APPELLATE COURT OPINIONS

We granted review in this case to decide (1) whether an indigent parent’s right to appointed counsel in a parental termination proceeding includes the right to challenge an order terminating parental rights based on ineffective assistance of trial and appellate counsel; and (2) whether the Court of Appeals must review any ground the trial court relied on to terminate parental rights when a parent fails to raise all grounds for termination on appeal. We hold that parents are constitutionally entitled to fundamentally fair procedures in parental termination proceedings. Nevertheless, this constitutional mandate does not require us to adopt a procedure by which parents may collaterally attack orders terminating parental rights based on ineffective assistance of counsel. Additionally, we hold that appellate courts must review a trial court’s findings regarding all grounds for termination and whether termination is in a child’s best interests, even if a parent fails to challenge these findings on appeal. Having reviewed the record on appeal in accordance with these holdings, we affirm the trial court’s judgment terminating the mother’s parental rights.

In this divorce case, the wife proceeding pro se appeals the division of marital property and the trial court’s denial of her request for alimony. She also appeals the trial court’s award of court costs. She elected not to file a transcript or a statement of the evidence. Because the wife’s first two issues are factual in nature, the lack of transcript or statement of evidence prevents us from reaching the substance of the issues raised by the wife. We find no abuse of discretion by the trial court in assessing court costs. Accordingly, we affirm the judgment of the trial court. We also find that the appeal is frivolous.

This action concerns a petition to set aside a tax sale as void for lack of notice to the original property owner. The purchaser of the property filed a motion to dismiss, arguing that the original owner was not entitled to notice, that the petitioner received actual notice as the current owner, and that the petition was untimely. The petitioner countered with a motion for summary judgment. Following a hearing, the trial court dismissed the petition, finding that the petitioner received actual notice of the sale and that the time for filing such actions had passed. The petitioner appeals. We affirm.

The Court has decided that an indigent parent has the right to assistance of counsel—but not the right to effective assistance of counsel—in a parental termination proceeding. I believe that the vast majority of lawyers provide competent representation as required by our Rules of Professional Conduct. See Tenn. Sup. Ct. R. 8, RPCs 1.1 & 1.3. But in those rare situations where a lawyer makes a mistake or fails to do his or her duty to such an extent that the termination proceeding is not fundamentally fair, I favor providing the parent with an opportunity to seek relief. In my view, providing counsel for an indigent parent but not requiring counsel to render effective representation is an empty gesture.  

Defendants in a federal civil conspiracy case that was voluntarily dismissed filed a malicious prosecution case in state court against the plaintiff and his attorney. The plaintiff and his attorney filed motions for summary judgment, which the trial court granted. The defendants appealed, and we affirm the trial court’s judgment. When a plaintiff voluntarily dismisses a lawsuit, the dismissal does not constitute a “favorable termination” for purposes of satisfying the third element of a malicious prosecution lawsuit.

In September 24, 2014, the Marshall County Grand Jury indicted the Defendant, Johnthan Tyler Ryan Tyree, for two counts of aggravated assault involving the use of a deadly weapon.  The Defendant entered a best interest guilty plea to the charged offenses with sentencing reserved.  Following a sentencing hearing, the trial court sentenced the Defendant as a Range I standard offender to four years and nine months in the Department of Correction for each count.  The trial court merged Count 2 into Count 1, finding the two offenses arose from a single incident.The sentence was ordered to be served consecutively to a Rutherford County sentence arising from criminal offenses committed while the Defendant was released on bail in this case.  On appeal, the Defendant contends that his sentence is excessive and contrary to law.  Following our review, we find no error in sentencing and affirm the judgments of the trial court.

Defendant, Cornelius Banks, appeals his Shelby County convictions for one count of aggravated kidnapping, two counts of especially aggravated kidnapping, one merged count of aggravated rape, one merged count of aggravated sexual battery, three counts of aggravated robbery, one count of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony. The trial court imposed a sentence of 240 years. Defendant argues (1) that the indictment for one of the counts of aggravated rape was fatally defective and should be dismissed; (2) that the evidence was insufficient to support his convictions and that his kidnapping convictions violated double jeopardy; (3) that the trial court erred in failing to instruct the jury that it could consider one of the witnesses as an accomplice whose testimony must be corroborated; and (4) that the trial court erred in ordering Defendant's sentences to be served consecutively. Upon our review of the record, we affirm the judgments of the trial court.

