michael F. Thomas (“Defendant”) in the Hamilton County General Sessions Court (“the General Sessions Court”) and prevailed. Defendant appealed to the Circuit Court for Hamilton County (“the Circuit Court”). Defendant missed trial. The Circuit Court entered an order dismissing his appeal and remanding the case to the General Sessions Court for execution of judgment. Defendant filed a motion pursuant to Tenn. R. Civ. P. 59 and 60 seeking relief on the basis that he missed trial because of a traffic jam. The Circuit Court granted Defendant’s motion and vacated the order of dismissal. However, the Circuit Court later concluded that it lost jurisdiction when it dismissed Defendant’s appeal and that its subsequent order was null. Defendant appeals to this Court. We hold that the Circuit Court’s order of dismissal was subject to post-trial motion via the Tennessee Rules of Civil Procedure, and the Circuit Court retained jurisdiction to consider it. We hold further that the Circuit Court properly exercised its discretion to grant Defendant’s motion. We affirm, in part, and reverse, in part, the judgment of the Circuit Court, and remand for further proceedings.

Tabatha H. (“Mother”) and James M. (“Father”) appeal the April 5, 2018 order of the Juvenile Court for Bradley County (“the Juvenile Court”) terminating their parental rights to the minor child, Jayla H. (“the Child”). We find and hold that the Juvenile Court did not err in finding that there was clear and convincing evidence of grounds to terminate Mother’s parental rights for abandonment by willful failure to visit pursuant to Tenn. Code Ann. § 36-1-113(g)(1), and that there was clear and convincing evidence that it was in the Child’s best interest for Mother’s parental rights to be terminated. We further find and hold that the Juvenile Court did not err in finding the evidence to be clear and convincing as to grounds to terminate Father’s parental rights for failure to establish paternity pursuant to Tenn. Code Ann. § 36-1-113(g)(9), and clear and convincing that it was in the Child’s best interest for Father’s parental rights to be terminated. We, therefore, affirm.

This appeal follows a jury trial in which the plaintiff was awarded a judgment of $9,950 for property damage caused by a construction company while demolishing a neighboring structure. Plaintiff appeals taking issue with, inter alia, the jury’s finding that he was comparatively at fault, the amount of the award, and opposing counsel’s closing argument. Because the plaintiff failed to file a motion for a new trial in the trial court, the plaintiff has waived any issue predicated upon error in “the admission or exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case[.]” Tenn. R. App. P. 3(e). Moreover, because the plaintiff failed to provide this court with a transcript of the evidence or a proper statement of the evidence relevant to any issue presented for review, this court is precluded from considering the issues. See State v. Ballard, 855 S.W.2d 557, 561 (Tenn. 1993). Accordingly, the judgment of the trial court is affirmed.  

Defendant, Jamie C. Moore, appeals his convictions for possession with intent to sell and deliver more than .5 grams of cocaine and possession of a firearm with the intent to go armed during the commission of a dangerous felony. In his appeal, he contends that the evidence is insufficient to support his convictions under a theory of criminal responsibility because he did not benefit from the proceeds of the drug sales. After a review, we conclude that Defendant received a benefit when he received drugs for his personal use. Therefore, we affirm the judgments of the trial court but remand for entry of a corrected judgment document for Count Two reflecting its merger with Count One.

The Petitioner, Ytockie Fuller, appeals the post-conviction court’s denial of his petition for post-conviction relief, in which he challenged his convictions for first degree premeditated murder and possession of a firearm after a felony conviction and his effective sentence of life without the possibility of parole plus eight years. On appeal, the Petitioner contends that he received ineffective assistance of counsel at trial due to trial counsel’s failure to: (1) request a limiting instruction regarding an audio recording of the murder; (2) object to the prosecutor’s comments regarding the Petitioner’s silence following his arrest; and (3) object to the prosecutor’s statements regarding the forensic pathologist’s testimony. Upon reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

Petitioner, Jeffery Yates, sought correction of a clerical error in his judgment from a 2003 conviction for aggravated robbery. After the trial court corrected the judgment, Petitioner appealed. On appeal, Petitioner alleges that the trial court was without jurisdiction to amend the judgment, that the trial court failed to find the original judgment contained a clerical error, and that the amended judgment is incomplete. We determine that the amended judgment form is incomplete because it does not specify that Petitioner is a Career Offender, and we remand the matter to the trial court for correction of the judgment form. In all other respects, the judgment of the trial court is affirmed.

The Petitioner, Reginold C. Steed, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief. On appeal, he argues: (1) post-trial counsel provided ineffective assistance in failing to present evidence that the victim allegedly recanted his trial testimony identifying the Petitioner as the perpetrator; (2) the post-conviction court erred in failing to notify him of the date of the post-conviction hearing; and (3) the trial court erred in failing to consider the victim’s alleged recantation during sentencing. We affirm the denial of post-conviction relief. However, we remand the case for entry of a corrected judgment form in Count 2, as specified in this opinion.