APPELLATE COURT OPINIONS

In this accelerated interlocutory appeal from the denial of a recusal motion, the newly-elected trial court denied a recusal motion on the basis that he continued to represent one of the parties to the litigation in unrelated matters while winding down his law practice. The opposing parties filed an accelerated interlocutory appeal pursuant to Tennessee Supreme Court Rule 10B. Because this situation creates an appearance of impropriety, we reverse the judgment of the trial court.

This appeal arises from a dispute over child custody. Charles W. Hendricks (“Father”) and Lori A. Smith (“Mother”) entered into an agreed permanent parenting plan concerning their two minor children (“the Children”). Less than two weeks after entry of the plan, Father filed a motion for custody of the Children in the Juvenile Court for Hamilton County (“the Juvenile Court”) alleging that the parenting plan had been procured by fraud as Mother had not disclosed that she worked as a licensed prostitute in Nevada. The Magistrate found a material change in circumstances and that it was in the best interest of the Children for Father to have custody. Mother appealed to the Juvenile Court. After a trial, the Juvenile Court found a material change in circumstances based on Mother’s having worked as a prostitute and her having concealed that fact, as well as Mother’s hostility to Father and the Children’s stepmother. The Juvenile Court entered a permanent parenting plan designating Father as primary residential parent of the Children. Mother appealed to this Court. Because the Juvenile Court did not conduct a best interest analysis, we vacate the judgment of the Juvenile Court and remand for further proceedings as necessary.

Appellant, Cedric Taylor, was convicted of aggravated robbery, a Class B felony; aggravated burglary, a Class C felony; and employing a firearm during the commission of a dangerous felony, a Class C felony, for which he received an effective sentence of eleven years in the Tennessee Department of Correction. In this appeal, he challenges the sufficiency of the evidence underlying his convictions. Upon our review, we affirm the judgments of the trial court.

The Defendant, Darius Jones, was convicted by a jury of second degree murder, first degree felony murder, especially aggravated kidnapping, reckless endangerment, and two counts of aggravated kidnapping. The jury sentenced the Defendant to life with the possibility of parole on the first degree felony murder charge. Following the jury’s sentence, the trial court merged the second degree murder conviction into the first degree felony murder conviction. The trial court then sentenced the Defendant to a total effective sentence of forty-nine years, eleven months, and twenty-nine days on the remaining counts, to run consecutively to the life sentence. On appeal, the Defendant challenges the sufficiency of the evidence underlying his convictions for second degree murder, first degree felony murder, especially aggravated kidnapping, and both counts of aggravated kidnapping. Because we hold that the evidence is sufficient to sustain the Defendant’s convictions on all counts, we affirm the judgments of the trial court.

Father brought suit against Son in general sessions court for repayment of certain alleged debts. After Father’s case was dismissed, he appealed to circuit court, which also dismissed Father’s claims after a trial.  Based on the record on appeal, sufficient facts exist to support the trial court’s determination, and the decision of the trial court is affirmed.

This is an appeal from a three-day divorce trial. The trial court classified and valued the parties’ assets and divided the marital estate. The court awarded the wife $2,000 per month in transitional alimony for a period of 14 months, and it denied the parties’ requests for attorney’s fees. The wife appeals, challenging the trial court’s classification and valuation of certain assets, the alimony award, and the trial court’s decision to deny her request for attorney’s fees. Discerning no error, we affirm.

Plaintiff/Appellee Mark Andrew Miller (“Father”) filed a petition for contempt against Defendant/Appellant Annie Elizabeth Miller(“Mother”). After conducting a hearing, the trial court found Mother guilty of two counts of criminal contempt. Mother appealed asserting that the trial court lacked jurisdiction over the matter or, alternatively, that the evidence did not support a finding that she acted willfully. Although we conclude that the trialcourthad jurisdiction to adjudicate Father’s petition for contempt,we agree with Mother that the contempt convictions should be overturned. We reverse.

