APPELLATE COURT OPINIONS

The Defendant, Markhayle Jackson, entered a guilty plea in 2011 to first degree premeditated murder and was sentenced to life without the possibility of parole pursuant to a negotiated plea agreement. In 2015, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting the correction of an illegal sentence. The trial court summarily dismissed the motion for failure to state a colorable claim. On appeal, the Defendant contends that the trial court erred by dismissing the motion. We affirm the judgment of the trial court.

This appeal arises from the termination of a mother’s parental rights. When the child turned six months old, a juvenile court found Mother and Father’s child dependent and neglected and placed the child in the custody of the paternal grandparents. After having custody for nearly five years, the paternal grandparents filed a petition for termination of Mother’s and Father’s parental rights and for adoption in chancery court. The trial court terminated Father’s parental rights at a separate hearing. At the hearing on Mother’s parental rights, the trial court found clear and convincing evidence that Mother, who was incarcerated when the petition to terminate was filed, abandoned the child. The court also found it to be in the best interest of the child to terminate Mother’s parental rights. Mother appeals, and we affirm.  

This appeal involves the termination of a father’s parental rights to his child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of his rights on the statutory grounds of abandonment for failure to remit child support, substantial noncompliance with the permanency plans, and the persistence of conditions which led to removal. The court further found that termination was in the best interest of the child. The father appeals. We affirm the judgment of the trial court as modified in this opinion.

In suit arising out of a motor vehicle accident, Defendants appeal the jury’s finding that Defendant driver was 60 percent liable for the accident, the award of damages for lost past and future income, and the failure of the trial court to hold a hearing on alleged juror misconduct. Finding that the jury’s apportionment of liability and award of damages are supported by material evidence and that there is no factual basis for a hearing on jury misconduct, we affirm the judgment.

  

Defendant, Kenderick Michael Tucker, appeals from the trial court’s revocation of probation. Defendant contends that the trial court denied him due process by relying upon evidence that was not alleged in the probation violation warrant. Defendant also contends that he was denied due process because the warrant provided insufficient notice and because the trial court made insufficient findings of fact. The State argues that Defendant admitted his probation violation, and therefore, the evidence supports the trial court’s order of revocation. After a careful review of the record, we affirm the judgment of the trial court.

The Defendant, Joseph I. Tolbert III, was convicted by a Knox County Criminal Court jury of three counts of first degree felony murder, first degree premeditated murder, attempt to commit first degree murder, two counts of especially aggravated robbery, and two counts of especially aggravated burglary. See T.C.A. §§ 39-13-202 (2014) (first degree murder), 39-13-403 (2014) (especially aggravated robbery), 39-14-404 (2014) (especially aggravated burglary), 39-12-101 (2014) (criminal attempt). The convictions for felony murder and premeditated first degree murder were merged and the Defendant received an effective sentence of life plus twenty-two years. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) his convictions for especially aggravated burglary are statutorily barred, and (3) his convictions for especially aggravated burglary violate double jeopardy principles. We affirm the judgments of the trial court relative to first degree felony murder, attempted first degree murder, and one of the especially aggravated robbery convictions. We merge the convictions for especially aggravated burglary to reflect one conviction for aggravated burglary and reduce the second conviction for especially aggravated robbery to aggravated assault and remand for resentencing relative to these counts.

The Appellant, Jenkins Bonding Company, appeals the Davidson County Criminal Court’s judgment of final forfeiture of bail bonds. The Appellant argues that its obligation to secure the appearance of a defendant had been released; therefore, the trial court erred in issuing a judgment of final forfeiture. Upon review, we reverse the judgment of the trial court.

