APPELLATE COURT OPINIONS

In this termination of parental rights case, the trial court terminated Mother’s rights on the grounds of (1) abandonment by willful failure to visit; (2) abandonment by wanton disregard; (3) substantial noncompliance with the permanency plans; (4) abandonment by failure to provide a suitable home; and (5) persistent conditions. In its brief, DCS conceded that it cannot defend the grounds of failure to establish a suitable home and persistent conditions. As such, we reverse as to the grounds of abandonment by failure to provide a suitable home and persistent conditions. The trial court’s judgment is affirmed in all other respects.

The pro se Petitioner, Kenneth O. Williams, appeals the summary dismissal of his petition for writ of habeas corpus. Following our review, we affirm the dismissal of the petition.

The pro se Petitioner, E. Louis Thomas, appeals the summary dismissal of his petition for writ of habeas corpus. Following our review, we affirm the dismissal of the petition.

The Defendant, Franklin James Howe, appeals the Hamilton County Criminal Court’s order revoking his probation and ordering him to serve his sentence in confinement. The State has filed a motion to affirm the trial court’s order pursuant to Tennessee Court of Criminal Appeals Rule 20. Following our review, we conclude that the State’s motion is well-taken and affirm the order of the trial court.

Mother appeals the termination of her parental rights to two children. The juvenile court found six statutory grounds for termination and that termination of the mother’s parental rights was in the children’s best interest. We conclude that the evidence was less than clear and convincing as to one of the statutory grounds and that two other statutory grounds did not apply in this instance. But the record contains clear and convincing evidence to support three grounds for termination and that termination is in the children’s best interest. So we affirm the termination of the mother’s parental rights.

I concur fully in the majority’s opinion in this case. I write separately solely to express my opinion that inasmuch as the majority opinion relies on this Court’s decision in In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7 (Tenn. Ct. App. May 31, 2018), for the standard of proof concerning Tennessee Code Annotated § 36-1-113(g)(14) (2017), I believe that this statutory ground allows termination of parental rights if the petitioner proves by clear and convincing evidence that the parent “has failed to meet the requirement of manifesting both a willingness and an ability to assume legal and physical custody of the child or has failed to meet the requirement of manifesting both a willingness and an ability to assume financial responsibility of the child.” See In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *12-15 (Tenn. Ct. App. June 20, 2018); see also In re Neamiah R., No. E2017-02000-COA-R3-PT, 2018 WL 2331868, at *7 (Tenn. Ct. App. May 23, 2018).

This is a slip-and-fall case. A middle school teacher injured herself when she fell in the hallway outside her classroom on a wet floor. A custodian had been mopping the hallway prior to her fall, and the teacher alleged that the custodians had negligently and misleadingly placed wet-floor signs on the opposite side of the hallway, which did not warn her of the wet floor on her side of the hallway. Thereafter, the teacher brought suit against the school district pursuant to the Tennessee Governmental Tort Liability Act. Following a bench trial, the trial court found the custodians guilty of negligence and assigned seventy-five percent of the fault to the school district and twenty-five percent of the fault to the teacher. A judgment was entered against the school district in the amount of $180,000.00, after reduction for the teacher’s comparative fault. The school district appeals, contending (1) that it is immune from suit; (2) that it was not negligent; and (3) that any negligence it may have committed is outweighed by that of the teacher’s comparative fault. The teacher argues that the trial court erred in assigning any of the fault to her. We affirm in part and reverse in part

I must respectfully dissent from the majority’s opinion in this case.

The evidence presented at trial indicates that the school system’s “mopping policy” was actually part of a larger “Departmental Safety Program” directed toward all Clarksville-Montgomery County School System employees. For the “Custodial Department,” the program provided, “[w]hen mopping floors, cleaning up spills, or anytime the floor becomes wet for whatever reason, always put the wet floor signs out until the area is completely dry.” For “Professional Staff,” the program provided, “[a]lways pay close attention to wet floor signs or wet floor conditions to avoid slips and falls.”

In this case, the plaintiffs sued the defendants for constructing a gate that interfered with their use of an existing gravel road located on the defendants’ farm. According to the plaintiffs, access to their property required use of the gravel road. The gravel road in question crosses two separate tracts owned by the defendants and runs southwest to northeast from a state highway through the defendants’ farm and then east to west through another tract. Although the plaintiffs claimed that the easement was fifty-feet in width along its entire length, the court found that the section of the road running through the defendants’ farm was a public road with a width of only twelve feet. The court also denied the plaintiffs’ request for discretionary costs. The plaintiffs appeal the court’s finding concerning the width of the public road and the denial of discretionary costs. Discerning no error, we affirm.

