APPELLATE COURT OPINIONS

This case involves a contract to purchase a home on the sellers‟ condition that the home be removed from the sellers‟ real property at the buyers‟ expense. The sellers and the buyers entered into a written contract on January 25, 2013, at which time the buyers paid a $2,500 deposit toward an agreed price of $5,000 for the home. The contract did not set forth a deadline for the home to be removed from the sellers‟ property, although the sellers were required to demonstrate to the lender financing their new construction loan that the home had been removed. The buyers contacted several potential house movers to transport the home but did not execute a final written contract with any of them. The sellers subsequently entered into a written agreement with movers who had originally been contacted by the buyers, retaining the movers to “take possession” of the home and transport it but providing the original buyers a first option to purchase. After learning of the agreement between the sellers and the movers, the buyers contacted the movers, “firing” them. The sellers then had the home demolished. The buyers filed a complaint against the sellers, alleging breach of a home sales contract. The sellers filed a counter-complaint, alleging that the buyers had materially breached the contract first by failing to timely remove the home. The buyers subsequently filed a second complaint against the movers, alleging intentional interference with contractual relations. The trial court consolidated the two actions. Following presentation of the buyers‟ proof during a bench trial, the trial court found that the buyers had materially breached the contract. The court granted the sellers‟ and the movers‟ respective motions for involuntary dismissal pursuant to Tennessee Rule of Civil Procedure 41.02. Upon hearing the sellers‟ evidence regarding damages, the court entered a judgment in favor of the sellers in the amount of $5,200, comprised of $7,700 in total damages offset by the $2,500 previously paid by the buyers. The buyers timely appealed. Discerning no reversible error, we affirm.

This is an appeal from the divorce in a 26-year marriage.  The court awarded the divorce to Wife on the ground of inappropriate marital conduct and awarded Wife approximately 62 percent of the marital estate.  The court ordered Husband to pay alimony in futuro and Wife’s attorney’s fees as alimony in solido.  Husband appeals the court’s division of the marital estate, the award of alimony in solido, and the amount of alimony in futuro awarded.  We have determined that the division of the marital estate, under the circumstances presented, was equitable and that the record supports the determination to award alimony in futuro and alimony in solido; we vacate the amount awarded as alimony in futuro and remand the case for further reconsideration of the amount awarded.

The defendant, Ashanti Glass, was sentenced to fifteen years in confinement after a jury found her guilty of aggravated child neglect pursuant to Tenn. Code Ann. § 39-15-402. On appeal, the defendant argues the evidence was insufficient to support her conviction. Following our review, we affirm the judgment of the trial court.

A secured creditor filed suit against a trucking company and two guarantors seeking a deficiency judgment after disposition of the collateral securing payment of the debt.  The trial court granted the secured creditor summary judgment in the amount of the deficiency.  On appeal, the trucking company and the guarantors argue that (1) the delay in repossessing the collateral rendered its disposition commercially unreasonable and (2) the secured creditor failed to present sufficient evidence of the amount of its damages.  We conclude that the requirement of a commercially reasonable disposition found in Tennessee Code Annotated § 47-9-610 only applies once the secured party has actual or constructive possession of the collateral.  The secured creditor’s refusal to repossess the collateral at the trucking company’s request did not amount to actual or constructive possession.  Nonetheless, in light of the challenge to the time aspect of the disposition, the secured creditor failed to meet its burden of production on summary judgment.  Therefore, we reverse the grant of summary judgment.

Petitioner, Justin T. Knox, appeals the trial court's dismissal of his “Motion to Correct Sentence Calculation.” The trial court found both sentences had expired and thus the motion was moot. Upon our review of the record, we affirm the judgment of the trial court.

In this divorce case, Mitchell Hunter Oakes appeals the trial court’s division of the marital estate. Husband’s appellate brief contains no case citations or references to the record. Furthermore, there is no authority cited other than the statute addressing a division of marital property. These multiple deficiencies are clear violations of Tenn. R. App. P. 27(a). In addition, Husband’s brief does not contain a table as required by Court of Appeals Rule 7. As we have held on numerous occassions, deficiencies such as these constitute a waiver of any issues raised by the offending party. Because of these omissions, this appeal had no reasonable chance of success. Accordingly, we agree with his former spouse, Patricia Marie Oakes, that his appeal is frivolous in nature. Therefore, Wife is entitled to recover from Husband her reasonable fees and expenses incurred on appeal. Appeal dismissed.

