APPELLATE COURT OPINIONS

Sellers of home and their listing agent brought suit against a real estate brokerage firm and an agent employed by the firm to recover for alleged violations of the Tennessee Consumer Protection Act and Real Estate Broker License Act, undisclosed dual agency, and breach of fiduciary duty, arising from the sale of plaintiffs’ home.  The brokerage firm agent procured a contract whereby the sellers agreed to purchase the buyers’ home, with the purchase price for the buyers’ home to be treated as a credit on the purchase price of the sellers’ home.  Upon learning that the agent was also representing the buyers, the sellers brought suit, seeking forfeiture of the agent’s and brokerage firm’s commission; the sellers’ listing agent joined in the suit to recover the commission the brokerage firm agreed to pay her as a referral fee.  The trial court dismissed all claims filed by the seller husband for lack of standing, granted summary judgment to seller wife on her claim of undisclosed dual agency, and ordered that the brokerage firm and agent forfeit the commission from the sale.  The court awarded the listing agent the commission she sought and granted summary judgment to brokerage firm and agent on the seller wife’s claim under the Tennessee Consumer Protection Act and on the seller wife’s claim that she was entitled to the commission generated by the sale of the buyers’ home.  Upon a thorough review of the record, we affirm the judgment in part and reverse in part, and remand the case for further proceedings.    

The petitioner, Steven Padgett King, appeals the dismissal of his post-conviction petition, arguing the post-conviction court erred in dismissing the petition as time-barred. Following our review, we agree with the petitioner and reverse the order of the post-conviction court dismissing the petition as untimely.

We granted permission for this appeal to determine whether a surviving spouse who files a wrongful death lawsuit is acting as a legal representative of the decedent and whether a wrongful death lawsuit filed pro se by the surviving spouse is void ab initio based on the spouse’s pro se status. In this case, the decedent’s surviving spouse filed a pro se wrongful death health care liability lawsuit shortly before the one-year statute of limitations lapsed. After expiration of the limitations period, the spouse retained an attorney and filed an amended complaint. In the ensuing discovery, the defendants learned that the decedent had two daughters, both of whom were statutory beneficiaries in the wrongful death action. The defendants filed motions for summary judgment. They argued that the spouse’s initial pro se complaint was filed in a representative capacity on behalf of the decedent and the other statutory beneficiaries and that it was, therefore, void ab initio; thus, the filing of the amended complaint could not relate back to the date of the initial complaint, and the lawsuit was time-barred. The trial court denied the summary judgment motions and permitted the amended complaint to relate back to the date of the initial pro se complaint. It then conducted a jury trial; the jury found both defendants liable and awarded damages. The defendant hospital appealed the denial of summary judgment. Adopting the defendant’s argument, the Court of Appeals reversed. The plaintiff now appeals. Under the plain language of Tennessee’s wrongful death statutes, the decedent’s right of action “pass[es] to” the surviving spouse upon the decedent’s death, and the surviving spouse asserts the right of action for the benefit of himself and other beneficiaries. Tenn. Code Ann. § 20-5-106(a) (2009 & Supp. 2016). Consequently, we hold that the surviving spouse did not file the initial pro se complaint as the legal representative of either the decedent or the decedent’s estate. As we construe our wrongful death statutes, in filing the pro se complaint, the surviving spouse was acting to a large extent on his own behalf and for his own benefit pursuant to his right of self-representation. Under the facts of this case, we hold that the initial pro se complaint was not void ab initio, it served to toll the statute of limitations, and the trial court did not err in allowing the filing of the amended complaint to relate back to the date of the initial complaint. Accordingly, we reverse the decision of the Court of Appeals, affirm the trial court’s denial of summary judgment, and remand to the Court of Appeals for consideration of the other issues that were properly raised on appeal but not addressed. 

Kevin Tate was convicted of a first degree murder that took place on March 22, 1993. On November 22, 1995, he was sentenced to life in prison. In the current litigation, he filed a petition for declaratory judgment asking the trial court to review his release eligibility date as calculated by the Tennessee Department of Correction (TDOC). Petitioner claimed that TDOC incorrectly calculated his release eligibility date, and, in doing so, violated his rights under the ex post facto provisions of the state and federal constitutions. The trial court found that TDOC correctly calculated his release eligibility date. As a consequence, the court dismissed the petition. We modify the judgment of the trial court by vacating the court’s statement that “as Mr. Tate is serving a sentence of life for first degree murder, in no event can he become eligible for release prior to serving 25 years.” In all other respects, we affirm the trial court’s judgment

