APPELLATE COURT OPINIONS

This appeal involves a lawsuit filed by an insured against his insurer due to the insurer's failure to pay a claim for a theft loss. The trial court granted summary judgment to the insurer, finding no coverage under the policy. We affirm.

The Petitioner, Maria Delaluz Urbano-Uriostegui, filed in the Davidson County Criminal Court a petition for post-conviction relief from her conviction of aggravated child abuse, citing multiple issues, including ineffective assistance of counsel.  The post-conviction court summarily dismissed the petition, holding that the issues raised by the Petitioner were previously determined on direct appeal.  On appeal, the Petitioner challenges the post-conviction court’s ruling.  Upon review, we affirm the judgment of the post-conviction court.

The appellant, William Gary Mosley, pled guilty in the Marion County Circuit Court to initiation of a process intended to result in the manufacture of methamphetamine, a Class B felony, and two counts of possession of drug paraphernalia, a Class A misdemeanor, and reserved a certified question of law concerning the sufficiency of the affidavit underlying the search warrant issued in this case.  Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the affidavit failed to establish probable cause for the search warrant.  Therefore, the judgment of the trial court is reversed, the appellant’s convictions are vacated, and the charges are dismissed.

This is a termination of parental rights case, focusing on Aaliyah E., the minor child (“the Child”) of Wanda M. (“Mother”) and Christopher E. (“Father”). The Child was taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) on November 19, 2013, upon investigation of the Child’s lack of legal guardianship while the parents were incarcerated. On October 30, 2014, DCS filed a petition to terminate the parental rights of Mother and Father. Following a bench trial, the trial court found that statutory grounds existed to terminate the parental rights of both parents upon its finding by clear and convincing evidence that (1) the parents abandoned the Child by failing to provide a suitable home, (2) the parents failed to substantially comply with the reasonable responsibilities and requirements of the permanency plans, and (3) the conditions leading to the Child’s removal from the home persisted. As to Father, the court also found by clear and convincing evidence that prior to incarceration, he had abandoned the Child by showing wanton disregard for the Child’s welfare. The court further found by clear and convincing evidence that termination of Mother’s and Father’s parental rights was in the Child’s best interest. Mother and Father have each appealed. Having determined that, as DCS concedes, Mother was incarcerated during the entire applicable four-month statutory period following the Child’s removal into protective custody, we reverse the trial court’s finding regarding the ground of abandonment through failure to provide a suitable home as to Mother only. We affirm the trial court’s judgment in all other respects, including the termination of Mother’s and Father’s parental rights to the Child.

This case involves the termination of a mother's parental rights to her three daughters. The children were previously adjudicated dependent and neglected due to physical abuse of the children by the mother's boyfriend. After the children were in foster care for about a year, the Department of Children's Services filed a petition to terminate the mother's parental rights on several grounds. The trial court found by clear and convincing evidence that three grounds for termination were proven and that termination was in the best interest of the children. The mother appeals. We affirm in part, reverse in part, and remand for further proceedings. We affirm the termination of the mother's parental rights.

Defendant, Timothy Wayne Johnson, sought relief in Warren County under a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1.  The motion was summarily denied, and Defendant timely appealed the ruling.  Upon review, we affirm the judgment of the trial court.

Petitioner, Steven Bernard Sydnor, appeals the denial of his petition for post-conviction relief from his Davidson County Criminal Court convictions for second degree murder and theft of property valued over $1000.  Petitioner alleges that he received ineffective assistance of counsel in that trial counsel failed to discuss trial strategy with him and failed to present assisted suicide to the jury as a defense theory.  Upon our review of the record, we affirm the decision of the post-conviction court.

A Robertson County jury convicted the Defendant, Dondrinkus T. Dickerson, of rape, and the trial court sentenced the Defendant to ten years in the Tennessee Department of Correction to be served consecutively to his prior sentences.  On appeal, the Defendant contends that: (1) the evidence is insufficient to support his conviction; and (2) the trial court abused its discretion when it sentenced him.  After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

A patient suffered a blunt-force trauma head injury when he fell while attempting to mount a wheelchair accessible scale at a dialysis clinic. Complications from this injury led to his death. Plaintiff, the patient’s former spouse, brought two wrongful death actions on behalf of the patient’s minor child. Each action eventually named as defendants the dialysis clinic and the owner of the property where the dialysis clinic was located. After the trial court consolidated the actions, the property owner filed a motion for summary judgment. The court granted the motion, concluding the property owner had no liability under any legal theory asserted by Plaintiff. We affirm the dismissal of the claims against the property owner.

