APPELLATE COURT OPINIONS

The Defendant, Adam Todd Tucker, appeals the Lawrence County Circuit Court’s order revoking his probation for his convictions for two counts of theft of property valued at $1000 or more but less than $10,000, theft of property valued at more than $500 but less than $1000, and promotion of methamphetamine manufacture and ordering his effective eight-year sentence into execution. The Defendant contends that the trial court abused its discretion by revoking his probation. We affirm the judgment of the trial court.

This is a premises liability case in which the plaintiffs filed suit against the defendant, alleging that Kyle Beverly slipped and fell on the floor after entering the defendant’s dining establishment. The defendant filed a motion for summary judgment, asserting that Kyle Beverly was comparatively negligent and that the plaintiffs could not prove that its employees had notice of the dangerous condition prior to the fall. Following a hearing, the trial court granted the motion for summary judgment, finding that the plaintiffs could not establish that the defendant had notice of the dangerous condition prior to the fall. The plaintiffs appeal. The decision of the trial court is affirmed in part and reversed in part. We remand this case for proceedings consistent with this opinion.

A father’s parental rights to his child were terminated on the grounds that the father failed to comply with the requirements of the permanency plans developed when the child went into the custody of the Department of Children’s Services and that the conditions which led to the child’s removal persisted. Father appeals, contending that the Department did not use reasonable efforts to reunite him with his child and that the court erred in finding that the child had been removed from Father’s home. Finding that clear and convincing evidence exists to support the grounds for termination of Father’s rights, and that termination of those rights is in the best interest of the child, we affirm the judgment of the trial court.

The defendant, Malik Hardin, pleaded guilty to possession with intent to sell less than 0.5 grams of cocaine in a drug free school zone, possession of a firearm during the commission of a dangerous felony, simple possession of a controlled substance, and criminal trespass. He received a total effective sentence of fifteen years to be served at 100 percent. As part of his guilty plea, the Defendant sought to reserve two certified questions of law: (1) whether the defendant's arrest for the offense of criminal trespass was “objectively reasonable” under the Fourth and Fourteenth Amendments to the United States Constitution and article I, section 7 of the Tennessee Constitution in light of the “cite and release” rule codified at Tennessee Code Annotated section 40-7-118(b)(1); and (2) whether the seizure of the Defendant's automobile was based upon reasonable suspicion that the automobile was or contained evidence or fruits of criminal activity, and whether there was “reasonable cause” to believe that impoundment was “reasonably necessary” under the circumstances. Following our review, we conclude that the defendant's custodial arrest for criminal trespass was not in contravention of Tennessee Code Annotated section 40-7-118 and that the trial court did not err in failing to suppress evidence seized subsequent to the defendant's arrest. The judgments of the trial court are, therefore, affirmed.

Defendant, Randy Wayne Johnson, challenges the sufficiency of the evidence supporting his conviction for especially aggravated kidnapping. He argues that the kidnapping was merely incidental to the accompanying assault, of which he was also convicted. Because Defendant's conduct in committing the kidnapping constituted a separate and independent offense, there is sufficient evidence to support his conviction, and Defendant is not entitled to relief.

I respectfully disagree with the majority’s conclusion that the Defendant’s custodial arrest for criminal trespass was proper. The Defendant was arrested for criminal trespass based on the exception to the cite and release statute that allows for a custodial arrest for a misdemeanor when “[t]here is a reasonable likelihood that the offense would continue or resume . . . .” See Tenn. Code Ann. 40-7-118(c)(2). Because I do not believe that exception was properly applied in this case, I have concluded that the Defendant was subjected to a custodial arrest in violation of Tennessee Code Annotated 40-7-118(b)(1). Accordingly, I would not reach the Defendant’s second issue challenging the legality of the search of his vehicle following his arrest.

Thelma Bundren and George David Bundren (“Defendants”) appeal the order of the Circuit Court for Claiborne County (“the Trial Court”) finding and holding, inter alia, that the survey prepared by Comparoni & Associates establishes the boundary lines between real properties owned by Defendants and real property owned by Jerry Bundren (“Plaintiff”). We find and hold that the evidence does not preponderate against the Trial Court's findings, and we affirm.

This case involves the termination of the parental rights of a biological father to his seven children. Appellant contends that the trial court erred in terminating his parental rights. Because the grounds for termination are met by clear and convincing evidence, and there is also clear and convincing evidence that termination is in the best interest of the minor children at issue, we affirm the judgment of the trial court.

