APPELLATE COURT OPINIONS

An employee sustained a compensable injury. The trial court ruled that the employee’s partial disability award should be apportioned to the arm. The employee has appealed, asserting that the award should have been apportioned to his thumb. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Supreme Court Rule 51. We affirm the judgment.

A Hamblen County jury convicted Gevon Cortez Patton of especially aggravated kidnapping and criminally negligent homicide. The trial court sentenced him to an effective sentence of twenty-five years in the Tennessee Department of Correction. On appeal, appellant argues that the evidence was insufficient to support his convictions, that the trial court erred in admitting into evidence the transcript of appellant’s juvenile court transfer hearing, that the trial court erred by forcing appellant’s brother to testify and then declaring him unavailable when he refused to testify, that the trial court erred by admitting an exhibit into evidence when the State had not proven the chain of custody, and that the trial court erred in its sentencing of appellant. Following our review, we affirm the judgments of the trial court.

The appellant, Curteis Benjamin Arzon, pled guilty in the Montgomery County Circuit Court to two counts of aggravated burglary. The trial court sentenced the appellant to four years in the Tennessee Department of Correction for each offense. On appeal, the appellant challenges the trial court’s denial of alternative sentencing. Upon review, we affirm the judgments of the trial court.

Plaintiffs filed suit to recover income taxes paid under protest pursuant to Tennessee’s Hall Income Tax. At issue is a “Special Dividend” Plaintiffs received that was classified by the corporation for income tax purposes as a return of “paid-in capital.” Plaintiffs contend the Special Dividend was exempt because the Hall Income Tax states, in pertinent part, that “no distribution of capital shall be taxed as income under this chapter, and no distribution of surplus by way of stock dividend shall be taxable in the year such distribution is made; but all other distributions out of earned surplus shall be taxed as income when and in whatever manner made, regardless of when such surplus was earned[.]” Tenn. Code Ann. § 67-2-104(e)(7) (2011). The trial court ruled in favor of Plaintiffs based upon a finding that “[t]he Special Dividend was not a leveraged dividend and as such the reduction in book value could have onlycome through a return of capital distribution.” We have determined the mere fact the dividend was not a leveraged dividend is not sufficient to prove the dividend was exempt from the Tennessee Hall Income Tax. To qualify for the exemption, Plaintiffs had the burden to prove the Special Dividend was paid out of capital. See Tenn. Code Ann. § 67-2-104(e)(7). We, therefore, reverse and remand for entry of judgment in favor of the Department of Revenue and for other proceedings consistent with this opinion.

The Petitioner filed a petition for post-conviction relief in the Bedford County Circuit Court, seeking relief from his convictions for selling less than one-half gram of cocaine, delivering less than one-half gram of cocaine, possessing one-half gram or more of cocaine with intent to sell, and possessing one-half gram or more of cocaine with intent to deliver and resulting effective thirty-year sentence. In the petition, the Petitioner claimed that he received the ineffective assistance of counsel at trial and on appeal. After an evidentiary hearing, the post-conviction court concluded that the Petitioner did not receive the ineffective assistance of counsel but ruled sua sponte that he was entitled to a delayed appeal in order for this court to determine whether his effective thirty-year sentence was excessive. After a review of the record and the parties’ briefs, we affirm the post-conviction court’s denial of the petition for post-conviction relief but reverse the court’s granting the Petitioner a delayed appeal.

The petitioner, Danny Ray Smith, appeals the denial of his petition for post-conviction relief,
arguing that he received ineffective assistance of counsel at trial. After review, we affirm
the denial of the petition.

