APPELLATE COURT OPINIONS

The petitioner appeals the denial of post-conviction relief, contending that: (1) the post-conviction court erred in modifying the illegal probationary period rather than vacating it; and (2) his plea to a violation of the Motor Vehicle Offender Act was not knowingly and voluntarily entered. Upon thorough review, we affirm the denial of post-conviction relief but modify the petitioner's probationary period from five hundred fifty-two days to five years, one hundred eighty-seven days.

This appeal involves a prisoner seeking custodial parole. After the Tennessee Board of Probation and Parole denied his request, the prisoner filed a petition for a common-law writ of certiorari in the Chancery Court for Hickman County seeking judicial review of the Board's decision. The trial court dismissed the petition because it was not timely filed, and the prisoner has appealed. We agree with the trial court's conclusion that the petition was not timely filed.

This appeal involves a prisoner seeking to be released on parole. After the Tennessee Board of Probation and Parole declined to grant him parole, the prisoner filed a petition for a common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the Board's decision. The trial court dismissed the petition on the ground that it was not timely filed, and the prisoner appealed. We agree with the trial court's conclusion that the petition was not timely filed.

In 2001, a pharmacy, when filling the plaintiff’s prescription, gave the plaintiff the wrong medication. The plaintiff began taking the medication as directed, but she soon developed symptoms related to taking the wrong medication. The plaintiff subsequently filed suit against the pharmacy alleging negligence, misrepresentation, and strict liability, and she sought compensatory, consequential, and punitive damages. The pharmacy served the plaintiff with discovery requests specifically designed to discover the basis for the plaintiff’s claim for punitive damages, and the plaintiff responded. The pharmacy deemed the plaintiff’s responses inadequate, and it filed a motion to deem facts admitted, a motion for summary judgment on the plaintiff’s claim for punitive damages, and a motion for summary judgment on the plaintiff’s negligence claim. In response, the plaintiff filed a motion to strike the motions for summary judgment. At a hearing on the pharmacy’s motion to deem facts admitted and the plaintiff’s motion to strike, the trial court orally indicated its intention to grant the pharmacy’s motion for summary judgment on the plaintiff’s claim for punitive damages. Thereafter, the plaintiff orally stated that she wished to take a voluntary nonsuit of her remaining claims. The plaintiff has filed an appeal to this Court asking us to review the grant of partial summary judgment to the pharmacy on her claim for punitive damages. We have determined that, due to the plaintiff’s decision to nonsuit her remaining claims, the present appeal is presently moot. Moreover, we find that this appeal is so devoid of merit that it warrants the imposition of damages for the filing of a frivolous appeal.

This appeal involves a dispute between a widow and the Tennessee Department of Human Services regarding the Department’s denial of her deceased husband’s application for Medicaid nursing home benefits. The widow filed a petition for review in the Chancery Court for Robertson County asserting that the Department erred by classifying as available resources four tax deeds for real property in Georgia being held in her revocable trust. The trial court found that the Department’s classification of the four tax deeds as available resources was supported by substantial and material evidence. The widow asserts on this appeal that the tax deeds should not have been classified as available resources because they were “unavailable” and because they were income-producing property. Like the trial court, we have determined that the Department’s classification of the four tax deeds for real property in Georgia was correct.

This appeal involves a prisoner seeking to be released on parole. After the Tennessee Board of Probation and Parole declined to release him on parole, the prisoner filed a petition for a common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the Board's decision. The trial court dismissed the petition because it was not timely filed, and the prisoner has appealed. We agree with the trial court's conclusion that the petition was not timely filed.

This appeal involves a dispute between a prisoner and the Tennessee Department of Correction regarding his eligibility to be considered for parole. The prisoner filed a civil rights action in the Circuit Court for Davidson County against the Department and three of its employees seeking declaratory relief and damages because he had not been declared eligible to be considered for parole. The Department's employees moved to dismiss the complaint because the prisoner had failed to specify whether they were being sued in their personal or official capacities. The court dismissed the complaint after being informed that the prisoner had been considered for and had been denied parole. We have determined that the trial court properly dismissed the complaint.

