APPELLATE COURT OPINIONS

The Appellant, Michael Bonsky, was convicted by a jury in the Shelby County Criminal Court of second degree murder, attempted second degree murder, and especially aggravated robbery. The trial court imposed a total effective sentence of sixty years in the Tennessee Department of Correction. On appeal, the Appellant raises the following issues: (1) whether the trial court erred by drafting its own jury instruction regarding diminished capacity; (2) whether the trial court erred by admitting evidence regarding the Appellant‘s presence at a casino and committing a robbery in Mississippi within hours of the instant offenses; (3) whether the trial court erred by admitting a recording of the telephone call one of the victims made to 911; (4) whether the trial court erred by admitting the Appellant‘s statement into evidence; (5) whether the trial court erred by not allowing an expert witness to testify regarding the Appellant‘s level of intoxication and his ability to form the requisite intent; (6) whether the trial court erred in sentencing the Appellant; and (7) whether the evidence was sufficient to sustain the Appellant‘s convictions. Upon review, we conclude that the trial court‘s instruction to the jury regarding diminished capacity was error and that the error was not harmless; therefore, the Appellant‘s convictions are reversed, and the case is remanded for a new trial.

In this case, the jury eschewed the charge of first degree murder and convicted the defendant of the lesser included offense of second degree murder. I write separately because I thought it worth pointing out why this circumstance did not cause the instructional error to be harmless.

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, from the denial of a motion for recusal filed by Richard Darrell Trigg ("Former Husband") in the parties' post-dissolution proceedings. Having reviewed the petition for recusal appeal filed by Former Husband, and finding no error in Trial Court's ruling, we affirm.

The Petitioner, Dalton B. Lister, appeals the Bradley County Criminal Court's denial of his petition for post-conviction relief from his convictions for first degree felony murder, attempt to commit aggravated robbery, and conspiracy to commit aggravated robbery and his effective life sentence. The Petitioner contends that the State destroyed evidence, withheld exculpatory evidence, and concealed the existence of an agreement with a codefendant, and that the cumulative effect of the misconduct deprived him of his constitutional right to a fair trial. We affirm the judgment of the post-conviction court.

The issue on this appeal is the enforceability of an arbitration agreement. Tim and Pamela Adams (Plaintiffs) bought a mobile home from CMH Homes, Inc. (Defendant). As part of the transaction, Plaintiffs signed an arbitration agreement after they were told by Defendant’s sales manager that they “had to sign the papers in order to get the home moving.” This statement was false, although the manager testified that he was unaware of its falsity at that time. Plaintiffs alleged fraudulent inducement with respect to the arbitration agreement. After a hearing, the trial court ruled that Plaintiffs established their fraudulent inducement claim. As a consequence, the court set aside the arbitration agreement. Defendant appeals. We affirm.

The petitioner, Saidrick T. Pewitte, appeals the denial of his petition for post-conviction relief, arguing that he received the ineffective assistance of counsel. After review, we affirm the judgment of the post-conviction court.

We granted an extraordinary appeal to consider a trial court’s refusal to dismiss a petition to terminate parental rights. Following their divorce, the child’s father filed a petition to terminate the parental rights of the mother. The mother moved to dismiss for lack of standing. In response, the father amended his petition to add his mother, the child’s grandmother, as an additional petitioner. The mother renewed her motion to dismiss. We reverse the trial court’s denial of the motion to dismiss because both the father and his mother lack standing. 

In this divorce action, Husband contends the trial court erred by granting Wife a divorce on the grounds of Husband’s inappropriate marital conduct despite the fact he was found guilty of, inter alia, three counts of rape of a child while the divorce was pending. Husband also takes issue with the classification of property, the division of marital property, and the award of alimony to Wife. We affirm the trial court in all respects.

Inmate brought petition under Tennessee Public Records Act seeking review of the District Attorney General’s handling of his request that he be furnished copies of records relating to his prosecution. The trial court held that the Attorney General did not deny the request but, rather, that the petitioner failed to advance the costs of copying the records and, accordingly, was not entitled to relief. Finding no error, we affirm the judgment of the trial court.

