APPELLATE COURT OPINIONS

This appeal requires us to consider the defense of res judicata in the context of two separate lawsuits filed by parties who were in a car accident.  Following the car accident, the first lawsuit was filed and settled by agreement of the parties.  An agreed judgment was entered dismissing the first lawsuit.  Subsequently, the defendant from the initial lawsuit and her husband filed suit against the former plaintiff, alleging various causes of action sounding in tort.  The trial court dismissed the second case, finding that all of the claims were barred by res judicata.  The defendant in the initial suit and her husband—the plaintiffs in the second suit—appealed the dismissal of their lawsuit.  We find that the tort claims alleged in the second suit were not compulsory counterclaims under Tenn. R. Civ. P. 13.01, and were not claims that would nullify the initial action or impair rights established in the initial action; therefore, we hold that the doctrine of res judicata does not bar those claims.  The judgment of the trial court dismissing the case is reversed, and the case is remanded for further proceedings.

This case pertains to the purchase of real property in a residential subdivision. The dispute arises from the fact that, at the time of sale, the lot was incorrectly listed as not being in a flood plain. Upon learning of the flood plain issue, the seller filled and graded the lot and abutting property, after which the regulatory authorities removed the lot from the flood plain zone. Despite the fact the lot was removed from the flood plain, the buyers commenced this action against the seller and its engineering firm, asserting claims for negligent misrepresentation, breach of contract, and violation of the Tennessee Consumer Protection Act (“TCPA”). Following discovery, the defendants filed separate motions for summary judgment, and the motions were set for hearing on the same day. When the buyers did not file a response in opposition to either of the motions and did not appear at the summary judgment hearing, the seller voluntarily continued the hearing on its motion. The engineering defendants, however, proceeded with the hearing, and the trial court granted summary judgment in their favor. The buyers, claiming they did not receive proper notice of the hearing, filed a Tennessee Rule of Civil Procedure 59 motion to set aside the order granting summary judgment to the engineering defendants. Following a hearing on the remaining motions, the trial court denied the buyers’ Rule 59 motion on the finding the buyers had constructive notice of the hearing. The court also granted summary judgment in favor of the seller on the claims of breach of contract and the TCPA. The trial court determined that the contract permitted the defendants to “grade” the land and rectify the flood plain issue even after closing. As such, the trial court found that the buyers did not have a claim for breach of contract. As to the claim that the seller violated the TCPA, the trial court explained that the TCPA requires some degree of fault, which was not present. Having determined that the buyers had constructive notice of the hearing on the engineering defendants’ motion for summary judgment, we conclude that the trial court did not abuse its discretion in denying the buyers’ Rule 59.04 motion. We also affirm the trial court’s decision to grant summary judgment in favor of the seller concerning the claims for breach of contract and TCPA. Thus, we affirm the trial court in all respects. 

Petitioner, Michael Lewis Freeman, appeals the denial of his post-conviction petition. Specifically, Petitioner alleges that trial counsel was ineffective for failing to advise him to testify at trial in support of his claim of self-defense. Following our review of the entire record and the briefs of the parties, we affirm the judgment of the post-conviction court.

For a 2005 shooting, a Davidson County jury convicted the Petitioner, Thomas Edward Clardy, of one count of first degree premeditated murder, two counts of attempted first degree premeditated murder, and three counts of reckless endangerment. The trial court imposed a life sentence. On December 8, 2020, the Petitioner filed a petition for a writ of error coram nobis, alleging newly discovered evidence in the form of an affidavit showing that he did not participate in the crime. The Petitioner acknowledged that he did not file the petition within the applicable statute of limitations but said he was entitled to an equitable tolling. The State agreed, and it asked the trial court for an equitable tolling and to hear the case on its merits. The coram nobis court, noting that it was not bound by the State’s concession, dismissed the petition as untimely. After review, we conclude that the coram nobis court erred and that the Petitioner is entitled to an equitable tolling of the statute of limitations. As such, we reverse and remand to the coram nobis court for a hearing on the Petitioner’s error coram nobis claims.

This dispute involves a lender bank’s deed of trust for a leasehold interest related to real property on Lookout Mountain, Tennessee. After the trial court found, inter alia, that the deed of trust was no longer in effect and the bank’s interest in it ceased when the lease terminated, the lender appealed. The contractual issues before us are between the lender bank and the borrower’s landlord. We affirm the ruling of the trial court.

The trial court granted Appellees’ motion to dismiss. Appellants appealed. Due to the deficiencies in Appellants’ brief, we do not reach the substantive issue and dismiss the appeal.

