APPELLATE COURT OPINIONS

An asphalt paving company brought suit against the developer of a subdivision, and its managing member and guarantor, for breach of contract based on the developer’s failure to pay for services rendered under the contract. The developer answered, asserting multiple affirmative defenses, and counterclaimed, asserting that the company breached the contract, violated the Tennessee Consumer Protection Act, and mispresented that it would perform the work for the price specified in the contract. The trial court held that the developer breached the contract by failing to pay and awarded damages, interest, and attorney’s fees to the paving company. The developer appeals. Upon a thorough review of the record, we affirm the judgment in all respects.  

The plaintiff Kathy Carroll, an employee of the defendant Morgan County Board of Education, was transferred to a position that she alleges she was physically unable to perform. She notes that her transfer occurred after she sent an email to a school board member complaining about school policy and practice regarding cancellation for bad weather. She brought this action stating claims for (1) age and gender discrimination under the Tennessee Human Rights Act; (2) breach of contract; (3) violation of the consitutional right to free speech; and (4) invasion of privacy. The trial court granted summary judgment on the invasion of privacy claims, stating that “all other issues are reserved for trial.” During the bench trial that followed, plaintiff’s counsel stated that plaintiff was not asserting a claim pursuant to a private right of action for violation of her right to free speech. The attorney also stated that the plaintiff was not seeking damages for such a claim. The trial court found in defendant’s favor on all claims. On appeal, plaintiff raises the sole issue of whether the trial court erred in dismissing her claim for violation of her right to free speech. We hold that plaintiff waived and abandoned this issue at trial. Accordingly, the judgment of the trial court is affirmed.

Three years after the juvenile court in Tennessee approved a parenting plan for a child, the child’s father filed a petition to modify custody, alleging a material change in circumstances. The mother, who had filed a modification petition in Alabama, requested that the Tennessee court communicate with the Alabama court to determine which court had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The Tennessee court, after communicating with the Alabama court, determined that Alabama was a more convenient forum, declined to exercise jurisdiction, and dismissed the father’s petition. On appeal, the father argues that the Tennessee court failed to allow the parties access to a record of its communication with the Alabama court or an opportunity to present evidence before making its decision. Because we conclude that the juvenile court abused its discretion in declining to exercise jurisdiction without allowing the parties an opportunity to present evidence, we vacate the court’s decision and remand for further proceedings.  

In an agreed order settling a widow’s claim for exempt property and homestead against her husband’s estate, the parties included language that they were settling “all claims that the Petitioner asserted or might have asserted in the Petition.” When the widow subsequently petitioned for a year’s support and elective share, the trial court held that her claim was barred by res judicata. We affirm the judgment of the trial court. 

A Father appeals the trial court’s decision to name the Mother as Primary Residential Parent of the parties’ two children. Discerning no error, we affirm the decision of the trial court, award the Mother her attorneys’ fee incurred on appeal, and remand the case for a determination of the amount.

Petitioner, James McKinley Cunningham, was convicted of first degree murder after shooting his father.  The conviction was affirmed on direct appeal.  State v. James McKinley Cunningham, No. M1999-01995-CCA-R3-CD, 2000 WL 1520247, at *1 (Tenn. Crim. App. Oct. 13, 2000), perm. app. denied (Tenn. Apr. 23, 2001).  Petitioner initially sought post-conviction relief in 2002 and amended the petition in 2015.  Nearly fourteen years after the original petition was filed, the post-conviction court held a hearing and denied relief.  We affirm the denial of post-conviction relief.

Melanie C. Moore, the Defendant, entered an open plea of guilty to Class C felony theft of property valued at $10,000 or more but less than $60,000 (Count 1), Class D felony, theft of property valued at $1,000 or more but less than $10,000, (Count 2), Class E felony reckless endangerment (Count 3), and Class A misdemeanor escape (Count 4). The trial court sentenced the Defendant to four and one-half years on Count 1, three years on Count 2, two years on Count 3, and three months for Count 4. The trial court ordered Counts 2, 3 and 4 to be served consecutively to Count 1 but concurrently with each other for an effective sentence of seven and one-half years. The trial court ordered Count 1 to be served in the Department of Correction and suspended the other sentences. On appeal, the Defendant argues that the trial court abused its discretion in its sentencing decisions. After a thorough examination of the facts and applicable case law, we affirm the sentences except for the partial consecutive alignment of the misdemeanor escape. We remand for correction of the judgment sheets to provide for consecutive alignment of Count 4 with Counts 2 and 3.

