APPELLATE COURT OPINIONS

This is a conversion case. The appellant bank perfected a security interest in collateral for a loan made to its debtor. The debtor subsequently sold the collateral to appellee companies, representing that there were no liens on the collateral. The appellee companies subsequently resold the collateral. Later, the debtor defaulted on the loan, and the appellant bank obtained a default judgment against him. The debtor then filed bankruptcy. The appellant bank filed this lawsuit against the appellee companies for conversion, seeking the proceeds from the sale of the collateral. The trial court awarded judgments against both appellee companies, plus prejudgment interest accruing from the date of the appellant bank's prior default judgment against the debtor. The appellant bank appealed arguing, among other things, that the trial court erred in determining the date from which prejudgment interest began to accrue. The appellee companies contend that the appellant bank should not be awarded prejudgment interest. On appeal, we affirm the trial court's decision to award prejudgment interest but modify the amount of the award.

Wendy Rose filed suit alleging, among other things, breach of contract and misrepresentation by defendants Lisa Bushon and Innovative Risk Management, LLC. Later, on October 13, 2014, plaintiff filed a notice of “voluntary nonsuit” in the trial court.  She also faxed the notice to opposing counsel.  A hearing on a pending motion to disqualify the plaintiff’s counsel had been previously scheduled for October 14.  The hearing was held as scheduled.  Plaintiff, assuming that the case was concluded with the filing of her notice, did not appear at the hearing.  On October 20, 2014, the trial court entered an order granting plaintiff a voluntary nonsuit and dismissing the case without prejudice.  Defendants filed a motion to modify or amend the order of dismissal.  On December 17, 2014, the trial court entered an order disqualifying plaintiff’s counsel and awarding defendants attorney’s fees of $7,779.  We hold that Tenn. R. Civ. P. 41.01 grants plaintiff the free and unrestricted right to take a voluntary nonsuit.  Accordingly, we hold that the trial court erred in ordering the disqualification of counsel and awarding attorney’s fees after plaintiff filed the notice of voluntary dismissal and the trial court entered an order of dismissal.  We reverse the trial court’s judgment, which disqualified plaintiff’s counsel and awarded attorney’s fees to defendants.

D. MICHAEL SWINEY, C.J., dissenting.
I respectfully dissent from the majority’s decision in this case. I cannot agree with the majority as to the issue of what constitutes written findings of fact and conclusions of law sufficient to satisfy the requirements of ...

This is a termination of parental rights case. The trial court found clear and convincing evidence of grounds for terminating the parental rights of R.P.G. II, (father) to K.J.G. (the child). By the same quantum of proof, the court found that termination was in the child‘s best interest. Father appeals. We hold that the trial court‘s final judgment does not include or incorporate written findings of fact justifying its decision as required by Tenn. Code Ann. § 36-1-113(k) (2014). For this reason, we vacate the trial court‘s judgment and remand for further proceedings consistent with this opinion.

Defendant argues on appeal that dual convictions for attempted aggravated sexual battery in Count 1 and rape of a child in Count 3, both stemming from the Lemonade Mouth incident, violate due process because they a part of a “single continuous criminal episode.”  Defendant asks this Court to utilize the five-factor test adopted by the supreme court in State v. Barney, 986 S.W.2d 545, 548 (Tenn. 1999).  The State, on the other hand, argues that the analysis in Barney is no longer controlling law because the supreme court relied on cases which have since been abrogated.  Because I believe the issue is more properly one of double jeopardy, I respectfully dissent.

The Defendant, Christopher Scottie Itzol-Deleon, was found guilty by a Davidson County Criminal Court jury of attempted aggravated sexual battery, a Class C felony, four counts  of aggravated sexual battery, a Class B felony, and three counts of rape of a child, a Class A felony. See T.C.A. §§ 39-13-504 (2014) (aggravated sexual battery), 39-13-522 (2010,  2014) (rape of a child), 39-12-101 (2014) (criminal attempt).  He received an effective forty-year sentence.  On appeal, the Defendant contends that (1) the evidence is insufficient to establish the element of penetration for rape of a child in Counts 3 and 4, (2) the trial court erred in allowing separate convictions for attempted aggravated sexual battery and rape of a child in Counts 1 and 3 and for rape of a child in Counts 4 and 5, (3) the court erred in permitting testimony regarding the Defendant’s excessive drinking, (4) the court erred in admitting a letter written by the victim to her mother, (5) the court erred in not redacting a portion of the Defendant’s statement to the police, (6) the court erred in admitting the victim’s school photograph, (7) the court erred in sentencing the Defendant as a Range II offender relative to his rape of a child convictions, and (8) the judgment in Count 6 contains a clerical error.  We merge Count 1, attempted aggravated sexual battery, with Count 3, rape of a child.  Although we affirm the convictions, we remand the judgments for Counts 1 and 3 for entry of amended judgments reflecting merger of the offenses.  We also modify the Defendant’s sentences relative to Counts 3, 4, and 5 to twenty-five years in each count at 100% service.  Finally, we remand the judgment in Count 6 for the correction of clerical errors.

