APPELLATE COURT OPINIONS

Christopher Lee Shaw, Petitioner, appeals the Davidson County Criminal Court’s denial of post-conviction and error coram nobis relief from his convictions of possession of more than twenty-six grams of cocaine with the intent to sell or deliver within a drug-free zone, evading arrest while operating a motor vehicle, and possession of drug paraphernalia, for which he received an effective sentence of fifteen years in the Tennessee Department of Correction. On appeal, Petitioner contends that he is entitled to post-conviction relief because he was denied the effective assistance of counsel. Specifically, he contends that trial counsel failed to: (1) adequately investigate Adrian Wilkerson; (2) obtain funds to retain a fact investigator to investigate Mr. Wilkerson and an expert witness in undercover narcotics investigations; (3) inform Petitioner that two additional witnesses made out-of-court identifications of Petitioner driving the white Nissan SUV; (4) file a pretrial motion to suppress a suggestive single photographic identification and tainted in-court identification; and (5) ensure a unanimous jury verdict for Petitioner’s conviction in Count 1 of the
indictment—possession of more than twenty-six grams of cocaine with the intent to sell or deliver within a drug-free zone—by filing a motion for bill of particulars, requesting an election of offenses, and challenging the jury instruction to raise an issue of a unanimous verdict. Petitioner further asserts that the trial court improperly determined that the petition for writ of error coram nobis was time-barred, asserting that he was entitled to due process tolling of the statute of limitations. Following a thorough review, we affirm the trial court’s denial of post-conviction and error coram nobis relief.

The Defendant, Ladarius Lockhart, was convicted of two counts of rape. The trial court merged the convictions and imposed a nine-year sentence. On appeal, the Defendant contends that the evidence is insufficient to support the convictions and that the prosecutor made improper statements during closing arguments. Upon reviewing the record, the parties’ briefs, and the applicable law, we affirm the judgments of the trial court.

In this certiorari review of a decision of the Board of Zoning Appeals of the Metropolitan Government of Nashville and Davidson County, the Appellants challenge the Board’s grant, as authorized by ordinance and state and federal law, of an accommodation from the zoning requirements applicable to property owned by a church, on which it sought to build 22 micro-homes to house the homeless. Appellants argue that the development should be subject to the zoning laws and procedures because the development would be constructed, owned, and operated by a lessee of the property that was not a religious institution or assembly or otherwise exercising religion and, consequently, applying the zoning laws to the development would not adversely affect the church’s exercise of religion. The Appellants also argue that the project did not meet the standards for the accommodation set by the state and federal laws. The trial court upheld the decision of the Board. Upon our review, we conclude that material evidence supports the Board’s decision and that the decision is not contrary to law, and is not arbitrary or capricious; accordingly, we affirm the judgment of the trial court.

Petitioner, James Dellinger, appeals the trial court’s summary dismissal of his petition seeking to invalidate the sentence of death imposed for his conviction of first degree murder. The petition sought error coram nobis relief pursuant to Tennessee Code Annotated section 40-26-105, asserted that his sentence of death is an illegal sentence to be corrected pursuant to Tennessee Rule of Criminal Procedure 36.1, and that he is entitled to relief by “any other remedy that at common law exists.” After review, we affirm the judgment of the trial court.

This appeal involves a boundary dispute. Following a trial in the Grundy County Chancery Court, the chancellor held that the boundary between the parties would be the boundary depicted on a survey introduced by the Defendants. Having reviewed the record transmitted to us on appeal, we affirm.

The Defendant, Markeith Chapale Pulliam, appeals the trial court’s revocation of his community corrections sentence, arguing that the court abused its discretion both in revoking his community corrections and ordering him to serve the balance of his sentence in the Department of Correction. After thorough review, we affirm the judgment of the trial court.

The pro se petitioner, Thomas N. Allen, appeals the denial of his petition for writ of habeas corpus by the Lake County Circuit Court, arguing the trial court erred in summarily dismissing the petition. The petitioner asserts his indictment was defective for failing to cite the correct statutory provision, the trial court erred by giving erroneous jury instructions, and the indictment was illegally amended during trial, entitling the petitioner to habeas corpus relief. Following our review, we affirm the habeas court’s dismissal of the petition as the petitioner has failed to show he is entitled to relief.