Following a borrower’s default on a loan agreement, Regions Bank (“Regions”) accelerated the loan and filed this lawsuit against the loan’s guarantors to collect the amounts due. After Regions sold the collateral securing the loan, it sought a judgment for the remaining deficiency. This is the second appeal of this case to this Court. Although the trial court awarded Regions a deficiency judgment prior to the first appeal, we vacated that award upon concluding that Regions had failed to provide sufficient notice to the guarantors prior to its disposition of the collateral. We observed that under Tennessee Code Annotated section 47-9-626, a secured party that has not complied with the commercial code’s collection, enforcement, disposition, and acceptance requirements can only recover a deficiency if it proves that compliance with the relevant provisions would have yielded a smaller amount than the secured obligation, together with expenses and attorney’s fees. Because the trial court did not make any findings on this issue, we remanded the case for further proceedings to determine the amount of the deficiency, if any, under Tennessee Code Annotated section 47-9-626. On remand, the trial court entered a deficiency judgment against the guarantors in the amount of $1,210,511.51. Both sides now appeal from this judgment, asserting various issues. Because Regions did not present any evidence that it would have received less than the total amounts due to it had it provided proper notice, we reverse the trial court’s determination that Regions is entitled to a deficiency. We further reject the guarantors’ assertions that they are entitled to a surplus.

The surviving spouse in this wrongful death action appeals the trial court's dismissal of him as a plaintiff. The decedent and surviving spouse had one child together, who was eighteen months old at the time of the decedent's fatal automobile accident in October 2010. The decedent and surviving spouse were living apart, and the child had been residing solely with the decedent. On November 18, 2010, the surviving spouse, acting on behalf of the decedent, the child, and himself, filed the instant action in the Monroe County Circuit Court (“trial court”) against the seventeen-year-old driver of the other vehicle involved in the accident and her parents, who were the owners of the vehicle. Also in November 2010, the Monroe County Juvenile Court granted custody of the child to the maternal grandmother.

In an opinion filed on March 31, 2016, we reversed the judgment of the trial court on the grounds that the wrongful death claims were barred by the statute of limitations because the only complaint filed prior to the running of the limitations period was void. The appellee, Linda Beard (“Plaintiff”), timely filed a petition for rehearing pursuant to Tenn. R. Civ. P. 39 in which she contends the filing of the pro se complaint by the decedent’s surviving spouse, Denver Hartley, tolled the statute of limitations even if his filing constituted the unauthorized practice of law. She also contends the pro se complaint filed by Mr. Hartley was voidable, not void; therefore, the deficiency could be remedied pursuant to Tenn. R. Civ. P. 11. Further, she contends the amended complaint, which was duly signed by a licensed attorney, should relate back to the filing of Mr. Hartley’s pro se complaint pursuant to Tenn. R. Civ. P. 17.01.

The defendant, Cordricus Arnold, was convicted of first degree (felony) murder. On appeal, he argues that the evidence was insufficient to sustain his conviction and that the trial court erred by failing to instruct the jury regarding the offense of voluntary manslaughter. Following our review of the briefs of the parties, the record, and the applicable law, we affirm the judgment of the trial court.

Defendant, John T. Davis, filed a motion under Tennessee Rule of Criminal Procedure 36.1 alleging that his concurrent sentences in case numbers 8050, 8452, and 9171 were illegal because he was released on parole in case numbers 8050 and 8452 at the time he committed the offenses in case number 9171. The trial court summarily dismissed the motion. After review of the record and the briefs, we affirm the judgment of the trial court.

This is a divorce case. On appeal, Vincente Acosta (Husband) argues that the trial court erred in reopening the proof shortly after the conclusion of a nonjury trial. The court did so for the purpose of receiving additional evidence on the subject of spousal support. Husband also argues that the trial court erred in ordering him to pay Kity Sonia Acosta (Wife) alimony in futuro of $1,500 per month. We hold that the trial court did not abuse its discretion in reopening the proof and thereafter awarding Wife spousal support in futuro. Accordingly, we affirm the judgment of the trial court.

Amy Chan (Wife) and Henry Chan (Husband) were granted a divorce in 2005, and the division of their marital assets was reserved for a future hearing. Some ten years later, in 2015, the trial court entered an order decreeing a division as outlined in a proposal by Wife. Husband appeals, maintaining that the trial court had previously ruled from the bench that the assets would be divided based upon a proposal filed by him. We affirm.