Appellant, Joshua Johnson, stands convicted of facilitation of attempted first degree murder, employing a firearm during the attempted commission of a dangerous felony with a prior dangerous felony conviction, unlawful possession of a weapon, and aggravated assault. He received an effective sentence of twenty-six years. On appeal, appellant argues that the evidence was insufficient to support his convictions, that he should not have been convicted and sentenced under Tennessee Code Annotated section 39-17-1324 when he was not convicted of any of the listed dangerous felonies, and that the trial court should have granted his request for an absent material witness jury instruction. Following our careful review, we affirm the judgments of the trial court.

Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction.

The issues in this case bring into sharp focus the question of whether or not the successful litigants below are entitled contractually to an award of attorney's fees and expenses against the losing side, i.e. the plaintiffs. This litigation began in 2010 when Kathleen Barrett and her husband, Gerald Barrett, filed suit against three LLCs and three individuals. The gravamen of the complaint is related to the purchase of, and the planned construction of a house on, a lot in a subdivision. Following a jury trial, the defendants now before us on appeal won a favorable verdict on all allegations and theories of the plaintiffs. Despite this outcome, the trial court denied their request for an award of attorney's fees and expenses. The defendants now appeal. The defendants contend that two of the LLC defendants are entitled to an award of fees and expenses based upon contracts in the record. Furthermore, they argue that the individual defendants also are entitled to attorney's fees and expenses (1) based upon a theory of judicial estoppel and (2) pursuant to the provisions of Tenn. Code Ann. § 48-249-115(c) (2012). The Barretts filed a motion in this Court seeking a dismissal of this appeal. They based their motion primarily on a lack of standing. We hold that the motion is without merit. On the issue of attorney's fees and expenses, we reverse the trial court's decision in part and affirm it in part. This case is remanded for further proceedings consistent with this opinion.

Nancy F. Brown (Plaintiff) was walking through and contemplating the rental of a house owned by Nancy Mercer-Defriese and Spencer Defriese (Defendants) when she tripped over a three-inch threshold or step in the doorway between two rooms. She brought this premises liability action, alleging the step was an unreasonably dangerous and defective condition that caused her fall and resulting injuries. During the jury trial that followed, Plaintiff and Defendants presented the testimony of experts. Plaintiff's expert opined that the step was a “trip hazard.” One of the Defendants' experts agreed that the step was a trip hazard, while the other stated that “all stairs are trip hazards.” Plaintiff and Defendants each presented photographs of the doorway showing that the step and the floors on either side of the three-inch change in elevation are in a very similar color. The trial court granted Defendants' motion for a directed verdict at the conclusion of all of the proof, finding that it was not reasonably foreseeable that Plaintiff would trip over the step; that the step was open and obvious; and that Defendants did not owe Plaintiff a duty to warn her of the condition of the step. We hold that the evidence before the trial court and now before us establishes a genuine issue of material facts as to the Defendants' negligence. Accordingly, we vacate the trial court's judgment and remand for further proceedings.

Barry Trent, the Executor of the Estate of Dennie Lamar Trent, appeals the order of the Chancery Court for Hawkins County (“the Trial Court”) finding and holding that the claim against the estate filed by Brenda Jefferson for an unpaid $50,000 debt as evidenced by a note is valid. We find and hold that the evidence does not preponderate against the Trial Court's findings, and we affirm.

Former husband filed a post-divorce petition seeking to hold former wife in contempt for her failure to pay and hold former husband harmless for indebtedness on the marital residence as required by the parties’ marital dissolution agreement. The trial court held former wife in contempt for her failure to pay, granted former husband a judgment of $2010.00 for the amount he paid in an attempt to keep the debt current, ordered former wife to sell the marital residence, and awarded former husband attorney’s fees. We hold the trial court’s ruling on contempt was in error because the trial court failed to make a threshold finding that former wife’s conduct was willful. On appeal, former wife asserts the trial court erred in requiring her to sell the former marital home. In support of its decision to require former wife to sell the home, the trial court reasoned that principles of equity demanded the result since former husband had no other remedy at law. We reverse the trial court, finding former husband was not without a remedy because he can file an action for breach of contract. The finding of contempt, judgment of $2010.00, and related award of attorney’s fees are vacated, and the portion of the order requiring former wife to sell the home is reversed.

This is a breach of contract action in which the plaintiff filed suit after the practice refused to honor the buyout provision in the partnership agreement. The practice filed a counter-complaint, arguing that the plaintiff was liable for his share of the partnership's outstanding financial obligations. Following a bench trial, the court ordered the practice to remit payment. The practice appeals. We affirm.

