APPELLATE COURT OPINIONS

The Defendant, Clarence W. Carter, was tried and convicted of one count of conspiracy to sell cocaine and one count of possession of cocaine. He was sentenced as a Range II, multiple offender to consecutive sentences of thirty-two years for the conspiracy conviction and sixteen years for the possession conviction. This Court affirmed the Defendant's convictions and sentences on direct appeal. See State v. Clarence W. Carter, No. M2000-02230-CCA-R3-CD, 2002 WL 31370469 (Tenn. Crim. App., Nashville, Oct. 21, 2002). The Tennessee Supreme Court granted review, and upheld the Defendant's convictions and sentence on the possession conviction, but determined the trial court committed error in sentencing the Defendant as a Range II offender for his conspiracy conviction when he did not receive notice of intent to seek enhanced punishment by the State in the superceding indictment under which he was tried. See State v. Carter, 121 S.W.3d 579 (Tenn. 2003). Upon remand, the Defendant was re-sentenced on his conspiracy conviction as a Range I, standard offender to twenty-five years imprisonment to be served consecutively to his prior sentences. In this appeal the Defendant raises two issues, claiming that upon re-sentencing the trial court erred by: 1) imposing an excessive sentence for his conspiracy conviction, and 2) imposing consecutive sentencing. We affirm the judgment of the trial court.

This is a will construction case. The testator died in 1912, leaving a holographic will. In the will, the testator left his real estate to his children for life, then to his grandchildren for life, then to his great-grandchildren until they became of age, then to be divided “as law directs.” In 1992, after the last grandchild had died, the great-grandchildren of the testator petitioned the trial court to interpret the will and set out the rights of the parties. The trial court concluded that the testator intended to leave the remainder interest in his property to the great-grandchildren per stirpes. The appellant great-grandchild filed the instant appeal, claiming that the trial court should have construed the devise as being per capita, not per stirpes. We affirm, concluding that the trial court’s finding of a per stirpes division of the property is consistent with the laws of intestate succession in Tennessee.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer asserts that the trial court erred in finding that the employee suffered any permanent partial disability and in awarding to the employee sixty-four (64%) percent permanent partial disability to the body as a whole as a result of an injury sustained during the course of her employment with Trinity Industries, Inc. We conclude that the evidence presented supports the findings of the trial judge and, in accordance with Tennessee Code Annotated §50-6-225(e)(2), affirm the judgment of the trial court.

The defendant, William Ferris, was convicted by a Shelby County Criminal Court jury of two counts of especially aggravated kidnapping, a Class A felony; two counts of aggravated burglary, a Class C felony; and one count of aggravated robbery, a Class B felony. The trial court sentenced him as a violent offender to twenty-five years for each of the especially aggravated kidnapping convictions and as a Range II, multiple offender to ten years for the aggravated burglary convictions and twenty years for the aggravated robbery conviction. The court merged the two counts of especially aggravated kidnapping and the two counts of aggravated burglary and ordered that the kidnapping, burglary, and robbery sentences be served consecutively to each other for an effective sentence of twenty-five years in the Department of Correction. The defendant raises essentially three issues on appeal: (1) whether the evidence is sufficient to sustain his convictions; (2) whether the trial court erred by not declaring a mistrial sua sponte upon admission of testimony about the defendant’s pending indictment for attempted second degree murder; and (3) whether the trial court erred in ordering consecutive sentencing. Following our review, we affirm the judgments of the trial court.

The Petitioner, an inmate in custody of the Tennessee Department of Correction, appeals from the order of the trial court dismissing his petition for common law writ of certiorari as being untimely filed. We affirm.

I concur in the majority’s opinion. I write separately to stress that which is missing in this case, i.e., evidence, be it in the form of expert testimony or otherwise, showing that the subject child has been, or can reasonably be expected to be, adversely affected by his mother’s lifestyle. In my opinion, the trial court’s judgment must be reversed because of a lack of proof to support its critical finding of adverse effect.

