APPELLATE COURT OPINIONS

The Petitioner, Bobby Ray Graves, Jr., appeals from the Warren County Circuit Court’s denial of his petition for post-conviction relief, wherein he challenged his conviction for failure to appear.  See Tenn. Code Ann. § 39-16-609.  On appeal, the Petitioner submits that he received the ineffective assistance of counsel due to trial counsel’s failure to call the Petitioner’s brother to testify in his defense at trial.  Then, requesting this court to apply the cumulative error doctrine, the Petitioner contends that he was prejudiced by trial counsel’s “failures to properly object to the State’s impermissible statements during cross-examination and closing arguments,” trial counsel’s failure to present the Petitioner’s brother to testify, and trial counsel’s “fail[ure] to argue the missing witness rule.”  As a final issue, he submits that appellate counsel was ineffective by failing to address the missing witness rule on appeal.  Following our review of the record, we affirm the post-conviction court’s judgment denying relief. 

Following a jury trial, Arnold Draper Shawell (“Defendant”) was convicted of aggravated robbery, evading arrest, and possession of drug paraphernalia, for which he received an effective sentence of twelve years’ incarceration.  On appeal, Defendant contends that the evidence presented at trial was insufficient to support his conviction for aggravated robbery and that the trial court committed plain error by allowing the State to cross-examine him about a robbery conviction from 1991 for the purposes of impeachment.  Following a thorough review, we affirm the judgments of the trial court. 

A Hamilton County Criminal Court Jury found the Appellant, Curtis Dewayne Brown, guilty of two counts of attempted voluntary manslaughter, two counts of aggravated assault, employment of a firearm during a dangerous offense, and possession of a firearm while having a prior violent felony conviction. On appeal, the Appellant contends that (1) the evidence was not sufficient to sustain his convictions; (2) the trial court erred by not allowing him to impeach Officer Downs with her preliminary hearing testimony regarding the number of muzzle flashes she saw; (3) the trial court erred by allowing the State to introduce proof of the Appellant’s prior conviction of aggravated assault during the bifurcated proceeding on count six; and (4) the trial court erred in imposing consecutive sentencing. Upon review, we affirm the judgments of the trial court.

The Defendant, Lajuan Harbison, remains convicted of three counts each of attempted voluntary manslaughter and of employing a firearm during the commission of a dangerous felony. Following remand for a resentencing hearing, the trial court imposed an effective sentence of eighteen years’ incarceration. On appeal, the Defendant argues that his overall sentence was not reasonably related to the severity of the offenses and that the trial court failed to properly account for his rehabiliative efforts while incarcereated prior to resentencing. Following our review, we affirm the trial court’s sentencing decision.

This appeal involves review of a suggested additur which was accepted by the Defendant under protest. Because we conclude that the additur at issue satisfies the three-step review for adjustments made to a jury’s verdict, we affirm the trial court’s action.

In this post-divorce action, a former husband filed a motion to modify his alimony obligation after his former wife began living with a romantic partner.  The wife contended that she and her romantic partner equally divided their living expenses and that she still needed the previously awarded alimony despite her new living arrangement.  The trial court disagreed and suspended the husband’s alimony obligation retroactively to the filing of his petition to modify.  In addition to the alimony issue, the trial court determined that wife successfully proved two civil contempt claims against the husband, awarded her the reasonable attorney fees she incurred to prosecute those claims, and dismissed a civil contempt claim she raised regarding his late payment of the value of the wife’s interest in two certificates of deposit (“CD”) awarded to her in the parties’ marital dissolution agreement.  The wife appealed, challenging the suspension of the husband’s alimony obligation, the dismissal of her civil contempt claim, and the award of attorney fees.  Finding that the trial court abused its discretion in suspending the husband’s alimony obligation, we reverse that part of the court’s decision and remand for a determination of her reasonable attorney fees relating to that issue.  We affirm the part of the trial court’s judgment dismissing the civil contempt claim. 

The Petitioner, Stacy L. Curry, entered a guilty plea to aggravated sexual battery and received an agreed-upon sentence of twenty years in prison. He filed various post-judgment motions, including the petition for post-conviction relief at issue on this appeal. The post-conviction court dismissed the petition, and the Petitioner appeals, asserting he was entitled to a hearing. Because the record is inadequate to allow review of the basis of the post-conviction court’s dismissal, we conclude any challenge is waived and affirm the dismissal.

This appeal concerns the termination of a mother’s parental rights. The trial court found that DCS established several grounds for terminating the mother’s parental rights and that termination of her rights was in the children’s best interest for many reasons. The mother does not challenge any of the grounds on appeal but contends that the trial court incorrectly concluded it was in the best interests of the minor children to terminate her parental rights because she was in the process of completing a rehabilitation program. Following a thorough review of the record, we have determined that several grounds for termination were established by clear and convincing evidence, and termination of the mother’s parental rights was clearly and convincingly in the children’s best interest. Therefore, we affirm the termination of the mother’s parental rights.

