APPELLATE COURT OPINIONS

The Defendant, Wesley M. Gifford, Jr., was convicted by a jury of attempted aggravated burglary, telephone harassment, and indecent exposure.  Following a sentencing hearing, the trial court imposed concurrent terms of three years and six months for the attempted aggravated burglary conviction and eleven months and twenty-nine days for the telephone harassment conviction.  This effective sentence was also to run consecutively to his prior sentences.  In this direct appeal, the Defendant contends that: (1) the trial court erred in failing to grant a mistrial when a witness testified that the Defendant previously had been in jail; (2) the trial court erred in allowing admission of evidence of the Defendant’s prior bad act; (3) the trial court erred in not instructing the jury on the issue of alibi; (4) the evidence was insufficient to support his convictions; and (5) cumulative errors entitle him to a new trial.  After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

The father of a nine year old girl filed a petition seeking to legitimate the child, requesting that he be named primary residential parent, and asking that the mother be prevented from moving to Florida with the child. In her answer, the mother asked to be named as the child’s primary residential parent and, having already moved,to be allowed to remain in Florida with the child. After trial, the court ruled that there was no reasonable purpose in the mother’s proposed relocation and that the mother was to return to Tennessee with the child; the court entered a permanent parenting plan which designated the mother as primary residential parent and also ordered the father to pay a portion of the mother’s attorney fees. The mother appeals the court’s disposition of the petition to legitimate; the father appeals the award of fees to the mother. We affirm the decision to award fees to the mother, but vacate the award and remand for a redetermination of the amount; we affirm the court’s judgment in all other respects.

The plaintiff, a state prison inmate, appeals the trial court’s dismissal of his health care liability action against the defendant doctor and his complaint against the warden of the facility where he was treated by the doctor. The trial court granted the defendant doctor’s motion to dismiss based upon the plaintiff’s failure to comply with the requirements of the Tennessee Medical Malpractice Act (“TMMA”). See Tenn. Code Ann. §§ 29-26-115 to -122 (Supp. 2013). The trial court also granted the warden’s motion to dismiss upon finding that the plaintiff’s complaint contained no factual allegations against the warden. Discerning no error, we affirm.

I concur in the results reached in the majority opinion.  Indeed, I join in the majority opinion on all but one issue.  I write separately to address the issue of the trial court’s admission of the prior bad act of the Defendant’s exposing himself to Pamela through the back window of a truck “a few days earlier.”  The majority holds that it was error, albeit harmless, for the trial court to admit this evidence under Rule 404(b) of the Rules of Evidence.  The majority concludes that this evidence was only marginally relevant, and, therefore, the risk of unfair prejudice to the Defendant outweighed the relevance of the evidence.  The majority emphasizes that the Defendant also was on trial for indecent exposure.