This appeal involves the termination of a mother’s parental rights to her son. The trial court found that all grounds alleged in the petition had been proven and that termination was in the best interest of the child. We reverse the trial court’s ruling as to two grounds for termination but otherwise affirm the order terminating Mother’s parental rights.

After a consolidated jury trial, the defendant, Shane Todd, was convicted of three counts of rape of a child and two counts of solicitation of a minor in case numbers 19425 and 19450. Tenn. Code Ann. §§ 39-13-522, -528. On appeal, the defendant argues the trial court erred in denying his motion for a new trial, claiming the jury was exposed to improper outside influence. The defendant also contends the evidence was insufficient to support his convictions and the trial court’s sentencing determinations resulted in an excessive forty-year sentence. Upon our review, we affirm the judgments of the trial court but note, in sentencing the defendant in case number 19450, the trial court interchanged the sentence terms on the judgment forms for counts one and two as ordered at the sentencing hearing. Therefore, we remand the case to the trial court for the entry of amended judgment forms as to counts one and two in case number 19450.

The Petitioner, Ralph Ray, appeals the Bradley County Criminal Court’s denial of his petition for post-conviction relief from his 2016 conviction for second degree murder and his twenty-five-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

A Davidson County jury convicted the Defendant, Granvil Johnson, of evading arrest, and the trial court sentenced the Defendant to eleven years in the Tennessee Department of Correction. On appeal, the Defendant contends that the trial court abused its discretion when it sentenced him and that he received the ineffective assistance of counsel at his sentencing hearing. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

This Tenn. R. App. P. 9 appeal arises from a wrongful death, healthcare liability action filed by the plaintiff on behalf of his deceased wife and her heirs-at-law against two hospitals and numerous healthcare providers. The dispositive issue is whether the pre-suit notices and HIPAA releases the plaintiff sent to one set of healthcare providers on December 17, 2015, and the separate pre-suit notices and HIPAA releases the plaintiff sent to a different set of healthcare providers on December 22, 2015, substantially complied with Tennessee Code Annotated § 29-26-121(a)(2)(D) and (E). If so, the commencement of the initial action in 2015 as to both sets of healthcare providers and the refiling of the action in 2017 pursuant to Tennessee’s saving statute were both timely. If not, the plaintiff’s claims as to all defendants are barred by the statute of limitations. The plaintiff’s now-deceased wife had outpatient hernia surgery at Saint Francis Hospital-Bartlett, Inc. (“St. Francis”). Five days later, she was admitted to Methodist Hospital University (“Methodist”) following several days of altered mental status with auditory and visual hallucinations where she was examined, treated, and released only to return to Methodist three days later. Following an exploratory laparotomy and other examinations and treatments, she died at Methodist a week later. The plaintiff timely sent pre-suit notices to the St. Francis providers; however, the notices only identified the St. Francis providers as potential defendants and provided HIPAA authorizations that allowed the St. Francis providers to obtain medical records, but only from the other St. Francis providers. Moreover, the pre-suit notices did not identify any Methodist providers as potential defendants. Five days later, the plaintiff sent pre-suit notices to numerous Methodist providers, which only identified the Methodist providers as potential defendants and which provided HIPAA authorizations that allowed the Methodist providers to obtain medical records, but only from the other Methodist providers. Thereafter, and relying on the 120-day extension of the statute of limitations available under § 121(c), the plaintiff filed a single wrongful death, healthcare liability action naming both hospitals and all of the healthcare providers as co-defendants. The defendants filed Tenn. R. Civ. P. 12.02(6) motions to dismiss, arguing that the plaintiff was not entitled to rely on the 120-day extension because he did not substantially comply with the pre-suit notice requirements of § 121(a)(2)(D) and (E). Before the trial court could rule on the motion, the plaintiff voluntarily dismissed his action. Then, relying on Tennessee Code Annotated § 28-1-105(a), Tennessee’s saving statute, the plaintiff refiled the action. The defendants responded by filing Rule 12.02(6) motions to dismiss, arguing that the original action and the refiled action were both time-barred because the plaintiff failed to substantially comply with § 121(a)(2)(D) and (E) prior to commencing the original action. The trial court denied the motion, ruling that the plaintiff substantially complied with the pre-suit notice statute in the original action and was thus entitled to rely on the extension under § 121(c). This Tenn. R. App. P. 9 interlocutory appeal followed. Having determined that the plaintiff did not substantially comply with the pre-suit notice requirements of § 121, we reverse and remand with instructions to dismiss all claims as barred by the statute of limitations.