The Petitioner, Andrew Taylor, appeals the denial of his petition for post-conviction relief in which he challenged his guilty pleas to carjacking and aggravated robbery and his effective sentence of eight years in prison at eighty-five percent. On appeal, the Petitioner contends that he was denied his right to the effective assistance of counsel, which rendered his pleas unknowing and involuntary. We affirm the post-conviction court’s denial of relief.

A Maury County jury convicted the Defendant, Darrell E. Childress, of Driving Under the Influence (“DUI”), fourth offense, and the trial court sentenced him to 150 days of incarceration followed by two years of supervised probation.  On appeal, the Defendant contends that: (1) the trial court erred when it allowed the State to impeach him with his prior conviction for public intoxication; (2) the trial court erred when it allowed the State to ask the arresting officer about the results of a field sobriety task; (3) the evidence is insufficient to sustain his conviction.  After review, we affirm the trial court’s judgment.

Following a jury trial, the Defendant, Mario Jones, was convicted of two counts of rape of a child involving two different victims. He now appeals as of right from those convictions challenging the sufficiency of the evidence, noting that there was no forensic evidence to bolster the victims' narratives and asserting that those narratives lacked credibility. Following our review, we conclude that the evidence was sufficient to support the Defendant's convictions. Therefore, the trial court's judgments are affirmed.

This case involves a residential development on Norris Lake in Campbell County called The Willows at Twin Cove Marina. The Declaration of Covenants, Conditions and Restrictions for the development grants certain rights to the individual/entity described in the document as the “Declarant.” As pertinent to this case, those rights include an exemption from payment of maintenance assessments to the homeowner's association under certain circumstances. The original owner of the development defaulted on construction loans, resulting in a foreclosure sale of certain portions of the development property and the personal property of the original owner. Civis Bank, the successor owner of the property sold at foreclosure, brought this action asking the trial court to declare it to be the “Declarant,” and thereby exempted from assessments levied by the defendant homeowner's association. Both sides moved for summary judgment. The trial court held that Civis did not meet the applicable definition of “Declarant” in the Declaration. We agree. Accordingly, we affirm the court's grant of summary judgment to the homeowners' association.

The defendant, Joshua Johnson, appeals his Sullivan County Criminal Court jury convictions of 34 counts of sexual exploitation of a minor, see T.C.A. § 39-17-1003, claiming that the trial court erred by refusing to suppress the defendant's pretrial statement to the police, that the evidence was insufficient to support his convictions, and that the four-year effective sentence is excessive. Discerning no error, we affirm.

The facts in this case implicate the doctrine of res judicata. In 2012, a real estate development limited liability company and its members filed suit in the Sevier County Circuit Court against their mortgage lender, Branch Banking and Trust Company (the bank). In that action, the developers alleged, inter alia, that the bank was guilty of fraud, breach of contract, and unjust enrichment. That suit involved four separate parcels of real property. While the case in circuit court was pending, the bank sued three individuals in the Sevier County Chancery Court, seeking a declaratory judgment regarding the priority of a security interest in one of the parcels of property at issue in the circuit court case. In the chancery court action, the bank joined the developers as parties. In response, the developers filed a counterclaim in which they repeated allegations included in the circuit court case and asserted other claims derived from the same set of facts. The two cases were later consolidated. In each case, the bank filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim. The court heard both motions at a single hearing. On June 8, 2015, the trial court filed two orders – one in the circuit court suit and one by interchange in the chancery court action – granting the bank's motions. The developers appealed only the circuit court order. Unchallenged, the chancery court order became final. The bank later moved to dismiss this appeal, arguing that the doctrine of res judicata barred further litigation. We deferred a ruling on the bank's motion. We now hold that the motion has merit. Accordingly, we affirm the trial court's judgment dismissing this case. We do so based upon the doctrine of res judicata.

This is a breach of contract action in which the plaintiffs filed suit on behalf of the decedent, who died as a result of suicide in the county jail. The plaintiffs sought damages from the designated emergency medical services provider pursuant to a contract between the provider and the county. The provider filed a motion to stay and compel arbitration pursuant to the terms of the contract. The plaintiffs argued that the arbitration provision in the contract was invalid because it did not contain the required notice advising the parties of the waiver of trial by jury and appeal. The trial court agreed and denied the motion. We reverse and remand for arbitration

This is a termination of parental rights case. The Department of Children’s Services filed a petition to terminate the parental rights of C.L. (Mother)1 to her child, G.L. (the Child). The trial court found clear and convincing evidence of grounds supporting termination due to severe child abuse and abandonment by an incarcerated parent. The court also found, by the same quantum of evidence, that termination is in the best interest of the Child. Mother appeals. We affirm.