This multi-faceted business dispute, which arises in principal part from the real estate collapse of 2008, involves five limited liability companies, eight individuals who are either members or officers of the respective companies, 530 acres of undeveloped real estate, and $7 million of secured notes that were personally guaranteed by six of the individuals. Over the course of two years, SunTrust Bank, the holder of the notes, agreed to extensions of the original maturity date; a final extension was granted until August 7, 2008. A call for capital contributions was approved but it produced insufficient funds to payoff the debt.Thereafter, two of the individuals, one of whom was the president of Rock Creek, and both of whom personally guaranteed a portion of the debt, formed another entity which then acquired the notes from the bank. Rock Creek Development, LLC (“Rock Creek”), which owned the real estate, then agreed to sell a substantial portion of its property to pay off the balance owing on the notes. In an attempt to stop the sale, Rock Ivy Holding, LLC (“Rock Ivy”), one of three members of Rock Creek, filed this derivative action for itself and on behalf of Rock Creek against Rock Creek’s members: RC Properties, LLC; Linked, LLC; two officers of Rock Creek; and several individuals who were members of the defendant companies. The complaint alleged, inter alia, various conflicts of interests by the individual defendants and various breaches of statutory and contractual duties by members and/or officers. Pursuant to an agreed order, the sale proceeded, the net proceeds were held in the registry of the court, and the remaining claims went to trial. After eights days of a bench trial, the defendants moved to dismiss the complaint pursuant to Tenn. R. Civ. P. 41.02 at the close of the plaintiff’s case-in-chief.The trial court granted the motion and dismissed all of the plaintiff’s claims. Thereafter, several defendants filed various motions to recover their respective attorneys’ fees and expenses. Some of the motions were based on Tenn.Code Ann.§ 48-249804, which pertains to derivative actions, and others were based on indemnification provisions in Rock Creek’s Operating Agreement. The trial court granted some of the fee requests and denied others. In this appeal, Rock Ivychallenges the dismissal of its claims and the assessment of attorneys’ fees.Two individual defendants appeal the denial of their claims for attorneys’ fees. The holder of the notes appeals the denial of its claim for “default interest” and penalties. We affirm the trial court in all respects except for the trial court denying the claim for default interest on the notes. We have concluded that the holder of the notes is entitled to recover default interest from the time the notes were declared to be in default. Accordingly, this issue is remanded for further proceedings.

This is the second appeal in an ongoing custody dispute. Mother was initially designated primary residential parent of the child. Later, Father filed a petition alleging Mother was interfering with his parenting time and trying to turn the child against him. Mother then alleged Father was abusing their child, which allegations were determined to be unfounded. During that litigation, Father successfully demonstrated a material change in circumstances and became the primary residential parent; following that award, Mother filed the first appeal and this court affirmed the trial court’s ruling. The present appeal arises from Father’s petition requesting a modification of the parenting plan and to, inter alia, suspend Mother’s parenting time; subsequently,Mother filed her counter-petition requesting, inter alia, change of custody, along with renewed allegations that Father was physically and sexually abusing their child.The trial court dismissed Mother’s counter-petition and granted in part and denied in part Father’s petition. Mother appeals contending the trial court erred in dismissing her counter-petition; she also contends the trial court erred in excluding rebuttal testimony from her expert witnesses. Father appeals contending the award of attorney’s fees and expenses was inadequate; he also contends this appeal is frivolous and that he should be awarded damages. We affirm the trial court in all aspects and, although we do not find Mother’s appeal frivolous, we find Father is entitled to recover, pursuant to Tennessee Code Annotated § 36-5-103(c), his reasonable and necessary attorney’s fees and expenses incurred on appeal because this action involves custody of the parties’ child.

Appellant, Tawana Jones, was convicted by a Shelby County jury of rape and abuse of an adult. See Tenn. Code Ann. §§ 39-13-502(a)(3), 71-6-117. The trial court sentenced appellant to twelve years and two years, respectively, to be served consecutively. On appeal, appellant challenges: (1) the sufficiency of the evidence supporting her rape conviction regarding whether the victim was mentally defective and, if so, whether appellant knew the victim was mentally defective; (2) the sufficiency of the evidence supporting appellant’s abuse of an adult conviction; (3) the trial court’s use of specific enhancement factors during sentencing; and (4) the trial court’s imposition of consecutive sentences. Following our review of the parties’ arguments, the record, and the applicable law, we affirm appellant’s rape conviction and, as the State concedes must be done, reverse and remand appellant’s abuse of an adult conviction for proceedings consistent with this opinion.