Shortly after entry of an agreed permanent parenting plan, Father filed a petition to find Mother in contempt and to modify the parenting plan. The petition alleged that a material change in circumstance had occurred since the adoption of the agreed plan, such as Mother allegedly interfering with Father’s parenting time. The juvenile court found a material change in circumstance had occurred and modified the parenting plan by increasing Father’s parenting time. From this ruling, Father appealed, claiming that the court erred by not granting him equal parenting time. Because the court’s order modifying the plan contains insufficient findings of fact and conclusions of law, we vacate and remand.

The Defendant, Daniel Stephen Collins, was convicted by a Hawkins County jury of the aggravated sexual battery of his eight-year-old daughter, a Class B felony, and was sentenced by the trial court to nine years at 100% in the Department of Correction. The Defendant raises three issues on appeal: (1) whether the evidence was sufficient to sustain his conviction; (2) whether the trial court erred by not qualifying the victim as a competent witness and by allowing the prosecutor to lead her testimony; and (3) whether the presentment was constitutionally defective because it failed to charge the crime for which he was convicted. Following our review, we affirm the judgment of the trial court.

Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction.

This appeal follows the trial court’s confirmation of an arbitration award. There are four participating parties on appeal, the Appellant and three separate Appellees. With respect to the claims asserted by Appellee Blue Water Bay against the Appellant, we hereby vacate the trial court’s orders and remand for further proceedings because the trial court erred in not allowing the Appellant pre-arbitration discovery regarding issues pertaining to arbitrability. With respect to the claims involving the other two Appellees, we reverse the trial court’s orders due to the absence of a sufficient basis to establish arbitrability.

In this case, the petitioner had a repairman’s lien on personal property and filed an action in federal district court to enforce the lien by original attachment of the lien-subject property. During the pendency of the federal court action, the lien-subject property was sold to a purchaser and was no longer available for attachment, so the lienholder sought to reach the proceeds from the sale of the lien-subject property. The federal court then sought certification under Tennessee Supreme Court Rule 23 of two questions: (1) May a repairman’s lien arising under Tennessee Code Annotated section 66-19-101 (2015) be enforced by a method other than attachment of the lien-subject property itself? and (2) In Tennessee, under what circumstances, if any, may a court attach the proceeds of the sale of lien-subject property, or otherwise reach them with a judgment, where the owner has rendered attachment of the lien-subject property impracticable or impossible after the initiation of a foreclosure proceeding? We answer the first question by interpretation of Tennessee Code Annotated section 66-21-101 (2015), which addresses enforcement of a statutory lien by original attachment where the lien statute does not specify a method to enforce the lien. The lienholder has no statutory lien on the proceeds from the sale of the lien-subject property, and section 66-21-101 addresses only enforcement of a statutory lien. Accordingly, section 66-21-101 is not a statutory vehicle for the lienholder to reach the proceeds from the sale of the lien-subject property. Section 66-21-101 neither provides for nor excludes other remedies that may be available to the lienholder to reach the proceeds from the sale of the lien-subject property. The second question certified by the federal district court in this case is not a defined question of unsettled Tennessee law, but it is more in the nature of an open-ended inquiry regarding other remedies that might enable the lienholder to reach the proceeds from the sale of the lien-subject property. Such an open-ended inquiry is not suitable for certification under Tennessee Supreme Court Rule 23, and there is ample Tennessee case law available to the parties on other possible remedies, so we respectfully decline to address the merits of the second certified question.

A former state employee filed suit claiming that he should have been paid for the state holiday on November 27, 2015, because he worked on October 12, 2015, the day from which the holiday was shifted pursuant to Tenn. Code Ann. § 4-4-105(a)(3). His position was terminated before the November 27, 2015 holiday occurred. The general sessions and circuit courts granted the Department of General Services Commissioner’s motion to dismiss based on sovereign immunity. We reverse.

After being charged by presentment with three counts of the Class A felony, criminal conspiracy to commit first degree murder, as well as one count of criminal conspiracy to possess more than ten pounds of marijuana with the intent to sell or deliver and one count of simple possession of marijuana, Defendant, Raymond Banjard Mims, entered a quite favorable plea agreement. Defendant pled guilty to greatly reduced counts of conspiracy to commit assault, Class B misdemeanors, in addition to conspiracy to possess over ten pounds of marijuana for sale or delivery and simple possession of marijuana in exchange for an effective sentence of two years. He reserved the right to seek an alternative sentence. The trial court denied alternative sentencing. Defendant appeals the denial of an alternative sentence. After a review, we determine that the trial court did not abuse its discretion in ordering Defendant to serve his sentence in confinement. Accordingly, the judgments of the trial court are affirmed.

