APPELLATE COURT OPINIONS

The Petitioner, Kevin Lee Johnson, entered a guilty plea on April 17, 2013, for failure to appear, a Class E felony. The Petitioner filed a post-conviction petition challenging his conviction for failure to appear and also challenging a 2012 conviction for operating a vehicle after having been declared a motor vehicle habitual offender (“MVHO”). The post-conviction court dismissed both claims. On appeal, this court affirmed the dismissal of the part of the petition related to the 2012 conviction but reversed and remanded for a hearing on the part of the petition related to the conviction for failure to appear. See Kevin Lee Johnson v. State (Kevin Lee Johnson I), No. M2014-01166-CCA-R3-PC, 2015 WL 2445817, at *3 (Tenn. Crim. App. May 22, 2015) no perm. app. filed. The post-conviction court held an evidentiary hearing on the allegation that the Petitioner received the ineffective assistance of counsel during his guilty plea to the charge of failure to appear, and the post-conviction court denied the petition, finding neither deficiency nor prejudice. Discerning no error, we affirm the denial of the petition.

This case involves alleged trespass via placement of a dock over lakefront real property that is beneath the lake’s fluctuating water line several months of the year. Prior to congressional approval of construction for Douglas Dam in 1942, the property at issue was part of a 488-acre farm owned by the plaintiff’s mother. In 1942, the Tennessee Valley Authority (“TVA”) acquired a flowage easement with the right to flood up to contour line 1007 adjacent to what is now Douglas Lake. TVA subsequently paid $35,628.50 to the plaintiff’s mother to condemn the respective easement rights. In 1944, a third party purchased approximately 245 acres above contour line 1002, creating a subdivision in the 1950s with tracts of land adjacent to the lake. In 2006, the plaintiff learned that she had inherited from her mother title to real property below contour line 1002, located between “lakefront” tracts of land and the lake itself. Upon receipt of a November 2006 letter sent by the plaintiff’s counsel to affected landowners, notifying them of the plaintiff’s claim to the land upon or above which their docks were located, many of the landowners purportedly purchased title to the affected land from the plaintiff. However, the defendant landowner did not respond to the letter. On October 3, 2012, the plaintiff filed a complaint, alleging that the defendant was trespassing by virtue of a dock placed on property to which the plaintiff held title. The defendant had placed her dock immediately following the purchase of her tract in November 1992. The trial court subsequently consolidated this action with two similar lawsuits filed by the plaintiff against other landowners. Following a bench trial, the trial court dismissed the complaint against this defendant upon finding that the defendant had established adverse possession of the property on which the defendant’s dock sits when water levels are down and that the defendant’s possession was continuous even when the dock was floating. The plaintiff timely appealed. Although we determine that the trial court erred in concluding that the defendant had established adverse possession for the twenty-year period required by common law, we further determine this error to be harmless because the defendant successfully established the seven-year period required for the statutory affirmative defense provided by Tennessee Code Annotated § 28-2-103. Discerning no reversible error, we affirm.

The Defendant, DeMarkus Montreal Taylor, appeals as of right from his conviction of first degree murder in the perpetration of or attempt to perpetrate aggravated child abuse, two counts aggravated child abuse, and one count of filing a false report.  SeeTenn. Code Ann.  §§ 39-13-202(a)(2); -15-402; -16-502.  On appeal, the Defendant contends (1) that the evidence was insufficient to sustain his conviction, arguing that the evidence presented to the jury was predominately circumstantial and that there was no direct proof that the Defendant committed the offenses for which he was charged; (2) that the trial court abused its discretion when it admitted autopsy photographs of the victim, specifically photographs of the victim’s brain and eyes; (3) that the trial court erred when it denied the Defendant’s motion for a new trial after counsel for the co-defendant attempted to introduce testimony regarding the Defendant’s prior drug sales; and (4) that the trial court erred in admitting the victim’s autopsy report, which contained un-redacted information regarding prior physical abuse.  Following our review, we affirm the Defendant’s convictions for first degree felony murder, aggravated child abuse, and false reporting.

Judicial review of a decision of the Tennessee Board of Appeals upholding the termination of a trooper with the Tennessee Highway Patrol for his conduct during a traffic pursuit. The trial court upheld the trooper’s termination. On appeal, the trooper asserts that the administrative judge who heard the case erred in disregarding expert testimony and, as a consequence, the Board’s decision is unsupported by substantial and material evidence. Discerning no error, we affirm the judgment of the trial court.

