APPELLATE COURT OPINIONS

On appeal, the defendant, Anne Elizabeth Cushing, has presented a certified question of law for our review. Following the denial of her motion to suppress, the defendant entered a guilty plea to one count of driving under the influence (“DUI”) but reserved a certified question. In the question, she challenges the denial of the motion to suppress because, according to the defendant, the results of the field sobriety tests should be inadmissible because she was entitled to be Mirandized when she was placed in the backseat of the police officer's patrol car while he conducted an investigation at the accident scene. She contends she was not free to leave and that, as such, the right to Miranda warnings had attached. Following our review of the record, we conclude that the question, as presented, is not dispositive of the case. Accordingly, we must dismiss the appeal.

This appeal arises from a long and turbulent custody dispute. Under the terms of the Permanent Parenting Plan, each parent was designated primary residential parent for one of the parties’ two minor children. A few months after the divorce, the father filed an emergency petition to be named the primary residential parent of the younger child. After a hearing, the trial court dissolved the ex parte restraining order but awarded temporary custody of the child to the father. Five months later, the father filed a second emergency petition to suspend visitation with the mother. After a hearing, the trial court dissolved the second restraining order but left the temporary custody order in place. Two years after the father filed the original petition to modify custody, the court conducted a final hearing. The court found a material change in circumstance had occurred sufficient to justify a change in custody and the custody change was in the best interest of the child. Because the trial court did not make sufficient findings of fact concerning the issue of material change of circumstance, as required by Rule 52.01 of the Tennessee Rules of Civil Procedure, and the credibility of witnesses is at issue, we are unable to conduct an effective appellate review. While normally we would remand this case to afford the trial court the opportunity to state its findings of fact, the judge who tried this case has retired. Therefore, we have no choice but to reverse the judgment and remand for a new hearing.   

The defendant, Derek Burgess, committed new criminal offenses while on probation, and the trial court revoked his probation and ordered him to serve the remainder of his sentence in prison. The defendant appeals the trial court’s order sentencing him to serve his sentence in incarceration, arguing that the trial court incorrectly calculated the length of his remaining sentence. Following our review, we affirm the judgment of the trial court.

This appeal arises out of a breach of contract action. The plaintiff is a corporate entity that represents a musical group. The defendant is a venue owner that cancelled the show in which the musical group performed. After a bench trial, the trial court found in favor of the plaintiff and ordered the defendant venue owner to pay $195,741.86 in damages for breach of contract and $166,353.77 in prejudgment interest. The defendant appeals, arguing that the award of prejudgment interest was erroneous according to Nebraska law, which the parties chose to govern their contract. For the following reasons, we reverse and remand for further proceedings.

The defendant, Hester Croy, was convicted of theft of property under $500, a Class A misdemeanor. On appeal, she argues that the trial court erred by ruling that her prior convictions for theft of property would be admissible for impeachment purposes if she testified. Following our review, we conclude that this issue is waived due to the defendant‟s failure to file a motion for new trial and that plain error review is not warranted. We affirm the judgment of the trial court.

This appeal arises from a contract to purchase real estate. Appellee contracted to sell Appellant the property at issue, subject to the property appraising at a certain value and the Appellant obtaining financing. Upon discovering that the property was subject to an easement held by the Tennessee Valley Authority, Appellant refused to purchase the property, contending that Appellee could not convey good and marketable title. Appellee filed suit for specific performance and also sought injunctive relief to prevent Appellant from purchasing other real property. In response, Appellant first filed a motion for summary judgment. Later, Appellant filed an answer and countercomplaint, seeking damages for breach of contract. Appellant then filed a motion for voluntary nonsuit of her countercomplaint and, on the same day, filed an amended motion for summary judgment. Appellee then filed a motion for leave to take a voluntary nonsuit. After Appellee filed his motion for nonsuit, Appellant filed a motion for attorney's fees, costs, and the return of earnest money. The trial court granted Appellee's motion for nonsuit, notwithstanding the Appellant's pending motion for summary judgment. The trial court denied Appellant's motion for attorney's fees and costs, but granted the motion for return of earnest money. Appellant appeals.