The defendant, Denton Jones, appeals his Knox County Criminal Court jury conviction of theft of property valued at $1,000 or more, arguing that the State should not have been permitted to aggregate into a single count of theft the value of property taken on five separate occasions from two different locations; that the trial court erred by permitting testimony concerning evidence that suggested the defendant had committed other offenses; that the trial court erred by denying his motions for mistrial, including one based upon an alleged violation of Brady v. Maryland; that the evidence was insufficient to support his conviction; and that the cumulative effect of the errors at trial entitle him to a new trial. Discerning no error, we affirm.

This case involves a contract dispute concerning four simultaneously executed agreements that, if completed, would have essentially constituted a trade of two parcels of improved real property. The plaintiff buyers entered into the four agreements with the defendant sellers on October 1, 2013, giving the buyers a lease on the sellers’ property, located on Walnut Breeze Lane in Knoxville, Tennessee (the “Walnut Breeze Property”), with an option to purchase that property in the unspecified future. The buyers agreed to trade equity in their own property, located on First Street in Corryton, Tennessee (“First Street Property”), as partial payment for the Walnut Breeze Property if they chose to exercise the option. On January 6, 2014, the parties met for a “closing,” and the buyers conveyed title to the First Street Property to the sellers. However, the “REAL ESTATE SALES CONTRACT” related to the Walnut Breeze Property stipulated that the transfer of title to the Walnut Breeze Property was subject to the existing mortgagee’s approval, which neither party had obtained. The buyers continued to reside at the Walnut Breeze Property, making monthly payments to the sellers until a year later when the buyers vacated the Walnut Breeze Property and stopped making payments. The sellers sent the buyers a notice to vacate three months later. In November 2016, the buyers filed a complaint in the Union County Chancery Court (“trial court”), claiming breach of contract, unjust enrichment, and fraud. The buyers requested $75,000 in compensatory damages, $150,000 in punitive damages, return of the First Street Property, and reasonable attorney’s fees. The sellers filed an answer and subsequent amended answer, denying all substantive allegations and raising affirmative defenses. The sellers concomitantly filed a counterclaim, asserting, inter alia, that the buyers had breached the lease agreement and requesting an award of unpaid rent and reasonable attorney’s fees. Following a bench trial, the trial court found that the buyers breached the terms of the lease agreement by withholding payments on the Walnut Breeze Property for three months. The trial court also found that the buyers had exercised their option to purchase the Walnut Breeze Property by signing over title to the First Street Property but that the sellers knew at that time that the buyers could not satisfy the financing condition of the sale. The trial court awarded to the buyers the equity value of the First Street Property as stipulated in the sales agreement concerning that property, minus the value of three months’ unpaid rent, which the trial court awarded to the sellers. The trial court denied the parties’ respective requests for attorney’s fees. The sellers have appealed. Having determined that each party is entitled to some award of attorney’s fees under the overarching contract, we reverse the trial court’s denial of attorney’s fees and remand for a determination of the respective attorney’s fee awards. We affirm the trial court’s judgment in all other respects.

A medical product sales representative brought suit against her former employer, a hospital, claiming retaliation in violation of the Tennessee Human Rights Act. After a bench trial, the trial court judge entered a verdict in favor of the hospital, having concluded that the employee failed to carry her burden of proof. In spite of dismissing the employee’s case, the trial court awarded the employee a portion of her attorney’s fees as “sanctions” against the hospital for making an allegedly late-filed motion to strike the employee’s demand for a jury trial, which the trial court granted. We affirm the trial court’s dismissal of the employee’s retaliation claim, and we reverse the trial court’s order granting the employee attorney’s fees.

The Petitioner, Chris Jones, appeals the dismissal of his petition for post-conviction relief upon the post-conviction court’s determination that it was filed outside the statute of limitations and that the Petitioner failed to prove that his mental incompetence required its tolling. After review, we affirm the dismissal of the petition.

Defendant, Quincy D. Scott, appeals his conviction for aggravated robbery for which he was sentenced to seventeen years as a Range II, multiple offender at 85%. On appeal, Defendant contends that the cumulative effect of various errors at trial entitled him to a new trial. Upon reviewing the record and the applicable law, we affirm the judgment of the trial court.