Decedent had a life insurance policy in which she named her husband and sister as beneficiaries. Upon her death, Decedent’s husband filed suit to recover the proceeds Decedent left to her sister and place them in trust for the benefit of Decedent’s son, who was a minor at the time. The trial court concluded the son was entitled to the proceeds based on the theory of promissory estoppel. The sister appealed, and we reverse the trial court’s judgment. An insurance policy is a contract between the insured and the insurance company, and Decedent was entitled to designate whoever she desired as a beneficiary of her policy. Evidence of Decedent’s intent with respect to the proceeds does not deprive the named beneficiary of her right to the funds.

Three corporations approached a lender seeking to refinance an existing loan secured by a deed of trust on certain commercial properties. The parties entered an agreement specifying that the lender’s security interest would be a “first lien deed of trust” and requiring the borrowers to pay a nonrefundable “commitment fee.” The borrowers executed the agreement and paid the commitment fee, but the loan did not close due to the discovery of a prior lien on one of the properties. The borrowers filed suit against the lender for damages arising out of the lender’s refusal to lend or to refund the commitment fee. The trial court granted the lender’s motion for summary judgment but denied the lender’s request for attorneys’ fees. Discerning no error, we affirm.

The defendant, Chrystal Tollison, appeals her White County Criminal Court guilty-pleaded conviction of child neglect, claiming that the trial court erred by denying her bid for judicial diversion.  Discerning no error, we affirm.

This appeal stems from a divorce proceeding in which Wife was awarded alimony in futuro. For the reasons stated herein, we vacate the trial court’s award of alimony and remand for further proceedings.

The Petitioner, Rachel L. Calhoun, appeals the denial of her petition for post-conviction relief in which she challenged her guilty pleas to two counts of first degree murder, one count of especially aggravated robbery, one count of identity theft, and one count of fraudulent use of a credit card and her effective life sentence. On appeal, the Petitioner contends that she was denied her right to the effective assistance of counsel, arguing that trial counsel should have independently tested palm print evidence used against her. She also argues that her pleas were unknowing and involuntary. We affirm the post-conviction court’s denial of relief.

The pro se appellant, Rickie Reed, appeals as of right from the Shelby County Criminal Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The defendant contends his motion stated a colorable claim for relief, so the trial court erred in summarily denying it. Discerning no error, we affirm the judgment of the trial court.

The grandparents of three minor children brought this action to terminate the parental rights of the children’s mother. Following a trial, the court found clear and convincing evidence of grounds to terminate mother’s parental rights pursuant to Tenn. Code Ann. §§ 36-1-113(g)(8)(B)(i), (ii) and -(9)(A)(iv), (v) (2015). By the same quantum of proof, the trial court also found that termination is in the children’s best interest. Mother appeals. We hold that Tenn. Code Ann. § 36-1-113(g)(9)(A) is not applicable to this case. Accordingly, we vacate the trial court’s holding with respect to that ground. As for the remaining grounds, we hold that the trial court’s final order failed to include the requisite findings of fact and conclusions of law required under Tenn. Code Ann. § 36-1-113(k). As a result, we vacate the final order of termination and remand to the trial court with instructions.  

The defendant, Darnell Keith Roberts, pled guilty to aggravated robbery. The trial court subsequently sentenced the defendant, a Range II, multiple offender, to fifteen years of imprisonment. On appeal, the defendant contends the trial court imposed an excessive sentence. Discerning no error, we affirm the judgment of the trial court.

This case originated when the plaintiff filed an action against the defendant process server, alleging that the defendant failed to accomplish service within the specified time period. The plaintiff’s action was dismissed by the trial court due to the plaintiff’s failure to present sufficient evidence to prove her case at trial. The plaintiff timely appealed. Because the plaintiff has failed to comply with Tennessee Rule of Appellate Procedure 27 and Tennessee Court of Appeals Rule 6, we dismiss this appeal.

The defendant, Jesse James Somerville, IV, appeals the order of the trial court revoking his probation and imposing his original sentence of eight years in confinement. Upon review of the record, we conclude the trial court did not abuse its discretion in finding that the defendant violated the terms of his probation. Accordingly, the judgment of the trial court is affirmed.