Following a 26-year marriage, Wife was granted a divorce,designated the primary residential parent of their children and given sole decision making authority for the minor children’s education, health and medical care, and extracurricular activities; Husband was ordered to pay child support, pendente lite support of $7,000 per month, post-divorce support at the same rate as pendente lite support until the marital residence was sold, transitional alimony of $3,600 for 48 months commencing upon the sale of the marital residence, and $25,000 of Wife’s attorneys’ fees. The parties’ separate and marital assets were classified, and the marital assets and debts were divided. Husband appeals, challenging Wife’s designation as the sole decision making authority for the children’s educational and extracurricular activities, the amount of Wife’s income for purposes of child support, the awards for pendente lite support, the indefinite award of post-divorce support and the additional award of transitional alimony for 48 months. Husband also challenges the classification and division of the marital estate, including holding him liable for one-half of the $335,000 home equity line of credit debt, most of which was incurred during the pendency of the divorce, and the award of attorneys’ fees to Wife. We have determined that Wife is not entitled to receive post-divorce support of $7,000 per month in addition to the award of transitional alimony of $3,600 for a term of 48 months; therefore, we reverse the indefinite post-divorce support award of $7,000 per month. We also modify the award of transitional alimony of $3,600 per month, reducing the term from 48 months to 24 months with the term commencing upon the entry of the Final Decree of Divorce. We affirm the trial court in all other respects. As for Wife’s request to recover the attorneys’ fees she incurred on appeal, we respectfully deny that request.

A Shelby County jury convicted the Petitioner, Lacey Jones, of four counts of especially aggravated kidnapping, one count of aggravated burglary, and two counts of aggravated robbery. The trial court merged the aggravated robbery convictions into the convictions for especially aggravated kidnapping and ordered the Petitioner to serve an effective sentence of forty-two years. The Petitioner appealed, and this Court affirmed the judgments of the trial court. State v. Lacey Jones, No. W2004-01628-CCA-R3-CD, 2005 WL 1848476, at *6 (Tenn. Crim. App., at Jackson, Aug. 4, 2005), perm. app. denied (Tenn. Dec. 19, 2005). The Petitioner filed a petition for post-conviction relief, in which he alleged that his trial counsel was ineffective. The post-conviction court dismissed the petition after a hearing. After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

This appeal arises from a certiorari proceeding instituted in December of 2011 in which owners of property adjoining a landfill sought review of the Commissioner of the Tennessee Department of Environment and Conservation’s decision in October 2011 to issue a modification of a permit to operate a Class II disposal facilitywhich was issued in 2008. The trial court held that the approval of the modification in 2011 was invalid because it was grounded on the 2008 permit, which the court also held to be invalidly approved; the court ordered the Commissioner to take action to void the 2008 permit and 2011 modification. The Commissioner and landfill owner appeal the holding that the 2008 permit and 2011 modification are null and void; adjoining landowners appeal the denial of their request for injunctive relief and ask this court to decide two issues which the trial court did not address. We conclude that the trial court lacked subject matter jurisdiction to review the issuance of the 2008 permit and to declare it void; that the Commissioner’s authority to approve the 2011 modification was not conditioned on the expansion project being approved by the city and county legislative bodies; that the landfill owner was not required to submit the 2011 modification application to the regional solid waste board prior to securing the Commissioner’s approval; and that the Commissioner had no dutyto require thatthe material to be placed in the landfill be determined not hazardous prior to approving the modification. Accordingly, we reverse the judgment of the trial court and dismiss the petition.

The Defendant, Rommel Obligacion, appeals from his jury convictions for three counts of felony reckless endangerment, contending that the evidence presented at trial was insufficient to support his convictions beyond a reasonable doubt and that the trial court improperly denied his requests for probation and judicial diversion. After reviewing the record and the applicable authorities, we conclude that the trial court failed to demonstrate on the record that it considered all the relevant judicial diversion factors, assigned weight to each factor, and explained how some factors outweighed others. This error, however, was harmless in light of the other findings made by the trial court. Therefore, we affirm the judgments of the trial court.

Inmate filed petition for writ of certiorari seeking review of decisions of the Board of Parole denying him parole and setting a two year period for his next consideration. Trial court dismissed petition; finding no error, we affirm the decision.

This is a breach of contract case stemming from a commercial lease between Plaintiff Landlord and Defendant Tenants. Beginning in August 2011, Defendants failed to make rent payments in violation of their lease with Plaintiff. Plaintiff subsequently filed this lawsuit seeking damages specified in the lease. In response, Defendants raised the affirmative defense of unclean hands, contending that Plaintiff breached the lease first by objecting to and/or interfering with Defendants’ right under the lease to sublease the property without Plaintiff’s consent. The trial court granted summary judgment to Plaintiff, finding that Defendants failed to perform under the lease by failing to pay rent, and finding no genuine issue of material fact regarding any allegation that Plaintiff interfered with Defendant’s ability to sublease the property. The Defendants argue that summary judgment was inappropriate because there exists a genuine issue of material fact regarding whether Bayrock breached the lease first by interfering with Defendants’ right to sublease. We disagree and affirm the trial court’s grant of summary judgment to Plaintiff.