The plaintiff filed a health care liability action against the defendant. During the pendency of her action, the General Assembly enacted the pre-suit notice and certificate of good faith requirements of Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff voluntarily dismissed her original action. The plaintiff then filed two successive actions. First, the plaintiff filed a second action that did not comply with the pre-suit notice and certificate of good faith statutes. The plaintiff then filed a third action that complied with Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff moved to consolidate her second and third actions, and the defendant moved to dismiss. The defendant contended that the plaintiff’s second action should be dismissed for failure to comply with the pre-suit notice and certificate of good faith requirements and that her third action should be dismissed based on the doctrine of prior suit pending. The trial court consolidated the lawsuits and denied the defendant’s motions to dismiss. The defendant moved for permission to file an interlocutory appeal, which the trial court denied. We granted the defendant’s application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. During the pendency of the appeal, the plaintiff voluntarily dismissed her second action. As a result of the plaintiff’s voluntary dismissal and our recent holding in Rajvongs v. Wright, ___ S.W.3d ___, 2013 WL 6504425 (Tenn. Dec. 12, 2013), we hold that the plaintiff, who properly provided pre-suit notice of her claim prior to filing her third action, was entitled to a 120-day extension in which to refile her complaint pursuant to Tennessee Code Annotated section 29-26-121(c). The plaintiff’s third complaint was therefore timely filed. We affirm the judgment of the trial court and remand this case for further proceedings.

Plaintiff filed an action against his employer alleging discrimination in violation of the Tennessee Human Rights Act. The trial court awarded summary judgment to Defendant employer on the basis that the action was barred by the contractual limitations period contained in the employment agreement executed by the parties. We affirm.

The Defendant, Teresa Turner, pled guilty to reckless homicide, a Class D felony.  The trial court sentenced the Defendant as a standard offender to three years with six months of the sentence to be served in confinement and the remainder of the sentence on supervised probation.  The Defendant appeals, claiming that the trial court abused its discretion when it: (1) denied judicial diversion; (2) misapplied enhancement factors; and (3) ordered a sentence involving split confinement.  After a thorough review of the record and applicable law, we reverse the judgment of the trial court.

A Maury County jury convicted the Defendant, Brian Marshall Keys, of one count of selling 0.5 grams or more of cocaine within 1,000 feet of a school and two counts of selling less than 0.5 grams of cocaine within 1,000 feet of a school.  The trial court ordered the Defendant to serve an effective sentence of fifteen years.  On appeal, the Defendant asserts that the trial court erred when it denied his constitutional challenge to the Drug-Free School Zone Act and that the evidence is insufficient to support his convictions.  After a thorough review of the record and relevant authorities, we affirm the trial court’s judgments.

This appeal concerns the retroactive application of Ward v. State, 315 S.W.3d 461 (Tenn. 2010), in which this Court held that trial courts have an affirmative duty, before accepting a guilty plea to a crime carrying a mandatory sentence of community supervision for life, to inform the defendant desiring to plead guilty of the consequence of lifetime supervision. In April 2011, a prisoner, who pleaded guilty to two counts of attempted rape in December 2000, filed a petition for post-conviction relief in the Criminal Court for Sumner County alleging that his guilty pleas were not knowingly or intelligently entered because he had not been informed that he would be subject to lifetime community supervision following his release from prison. The trial court decided that the Post-Conviction Procedure Act’s statute of limitations should be tolled on due process grounds and that the prisoner was entitled to post-conviction relief because Ward v. State should be applied retroactively. The Court of Criminal Appeals reversed, finding no grounds for due process tolling and that Ward v. State did not announce a new rule of constitutional law requiring retroactive application. Bush v. State, No. M2011-02133-CCA-R3-PC, 2012 WL 2308280 (Tenn. Crim. App. June 15, 2012). We granted the prisoner’s appeal to clarify the standards governing retroactive application of this Court’s authoritative interpretations of the Tennessee Constitution and to resolve related issues in the interpretation of the Post-Conviction Procedure Act. In accordance with the retroactivity framework for post-conviction proceedings the Tennessee General Assembly codified in Tenn. Code Ann. § 40-30-122 (2012), we have determined that our holding in Ward v. State does not require retroactive application and, therefore, that the prisoner is not entitled to tolling under Tenn. Code Ann. § 40-30-102(b)(1) (2012). We also hold that the prisoner’s case does not warrant due process tolling. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