The Petitioner, Billy Richard Hicks, appeals the post-conviction court’s denial of his petition for post-conviction relief in which he challenged his convictions for driving under the influence (“DUI”), tenth offense; violation of the motor vehicle habitual offender (“MVHO”) statute; driving on a revoked license, second or subsequent conviction; and criminal impersonation. On appeal, the Petitioner contends that trial counsel was ineffective in failing to show the video of the Petitioner’s performance on the field sobriety tests to the Petitioner prior to trial. We affirm the judgment of the post-conviction court.

Appellant, an inmate in the custody of the Tennessee Department of Correction, appeals the trial court’s dismissal of his petition for a writ of certiorari. Inmate alleges that the Disciplinary Board violated several policies in finding him guilty of the charge of drug possession. The trial court granted the writ of certiorari and, upon review of the record, granted TDOC’s motion to dismiss. Inmate appeals. Discerning no error, we affirm.

In this personal injury and contract reformation case, the plaintiff filed a complaint, seeking damages resulting from a motor vehicle collision and reformation of a release of all claims signed by the plaintiff. As grounds for reformation, the plaintiff claimed that an agent of the defendant company fraudulently induced the plaintiff to sign the release. The defendant filed a motion for summary judgment, asserting that the plaintiff could not establish an essential element of his action because the plaintiff did not act promptly in seeking reformation of the release. The trial court granted summary judgment in favor of the defendant upon finding, as a matter of law, that the plaintiff’s action was not prompt after discovery of the alleged fraud and that the plaintiff therefore was not entitled to reformation of the release. The plaintiff timely appealed. Having determined that the question of whether the plaintiff’s actions were sufficiently prompt in seeking the equitable relief of reformation presents a genuine issue of material fact, we reverse the trial court’s grant of summary judgment in favor of the defendant.

This appeal involves a father’s petition to modify an order granting custody of his minor child to the maternal grandparents. The father alternatively requested an order granting him specific visitation. The juvenile court dismissed the petition on the grandparents’ motion. After our review of the petition, we conclude the juvenile court appropriately dismissed father’s request for a change of custody based solely upon the presumption of superior parental rights. But the court erred in dismissing the father’s request for visitation. Accordingly, we affirm in part and reverse in part.

The petitioner, Gloria House, appeals the summary dismissal of her motion to reopen her petition for post-conviction relief or, in the alternative, petition for writ of error coram nobis, which pleading challenged her 1993 convictions of nine counts of aggravated burglary, three counts of felony theft, and seven counts of misdemeanor theft. Discerning no error, we affirm the summary dismissal of the petition.

Following a jury trial, the Defendant, Gerald Lamont Byars, was convicted of attempted possession of 0.5 grams or more of cocaine with intent to sell, attempted possession of 0.5 grams or more of cocaine with intent to deliver, simple possession of marijuana, and possession of drug paraphernalia. The jury also found that the two attempted cocaine possession offenses constituted criminal gang offenses, and the Defendant received enhanced punishment—a sixteen-year sentence, with the attempted cocaine possession counts and the gang enhancement counts all being merged into a single conviction. He now appeals as of right, arguing (1) that the evidence was insufficient to support his attempted cocaine possession convictions and the gang enhancement violations; (2) that the trial court erred by qualifying a Haywood County Sheriff's Officer as an expert in gang activity; (3) that the gang enhancement statute, Tennessee Code Annotated section 40-35-121, is unconstitutional, entitling him to plain error relief; and (4) that his sixteen-year sentence is excessive. Following our review of the record, we ascertain no error in the guilt phase of the trial on the underlying attempted cocaine possession offenses in Counts 1 and 2. However, because the criminal gang enhancement statute as employed by the State in the guilt phase of the trial on Counts 5 and 6 violates the Due Process Clause of the Fourteenth Amendment and is facially unconstitutional, plain error requires us to reverse the judgments of the trial court in Counts 1, 2, 5, and 6, vacate and dismiss the criminal gang enhancements in Counts 5 and 6, and remand for modification of the judgments in Counts 1 and 2 and a new sentencing hearing on those counts. Because the Defendant does not challenge his misdemeanor convictions or sentences in Counts 3 and 4, those judgments are affirmed.