The Defendant, Eric Dewayne Wallace, appeals the Shelby County Criminal Court’s dismissal of his motion to correct an illegal sentence. The State has filed a motion requesting that this court affirm the lower court’s denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Because the Defendant has failed to establish that his sentence is illegal, we conclude that the State’s motion is well-taken. Accordingly, we affirm the summary dismissal of the motion.

Defendant, David Mack Brewer, was indicted by the Hardin County Grand Jury with one count of DUI per se, one count of DUI, and one count of possession of a loaded handgun while under the influence of an intoxicant. Defendant filed a motion to suppress all “evidence, specifically including any alcohol test results, firearm, statements and field sobriety tasks results, acquired, observed and/or seized by any and all law enforcement officers, . . . by means of a warrantless entry, search, seizure and arrest of the Defendant’s person, breath, acts, conduct, statements and vehicle . . . on April 26, 2016.” An evidentiary hearing was held. The trial court narrowed the issues during the hearing to the sole issue of whether there was an unlawful warrantless arrest. The trial court determined that the warrantless arrest for the misdemeanor of DUI was unlawful and granted the motion to suppress on that basis. The State subsequently announced it could not prosecute without the evidence which had been suppressed and moved to dismiss the indictment as a result of the suppression ruling. The trial court dismissed the charges, and the State filed a timely notice of appeal of the trial court’s suppression of the evidence. After oral argument and the review of the record and the parties’ briefs, we reverse the judgment of the trial court, reinstate the indictment, and remand for further proceedings in the trial court.

The trial court reinstated its previous ruling that had been reversed on appeal because a “change in the controlling law” occurred that justified departure from the law of the case doctrine. Because we conclude that no change in controlling law occurred to allow the trial court to avoid application of the law of the case doctrine, we reverse the order of the trial court and remand for further proceedings before a different trial judge.

The United States District Court for the Middle District of Tennessee has submitted a certified question of law pursuant to Tennessee Supreme Court Rule 23 regarding the interpretation of two insurance policies: “Under Tennessee law, may an insurer in making an actual cash value payment withhold a portion of repair labor as depreciation when the policy (1) defines actual cash value as ‘the cost to replace damaged property with new property of similar quality and features reduced by the amount of depreciation applicable to the damaged property immediately prior to the loss,’ or (2) states that ‘actual cash value includes a deduction for depreciation?”’ Based on Tennessee law regarding the interpretation of insurance contracts, we conclude that the language in the policies is ambiguous and must be construed in favor of the insured parties. Therefore, we answer the district court’s question in the negative: The insurer may not withhold a portion of repair labor as depreciation.

The Defendant, Donte Lavon Green, was charged with narcotics offenses after drugs were discovered during a “protective sweep” of his motel room and subsequently seized pursuant to a search warrant. The trial court denied the Defendant’s motion to suppress the evidence, and a jury convicted him of possession with intent to sell 0.5 grams or more of cocaine, possession with intent to deliver 0.5 grams or more of cocaine, possession with intent to sell 14.175 grams or more of marijuana, possession with intent to deliver 14.175 grams or more of marijuana, and possession of drug paraphernalia. The Defendant challenges the sufficiency of the evidence and the denial of his motion to suppress. After a thorough review of the record, we conclude that the evidence is sufficient to support the convictions and that the Defendant is not entitled to the suppression of the evidence, which was seized pursuant to a search warrant not challenged on appeal. Accordingly, we affirm the trial court’s judgments.

The Defendant, Anterrio Chambers, was convicted of attempted first degree murder, two counts of aggravated assault, reckless endangerment, and employment of a firearm during the commission of or attempt to commit a dangerous felony. He received an effective thirty-one-year sentence. On appeal, the Defendant challenges the sufficiency of the evidence supporting his convictions, the trial court’s failure to charge misdemeanor reckless endangerment as a lesser-included offense of attempted first degree murder, and the trial court’s imposition of partial consecutive sentences. Upon reviewing the record and the applicable law, we affirm the judgments of the trial court.

The Petitioner, Mike Settle, appeals the trial court’s dismissal of his petition for writ of error coram nobis in which he challenged his 2001 guilty plea for especially aggravated kidnapping. Because coram nobis relief is not available to challenge guilty pleas, we affirm the trial court’s judgment pursuant to Court of Criminal Appeals Rule 20.

