APPELLATE COURT OPINIONS

I concur in the majority’s decision to affirm the judgment of the trial court. I write separately to express the reasons for my concurrence. Since the proposed amendment adding the Wilkinson defendants was filed well beyond the applicable one-year statute of limitations, an allowance of the amendment would be futile unless it relates back, under the provisions of Tenn. R. Civ. P. 15.03 (1995), to the date of filing of the original complaint against the Glazer defendants. It is clear under Rule 15.03 that we are dealing in this case with an amendment “changing the party . . . against whom a claim is asserted.” Id. The new parties – the Wilkinson defendants – are totally different entities from the Glazer defendants. There can be no doubt that the plaintiff wants to change parties.

An apprentice lineman agreed to help a neighbor by climbing a utility pole on the neighbor’s land and disconnecting an electrical wire at the top. After he disconnected the wire, the pole fell over, causing the lineman himself to fall and to suffer severe injuries. He filed a negligence complaint, alleging that the neighbor had not set the pole deeply enough into the ground, thereby rendering it unreasonably dangerous. The trial court granted summary judgment to the defendant, holding that because of the plaintiff’s expertise in electrical matters, it was his duty alone to make sure the pole was safe before climbing it. We reverse.

The Petitioner, Samuel Ryan Hawkins, appeals from the denial of his petition for post-conviction relief attacking his conviction for aggravated child abuse. On appeal, the Petitioner contends that the post-conviction court erred in denying relief because trial counsel rendered ineffective assistance of counsel by failing to obtain an expert witness to rebut the State’s theory of shaken baby syndrome.  Following our review, we affirm the denial of relief.

A Williamson County jury convicted the Defendant, Renitra Harlen, of two counts of theft of property valued at more than $1,000.00.  The trial court sentenced the Defendant as a Range I, standard offender, to concurrent terms of two years, to be served on probation following the service of fourteen days in confinement.  On appeal, the Defendant contends that: (1) the trial court erred when it allowed the State to introduce a handwritten list of stolen items prepared by store employees immediately after the shoplifting incident occurred; (2) the State failed to disclose a victim questionnaire in violation of the rules of discovery; (3) the trial court erred by failing to merge the two theft convictions; and (4) the evidence is insufficient to support her convictions.  After a thorough review of the record and the applicable law, we remand to the trial court for the entry of modified judgments reflecting the merger of the Defendant’s two convictions and affirm the trial court in all other respects.

Michael T. Gibbs, Jr. (“the Petitioner”) filed a petition for writ of habeas corpus in the Hamilton County Criminal Court, claiming that his sentences had expired. The habeas corpus court dismissed the petition, and the Petitioner now appeals. After a careful review of the record, we conclude that the Petitioner’s notice of appeal is untimely. Moreover, the Petitioner offers no reasons why the interests of justice would support a waiver of the filing deadline. Accordingly, we dismiss the Petitioner’s appeal.

The Petitioner, Bruce Elliot, challenges the post-conviction court’s finding that he received the effective assistance of counsel at trial and its denial of post-conviction relief from his jury convictions for conspiracy to deliver 300 grams or more of cocaine within 1,000 feet of a school, conspiracy to possess 300 grams or more of cocaine, possession of 300 grams or more of cocaine, all Class A felonies; money laundering, a Class B felony; possession of over one-half ounce of marijuana and possession of a firearm by a convicted felon, both Class E felonies.  The Petitioner contends that his trial counsel’s failure to file a motion to suppress the wiretaps on his telephone, which provided the basis for all evidence subsequently obtained against him, was deficient and that he was prejudiced by this deficiency.  Upon consideration of the record and the applicable authorities, we affirm the judgment of the post-conviction court.

This is a boundary line dispute involving the placement of a new fence and the location of a corner. The suit involves a small triangular piece of property approximately two-tenths of an acre out of two adjoining 40-acre tracts owned by the parties. The value of the land in dispute is approximately $200. The trial court found the boundary line runs along a tree line essentially synonymous with the agreed upon old fence line as indicated on the Lawson survey. The court then located the corner as a car axle in the southwest corner of the plaintiff and the southeast corner of the defendant. The plaintiff appeals. We affirm the findings of the trial court.

The Defendant-Appellant, Cory Lee Jackson, was indicted by a Davidson County Grand Jury for theft of property valued at $10,000 or more but less than $60,000.  At trial, the jury convicted Jackson of the lesser included offense of theft of property valued at $1000 or more but less than $10,000, a Class D felony.  See T.C.A. § 39-14-103(a), -105(a)(3).  The trial court sentenced him as a Range II, multiple offender to six years in confinement.  On appeal, Jackson argues:  (1) the evidence is insufficient to sustain his conviction; (2) the trial court abused its discretion in admitting evidence of his missed court dates on unrelated charges; (3) the trial court abused its discretion in admitting testimony regarding Budget’s loss regarding the rental vehicle; and (4) his sentence was excessive.  Upon review, we affirm the judgment of the trial court.
 