Obispo C.L. (“the Minor’s Uncle”) appeals the determination of the Chancery Court for Rutherford County (“the Trial Court”) finding that it lacked jurisdiction to make a finding regarding whether it is in the best interest of Domingo C.L. (“the Minor”) to be returned to his home country of Guatemala. We find and hold that the Trial Court had jurisdiction to make this finding, that the petition specifically requested a finding with regard to this issue, and that it was error to refuse to make a finding with regard to whether it was in the Minor’s best interest to be returned to Guatemala. We, therefore, modify the Trial Court’s October 31, 2016 Order Appointing Guardian Of A Minor by remanding this case to the Trial Court for a determination of whether it is in the Minor’s best interest to be returned to Guatemala. We affirm the remainder of the Trial Court’s order.

This is a termination of parental rights case. The trial court terminated Appellant Father’s parental rights to two minor children. The trial court found that clear and convincing evidence supported termination based on the statutory grounds of abandonment by willful failure to support, abandonment by willful failure to visit, and persistence of the conditions that led to the children’s removal to state custody. The trial court also found, by clear and convincing evidence, that termination of the Father’s parental rights was in the children’s best interests. Father appeals. As to the ground of persistence of conditions, we conclude that the Department of Children’s Services (“DCS”) has not met its burden of proof, and therefore we reverse termination of Father’s parental rights on this ground. The Court affirms the juvenile court’s termination of Father’s parental rights on the grounds of abandonment by willful failure to support and abandonment by willful failure to visit.

In this appeal, the plaintiff sued her former real estate agent and his real estate company for malpractice and negligence in the attempted sale of her home. The trial court granted summary judgment to the defendants upon holding (1) that the plaintiff failed to effectuate service of process on the defendants; (2) that the defendants did not waive the affirmative defense by filing their answers more than 30 days after the complaint was filed, by filing a notice of appearance, and by participating in the litigation; and (3) that the defendants properly pled the affirmative defense in their answers. We affirm the judgment of the trial court.

The Defendant, Jacob Scott Hughes, was convicted of first degree felony murder and aggravated child abuse, for which he was sentenced, respectively, to life and twenty-five years, to be served consecutively, as a result of the death of the sixteen-month-old daughter of his girlfriend.  On appeal, he raises three issues:  (1) the trial court erred in ruling that he could not refer to his co-defendant, who was the mother of the child, as his "co-defendant," as well as to the fact that she had entered a guilty plea to lesser-included offenses; (2) the trial court erred in not redacting from his Facebook message a racial slur, which previously had been ruled inadmissible; and (3) whether autopsy photographs were properly admitted as exhibits during the testimony of the medical examiner.  Following our review, we conclude that the issues raised on appeal are without merit and arrim the judgments of the trial court.

The Petitioner, Donnell V. Booker, appeals as of right from the Trousdale County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. He claims entitlement to habeas corpus relief, alleging that his eight-year sentence for Class B felony cocaine possession is illegal because it should have run consecutively to his prior sentences, rather than concurrently, as was agreed to in his plea agreement. Following our review, we affirm the trial court’s summary dismissal of the petition but do so on a different ground—the Petitioner has failed to show by a preponderance of the evidence that his sentence is illegal. See Mike Settle v. Ricky Bell, Warden, No. M2007-02743-COA-R3-CV, 2008 WL 4725599, at *1 (Tenn. Crim. App. Oct. 28, 2008) (affirming using similar procedure).

This appeal concerns post-divorce matters pertaining to a marital dissolution agreement (“the MDA”) and a parenting plan. Mary Wagoner-Angelin (“Mother”) filed a petition seeking modification of the parenting plan against ex-husband Randall Jon Angelin (“Father”) in the Circuit Court for Hamilton County (“the Trial Court”). Father filed an answer and counterclaim challenging the alimony provision in the MDA. Mother later amended her petition to include allegations of civil contempt for Husband’s alleged failures to abide by the MDA and parenting plan. After a trial, the Trial Court, inter alia, found Father in contempt. Father appeals to this Court. We affirm the Trial Court in its determination that Father is bound by the provisions of the MDA. We affirm the Trial Court in its finding an upward deviation for the parties’ daughter Rachel’s private school tuition. Regarding the other issues, we remand with instructions. The judgment of the Trial Court therefore is affirmed, in part, vacated, in part, and remanded for further proceedings consistent with this Opinion.