The Defendant, Benjamin N. Widrick, pleaded guilty in the Sumner County Criminal Court to three counts of statutory rape, a Class E felony.  See T.C.A. § 39-13-506(b)(2) (2018).  The plea agreement called for an effective five-year, Range I, probation sentence, with the issue of judicial diversion reserved for the trial court’s determination.  After a hearing, the court denied diversion, and the Defendant appeals its ruling.  We affirm the trial court’s denial of judicial diversion.

The maternal grandmother and step-grandfather of two children filed a petition to terminate the parental rights of the children’s biological mother and of their respective alleged fathers on the grounds of abandonment by failure to provide financial support, abandonment by failure to visit, and failure to manifest an ability and willingness to assume legal and physical custody of the children. The petitioners also averred that the alleged fathers had failed to establish paternity of their respective child. The trial court granted the petition, finding that each of the alleged statutory grounds for termination had been established by clear and convincing evidence and that terminating the parental rights was in the children’s best interests. Upon careful review of the record, we reverse the trial court’s finding as to the ground of failure to manifest an ability and willingness to assume legal and physical custody of the children but affirm its judgment in all other respects.

The paternal grandparents, William G. (“Grandfather”) and Samantha G. (“Grandmother”), filed a petition for adoption and to terminate the parental rights of the mother, Misty K. (“Mother”), to the minor child, Daniel G. (“the Child”), in the Monroe County Chancery Court (the “Trial Court”). The Trial Court found that Petitioners had proven by clear and convincing evidence that the grounds of abandonment by failure to support, persistent conditions, and severe child abuse existed for termination of Mother’s parental rights. The Trial Court further found that termination of Mother’s parental rights was in the Child’s best interest. We vacate the statutory ground of persistent conditions due to insufficient findings of fact. However, we affirm the Trial Court’s judgment in all other respects, including the termination of Mother’s parental rights.

This appeal involves the enforcement of a revenue-sharing agreement between two companies, in which one party supplied trailers and trucks and the other party leased the trailers and trucks to television and film production companies in the New York City area.  Following a bench trial, the trial court entered its memorandum and order finding that the leasing company owed the supplying company $101,529.00 in rental income and the supplying company owed the leasing company $12,415.00 for major repairs and renovations.  Additionally, the trial court denied the supplying company’s motion to alter or amend the judgment of the trial court to hold the owner of the leasing company individually liable for the breach of contract.  The supplier appeals.  We affirm.

The Defendant, Casey Lynn Hopper, appeals his convictions for felony evading arrest causing a risk of death or injury, a Class D felony; reckless endangerment with a motor vehicle, a Class E felony; driving with a revoked license and reckless driving, Class B misdemeanors; and speeding, a Class C misdemeanor, and his effective twelve-year sentence. See Tenn. Code Ann. §§ 39-13-103, -16-603(b)(3)(B), 55-8-152, -10-205, -50- 504. In this appeal as of right, the Defendant argues that (1) the trial court erred by forcing the Defendant to choose whether to accept a plea offer or proceed to trial before the State produced complete discovery materials; (2) the State failed to collect or preserve favorable evidence, specifically a convenience store surveillance recording; (3) the State failed to provide the defense with exculpatory evidence, specifically a pair of binoculars; (4) the trial court improperly limited cross-examination by prohibiting the defense from introducing a photograph of a third party and questioning a police witness about him; (5) the Defendant’s convictions for felony evading arrest and reckless endangerment violate double jeopardy; (6) the evidence is insufficient to support his convictions; and (7) the trial court erred by imposing consecutive sentencing. After reviewing the record, we affirm the judgments of the trial court.

In this post-divorce case, the trial court granted Appellee/Wife’s petition to modify paragraph 4(A)(d) of the parties’ Marital Dissolution Agreement (“MDA”) on its finding of mutual mistake. The trial court declined to: (1) reform paragraph 4(A)(e) of the MDA; (2) find Appellant/Husband in contempt of the MDA for failure to reimburse Wife for certain college expenses of the parties’ son; (3) hold Husband in contempt for his alleged failure to satisfy his support obligations; and (4) award Wife her attorney’s fees under the MDA. Because there was no mutual mistake, we reverse the trial court’s reformation of paragraph 4(A)(d) of the MDA. The trial court’s orders are otherwise affirmed, and Wife’s motion for appellate attorney’s fees is denied.

The trial court found that Appellant, a Florida attorney, breached his fiduciary duty to Appellees, his clients, and disgorged Appellant of all fees paid by Appellees except for $5,000. Appellant appeals. Discerning no error, we affirm.