The Defendant, Dinnie Merel Robertson, was indicted for one count of attempted first degree murder, a Class A felony; one count of felony reckless endangerment, a Class E felony; three counts of aggravated cruelty to animals, a Class E felony; two counts of vandalism valued at $1,000 or more but less than $10,000, a Class D felony; and one count of carrying a firearm with the intent to go armed, a Class C misdemeanor. See Tenn. Code Ann. §§ 39-12-101, -13-103, -13-202, -14-105, -14-212, -14-408, -17-1307. Following a jury trial, the Defendant was convicted of one count of misdemeanor reckless endangerment, a Class A misdemeanor; three counts of cruelty to animals, a Class A misdemeanor; one count of vandalism valued at $1,000 or more but less than $10,000; one count of vandalism valued at more than $500 but less than $1,000, a Class E felony; and one count of carrying a firearm with the intent to go armed. See Tenn. Code Ann. §§ 39-13-103, -14-105, -14-202, -14-408. The jury acquitted the Defendant of the felony reckless endangerment charge. Following a sentencing hearing, the trial court imposed a total effective sentence of four years. On appeal, the Defendant contends (1) that the trial court erred by instructing the jury on cruelty to animals as a “lesser-included” offense of aggravated cruelty to animals; (2) that the trial court committed plain error by taking his motion for judgment of acquittal “under advisement”; and (3) that the evidence was insufficient to sustain his convictions for misdemeanor reckless endangerment and both of the vandalism charges. The State concedes that the indictments charging aggravated cruelty to animals failed to charge an offense; therefore, the trial court lacked the authority to instruct the jury on cruelty to animals. Following our review, we affirm the Defendant’s convictions for misdemeanor reckless endangerment, both vandalism charges, and carrying a firearm with the intent to go armed. However, the Defendant’s convictions for cruelty to animals are reversed and dismissed.

This is a Tenn. R. App. P. 9 appeal by First Tennessee Bank, N.A. (the Trustee) from the trial court's order denying the Trustee's motion for summary judgment. The beneficiaries of the Ray Haney TUW Residual Trust (the Trust) filed suit against the Trustee for breach of trust. The Trustee asserts that the suit is time-barred; it relies upon Tenn. Code Ann. § 35-15-1005 (2007). The trial court denied the Trustee's motion, holding that there are genuine issues of material fact with respect to whether the suit was timely filed. The Trustee filed an application for an interlocutory appeal, which the trial court granted. We followed suit. We now affirm the trial court's decision denying summary judgment.

In this post-divorce parenting and child support action, the father filed petitions in January 2013 to register and modify the parties' 1997 Georgia divorce decree in the Hamilton County Circuit Court (“trial court”). In the divorce decree, the Georgia court had, inter alia, designated the mother as the primary residential parent of the parties' infant son and directed the father to pay weekly child support. The trial court subsequently entered an agreed order registering the Georgia decree. Following a hearing conducted in March 2013, the trial court entered an order designating the father as the primary residential parent, incorporating a modified permanent parenting plan order, and setting child support to be paid by the mother. The mother subsequently filed a petition to register and enforce a 1998 Georgia court order finding the father in contempt and a 2003 Georgia income deduction order.

The petitioner, John Smith, appeals the post-conviction court's denial of relief from his convictions for first degree felony murder, second degree murder, aggravated burglary, and employment of a firearm during the commission of a dangerous felony. He argues that the post-conviction court erred in finding that he had received effective assistance of counsel. He further asserts for the first time on appeal that his conviction for employing a firearm during the commission of a dangerous felony should be vacated because the indictment failed to specify the underlying dangerous felony. Upon our review, the judgments of the post-conviction court are affirmed.

The Defendant, Timothy Clark Naifeh, was convicted by an Obion County jury of six counts of vehicular homicide. Prior to trial, the Defendant filed two motions challenging his competence to stand trial, both of which were denied by the trial court. Following a sentencing hearing, the trial court merged his convictions into three counts of vehicular homicide by intoxication, a Class B felony. See T.C.A. § 39-13-213(a)(1). The sentence was to be served by split confinement, with one year of incarceration and the remainder on probation. On appeal, the Defendant argues that the trial court erred in finding that he was competent to stand trial and that his sentence was improper. Upon our review, we affirm the judgments of the trial court. However, for purposes of clarity, we remand this matter for entry of corrected judgment forms in Counts 1, 2, and 3, specifying an effective sentence of ten years, with one year of incarceration and the remaining nine years on probation.

The defendant, George Coleman, was convicted of one count of aggravated sexual battery, a Class B felony. The trial court imposed a ten-year sentence as a result of the conviction. On appeal, the defendant argues that the evidence is insufficient to sustain his conviction for aggravated sexual battery, that the trial court erred by allowing the victim's brother to testify about why he followed the victim and the defendant to the bathroom, and that the trial court erred in imposing a ten-year sentence. Following our review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court.