In this post-divorce matter, the trial court ordered the father, Harold W. Duke, III (“Father”), to deposit $5,729.17 and $5,312.50 per month, respectively, into the educational accounts of the parties’ two daughters. The court determined that the children’s separate trust accounts were not required to be utilized to fund their college expenses. The court also awarded the mother, Kathryn A. Duke (“Mother”), $4,006.00 for attorney’s fees incurred in pursuing a civil contempt petition against Father, as well as $25,000.00 for attorney’s fees and $1,237.50 in discretionary costs related to establishment of the proper amounts to be contributed by Father to the educational accounts. Father has appealed. Discerning no error, we affirm the trial court’s judgment. We decline, however, to award Mother attorney’s fees incurred in this appeal.

A Williamson County Circuit Court Jury convicted the Appellant, Frederick D. Curll, of aggravated cruelty to an animal, a Class E felony, and the trial court sentenced him as a Range II, multiple offender to four years in confinement. On appeal, the Appellant contends that the trial court erred in its jury instruction of “sadism,” that the evidence is insufficient to support the conviction, and that he received the ineffective assistance of counsel because trial counsel failed to call a veterinary expert to testify on his behalf and failed to file a motion to suppress the officer’s search of his back yard and seizure of the animal’s body without a warrant. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.

Defendant, Dexter Octavius Parker, was indicted for attempted first degree murder in Count One, “aggravated domestic assault” in Count Two, and especially aggravated kidnapping in Count Three. After a jury trial, Defendant was convicted of attempted second degree murder in Count One, aggravated assault in Count Two, and especially aggravated kidnapping in Count Three. He received a total effective sentence of forty-six years. On appeal, Defendant argues that the trial court improperly excluded the conclusion of one expert witness while allowing the conclusion of another expert witness regarding Defendant’s mental state. Defendant also argues that the trial court erred by reinstating and amending Count Two of the indictment after dismissing it during the trial. Concluding that the trial court committed structural constitutional error by reinstating Count Two of the indictment, we reverse and vacate the judgment in Count Two and affirm the judgments in Counts One and Three.

This appeal involves the filing of a termination petition by the mother and stepfather against the father of two minor children. The court denied the termination petition but appointed the stepfather as the permanent guardian of the children. The father appeals. We vacate the order of permanent guardianship.

Pro se Petitioner, Charles Owens, appeals the dismissal of his petition for writ of habeas corpus by the Hickman County Circuit Court. On appeal, the Petitioner argues that his convictions for aggravated sexual battery are void because (1) the trial court announced his sentence through written order, without the Petitioner present, in violation of Tennessee Rule of Criminal Procedure 43(a)(3); and (2) the trial court ordered partial consecutive sentencing in violation of Tennessee Code Annotated section 40-20-111(a). Following our review, we affirm the dismissal of the petition, pursuant to Rule 20, Rules of the Court of Criminal Appeals.

The Petitioner, Rhyunia Lamont Barnes, was convicted of first degree murder and sentenced to life. In his appeal, the Petitioner argues that the trial court erred in summarily dismissing his petition for writ of error coram nobis. Upon review, we affirm the judgment of the coram nobis court.

The Petitioner, James M. Meese, entered guilty pleas to aggravated statutory rape, aggravated assault, simple possession of marijuana, and contributing to the delinquency of a minor, with a negotiated Range I seven-year sentence to be served on probation. The Petitioner filed a post-conviction petition, asserting that his trial counsel failed to properly investigate his charges and inaccurately advised him regarding his cumulative exposure. We conclude that trial counsel was ineffective in failing to accurately advise the Petitioner of his range of punishment and that as a result, the Petitioner did not knowingly enter into the plea agreement. Accordingly, we reverse the post-conviction court’s judgment, and we remand for a new trial on all charges.