Defendant, Jose Guadalupe Frausto-Magallanes, pled guilty to possession with intent to sell more than fifteen grams of heroin with an agreed sentence length of eight years as a Range I standard offender with the trial court to determine the manner of service. The trial court ordered Defendant to serve his entire eight-year sentence in the Department of Correction. On appeal, Defendant argues that the trial court erred by ordering him to serve his sentence in confinement. Following our review of the entire record and the parties’ briefs, we affirm the judgment of the trial court.

Pursuant to its authority to investigate unfair or deceptive trade practicesunder the Tennessee Consumer Protection Act (“TCPA”), Tenn. Code Ann. § 48-18-101, et seq., Appellee Office of the Tennessee Attorney General (“AG”) issued requests for information to Appellant Wall and Associates, Inc. (“Wall”). Tenn. Code Ann. § 47‑18‑106(a). Wall failed to comply with the AG’s requests, and the trial court entered orders compelling compliance and issuing sanctions. Wall appeals. Discerning no error, we affirm.

This is an action by the administrator of the estate of Louisianna McClaron (“the decedent” or “Ms. McClaron”) to recover assets converted by the decedent’s attorneys-in-fact based upon, inter alia, their use of the power of attorney to name themselves as joint owners with right of survivorship on the decedent’s financial accounts, as the pay-on-death beneficiaries of her annuities, and as beneficiaries of the decedent’s life insurance policies. The attorneys-in-fact used the power of attorney to sell real estate, the proceeds of which they deposited into a joint account that benefitted themselves. They also used the power of attorney to transfer $112,000 of the decedent’s bank funds to themselves and their children. The attorneys-in-fact admitted to engaging in all of the transactions identified in the complaint and did not contest the existence of a confidential relationship; rather, they denied liability, contending their actions were authorized and beneficial to Ms. McClaron based on “an understanding” they had with her. They contended to having an oral agreement with the decedent whereby they would care for and assist the decedent and her sister, who lived together, until they died, at which time the attorneys-in-fact would receive the decedent’s estate. Following discovery and the admission by the attorneys-in-fact of all the material facts set forth in the administrator’s statement of undisputed facts, the administrator moved for partial summary judgment. After ruling that any evidence of a purported understanding with the decedent was barred pursuant to the Dead Man’s Statute, the trial court granted partial summary judgment as to liability on the basis of the presumption of undue influence and the breach of fiduciary duties by the attorneys-in-fact for engaging in transactions that resulted in no benefit to the decedent. Following a bench trial on damages, the court entered a judgment identifying the property to be restored to the estate and the amount of damages to be awarded; the court also declared a deed purportedly conveying the decedent’s home to the attorneys-in-fact null and void. The attorneys-in-fact appeal, contending the grant of summary judgment was inappropriate because material facts are in dispute. More specifically, they contend the trial court erroneously deemed the subject of their “understanding” or “agreement” with Ms. McClaron inadmissible under the Dead Man’s Statute, which precluded them from presenting clear and convincing evidence of the fairness of the transactions or how Ms. McClaron benefitted from the transactions. The record before us reveals it is undisputed that the attorneys-in-fact exercised the power of attorney; therefore, a fiduciary relationship existed. See Childress v. Currie, 74 S.W.3d 324, 328–29 (Tenn. 2002). As a consequence, they owed a fiduciary duty to deal with Ms. McClaron’s property in the “utmost good faith,” see Ralston v. Hobbs, 306 S.W.3d 213, 221 (Tenn. Ct. App. 2009), and to act primarily for the benefit of Ms. McClaron, see McRedmond v. Est. of Marianelli,46 S.W.3d 730, 738 (Tenn. Ct. App. 2000). However, the undisputed facts establish that the transactions orchestrated by the Johnsons were not necessary to protect the interest of Ms. McClaron. See Folts v. Jones, 132 S.W.2d 205, 208 (Tenn. 1939). The undisputed facts establish that Ms. McClaron did not benefit from the transactions at issue and the transactions were not fair to Ms. McClaron. In contrast, the undisputed facts reveal that the Johnsons benefitted from each transaction. Having determined that the undisputed material facts and the relevant legal principles fully support the trial court’s determination that the Johnsons breached their fiduciary duties to Ms. McClaron as well as the trial court’s grant of partial summary judgment in favor of the administrator of the estate on the issue of liability, we affirm the trial court in all respects.

