APPELLATE COURT OPINIONS

The defendant, Plaise Edward Spangler, appeals the revocation of his probation, raising essentially the following issues: whether the trial court abused its discretion by finding that the defendant violated the terms of his probation by failing to submit to a drug screen and failing to pay court costs and fees when neither failure was willful; whether the trial court erred by not considering all lesser alternative means to incarceration, including intensive drug rehabilitation by referral to a drug court; and whether the trial judge committed plain error by not sua sponte recusing himself because he had been the prosecutor in a number of the defendant's previous criminal cases. Following our review, we affirm the judgment of the trial court.

Anthony Travis Richards (Husband), who was incarcerated in the custody of the Tennessee Department of Correction, filed this divorce action against Veronica Denise Richards (Wife). Husband also filed a “motion for leave of court to appear by means of video communications technology or, in the alternative, by telephone in lieu of personal attandence” in accordance with Tenn. Code Ann. § 41-21-809 (2014). The trial court did not address Husband’s motion. Rather, the court entered an order dismissing Husband’s complaint predicated on his failure to appear and prosecute the action. We hold that the trial court committed prejudicial error by dismissing Husband’s action without first considering his pending motion. Accordingly, we vacate the trial court’s judgment and remand for further proceedings.

Patricia Bazemore brought this action against her former employer, Performance Food Group, Inc. (PFG) and Barry Pearson, a former employee of PFG. Ms. Bazemore claimed that, while she and Mr. Pearson were working for PFG, she was subjected to a pattern of unwanted sexual harassment by him – conduct that she alleges created a hostile work environment in violation of the Tennessee Human Rights Act (THRA). As a result of the unwanted sexual harassment, Ms. Bazemore also alleged constructive discharge, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent supervision and retention.1 PFG subsequently filed a motion for summary judgment, contending that no genuine issue of material fact exists in support of Ms. Bazemore’s claims against PFG as an entity. The trial court ultimately granted PFG’s motion for summary judgment after finding (1) no evidence of a hostile work environment; (2) facts indicating that PFG took reasonable steps to prevent sexual harassment from occurring; (3) proof that PFG’s response to Ms. Bazemore’s complaint was objectively reasonable; (4) insufficient evidence to support the claims of either intentional or negligent infliction of emotional distress; and (5) no proof of negligent retention and supervision by PFG. We affirm.

Petitioner, Raymond Andrew Herbst, filed a petition for post-conviction relief, alleging that his guilty pleas to one count of rape and three counts of attempted rape were constitutionally infirm because he was not informed that he would be subject to lifetime community supervision.  Because due process does not require tolling of the statute of limitations, the decision of the post-conviction court is affirmed.

The Defendant-Apellant, James W. Grooms, Jr., was convicted by a Hawkins County jury of two counts of aggravated assault, for which he received an effective sentence of four years and six months' confinement. On appeal, the Defendant asserts that (1) the trial court committed plain error by instructing the jury that aggravated assault was a lesser-included offense of attempted first degree murder, and (2) the evidence is insufficient to sustain his conviction for aggravated assault. Upon our review, we affirm the judgments of the trial court.

The Petitioner, Mark Takashi, appeals from the denial of post-conviction relief by the Criminal Court for Knox County. He was convicted of aggravated child abuse and sentenced to twenty-five years' imprisonment, to be served at 100 percent. On appeal, the Petitioner argues that he received ineffective assistance of counsel during plea negotiations. Upon review, we affirm the judgment of the post-conviction court.

Appellant, Louis Tyrone Robinson, appeals the Circuit Court of Gibson County’s denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. 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.

In this procedurally complex case, in 2006, a trial court found the Defendant, Kenneth Ryan Mallady, not guilty by reason of insanity for the offenses of first degree premeditated murder, attempted first degree premeditated murder, and aggravated assault.  The judge ordered that the Defendant be transported to Middle Tennessee Mental Health Institute (“MTMHI”).  The Defendant was subsequently discharged from MTMHI  with the requirement that he participate in mandatory outpatient treatment.  In 2012, the trial court found that the Defendant had not complied with his mandatory treatment plan, appointed him counsel, and ordered him temporarily recommitted to MTMHI.  In 2014, the trial court held a hearing and ordered that he be permanently recommitted to MTMHI.  The Defendant appeals his permanent recommitment, contending that the trial court applied the incorrect legal standard when making its findings.  After a thorough review of the record and relevant authorities, we conclude that the record supports the trial court’s judgment.