This is the second time we have considered this child custody case on appeal. The parties have been embattled in post-divorce litigation almost continuously since entry of the final decree of divorce in 2007. In 2012, the parties sought to modify their parenting arrangement, and the trial court allowed a divorce referee to hear the matter. The court then attempted to retroactively appoint the divorce referee as a Special Master and adopted a modified version of the findings and recommendations of the divorce referee/Special Master. Father appealed, and on December 28, 2015, this Court vacated the trial court’s order and remanded the case for further proceedings as needed to adjudicate the parties’ petitions related to custody and parenting. On remand, the trial court held a three day hearing to determine whether to modify the parties’ current permanent parenting plan. The court concluded that the primary residential parent of the parties’ remaining minor child should be changed from Father to Mother. Father appeals. We hold that the trial court erred in refusing to consider all of the applicable best interest factors set forth in Tennessee Code Annotated section 36-6-106, specifically the preference of a child age twelve or older. We, therefore, vacate the order of the trial court and remand for further proceedings consistent with this Opinion. We decline mother’s request for attorney’s fees incurred on appeal.

The defendant, Marcus Thomas, appeals the summary dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence imposed for his 2013 Shelby County Criminal Court
guilty-pleaded convictions of aggravated robbery. Discerning no error, we affirm.

We granted permission to appeal to determine whether the contestants—five of the decedent’s seven children—have standing to bring this will contest. The contestants were expressly disinherited by a will dated October 1, 2013, and admitted to probate and by a prior will, dated October 11, 2012, produced during this litigation. The trial court dismissed this will contest for lack of standing, concluding that two prior decisions of this Court—Cowan v. Walker, 96 S.W. 967 (Tenn. 1906) and Jennings v. Bridgeford, 403 S.W.2d 289 (Tenn. 1966)—required the dismissal. The Court of Appeals affirmed. Although we agree with the courts below that Cowan and Jennings include imprecise language that could be viewed as establishing a broad, bright-line rule that persons disinherited by facially valid successive wills lack standing, we conclude that those decisions are factually distinct and did not announce such a broad rule. We reaffirm the general rule, long recognized in Tennessee, that to establish standing a contestant must show that he or she would be entitled to share in the decedent’s estate if the will were set aside or if no will existed. The contestants here have satisfied this requirement by showing that they would share in the decedent’s estate under the laws of intestacy and under prior wills. Thus, the judgments of the trial court and Court of Appeals dismissing this will contest for lack of standing are reversed, and this matter is remanded to the trial court for further proceedings consistent with this decision. 

The trial court terminated the father’s parental rights. The father timely filed a notice of appeal signed by his attorney but not signed personally by the father. The Court of Appeals filed an order directing the father to show cause why his appeal should not be dismissed for lack of jurisdiction for failure to comply with Tennessee Code Annotated section 36-1-124(d), which states: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” The father’s response to the show cause order included a challenge to the constitutionality of section 36-1-124(d). The Tennessee Attorney General filed a notice of intent to defend the constitutionality of the statute. This Court, upon its own motion, assumed jurisdiction over the case and directed the parties and the Attorney General to address the following issues: (1) whether failure to comply with Tennessee Code Annotated section 36-1-124(d) is a jurisdictional defect; and (2) whether Tennessee Code Annotated section 36-1-124(d) is unconstitutional based on separation of powers, due process, and/or equal protection grounds. We conclude that that the statute does not require a notice of appeal to be signed personally by the appellant. Because the timely notice of appeal signed by the father’s attorney satisfies the signature requirement, we hold that the father’s appeal is not subject to dismissal. This holding renders moot the other issues before us. We remand the case to the Court of Appeals for consideration of the merits of the father’s appeal.  

This appeal arises from a dispute between an insured and its insurance carrier concerning the coverage limits under an “Employee Dishonesty” endorsement to a commercial general liability policy for an employee’s dishonesty that spanned two policy years. After the insured discovered that one of its employees embezzled approximately $100,000 in 2014 and 2015, it filed a claim for $30,000, the aggregate of the policy limits of $15,000 for each policy year. The insurer took the position that the limitation of coverage for such an occurrence was $15,000, paid that amount, and denied the balance of the claim. The trial court held that the policy language was ambiguous and by construing the policies in favor of the insured, determined there were two policies, each of which provided $15,000 of coverage and ruled that Plaintiff was entitled to recover $30,000. The insurer appealed. Finding no ambiguity, we have determined that the 2015 policy was not a separate policy but a renewal of the 2014 policy, that the policy limit for employee dishonesty is $15,000 per occurrence, and that there was one continuous occurrence, as that term is defined in the policy, which spanned two years. We have also determined that the policy prohibits “stacking” of coverage from one policy year to the next. For these reasons, we respectfully reverse the judgment of the trial court and hold that the policy limits for the claim asserted by the insured is $15,000.

