APPELLATE COURT OPINIONS

This is a contract action involving an alleged oral contract between the plaintiffs, landlords Jim Hicks and Betty Hicks (“Landlords”), a married couple who own the rental property at issue, and the co-defendant, Duane Seitz, who located and paid the first month's rent on the property on behalf of his former wife, Debbie Seitz. Ms. Seitz, also originally named as a co-defendant, resided in the home on the property with her adult daughter, her adult daughter's boyfriend, and the daughter's two small children (collectively, “Tenants”). Following several months during which the rent was paid late, partially, or not at all and upon discovery of unkempt conditions in the home, Landlords served Tenants with a notice of eviction. After Tenants had moved from the home, Landlords filed a civil warrant in the Sevier County General Sessions Court against the defendants, Ms. Seitz and Mr. Seitz, alleging unpaid rent and vandalism. Upon hearing, the General Sessions Court entered a judgment in favor of Landlords and against both defendants in the amount of $7,000 plus 5.25% interest and court costs. The defendants appealed to the Circuit Court. Following a bench trial, the Circuit Court entered a judgment in favor of Landlords and against only Mr. Seitz in the amount of $6,285 in damages, plus 5.25% interest and court costs, based upon breach of an oral contract. Having found that Mr. Seitz had entered an oral contract with Landlords but that Ms. Seitz had not, the Circuit Court dismissed Ms. Seitz from the action. Mr. Seitz appeals, contending that the trial court erred by (1) finding an enforceable oral contract between Mr. Hicks and Mr. Seitz and (2) dismissing Ms. Seitz from the action. Because Ms. Seitz was never served with notice of this appeal, we conclude that this Court does not have subject matter jurisdiction over the issue of her dismissal from this matter. As to the trial court's judgment in favor of Landlords, we discern no error and affirm.

In this child support arrearage case Harold Newman, Jr. (“Respondent”) appeals the December 23, 2014 order of the Chancery Court for Roane County (“the Trial Court”) finding Respondent in civil contempt and ordering that Respondent be incarcerated in the Roane County Jail until he pays a purge amount of $150.00. We find and hold that no evidence was produced showing that Respondent had the present ability to pay $150.00, or any amount, and, therefore, the order finding Respondent in contempt and sentencing him to incarceration was in error. We reverse that portion of the Trial Court's December 23, 2014 order finding Respondent in civil contempt and sentencing Respondent to indefinite incarceration in the Roane County Jail with the ability to purge himself of contempt by making a $150.00 purge payment and remand this case to the Trial Court for further proceedings.

In this child support arrearage case Harold Newman, Jr. (“Respondent”) appeals the December 23, 2014 order of the Circuit Court for Roane County (“the Trial Court”) finding Respondent in civil contempt and ordering that Respondent be incarcerated in the Roane County Jail until he pays a purge amount of $150.00. We find and hold that no evidence was produced showing that Respondent had the present ability to pay $150.00, or any amount, and, therefore, the order finding Respondent in contempt and sentencing him to incarceration was in error. We reverse that portion of the Trial Court's December 23, 2014 order finding Respondent in civil contempt and sentencing Respondent to indefinite incarceration in the Roane County Jail with the ability to purge himself of contempt by making a $150.00 purge payment and remand this case to the Trial Court for further proceedings.

Because the order appealed is not a final judgment, this Court lacks subject matter jurisdiction. Therefore, we dismiss this appeal.

Petitioner, Nathan Young Payne, appeals the dismissal of his motion to withdraw his guilty plea, which the lower court subsequently treated as a petition for post-conviction relief. Because Petitioner has not proven that due process requires tolling of the statute of limitations for post-conviction purposes, the decision of the post-conviction court is affirmed.

Petitioner, Melissa Barnett, appeals the dismissal of her second petition for a writ of error coram nobis, in which she alleged that her codefendant's recantation of his trial testimony constitutes newly-discovered evidence of her innocence. Upon our review of the record, we agree with the coram nobis court that Petitoner was previously granted a meaningful opportunity to present this claim, and we affirm its decision to dismiss the petition.