The Defendant, Gerald Davis Thomas, was convicted by a Loudon County jury of one count of first degree premeditated murder. The trial court sentenced the Defendant to life imprisonment, which was to be served consecutively to a separate federal sentence. In this appeal, the Defendant raises the following issues for our review:  (1) whether the evidence is sufficient to sustain his conviction for first degree premeditated murder; (2) whether the State engaged in improper closing arguments; (3) whether the trial court erred in allowing expert testimony regarding a forensic ballistic match; (4) whether the admission of the victim’s autopsy report violated his right of confrontation; (5) whether the State failed to produce potentially exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (6) whether trial counsel was ineffective; and (7) whether the trial court erred in denying his motion for additional DNA testing.Upon our review, we dismiss without prejudice the Defendant’s claim of ineffective assistance of counsel.  We also remand this matter to the trial court for entry of an order for additional DNA testing; specifically, the interior of the FUBU pants alleged to have been worn by the Defendant on the night the victim was killed and the substance recovered from underneath the victim’s nails.  In all other respects, we affirm the judgments of the trial court.

The petitioner, John N. Moffitt was sentenced on September 15, 2014, to four years in the Department of Correction for reckless aggravated assault. He filed a pro se petition for writ of habeas corpus, claiming that his indictment was so defective that his restraint was unlawful. We affirm the dismissal of his habeas corpus petition, pursuant to Rule 20, Rules of the Court of Criminal Appeals.

The appellant, Marcus Grady Hodge, filed a motion to correct an illegal sentence in the Davidson County Criminal Court pursuant to Tennessee Rule of Criminal Procedure 36.1.  The trial court summarily denied the motion, and the appellant appeals the ruling. Based upon our review of the record and the parties’ briefs, we affirm the trial court’s denial of the motion but remand the case for correction of a clerical error on the judgments of conviction.

The defendant, Belinda Potter, pled guilty to theft of property valued at $60,000 or more, a Class B felony, and was sentenced as a Range I, standard offender to nine years in the Department of Correction and ordered to pay $55,809.69 in restitution. On appeal, she argues that the trial court erred in denying alternative sentencing. After review, we affirm the judgment of the trial court.

Former state university police officer brought suit against the university, its governing board, and the university’s chief of police asserting causes of action under the Tennessee Public Protection Act (“TPPA”), the Tennessee Human Rights Act (“THRA”), and Title VII of the Civil Rights Act of 1964 (“Title VII”); the officer alleged that he had been discriminated against on the basis of his sex and in retaliation for filing a complaint of discrimination with the university and charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”), and that he was subjected to a hostile work environment and constructively discharged. At a hearing on the defendants’ motion for summary judgment on all causes of action the trial court orally granted the motion in full; in the final order the court adopted findings of fact and conclusions of law which had been prepared by counsel for defendants. The officer appeals the dismissal of all causes of action except for sex discrimination; he also asserts that the findings and conclusions do not comply with Tenn. R. Civ. P. 56.04. Holding that the findings and conclusions adopted by the court reflect the court’s independent analysis as required by Tenn. R. Civ. P. 56.04 with respect to the incidents which were alleged to violate the TPPA, we review the grant of summary judgment and affirm the judgment. As to the causes of action arising under Title VII and the THRA, we conclude that TSU was only entitled to summary judgment on the claim that the officer was constructively discharged and on all claims of retaliation except those arising from his transfer to the downtown campus and from multiple warnings the officer received for tardiness, and from his claim of a hostile work environment with respect to numerous write-ups he received. Accordingly, we remand the case for further proceedings related to those claims.    