The Department of Children’s Services (“DCS”) and the Guardian ad Litem both filed petitions in the Juvenile Court for Johnson County (“the Juvenile Court”) seeking to terminate the parental rights of D.A.F. (“Father”) and J.D.F. (“Mother”) to four of their minor children: C.A.F., born 08/06; J.A.F., born 01/08; C.R.F., born 01/09; and, S.R.F., born 09/11 (“the Children,” collectively). The ground alleged was severe child abuse, of a sexual nature. After a trial, the Juvenile Court found that clear and convincing evidence established the ground of severe child abuse and that termination of Mother’s and Father’s parental rights was in the Children’s best interest. Mother and Father appeal the termination of their parental rights, arguing, in part, that the ground of severe abuse must be overturned because no medical exam was conducted on the Children. We affirm the judgment of the Juvenile Court.

In this action seeking to enforce a judgment lien against the debtor‘s real property, the debtor claimed that he was not properly served with process in the underlying lawsuit wherein the judgment was entered. The trial court granted summary judgment to the creditor, and the debtor appealed. We affirm the trial court‘s grant of summary judgment based on the validity of the underlying judgment, determining that such judgment was not void on its face and thus not subject to collateral attack. We reverse the issue of whether the creditor should have been granted an award of attorney‘s fees at trial pursuant to the parties‘ fee agreement and remand for specific findings by the trial court. We decline to award attorney‘s fees to the creditor incurred in defending this appeal.

The Defendant, Doyale Montez Blacksmith, was convicted by a Davidson County Criminal Court jury of aggravated rape, a Class A felony, aggravated kidnapping, a Class A felony, and aggravated stalking, a Class E felony.  See T.C.A. §§ 39-13-502 (2014), 39-13-304 (2014), 39-17-315 (2010) (amended 2012).  The trial court sentenced the Defendant as a Range II, multiple offender to concurrent terms of thirty years for aggravated rape and fifteen years for aggravated kidnapping each at 100% service.  The trial court sentenced the Defendant as a Range III, persistent offender to five years for aggravated stalking and ordered the sentence be served consecutively to the aggravated rape and aggravated kidnapping sentences, for an effective thirty-five-year sentence.  On appeal, the Defendant contends that the evidence is insufficient to support his aggravated rape conviction.  We affirm the Defendant’s aggravated rape conviction.

In 2009, William Wayne Cutshaw and Tincy Faye Cutshaw sold a piece of commercial real property (the property) to Kenton D. Hensley and Pamela F. Hensley. The property was improved with a retail business whose trade name was Glendale Market & Deli. The total purchase price of the property, including its contents, was $215,000. The Hensleys executed two notes, one of which was for $175,000. It was secured by a deed of trust on the property. After the Hensleys defaulted in 2011, the Cutshaws bid in the property at a foreclosure sale for $20,000. The Cutshaws then brought this action seeking a deficiency judgment for the balance owed by the Hensleys. The trial court, applying the governing statute, Tenn. Code Ann. § 35-5-118 (Supp. 2014), found that the property had sold at the foreclosure sale for an amount materially less than its fair market value, which latter amount the court found to be $215,000 as of the time of the foreclosure sale. The trial court relied upon the formula prescribed by Tenn. Code Ann. § 35-5-118(c), which code section provides that ―the deficiency shall be [(1)] the total amount of the indebtedness prior to the sale plus the costs of the foreclosure and sale, less [(2)] the fair market value of the property at the time of the sale.‖ The trial court found concept number one to be $173,620.30 and the second concept to be $215,000. Since the difference is a negative figure, the trial court declined to award the Cutshaws a deficiency judgment in any amount. The Cutshaws appeal. We hold that the evidence preponderates in favor of the conclusion that the fair market value of the property at the time of the foreclosure sale was $89,000. We agree with the trial court‘s determination that the foreclosure sale price – $20,000 – was materially less than fair market value.