The appellant, Curtis Allen White, pled guilty in the Marshall County Circuit Court to three counts of aggravated assault, one count of domestic assault, one count of misdemeanor vandalism, and one count of resisting arrest.  Pursuant to the plea agreement, the trial court was to determine the length and manner of service of the sentences.  After a sentencing hearing, the appellant received an effective five-year sentence to be served in confinement.  On appeal, the appellant contends that the trial court abused its discretion by denying his request for alternative sentencing.  Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

D.K., Sr., (“Father”) appeals the termination of his rights to his three minor daughters E.K., H.K., and H.K. (collectively, “the Children”). The Department of Children’s Services (“DCS”) had a history of involvement with Father, the Children, and another older minor child, D.K., Jr.2 In 2007, all four children were taken into protective custody following an incident of domestic violence between Father and his then-wife, C.K. (“Stepmother”). In the earlier matter, custody of the four children was awarded to Stepmother; Father was allowed supervised visitation. In 2012, the Children were placed in the protective custody of DCS following allegations of physical and psychological abuse by Stepmother. Father was not a placement option because of “ongoing Juvenile Court matters” concerning D.K. Jr. as well as a lack of space in his home. Stepmother waived her right to a hearing and the Children were adjudicated dependent and neglected by an agreed order. They entered DCS custody and were placed in foster care.3 A year later, DCS initiated termination proceedings.

The appellant, Edward Fayte Webster, IV, pled guilty in the Marshall County Circuit Court to nine counts of burglary, seven counts of felony vandalism, ten counts of misdemeanor vandalism, and eight counts of misdemeanor theft.  Pursuant to the plea agreement, the trial court was to determine the length and manner of service of the sentences.  After a sentencing hearing, the appellant received an effective four-year sentence to be served in confinement.  On appeal, the appellant contends that the trial court abused its discretion by denying his request for alternative sentencing.  Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

T.R.D. (“Mother”) and S.M.W. (“Father”) appeal the termination of their rights to four minor children, S.J.W., B.H.D., J.E.W., and J.C.D. (“the Children”). The Department of Children’s Services (“DCS”) had been involved with the family since 2006. DCS received multiple referrals regarding environmental neglect and lack of proper care of the Children. DCS made efforts to assist the parents in providing the Children with suitable housing and basic physical and medical care. In August 2010, DCS received another referral alleging environmental, medical, and nutritional neglect. New services were provided without substantial improvement. In October 2010, the Children were removed from the parents’ home and taken into temporary, protective custody. The following month, they were adjudicated dependent and neglected and placed in foster care. A year later, DCS filed a petition to terminate the parents’ rights. Following a bench trial, the court found, by clear and convincing evidence, that multiple grounds for termination exist as to both parents and that termination is in the Children’s best interest. Both Mother and Father appeal. We affirm.

The defendant, Phillip Matthew Burgess, appeals his Marshall County Circuit Court jury convictions of first degree premeditated murder, attempted first degree murder, and aggravated assault, raising a variety of issues for review, each of which is addressed to the trial court’s denial of his post-trial motions to compel and his motion for new trial. Discerning no reversible error, we affirm the judgments of the trial court.

In this divorce action, the trial court awarded Wife an absolute divorce, classified and distributed the marital property, and ordered Husband to make child support payments of $1,112 per month. Husband appealed. We affirm the judgment of the trial court.

The defendant, Jerry Crawford, Jr., appeals his Madison County Circuit Court jury conviction of aggravated robbery, challenging the sufficiency of the evidence and the length of his sentence. In addition, the defendant claims that the prosecutor committed misconduct by impermissibly shifting the burden of proof to the defense during closing argument. Discerning no reversible error, we affirm the conviction. Because the trial court improperly classified the defendant as a career offender, the sentence imposed is vacated, and the case is remanded for resentencing.