I fully concur in the majority’s opinion with the exception of the majority’s determination that “we simply cannot agree with the trial court’s classification of the claim at issue as a consumer claim when Plaintiffs filed suit pursuant to a contract between the County and EMS for the failure to provide services as promised in the service agreement.” I instead believe that the language of the AHLA, as set out in the majority’s opinion and applicable to this issue, is broad enough to cover an alleged failure to provide services as promised in the service agreement. Specifically, I believe the definition in the AHLA, as quoted by the majority, defining a Consumer Case to be “a dispute between a Health Care Entity and a Consumer concerning: (a) the delivery of care or treatment by the Health Care Entity. . .” is broad enough to cover a failure to deliver the required care or treatment.

This appeal arises from the termination of Mother’s parental rights. The minor children at issue were removed from Mother’s custody after the Tennessee Department of Children’s Services (“DCS”) received referrals alleging that Mother was abusing drugs and that one of the children tested positive for opioids at the time of his birth. Thereafter, the juvenile court adjudicated the children dependent and neglected and found that Mother’s drug use while pregnant constituted severe child abuse. The children were subsequently placed in the custody of their father, and Mother was ordered to have no contact with the children. After it was discovered that Mother had violated the order by living with the children and their father, the children were once again placed in state custody. DCS then filed a petition to terminate Mother’s parental rights on the grounds of severe abuse, abandonment by wanton disregard and failure to support, substantial noncompliance with a permanency plan, and persistence of conditions. The juvenile court found that each of these grounds existed and that termination was in the children’s best interests. Mother appealed; we affirm

The Defendant-Appellant, Marty E. Hughes, was convicted by a Hawkins County jury of two counts of aggravated assault. Although he was represented by appointed counsel at trial, Hughes signed a waiver of his right to appointed counsel prior to his sentencing hearing. He was subsequently sentenced as a Range III, persistent offender to concurrent sentences of ten and fifteen years for his convictions. Thereafter, Hughes filed a pro se notice of appeal before filing an untimely pro se motion for new trial. On appeal, Hughes argues: (1) the trial court violated his due process rights and committed plain error when it failed to expand the jury instruction on self-defense to include the rights of a person in a dwelling; (2) the evidence is insufficient to sustain his convictions for aggravated assault; (3) the trial court imposed an excessive sentence; and (4) his due process rights were violated when he proceeded to the sentencing hearing as a pro se defendant who was unaware and improperly advised of his right to file a motion for new trial. Because the record shows that Hughes did not knowingly, voluntarily, and intelligently waive his right to counsel prior to his sentencing hearing, we vacate the judgments of the trial court and remand the case for appointment of new counsel and a new sentencing hearing.

In this divorce action, the wife appeals, contending the trial court erred in calculating her child support obligation by failing to impute income to the husband and by not deviating downward from the child support guidelines for the private school tuition and expenses she pays. The wife also contends the trial court erred in awarding the husband alimony in futuro in the amount of $2,400, and ordering her to pay $10,000 of the husband’s attorney’s fees. The wife further contends the trial judge made statements during opening arguments regarding the issue of alimony that indicated bias. As for child support, the wife is correct in stating that the trial court did not consider a deviation in child support for extraordinary educational expenses; however, the wife did not request a deviation and the parties agreed that the wife is not required to pay for private school tuition after the divorce. Accordingly, we find no error with the trial court not considering a deviation based on the possibility that the wife may or may not incur extraordinary educational expenses in the future. As for the amount of alimony to be paid, the trial court’s findings of fact concerning the wife’s ability to pay and the husband’s need for alimony fail to satisfy the mandatory requirements of Tenn. R. Civ. P. 52.01. Therefore, we vacate the award of alimony in the amount of $2,400 per month and remand for the trial court to make findings of fact and state separately its conclusions of law concerning the wife’s ability to pay and the husband’s need for alimony, and direct the entry of a judgment setting the appropriate amount of alimony in futuro. We affirm the trial court in all other respects.