The defendant, Darrel Dean Hochhalter, was convicted by a Davidson County Criminal Court jury of six counts of sexual battery by an authority figure and one count of rape.  He was sentenced to five years for each count of sexual battery by an authority figure and twelve years for the rape conviction.  The court ordered that two of the sentences for sexual battery by an authority figure and the sentence for rape be served consecutively, for an effective term of twenty-two years.  On appeal, he argues that: (1) the evidence is insufficient to sustain his convictions; (2) the trial court erred in admitting the forensic interview of the victim at trial; and (3) the trial court abused its discretion in sentencing him to twenty-two years in confinement.  After review, we affirm the judgments of the trial court.  However, we remand for entry of a corrected judgment in Count 7 to reflect the rape conviction as a Class B felony.

The defendant, James Andrew Paige, pled guilty to one count of aggravated statutory rape, a Class D felony.  He received a five-year sentence as a Range II offender with the trial court to determine the manner of service.  The trial court ordered the defendant to serve his sentence in incarceration.  On appeal, the defendant contends that the trial court erred in denying him alternative sentencing.  Following our review, we affirm the judgment of the trial court.

The dispositive issue in this appeal is whether the terms of an attorney-client retainer agreement preclude the attorneys from recovering any fees for representation of the decedent’s estate in an action to recover assets from the decedent’s son. Prior to her death, the decedent commenced an action against her son to recover the value of a new home she constructed on her son’s property, which was prior to the engagement of the attorneys whose fees are at issue. After the decedent’s death, the administrator continued to pursue the action, but subsequently concluded that the estate did not have sufficient assets to continue prosecuting the claim; thus, the administrator agreed to a settlement with the decedent’s son. When the motion seeking court approval of the settlement was filed, the decedent’s daughter opposed the settlement. Following discussions, the administrator, the decedent’s daughter, and her attorneys entered into an agreement stating, in pertinent part, that the daughter’s attorneys would “at no cost to the estate, prosecute this matter to trial” and that “all [of the attorneys’] fees and expenses shall be the responsibility of [the daughter].” The attorneys prosecuted the matter to trial, and the estate prevailed; however, the son appealed the judgment, and we reversed and remanded for a new trial. The estate prevailed on remand, and the son appealed again. While the second appeal was pending, the son filed a petition for bankruptcy, a bankruptcy trustee was appointed, and the probate court allowed the trustee to be substituted for the son. Thereafter, the attorneys who represented the estate in the trial of the underlying action and both appeals filed a motion for fees and expenses. The administrator for the estate did not file an objection to the fees based on the retainer agreement or inform the probate court or the trustee of the existence of the retainer agreement. Following a hearing, the trial court awarded $178,598 in attorneys’ fees and expenses and assessed all of the fees against the estate. Soon thereafter, the bankruptcy trustee learned of the retainer agreement. Based on this new information, the trustee filed a Tenn. R. Civ. P. 59.04 motion to set aside the order assessing the attorneys’ fees against the estate. The administrator supported the trustee’s motion, taking the position for the first time that the parties to the retainer agreement intended for the daughter to be responsible for all of the attorneys’ fees. Conversely, the attorneys seeking the fees insisted that the retainer agreement only relieved the estate of liability for the fees incurred through the trial, which concluded on August 15, 2012. The attorneys’ position was supported by the administrator’s prior counsel who negotiated the terms of the retainer agreement on behalf of the estate. She stated that it was not the intent of the parties to preclude the new attorneys from recovering fees for services rendered on behalf of the estate after trial. She also stated that it would be “highly inequitable” for the estate to not be responsible for the fees incurred after the trial because the resulting judgment benefited the estate. Following a hearing on the trustee’s motion, the trial court ruled that it was the intent of the parties for the daughter to be solely responsible for attorneys’ fees and expenses “up to trial,” but all reasonable and necessary fees and expenses incurred after that trial were the responsibility of the estate. Thus, the court assessed the attorneys’ fees incurred through August 15, 2012 to the daughter and all fees incurred thereafter to the estate. This appeal followed. We affirm. 

A pro se litigant brought suit in the General Sessions Court for Smith County over a dispute with a neighbor. The general sessions court dismissed the case for lack of subject matter jurisdiction. The plaintiff appealed to the Circuit Court, where his claims were once again dismissed for lack of subject matter jurisdiction. Because in this circumstance we conclude that only a chancery court had subject matter jurisdiction to hear the dispute, we affirm.