This case stems from a business deal gone sour. This is the third time that these parties have brought identical claims against one another. In the previous versions of this suit, the cases were dismissed without prejudice. At this trial, both the plaintiff’s claims and the defendants’ counter claims and third-party claims were dismissed with prejudice based on the doctrine of laches. Upon a motion to alter or amend judgment, the trial court modified its order to dismiss all claims without prejudice based on a failure to prosecute. In this appeal, appellants ask this Court to determine (1) whether the chancery court erred when it amended its judgment with prejudice granting the appellants’ motion to dismiss based on the doctrine of laches to a judgment without prejudice based on a failure to prosecute and (2) whether the chancery court erred when it dismissed the plaintiff’s complaint sua sponte. The appellants argue that the chancery court should not have amended its judgment dismissing the defendants’ counter and third-party claims because the facts presented at trial warranted a dismissal based on the doctrine of laches. Further, the appellants argue that the trial court should not have dismissed the plaintiff’s complaint sua sponte based on the doctrine of laches because the defendants did not demonstrate at trial any undue prejudice to them. We affirm.

Petitioner, Ernie Lynnwood Eaton, filed a pro se petition for post-conviction relief, as amended after the appointment of counsel, alleging that his trial counsel rendered ineffective assistance of counsel in connection with the negotiation and entry of Petitioner's plea of guilty to three counts of the sale of less than 0.5 grams of cocaine, a Class C felony. Petitioner also alleged that his effective sentence of four years and six months violates the provisions of Tennessee Code Annotated section 40-35-211(1) and is therefore illegal. After an evidentiary hearing, the post-conviction court denied Petitioner’s petition. In his appeal, Petitioner challenges only the post-conviction court’s finding that Petitioner’s sentence was authorized by law. After review, we affirm the judgment of the post-conviction court.

The petitioner, Johnny Dee Roberts, appeals from the Davidson County Criminal Court's dismissal of his petition for post-conviction relief, in which the petitioner had attacked his 2002 convictions of aggravated rape and aggravated sexual battery. The post-conviction court determined that (1) the petitioner failed to establish either the deficient performance of trial counsel or that he was prejudiced by the actions of counsel and that (2) the issue of prosecutorial misconduct had been previously determined on direct appeal. Because the record supports the post-conviction court's ruling, we affirm the denial of relief.

In this appeal, we are asked to determine whether the chancery court erred when it modified the original custody order between the parties. Appellant contends that there are no material changes of circumstances to warrant modification of the original custody order. We affirm.

Following a jury trial, Defendant, Anthony D. Brown, was convicted of one count of aggravated burglary, a Class C felony, and one count of carrying a knife with the intent to go armed, a Class C misdemeanor. The trial court sentenced Defendant to fifteen years for his aggravated burglary conviction and thirty days for his misdemeanor conviction. Defendant does not challenge the sufficiency of the convicting evidence or the trial court’s sentencing determinations. On appeal, Defendant argues that the trial court erred in not declaring a mistrial pursuant to Rule 31(d) of the Tennessee Rules of Criminal Procedure when one of the jurors indicated to the trial court that she did not agree with the verdicts after the jury had been polled and discharged. After a thorough review, we affirm the judgments of the trial court.

This is an appeal as of right from the denial of post-conviction relief. The Petitioner, Mark Medley, was convicted of one count of rape of a child pursuant to a guilty plea. He was sentenced as a Range I, standard offender to fifteen years imprisonment. The Petitioner now appeals denial of his petition for post-conviction relief raising the single issue of ineffective assistance of counsel. He argues that his trial counsel's failure to inform him that the charge to which he pled guilty may have been time-barred amounted to deficient representation which resulted in prejudice to him. We reverse the post-conviction court's conclusions of law regarding the statute of limitations applicable to this case and remand for further findings of fact pertaining to the claim of ineffective assistance of counsel.

The defendant, Freddie Eugene Asbury, appeals the Sullivan County Criminal Court's order revoking his probation. On appeal, the defendant claims that although he violated his probation, the trial court abused its discretion by revoking his probation and ordering him to serve his sentence in confinement. We affirm the judgment of the trial court.

The Defendant, Fallon L. Tallent, was convicted by a Wilson County Jury of two counts of first degree murder. On appeal, the Defendant contends that the trial court erred when it: (1) allowed Kathleen Griffith, a witness not listed in discovery, to testify; and (2) ordered the Defendant's two life sentences to be served consecutively. Finding no reversible error, we affirm the judgments of the trial court.

This appeal stems from a declaratory judgment action determining the rights of the parties to a life insurance contract. On appeal, the insurer asserts that the chancery court erred when it found that the agent for the insureds was acting outside the course and scope of her authority when she terminated the life insurance contract. Further, the insurer asserts that, even assuming that the agent was acting outside the course and scope of her authority, the insureds ratified her actions. We reverse and declare that the insurance policywas not in effect at the time of Mr. Puckett’s death. We remand for a determination of whether Ms. Puckett’s actions constituted a violation of section 56-53-103 of the Tennessee Code, and if so, the related expenses the insurer is entitled to receive pursuant to section 56-53-103.

