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Posted by: Karen Belcher on May 19, 2023

At issue is the validity of an amendment to a revocable trust. The specific issue is whether the Settlor’s attorney-in-fact was authorized to execute an amendment to the Robert McKeel Bone Living Trust. The trial court held that the amendment was valid. We agree. Accordingly, we affirm.

Posted by: Karen Belcher on May 19, 2023

In this appeal, we address the standards for severe child abuse as a ground for termination of parental rights. The statute defining severe child abuse includes “knowing” failure to protect a child from abuse or neglect likely to cause serious injury or death. Tenn. Code Ann. § 37-1-102(b)(22)(A)(i) (Supp. 2016). The statutes do not define “knowing.” We hold that, for severe child abuse, a person’s conduct is considered “knowing,” and a person is deemed to “knowingly” act or fail to act, when he actually knows of relevant facts, circumstances or information, or when he is either in deliberate ignorance of or in reckless disregard of such facts, circumstances, or information presented to him. Under this standard, the relevant facts, circumstances, or information would alert a reasonable parent to take affirmative action to protect the child. For deliberate ignorance, a parent can be found to have acted knowingly when he has specific reason to know the relevant facts, circumstances, or information but deliberately ignores them. For reckless disregard, if the parent has been presented with the relevant facts, circumstances, or information and recklessly disregards them, the parent’s failure to protect can be considered knowing. Here, the trial court terminated the parental rights of the parents of an infant who suffered over twenty rib fractures, in part for knowing failure to protect the child. The Court of Appeals affirmed. We reverse, holding under the particular circumstances of this case that the proof in the record does not clearly and convincingly show that the parents’ failure to protect the child was “knowing.”

Posted by: Karen Belcher on May 12, 2023

The defendant, Philip Mainer, appeals his conviction of aggravated cruelty to animals that he received following a bench trial before the Sullivan County Criminal Court. On appeal, the defendant challenges the sufficiency of the evidence supporting his conviction. Upon review, we affirm the judgment of the trial court.

Posted by: Karen Belcher on May 12, 2023

Kenneth J. Mynatt (“Plaintiff”) served as the vice president of the local chapter of his union. He filed an action for malicious prosecution and civil conspiracy against the union, the local chapter, and several individuals associated with the union. He alleged that after he publicly criticized the union’s financial waste, its leadership accused him of misusing union funds. Those accusations led to his indictment on two felony charges. In the resulting criminal case, the State filed a motion to retire the charges for one year, and those charges were ultimately dismissed after the year passed. In Plaintiff’s complaint for malicious prosecution, he stated that he continued to maintain his innocence, that he refused any plea deals, and that the criminal case terminated in his favor because it was ultimately dismissed. The defendants filed a motion to dismiss, arguing that the retirement and dismissal of the criminal charges was not a favorable termination on the merits. Thus, they argued his complaint was missing an essential element of a malicious prosecution claim. The trial court agreed and dismissed the complaint. The Court of Appeals reversed, concluding that Plaintiff sufficiently alleged that the underlying criminal proceedings terminated in his favor. The defendants sought review from this Court, arguing that the Court of Appeals did not apply the correct standard for determining what constitutes a favorable termination for the purpose of a malicious prosecution claim. We conclude that the prohibition in Himmelfarb v. Allain, 380 S.W.3d 35 (Tenn. 2012), precluding a factintensive and subjective inquiry into the reasons and circumstances leading to dispositions in civil cases also applies to dispositions in criminal cases. We hold that plaintiffs can pursue a claim for malicious prosecution only if an objective examination, limited to the documents disposing of the proceeding or the applicable procedural rules, indicates the termination of the underlying criminal proceeding reflects on the merits of the case and was due to the innocence of the accused. Under this standard, Mr. Mynatt did not allege sufficient facts for a court to conclude that the dismissal of his criminal case was a favorable termination. We therefore reverse the holding of the Court of Appeals and affirm the trial court’s judgment granting the motion to dismiss.

Posted by: Karen Belcher on May 12, 2023

The Defendant, Jeremiah Sweet, appeals as of right from the Blount County Circuit Court’s revocation of his probation and execution of his four-year sentence for aggravated statutory rape, simple possession of a Schedule VI controlled substance, and theft of property valued at $1000 or less. Although the Defendant admits to violating the terms of his probation, he argues that the trial court abused its discretion by ordering him to serve the balance of his sentence in confinement. After review, we affirm.