Petitioner pleaded guilty to manufacturing less than .5 grams of a controlled substance and received a sentence of seven years. Petitioner filed an unsuccessful petition for post-conviction relief. On appeal, petitioner contends that he received ineffective assistance of counsel prior to his guilty plea hearing and that his guilty plea was not knowing and voluntary. Following our review, we affirm the judgment of the post-conviction court.

The Petitioner, Billy Coffelt, appeals the Davidson County Criminal Court’s denial of post-conviction relief from his convictions for aggravated assault, three counts of misdemeanor theft, four counts of false imprisonment, and felony escape. In his appeal, the Petitioner argues that he received ineffective assistance of counsel based upon allegations that Counsel failed to move for an election of offenses; failed to pursue a claim based on the dismissal of one of the Petitioner’s co-defendant’s charges on appeal; and failed to request a jury instruction on the “natural and probable consequences” rule for criminal responsibility or raise it as a ground for relief on direct appeal.   Upon review, we affirm the judgment of the post-conviction court.

The defendant, Michael Lynn Poston, appeals his White County Criminal Court jury conviction of aggravated sexual battery claiming that (1) the trial court erred by denying his motion for recusal; (2) the trial court erred by denying his motion for change of venue; (3) the trial court erred by failing to swear the victim prior to her testimony; (4) the trial court erred by admitting certain hearsay testimony; (5) the evidence was insufficient to support his conviction; and (6) the sentence was excessive.  Discerning no error, we affirm the judgment of the trial court.

In 2011, the defendant, a priest, was found guilty after a trial by jury of one count of first degree criminal sexual conduct and two counts of aggravated rape. The charges stemmed from conduct that occurred in 1979 and 1980, while the victim attended a school associated with the church. The defendant was sentenced to an overall effective sentence of thirty-five years. On appeal, the defendant claims that the trial court erred by refusing to dismiss his indictment because forcing him to stand trial more than thirty years after the crimes were committed violated his due process rights under the federal and state constitutions. However, reviewing these facts in light of the relevant test governing unconstitutional “preaccusatorial” delay set forth in State v. Gray, 917 S.W.2d 668 (Tenn. 1996), we hold that the thirty-two year delay in the defendant’s prosecution did not violate the constitutional rights of the defendant. The defendant also claims that the trial court committed errors with respect to myriad evidentiary and procedural matters relating to his motion to dismiss. Upon review, we conclude that the defendant has failed to establish entitlement to relief on any of these claims. Finally, the defendant claims that the trial court erred by failing to give special jury instructions concerning the need to corroborate the testimony of the victim of a sex crime, as if the victim were the defendant’s criminal accomplice. However, in State v. Collier, 2013 Tenn. LEXIS 636 (Tenn. Aug. 12, 2013), our supreme court recently overruled all of the cases on which the defendant relies, and no ex post facto concerns prohibit this court from relying on Collier to deny the defendant’s claim. Consequently, the judgments of the trial court are affirmed.

Appellant, George P. Fusco, pleaded guilty to two counts of sexual battery by an authority figure and received a five-year sentence for each count, to be served concurrently.  He served six months in confinement, and the remainder of his sentence was suspended to probation. A violation of probation warrant was subsequently filed, alleging that appellant drove an unregistered vehicle, owed $420 in “GPS fees,” used or possessed an alcoholic beverage, and violated regulations regarding Halloween trick-or-treaters.  The trial court revoked his probation, and this appeal follows.  Appellant now alleges that the trial court denied him procedural due process by failing to make adequate factual findings regarding the evidence supporting his probation revocation, that the trial court abused its discretion when it revoked his probation, and that the relevant Halloween probation conditions are unduly restrictive. Following our review, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

A Shelby County Criminal Court Jury convicted the appellant, Mateem Hudson, of second degree murder, a Class A felony, and the trial court sentenced him to twenty-three years in confinement to be served at 100%. On appeal, the appellant contends that the trial court erred by allowing the State to introduce evidence about his other bad acts and that the evidence is insufficient to support the conviction. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.