The plaintiff’s husband collapsed and died after participating in a cycling class at a fitness and recreation facility owned and operated by the church. Although the cycling class instructor and others present at the fitness facility attended the plaintiff’s husband and called 911 soon after his collapse, they did not utilize the automated external defibrillator (“AED”) on site at the facility. The plaintiff filed a wrongful death action against the church, alleging, among other things, that the church had negligently failed to utilize the onsite AED, to train facility personnel on the proper use of the AED, and to comply with applicable state statutes. The church denied negligence and subsequently filed a third-party complaint against the company that sold it the AED, asserting that the seller had contractually agreed to provide a physician oversight program, which, among other things, included oversight of the church’s compliance with federal, state, and local regulations. The church alleged that, should the plaintiff recover a judgment against it for failing to comply with statutes, the seller should be solely responsible for the judgment. The plaintiff then filed a second amended complaint naming the seller as a defendant and alleging, as relevant to this interlocutory appeal, that: (1) the seller had negligently breached a duty it owed to her husband and others using the fitness facility to properly maintain the AEDs, to ensure that they were accessible, and to ensure that the church’s employees had the knowledge, training, and ability to operate the AEDs; (2) the seller had breached its contract with the church; (3) her husband was a third-party beneficiary of the contract; and (4) the seller’s negligence and breaches of contract caused her husband’s death, entitling her to recover against the seller on her wrongful death and loss of consortium claims.

 The seller moved for summary judgment against the plaintiff and the church, arguing that: (1) it owed no duty of care to the plaintiff or her husband; (2) the church had no common law or statutory duty to acquire or use an AED; (3) neither the plaintiff nor her husband were third-party beneficiaries of the seller’s contract with the church; (4) the undisputed facts established that the seller had not breached its contract with the church; and (5) the undisputed facts failed to establish that any of the alleged breaches of contract caused the plaintiff’s husband’s death. The trial court denied the seller’s motion for summary judgment, concluding that disputes of material fact remained, but it granted the seller permission to seek an interlocutory appeal. The Court of Appeals denied the seller’s application for an interlocutory appeal, but this Court granted the seller permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure. We conclude that the seller did not owe a duty of care to the plaintiff’s husband or other users of the fitness facility independent of its contract with the church and that the church had no statutory or common law duty to acquire or use the AED it purchased from the seller, and as a result, the plaintiff’s husband was not a third-party beneficiary of the church’s contract with the seller. For these reasons, the seller is entitled to summary judgment on the plaintiff’s second amended complaint and the church’s third-party complaint. Accordingly, we reverse the judgment of the trial court and remand for entry of summary judgment in favor of the seller on all claims and for any other necessary and appropriate proceedings consistent with this decision.

An inmate was relocated from one cell to another in 2012 as part of a large-scale inmate reassignment, and two knives were found in the door to the inmate’s cell in 2015. The inmate was charged with the possession of a deadly weapon and was found guilty by the disciplinary board following a hearing. The inmate claimed he did not know anything about the knives and that he did not believe the cell was searched prior to his reassignment, as the prison policies require. The inmate exhausted his administrative appeals before filing a petition for writ of certiorari. In an effort to prove his cell was not searched prior to his reassignment and that the evidence did not support his conviction, the inmate sought permission to discover documents from the State, which the trial court denied. The trial court granted the writ of certiorari but denied the inmate any relief. The inmate raises several issues on appeal. We affirm the trial court’s judgment in all respects.

Travis Dewayne Melton (“the Defendant”) appeals his Overton County convictions for reckless homicide and assault, for which the Defendant received an effective sentence of four years’ incarceration.  The Defendant contends that: (1) the trial court erred by instructing the jury on lesser included offenses when the Defendant requested that the trial court not charge any lesser included offenses; (2) his dual convictions for assault and reckless homicide violated double jeopardy principles; and (3) the evidence was insufficient to support his convictions.  After a thorough review, we affirm the judgments of the trial court.

This appeal involves the termination of a father’s parental rights to his daughter. The trial court terminated the father’s parental rights upon finding by clear and convincing evidence that several grounds for termination were proven and that termination was in the best interest of the child. We conclude that the record contains insufficient evidence to support the trial court’s findings as to grounds for termination. We accordingly reverse and remand for further proceedings.

Following a jury trial, Defendant, Kathy Bell Noble, was convicted of driving on a suspended license, violation of the vehicle registration law, and failure to obey a traffic control device.  The trial court imposed a sentence of six months and the jury’s fine of $500 for driving on a suspended license and concurrent sentences of thirty days each for violation of the vehicle registration law and failure to obey a traffic control device.  Defendant was ordered to serve forty-eight hours for driving on a suspended license with the remainder of the sentence subject to supervised probation.  The thirty-day sentences for violation of the vehicle registration law and failure to obey a traffic control device were suspended.  On appeal, Defendant argues that the evidence was insufficient to support her convictions.  After a thorough review, we affirm the judgments of the trial court.