This appeal arises from a breach of contractaction brought by the successful bidder at a real estate auction. Following the auction, the execution of a Commercial Purchase and Sale Agreement (“Purchase Agreement”), and the buyer’s remittance of the required earnest money, the parties disputed whether a gravel alley was to be included in the sale. After the seller refused to include the gravel alley in the sale, the buyer refused to close the sale and commenced this action, seeking to recover from the seller the earnest money deposit plus all costs and attorney’s fees incurred in these proceedings. Following the filing of the complaint and answer, each party filed a Tenn. R. Civ. P. 12.03 motion for judgment on the pleadings with the principal issues being whether the Purchase Agreement, which included an integration clause, constituted the complete agreement of the parties and, if so, whether the property description within the Purchase Agreement unambiguously identified the property to be sold as including the disputed gravel alley. The trial court granted the buyer’s motion based on its determination that the Purchase Agreement was fully integrated and constituted the parties’ complete agreement. The trial court also ruled that any evidence contradicting or supplementing the property description was inadmissible. After assessing the plain language of the Purchase Agreement, the trial court found that the property description clearly and unambiguously referenced a deed map, which included the gravel alley. For these reasons, the trial court held that the seller breached the contract by refusing to include the gravel alley in the sale and ordered that the buyer’s earnest money be refunded with interest. The buyer then moved for an award of attorney’s fees based on the terms of the Purchase Agreement, which the trial court granted. This appeal followed. Finding no error, we affirm the trial court in all respects. We also find that the buyer, as the prevailing party,is entitled to recover the reasonable and necessary costs and attorney’s fees it incurred in defending this appeal. Accordingly, we remand this issue to the trial court to make the appropriate award.

Appellant filed suit against Appellees concerning purported violations of his constitutional rights, among other allegations. The trial court ultimately dismissed the case based on insufficiency of service of process and that Appellant’s claims failed to state a claim as a matter of law. Appellant now appeals. Based on our review of the record, we affirm the trial court’s dismissal.

The plaintiff appeals from the summary judgment dismissal of his complaint against the defendant hospital pursuant to Tennessee Code Annotated section 68-11-262.[1] The trial court held, inter alia, that this court’s decision in Fowler v. Morristown-Hamblen Hospital Association, No. E2018-00782-COA-R3-CV, 2019 WL 2571081 (Tenn. Ct. App. June 24, 2019)[2] mandated dismissal because Section 68-11-262 does not create a private right of action.  The plaintiff alleges on appeal that the trial court’s reliance upon Fowler was misplaced because his action is one for contract and therefore not dependent upon the legislature’s creation of a private right of action.  We affirm the judgment of the trial court.

Defendant was convicted by a Lewis County Circuit Court jury of reckless aggravated assault, a Class D felony, and sentenced by the trial court to two years in the Department of Correction, suspended to unsupervised probation.  Defendant argues on appeal that the trial court abused its discretion in denying his request for judicial diversion.  Based on our review of the entire record and the parties’ briefs, we affirm the judgment of the trial court.

This case involves a petition to terminate the parental rights of a child’s biological father and for step-parent adoption. The trial court terminated the biological father’s rights on the ground of abandonment for failure to visit, abandonment for failure to support, and wanton disregard. The court held that termination was in the child’s best interest. Biological father appeals asserting that the trial court erred in not granting him a continuance on the day of trial and that the trial court erred in its best interest determination. We vacate the trial court’s conclusion that termination was warranted on the grounds of abandonment by failure to support and abandonment by engaging in conduct that exhibited wanton disregard for the child’s welfare, but we affirm the trial court’s conclusion that the biological father’s rights should be terminated on the ground of failure to visit in the four months preceding his incarceration and that terminating his parental rights is in the best interest of the child. Therefore, we affirm the trial court’s termination of the biological father’s parental rights.

A Madison County jury convicted the Defendant, Crystal Michelle Rickman, of aggravated assault and domestic assault. The trial court imposed an effective sentence of six years in the Tennessee Department of Correction. On appeal, the Defendant contends that the trial court erred by denying an alternative sentence. We affirm the trial court’s judgments.

Defendant, Torius Saville Russell, was indicted for one count of first degree felony murder, one count of attempted first degree murder, eight counts of aggravated assault, and one count of reckless endangerment. After the State closed its proof in chief, the trial court dismissed the attempted first degree murder count and partially dismissed the first degree felony murder count, allowing the jury to consider the lesser included offense of second degree murder. Defendant was convicted of second degree murder as a lesser included offense of felony murder, eight counts of aggravated assault, and one count of reckless endangerment. Defendant received a total effective sentence of 50 years. Defendant argues on appeal that: (1) the evidence at trial was insufficient to establish Defendant’s identity as the shooter; (2) the trial court erred in partially granting Defendant’s motion for judgment of acquittal as to first degree felony murder and allowing the State to pursue a lesser included offense; (3) the trial court abused its discretion in denying Defendant’s motion for mistrial after the State’s witness made two hearsay statements; and (4) the trial court abused its discretion in imposing a sentence of 40 years for second degree murder and in ordering the second degree murder sentence to be served consecutively to his sentences for aggravated assault and reckless endangerment. After a thorough review of the record and applicable authorities, we affirm Defendant’s convictions and sentences.