APPELLATE COURT OPINIONS

In 2011, a Davidson County jury convicted the Petitioner, Trinidad Martinez Flores, of multiple offenses involving the possession and sale of more than 300 pounds of marijuana. The trial court sentenced the Petitioner to fifty-six years of incarceration. This Court affirmed the Petitioner’s convictions and sentence on appeal. State v. Trinidad Martinez Flores, No. M2012-00285-CCA-R3-CD, 2013 WL 3497644, at *1 (Tenn. Crim. App., at Nashville, July 11, 2011), perm. app. denied (Tenn. Nov. 13, 2013). The Petitioner filed a petition for post-conviction relief alleging that his trial counsel represented him ineffectively. After a hearing, the post-conviction court denied the petition. On appeal, the Petitioner contends his trial counsel failed to adequately represent him, noting that the Board of Professional Responsibility subsequently disbarred trial counsel for fraudulently billing the state. On appeal, we conclude that, considering the weight of the evidence, counsel’s representation did not prejudice the Petitioner. As such, the Petitioner is not entitled to relief.

The defendant, Marlin C. Goff, 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 2005 convictions of rape of a child and failure to appear. Discerning no error, we affirm.

In this post-divorce action, the mother sought modification of the father’s child support obligation due to a material change of circumstances. The trial court increased the father’s child support obligation but declined to order such modification effective as of the date the mother filed her petition to modify. The mother has appealed. Having determined that the trial court erred in failing to modify the father’s child support obligation effective as of the date of the petition’s filing, we reverse the trial court’s judgment in that regard and remand for entry of a modified judgment retroactive to the date the mother filed the petition. We affirm the trial court’s judgment in all other respects.

Defendant, Milta Blanchard, filed a motion under Tennessee Rule of Criminal Procedure 36.1 alleging that the judgments against him were illegal because he was out on bond in one of his cases when he was arrested on the three other cases. The trial court granted Defendant’s motion and vacated three of the judgments against him. The trial court determined that the judgment for the offense for which Defendant was on bond was not illegal as it occurred first in time. On appeal, Defendant argues that the trial court erred in correcting his illegal sentences on the concession of the State without first appointing counsel, holding a hearing, or providing him the opportunity to withdraw his plea. After review of the record and the briefs, we conclude that the trial court lacked authority to grant Defendant’s motion and that the judgments against Defendant should be reinstated.

This case arises from a contract dispute. The parties orally contracted for Appellees to perform grading and other work on Appellant's property for the price of $2,500.00. After Appellees began the work, Appellant requested additional work. The parties did not discuss any additional payment for this work. After the work was complete, Appellees sent Appellant an invoice for $9,073.00. Appellant told Appellees he would not pay that amount and sent them a cashier's check marked “pd in full” for $1,500.00, which was the balance due on the original $2,500.00 price. Appellees marked through the “pd in full” notation on the check, cashed the check, and then notified Appellant that they considered the check to be a credit against the total amount owed.

Pursuant to Tennessee Supreme Court Rule 51, this appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. In this pain management case, the employee received pain management treatment for more than ten years for a work-related injury pursuant to a judgment entered in November 2003. In April 2015, the employee’s treating physician advised him that he was retiring and moving to Florida, prompting the employee to contact his employer’s insurance carrier, who provided him with a panel of pain specialists two days later. The treating physician then made a referral to a different clinic to continue the employee’s treatment, so the employee declined to select a doctor from the panel while the insurance carrier declined to authorize the referred clinic. The employee filed a motion in the Circuit Court for Giles County, seeking to compel the insurance carrier to authorize treatment by the clinic. The trial court granted the motion and awarded attorney’s fees and travel expenses for a trip to Florida by the employee to see his previous physician. The insurance carrier has appealed, asserting that the trial court erred by granting the employee’s motion. We reverse in part and affirm in part the judgment of the trial court.

This appeal is from a final decree of divorce. The wife challenges several of the trial court’s rulings regarding the grounds for the divorce, the division of marital property, the parenting plan, the calculation of child support and educational expenses, and attorney’s fees. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.     