This appeal involves an award of retroactive child support. The child‘s father is in the military and was deployed overseas during part of the relevant time period. The trial court initially set the child support obligation based on the number of days the father would have had with the child pursuant to the parties‘ mediated agreement, regardless of the fact that he did not exercise all of that time due to his deployment. After considering a post-trial motion filed by the mother, the trial court altered the award to set the child support obligation based on the number of days the father actually spent with the child, not the number of days he was provided under the mediated agreement. The father appeals, challenging substantive and procedural aspects of the court‘s decision. We affirm.

The Petitioner, Andrew Mann, appeals as of right from the Knox County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner contends that he received ineffective assistance from his trial counsel due to trial counsel’s advice that he testify in his own defense. Discerning no error, we affirm the judgment of the post-conviction court.

The dispute central to this interlocutory appeal involves a failed real estate transaction and alleged breach of a real estate agent‘s fiduciary duty to her client. The plaintiff buyer entered into an agreement to purchase improved real property from the seller but failed to obtain financing to complete the purchase. In a previous action brought by the seller against the buyer, the trial court found that the buyer‘s attempted termination of the contract was ineffective and that he therefore breached the contract. On appeal, this Court affirmed that judgment in favor of the seller. The buyer subsequently brought the instant action against the defendant real estate agent, alleging breach of fiduciary duty based on the agent‘s failure to confirm delivery of the buyer‘s credit declination letter to the seller. The agent filed a motion for summary judgment, averring that the buyer had filed this action outside the time parameters of the applicable statute of limitations. Following a hearing, the trial court applied the discovery rule to find that knowledge of the agent‘s alleged failure to terminate the contract could not be imputed to the buyer before April 22, 2010, when the seller‘s counsel had raised the issue during trial in the original action.

Thelma Bundren and George David Bundren (“Defendants”) appeal the order of the Circuit Court for Claiborne County (“the Trial Court”) finding and holding, inter alia, that the survey prepared by Comparoni & Associates establishes the boundary lines between real properties owned by Defendants and real property owned by Jerry Bundren (“Plaintiff”). We find and hold that the evidence does not preponderate against the Trial Court's findings, and we affirm.

Thelma Bundren and George David Bundren (“Defendants”) appeal the order of the Circuit Court for Claiborne County (“the Trial Court”) finding and holding, inter alia, that the survey prepared by Comparoni & Associates establishes the boundary lines between real properties owned by Defendants and real property owned by Jerry Bundren (“Plaintiff”). We find and hold that the evidence does not preponderate against the Trial Court's findings, and we affirm.

This appeal arises from the termination of Mother’s and Father’s parental rights. The children were removed from their parents’ home because of drug exposure and domestic violence. A court adjudicated the children dependent and neglected about six months after their removal. Nearly two years later, the Department of Children’s Services petitioned to terminate Mother’s and Father’s parental rights. Following a trial, the juvenile court found that two statutory grounds existed to terminate Mother’s rights— substantial noncompliance and persistent conditions. The court found that three grounds existed to terminate Father’s rights—abandonment for failure to visit, substantial noncompliance, and persistent conditions. The court also concluded that the termination of Mother’s and Father’s parental rights was in the children’s best interest. Mother appeals the court’s determination that there were statutory grounds to terminate her rights and that termination was in the children’s best interest. Father also appeals the court’s best interest determination, but he appeals the court’s decision on only two of the three statutory grounds to terminate his rights. We affirm.  

In this termination of parental rights case, the father appeals the trial court’s termination of his parental rights to his son on the grounds of wanton disregard for the welfare of the child prior to father’s incarceration. The father also asserts the court erred in finding that termination was in the child’s best interest. We find that clear and convincing evidence supports the decision of the trial court and affirm the judgment in all respects.

The defendant, Adam Dansby Frazier, appeals his Hickman County Circuit Court jury convictions of attempted second degree murder, possession of contraband in a penal institution, aggravated assault, and facilitation of felony reckless endangerment, claiming that the evidence was insufficient to support his conviction of attempted second degree murder and that the trial court erred by impermissibly commenting upon the evidence at trial.  Discerning no error, we affirm.

The Petitioner, Joshua Faulkner, pursuant to a plea agreement, pleaded guilty to aggravated burglary, employing a firearm during the commission of a dangerous felony, and aggravated assault, with a total effective sentence of ten years of incarceration. Thereafter, the Petitioner filed, pro se, a petition for post-conviction relief. Counsel was appointed and, after a hearing, the post-conviction court denied the petition. On appeal, the Petitioner maintains that Counsel was ineffective because he coerced the Petitioner into entering a guilty plea. After a thorough review of the record and relevant law, we affirm the post-conviction court’s judgment.

