APPELLATE COURT OPINIONS

I respectfully dissent from the majority’s opinion in this case. I disagree with the majority’s conclusion that “the complaint fails to state a cause of action for abuse of process.” Applying the appropriate standard of review as correctly articulated by the majority, I believe the complaint does state a claim upon which relief can be granted as to the abuse of process claim.

This is a common law abuse of process case. The plaintiffs contend that the defendant attorney abused otherwise lawful process without authorization and for an improper purpose. The trial court dismissed this case as a matter of law for failure to state a claim upon which relief can be granted pursuant to Rule 12.02(6). We affirm.

The owner of property in a residential subdivision appeals the order of the trial court prohibiting construction of an eight-foot wooden fence. We affirm.

The Petitioner, Davarius Smith, appeals as of right from the Lauderdale County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that he was entitled to post-conviction relief based on the following alleged violations of his constitutional rights: (1) that the State withheld exculpatory evidence; (2) that, alternatively, he received ineffective assistance of trial and appellate counsel regarding this undisclosed evidence; (3) that he received ineffective assistance of trial counsel due to trial counsel’s failure to file a motion to suppress a witness’ prior identification of the Petitioner; and (4) that he received ineffective assistance of appellate counsel due to appellate counsel’s failure to challenge an allegedly impermissible comment by the prosecutor during closing arguments and to properly challenge a special jury instruction provided by the trial court. Following our review, we affirm the judgment of the postconviction court.

This appeal involves a dispute between a loan servicer and a family who subsequently defaulted on a mortgage for a piece of property. The loan servicer foreclosed and sold the property according to the express terms of the mortgage note and deed of trust after the family had been in default for multiple years and after multiple failed attempts to seek loan modification. The family sued for breach of contract and the covenant of good faith and fair dealing, promissory estoppel, and intentional misrepresentation, asserting that the loan servicer promised to postpone the foreclosure sale until after completion of the most recent loan modification review process. The trial court granted summary judgment to the loan servicer on all claims. The family appealed on all four issues. We affirm the trial court’s judgment in all respects.

The Defendant, Ebony Marshall, was convicted upon his guilty pleas of two counts of robbery, a Class C felony. He was sentenced to terms of twelve and thirteen years as a persistent, Range III offender for the offenses. The sentences were imposed to run consecutively, for an effective sentence of twenty-five years. The Defendant filed a motion to withdraw his guilty plea, which the trial court denied. On appeal, the Defendant contends that: (1) the trial court erred in denying his motion to withdraw his guilty pleas, (2) the trial court erred in imposing consecutive sentences, and (3) he was denied his rights to due process and self-representation in the trial court proceedings. We affirm the judgments of the trial court.

This appeal arises from the termination of a father’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Montgomery County (“the Juvenile Court”) seeking to terminate the parental rights of Jeffrey H. (“Father”) to his minor children Candice, Danonie, and Izabella (“the Children”). The Children had entered DCS custody after a domestic incident between Father and the Children’s mother. After a trial, the Juvenile Court entered an order finding by clear and convincing evidence that grounds existed to terminate Father’s parental rights and that termination is in the Children’s best interest. Father appealed. Finding it inapplicable to putative biological parent Father, we reverse the ground of failure to establish paternity found as regards the child Danonie. We affirm the rest of the Juvenile Court’s judgment terminating Father’s parental rights to the Children.

The Petitioner, Antonio L. Fuller, appeals as of right from the Trousdale County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. The Petitioner contends that the petition stated a cognizable claim for habeas corpus relief. Discerning no error, we affirm the judgment of the habeas corpus court.

The Defendant, John Alfred Waters, appeals as of right from his convictions for aggravated assault, violation of an order of protection, and attempted aggravated burglary. The Defendant contends (1) that there was insufficient evidence to support his convictions for aggravated assault as charged in counts 6, 7, and 8; (2) that the trial court erred when it admitted evidence of the Defendant’s previous conviction for violating an order of protection; and (3) that the trial court erred in allowing a police officer to testify that one of the victims was the “most terrified” victim he had ever seen because such evidence was irrelevant and unduly prejudicial. Following our review, we affirm the judgments of the trial court.

This appeal involves the termination of a mother’s parental rights to her two sons.  The trial court found by clear and convincing evidence that four grounds for termination were proven and that it was in the best interest of the children to terminate parental rights.  Mother appeals but only challenges the best interest determination.  We have also reviewed the evidence regarding each ground for termination.  We vacate the trial court’s finding regarding one ground for termination but otherwise affirm the trial court’s order and affirm the termination of the mother’s parental rights.