I concur with the majority opinion. However, I respectfully disagree with the standard of review followed by the majority regarding judicial diversion. I agree with the reasoning set forth in State v. Kiara Tashawn King, No. M2012-00236-CCA-R3-CD, 2013 WL793588, at *7 (Tenn. Crim. App. Mar. 4, 2013), perm. app. granted (Tenn. Aug. 14, 2013), that after Bise, Caudle, and Pollard, portions of Parker, Electroplating, and their progeny in which this court reversed a trial court’s decision to deny judicial diversion merely because the trial court failed to expressly consider one or more of the seven legally-relevant factors (or merely because it failed to specify why some factors outweighed others) can no longer be considered governing law.

A real estate developer entered an agreement with the Town of Chapel Hill to purchase sewer and water taps in exchange for the Town’s extension of a sewer line to the developer’s property. The developer paid the money and the Town extended the line, as agreed. Developer later lost the property through foreclosure before development occurred. When the property was sold to a third party, the Town transferred the sewer and water taps to the purchasers. The developer filed a complaint alleging the Town breached the agreement by transferring taps that belonged to the developer to the third party purchasers. The Town denied it breached the agreement and moved for summary judgment. The trial court granted the Town’s motion for summary judgment and the developer appealed. We affirm. The agreement evidences the parties’ intention that the sewer and water taps were to be used in connection with the development of the property the developer owned when the agreement was executed. When the developer lost the property through foreclosure, the developer had no more interest in the taps.

This appeal arises out of an inmate’s allegedly improper early release from jail. Stanley Walker (“Walker”), alleging that he was improperly released early from jail because the authorities did not want to pay for his medical care, sued Bradley County and Capt. Gabriel Thomas (“the Defendants”) in the Circuit Court for Bradley County (“the Trial Court”). The Trial Court dismissed certain of Walker’s claims for failure to state a claim and ultimately granted summary judgment for the Defendants on the remaining claim. Walker timely appealed. We hold, inter alia, that Walker has no private right of action for being released early from jail, and we affirm the judgment of the Trial Court in its entirety.

A water utility challenges the authority of the Tennessee Regulatory Authority to order it to divest itself of the water system and to continue providing service until the sale. We find no error in the actions of the Tennessee Regulatory Authority.

The defendant, Stanley Blue, appeals from his resentencing to an effective term of forty-six years as a Range III, persistent offender for his convictions for facilitation of first degree murder, attempted second degree murder, and reckless endangerment. On appeal, the defendant contends that his sentence is excessive, and the State agrees. Based upon our review of the record, we conclude that the trial court erred in sentencing the defendant to forty years for attempted second degree murder and in classifying the defendant as a Range III, persistent offender for his reckless endangerment conviction. Accordingly, the trial court’s judgments are affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

This is a termination of parental rights case, focusing on Grayson H., the minor child (“Child”) of Steven H. (“Father”) and Jessica L. (“Mother”). The Child was taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) on March 9, 2012, following Father’s incarceration and Mother’s subsequent arrest. Mother’s parental rights to the Child were terminated in a separate proceeding. On October 17, 2012, DCS filed a petition to terminate the parental rights of Father. Following a bench trial held on July 11, 2013, the trial court granted the petition upon its finding, by clear and convincing evidence, that (1) Father had abandoned the Child by showing wanton disregard for the Child’s welfare and (2) the conditions causing the removal of the Child into protective custody persisted. The court further found, by clear and convincing evidence, that termination of Father’s parental rights was in the Child’s best interest. Father has appealed. Discerning no error, we affirm.