The Knox County Grand Jury indicted the Defendant, Nehad Sobhi Abdelnabi, on two counts of especially aggravated kidnapping, two counts of aggravated assault, and one count of aggravated burglary. The Defendant’s first trial resulted in a mistrial. At the Defendant’s second trial, the jury convicted him of aggravated kidnapping in count one, especially aggravated kidnapping in count two, and aggravated assault in counts three and four. The jury acquitted the Defendant of aggravated burglary in count five. The trial court sentenced the Defendant to serve twelve years for count one, seventeen years for count two, and six years for counts three and four, respectively. The trial court merged the Defendant’s conviction in count one into count two and merged count four into count three and ordered that he serve the sentences concurrently, for a total effective sentence of seventeen years in the Tennessee Department of Correction (TDOC) at 100% release eligibility. On appeal, the Defendant argues the following: (1) the trial court erred in denying the Defendant’s motion to dismiss the indictment because the State violated the rule against double jeopardy by intentionally eliciting objectionable testimony from a State witness in the Defendant’s first trial; (2) the trial court erred by denying the Defendant’s motion for mistrial when the victim told the Defendant to “[b]e a man” and “[t]ake the stand” during the victim’s cross-examination; (3) the State committed prosecutorial misconduct by allowing the victim’s objectionable testimony, which violated the Defendant’s right to not testify; (4) the victim’s objectionable testimony and “the subsequent denial of the motion for mistrial[] violated his constitutional right to a fair trial”; (5) the trial court erred by limiting the Defendant’s cross-examination of the co-defendant, Lowi Akila, which violated the Defendant’s right to confrontation; (6) the trial court erred by excluding testimony regarding the victim’s alleged bias; (7) the trial court erred under Tennessee Rule of Evidence 604 and Tennessee Supreme Court Rule 42 in denying the Defendant’s request to require witnesses to testify in the language that the testimony was originally given in; (8) the trial court violated the Defendant’s right to due process by allowing witnesses to testify in English about conversations that occurred in Arabic; (9) the trial court erred by admitting the victim’s medical records; (10) the State violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose that the victim received compensation from the State of Tennessee; (11) the evidence was insufficient for a rational juror to have found the Defendant guilty of aggravated kidnapping, especially aggravated kidnapping, and aggravated assault beyond a reasonable doubt; (12) the trial court erred in its application of enhancement factors to the Defendant’s sentence; (13) the Defendant’s sentence contravenes the principles and purposes of the Tennessee Sentencing Act; and (14) the Defendant is entitled to cumulative error relief. After a thorough review of the facts and applicable case law, we affirm.

The Petitioner, Richard Earl Madkins, Jr., filed a petition in the Trousdale County Circuit Court seeking habeas corpus relief from his conviction of especially aggravated robbery and resulting twenty-five-year sentence, alleging that the trial court did not have jurisdiction to convict or sentence him because he was arrested for the offense without a warrant. The habeas corpus court denied relief without a hearing, and the Petitioner appeals. Upon review, we affirm the judgment of the habeas corpus court.

Drayton Beecher Smith, II (“Attorney”) pled guilty in 2007 to federal charges of receipt and possession of images depicting child pornography and was sentenced to five years of imprisonment. In conjunction with these charges, Attorney consented to his disbarment, which was ordered in 2008. In August 2014, after being discharged from prison and while on probation, Attorney petitioned to be reinstated to the practice of law in Tennessee. The Board of Professional Responsibility (“BPR”) opposed Attorney’s petition, and a hearing panel was appointed (“the Panel”). After an evidentiary hearing, the Panel denied Attorney’s petition. Attorney sought review in chancery court, and the chancery court reversed the Panel’s decision and ordered Attorney reinstated. The BPR sought review in this Court. Initially, we hold that the chancery court had subject-matter jurisdiction of Attorney’s petition in spite of the BPR’s untimely filing of its application for costs. We further hold that the chancery court misapplied the applicable standard of review and thereby committed reversible error. Accordingly, we reverse the chancery court’s ruling and reinstate the Panel’s decision.

Appellants’ employee embezzled funds from Appellants using the employee’s Bank of America account. The employee wrote checks on Appellants’ accounts to legitimate third party vendors but deposited the checks into her own personal account by way of Bank of America’s ATMs. Appellants filed suit against Bank of America alleging that the bank’s failure to either prevent this activity or alert Appellants thereto constituted causes of action for aiding and abetting conversion, aiding and abetting fraud, civil conspiracy, and negligence. The trial court granted Bank of America’s motion to dismiss Appellants’ claims for aiding and abetting fraud and conversion and for civil conspiracy based on Bank of America’s lack of knowledge of Appellants’ employee’s wrongdoing. The court subsequently granted Bank of America’s motion for summary judgment on the remaining negligence claim finding that the bank owed no duty to Appellants. We affirm.