In this breach of contract action, the plaintiff entered into a contract with a sole proprietor whereby he purported to purchase 10% of the sole proprietorship. The contract entitled the plaintiff to 10% of the cash withdrawals made from the business's account. It further provided that, should the sole proprietor dissolve the business and form a new entity of which she was a majority owner, the plaintiff would be entitled to 10% of the cash withdrawals taken by the sole proprietor from the new entity. Two years later, the sole proprietor closed the business and formed a new entity, a limited liability company, with another individual. The plaintiff filed suit, alleging breach of contract and violations of the duty of good faith and fair dealing. The trial court found for the sole proprietor, concluding that the sole proprietor was free to close her business at will. It further found that the sole proprietor did not breach the express terms of the contract, nor did she breach her implied duty of good faith and fair dealing, in closing her business and forming the LLC. Discerning no error, we affirm.

In this breach of contract case, Transfill Equipment Supplies & Services, Inc. (TESS) sued Advanced Medical Equipment, LLC (AME) for delinquent payments of (1) rent due on TESS’s equipment, (2) purchases of medical oxygen, and (3) the fair market value of rented equipment that AME had not returned to TESS. AME filed a separate lawsuit against TESS seeking damages for conversion of oxygen tanks. After consolidating the cases, the Sumner County General Sessions Court awarded damages to TESS and dismissed all of AME’s claims. AME appealed to the trial court. The court found that AME was guilty of breach of contract due to its failure to make timely payments. As a consequence, the court awarded judgment to TESS in the amount of $34,999.45. The trial court also found that TESS had not converted AME’s oxygen tanks. AME appeals. We affirm.

The trial court granted partial summary judgment to the defendant hospital on the ground that the plaintiffs could not establish that they witnessed or perceived an injury-producing event for purposes of their negligent infliction of emotional distress claims. We hold that the alleged failure of the defendant hospital to provide care to the plaintiffs’ daughter, despite repeated assurances from the hospital that it would occur, constitutes an injury-producing event that was witnessed by plaintiffs. Accordingly, the trial court erred in dismissing plaintiffs’ negligent infliction of emotional distress claims on this basis.

“The law of negligent infliction of emotional distress has been called ‘one of the most disparate and confusing areas of tort law.’” Lane v. Estate of Leggett, No. M2016-00448-COA-R3-CV, 2017 WL 1176982, at *3 (Tenn. Ct. App. Mar. 29, 2017) (citing Camper v. Minor, 915 S.W.2d 437, 440 (Tenn. 1996)). While this is a statement with which I agree, I must respectfully dissent from the majority opinion. I certainly do not dispute that the Plaintiffs in this case have suffered extreme emotional distress, nor do I mean to discount their grief and suffering as a result of the death of their daughter, Halle Henderson.

This is an appeal from the trial court’s designation of a child’s primary residential parent. After an analysis of the best interest factors set forth in Tennessee Code Annotated section 36-6-106(a), the court concluded that it would be in the child’s best interest to designate Mother as the child’s primary residential parent. Father appealed. Mother has requested attorney’s fees incurred in defending this appeal. We affirm the judgment of the trial court, grant Mother’s attorney’s fees incurred on appeal, and remand to the trial court to determine the proper amount of Mother’s award of attorney’s fees.

This is the third appeal in an ongoing dispute between the Town of Collierville and the owner of property on which two billboards are situated. On February 12, 2013, the Town filed a petition for writ of certorari, challenging a decision of the Board of Zoning Appeals. Because the petition for writ of certorari does not comply with Tennessee Code Annotated section 27-8-106, the trial court and, therefore, this Court lack subject matter jurisdiction. We vacate the judgment of the chancery court and dismiss the petition.

The State appeals the suppression of evidence by the Obion County Circuit Court. The defendant, Jerome Antonio McElrath, was arrested on two separate occasions for criminal trespass. The searches of the defendant’s person incident to those arrests produced marijuana in the amounts of 10.1 grams and 4.0 grams, respectively. After an evidentiary hearing, the trial court granted the defendant’s motion to suppress the evidence seized incident to his arrests and dismissed the charges. The State argues that the arresting officer had probable cause to arrest the defendant and, therefore, the search incident to each arrest was lawful. Furthermore, the State contends that the evidence was legally obtained because the officer acted in good-faith reliance on information provided by dispatch. After review, we affirm the decision of the trial court.

This appeal involves a contract dispute between a general contracting company and a husband and wife who sought the company’s assistance to build a log cabin home. After the husband and wife defaulted on the original construction contract, the husband and wife and the company signed a second contract, a promissory note, for the remaining balance. The husband and wife subsequently defaulted on the promissory note. The trial court held that the husband and wife breached the second contract, the terms were clear and unambiguous, and a potential ambiguity in the first contract regarding a nonrefundable deposit and/or retainer was legally irrelevant in determining the amount owed under the second contract. Because the second contract was clear and unambiguous, we hold that the total sum owed by the husband and wife is proper despite any ambiguity in the first contract. Further, we hold that the trial court properly denied the husband and wife’s motion to amend their answer because of undue delay. Accordingly, we affirm the trial court’s judgment.