Suit was brought for personal injuries allegedly sustained in a slip-and-fall at Defendant’s restaurant. Plaintiffs filed a notice of voluntary non-suit and then re-filed the complaint within a year of dismissal; service of process was not obtained for twenty months. On Defendant’s motion to dismiss the complaint as being ineffective because of Plaintiffs’ alleged intentional delay in securing service of summons in contravention of Tenn. R. Civ. P. 4.01(3), the court held that the delay was intentional and dismissed the complaint. Finding that the evidence does not support the finding that Plaintiffs intentionally delayed service of process, we reverse the judgment and remand the case for further proceedings.

This negligence action arose when a minor child injured his finger while participating in a woodworking shop activity at a facility operated by the Boys and Girls Club of Greater Kingsport. The child's father and mother originally filed a joint action as next friends of the child, naming as defendants the Boys and Girls Club of Greater Kingsport and the United Way of Greater Kingsport (collectively, “Defendants”). The parents eventually nonsuited the original action. The child's father subsequently filed this action as next friend of the child, seeking damages for permanent impairment, pain and suffering, medical expenses, and loss of earning capacity. Defendants filed concomitant motions for summary judgment, each asserting that the father lacked standing to bring this action pursuant to Tennessee Code Annotated § 20-1-105(b). Following a hearing, the trial court granted summary judgment in favor of Defendants. The father has appealed. Having determined that Tennessee Code Annotated § 20-1-105(b) (2009) operates only to bar an action brought by the father on his own behalf to recover medical expenses and loss of the child's service, we affirm the grant of summary judgment to Defendants only as to the father's claim for these damages. We reverse the grant of summary judgment as to the claims brought on behalf of the child and remand to the trial court for further proceedings consistent with this opinion.

Appellant, Lederrius Thomas, was convicted of first degree murder and attempted first degree murder. The trial court sentenced appellant to life for his first degree murder conviction and to fifteen years for his attempted first degree murder conviction, to be served concurrently. Appellant now challenges his convictions, arguing that the evidence at trial was insufficient to prove premeditation and that the trial court erred in issuing a supplemental jury instruction regarding the element of premeditation. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgments of the trial court.

The Defendant-Appellant, Debra L. Heath, has appealed the Morgan County Criminal Court’s denial of her motions to suppress evidence obtained during searches of her property. The appellate record, however, does not contain a motion for new trial, a transcript from a motion for new trial hearing, or an order denying a motion for new trial. Pursuant to Rule 3(e) of the Tennessee Rules of Appellate Procedure, we conclude that the issue presented herein has been waived. The judgment of the trial court is affirmed in accordance with Rule 20 of the Rules of the Court of Criminal Appeals.

The plaintiff bank filed this action asserting that defendants fraudulently conveyed real property located in Tennessee in an effort to defraud the bank and to evade the collection of a Wisconsin state court judgment against defendant Mrs. Shea. The trial court granted the bank’s motion for summary judgment, setting aside the conveyance as fraudulent and declaring the deed from Mrs. Shea to her father null and void. The defendants appeal. We affirm.

This case involves a minor's appeal of a criminal court order directing her to pay restitution of over $9,000 at the rate of $50 a month. The minor claims that the amount of restitution is excessive and that the court failed to consider the rehabilitative nature of the juvenile court system and her inability to remit payment. We affirm.

Petitioner, Michael A. Dodson, entered open pleas of guilty in the Davidson County Criminal Court to one count of aggravated rape, two counts of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated burglary, and one count of employing a firearm during the commission of a felony.  Following a sentencing hearing, the trial court imposed a mixture of concurrent and consecutive sentences which resulted in an effective sentence of 86 years at 100% service.  The judgments were affirmed on appeal.  State v. Michael Antonio Dodson, No. M2010-01047-CCA-R3-CD, 2011 WL 5831759 (Tenn. Crim. App. Nov. 21, 2011), perm. app. denied (Tenn. April 20, 2012).  He filed a timely petition for post-conviction relief.  Following an evidentiary hearing, the post-conviction court denied relief and dismissed the petition.  Petitioner has timely appealed, and following a review of the record and the briefs, we affirm the judgment of the post-conviction court.