The Defendant, Fred Birchfield, was found guilty by a Morgan County Criminal Court jury of second degree murder, a Class A felony, and reckless homicide, a Class D felony. See T.C.A. §§ 39-13-210 (2014) (second degree murder), 39-13-215 (2014) (reckless homicide). The trial court sentenced the Defendant to consecutive terms of eighteen years for second degree murder and three years for reckless homicide, for an effective twenty-one-year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support his second degree murder conviction and (2) the trial court erred by failing to grant his motion for a change of venue. We affirm the judgments of the trial court.

This case involves a dispute over the commission earned from a real estate transaction. The parties disagree as to whether the plaintiff, Clay Harris Dalton, is entitled to a part of the commission on the transaction. Jerry Sandifer is a principal real estate broker licensed in Tennessee. He is the sole proprietor of Tennessee Realty Pros, LLC (TRP), a Tennessee limited liability company. Dalton is an affiliate real estate broker licensed in Tennessee. On September 6, 2013, Dalton registered his real estate license with Sandifer and TRP (collectively the Brokerage). On November 1, 2013, TRP secured a commercial exclusive right to sell listing agreement from a seller. The agreement encompasses the real estate sold in the transaction at issue. Eventually, TRP procured a buyer, and on March 23, 2014, the buyer executed a commercial purchase and sales agreement. That agreement listed Dalton as the Buyer's Designated Agent and selling licensee. It listed Sandifer as the Seller's Designated Agent and listing licensee. On September 30, 2014, the real estate closing took place, resulting in a total broker's commission of $97,400. Because only one brokerage was involved in the transaction, the entire commission was paid to TRP. Dalton claims that he is entitled to a share of the commission. He further asserts that he had an agreement with Sandifer that Dalton would be paid a share of the commission on the buyer's side of the transaction. Because the Brokerage refused to disburse any of the commission to Dalton, he filed a complaint seeking his share of the commission. The trial court found that, based on the customary and contractual commission split at TRP, Dalton is entitled to $34,090 for acting as the buyer's agent. The court also found that Dalton was entitled to $2,000 for his efforts in listing real property for the Brokerage. Accordingly, the trial court awarded Dalton a total judgment of $36,090. The Brokerage appeals. We affirm.

This appeal concerns the termination of parental rights. Glenn V. (“Grandfather”) filed a petition in the Chancery Court for Roane County (“the Trial Court”) seeking to terminate the parental rights of his son, Christopher V. (“Father”), and Makara G. (“Mother”) to their minor children, Karissa and Makilee (“the Children”). After a trial, the Trial Court terminated Father’s and Mother’s parental rights on the grounds of abandonment by failure to support and failure to visit. The Trial Court also granted Grandfather’s motion for adoption. Father and Mother filed appeals to this Court. We, inter alia, reverse the ground of failure to visit with respect to both parents. We also reverse the ground of failure to support with respect to Mother. However, we affirm the ground of failure to support with respect to Father. We find further that termination of Father’s parental rights is in the Children’s best interest. We affirm, in part, and reverse, in part, the judgment of the Trial Court.

The trial court, pursuant to a motion to dismiss filed by defendants, dismissed the plaintiff’s lawsuit because she did not comply with certain aspects of the Tennessee Healthcare Liability Act incident to the filing of her original complaint. Because we do not construe the allegations in the original complaint as presenting any health care liability claims, we reverse the trial court’s dismissal of this lawsuit and remand for further proceedings consistent with this Opinion.

The Defendant, Henri Brooks, entered a guilty plea to a charge of making a false entry on an election document, a Class D felony. The Defendant, who was completing a term as a County Commissioner for Shelby County at the time of the offense, listed an incorrect address on a document related to her bid for the position of Shelby County Juvenile Court Clerk. The trial court held a sentencing hearing during which the primary contested issue was the Defendant‘s request for judicial diversion. The trial court ultimately denied diversion and instead sentenced the Defendant to two years of probation. On appeal, the Defendant argues that the trial court abused its discretion in denying diversion because it failed to weigh the factors it was required to consider in denying diversion, because it relied on improper evidence in making the decision, and because the denial was in part based on the Defendant‘s exercise of her First Amendment rights. After a thorough review of the record, we conclude that the trial court improperly relied on evidence outside the record in reaching its decision. Accordingly, we reverse the denial of diversion, and we remand for a new sentencing hearing.