In this health care liability action, the plaintiffs disagree with a number of the trial court’s rulings upon which it based its decision to grant summary judgment in favor of the defendants. The trial court excluded the plaintiffs’ life care planner due to their failure to provide a complete disclosure of the life care planner’s opinions in a timely manner. The trial court ruled that the plaintiffs’ sole standard of care expert, a neurosurgeon, was not competent to testify as to the standard of care of the defendant nurse practitioner. Furthermore, the trial court precluded the plaintiffs’ standard of care expert from testifying at all due to the plaintiffs’ repeated failure to comply with the court’s orders regarding discovery. We find no abuse of discretion with respect to the trial court’s decisions and affirm the judgment.  

This is a termination of parental rights case. The Department of Children's Services (DCS) filed a petition to terminate the parental rights of A.C.P. (Mother) with respect to her three minor children, ages twenty-two months to six years at the time of trial. The trial court found clear and convincing evidence of grounds. The court found the same quantum of evidence supporting the conclusion that termination of Mother‟s rights is in the children's best interest. Mother appeals. As modified, we affirm the trial court's judgment.

Appellant, Phillip Serpas, entered guilty pleas to two counts of unlawfully obtaining a prescription for controlled substances by fraud, Class D felonies, and one count of conspiracy to obtain or attempt to obtain a controlled substance by fraud, a Class E felony. The trial court sentenced him as a Range I, standard offender to concurrent terms of two years each for the Class D felonies and one year for the Class E felony. The trial court held a hearing on the issue of alternative sentencing and ordered appellant to serve his effective two-year sentence in the Tennessee Department of Correction. Appellant appeals the denial of alternative sentencing. Following our review, we affirm the judgments of the trial court.

The former administrator of an assisted living facility appeals the summary dismissal of his claim for retaliatory discharge under the Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann. § 50-1-304, and common law. Plaintiff contends he was fired in retaliation for initiating an internal investigation and submitting an internal report to his supervisors concerning an incident that arose when the son of an elderly resident observed an old bandage stuck to the bottom of his mother’s foot, which was revealed when her sock was removed in order to check the dressing for a wound on her ankle. Defendants contend Plaintiff’s claims are legally deficient because there was no neglect or illegal activity to report, and that Plaintiff grossly overreacted after being informed that an old bandage was found on the ball of a resident’s foot in a sock when the resident’s wound, which was on her ankle, was properly dressed and bandaged. Defendants also rely on the fact that Plaintiff did not file a qualifying internal or external report of neglect until after he was fired. The trial court summarily dismissed the TPPA claim stating “leaving a bandage in a sock, where a patient’s wound is in fact otherwise sufficiently bandaged, is not illegal activity as defined by the statute. Leaving the bandage in the sock is not ‘abuse and neglect’ as defined in the statute.” The court dismissed the common law whistleblower claim because Plaintiff did not show that Defendants engaged “in illegal conduct or in any way . . . posed a threat to an important public policy of the State when all that was done was to leave an old bandage in a patient’s sock.” Plaintiff appeals the summary dismissal of his claims under the TPPA and common law. We affirm.

Defendant, Daetrus Pilate, appeals his convictions for rape of a child, aggravated sexual battery, sexual battery by an authority figure, and incest and also appeals his effective sentence of forty-nine years. Defendant argues that: (1) the trial court erred by permitting the State to present evidence that violated the rules of discovery; (2) the trial court erred by admitting a prior consistent statement of the victim; (3) the trial court erred by admitting evidence of Defendant's arrest and giving a jury instruction on flight; (4) cumulative error requires reversal of the convictions; (5) there is insufficient evidence to support his convictions; and (6) his sentence is excessive. We affirm the judgments of the trial court.