Defendant, Cedric Jones, appeals his convictions for three counts of aggravated rape, one count of aggravated sexual battery, and one count of aggravated kidnapping and his total effective sentence of thirty-seven years. Defendant argues (1) that the evidence is insufficient to sustain his convictions; (2) that the trial court erred when it revoked his bond for failure to appear; (3) that the trial court erred when it denied his motions for recusal; (4) that the trial court erred when it did not allow Defendant to represent himself at trial; (5) that the State committed prosecutorial misconduct during closing argument; and (6) that the trial court erred during sentencing. Upon our thorough review, we affirm the judgments of the trial court.

A Knox County Criminal Court Jury convicted the appellant, LaQuinton Brown, of two counts of aggravated assault, a Class C felony; two counts of employing a firearm during the attempt to commit a dangerous felony, a Class C felony; and two counts of attempted voluntary manslaughter, a Class D felony. After a sentencing hearing, the appellant received an effective twenty-two-year sentence to be served in confinement. On appeal, he contends that the evidence is insufficient to support the convictions; that the trial court erred by allowing the State to play a video showing him with a handgun because the video violated Rules 404(b) and 608(b), Tennessee Rules of Evidence; and that the trial court erred by imposing the maximum sentences in the range, by ordering consecutive sentencing, and by denying his request for alternative sentencing. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgments of the trial court.

This is a post-foreclosure action in which the lender seeks to recover a deficiency judgment, interest, and the costs of collection. In their answer, the borrowers asserted that the loan was a nonrecourse debt; thus, they were not liable for the deficiency. Alternatively, they asserted that the property sold at foreclosure for an amount materially less than its fair market value. Following a bench trial, the trial court concluded that the loan was a full recourse debt as to both borrowers. This determination was based on the finding, inter alia, that all parties intended the borrowers to be personally liable. The trial court also concluded that the lender was entitled to a deficiency judgment, finding that the borrowers failed to overcome the rebuttable presumption that the foreclosure sale price was equal to the fair market value of the property at the time of the foreclosure sale. See Tenn. Code Ann. § 35-5-118. The trial court awarded the lender a judgment of $640,783.41, plus interest and attorney’s fees, against the borrowers jointly and severally. As the foregoing indicates, our review is benefited by the trial court’s Tenn. R. Civ. P. 52.01 findings of facts and conclusions of law, which disclose the reasoned steps by which the trial court reached its ultimate conclusion and enhance the authority of the trial court’s decision. Having reviewed the trial court’s findings of fact in accordance with Tenn. R. App. P. 13(d), we have concluded that the evidence does not preponderate against the trial court’s findings and that the trial court identified and properly applied the applicable legal principles. For these reasons, we affirm.

The Defendant, Sharod Winford Moore, appeals as of right from his jury conviction for first degree premeditated murder. See Tenn. Code Ann. § 39-13-202. On appeal, the Defendant contends: (1) that the evidence is insufficient to support his conviction; (2) that the trial court erred in overruling his motion for change of venue; (3) that the trial court erred in denying his request to present evidence of the victim’s propensity for violence; (4) that the trial court erred in denying his request to charge the jury with Tennessee Pattern Jury Instruction 42.09(a), designating Jason McCollum as an accomplice as a matter of law; (5) that the trial court erred in allowing an “incompetent” witness, Clifford Watkins, to testify; (6) that the trial court erred in denying a request to cross-examine Mr. Watkins regarding a previous arrest and subsequent determination by the Middle Tennessee Mental Health Institute that he was incompetent to stand trial; (7) that the trial court erred in denying his pre-trial motion to keep the State from eliciting testimony that the Defendant was a member of the Vice Lords gang; (8) that the prosecutor engaged in misconduct during closing argument “by misstating [the] law concerning the definition of reasonable doubt”; and (9) that the District Attorney General’s Office committed a Brady violation by providing defense counsel with “redacted ‘exculpatory’ witness statements,” foreclosing counsel’s ability to determine whether those “witness[es] could provide exculpatory testimony.” Following our review, we determine that the Defendant’s failure to timely file a motion for new trial results in waiver of all issues except for sufficiency of the evidence. Furthermore, we conclude that the evidence was sufficient to support the Defendant’s conviction. The judgment of the trial court is affirmed.

In this probate action, the executrix proposed to distribute the decedent’s real and personal property in a manner that she claimed was in accordance with the decedent’s Last Will and Testament (“Will”). One beneficiary, one of the decedent’s three adult children, objected, claiming that the decedent had granted her an option to purchase one parcel of real property owned by the decedent. The trial court determined that the real property in question was an asset of the probate estate and that the executrix could administer it in accordance with the decedent’s Will. The trial court also determined that a settlement agreement executed by the decedent’s three children precluded the claim of an option to purchase. The beneficiary appealed. Pursuant to Tennessee Code Annotated § 30-2-301, we vacate the trial court’s denial of the beneficiary’s requests for an inventory and accountings and remand for further proceedings. We affirm the trial court’s judgment in all other respects.