Defendant, William Edward Arnold, Jr., was indicted by the Davidson County Grand Jury for three counts of aggravated sexual battery and three counts of rape of a child for acts that took place while Defendant was a mentor for the victim through Big Brothers Big Sisters.  Prior to trial, Defendant sought to introduce evidence of the victim’s prior sexual knowledge pursuant to Tennessee Rule of Evidence 412.  The trial court granted the motion in part but prohibited the introduction of any extrinsic evidence at trial.  At the conclusion of the proof at trial, the trial court granted a motion for judgment of acquittal on two counts of aggravated sexual battery, finding them “impossible” under the facts as presented to the jury.  The jury convicted Defendant of the remaining charges: one count of aggravated sexual battery and three counts of rape of a child.  The trial court denied the motion for new trial and sentenced Defendant to an effective sentence of twenty-five years.  On appeal, Defendant challenges the trial court’s denial of the motion for judgment of acquittal as to the counts for which he was found guilty, the denial of the motion for new trial, and the trial court’s ruling on the admissibility of evidence under Tennessee Rule of Evidence 412.  After a thorough review of the record, the applicable authorities, and the issues, we determine the evidence is sufficient to support the convictions, and the trial court properly denied the motion for judgment of acquittal.  Further, we determine that the trial court properly determined that specific instances of conduct of prior sexual behavior of the victim were not admissible under Rule 412(c)(4).  Additionally, we agree with the trial court’s determination that due process permitted the victim to be subject to cross-examination, limited by Tennessee Rule of Evidence 608.  Accordingly, the judgments of the trial court are affirmed.

A jury convicted the defendant, William Darelle Smith, of first degree (premeditated) murder, and he was sentenced to life in prison.  On appeal, this court affirmed the denial of the motion for a new trial.  The defendant appealed a single issue to the Tennessee Supreme Court: that his right to an impartial jury was compromised because the trial court did not hold a hearing after the discovery, during jury deliberations, that a juror was not only acquainted with one of the State’s witnesses but had sent the witness a communication through Facebook complimenting her on her testimony.  The Tennessee Supreme Court concluded that the trial court had erred in refusing to hold a hearing and remanded the case.  After a hearing during which the juror and the witness testified regarding the nature of both their relationship and the communication, the trial court again denied the defendant a new trial.  The defendant appeals.  We conclude that the State sufficiently rebutted any presumption of prejudice raised by the juror’s extrajudicial communication or by his concealment of his acquaintance with the witness, and accordingly we affirm the judgment of the trial court.

This is an interlocutory appeal regarding the trial court’s denial of the defendants’ motions for summary judgment. The plaintiffs filed this lawsuit following a shooting that occurred on December 24, 2011, outside Club Fathom in Chattanooga, a youth outreach ministry operated by two of the defendants. The defendants moved for summary judgment. The trial court denied their motions, and the defendants sought and were granted an interlocutory appeal. We determine that the court erred in failing to grant summary judgment to the defendants regarding the plaintiffs’ negligence claims. We therefore reverse the judgment of the trial court. We remand the case for entry of summary judgment regarding the plaintiffs’ negligence claims and for a determination regarding the remaining lease issue.

This is a termination of parental rights appeal brought by the incarcerated father. The trial court found clear and convincing evidence to support termination of the father’s parental rights on the statutory grounds of abandonment and confinement under a sentence of ten years or more. The court further found that termination of the father’s parental rights was in the best interest of the children. The father appeals. We affirm.

The Petitioner, Grover D. Cowart, appeals the habeas corpus court’s summary dismissal of his petition for writ of habeas corpus, or, in the alternative, motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. On appeal, the Petitioner contends that (1) the judgments of conviction in Case No. 50934 are void; (2) the judgment of conviction in Count 1 of Case No. 50934 is too “indefinite nd ambiguous” to run consecutively to his conviction in Case No. 49900; (3) the judgments of conviction in Counts 2 and 3 in Case No. 50934 are too “indefinite, uncertain, and ambiguous” to run consecutively to Count 4 in Case No. 49900; and (4) the sentences in Case No. 50934 are expired. Discerning no error, we affirm the summary dismissal of the Petitioner’s petition.