Defendant, Kadrean J. Brewster, pled guilty to possession with the intent to sell more than 0.5 grams of cocaine. He was sentenced to eight-years split between one year in confinement and the remainder of the sentence on probation. Following revocation hearings, Defendant’s probation was revoked and Defendant was ordered to serve the balance of his sentence in confinement. On appeal, Defendant contends the trial court abused its discretion in revoking his probation and ordering him to serve the sentence in confinement. Following our review of the entire record and the briefs of the parties, we affirm the judgment of the trial court.

In this termination of parental rights case, Appellants, the children’s biological mother and father, appeal the trial court’s termination of their respective parental rights to the two children on the grounds of: (1) abandonment by an incarcerated parent by wanton disregard, Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv); and (2) failure to manifest an ability and willingness to assume custody, Tenn. Code Ann. § 36-1-113(g)(14). Mother appeals the termination of her parental rights on the additional ground of persistence of the conditions that led to the children’s removal, Tenn. Code Ann. § 36-1-113(g)(3)(A). Appellants also appeal the trial court’s determination that termination of their respective parental rights is in the children’s best interest. Discerning no error, we affirm.

While this litigation started out as a contract dispute between an attorney and her former client, during the course of the trial court proceedings, multiple other claims and issues were raised by the client and adjudicated.  Following a jury trial on the attorney’s contract claim, the jury found that there was a valid contract between the parties and that the former client breached the contract. Accordingly, the jury awarded damages to the attorney as a result of the breach. Additionally, the trial court awarded damages against the client for violating Rule 11 of the Tennessee Rules of Civil Procedure. The former client now appeals raising various issues connected to the case, including a challenge to the sanctions awarded and a challenge to the dismissal of a Tennessee Consumer Protection Act claim he asserted.  We affirm for the reasons stated herein and also award damages for a frivolous appeal.

This appeal involves a real property dispute.  Resolution of the competing interests ultimately turns on the propriety of certain adverse possession claims that have been asserted.  Following a bench trial, the trial court determined that there was no adverse possession established due to its finding that Mr. Whiteaker, a former record owner of the property, had “acquiesced in, and permitted” the possession of Mr. Eads, an original plaintiff in this action who is now deceased.  Judgment was accordingly entered in favor of the Appellee herein, an entity that purchased the property at a sheriff’s sale.  The Appellants, who assert rights to the property by dint of Mr. Eads’ alleged adverse possession, submit that there is no evidence to support the trial court’s view that Mr. Eads’ possession was subservient to Mr. Whiteaker.  For its part, the Appellee maintains that several considerations countenance against the assertion of adverse possession rights.  Having considered the various issues and arguments raised by the parties, we hold that the judgment of the trial court should be reversed, as we conclude that Mr. Eads previously acquired title to the property by common law adverse possession.

This is the second appeal involving the termination of a mother’s parental rights to her child.  On remand after the first appeal, the trial court determined there were six statutory grounds for terminating the mother’s parental rights and that termination was in the child’s best interest.  We conclude that the evidence was less than clear and convincing as to three of the grounds.  But the record contains clear and convincing evidence to support the other grounds.  The evidence is also clear and convincing that termination of the mother’s parental rights is in the child’s best interest.  So we affirm.

Defendant, Denzel Washington, was convicted following a jury trial of possession of heroin with intent to sell or deliver within 1,000 feet of a childcare agency (Count 1), possession of fentanyl with intent to sell or deliver within 1,000 feet of a childcare agency (Count 2), possession of marijuana (Count 3) and delivery of heroin within 1,000 feet of a childcare agency (Count 4). The trial court ordered Defendant to serve an effective nineyear sentence. On appeal, Defendant argues that the evidence was insufficient to support his convictions and that his convictions in Counts 1 and 2 should have merged. Following our review of the entire record and the parties’ briefs, we affirm the judgments of the trial court.

The mother of nine minor children appeals the termination of her parental rights. Two petitions for termination of parental rights are at issue in this appeal. The first was filed by the Tennessee Department of Children’s Services (“DCS”) to terminate the mother’s parental rights to seven of her children who were in DCS custody. A second petition, filed by maternal cousins, sought to terminate her parental rights to two of her children who were in the cousins’ custody. Following a trial on both petitions, the juvenile court found that grounds for termination had been established and that termination of the mother’s parental rights was in the children’s best interests. On appeal, the mother contends that no grounds for termination were proven and that termination of her parental rights is not in the children’s best interests. We affirm the trial court in all respects.