We granted an interlocutory appeal pursuant to Tenn. R. App. P. 9 in this case to consider whether the signature of the trustee of the Alexis Breanna Gladden Irrevocable Trust (“the Trust”) on an investment/brokerage account agreement agreeing to arbitration binds the minor beneficiary of the Trust to conduct arbitration of unknown future disputes or claims. We find and hold that while the plain language of the trust agreement does allow the trustee to agree to arbitrate claims and disputes that have arisen, it does not allow the trustee to agree to arbitration of unknown future disputes or claims. Therefore, the signature of the trustee of the Trust on an investment/brokerage account agreement agreeing to arbitration does not bind the minor beneficiary to conduct arbitration of unknown future disputes or claims.

This appeal involves a juvenile court’s subject matter jurisdiction to address a post-divorce matter of child support. The parties were divorced through judgment entered by the Knox County Fourth Circuit Court. Although the Circuit Court initially ordered the mother to pay child support for the parties’ three children, the Circuit Court subsequently entered an agreed order in 2008, directing that neither party would be obligated to pay child support from that date forward. The father commenced the instant action on June 7, 2010, by filing a petition in the Knox County Juvenile Court, alleging dependency and neglect as to the mother. Following a hearing conducted on February 14, 2011, the Juvenile Court entered an agreed order awarding “custody” to the father and finding the children dependent and neglected as to the mother. The father subsequently filed a petition to set child support. Following a hearing conducted on June 1, 2012, the Juvenile Court magistrate entered findings and recommendations, setting the mother’s child support obligation.

The defendant, Gary Wayne Garrett, is serving an effective sentence of 119 years, following his convictions in 1986 for sixteen felonies.  Pursuant to Tennessee Rule of Criminal Procedure 36.1, the defendant filed a motion to correct what he views as sentences which are illegal because the trial court failed to award proper jail credits, and the court then entered an order providing the defendant with jail credits from October 31, 1985, until October 10, 1986.  The defendant appealed, arguing that he was entitled to additional credits, and we note that the State did not appeal the awarding of these credits. We conclude that the defendant has failed to present a colorable claim for relief in asking for additional credits, pursuant to Rule 36.1, and affirm the order of the court awarding only these credits.

The appellant, Tyler Alexis Denton, pled guilty in the Lincoln County Circuit Court to three counts of selling less than one-half gram of cocaine within a drug-free zone and three counts of delivering less than one-half gram of cocaine within a drug-free zone, Class C felonies.  The trial court merged each count of delivering cocaine into its corresponding count of selling cocaine and sentenced the appellant to three, concurrent sentences of five and one-half years.  On appeal, the appellant contends that the length of his sentences is excessive.  Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.  However, we remand the case to the trial court for correction of the judgments.

In this appeal, we review a tax variance. The Commissioner of Tennessee’s Department of Revenue determined that, if the standard apportionment formula in Tennessee’s franchise and excise tax statutes were applied to the appellant taxpayer, a multistate wireless telecommunications company, nearly all of the taxpayer’s sales receipts for services to its Tennessee customers—over a billion dollars in receipts—would not be subject to Tennessee franchise and excise taxes.  Pursuant to his authority under Tennessee’s franchise and excise tax variance statutes, the Commissioner imposed on the taxpayer a variance that required the taxpayer to pay taxes on the receipts from its Tennessee customers. The taxpayer now argues that, by imposing the variance, the Commissioner has usurped the legislature’s prerogative to set tax policy.  After review of the legislative history, we find that Tennessee’s legislature intended for the Commissioner to have the authority to impose a variance where, as here, application of the statutory apportionment formula does not fairly represent the extent of the taxpayer’s business activity in Tennessee.  We decline to judicially abrogate the legislature’s express delegation of this authority to the Commissioner.  The variance in this case comports with Tennessee’s franchise and excise tax statutes, the implementing regulation, and the statutory purpose of imposing upon corporations a tax for the privilege of doing business in this State.  Finding no abuse of the Commissioner’s discretion, we affirm.