This is an appeal from the denial of Appellant’s Tennessee Rule of Civil Procedure 60.02 motion to set aside a settlement reached by Appellee, the decedent’s mother, in the underlying wrongful death lawsuit. Appellant brought the Rule 60.02 motion on behalf of her minor child, who was born out of wedlock. The decedent had executed a voluntary acknowledgment of paternity of the minor child in Mississippi; Appellant argued that the acknowledgment was entitled to full faith and credit in Tennessee such that the child would be the rightful plaintiff in the wrongful death lawsuit. Appellee filed a challenge to paternity, arguing that the decedent was incarcerated at the time of the child’s conception. The Circuit Court stayed all proceedings and transferred the question of paternity to the Probate Court, which had no authority to enroll the foreign acknowledgment of paternity under the Uniform Enforcement of Foreign Judgments Act. Furthermore, because the child’s paternity was challenged, there was a question as to whether the mere filing of the VAP in a Tennessee Court, pursuant to Tennessee Code Annotated Section 24-7-113(b)(3), was sufficient to establish paternity for purposes of the Wrongful Death Statute. If there is a challenge to the VAP, Tennessee Code Annotated Section 24-7-113(e) requires the trial court to first find that there is a substantial likelihood that fraud, duress, or material mistake of fact existed in the execution of the VAP. If the court so finds, then, under Tennessee Code Annotated Section 24-7-113(e)(2), DNA testing is required to establish paternity. Alternatively, the trial court could find that there is not a substantial likelihood of fraud, duress, or material mistake, deny the challenge to the VAP, and enroll the VAP as conclusive proof of paternity. Here, the trial court made no finding concerning fraud, duress, or material mistake under Section 24-7-113(e). Despite the fact that the court never resolved the paternity question, it, nonetheless, denied Appellant’s Rule 60.02 motion and granted attorney’s fees to the defendant in the underlying wrongful death action and to the Appellee/mother for Appellant’s alleged violation of the order staying all proceedings in the Circuit Court. We conclude that the Rule 60.02 motion was not ripe for adjudication until such time as the trial court conclusively established the child’s paternity under either Tennessee Code Annotated Section 24-7-113 or 24-7-112. Accordingly, we vacate the trial court’s order denying Rule 60.02 relief and remand the case for further proceedings, including, but not limited to, entry of an order that complies with Section 24-7-113(e). We reverse the award of attorney’s fees and the order staying proceedings in the Circuit Court.

This is a termination of parental rights case. The trial court terminated Appellant/Mother‘s parental rights on the grounds of: (1) abandonment; (2) substantial non-compliance with the permanency plan; (3) persistence of conditions; and (4) severe child abuse. We vacate the termination of Mother‘s parental rights on the grounds of substantial non-compliance with the permanency plan and failure to support. However, the remaining grounds for termination of Mother‘s parental rights are met by clear and convincing evidence, and there is also clear and convincing evidence that termination of Mother‘s parental rights is in the best interest of the children. Therefore, we affirm the termination and remand for further proceedings.

The defendant, Michael Richard Miller, was convicted of three counts of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated burglary, and one count of employing a firearm in the course of a dangerous felony.  On appeal, he challenges the trial court’s imposition of an effective forty-six-year sentence based upon partial consecutive sentencing.  Specifically, the defendant argues that: (1) the trial court misapplied the consecutive sentencing factors in making its sentencing determination; and (2) the trial court erred in ordering that the conviction for employing a firearm in the course of a dangerous felony be served consecutively to all his convictions rather than only to the underlying dangerous felony.  Following review of the record, we affirm the sentences as imposed.

The Defendant-Appellant, Jesse Allen Christman, entered guilty pleas to aggravated assault and kidnapping, Class C felonies, with the trial court to determine the length and manner of service of the sentences.  Aftera sentencing hearing, the trial court sentenced him to twelve years in the Tennessee Department of Correction.  On appeal, the Defendant argues that the trial court abused its discretion in imposing an excessive sentence and in denying him an alternative sentence.  Upon review, we affirm the judgments of the trial court.