In this post-divorce action, Vanessa Young Colley (“Mother”) filed a petition for modification of the Permanent Parenting Plan (“Parenting Plan”) entered in connection with the parties’ Marital Dissolution Agreement (“MDA”) seeking to change the decision-making authority with regard to educational decisions for the parties’ minor children. After a hearing, the Circuit Court for Davisdon County (“the Trial Court”), inter alia, modified the Parenting Plan to change joint decision-making with regard to education to Mother having sole decision-making authority with regard to education. John S. Colley, III (“Father”) appeals the decision of the Trial Court raising issues with regard to the change in decision-making authority, the denial of Father’s petition for recusal, and the award to Mother of attorney’s fees, among other things. We find and hold that some of Father’s issues seek an advisory opinion, and we refuse to address those issues. With regard to the issue of recusal, we find no error in the Trial Court’s resolution of this issue. We further find and hold that Mother proved a material change in circumstances justifying a change in decision-making authority with regard to education and further proved that it was in the children’s best interest for Mother to have sole decision-making authority with regard to education. We, therefore, affirm.

Plaintiffs appeal from the trial court’s order denying their motion to enforce two offers of judgment offered serially by the defendant. Because the trial court improperly certified its judgment as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure, we dismiss this appeal for lack of subject matter jurisdiction.  

Following a jury trial, the Defendant, Brandan Dane Windrow, was convicted of aggravated assault involving the use or display of a deadly weapon, a Class C felony, and vandalism of property valued at $1,000 or more but less than $10,000, a Class D felony. See Tenn. Code Ann. §§ 39-13-102; -14-408; -11-105. He received a total effective sentence of fourteen years to be served at thirty-five percent. On appeal, he contends that the evidence was insufficient to prove that he acted intentionally or knowingly. Following our review, we affirm the judgments of the trial court.

In 2015, the Defendant, Kevin O’Donnell Stone, pleaded guilty to violating his probation in case numbers 2011-CR-486 and 2011-CR-103 and to possession of cocaine in case number 2013-CR-528. The trial court revoked the Defendant’s probation and ordered him to serve the balance of his three-year sentence in confinement. The trial court also sentenced the Defendant to a concurrent sentence of five years of incarceration for the possession of cocaine conviction. On appeal, the Defendant contends that the trial court erred when it ordered him to serve his sentences in confinement instead of ordering an alternative sentence. After a thorough review of the record and the applicable authorities, we affirm the trial court’s judgments.

This appeal arises from an age discrimination lawsuit brought under the Tennessee Human Rights Act ("THRA"). Paul M. Martin ("Martin") sued his former employer Perma-Chink Systems, Inc. ("Perma-Chink") in the Circuit Court for Knox County ("the Trial Court"). Martin alleged that he had been fired as a sales representative for Perma-Chink because of his age, then 60. The matter was tried before a jury, which returned a verdict in favor of Martin. Perma-Chink filed an appeal to this Court, and Martin raises his own issues on appeal. Perma-Chink argues, among other things, that the Trial Court erred in admitting a chart ("the Chart") containing raw data of employee ages at their date of termination, and that Martin failed to prove a prima facie case of age discrimination. We, inter alia, affirm the age discrimination judgment for Martin.

Defendant, Richard Wayne Ferguson, pled guilty to twenty-seven felonies and three misdemeanors for property-related crimes committed in November and December of 2014. As a result, he was sentenced to an effective sentence of twenty-seven years as a Range I, standard offender. Defendant appeals his convictions, arguing that the sentences imposed by the trial court are excessive. After a review, we determine that the trial court did not abuse its discretion in sentencing Defendant to an effective sentence of twenty-seven years.

This case involves a purportedly forged deed. Appellant appeals the trial court’s decision to set aside a quit claim deed that was allegedly executed in favor of Appellant by his now deceased grandfather. The trial court found the signature on the deed was forged and not that of the grandfather. In so ruling, the trial court applied the preponderance of evidence standard. Because the correct standard is clear and convincing evidence, we vacate and remand to the trial court for further proceedings.

