APPELLATE COURT OPINIONS

Parents and minor child brought this action against a licensed clinical social worker, alleging that the social worker provided counseling to the minor child in violation of a court order. The social worker moved to dismiss the complaint for failure to comply with the Tennessee Health Care Liability Act’s procedural requirements. The trial court found that the complaint sounded in health care liability and accordingly dismissed it in its entirety. We conclude that the trialcourtapplied an improper standard in dismissing the complaint,vacate the judgment, and remand for further proceedings.

The Petitioner, Conley R. Fair, appeals the Unicoi County Criminal Court’s denial of his petition for post-conviction relief from his 1997 convictions for first degree murder and attempted first degree murder and his life-plus-thirty-five-years sentence. The Petitioner contends that the post-conviction court erred by (1) denying him relief because he received the ineffective assistance of counsel and (2) failing to make findings of fact and conclusions of law regarding his claim that he was denied his right to confront witnesses. We affirm the judgment of the post-conviction court.

Defendant, Robert Allen Lester, Jr., was indicted by the Dekalb County Grand Jury in fourteen separate cases for thirteen counts of burglary of a motor vehicle, one count of aggravated burglary, four counts of burglary, eleven counts of theft of property valued under $500, one count of theft of property valued over $500, and six counts of theft of property valued over $1,000.  Subsequently, Defendant entered into negotiated guilty pleas to eleven counts of burglary of a motor vehicle, one count of aggravated burglary, and two counts of burglary.  The plea agreement called for an effective sentence of eight years, the manner of service of the sentence to be determined by the trial court at a sentencing hearing.  At the hearing, the trial court denied alternative sentencing and ordered Defendant to serve the sentence in incarceration.  He appeals, challenging the denial of an alternative sentence.  After our review of the record and applicable authorities, we determine that the judgment form in Case Number 2013-CR-127 should be corrected to reflect a conviction and sentence for burglary rather than auto burglary.  Further, the matter is remanded to the trial court to resolve inconsistencies between the plea provisions and the corresponding judgments in order to yield an effective eight-year sentence and to correct any other clerical errors which may exist.  We determine that the trial court did not abuse its discretion in denying an alternative sentence to Defendant due to his extensive criminal history, because measures less restrictive had been applied to Defendant in the past, and in order to avoid depreciating the seriousness of the offenses.  Accordingly, the matter is affirmed in part and remanded in part.

Mother and Father were divorced in 2009 and Mother was named the primary residential parent of their two children. Father later filed a petition to modify the parenting plan, and the court changed the primary residential parent designation to Father. Mother filed one petition to modify in 2012 and another petition in 2014 in an effort to become the primary residential parent again. The court entered orders denying each petition, and Mother appealed both orders. We affirm the trial court’s judgments in all respects.

The Petitioner, Reginald Maurice Adkins, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his 2010 convictions for first degree murder and attempted especially aggravated robbery and his life-plus-twelve-years sentence.  The Petitioner contends that he received the ineffective assistance of counsel and that the post-conviction court erred by denying him relief.  We affirm the judgment of the post-conviction court.

The judgment from which the pro se incarcerated appellant, Jackie D. Owens, seeks to appeal was entered on December 17, 2013. The Notice of Appeal was filed more than thirty (30) days from the date of entry of the December 17, 2013 judgment, even considering the date upon which it appears the appellant placed the Notice of Appeal in the mail for filing with the trial court clerk (August 26, 2014). See Tenn. R. App. P. 20(g). The appellee, Chattanooga-Hamilton County Hospital Authority, filed a motion to dismiss this appeal based upon the untimely filing of the Notice of Appeal. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal and grant the motion to dismiss.

The petitioner, Charles Hall, was convicted of aggravated robbery and sentenced, as a repeat violent offender, to life imprisonment without parole. This court affirmed the judgment of the trial court on direct appeal, and the Tennessee Supreme Court denied his application for permission to appeal. State v. Charles Hall, No. W2009-02569-CCA-R3-CD, 2010 WL 5271082, at *1 (Tenn. Crim. App. Dec. 10, 2010), perm. app. denied (Tenn. Apr. 12, 2011). Subsequently, he filed a timely petition for post-conviction relief, claiming that trial counsel was deficient in pursuing pretrial motions and making erroneous trial decisions. Following an evidentiary hearing, the post-conviction court determined both that the petitioner had failed to establish that trial counsel had been ineffective or that he had been prejudiced by counsel’s alleged misdeeds. Following our review, we affirm the post-conviction court’s denial of relief.

Mother and Father were divorced in 2009 and Mother was named the primary residential parent of their two children. Father later filed a petition to modify the parenting plan, and the court changed the primary residential parent designation to Father. Mother filed one petition to modify in 2012 and another petition in 2014 in an effort to become the primary residential parent again. The court entered orders denying each petition, and Mother appealed both orders. We affirm the trial court’s judgments in all respects.