Posted by: Karen Belcher on May 12, 2023

In August of 2018, the Tennessee Department of Children’s Services (“DCS”) secured an ex parte order placing B.B.,1 the minor daughter of Wendy Dawn Hancock, Defendant, in the custody of DCS after a referral prompted an investigation. During the span of several days, Defendant and B.B. stayed at both a hotel in Lebanon and Defendant’s attorney’s, Connie Reguli’s (“Ms. Reguli’s”) home in Brentwood without ever being formally served with the ex parte order. Police eventually located B.B. and Defendant in Brentwood. Defendant was indicted for one count of custodial interference, in violation of Tennessee Code Annotated section 39-13-306. Ms. Reguli was also charged with several offenses for her actions. Defendant sought a dismissal of the indictment before trial. The trial court denied the motion. After a jury trial, Defendant was found guilty of custodial interference. She was sentenced to two years on supervised probation. The trial court denied the motion for new trial; Defendant appealed. On appeal, Defendant argues that: (1) the indictment should be dismissed because it fails to allege all of the elements of custodial interference; (2) the trial court improperly instructed the jury on the elements of custodial interference; (3) the trial court improperly instructed the jury that the ex parte custody order was “valid and enforceable”; (4) the evidence was insufficient to support the conviction; and (5) Tennessee should adopt an advice of counsel defense for specific intent crimes. Because the trial court improperly instructed the jury essentially removing one of the elements of the offense and lowering the burden of proof, we reverse the judgment of the trial court and vacate Defendant’s conviction. We remand the case to the trial court for any further proceedings that may be necessary.

Posted by: Karen Belcher on May 12, 2023

A mother appeals the chancery court’s decision to terminate her parental rights based on the grounds of abandonment by failure to visit and support and severe child abuse. The mother also challenges the chancery court’s finding by clear and convincing evidence that termination of her parental rights was in the best interest of the child. The petitioners challenge the chancery court’s dismissal of persistence of conditions ground for termination. We reverse the court’s decision to terminate based on abandonment by failure to visit and support, but we affirm the court’s decision in all other aspects.

Posted by: Karen Belcher on May 12, 2023

This case involves enforcement of an arbitration award arising from a defaulted promissory note. The plaintiff brought suit against the defendant for breach of contract and enforcement of a promissory note. Ultimately, the parties participated in binding arbitration per the terms of their agreement. The plaintiff obtained an award in arbitration against the defendant. Thereafter, the plaintiff filed a motion in the trial court to confirm and enforce the arbitration award. The trial court granted the plaintiff’s motion, and the defendant now appeals. Having reviewed the record, we determine that the defendant has waived his argument on appeal and affirm the trial court’s order.

Posted by: Karen Belcher on May 12, 2023

In this interlocutory appeal, the employee asserts he is entitled to additional medical and temporary disability benefits. The employee fell at work and sustained a left clavicle fracture. The employer accepted the claim as compensable and provided authorized treatment for his condition, including surgery, physical therapy, and referrals to other specialists for evaluation of complaints of dizziness and back pain. After being placed at maximum medical improvement, the employee sought additional medical treatment on his own and requested that he be given a new authorized physician. Following an expedited hearing, the trial court concluded that the employee failed to identify a legal basis that would justify changing his authorized physician and that, as a result, he did not prove he is likely to prevail at trial on his claim for additional medical benefits. The employee has appealed. Having carefully reviewed the record, we affirm the trial court’s decision and remand the case.

Posted by: Karen Belcher on May 11, 2023
CLAY, Circuit Judge. Plaintiff DayCab Company, Inc. appeals the district court’s entry of summary judgment for Defendants Prairie Technology, LLC, Big Truck Parts, LLC, and William and Wanda Osman in Plaintiff’s case alleging trade dress infringement under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and under the Tennessee Consumer Protection Act, Tenn. Code Ann. § 47-18-104. For the reasons set forth below, we AFFIRM IN PART and REVERSE IN PART the district court’s grant of summary judgment and REMAND for further proceedings consistent with this opinion.

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