After the trial court entered a final judgment awarding plaintiff damages and attorney’s fees, defendant filed a timely motion requesting additional findings of fact and conclusions of law. The trial court then entered a second judgment incorporating the requested findings of fact and conclusions of law. After entry of the second judgment, plaintiff filed a motion for an award of additional attorney’s fees, which the trial court treated as a motion to alter or amend. The plaintiff later withdrew his motion for additional attorney’s fees, and the trial court entered an order authorizing the withdrawal. Later, in response to a motion to quash a garnishment, the trial court entered a third judgment, which granted the motion but otherwise incorporated by reference the court’s previous rulings. Defendant filed a notice of appeal within thirty days after entry of the third judgment but more than thirty days after the order granting plaintiff leave to withdraw his motion for additional attorney’s fees. Because we conclude the notice of appeal was untimely, we dismiss the appeal.

The Defendant, Andre Hill, appeals the Knox County Criminal Court’s revocation of his probation. On appeal, the Defendant argues that (1) the admission of a witness’s statements at the revocation hearing violated his right of confrontation; and (2) the trial court abused its discretion by ordering him to serve his original sentence in confinement. Upon review, the judgment of the trial court is affirmed.

This is a consolidated appeal by the State. Holly N. Hilliard (“Ms. Hilliard”), Brian K. Reynolds (“Mr. Reynolds”), and Joseph A. Tester, II (“Mr. Tester”) (collectively, “the Defendants”) were charged, via presentment, with conspiracy to manufacture over .5 grams of methamphetamine within 1,000 feet of a school. The presentment also charged Ms. Hilliard and Mr. Reynolds with one count of manufacturing greater than .5 grams of methamphetamine within 1,000 feet of a school, two counts of attempted aggravated child neglect, one count of maintaining a dwelling where controlled substances are used or sold, and one count of possession of drug paraphernalia. The Defendants moved to suppress evidence found in a warrantless search of their residence. Following a suppression hearing, the trial court found that the officers’ subjective reasons for entering the house were inconsistent, that there were not sufficient exigent circumstances to justify a protective sweep, and that the officers’ entry into the residence was an illegal warrantless search. The trial court granted the motions and suppressed the evidence found in the residence. Upon review, we conclude that the trial court erred by using a subjective rather than objective test in finding that the exigent circumstances were not sufficient to justify the officers’ entering the residence to perform a protective sweep. However, we determine that the police officers’ knocking on the front door for ten to fifteen minutes while announcing their badge of authority rendered the encounter with Ms. Hilliard nonconcensual and the knock and talk investigation unlawful. The subsequent warrantless entry of the residence therefore violated the prohibition against unreasonable searches and seizure under the Fourth Amendment of the United States Constitution and article 1 section 7 of the Tennessee Constitution. The subsequent consent to search given by Ms. Hilliard was not voluntary and resulted from an exploitation of the prior illegality. We, therefore, affirm the judgments of the trial court suppressing the evidence in these three cases.

This interlocutory appeal arises out of a tort action brought by a restaurant manager against her employer for injuries she received during the course of a robbery and rape by a cook at the restaurant where both were employed. The employer moved for summary judgment, contending that the workers’ compensation law provided the exclusive remedy for the employee. The trial court denied the motion, holding that the injuries the employee sustained did not arise out of the employment. Upon review, we affirm the denial of summary judgment and remand the case for further proceedings.

Plaintiff sued the owner and the operator of a public venue after slipping on liquid on the floor and injuring herself. Defendants moved for summary judgment. In granting summary judgment, the trial court concluded, based upon the undisputed facts, that defendants did not have actual or constructive notice of the liquid on the floor. Plaintiff appeals, arguing that wet spills throughout the venue and two other slip and fall incidents on the concourse area constituted a pattern of conduct, a recurring incident, or a general or continuing condition sufficient to put defendants on constructive notice of the liquid causing Plaintiff’s fall. Because Plaintiff failed to provide sufficient evidence of constructive notice, we affirm the grant of summary judgment.  

The majority opinion affirms the grant of summary judgment in this slip and fall case based on the determination that Wanda Katz (“Plaintiff”) failed to provide sufficient evidence of constructive notice. I respectfully disagree, having concluded that there exists a genuine issue of material fact as to whether Defendants had constructive notice of the dangerous condition.
 

Appellants sought disqualification of the trial court judge pursuant to Tennessee Supreme court Rule 10B based primarily on an order entered by the trial court in March 2016. Because Appellants waited approximately one year to seek disqualification of the trial court judge, they have waived their rights under Rule 10B.