This appeal concerns a home inspector’s liability for a guest’s injury following the collapse of a homeowner’s second-story deck railing.  The accident occurred just one month after the home inspection was performed.  In his report to the homeowner, the inspector noted that the deck flooring was warped but failed to report the improper construction of the deck railing.  The injured guest filed suit against the homeowner and the home inspector, among others.  The inspector moved for summary judgment.  The trial court granted summary judgment, finding that the inspector did not owe a legal duty to the guest.  We affirm.

This is a Tennessee Supreme Court Rule 10B interlocutory appeal as of right from the trial court’s denial of a motion for recusal. The appellant contends the trial judge should be disqualified on the ground of bias, which is evident from multiple rulings that were adverse to the appellant. Having reviewed the petition for recusal appeal, we affirm the trial court’s decision to deny the motion for recusal. 

This case involves the modification of a parenting plan. The trial court denied Appellant Father's petition to modify the permanent parenting plan and to be appointed primary residential parent. However, the trial court granted Appellee Mother's petition to modify the permanent parenting plan without explicitly acknowledging a material change in circumstance. Mother's petition did not seek to alter the designation of the primary residential parent, and instead sought to modify the parenting schedule. Father appeals. Discerning no error, we affirm and remand.

Following a jury trial, Antonio Bigsbee (“the Petitioner”) was convicted of especially aggravated kidnapping and reckless endangerment and sentenced as an especially mitigated offender to thirteen and a half years’ incarceration.  The Petitioner filed a petition for post-conviction relief alleging that trial counsel failed to communicate a plea offer of eight years’ incarceration.  After a hearing, the post-conviction court denied relief.  Discerning no error, we affirm the judgment of the post-conviction court.

The Defendant, Emily Brittany Davis, pleaded guilty to one count of vandalism under $500 and was sentenced to serve eleven months, twenty-nine days on supervised probation and pay restitution to the victim.  After a hearing, where the victim testified about the cost of the Defendant’s vandalism, the criminal court ordered the Defendant to pay $800 in restitution, and the Defendant appeals this order.  Following a careful review of the record and applicable law, we affirm.

The Defendant, Eric Darnell Whitaker, was found guilty by a Maury County Circuit Court jury of attempt to commit first degree premeditated murder, a Class A felony, two counts of aggravated assault, Class C felonies, reckless endangerment, a Class E felony, and theft of property valued at $1000 or more but less than $10,000, a Class D felony.  See T.C.A. §§ 39-13-202 (2014), 39-12-101 (2014), 39-13-102 (Supp. 2011) (amended 2013), 39-13-103 (2010) (amended 2011, 2012, 2013), 39-14-103 (Supp. 2011) (amended 2014).  The trial court sentenced the Defendant as a Range I, standard offender to twenty years for attempted first degree murder, five years for each aggravated assault, two years for reckless endangerment, and three years for theft.  The court ordered consecutive service for one aggravated assault, the reckless endangerment, and the theft sentences, for an effective thirty-year sentence.  On appeal, the Defendant contends that the evidence is insufficient to support his attempted first degree murder and theft convictions.  We affirm the judgments of the trial court.

Petitioner, Alexa Williams El, appeals from the trial court's summary dismissal of her three pro se petitions for writ of habeas corpus filed on January 20, 21, and 29, 2015, in which she alleged a number of statutory and procedural violations with regard to the requirements for notifying state officials of a driving infraction after the judgment had issued. She also asserted that the arrest warrants were insufficient with respect to her convictions for driving a motor vehicle while the privilege to drive was suspended, driving an unregistered vehicle, and operating a motor vehicle without evidence of financial responsibility. After a thorough review, we affirm the judgment of the trial court.