The defendant, William C. Boles, appeals his Clay County Criminal Court jury convictions of two counts of the delivery of oxycodone, a Schedule II drug, in a drug-free school zone and one count of possession with the intent to sell oxycodone in a drug-free school zone, for which he received a total effective sentence of 60 years’ incarceration, claiming that the trial court erred by admitting certain evidence, that the evidence was insufficient to support his convictions, and that the trial court erred by imposing partially consecutive sentences.  Because we conclude that no error attends the convictions or sentences, the convictions and sentences are affirmed.  Because we detect error in the judgment forms, however, the case must be remanded to the trial court for the entry of corrected judgment forms reflecting the mandatory minimum period of incarceration as required by Tennessee Code Annotated section 39-17-432.

This appeal involves the interpretation of an insurance policy in order to determine whether the policy provided coverage for damage caused by arson. The insurer and the insured filed cross-motions for partial summary judgment on this issue. The trial court found the policy ambiguous and construed it in favor of coverage, holding that arson was covered under the policy. Accordingly, the trial court granted the motion for partial summary judgment filed by the insured and denied the motion for partial summary judgment filed by the insurer. The insurer appeals. We affirm.

The Petitioner, Darien C. Houston, appeals as of right from the Hamilton County Criminal Court’s summary dismissal of his petition for post-conviction relief. The Petitioner contends that the post-conviction court erred in summarily dismissing his petition for post-conviction relief for having been untimely filed. Following our review, we affirm the judgment of the post-conviction court.

The Defendant, Charles Rankin Zemp, pled guilty to one count of driving under the influence (DUI), fourth or subsequent offense, a Class E felony, and one count of operating a motor vehicle after being declared a motor vehicle habitual offender (MVHO), a Class E felony. See Tenn. Code Ann. §§ 55-10-401, -402(a)(4), -616. The Defendant was sentenced as a Range III, persistent offender to four years for each count. The trial court ordered the Defendant’s sentences to be served consecutively, for a total effective sentence of eight years. In this appeal as of right, the Defendant contends that the trial court abused its discretion in ordering him to serve his sentences consecutively. Discerning no error, we affirm the judgments of the trial court.

The Petitioner, Daniel David Eden, appeals as of right from the Robertson County Circuit Court’s summary dismissal of his petition for post-conviction relief, wherein he alleged that he received ineffective assistance of counsel at his probation revocation hearing.  The Petitioner contends that Young v. State, 101 S.W.3d 430 (Tenn. Crim. App. 2002), on which the post-conviction court relied in its summary dismissal, should be abrogated because it offends equal protection guarantees.  Upon review, we affirm the judgment of the post-conviction court.

Defendant, Cody Lee Crawford, challenges the trial court’s decision ordering him to register as a sex offender after he pled guilty to two counts of statutory rape. He argues that the trial court abused its discretion. The trial court did not abuse its discretion and Defendant is not entitled to relief. Accordingly, the judgments of the trial court are affirmed.

Appellants appeal the dismissal of their products liability cases.  The trial court concluded that the doctrine of collateral estoppel applied to a prior forum non conveniens dismissal.  The trial court reasoned that, at the time of the prior forum non conveniens dismissal, Appellant should have foreseen that the foreign forum would be unavailable to them and that issue should have been raised in previous proceedings.  Because we conclude that an alternative exception to the application of collateral estoppel may apply, we reverse.

This appeal arises from a construction negligence case. Connie Raby (“Plaintiff”), sued Covenant Health, Rentenbach Engineering Company, and TEG Architects, LLC, (“Defendants,” collectively) in the Circuit Court for Anderson County (“the Trial Court”). Plaintiff alleged that the absence of shielding in a portion of the radiology facilities in the new emergency department at Methodist Hospital caused Plaintiff to suffer damages from excessive radiation exposure. Defendants filed motions for summary judgment asserting the statute of repose, Tenn. Code Ann. § 28-3-202 (2000), as a complete defense. The Trial Court granted Defendants' motions for summary judgment. Plaintiff appeals to this Court arguing, in part, that the statute of repose did not run because the absence of the required shielding in the radiology facilities meant the project was not substantially completed on the date as found by the Trial Court. We hold, inter alia, that the radiology facilities, while perhaps defective, were used for their intended purpose and were substantially complete as found by the Trial Court. The construction statute of repose expired and serves to defeat Plaintiff's claims. We affirm the Trial Court.