The Defendant, Paula Shotwell, was convicted after a bench trial in the Criminal Court for Shelby County of theft of property valued at more than $500 but less than $1000, a Class E felony. See T.C.A. §§ 39-14-103; 39-14-105 (2014). The trial court sentenced the Defendant to two years' probation. On appeal, the Defendant contends that (1) the evidence is insufficient to support her conviction and (2) the State violated her due process rights by failing to preserve the stolen items as evidence. We affirm the judgment of the trial court.

The Petitioner, Matthew B. Foley, appeals as of right from the Rutherford County Circuit Court’s summary dismissal of his petition for post-conviction relief as untimely.  He asserts that the statute of limitations should be tolled because he did not learn until well after its expiration that the State sought to enforce the provisions of the sexual offender registration act against him contrary to the terms of his plea agreement.  Following our review, we reverse the judgment of the post-conviction court and remand the case for an evidentiary hearing.

The Defendant, Abdujuan M. Napper, appeals the Montgomery County Circuit Court’s order revoking his probation in case numbers 41100355 and 41100356 for his convictions for possession of marijuana, possession of drug paraphernalia, and misdemeanor vandalism  and ordering him to serve the remainder of his effective sentence of three years, eleven months, and twenty-nine days in confinement.  The Defendant also appeals the trial court’s sentencing determinations in related case numbers 41200773 and 41200884.  The Defendant pleaded guilty in case number 41200773 to possession with the intent to sell 0.5 ounce or more of marijuana and received a three-year sentence.  The trial court ordered the Defendant to serve his sentence in confinement and imposed consecutive service to the sentences in case numbers 41100355 and 41100356.  The Defendant also pleaded guilty in case number 41200884 to unlawful possession of a firearm and to misdemeanor domestic assault.  The trial court imposed concurrent sentences of three years for the weapon-related conviction and eleven months, twenty-nine days for the assault-related conviction.  The court ordered the sentences be served consecutively to the sentence in case number 41200733, for an effective sentence of thirteen years.  The Defendant later sought to withdraw his guilty pleas, which the trial court denied.  On appeal, the Defendant contends that trial court erred by (1) failing to consider the appropriate purposes and principles of sentencing and (2) denying his motion to withdraw his guilty pleas.  We affirm the judgments of the trial court.

Property owner sought recognition that his property had a nonconforming use as a rock quarry. We have determined that the property owner’s previous appeal before the board of zoning appeals, for which he did not file a petition for writ of certiorari in chancery court, is res judicata as to the present matter.

The Petitioner, Grico Clark, appeals as of right from the Madison County Circuit Court’s dismissal of his petition for post-conviction relief. The Petitioner contends that he received ineffective assistance from his trial counsel due to (1) trial counsel inaccurately advising him about his potential sentencing exposure causing the Petitioner to reject a favorable plea offer from the State; (2) trial counsel “failing to properly advise” the Petitioner about his right to testify at trial; (3) trial counsel “failing to properly communicate” to the Petitioner the results of a mental competency evaluation; and (4) trial counsel failing to raise on direct appeal an “issue regarding a conflict of interest.” Discerning no error, we affirm the judgment of the post-conviction court.

Defendant, James Hawkins, appeals his convictions for two counts of rape of a child. Defendant raises four issues: (1) whether there was a fatal variance between the original indictments and the offenses elected by the State; (2) whether the trial court erred by admitting the forensic interview of one of the victims; (3) whether the State failed to properly elect offenses; and (4) whether there was sufficient evidence to support his convictions beyond a reasonable doubt. Based upon our review of the record, we affirm the judgments of the trial court.

In 2012, a Rutherford County jury found the Petitioner, Andrew T. Lee, guilty of especially aggravated burglary, aggravated assault, tampering with evidence, evading arrest, and resisting arrest.  The trial court sentenced the Petitioner to a total effective sentence of ten years in the Tennessee Department of Correction.  The Petitioner filed a petition seeking post-conviction relief, which the post-conviction court denied after a hearing.  On appeal, the Petitioner maintains that he received the ineffective assistance of counsel and that he was denied his right to a speedy trial due to the delay between his conviction and sentencing.  After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

This appeal involves a motion to set aside a declaratory judgment action involving a cemetery.  Service to the community at large was made by publication.  No answer, pleading, or response of any kind was filed within the time allowed by the court. Following a hearing, the trial court provided the Macedonia Cemetery Board of Trustees with the exclusive authority to oversee operation and maintenance of the cemetery.  The respondents filed a motion to set aside the judgment, claiming they had not received notice of the hearing.  The court denied the motion.  The respondents appeal.  We dismiss the appeal for failure to comply with Rule 27 of the Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals, as such the judgment of the trial court is affirmed.