James Brooks began working for Healthcare Horizons, Inc. in October 2013. He was required to sign a confidentiality and non-solicitation agreement (CNSA). The CNSA provides that disputes regarding the agreement would be settled by binding arbitration; there were exceptions – claims requesting equitable or injunctive relief were to be resolved by litigation in Knoxville. In March 2014, Healthcare Horizons terminated Brooks. He subsequently accepted a position with a new firm founded by John Graham, the former president of Healthcare Horizons. Graham had also executed a CNSA while working for Healthcare Horizons. His agreement provided that all disputes arising out of that agreement would be settled exclusively by binding arbitration. In November 2014, Healthcare Horizons filed a complaint against Brooks, alleging a breach of his CNSA and misappropriation of trade secrets. Brooks filed a motion to compel arbitration or, in the alternative, to stay the case pending resolution of an ongoing claim of Healthcare Horizons against Graham. The trial court denied Brooks’ motion. He appeals. We affirm.

In this divorce action, Wife contends the trial court erred in the division of marital property and by declining to award her alimony. Wife also contends the trial court erred by permitting her counsel of record to withdraw, denying her recusal motion, and denying her requests for disability modifications. We affirm the trial court in all respects. We also find Wife’s appeal frivolous and remand for the trial court to award Husband his reasonable and necessary fees and expenses incurred on appeal.

Utility district brought action to condemn a parcel of real property which was located outside the district’s boundaries in order to construct a water storage tank, associated piping, and an access road. The trial court denied the petition, and the district appeals. Finding that the district is given the power in the Utility District Law to construct and maintain its system, and that the unrebutted evidence shows that the district was not attempting to expand the boundaries of its service area, we reverse the judgment of the trial court and remand the case for a hearing on the damages due the property owner.

Defendant, Domnick Doria, was indicted by the Montgomery County Grand Jury for 39 counts of sexual exploitation of a minor.  Defendant was convicted as charged in counts two, three, four, and six.  Defendant was convicted of a lesser-included offense in counts one, five, and seven through thirty-nine. Defendant received an effective sentence of 13 years for all his convictions.  In this appeal as of right, Defendant contends that the trial court erred by denying his motions to suppress his statement to police and evidence collected from his home during the execution of a search warrant; that the evidence is insufficient to support his convictions; that the trial court improperly admitted hearsay testimony; that the trial court erred by admitting previously excluded evidence; that Defendant’s convictions violate the double jeopardy clause; and that the trial court erred by imposing consecutive sentencing.  Having reviewed the entire record and the briefs of the parties, we conclude that the judgments of the trial court should be affirmed.

Victor Andrea Askew, the Petitioner, filed a Petition for Post-Conviction Relief alleging a single claim that counsel was ineffective for failing to argue that the judge ruling on the motion for new trial should apply the version of Tennessee Code Annotated section 17-1-305 that was in effect at the time of the Petitioner’s offense.  The post-conviction court denied relief.  Upon review, we affirm the judgment of the post-conviction court.

Defendant, Johnathan Dale Abernathy, was found not guilty of the charge of domestic assault.  At his arraignment, pursuant to T.C.A. §  40-14-202(e), the trial court had found that he could pay a portion of his attorney fees even though the public defender was appointed to represent him.  He had only paid a portion of the fees prior to trial.  Subsequent to the trial, Defendant filed a motion to remit some or all of the fees.  At the motion hearing, and without prior notice of contempt charges to be answered, the trial court summarily held Defendant in civil contempt with the contempt to be purged when he paid the balance owed.  Defendant appealed, and we reverse the judgment of the trial court and dismiss all contempt charges.

This is a premises liability action. A visitor fainted and fell into an antique, glass display case located in a retail store in Gatlinburg, Tennessee. The glass in the case shattered, piercing her chest and causing her death. Her husband sued the retail store and the mall in which it operated for negligence. The defendants filed a motion for summary judgment, which the trial court granted, finding that the injuries were not reasonably foreseeable. We affirm.

Appellant is an inmate in the Tennessee prison system; he is serving a life sentence, with the possibility of parole, for first degree murder. Appellee, the Tennessee Board of Parole, declined to recommend the Appellant for parole, citing as its reason the seriousness of his offense. Appellant filed a common law writ of certiorari in the Davidson County Chancery Court challenging the Board’s decision to deny him parole. The chancery court dismissed the petition. We affirm.

This is an appeal from an order designating a primary residential parent, setting visitation and child support, and changing the child’s last name to that of Father. The juvenile court found that naming Father as primary residential parent was in the child’s best interest and determined that the child’s last name should be changed. Mother appealed both the designation of primary residential parent and the changing of the child’s last name. We affirm.