The trial court denied a personal representative's fee request after concluding that the request did not comply with a local rule setting a personal representative's fee as a percentage of the value of the estate. We reverse and remand for the trial court to reconsider Appellant's fee request “in light of all the relevant circumstances.” In re Estate of Schorn, No. E2013-02245-COA-R3-CV, 2015 WL 1778292, at *8 (Tenn. Ct. App. Apr. 17, 2015).

The majority Opinion concludes that a reasonable juror (1) could not find that Mr. Richmond had reasonable cause to believe the presence of the soiled bandage was connected to “illegal activity,” as required by the Tennessee Public Protection Act (“TPPA”), and (2) could not find that Mr. Richmond could demonstrate that his termination for reporting the incident violated any clear public policy under his common law claim. Because I conclude that a reasonable juror could conclude that Mr. Richmond had reasonable cause to believe that the presence of the soiled bandage stemmed from neglect of the patient, I must respectfully dissent. 

Defendant, John N. Moffitt, was convicted of reckless aggravated assault and sentenced to four years' incarceration to be served at 30 percent release eligibility. Defendant was also ordered to pay restitution and a $2,500 fine. On appeal, Defendant asserts that the evidence was insufficient to support his conviction; that the trial court erred by failing to instruct the jury that his conduct must have caused serious bodily injury; that the evidence was insufficient to support the trial court's order of restitution; and that the trial court erred by imposing the maximum sentence within the applicable range. Having carefully reviewed the record before us, we affirm Defendant's conviction and sentence. However, we reduce the amount of restitution and remand this case to the trial court to determine Defendant's ability to pay restitution.

Father of a child who was determined to be dependent and neglected shortly after her birth had his parental rights terminated on the grounds of abandonment by an incarcerated parent – failure to support; failure to provide a suitable home and wanton disregard; failure to substantially comply with the requirements of the permanency plan; and persistence of conditions. Father appeals, asserting that the evidence does not sustain the trial court’s findings relative to those grounds as well as the holding that termination was in the child’s best interest. Father failed to appeal or argue one of the grounds for termination and, consequently, has waived that issue; the ground is thereby final and we decline to review the other grounds. Upon our review of the record, there is clear and convincing evidence that termination of Father’s rights is in the child’s best interest.
     

According to the allegations of the pro se post-conviction petition, the Petitioner, Timothy Coleman, pleaded guilty to initiation of a process to manufacture methamphetamine and received a nine-year sentence. He alleged that the date of the judgment was March 7, 2014, and that no appeal was filed. He filed a post-conviction petition on July 6, 2015, alleging that due process required tolling of the one-year post-conviction statute of limitations due to his mental incompetency. The post-conviction court summarily dismissed the petition as time-barred. On appeal, the Petitioner contends that the post-conviction court erred in dismissing the case on the basis of the statute of limitations. He also contends that newly discovered evidence may establish his actual innocence of the offense. We affirm the judgment of the post-conviction court.

This appeal concerns post-divorce matters. Mimi Hiatt (“Wife”) and Kevin L. Hiatt (“Husband”) divorced. Wife some years later filed a motion to modify the final decree of divorce in the Circuit Court for Blount County (“the Trial Court”) seeking to increase Husband’s child support and alimony obligations. Husband, in turn, filed a motion to recover claimed overpayments he made on the marital residence because Wife had transferred it to a trust. The Trial Court found, among other things, that Wife was voluntarily underemployed and declined to increase her spousal support for that reason. The Trial Court also ruled that Wife’s divestment of the marital residence constituted a “sale” under the Marital Dissolution Agreement (“the MDA”) and awarded a judgment to Husband for payments he made on the mortgage after Wife’s transfer of the marital residence to the trust. Wife appeals to this Court. We hold that Wife’s transfer of the marital residence to a trust constituted a sale per the MDA, and we affirm the Trial Court in its award to Husband for overpayment. However, we find that Wife proved a substantial and material change in circumstances, and we remand for the Trial Court to determine an increase in Wife’s alimony in light of this change and all relevant factors. We find further that the Trial Court erred in declining to award Wife her attorney’s fees relative to alimony. As a final matter, we award Wife her attorney’s fees incurred on appeal related to the alimony issue, and remand for the Trial Court to determine Wife’s reasonable attorney’s fees related to the alimony issue on appeal. The judgment of the Trial Court is affirmed, in part, and, reversed, in part.