This is an age discrimination case. The 50-year-old plaintiff worked for the defendant company as a manager. In 2007, an internal investigation revealed that the plaintiff had violated two of the company’s policies. The plaintiff was ultimately terminated for violating the policies. The plaintiff filed this lawsuit alleging age discrimination. The company filed a motion for summary judgment arguing that the plaintiff could not establish a prima facie claim for discrimination or that the company’s explanation for terminating him was a pretext for discrimination. The trial court granted summary judgment in favor of the company. The plaintiff now appeals. We affirm.

The petitioner, Christopher Kinsler, appeals the denial of his petition for post-conviction relief. He argues that he received the ineffective assistance of counsel when trial counsel elicited inadmissible hearsay testimony on cross-examination and then failed to object to the testimony. Following our thorough review, we affirm the judgment of the post-conviction court.

The Petitioner, John David Luther, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his convictions of voluntary manslaughter, aggravated assault, and reckless aggravated assault, and resulting effective seventeen-year sentence.  On appeal, the Petitioner contends that he received the ineffective assistance of trial and appellate counsel.  Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

The majority holds that because a reconsideration of child support is necessarily “[i]ncident to” the reconfiguration of a parenting plan, the trial court’s failure to rule on the child support modification action implicit in all successful modification of parenting time proceedings deprives this Court of jurisdiction to consider this appeal. Because I cannot accept that an agreed upon change in a parenting plan automatically necessitates an unrequested reconsideration of the parties’ child support obligations, I must respectfully dissent.

Following an announcement in open court that the parties agreed to the terms of a permanent parenting plan, the trial court entered an order purporting to adopt the agreed-upon plan. Father appeals from this order, arguing that certain terms of the plan entered by the trial court do not match the announced agreement. Having reviewed the record, we observe that there is neither an attached child support worksheet reflecting what Father's child support would be based on the modified parenting schedule, nor any ruling on child support by the trial court. Accordingly, we conclude that the order appealed is not a final judgment so as to confer jurisdiction on this Court. Tenn. R. App. P. 3. Accordingly, we dismiss this appeal and remand the case for further proceedings consistent with this Opinion.

The issue in this case is whether a coalition of media groups and a citizens organization, relying on the Tennessee Public Records Act, have the right to inspect a police department’s criminal investigative file while the criminal cases arising out of the investigation are ongoing. Four Vanderbilt University football players were indicted for aggravated rape and other criminal charges arising out of the alleged rape of a university student in a campus dormitory. Following the indictments, the Petitioners, a group of media organizations and a citizens group, made a Public Records Act request to inspect the police department’s files regarding its investigation of the alleged criminal conduct by the football players. The request was denied. We hold that the Public Records Act allows access to government records, but there are numerous statutory exceptions, including a state law exception in Tennessee Code Annotated section 10-7-503(a)(2), that shield some records from disclosure. Rule 16 of the Tennessee Rules of Criminal Procedure falls within the state law exception. Rule 16 provides for the release of certain information to the defendant in a criminal case, but does not authorize the release of any information to a nonparty to the case. Therefore, during the pendency of the criminal case and any collateral challenges to any conviction, Rule 16 governs the disclosure of information and only the defendant has the right to receive certain information. We hold that, based on Rule 16, the Petitioners have no right to the requested information during the pendency of the criminal cases and any collateral challenges. Jane Doe, the victim of the alleged criminal acts, intervened in this action to prevent disclosure of the investigative file, and particularly photographs and video images of the alleged assault. Based on our ruling today, these records are protected from disclosure until the conclusion of the criminal cases and all collateral challenges. At the conclusion of the criminal cases and following any guilty plea or conviction and sentencing, Tennessee Code Annotated section 10-7-504(q)(1) applies to block the release of Ms. Doe’s personal information and any photographic or video depiction of her. This requires no action on the part of Ms. Doe and no further court proceedings.      

I fully concur in the majority opinion in this case but write separately to respond to the dissent. 

In the past, this Court has consistently refrained from creating public policy exceptions to the Tennessee Public Records Act (TPRA), Tenn. Code Ann. §§ 10 7 101 to 702 (2012 & Supp. 2014), because the authority to enact such exceptions rests solely with the General Assembly. See, e.g., Schneider v. City of Jackson, 226 S.W.3d 332, 344 (Tenn. 2007) (“[T]he General Assembly, not this Court, establishes the public policy of Tennessee.”). Departing from this principle, the majority has concluded that Tennessee Rule of Criminal Procedure 16 exempts all police records from public disclosure during the course of a criminal prosecution. The plain language of the rule, however, protects from disclosure only work product and witness statements. Moreover, I believe that the victim of the alleged rape is entitled to an adjudication of her claim that public disclosure of the police records would violate her statutory and constitutional rights. I must, therefore, respectfully dissent.