Deanna R.H.B. (“Mother”) appeals the order of the Chancery Court for Lincoln County (“the Trial Court”) finding and holding that it had been proven by clear and convincing evidence that grounds existed to terminate Mother’s parental rights to the minor child Maison W. (“the Child”) for persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3), and for severe abuse pursuant to Tenn. Code Ann. § 36-1-113(g)(4), and that it was in the Child’s best interest for Mother’s parental rights to be terminated. We find and hold that the evidence in the record does not preponderate against the Trial Court’s finding by clear and convincing evidence that grounds existed to terminate Mother’s parental rights to the Child and that it was in the Child’s best interest to terminate Mother’s parental rights. We, therefore, affirm.

The Petitioner, Russell Dean Long, appeals as of right from the Washington County Criminal Court's denial of his petition for post-conviction relief. The Petitioner contends that he received ineffective assistance from his trial counsel (1) because a recording of a 911 call was not entered into evidence during the trial; and (2) because lead counsel told the jury during the opening statement that they would hear the recording. Discerning no error, we affirm the judgment of the trial court.

A dispute arose between the purchaser of real property and a prior owner over certain personalty, including equipment and motor vehicles, left on the real property. After the prior owner removed one item of personalty and dumped tree waste on the real property, the purchaser filed suit against the prior owner seeking, among other things, injunctive relief. Following a hearing, the trial court granted the requested injunctive relief and concluded that the personalty that remained on the real property was owned by the purchaser. The prior owner of the real property appeals the trial court’s decision that the personalty remaining on the real property was abandoned. Because the trial court’s order does not satisfy the requirements of Rule 52.01 of the Tennessee Rules of Civil Procedure, we vacate the judgment and remand for further proceedings.

This is an action by Father to rescind a quitclaim deed on the ground the deed was procured by Son’s fraud or constructive fraud. Father, believing his property might be subject to the claims of creditors, sought advice from Son on how to preserve his real property for the benefit of his two children and grandchildren. Son engaged an attorney to prepare a quitclaim deed reserving a life estate for Father and conveying the remainder interest in the property to Father’s two children, Son and Daughter. Father executed the deed without reading it. Two years later, after realizing he only held a life estate, Father asked both children to re-convey the property. Daughter complied, but when Son refused, Father commenced this action against Son. Following a bench trial, the court held that rescission of the deed was warranted because the deed was procured by Son’s fraud or constructive fraud given that “[Father] was under the domination and control of his son at the time the deed was signed.” Fraud can be established by proof of nondisclosure or concealment of a known material fact in situations where a party has a duty to disclose that fact. Justice v. Anderson County, 955 S.W.2d 613, 616 (Tenn. Ct. App. 1997). Similarly, constructive fraud is a breach of a legal or equitable duty which is deemed fraudulent because of its tendency to deceive others by, inter alia, violating a private confidence. Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 39 (Tenn. Ct. App. 2006). The general rule is that a party to a transaction has no duty to disclose material facts to the other. Homestead Grp., LLC v. Bank of Tenn., 307 S.W.3d 746, 751-52 (Tenn. Ct. App. 2009). However, such a duty may arise when there is a confidential relationship between the parties. Benton v. Snyder, 825 S.W.2d 409, 414 (Tenn. 1992). “The normal relationship between a mentally competent parent and an adult child is not per se a confidential relationship.” Kelly v. Allen, 558 S.W.2d 845, 848 (Tenn. 1977). In certain circumstances, however, a duty may arise out of a “family relationship” when there is proof of “dominion and control” sufficient to establish the existence of a confidential relationship. See Matlock v. Simpson, 902 S.W.2d 384, 385-86 (Tenn. 1995). We have determined that the evidence preponderates against the finding that Father was under the dominion and control of Son. The facts of this case reveal that Father was in good physical and mental health, lived separately from Son, and was not dependent on Son or anyone else for his daily needs. Although Father trusted Son completely, relied on Son for financial advice, and could be persuaded by Son’s ardent opinions, Son did not have control over Father or Father’s finances. To the contrary, Father described situations in which he independently conducted business and made his own decisions, some of which were contrary to Son’s wishes. Having determined that the evidence preponderates against the finding that Father was under the domination and control of Son at the time the deed was signed, we find no basis upon which to conclude that Son owed an affirmative duty to disclose all material facts relevant to the transaction. Because Son did not owe an affirmative duty to disclose all material facts relevant to the transaction, Father’s claim that Son procured the deed by fraud or constructive fraud cannot be sustained. Accordingly, we reverse the judgment of the trial court.