The defendant, Dana Baker, challenges his Madison County Circuit Court convictions of one count of assault, see T.C.A. § 39-13-101(a)(1), and one count of obstructing or preventing the service of process, see id. § 39-16-602(c), on grounds that an alleged Fourth Amendment violation prohibited his convictions and that the evidence was insufficient to support his convictions. Because the evidence was insufficient to support either of the defendant’s convictions, the convictions are reversed, and the charges are dismissed.

Following a trial, an Anderson County jury convicted Defendant, Wallace Wade Tidwell, of aggravated robbery, and Defendant was sentenced, as a career offender, to thirty years’ incarceration. On appeal, Defendant contends that the trial court erred in sentencing him as a career offender because the State failed to file a proper notice under Tennessee Code Annotated section 40-35-202(a). Defendant further contends that the trial court committed per se reversible error by instructing jurors that they could not question witnesses. Following a thorough review, we affirm the judgment of the trial court.

I agree with the majority opinion that any alleged Fourth Amendment violation does not bar Defendant’s conviction. I respectfully disagree that the evidence did not show that Defendant intentionally prevented or obstructed the service of the criminal summons and recklessly assaulted officer Kelly Mason.

The father of a child appeals the trial court’s finding that the child was dependent and neglected and the victim of severe abuse. Discerning no error, we affirm. 

The Cocke County Grand Jury indicted Defendant, Toby Dunn, for attempted first degree murder in count one, aggravated assault in count two, employment of a firearm during the commission of a dangerous felony in count three, and possession of a firearm during the commission of a dangerous felony in count four. A jury found Defendant guilty in count one of the lesser-included offense of attempted second degree murder and guilty as charged in all other counts. At sentencing, the trial court merged counts one and two and merged counts three and four. The court sentenced Defendant to twelve years’ incarceration with a thirty percent release eligibility in count one and to a consecutive six years’ incarceration with a 100 percent release eligibility in count three. On appeal, Defendant argues that the trial court erred by limiting cross-examination of the victim, by excluding a video of the victim, and by admitting Defendant’s prior bad act. He also argues that the State failed to establish the chain of custody for the firearm, that the evidence was insufficient to support his convictions, and that his sentence was excessive. After a thorough review, we affirm the judgments of the trial court.

Appellant appeals the trial court’s grant of summary judgment in Appellee’s favor on a breach of contract claim. Because Appellant’s brief is not compliant with Rule 27 of the Tennessee Rules of Appellate Procedure, we dismiss this appeal.

The Defendant, Jerry Louis Fitzgerald, Jr., was convicted at trial of sexual battery and possession of 0.5 grams or more of cocaine with the intent to sell or deliver, and he received an effective sentence of fourteen years in confinement. On appeal, the Defendant argues that the evidence was insufficient to convict him of sexual battery and that although he possessed the cocaine, the evidence was insufficient to support a finding that he intended to sell or deliver it. After review, we affirm the trial court’s judgments.

The Defendant, Patricia Kaye Wilkey, appeals her conviction of first degree premeditated murder, for which she received a sentence of life imprisonment. On appeal, the Defendant asserts that (1) the evidence is insufficient to support her conviction; (2) the trial court improperly limited defense counsel’s cross-examination of the State’s witnesses; (3) the trial court erred in admitting hearsay statements; (4) the State made improper comments during closing arguments; and (5) the trial court imposed an excessive sentence. Upon reviewing the record, the parties’ briefs and oral arguments, and the applicable law, we affirm the judgment of the trial court.

The Defendant, Robert Daniel Owens, Jr., pleaded guilty to one count each of aggravated burglary, domestic assault, assault, and aggravated stalking, and he received an effective sentence of four years on supervised probation after service of eleven months, twenty-nine days in confinement, followed by a consecutive sentence of two years on unsupervised probation. A revocation warrant was issued, and following a hearing, the trial court found that the Defendant violated the conditions of his probation, revoked his probation, and ordered him to serve his sentences in confinement. On appeal, the Defendant contends that the trial court abused its discretion by ordering him to serve his sentences in confinement. Following our review, we affirm the judgment of the trial court.

Appellant appeals the trial court’s order affirming the award of an arbitrator.  Appellant filed suit against its former employee, the Appellee, alleging breach of contract for violation of certain provisions of the employee handbook, which also contained an arbitration clause.  Because the handbook does not constitute an enforceable employment contract, the trial court erred in ordering the parties to arbitrate and in affirming the arbitrator’s award.  Reversed and remanded.