The petitioner appeals the Roane County Criminal Court's denial of his petition for post-conviction relief from his conviction for first degree premeditated murder and resulting life sentence. He contends that he received the ineffective assistance of counsel because his trial attorney (1) failed to file a motion to suppress his statement to police; (2) failed to schedule a hearing to set bond; (3) failed to obtain a second psychological evaluation for him; and (4) failed to file a motion for change of venue. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

This appeal involves an employment dispute. Following his termination, the employee filed suit against his former employer in the Circuit Court for Williamson County alleging retaliatory discharge, breach of contract, and conversion. The trial court directed a verdict for the employer at the close of the employee's case-in-chief, and the employee appealed. We have determined that the trial court's decision to grant a directed verdict was proper.

Appellant Bruce Goodman ("Husband") filed for divorce from Appellee Judy Goodman ("Wife") after twenty-six years of marriage. The parties entered into a permanent parenting plan and subsequently went to trial seeking a property settlement and a decree on spousal support. The trial court awarded each party approximately $1.4 million from the marital estate and also granted Wife $4,000 per month in alimony in futuro. Husband appeals the alimony award. We affirm.

William M. Hensley and Mary Hensley ("Plaintiffs") sued Robert Carrier ("Defendant") regarding the use of a driveway. The case was tried without a jury and the Trial Court found and held that it was the intent of the original grantors that the driveway be a joint driveway; that if this holding was incorrect, that the Plaintiffs had established a right to the driveway through adverse possession; that if the prior two holdings were incorrect, that Plaintiffs had proven a prescriptive easement or an implied easement to use the driveway. Defendant appeals claiming that the Trial Court erred in finding a prescriptive easement or an implied easement, and also that the Trial Court erred in not dismissing Plaintiffs' claims based upon the statute of limitations. We affirm.

The Dyer County Grand Jury indicted the defendant for attempting to obtain a controlled substance by misrepresentation fraud, forgery, deception or subterfuge. Following a jury trial on July 28, 2004, the defendant was found guilty as charged. The trial court sentenced the defendant to four years as a Range II multiple offender. The defendant filed a notice of appeal. On appeal, the defendant argues that the evidence was insufficient to support her conviction and that the trial court erred in allowing the prosecution to cross-examine her regarding her prior convictions contrary to Rule 609 of the Tennessee Rules of Evidence. We find that there was sufficient evidence and the trial court did not err in allowing the entry of the prior convictions into evidence. We affirm the judgment of the trial court.

The Appellant, Lamario Sumner, was convicted bya Shelby County jury of two counts of aggravated robbery and received an effective forty-year sentence. On appeal, Sumner has raised five issues for our review: (1) whether Sumner’s prior conviction for aggravated robbery was admissible for impeachment purposes; (2) whether the trial court erred by precluding examination of the police investigator regarding exculpatory statements made by Sumner; (3) whether the elements of a prior felony conviction, introduced solely for purposes of impeachment, may be developed through examination of the witness; (4) whether the trial court properly responded to a jury question regarding criminal responsibility; and (5) whether the evidence is sufficient to support the convictions. After review of the record, we find no error and affirm the convictions.

While I concur in most of the majority opinion, I write separately to express my disagreement with a portion of the analysis by the majority. Specifically, I am not comfortable with the analysis pertaining to the trial court’s order requiring DNA testing.

The State appeals the Shelby County Criminal Court’s grant of post-conviction relief to the Petitioner, Tommy Nunley. In February 1998, Nunley was convicted by a Shelby County jury of aggravated rape and was sentenced to twenty-five years imprisonment. A petition for post-conviction relief was filed alleging grounds of ineffective assistance of counsel. Nunley’s principal claim asserts that trial counsel was ineffective for failing to seek state-funded expert assistance for “DNA testing of specimens collected” by the police. At the conclusion of one of the several hearings conducted by the post-conviction court, the court, on its own motion, directed DNA testing of biological specimens shown to be in the custody of the State. The court was subsequently informed that the specimens had been “misplaced and/or destroyed.” Upon learning of this fact, the post-conviction court granted Nunley’s petition for post-conviction relief concluding “that said evidence could and should have been tested at the time of [Nunley’s] trial, and that because said evidence has been lost and/or destroyed, petitioner’s constitutional right to a fair trial was violated.” Because we conclude that the proof fails to establish prejudice under the standards of Strickland v. Washington, the grant of post-conviction relief is reversed, and the judgment of conviction is reinstated.