Johnathan Lee McDonough (“Father”) appeals the order of the Circuit Court for Montgomery County (“the Trial Court”) denying Father’s post-divorce petition to relocate to Arizona with the parties’ three minor children (“the Children”), and granting Sloan Marie McDonough (“Mother”) primary residential custody of the Children. Father raises an issue with regard to whether the Trial Court erred in finding that Mother’s counter-petition was filed timely, and because of this alleged error, erred in not allowing Father to relocate with the Children pursuant to Tenn. Code Ann. § 36-6-108. We find and hold that Father failed to prove that he provided the required notice to Mother of the relocation pursuant to Tenn. Code Ann. § 36-6-108, and, therefore, the statutory response period never was triggered. As such, we find no error in the Trial Court’s determination that Mother’s counter-petition was filed timely, and we affirm the Trial Court’s order denying Father’s petition to relocate with the Children.

Defendant, Antonio Howard, along with four co-defendants, was indicted by the Shelby County Grand Jury for six counts of aggravated rape, one count of especially aggravated robbery, two counts of aggravated robbery, and three counts of aggravated assault. Following a jury trial, he was convicted as charged following a jury trial. The trial court merged counts 4-6 of aggravated rape with counts 1-3 of aggravated rape and sentenced Defendant to consecutive sentences of 25 years on each count. The trial court merged Defendant's convictions for aggravated assault with his convictions for especially aggravated robbery and aggravated robbery and sentenced Defendant to consecutive sentences of 25 years for especially aggravated robbery and 12 years for each count of aggravated robbery. The total effective sentence imposed was 124 years. In this appeal as of right, Defendant raises the following issues for our review: 1) the evidence was insufficient to support his convictions, and the trial court erred by denying Defendant's motion for judgment of acquittal; 2) the trial court erred by imposing the maximum sentence within the applicable range and imposing consecutive sentencing; and 3) the trial court erred by allowing a co-defendant to testify wearing “street clothing,” by allowing a victim to testify to “prejudicial, irrelevant and inflammatory information,” and by not permitting Defendant to cross-examine a State's witness about the substance of her report. Following a careful review of the record, we conclude that Defendant is not entitled to relief. Accordingly, the judgments of the trial court are affirmed.

Defendant, Brandon Blount, was convicted by a Shelby County Criminal Court jury of aggravated burglary acting in concert with two or more other persons, a Class B felony, and possession of a firearm during the commission of a dangerous felony, a Class D felony. He was sentenced by the trial court as a Range I offender to consecutive terms of eight years at 30% for the aggravated burglary conviction and three years at 100% for the firearms conviction. On appeal, Defendant argues that the evidence was insufficient to sustain his convictions; that the trial court erred by denying Defendant's motion to suppress his statement to police; by failing to instruct the jury that unlawful possession of a weapon is a lesser included offense of possession of a firearm during the commission of a dangerous felony; and that the trial court committed plain error by not declaring a mistrial because of the prosecutor's improper comments during closing argument. After a thorough review of the record and the parties' briefs, we affirm the judgments of the trial court.

The defendant, Brian E. Dodson, appeals the denial of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence. Because the defendant has failed to state a colorable claim for relief under Rule 36.1, the interests of justice do not require that we waive the timely filing of the notice of appeal in this case. Accordingly, the appeal is dismissed.

Several property owners brought suit against the county for inverse condemnation when the county commission's road committee rescinded its recommendation to accept a road as a county road. The county sought dismissal for failure to state a claim upon which relief can be granted. The trial court dismissed the suit. The property owners appeal. We affirm.

Petitioner, Stacy Ramsey, appeals from the Carroll County Circuit Court’s summary dismissal of his second petition for post-conviction relief, which the trial court treated as a motion to reopen his post-conviction proceeding. We dismiss the appeal for lack of jurisdiction because the Petitioner failed to comply with the statutory requirements governing an appeal from the denial of a motion to reopen post-conviction proceedings. If treated as a second post-conviction petition as styled by Petitioner, through counsel, then it was subject to summary dismissal because only one petition for post-conviction relief is permitted, T.C.A. § 40-30-102(c), and because the petition was barred by the applicable one-year statute of limitations, T.C.A. § 40-30-102(a).

The petitioner, Brandon Sutton, appeals the denial of post-conviction relief from his 2010 Jefferson County Criminal Court jury conviction of first degree murder, for which he received a sentence of life without parole. In this appeal, the petitioner contends only that he was denied the effective assistance of counsel. Discerning no error, we affirm.