James Tucker was employed as a truck driver by Tree & Shrub Trucking, Inc. (“Employer”) from 2006 until 2014. In 2012, Mr. Tucker sustained a compensable lower back injury. After having surgery, he was able to return to work for Employer. His claim for permanent partial disability benefits was settled, based on one and one-half times the anatomical impairment. Tenn. Code Ann. § 50-6-241(d)(1)(A) (applicable to injuries occurring prior to July 1, 2014). In January 2014, Mr. Tucker had a dramatic increase in his symptoms while bending over to fuel his truck. A claim for a new injury was filed after he was examined by his treating physician. Employer’s workers’ compensation insurer had changed between the two incidents. Each insurer contended that the other was liable for Mr. Tucker’s claim. Mr. Tucker was not able to return to work for Employer. Ultimately, Mr. Tucker settled his claim with the second insurer (“Praetorian”). He pursued a claim for reconsideration of the previous settlement against Employer and the first insurer (“Berkley Risk”). The trial court found that Mr. Tucker was entitled to reconsideration and awarded additional benefits of four times the anatomical impairment. Employer 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 trial court’s judgment.

The Petitioner, Anzar McFarland, appeals as of right from the Johnson County Criminal Court’s summary dismissal of his petition for writ of habeas corpus. He claims entitlement to habeas corpus relief, alleging that his judgment of conviction for class A felony rape of a child was void because he was not granted pretrial jail credit. Following our review, we affirm the habeas corpus court’s summary dismissal of the petition.

This case arises out of the demise of a long-term marriage. The trial court declared the parties divorced, equitably divided the marital estate, and awarded the wife alimony in solido, rehabilitative alimony, and alimony in futuro. On appeal, the husband raises many issues, including whether the doctrine of unclean hands should bar wife from receiving an award of alimony in solido, whether the court’s division of the marital estate was inequitable, and whether the court’s alimony awards were based on a clearly erroneous assessment of the evidence. Finding no abuse of discretion, we affirm the trial court’s decision in all respects.

Following the trial court’s denial of his motion to suppress, the Defendant-Appellant, Robert Lamar Kelley, entered a guilty plea in the Wilson County Criminal Court to the charged offense of possession of more than ten pounds of marijuana, a Class D felony, for which he received a sentence of four years, with service of six months in confinement and the remainder on supervised probation. See T.C.A. §§ 39-17-417(a)(4), (g)(2). As a condition of his guilty plea, Kelley properly reserved two certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) regarding the stop and search of his vehicle. After reviewing the record, we find no error in the denial of the motion to suppress and affirm the judgment of the trial court.

The State appeals as of right from the Cocke County Circuit Court’s grant of the Defendant’s, James Mark Thornton’s Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The State contends that the trial court erred because the challenged sentence was not illegal. We agree with the State and dismiss the Defendant’s Rule 36.1 motion.

We granted this interlocutory appeal to review the trial court’s order granting the motion of the defendant, Mark Harold Lullen a.k.a. Luellen, to suppress his statement because officers did not give Miranda warnings. Upon review, we conclude Miranda warnings were unnecessary because the defendant was not in custody when questioned by law enforcement, so the trial court erred when granting the defendant’s motion to suppress on that basis. Despite arguments by the defendant that he did not voluntarily give his statement because he was under the influence of prescription drugs, the trial court failed to make findings of fact in this regard. Accordingly, we remand for full hearing and additional findings as to whether the defendant’s statement was voluntary.

The pro se defendant, Michael Smith, appeals the summary denial of his motion to correct clerical errors on the face of an order suspending a forty-month sentence for a felony escape conviction. The defendant argues the trial court actually resentenced him to one year, time served, and the order did not accurately reflect this ruling. The defendant further argues the trial court should have entered an amended judgment reflecting the resentencing. On review, we conclude the record is insufficient to support the defendant’s arguments and affirm the trial court’s denial of the motion.

James Phillips (“Employee”) worked for The Pictsweet Company (Employer”) as a truck driver and mechanic. He alleged that he sustained a compensable back injury on December 2, 2013. Employer eventually denied the claim primarily because the treating physician’s opinion was that Employee’s symptoms were caused by preexisting degenerative changes and were not related to his work. Although Employee received additional medical treatment through Tenncare, his condition did not improve. An IME physician opined that Employee’s condition was work-related and that he retained permanent impairment. The trial court found that Employee had sustained a compensable injury and awarded permanent partial disability benefits of 72% to the body as a whole. Employer has appealed that decision. 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 in part, modify in part, and reverse in part.