This is an irreconcilable differences divorce case. The trial court entered a final judgment of divorce that incorporated the parties’ mediated marital dissolution agreement. Shortly thereafter, Husband filed a motion to set aside or to alter or amend the final judgment, claiming he was under duress when he entered into the marital dissolution agreement and also claiming that the trial court was required to conduct a hearing before entering the final judgment. The trial court disagreed and denied Husband’s motion. We affirm.

An employee injured her shoulder while working for her employer and failed to make a meaningful return to work. The Claims Commission awarded the employee 55% permanent partial disability. The employer appealed, arguing that the award is excessive 1 because the Commissioner erred in assessing an 11% anatomical impairment rating and in applying a five times multiplier. We modify the Commissioner’s judgment, and affirm as modified.

The Defendant, William Bryan Gatlin, was convicted by a Marshall County Circuit Court jury of possession of marijuana with the intent to sell and possession of marijuana with the intent to deliver, Class E felonies, and possession of drug paraphernalia, a Class A misdemeanor.  See T.C.A. §§ 39-17-417(a)(4) (possession of a controlled substance) (Supp. 2012) (amended 2014), 39-17-425 (possession of drug paraphernalia) (2014).  The trial court merged the possession of marijuana convictions.  The Defendant was sentenced to serve two years for the merged possession of marijuana conviction and eleven months, twenty-nine days for possession of drug paraphernalia.  The sentences were imposed consecutively to each other and to any unexpired sentence.  On appeal, the Defendant contends that the trial court erred in denying his motion to suppress evidence obtained during a knock-and-talk encounter and a warrantless entry into his apartment and that the judgments should be reversed because without the illegally obtained evidence, the remaining evidence is insufficient to support his convictions.  We affirm the judgments of the trial court.

This appeal involves various financial issues relative to a divorce. Husband appeals the trial court’s determination of several factual findings relative to alimony, including Wife’s ability to secure employment, Husband’s ability to earn in the future, the award of attorney’s fees to Wife, and the value of several marital assets divided in the property division, including the value of an LLC jointly owned by the parties. Wife also appeals the trial court’s determination of value and the division of the parties’ joint interest in the LLC, which the trial court awarded to Husband without assigning a value. We vacate the judgment of the trial court and remand for appropriate findings of fact and conclusions of law.

Dennis Turner was injured while playing softball in a charity tournament at Marvin Rich Field in Bean Station. He sued the City of Bean Station, among other defendants, alleging that the City negligently failed to properly maintain the pitcher’s mound, pitcher’s rubber, and the field as a whole, resulting in his injury. The City moved for summary judgment, arguing that its governmental immunity is not removed by the Governmental Tort Liability Act (GTLA), which removes immunity for “any injury caused by the dangerous or defective condition of any public building, structure, dam, reservoir or other public improvement owned and controlled by [a] governmental entity.” Tenn. Code Ann. § 29-20-204(a)(2012) (emphasis added). The City presented proof establishing that it does not own Marvin Rich Field. The trial court denied the motion but granted permission for an interlocutory appeal. We reverse the trial court’s judgment and grant the City’s motion for summary judgment.

The petitioner, Jeffery Yates, appeals the trial court’s denial of his petition for habeas corpus relief. He contends that the court abused its discretion by dismissing his petition without conducting a hearing. He claims that he is entitled to habeas corpus relief because his current sentence is illegal because it was enhanced based upon prior illegal sentences and that the illegal sentences were improperly used to impeach him at trial. After reviewing the record and the applicable law, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Mother’s parental rights to her children were terminated on grounds of abandonment by failure to visit, persistence of conditions, and noncompliance with a permanency plan. Mother challenged the ground of abandonment, arguing there was a no contact order in place that prevented her from visiting her children. When the no contact order was put into place, Mother was informed she would be able to visit her children if she passed drug tests and took parenting classes. Mother continued to test positive for illegal drugs and failed to take advantage of services offered by the Department of Children’s Services. We affirm the trial court’s judgment that Mother abandoned her children by failing to visit them and that it is in their best interest to terminate her rights. A petition for custody that may have been pending when Mother’s rights were terminated is part of a different proceeding and does not render the court’s decision to terminate Mother’s rights premature.