At issue is whether the juvenile court abused its discretion by denying Mother’s request for attorney’s fees. Mother filed a petition to modify child support. Father filed an answer denying the petition and a counter-petition requesting, inter alia, that he be awarded primary custody of their child. The case was initially tried before the magistrate who denied Father’s petition and granted Mother’s petition to increase child support; however, the magistrate did not rule on Mother’s request for attorney’s fee. Both parties filed motions asking the juvenile court judge to conduct a de novo review. The juvenile court judge affirmed the magistrate’s recommendations; the judge also denied Mother’s request for attorney’s fees without explanation. On appeal, Mother contends the juvenile court abused its discretion by refusing to award any of her attorney’s fees. Given the significant disparity in the parties’ income and realizing that Mother prevailed on the issues of child support and custody, we have determined that Mother is entitled to recover the attorney’s fees she reasonably incurred that relate to the issues of child support and custody and that she is entitled to recover attorney’s fees incurred on appeal. Accordingly, we reverse and remand with instructions for the juvenile court to award the reasonable and necessary attorney’s fees Mother incurred relating to her petition for modification of child support and Father’s petition for custody. We also remand for the juvenile court to award Mother her reasonable and necessary attorney’s fees incurred in this appeal.

The defendant, Deangelo Key, was convicted of aggravated robbery, a Class B felony, and sentenced to nine years at 85% in the Department of Correction. On appeal, he argues that the evidence is insufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

The petitioner, Terrance Heard, appeals the denial of his petition for post-conviction relief, which petition challenged his August 2001 Shelby County Criminal Court jury convictions of first degree murder and especially aggravated kidnapping. Because the petitioner failed to prepare an adequate record for our review, we presume the ruling of the post-conviction court is correct and, therefore, affirm the judgment of the post-conviction court.

The petitioner, Reggie Carnell James, was convicted in 2007 of first degree murder and tampering with evidence. He was sentenced to life with the possibility of parole for the murder conviction and ten years for the tampering with evidence conviction, with the sentences to be served consecutively. This court affirmed his convictions on direct appeal. State v. Reggie Carnell James, No. W2007-00775-CCA-R3-CD, 2009 WL 636726, at *1 (Tenn. Crim. App. Mar. 10, 2009), perm. app. denied (Tenn. Aug. 17, 2009). In April 2010, he filed a petition for post-conviction relief, arguing that trial counsel had been ineffective for not filing a motion to suppress a statement the petitioner had made to police officers. Following a hearing on April 11, 2011, the post-conviction court entered an order on January 31, 2012, denying the petition. The notice of appeal for this decision was not filed until August 27, 2015. The State argues on appeal that the notice of appeal was untimely and that, as a result, the appeal should be dismissed. We conclude that the interest of justice does not require our waiving the late filing of the notice of appeal and, therefore, dismiss the appeal.

The appellant, Adam Moates, was convicted in the Knox County Criminal Court of two counts of attempted first degree premeditated murder, three counts of attempted second degree murder, and five counts of employing a weapon during the commission of a dangerous felony. After a sentencing hearing, the appellant received an effective twenty-six-year sentence. On appeal, he contends that the evidence is insufficient to support his attempted first degree murder convictions because it fails to show premeditation. Based upon the record and the parties' briefs, we affirm the judgments of the trial court.

This second appeal of this post-divorce case concerns the husband's continued occupation of the marital residence. Upon remand, the trial court imposed a rental obligation upon the husband and established a reserve price for the auction sale of the residence. We modify the court's decision to reflect an imposition of rent that conforms to the marital dissolution agreement. We affirm the decision in all other respects.