This is a negligence case involving the alleged sexual assault of a six-year-old boy by another six-year-old boy in the bathroom of an elementary school. The trial court determined that the Appellee school district was entitled to summary judgment as a matter of law because the assault was not foreseeable. We conclude that there are disputes of material fact, which preclude the grant of summary judgment. Accordingly, we reverse and remand.

A jury convicted Michael Smith (“the Defendant”) of aggravated assault, committed by violating a protective order, and evading arrest. The trial court imposed an effective sentence of ten years, eleven months, and twenty-nine days’ incarceration. The Defendant appealed his convictions and sentences, which the Court of Criminal Appeals affirmed. State v. Smith, No. W2013-01190-CCA-R3-CD, 2014 WL 3954062, at *21 (Tenn. Crim. App. Aug. 13, 2014). The Defendant then requested permission to appeal to this Court, alleging the following errors: (1) the trial court’s failure to require the State to make an election of offenses; (2) the insufficiency of the indictment; (3) the trial court’s refusal to allow the Defendant to sit at counsel table; (4) the trial court’s ruling that, should he elect to testify, the Defendant could be impeached with prior convictions; (5) the trial court’s denial of a mistrial after allowing a witness to testify about a different criminal proceeding against the Defendant; (6) the admission of the victim’s testimony about the Defendant’s prior bad acts; and (7) the trial court’s failure to confine the flight instruction to the aggravated assault charge. We granted the Defendant’s request for permission to appeal. Upon our review of the record and the applicable law, we hold that the State’s failure to elect an offense as to the aggravated assault charge resulted in plain error. Accordingly, we reverse the Defendant’s conviction for aggravated assault and remand the matter to the trial court for a new trial on that charge. We affirm the Defendant’s conviction for evading arrest.  

Employee brought action against former Employer alleging wrongful termination under the Tennessee Disability Act (“TDA”), Tenn. Code Ann. § 8-50-103; the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. §§ 4-21-101–102; impermissible disclosure of medical information in violation of the TDA; breach of contract; and misrepresentation in violation of the Tennessee Employment Security Law, Tenn. Code Ann. § 50-7-711. The trial court granted the Employer’s motion to dismiss all claims, and the Employee appeals. Discerning no error, we affirm the judgment of the trial court. 

Plaintiff appeals the summary dismissal of this action based on the statute of frauds and judicial estoppel, the award of expenses and attorney’s fees as a discovery sanction, and the award of discretionary costs. In April 2005, Carlene Elrod, now deceased, signed four quitclaim deeds conveying real property in fee simple to her grandson, Michael Petty. In April 2011, Mrs. Elrod filed a verified complaint to set aside the conveyances on tort grounds including mistake, fraud, and deceit, claiming she was under the influence of prescription medications at the time of the conveyances, which deprived her of the mental capacity to contract. Mrs. Elrod died while the action was pending and her estate was substituted as plaintiff. The estate filed an amended complaint in which it dropped all tort claims and asserted a breach of contract claim. Specifically, the estate alleged that the conveyances were based on an oral contract pursuant to which Mr. Petty agreed to pay all rental income from the properties to Mrs. Elrod until her death, and that Mr. Petty honored this agreement for five years but breached the agreement by retaining all rental income thereafter. Following discovery, the defendants, Mr. Petty and his wife, filed a motion for summary judgment. The trial court summarily dismissed the complaint finding: (1) the claims were barred by the Tennessee Statute of Frauds because they were based on a purported oral contract pertaining to the transfer of real property, and (2) the claims were barred by the doctrine of judicial estoppel given the factual inconsistencies between the initial verified complaint and the amended complaint. The court also assessed expenses and attorney’s fees against the plaintiff as a sanction for failing to comply with discovery, and discretionary costs. We affirm the grant of summary judgment based on the statute of frauds. We also affirm the award of expenses and attorney’s fees pursuant to Tenn. R. Civ. P. 37.01 and discretionary costs pursuant to Tenn. R. Civ. P. 54.04.

In this divorce action, Husband contends the trial court erred by denying his request for “assistance of an attorney,” in valuing his minority partnership interest in a real estate venture, in the division of the marital estate, by ordering the sale of real estate without assuring the sale would be for fair market value, by awarding Wife transitional alimony, and by awarding Wife her attorney’s fees. We affirm.