The Petitioner, William L. Green, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his 2010 conviction for second degree murder and his twenty-three-year sentence.  The Petitioner contends that he received the ineffective assistance of counsel and that the post-conviction court erred by denying him relief.  We affirm the judgment of the post-conviction court.

Carol Payne McKinnis (“Seller”) brought suit against Sandra Kim Hammons (“Purchaser”) to enforce an oral contract for the sale of real property. Seller sought a judgment for the amount allegedly due under the parties’ agreement. Purchaser moved for summary judgment based on her contention that the action was barred by the Statute of Frauds as codified at Tenn. Code Ann. § 29-2-101(2012). The trial court granted the motion. We vacate the judgment and remand for further proceedings.

This appeal involves an action by a homeowners association to enjoin alleged violations of the association’s declarations. The trial court adjudicated a portion of the alleged violations and directed the entry of a final judgment pursuant to Tenn. R. Civ. P. 54.02. We have determined that the trial court has not disposed of “one or more claims” within the meaning of Tenn.R.Civ.P.54.02,meaning all claims byor against that party,see Bayberry Associates v. Jones, 783 S.W.2d 553, 557 (Tenn 1990); therefore, we reverse the portion of the order directing the entry of a final judgment, dismiss this appeal without prejudice to any party subsequently pursuing an appeal as of right pursuant to Tenn. R. App. P. 3, and remand for further proceedings.

This case concerns a boundary line dispute. Walter Allen Gault (“Plaintiff”) sued Jano Janoyan and Pinnacle Bank (“Defendants”) seeking a declaratory judgment 1 that, by way of adverse possession, he is the rightful owner of a triangle-shaped piece of land, 41.59 feet at its base and approximately 302 feet on each of its two sides. The disputed area is within the deed boundaries of the property owned by Janoyan, the Plaintiff’s next door neighbor. (See attached exhibit.) The parties’ properties are in Forest View, a residential subdivision in Knoxville. Defendants filed an answer and a counterclaim for ejectment and quiet title to the property. Both parties moved for summary judgment. After a hearing, the trial court granted summary judgment to the Defendants. Plaintiff appeals. We affirm.

The Petitioner, Pervis Tyrone Payne, appeals from the Shelby County Criminal Court’s denial of his petition for writ of error coram nobis in which he challenged his death sentence resulting from his 1988 convictions for first degree murder. On appeal, the Petitioner contends that he is entitled to coram nobis relief because he is intellectually disabled and, therefore, ineligible for the death penalty. We affirm the judgment of the trial court.

This appeal arises from a suit to enforce a mechanic’s lien. An architectural firm entered into an agreement with the developer of a condominium project to provide architectural and design services. The agreement stated that the firm would be paid a fee of two percent of construction costs if the condominiums were constructed. Later, the architect signed a contract to receive a penthouse as “consideration of design fees owed” on the first contract. The condominiums were constructed according to the plans drawn by the architectural firm. The developer was unable to deed the penthouse to the architect because it was encumbered by a security interest. The architect was never compensated. The architect filed suit to enforce a mechanic’s lien for the amount he was owed under the first contract. The trial court held the second contract was a novation, completely extinguishing the rights and obligations under the first contract. Finding there was a lack of intent for the second contract to completely extinguish the first contract and any lien rights arising from it, we reverse the trial court. We also find the suit was timely filed under the terms of the contract and remand the case to the trial court for further proceedings

In this post-divorce case, Edward Joseph Pierre (“Husband”) appeals the trial court’s decision refusing to grant him relief under Tenn. R. Civ. P. 60.02. Husband argues that the trial court’s divorce judgment based upon irreconcilable differences should be set aside and the case reopened because the parties’ marital dissolution agreement (“MDA”), which was duly approved by the trial court and incorporated into the judgment, allegedly fails to equitably divide the marital estate. Husband voluntarily signed the MDA before a notary public but declined to read it before he signed it. Finding no grounds for Rule 60.02 relief, we affirm the judgment of the trial court.

For the reasons that follow, I would remand this matter for an evidentiary hearing in order to determine whether the Petitioner is intellectually disabled. To the extent the majority differs from this conclusion, I respectfully disagree.

Mother and Father were married for eight years and had two children when they were divorced in 2012. The trial court divided the marital assets, named Father the primary residential parent, and ordered Father to pay child support to Mother. Father appealed the trial court’s judgment, contending the child support worksheet contains incorrect information and that he should not be required to pay child support because he is the primary residential parent. He also argued the trial court erred in awarding Mother a full half of retirement benefits he earned during the parties’ marriage because Mother left him for periods of time during the marriage. Father contends those periods of separation should not be counted as time the parties were “together.” The record contains no transcript of the proceedings or statement of evidence that we can review to determine whether the evidence presented preponderates against the trial court’s findings and judgment. However, we agree with Father that the child support worksheet includes an incorrect figure representing Mother’s average parenting time. We remand the case for the trial court to correct that number and determine whether the correction results in a different child support award. We affirm the trial court’s judgment in all other respects.