In this post-conviction case, we clarify the appropriate prejudice analysis for ineffective assistance of counsel claims arising from the failure to properly request jury instructions on lesser-included offenses where, as here, the jury was given no option to convict of any lesser-included offense. The jury convicted the petitioner as charged of one count of aggravated burglary and multiple counts of aggravated rape, especially aggravated kidnapping, and aggravated robbery in connection with a home invasion. On direct appeal, the Court of Criminal Appeals affirmed the convictions and declined to address the trial court’s failure to instruct the jury on lesser-included offenses because the petitioner’s trial counsel did not request the instructions in writing as required by statute. Thereafter, the post-conviction court denied relief. On appeal, a majority of the Court of Criminal Appeals granted a new trial on the especially aggravated kidnapping charges based on ineffective assistance of counsel. We hold that the Court of Criminal Appeals erred in concluding that the petitioner was prejudiced by his trial counsel’s failure to request a jury instruction on aggravated kidnapping as a lesser-included offense of especially aggravated kidnapping. We conclude that no reasonable probability exists that a properly instructed jury would have convicted the petitioner of any of his asserted lesser-included offenses instead of the charged offenses. Because the petitioner suffered no prejudice, he did not receive ineffective assistance of counsel as to any of his convictions. We reverse the Court of Criminal Appeals’ judgment granting a new trial on the especially aggravated kidnapping charges and reinstate the post-conviction court’s judgment denying relief on these convictions. We further hold that the Court of Criminal Appeals properly affirmed the denial of post-conviction relief on the petitioner’s other convictions.  

This is an appeal under the Administrative Procedures Act. After the Tennessee Department of Health mailed notice to a physician of alleged violations of the Tennessee Medical Practice Act, the physician retired his Tennessee medical license. Unsatisfied, the Department of Health filed a notice of charges. After a hearing at which the physician did not appear, the Tennessee Board of Medical Examiners revoked the physician’s medical license and placed conditions on any future application by the physician for a medical license in Tennessee. The physician appealed to the chancery court, which affirmed the decision of the Board of Medical Examiners. On appeal to this Court, the physician challenges whether the Board possessed personal jurisdiction over him and sufficiency of service of the notice of charges. The physician also argues that his due process rights were violated and that the Board of Medical Examiners lacked authority to revoke a retired medical license. We affirm.      

Plaintiffs, on behalf of themselves and a deceased family member, sued the City of Fayetteville and others for wrongful death and personal injuries resulting from an automobile accident involving a stolen police car. Plaintiffs alleged a police officer negligently failed to secure a suspect after placing her in the police car. The suspect then stole the police car, drove away at a high rate of speed, and collided with the plaintiffs’ vehicle. The City moved to dismiss on the grounds that it was immune from suit based upon the public interest doctrine, and the trial court granted the motion. We affirm the dismissal.

The mother of two minor children filed a petition on May 5, 2014, in the Chancery Court of Rutherford County seeking an order of protection against the children’s father for her benefit and for the benefit of their two minor children. When the petition was filed, the parties were operating under a parenting plan from Wisconsin state courts, and the Chancery Court of Rutherford County exercised only temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, Tenn. Code Ann. §§ 36-6-201 to -243. The chancery court granted the petition pending an evidentiary hearing. Unfortunately, the matter stalled for eleven months due to pending criminal charges against the father arising out of the same incident. Following the evidentiary hearing in April 2015, the trial court extended the order of protection as to the mother but dismissed the petition as to the children on the finding the children were not in any danger. Mother appealed. At oral argument, both parties informed the court that custody modification proceedings were ongoing in Tennessee and that the parenting plan had been temporarily modified pending discovery and a full hearing. The only issues on appeal pertain to the welfare of the parties’ two minor children. The chancery court now has jurisdiction over the order of protection, which was filed two years ago, and exclusive, continuing jurisdiction over the parenting plan; therefore, the chancery court is responsible for ruling on all current issues concerning the welfare of the children. For these reasons, we conclude the limited issues on appeal are moot because we are unable to provide meaningful relief. Our ruling on the order of protection could conflict with recent rulings by the chancery court that are based on current events, as distinguished from the singular incident on appeal that is now two years old. Therefore, the appeal is dismissed. 

Following a jury trial, Defendant, LaKeith Moody, was convicted of first degree premeditated murder and first degree felony murder of the victim, with whom Defendant had a long-time romantic relationship. He received a sentence of life imprisonment. On appeal, Defendant argues that (1) the trial court erred by admitting acts of prior domestic violence committed by Defendant against the victim; (2) the evidence was insufficient to support his convictions; and (3) the trial court failed to merge Defendant's convictions for premeditated and felony murder into one judgment for first degree murder. After a thorough review, we affirm the convictions for first degree premeditated murder and felony murder and remand the case for entry of corrected judgment forms noting merger of the two convictions as set forth herein.