The petitioner was convicted of possession of twenty-six (26) grams or more of cocaine with intent to deliver. He appealed this conviction. We affirmed his conviction in State v. Bigsby, 40 S.W.3d 87 (Tenn. Crim. App. 2000). The petitioner then filed a petition for post-conviction relief. The trial
court denied the petitioner’s petition. On appeal, we remanded the petition for the trial court to enter findings of fact. Frank Robert Bigsby v. State, No. M2002-02260-CCA-R3-PC, 2003 WL 22927139 (Tenn. Crim. App., at Nashville, Dec. 11, 2003). The trial court entered its findings, and we now address the appeal on the merits. The petitioner’s sole issue in his appeal from the trial court’s denial of his post-conviction petition is that he was offered ineffective assistance of counsel. We have reviewed the record in this case and conclude that the trial court’s denial of the petitioner’s petition was proper. Therefore, we affirm the trial court’s decision.

The petitioner appeals the summary dismissal of his petition for post-conviction relief, arguing that he should have been appointed post-conviction counsel and given an evidentiary hearing. Following our review, we remand this matter to the post-conviction court to determine whether the petitioner’s right to due process of law requires that the petition be considered regardless of its untimeliness.

The petitioner, Michael Braxton, was convicted by a jury in the Davidson County Criminal Court of aggravated rape and aggravated assault. He received a total effective sentence of twenty-three years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief, which petition the post-conviction court summarily dismissed as being untimely. The petitioner appeals the dismissal, arguing that his petition was not barred by the statute of limitations. Upon our review of the record and the parties' briefs, we reverse the judgment of the post-conviction court and remand for a hearing on the timeliness of the petitioner's petition.

I concur with the majority opinion on all issues raised except the final issue of enforceability of the contract, having only been signed by Flanary.

The Petitioner, Domingo Ponce, filed a petition for writ of error coram nobis, which the trial court summarily dismissed. On appeal, the Petitioner contends that the trial court erred when it dismissed his petition. Finding no reversible error, we affirm the judgment of the trial court.

Gary Flanary filed suit against Carl Gregory Dodge of Johnson City, LLC (“the dealership”) and alleged that the dealership, without negotiation and without his consent or knowledge, had charged him an “administrative fee” in connection with his purchase of a vehicle. Flanary claimed that this practice violated, inter alia, the Tennessee Consumer Protection Act (“the TCPA”). He sought class action certification. The dealership filed a motion for summary judgment, relying upon the arbitration agreement (“the Agreement”) signed by Flanary to support its position that Flanary was required to arbitrate his claims. The trial court stated that it personally did not believe an agreement to arbitrate under the circumstances of this case was fair; but, nevertheless, it opined that it felt compelled by the current state of the law to hold that arbitration was mandated by the terms of the Agreement. Flanary appeals the trial court’s order requiring him to submit to arbitration. We affirm the judgment below to the extent the trial court, albeit reluctantly, held that the Agreement, on its face, is enforceable. However, based upon our determination that there is a genuine issue of material fact as to whether there was mutuality with respect to the obligation to arbitrate, we vacate so much of the trial court’s judgment as holds that the parties entered into a contract to arbitrate. Accordingly, we remand for further proceedings on Flanary’s complaint.

The Defendant, Kenneth Strickland, was convicted by a jury of possession of .5 grams or more of cocaine with the intent to sell or deliver, and sentenced to twelve years in the Department of Correction. The judgment against the Defendant was affirmed on direct appeal. See State v. Kenneth Strickland, No. M2002-00543-CCA-R3-CD, 2003 WL 21997739 (Tenn. Crim. App., Nashville, Aug. 22, 2003). The Defendant subsequently filed for post-conviction relief claiming that he had been denied the effective assistance of counsel at trial. After an evidentiary hearing the trial court denied relief and this appeal followed. We affirm the judgment of the trial court.

Petitioner, Andrew Charles Helton, filed a pro se petition for post-conviction relief, which was amended after appointment of counsel. Following an evidentiary hearing, the trial court dismissed the petition. On appeal, Petitioner argues (1) that the prosecutor misrepresented to the jury during closing argument evidence concerning the 911 tape; (2) that the prosecutor improperly pointed the murder weapon at the jury during closing argument; (3) that his trial counsel was ineffective for failing to object to the prosecutorial misconduct which occurred during closing argument; and (4) that his trial counsel provided ineffective assistance when he objected to the jury's request during deliberations to review the tape of a neighbor's call to the 911 operator on the night of the shootings. After a thorough review of the record, we affirm the judgment of the post-conviction court.