The employee in this case worked as a clerk at a convenience store. While at work, the employee orally informed her supervisor that she was quitting and turned to leave the store. On her way out of the store, the employee fell. She later complained of injuries from the fall and sought workers’ compensation benefits. The employer denied the claim on the basis that the employment relationship had already ended by the time the injury occurred. The Court of Workers’ Compensation Claims awarded benefits. The Workers’ Compensation Appeals Board reversed and remanded. The employer then filed a motion for summary judgment, which was granted. The employee appealed to the Supreme Court pursuant to Tennessee Code Annotated section 50-6-239(c)(7) (2014), and the Supreme Court referred the appeal to the Special Workers’ Compensation Appeals Panel pursuant to Tennessee Supreme Court Rule 51. We hold that the appeal is not barred by the law of the case doctrine and that the employee remained employed at the time the alleged injury occurred for a reasonable length of time to effectuate the termination of her employment, so she was still employed for purposes of the workers’ compensation statutes. Accordingly, we reverse and remand for further proceedings.

We granted the defendant’s application for permission to appeal in this case with direction to the parties to particularly address the following issues:  (1) the meaning of the phrase “not engaged in unlawful activity” in the self-defense statute, Tennessee Code Annotated section 39-11-611, and (2) whether the trial court or the jury decides whether the defendant was engaged in unlawful activity.  We hold that the legislature intended the phrase “not engaged in unlawful activity” in the self-defense statute to be a condition of the statutory privilege not to retreat when confronted with unlawful force and that the trial court should make the threshold determination of whether the defendant was engaged in unlawful activity when he used force in an alleged self-defense situation.  We further conclude that the defendant’s conduct in this case constituted unlawful activity for the purposes of this statute.  The defendant has also presented four other issues to this Court, arguing that the trial court erred by failing to properly instruct the jury on the lesser-included offenses of employing a firearm during the commission of a dangerous felony, that the second count of the indictment was deficient, that the trial court should have given the jury an instruction on the defense of necessity, and that the evidence was insufficient to support the defendant’s conviction for assault.  We affirm the judgments of the trial court and the Court of Criminal Appeals, albeit on separate grounds. 

A Shelby County Criminal Court Jury found the Appellant guilty of possession of marijuana, and the trial court imposed a sentence of six years. On appeal, the Appellant challenges the sufficiency of the evidence sustaining his conviction and the trial court’s sentencing him for a Class E felony instead of a Class A misdemeanor as was required by the recent amendment to Tennessee Code Annotated section 39-17-418(e). Upon review, we conclude that the evidence was sufficient to sustain the Appellant’s conviction. We further conclude that the trial court erred by sentencing the Appellant for a Class E felony, and we remand to the trial court for entry of a corrected judgment reflecting that the conviction is a Class A misdemeanor and that the accompanying sentence is eleven months and twenty-nine days.

The Petitioner, Gregory L. Mathis, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his 2010 convictions for aggravated robbery, aggravated burglary, and two counts of especially aggravated kidnapping and his effective 126-year sentence. The Petitioner contends that (1) he received the ineffective assistance of counsel, (2) his especially aggravated kidnapping convictions violate principles of due process, and (3) he is entitled to a new trial based upon codefendant Turner’s testimony at the post-conviction hearing. We affirm the judgment of the post-conviction court.

In this case, the plaintiff Charles Grogan was injured when he fell from a second story deck that had not been properly constructed but had recently been inspected by the defendant Jerry Black, a home inspector hired by homeowner Daniel Uggla. Defendant Black was a franchisee of defendant Pillar to Post, Inc. The trial court granted summary judgment in favor of the defendants, and the Court of Appeals affirmed the trial court. We granted this appeal to consider as a matter of first impression in this state whether a home inspector is subject to liability for the physical harm suffered by a social guest of the home inspector’s client. We conclude that the defendants successfully negated essential elements of the claims of negligent misrepresentation and negligent inspection such that summary judgment was appropriate in this case. Accordingly, the Court of Appeals and the trial court judgments are affirmed.

I write separately in this case because I concur with part of the majority’s analysis and disagree with other parts of it.