Lashay Nicole Scruggs (“the Defendant”) appeals from the trial court’s denial of judicial diversion. On appeal, the Defendant argues that the trial court abused its discretion by (1) placing heavy emphasis on charges listed as “pending” in the pre-sentence report but that were actually disposed of prior to the sentencing hearing; (2) placing emphasis on the presence of marijuana in the Defendant’s system when marijuana use was not an element of vehicular manslaughter as charged in this case; and (3) placing emphasis on the need to deter others from driving irresponsibly when there was no evidence of such a need in the record. Upon review, we find that the trial court did not abuse its discretion and affirm the judgment of the trial court.

This is a parental termination case. It focuses on the three children of a married couple, D.G.B. (Mother) and D.C.B. (Father), and Mother’s child (V.L.J.) from an earlier relationship. The four children came into the custody of the Department of Children’s Services (DCS) in 2009. Nearly four years later, DCS filed a petition to terminate the rights of the parents. Following a trial, the court granted the petition based upon its finding (1) that multiple grounds for termination exist and (2) that termination is in the best interest of the children. Both findings were said by the trial court to be made by clear and convincing evidence. Mother and Father appeal. We affirm.

This is an appeal from an order denying a motion to compel arbitration. The beneficiaries of a trust filed this lawsuit against the trustee alleging trustee self-dealing arising from a transaction in which the trustee and his wife purchased certain real property from the trust as tenants by the entirety. The beneficiaries sought to set aside a portion of the sale. The trustee filed a motion to compel arbitration pursuant to an arbitration clause in the trust agreement. The beneficiaries opposed the motion, arguing that they could not be compelled to arbitrate their claims against the trustee’s wife. The trial court agreed and denied the motion. The court found that the trustee’s wife was a necessary party to the resolution of the dispute, but because she was not a party to the trust agreement, there was no enforceable arbitration agreement between her and the beneficiaries. We affirm the decision of the trial court.

Suit for breach of contract to recover on a homeowners policy for losses sustained when policyholder’s home was allegedly burglarized and was allegedly damaged as a result of a storm. Upon defendant’s motion, the trial court granted summary judgment, holding that the insurance company defendant had demonstrated that policyholder could not meet his burden of proof as to any of his claims.  After a thorough review of the record, we discern no error and affirm the judgment of the trial court.

Antonio Williams (“the Petitioner”) pleaded guilty to three counts of possession with intent to sell a Schedule II controlled substance within a drug-free zone and agreed to a revocation of probation on a prior sentence. Pursuant to his plea agreement, the Petitioner received a total effective sentence of ten years to be served at 100%. In this appeal from the denial of post-conviction relief, the Petitioner contends that the post-conviction court erred in finding: (1) that his plea was intelligently and voluntarily made; and (2) that trial counsel’s performance was not deficient. After a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

The Defendant, Angel Geovanna Hurtado, was convicted by a Davidson County jury of three counts of aggravated child abuse, one count of reckless aggravated assault as a lesser-included offense of aggravated child abuse, and one count of aggravated child neglect.  The trial court imposed an effective sentence of twenty-five years for her convictions.  In this direct appeal, the Defendant contends that (1) the trial court committed plain error by failing to grant a mistrial given the “significant problems that arose during trial revealing the existence of potential new witnesses and exculpatory evidence”; (2) the trial court erred by permitting the State to elicit testimony about and argue that evidence of domestic violence established the Defendant’s guilty knowledge, under a theory of criminal responsibility, of the child abuse and neglect of the victim by her live-in boyfriend; and (3) the evidence was insufficient to support the convictions, including a challenge of material variance between the proof and the State’s election of offenses.  Following our review of the record and the applicable authorities, the judgments of the trial court are affirmed.  However, we must remand for entry of a corrected judgment in count two to reflect the proper conviction of reckless aggravated assault.