This appeal stems from a post-divorce modification proceeding that was commenced by Mother in order to modify the parties' permanent parenting schedule. Following a recess at trial, the parties announced that they had agreed to the terms of a new parenting plan. The agreed-upon terms were announced by the parties' counsel in the presence of the parties in open court. Following the entry of the order approving the modified parenting plan, Father stated that he did not consent to the parenting plan and moved to set the trial court's order aside. The trial court denied his motion. Because the trial court's order does not contain a finding that the modified parenting plan is in the child's best interests, we vacate and remand for further proceedings consistent with this Opinion.

Plaintiffs, a debt collection company and a motor carrier, filed suit in general sessions court against defendant to collect unpaid transportation and delivery charges. Defendant filed a motion for summary judgment and a motion for sanctions against plaintiffs, arguing that plaintiffs continued to pursue their claims despite knowledge that defendant was not the proper defendant. Plaintiffs eventually voluntarily nonsuited their claim; however, defendants pursued their motion for sanctions. The general sessions court ordered plaintiffs to pay defendants' attorney's fees as sanctions. Plaintiff appealed the award of sanctions to the circuit court, and the circuit court modified the amount of sanctions awarded, but otherwise affirmed the award. On appeal, we reverse, holding the general sessions court did not have the authority to impose attorney's fees as sanctions.

The Defendant, Anthony Todd Ghormley, entered a nolo contendere plea to sexual battery by an authority figure and received an effective five-year sentence to be served on community corrections. Approximately nine years after the judgment was filed, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence. The trial court summarily dismissed the motion as moot on the basis the Defendant had already served his sentence. On appeal, the Defendant contends that the trial court erred in dismissing his motion. We affirm the judgment of the trial court.

Appellant, Dwight R. Walton, stands convicted of two counts of rape of a child, Class A felonies; three counts of aggravated sexual battery, Class B felonies; and two counts of soliciting sexual exploitation of a minor by electronic means, Class C felonies. He received an effective sentence of fifty years in the Tennessee Department of Correction. On appeal, he argues that the evidence was insufficient to support his convictions; that the trial court abused its sentencing discretion; that the trial court committed plain error by finding that appellant did not present a prima facie case of gender discrimination by the State in jury selection; and that the trial court committed plain error by denying appellant's request for the offense of child abuse to be charged to the jury as a lesser-included offense of rape of a child. Following our careful review, we conclude that one of appellant‟s convictions for aggravated sexual battery must be reversed for insufficient evidence and that the remaining two convictions for aggravated sexual battery must be merged. We affirm the remainder of appellant's convictions.

Defendant, Myron Pierre Walton, appeals from the trial court’s summary dismissal of his motion filed pursuant to Tennessee Rule of Criminal Procedure 36.1. The State concedes that the trial court erred by summarily dismissing Defendant’s motion. Following our review of the parties’ briefs, the record, and the applicable law, we reverse the trial court’s order dismissing the motion and remand for appointment of counsel if Defendant is indigent and for other proceedings pursuant to Tennessee Rule of Criminal Procedure 36.1.

Defendant, Robin Annette Harless, was indicted by the Johnson County Grand Jury for two counts of Class D felony theft. Defendant was a housekeeper for each of the victims and committed the thefts of jewelry, collectible knives, and cash over a period of time while at work. She entered guilty pleas to the charges and requested the trial court to grant judicial diversion. Following a hearing where Defendant and both victims testified, the trial court denied judicial diversion and sentenced Defendant to sentences of three years, concurrent, for each offense, with periodic confinement requiring incarceration of fifty days. In her sole issue on appeal, Defendant asserts that the trial court erred by denying her request for judicial diversion. After review, we affirm pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

This case involves a dispute over the name inscribed on the decedent's headstone. The decedents surviving husband and her two adult children had the decedent's headstone inscribed to include her alleged biological father's surname. Appellant, the decedent's adoptive father, brought a petition to replace the headstone selected by the appellees. The appellees moved for judgment on the pleadings. The trial court concluded that the appellant did not have standing to challenge the name on the decedent's headstone selected by the surviving spouse and granted the appellees' motion. We interpret Tennessee Code Annotated Section 62-5-703 to grant the decedent's surviving spouse the right to control the inscription on the decedent's headstone as part of the right of disposition.