The Defendant, Dana Crumley, appeals the Maury County Circuit Court’s order denying her motion for a reduced sentence.  The Defendant contends that the trial court abused its discretion.  We affirm the judgment of the trial court.

The petitioner, Jeffery Wayne Robertson, was convicted in 1998 of first degree premeditated murder and sentenced to life imprisonment.  His conviction was affirmed on direct appeal.  State v. Robertson, 130 S.W.3d 842, 844 (Tenn. Crim. App. 2003).  Subsequently, he filed a petition for post-conviction relief, one of the issues raised being that trial counsel was ineffective for not challenging “expert testimony about the results of a Comparative Bullet Lead Analysis (‘CBLA’) performed on evidence gathered by law enforcement.”  Jeffrey Wayne Robertson v. State, No. M2007-01378-CCA-R3-PC, 2009 WL 277073, at *9 (Tenn. Crim. App. Feb. 5, 2009), perm. app. denied (Tenn. June 15, 2009).  Unsuccessful with that argument, he then raised a similar claim in a petition for writ of error coram nobis, the denial of which is the basis for this appeal.  In that petition, he again focused on the CBLA evidence at his trial, pointing this time to the “newly discovered evidence” that the FBI “suspended performing ‘bullet lead analysis’ in 2004 and ceased entirely performing such examinations and providing such testimony in 2005.”  The coram nobis court denied the petition, concluding that the CBLA evidence issue had previously been argued and the only newly discovered evidence was the fact that the FBI was no longer using the test.  Following our review of the record, we affirm the dismissal of the petition.

The petitioner, Jason Garner, appeals the post-conviction court’s denial of his petition for post-conviction relief. He argues that counsel was ineffective for failing to properly investigate a defense of diminished capacity, asserting that his capacity was diminished due to his ingestion of an antibiotic medication. After review, we affirm the denial of the petition.

The petitioner, Theodore James Nugent, appeals the Davidson County Criminal Court’s denial of his timely petition for post-conviction relief, which petition challenged his 2012 guilty-pleaded convictions of domestic assault and aggravated stalking on the grounds that his trial counsel was ineffective and that his guilty pleas were unknowing and involuntary.  Because the record supports the decision of the post-conviction court, we affirm that court’s order.

The issue presented on this appeal is whether a plaintiff who brings a health care liability action against a governmental entity under the Governmental Tort Liability Act (“the GTLA”) is entitled to the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c)(Supp. 2014) under the current version of the Health Care Liability Act (“the HCLA”). This inquiry focuses on the effect of the 2011 amendment to the HCLA that expressly includes “claims against the state or a political subdivision thereof” within the definition of “health care liability action.” Applying the principles set forth by the Supreme Court in Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), we hold that the 2011 amendment demonstrates a clear intent on the part of the General Assembly to allow the GTLA’s one-year statute of limitations to be extended by 120 days in cases where a plaintiff satisfies the requirements of the HCLA. We affirm the judgment of the trial court denying defendant Bradley County’s motion to dismiss.

The defendant, Quinisha Renee Brabson, was convicted after a jury trial of second degree murder, a Class A felony. On appeal, the defendant challenges the sufficiency of the evidence, asserting that the defendant should either have been acquitted as acting in selfdefense or convicted only of the lesser-included offense of voluntary manslaughter. After a thorough review of the record, we conclude that the evidence was sufficient to support the verdict, and we accordingly affirm the judgment of the trial court.

The appellant, Adrian R. Brown, was convicted in 1995 of three counts of the sale of less than 0.5 grams of cocaine, a Class C felony, and one count of the sale of more than 0.5 grams of cocaine, a Class B felony. The appellant was given concurrent sentences of eight years’ imprisonment for the Class B felony and six years’ imprisonment for each Class C felony. The appellant entered the community corrections program, and he was recommended for a transfer to probation one year later. In October 2003, shortly before his eight-year sentence was set to expire, a violation of probation affidavit was completed. However, the petition for revocation of the appellant’s probation was dismissed in 2005. The appellant now challenges his sentences as illegal, asserting that he did not receive the pretrial jail credits to which he was entitled. After a thorough review of the record, we conclude that the issue is moot, and accordingly, the trial court properly dismissed the appellant’s motion to correct his sentence.

The Defendant, Robert A. Bass, was convicted by a Maury County Circuit Court jury of assault, a Class A misdemeanor.  See T.C.A. § 39-13-101(a)(2) (2014).  The trial court sentenced the Defendant to eleven months, twenty-nine days on probation.   On appeal, the Defendant contends that the trial court erred by failing to instruct the jury regarding self-defense.  We reverse the judgment of the trial court and remand for a new trial.