A Rutherford County Circuit Court Jury convicted the Appellant, Kenny Thomason, of first degree premeditated murder, and the trial court sentenced him to life imprisonment. On appeal, the Appellant challenges the sufficiency of the evidence sustaining his conviction, claiming that the State failed to prove premeditation or that he possessed the weapon that killed the victim; instead, he asserts that the victim possessed the weapon and that she was killed during a struggle.  Upon review, we affirm the judgment of the trial court.

The dispositive issue in this appeal is whether the election of offenses doctrine, articulated in Burlison v. State, 501 S.W.2d 801 (Tenn. 1973), and reaffirmed in State v. Shelton, 851 S.W.2d 134 (Tenn. 1993), requires the prosecution to identify a single incident of sexual battery in cases, such as this one, where the child victim testifies to repeated incidents of sexual contact occurring over a substantial period of time but does not furnish any specific details, dates, or distinguishing characteristics as to individual incidents of sexual battery. We hold, as have courts in other jurisdictions, that where a prosecution is based on such nonspecific or “generic” evidence, requiring the prosecution to elect a single specific incident is not possible. However, to prevent infringement upon the defendant’s right to a unanimous verdict, the trial court must give a modified unanimity instruction which informs the jury that it must unanimously agree the defendant committed all the acts described by the victim in order to convict the defendant. Although the trial court did not have the benefit of this decision and therefore did not provide the modified unanimity instruction to the jury in this case, we conclude, based on the record in this appeal, that the omission of this instruction was harmless beyond a reasonable doubt. Accordingly, we reverse the Court of Criminal Appeals’ judgment vacating the defendant’s convictions of sexual battery by an authority figure and reinstate the trial court’s judgment approving the jury’s verdict.

I respectfully dissent from the majority view that the evidence supports a verdict of first degree premeditated murder.

The defendant, Chuncy Lesolue Hollis, whose original first degree premeditated murder conviction was reversed by this court due to an error in jury instructions, was again convicted by a Gibson County jury in a second trial of first degree premeditated murder and sentenced to life imprisonment. On appeal, he argues that the evidence is insufficient to sustain his conviction; that the trial court erred by issuing a jury instruction on flight and by not instructing the jury on cause of death, by allowing prior statements of witnesses to be introduced as substantive evidence, by allowing photographic lineups into evidence and by summarily dismissing his motion for judgment of acquittal and/or a new trial without holding a hearing; that the State committed prosecutorial misconduct by the manner in which the prosecutor questioned witnesses and by the improper comments he made in opening statement and closing argument; and that the cumulative effect of various trial errors deprived the defendant of his constitutional right to a fair trial. Following our review, we affirm the judgment of the trial court.

The Defendant, Clifford Eric Marsh, pleaded guilty to fourth offense driving on a revoked license, a Class A misdemeanor.  See T.C.A. § 55-50-504 (2012).  The trial court sentenced the Defendant to eleven months, twenty-nine days’ confinement at 75% service.  On appeal, the Defendant contends that the trial court erred by denying his request for alternative sentencing.

Following a jury trial, the Defendant, John Burley Alberts, was convicted of four counts of rape of a child, see Tennessee Code Annotated section 39-13-522, and received an effective sentence of one hundred years to be served at one hundred percent.  On appeal, the Defendant contends (1) that the trial court erred in denying the Defendant’s motion to suppress evidence obtained from a warrantless search of the Defendant’s car, and (2) that evidence obtained from a laptop computer recovered from his car should have been suppressed because officers did not acquire a search warrant prior to performing a forensic analysis of the computer.  Because we conclude that the search was valid under the automobile exception to the warrant requirement and that the Defendant has waived review of the second issue, the judgments of the trial court are affirmed.

The defendant, Chalmers G. Brown, appeals the trial court’s order granting his motion to correct an illegal sentence and entering corrected judgments, arguing that his convictions should have been vacated not merely corrected. After review, we reverse the trial court’s correction of the judgments against the defendant and reinstate the original judgments.