The Petitioner, Jerry Lewis Tuttle, appeals the Maury County Circuit Court’s summary dismissal of his pro se petition for post-conviction relief as previously determined and/or failing to state a colorable claim. In this appeal, the State concedes, and we agree, that the Petitioner stated a colorable claim for relief. Accordingly, we reverse the judgment of the post-conviction court and remand for appointment of counsel.

This appeal arises from a post-divorce proceeding wherein the wife filed a petition requesting that the trial court hold the husband in civil contempt due to his noncompliance with the alimony provision in the parties’ marital dissolution agreement (“MDA”) and enter a judgment in favor of the wife representing the alimony arrearage and statutory interest. Following a bench trial, the trial court dismissed the wife’s petition without entering a monetary judgment against the husband, upon finding that although the husband had violated the alimony provision of the MDA, his failure to pay was not willful. The trial court also denied the wife’s request for attorney’s fees. Having determined that the evidence preponderates against the trial court’s finding, we conclude that the husband’s failure to comply with the alimony provision was willful. Upon further determination that the trial court erred in dismissing the wife’s petition for civil contempt and a monetary award, we reverse.

Paul McMillin (“Plaintiff”) appeals the April 11, 2018 order of the Circuit Court for Knox County (“the Trial Court”) finding Plaintiff in violation of Tenn. R. Civ. P. 11 and awarding $19,983.94 in sanctions to be paid to the attorney for Realty Executives Associates, Inc. and Tammy Garber (“Defendants”). Plaintiff raises issues regarding the Trial Court’s grant of summary judgment to Defendants and the Trial Court’s grant of sanctions. We find and hold that Plaintiff waived his issues with regard to the grant of summary judgment. We further find and hold that the Trial Court did not err in finding Plaintiff in violation of Tenn. R. Civ. P. 11 and awarding sanctions. We, therefore, affirm.

In this appeal from the judgment of the Court of Workers’ Compensation Claims, the employer and its insurer argue that the employee did not establish by a preponderance of the evidence that his injury arose primarily out of the course and scope of his employment, and that the employee’s physician expert did not use an appropriate method to opine on the impairment rating for the employee’s right ear. Discerning no error, we affirm.

This appeal concerns an alleged breach of contract. Patsy Yearwood (“Decedent”), an insurance agent with John Robert Whedbee and James L. Whedbee at the Whedbee Insurance Agency (“Defendants”), entered into an agreement (“the Agreement”) with Defendants whereby Defendants would buy all of Decedent’s contracts of insurance and expirations and renewals. For a set period of time, Decedent would receive 50% of her commissions and renewals and Defendants were to receive the other 50%. Decedent, in declining health, was to assist in retaining and producing business. Upon Decedent’s death, her commissions were to go to her estate. Decedent died and three months later, Defendants halted payments. Decedent’s daughter RaShell Holt, individually and as Executrix of the Estate of Patsy Yearwood (“Plaintiff”), sued Defendants in the Chancery Court for Knox County (“the Trial Court”). Defendants filed a motion for summary judgment, which the Trial Court granted on the basis that Decedent first breached the Agreement by not working in the period leading up to her death. Plaintiff appealed. We find and hold that there is a genuine issue of material fact as to whether Decedent breached the Agreement by ceasing to work. We hold further that, even if Decedent stopped working, this in itself was not a breach of contract because her sickness and death were anticipated in the Agreement. We hold further still that, even if Decedent breached the Agreement, Defendants were not entitled to continue receiving all the benefits of the Agreement while denying the estate its benefits. We reverse the judgment of the Trial Court.

A general sessions court issued orders of protection for a mother and her child against the mother’s ex-husband, who was the child’s father. Thirty-six days after the final order was entered, the father filed suit in chancery court, essentially seeking to enroll the mother’s and the father’s Texas divorce decree and to appeal the orders of protection. On the mother’s motion, the chancery court dismissed the suit in its entirety for lack of subject matter jurisdiction. The mother then moved to alter or amend, seeking an award of attorney’s fees and discretionary costs incurred in defending the action. The chancery court granted the motion and awarded the mother attorney’s fees and costs. On appeal, the father challenges only the award of attorney’s fees. We conclude that the court did possess subject matter jurisdiction to award attorney’s fees. But because the father was not permitted to put on proof concerning the reasonableness of the fees incurred by the mother, we vacate the award of attorney’s fees.