The Petitioner, Michael Martin, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his 2009 convictions for attempt to commit second degree murder, aggravated assault, and violating an order of protection and his effective eighteen-year, eleven-month, and twenty-nine-day sentence. The Petitioner contends that he received the ineffective assistance of counsel because counsel (1) failed to interview and present a witness at the trial, (2) failed to object contemporaneously to the admission of the narrative portion of the order of protection, and (3) failed to include the transcript of the motion for a new trial hearing in the appellate record. We affirm the judgment of the trial court.

Appellant, Walter Francis Fitzpatrick, III, was indicted by the Monroe County Grand Jury for one count of tampering with government records. After a jury trial, Appellant was convicted as charged and sentenced to eleven months and twenty-nine days with twenty days to serve in incarceration and the remainder to be served on probation. Appellant appeals his conviction. He argues that his indictment was faulty because the grand jury foreperson was not eligible to serve; that the trial court erred in ruling that Appellant could not testify regarding his proposed defense of necessity; and that the trial court erred in denying Appellant’s request for a jury instruction on the defense of necessity. After a thorough review of the record, we affirm the judgment of the trial court.

Following a jury trial, Defendant, Donald Prescott, was found guilty of especially aggravated robbery. He was sentenced to serve twenty years’ incarceration. In this appeal as of right, Defendant presents two issues for review. He asserts that (1) the trial court erred by denying his motion to suppress the victim’s pre-trial and trial identifications of Defendant; and (2) the evidence was insufficient to support his conviction for especially aggravated robbery because the State failed to present sufficient evidence to prove beyond a reasonable doubt that the victim suffered serious bodily injury. After a thorough review of the record and the parties’ briefs, we affirm the judgment of the trial court.

Appellant Robert G. Rogers was on probation for multiple counts of aggravated burglary, theft over $10,000, and theft of $500 or less. His probation officer filed a probation violation warrant as a result of Appellant’s arrest in Bradley Count for extortion. The probation violation warrant was subsequently amended to allege that Appellant had absconded from supervision. At the conclusion of the probation violation hearing, the trial judge revoked Appellant’s probation and ordered him to serve his originally imposed twenty-year sentence. Appellant appeals arguing that the trial court erred in revoking his sentence and that the trial judge should have recused herself. After a review of the record on appeal, we affirm the revocation of Appellant’s probation.

The petitioner, Maurice Williams, appeals from the denial of his petition for post-conviction relief from his 2007 Shelby County Criminal Court jury convictions of carjacking and aggravated robbery, claiming that he was deprived of the effective assistance of counsel. Discerning no error, we affirm.

A Knox County jury convicted appellant of three counts of facilitation of first degree murder and one count of facilitation of especially aggravated robbery. The trial court merged the facilitation of first degree murder convictions and sentenced appellant to seventeen years. The trial court also sentenced appellant to a concurrent sentence of eight years for facilitation of especially aggravated robbery. On appeal, appellant presents thirteen issues for our review: (1) whether the trial court erred in overruling appellant’s motion to suppress evidence seized in an extended warrantless search of his house; (2) whether the trial court erred in allowing the State to introduce video footage of the crime scene; (3) whether the trial court erred in allowing the State to introduce evidence of blood samples taken from appellant without a warrant; (4) whether the trial court erred in admitting prior bad act evidence; (5) whether the trial court erred by allowing testimony regarding evidence that had been destroyed; (6) whether the trial court erred by allowing a medical examiner to testify about an autopsy performed by another medical examiner; (7) whether the trial court erred in denying appellant’s three motions for mistrial based on prosecutorial misconduct; (8) whether the trial court erred when it denied appellant’s request for a continuance in light of the State’s late disclosure of certain evidence; (9) whether the trial court erred by denying appellant’s request to strike a witness’s testimony when the testimony was internally contradictory; (10) whether the trial court erred by allowing the State to introduce graphic photographs of the victim’s injuries; (11) whether the trial court erred in its jury instructions; (12) whether the evidence was sufficient to support appellant’s convictions; and (13) whether appellant is entitled to a new trial due to cumulative error. Based on our thorough review, we affirm the judgments of the trial court.

I concur with the results and most of the reasoning in the majority opinion. I disagree, though, with the majority’s conclusion that the Confrontation Clause was not implicated in the admission of the autopsy report. I believe the admission of the report in this case violated the Confrontation Clause but was harmless beyond a reasonable doubt.