The petitioner, Terry Lee Robinson, was convicted in the Davidson County Criminal Court of first degree murder and received a life sentence. Following an unsuccessful appeal of his conviction, the petitioner filed a petition for post-conviction relief, alleging ineffective assistance of counsel at trial. The petitioner now brings this appeal challenging the post-conviction court's denial of his petition. After reviewing the record and the parties' briefs, we affirm the judgment of the post-conviction court.

The petitioner appeals the denial of his petition for post-conviction relief from his conviction for delivery of .5 grams or more of a Schedule II controlled substance, cocaine, arguing that the post-conviction court erred in finding he received effective assistance of trial counsel. Following our review, we affirm the denial of the petition.

This is a post divorce child custody case. The trial court changed custody to the father based upon the mother's homosexuality and the effect it would have on the child as he grew older. We hold that the evidence preponderates against the trial court's finding that there had been a material change in circumstances to justify a change of custody in the absence of proof that the mother's sexual orientation had affected or would affect the child's well-being in any meaningful way. Accordingly, the trial court's decision is reversed.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff complained of wrist pain which was subjectively diagnosed as cumulative trauma. The treating physician found no impairment, as did neither of the first two physicians to whom the plaintiff was referred. The third physician, Dr. Fishbein, relying on subjective complaints, made four years after the plaintiff left her job, found a 5 percent impairment in each arm. We find the evidence preponderates against the judgment.

Appellants are residuary beneficiaries of their father's estate. They challenge the estate's payment of attorney fees and expenses incurred by executrix (the widow of testator and stepmother of Appellants) in unsuccessfully defending against her removal as executrix. Appellants contend that because litigation concerning the removal of their stepmother as executrix was solely for the personal benefit of the executrix and was necessitated by her neglect in administering the estate, the trial court erred as a matter of law in ordering the attorney fees and expenses incurred in defending against the removal petition be paid out of the estate. Appellee, the former executrix, contends that the trial court did not err in exercising its discretion in ordering legal fees to be paid out of estate. Finding that the trial court erred in ordering the expenses paid out of the estate, we reverse and remand.

The defendant, Robert Williams, was convicted by a Shelby County Criminal Court jury of aggravated burglary, a Class C felony, and sentenced by the trial court as a career offender to fifteen years in the Department of Correction. The sole issue he raises on appeal is whether the circumstantial evidence presented in his case was sufficient to support his conviction. Following our review, we affirm the judgment of the trial court.

The trial court dismissed Plaintiff’s petition to register and modify a foreign decree of child support for lack of jurisdiction. We reverse in part, affirm in part, and remand.

The petitioner, William L. Smith, appeals the denial of his petition for writ of habeas corpus. Because the petitioner's sentence for rape of a child is illegal, the judgment of the habeas corpus court is reversed, relief is granted, and the cause is remanded to the Bledsoe County Circuit Court for transfer to the Hamilton County Criminal Court for appropriate remedial action.

The defendant, Candice Workman, pled guilty in the Shelby County Criminal Court to soliciting the sale of less than one-half gram of cocaine, a Class E felony. The trial court sentenced her to one year in the workhouse to be served on probation and fined her $2000.00. On appeal, the defendant contends that the trial court erred by denying her request for judicial diversion. We affirm the trial court but remand the case for correction of a clerical error on the judgment of conviction.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff alleged that he has a repetitive-stress job-related condition in his right knee diagnosed as degenerative arthritis. Surgery was performed September 18, 1997. After giving notice in July 1999, this action was filed on March 20, 2000. The trial judge concluded that the one-year statute of limitations precluded recovery and granted summary judgment. We affirm.

The plaintiff in this medical battery case argues that the trial court erred in granting the defendant doctor summary judgment and argues that a genuine issue of material fact exists as to whether she consented to an unnamed surgical procedure in addition to scheduled procedures named in a hospital consent form. The trial court granted the defendant's motion for summary judgment upon findings that the case was actually a suit for medical malpractice, rather than medical battery, and that the plaintiff failed to present expert proof that such surgery was not in her best interest. We vacate the judgment of the trial court and remand for trial on the merits upon our finding that the plaintiff's suit states a cause of action for medical battery; and that the consent form signed by the plaintiff authorized the additional surgery only if it was required by an unforseen condition and whether there was an unforseen condition requiring the additional surgery remained a genuine issue of material fact.