This appeal arises from the dismissal of a pro se inmate’s complaint for failure to prosecute. After filing his complaint in 2005, the plaintiff took no action in the case for more than 10 years. In 2015, the trial court directed the plaintiff to show cause why the case should not be dismissed for failure to prosecute. Instead of providing an explanation for the delay, the plaintiff sought a default judgment against the defendant. The trial court then dismissed the case with prejudice. On appeal, we find no abuse of discretion in the trial court’s decision. We therefore affirm the judgment of the trial court.

Deadrick Garrett (“the Petitioner”) appeals the Knox County Criminal Court’s denial of post-conviction relief from his conviction for first-degree premeditated murder and resulting life sentence. On appeal, the Petitioner argues that he received ineffective assistance of counsel based on trial counsel’s failure to: (1) communicate with the Petitioner and adequately explain criminal and trial procedure; (2) review discovery with the Petitioner, including witness statements and forensic evidence; (3) have the Petitioner evaluated by a mental health expert and pursue a diminished capacity theory of defense; (4) anticipate that the trial court would deny a self-defense jury instruction and develop a viable alternative defense; and (5) object to the Petitioner’s demonstrating on crossexamination that he could open the knife used in the murder with one hand. The Petitioner further asserts that trial counsel improperly: (6) advised a defense witness to be hostile towards the victim; (7) instructed the Petitioner to “cry on cue”; and (8) fabricated the Petitioner’s trial testimony “so as to create some justification for [the Petitioner’s] stabbing [the victim].” After a thorough review of the appellate record and applicable law, we affirm the judgment of the post-conviction court.

Defendant, Scottie R. Buckles, pled guilty in ten separate cases to a total of sixty-three separate offenses for which he received an effective sentence of fifteen years as a Range II, multiple offender. The trial court denied alternative sentencing after a hearing. Defendant appeals the denial of alternative sentencing on the basis that the trial court failed to consider whether Defendant should be sentenced under the special needs provision of the Community Corrections Act. After a review, we determine that the trial court did not abuse its discretion. Accordingly, the judgments of the trial court are affirmed.

The Defendant, Charlene Trussell, was found guilty by a Bledsoe County Circuit Court jury of three counts of delivery of a controlled substance, three counts of the attempted sale of a controlled substance, and felony possession of drug paraphernalia. See T.C.A. §§ 39-17-417 (Supp. 2013) (amended 2014) (sale and delivery); 39-17-425 (2014) (drug paraphernalia); 39-12-101 (criminal attempt) (2014). The trial court merged the delivery convictions into the attempted sale convictions and sentenced the Defendant to an effective three years’ probation. The court did not impose sentences or enter judgment forms for the delivery convictions. On appeal, the Defendant contends that (1) the evidence is insufficient to support her convictions and (2) as a matter of plain error, evidence of the confidential informant’s previous statements were inadmissible hearsay, violated the Defendant’s right to confront and cross-examine witnesses, and were inadmissible because the probative value was substantially outweighed by the prejudicial impact. Although we affirm the Defendant’s convictions, we remand the case to the trial court for the imposition of sentences and the entry of judgments for the delivery of a controlled substance convictions, merger of the attempted sale convictions into the delivery convictions, and entry of corrected judgments for the attempted sale convictions.

The plaintiff business owner, who provided carpet cleaning services, filed an action in the Hamilton County General Sessions Court (“general sessions court”) against a customer, alleging that the customer had failed to compensate him for services rendered. The customer subsequently filed a counterclaim against the business owner, alleging that he had ruined an oriental rug in her home and sprayed chemicals on her furniture. The general sessions court entered a judgment in favor of the customer. The business owner appealed to the Hamilton County Circuit Court (“trial court”). Following a de novo trial, the trial court also found in favor of the customer, determining that the business owner had damaged the customer’s carpet. The trial court awarded damages to the customer in the amount of $500.00. Discerning no reversible error, we affirm.

The Petitioner, Alejandro Avila Salazar, appeals the dismissal of his petition for writ of habeas corpus by the Wayne County Circuit Court. The Petitioner previously entered guilty pleas to second degree murder and attempted aggravated rape, for which he received an effective sentence of forty years' confinement. On appeal, he argues that he is entitled to withdraw his guilty plea because his sentence for attempted aggravated rape is illegal and was a material, bargained-for element of his plea agreement. Upon review, we affirm the judgment of the habeas corpus court.

Defendant, Rafael Moreno, Jr., pled guilty to one count of aggravated statutory rape. After a sentencing hearing, the trial court sentenced him to a three-year sentence of incarceration as a Range I, standard offender. Defendant appeals the trial court’s denial of judicial diversion and/or an alternative sentence. Because the trial court did not abuse its discretion, we affirm the judgment of the trial court.