I agree with much of the analysis in the majority opinion. Indeed, although in my mind it presents a close question, I can agree with the majority that the taxpayer’s calculation of franchise and excise taxes under the statutory apportionment formula does not “fairly represent the extent of the taxpayer’s business activity” in Tennessee. See Tenn. Code Ann. § 67-4-2014(a) (2015). However, where I must part company with the majority is on the issue of the Commissioner’s compliance with the Tennessee Department of Revenue’s (“Department”) own regulation applicable in this case. See Tenn. Comp. R. & Regs. 1320-06-01-.35(1)(a)(4) (“the variance regulation”).

Timothy L. Jefferson (“the Petitioner”) appeals from the summary dismissal of his Petition for Writ of Certiorari and Supersedeas (“the Petition”) for failure to make partial payment of the initial filing fee.  Upon review, we hold that the Petitioner filed sufficient documentation to show that he was unable to make partial payment of the initial filing fee.  However, we conclude that the trial court properly dismissed the Petition because the writ of certiorari is not available in this case.  Therefore, we affirm the judgment of the trial court.

Gdongalay P. Berry (“the Petitioner”) was convicted of two of counts of first-degree premeditated murder, two counts of first-degree felony murder, two of counts especially aggravated kidnapping, and two of counts especially aggravated robbery in connection with the deaths of D’angelo McKinley Lee and Gregory Lanier Ewing. In this coram nobis proceeding, the Petitioner claims that a previously undisclosed videotaped interview of Yakou Murphy might have led to a different result had that interview been disclosed prior to trial.  After a hearing, the coram nobis court denied relief.  Discerning no error, we affirm the judgment of the coram nobis court.

The defendant, Stephanie Lynn Bickford, pled guilty to statutory rape, a Class E felony, in exchange for a one-year sentence on probation.  The trial court ordered that the defendant was required to register as a sex offender, a decision the defendant now appeals.  On appeal, the defendant also argues that this court should review the trial court’s decision using a de novo with a presumption of correctness standard of review, rather than an abuse of discretion with a presumption of reasonableness standard.  After review, we affirm the judgment of the trial court.

Patrick Rico Edwards (“the Petitioner”) appeals from the denial of his petition for post-conviction relief.  On appeal, the Petitioner argues (1) that his trial counsel was ineffective for failing to present at the sentencing hearing expert testimony about the Petitioner’s mental health; and (2) that his plea was unknowing and involuntary.  Additionally, the Petitioner contends that the post-conviction court’s failure to make findings of fact and conclusions of law about the voluntariness of his plea constitutes reversible error.  We conclude that the post-conviction court erred when it failed to make findings of fact and conclusions of law regarding the voluntary and intelligent nature of the Petitioner’s plea but such error was harmless in this case.  Further, we conclude that the Petitioner has failed to prove that he is entitled to post-conviction relief for either of his claims.  The judgment of the post-conviction court is affirmed.

A widow filed suit seeking workers’ compensation death benefits for herself and her son, the stepson of the deceased worker.  She alleged that her husband’s death was caused by a lung disease contracted in the course of his employment.  The employer denied liability.  While the action was pending, the widow died.  An amended complaint was filed by her estate and her son.  The trial court granted the employer’s motion for summary judgment, holding that neither the estate nor the son had standing to sue for benefits.  The estate and son have 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 reverse the judgment and remand the case to the trial court for further proceedings.

The defendant, Christopher Fralix, pled guilty to one count of robbery, a Class C felony, and one count of aggravated burglary, a Class C felony, in exchange for an effective sentence of six years. The trial court denied all forms of alternative sentencing and ordered the defendant to serve his sentence in incarceration. He now appeals, arguing that the trial court abused its discretion in denying an alternative sentence. Following our review, we affirm the judgments of the trial court.

The Petitioner, Kendall Joy, appeals the trial court's denial of his petition for writ of habeas corpus. The State has filed a motion requesting that this court affirm the trial court's judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State's motion and affirm the judgment of the trial court.

Mother and Father were married for eight years and had three children when they divorced in 2009. Mother was named the primary residential parent, and each party was awarded equal residential time with the children. In 2010 Mother moved from Spring Hill, where the parties had lived during their marriage, to Goodlettsville. When Mother attempted to remove the children from Maury County schools and enroll them in Robertson County schools, Father filed a petition to modify the parenting plan and to be named the primary residential parent. Following a trial, the court found that the parties’ failure to follow the parenting plan constituted a material change of circumstances and that it was in the children’s best interest for the primary residential parent designation to change from Mother to Father. Mother appealed, and we affirm the trial court’s judgment.