The Petitioner, Aldrick Lillard, appeals the Rutherford County Circuit Court’s denial of post-conviction relief from his convictions for first degree murder, especially aggravated robbery, aggravated burglary, and conspiracy to commit aggravated robbery.  On appeal, the Petitioner argues that both his trial attorneys provided ineffective assistance of counsel in their failure to raise in the motion for new trial or on direct appeal the trial court’s denial of the Petitioner’s motion for mistrial.  Upon review, we affirm the judgment of the post-conviction court.

Plaintiff/Appellant appeals the trial court’s division of property and award of alimony in this divorce action. We affirm.

Following a traffic stop premised on a possible violation of Tennessee Code Annotated section 55-9-107 (the window tint statute), appellees were charged with several drug offenses.  Appellee Shaun Anthony Davidson was indicted for possession with intent to sell or deliver 0.5 grams or more of cocaine in a drug-free zone.  Appellee Deedra Lynette Kizer was indicted for possession or casual exchange of hydrocodone.  Both appellees were indicted for possession or casual exchange of marijuana.  The trial court granted the appellees’ motion to suppress evidence, ruling that Tennessee Code Annotated section 55-9-107(c) was unconstitutionally vague and overbroad.  As a result, the case was dismissed.  The State now appeals, arguing that Tennessee Code Annotated section 55-9-107(c) is constitutional.  We reverse the ruling of the trial court, reinstate the indictment, and remand for further proceedings consistent with this opinion.
 

Following a bench trial, the Defendant-Appellant, Charles Justin Woosley, was convicted of domestic assault, a Class A misdemeanor.  See T.C.A. §§ 39-13-101, -111 (2010).  He was sentenced to ninety days in the county jail, which the trial court suspended and ordered to be served on unsupervised probation.  The sole issue presented for our review is whether the evidence is sufficient to support the conviction.  Upon review, we affirm the judgment of the trial court.

A Haywood County jury convicted appellant, Lymus Levar Brown, III, of aggravated robbery. The trial court sentenced him as a Range III offender to serve thirty years in the Tennessee Department of Correction, with a release eligibility of eighty-five percent. See Tenn. Code Ann. § 40-35-501(k)(1) (release eligibility for aggravated robbery conviction). On appeal, he argues that: (1) the evidence supporting his conviction was insufficient; (2) the trial court erred by allowing a witness to testify despite a violation of the rule of sequestration; (3) the trial court erred by not granting him a mistrial or some other remedy for the State’s failure to provide previously requested discovery; (4) his right to a speedy trial was violated; (5) the trial court erred by allowing the jury to hear that appellant was a convicted criminal; (6) the State failed to provide a sufficient chain of custody for the cellular telephone found at the crime scene; and (7) the trial court erred by considering his prior convictions during the sentencing hearing despite not having certified copies of said convictions. Following our review, we affirm the judgment of the trial court.

I agree that Tennessee Code Annotated section 55-9-107(c) is not vague or overbroad, but such does not mean it is flawless.

The plaintiffs – purchasers of a tract of land at auction – brought this action alleging professional negligence in the conduct of the auction, misrepresentation, and violation of the Tennessee Consumer Protection Act (“the TCPA”). The trial court dismissed the complaint, finding that it failed to state a claim upon which relief could be granted. On plaintiffs’ first appeal, we affirmed the dismissal of the misrepresentation and TCPA claims. Land v. Dixon, No. E2004-03019-COA-R3-CV, 2005 WL 1618743 (Tenn. Ct. App. E.S., filed July 12, 2005) (“Land I”). We vacated the dismissal of the claim for professional negligence, and remanded the case for trial of that issue. After remand, the trial court granted the defendants’ motion for partial summary judgment and their subsequent motion in limine, holding that plaintiffs were precluded, under our holding in Land I, from presenting evidence of the defendants’ alleged misrepresentations as an aspect of their professional negligence claim. The jury returned a verdict for the defendants on the professional negligence claim. In this second appeal, we hold the trial court did not err in its ruling excluding evidence of misrepresentations and in limiting the negligence claim of the plaintiffs to the conduct of the defendants in their capacity as auctioneers. We further find no prejudicial error in the trial court’s jury charge regarding comparative fault and auctioneer discretion. We affirm the trial court’s judgment based on the jury verdict.

The Petitioner, Joseph L. Coleman, appeals the Shelby County Criminal Court’s dismissal of his petition seeking a writ of habeas corpus. The Petitioner contends that the habeas corpus court erred when it dismissed his petition because his sentence is void and unconstitutional. Upon a review of the record in this case, we are persuaded that the habeas court properly dismissed the petition for habeas corpus relief. Accordingly, the judgment of the habeas corpus court is affirmed.

In this divorce proceeding,Father appeals the trial court’s award of attorney’s fees to Mother. Finding no error, we affirm. Additionally, we grant Mother her attorney’s fees on appeal.

More than sixty days before filing suit, the plaintiff gave written notice to the potential defendants of her healthcare liability claim against them. Tenn. Code Ann. § 29-26-121(a)(2)(E) (2012) requires that a plaintiff’s pre-suit notice include a HIPAA compliant medical authorization that permits the healthcare provider receiving the notice to obtain complete medical records from every other provider that is being sent a notice. Contrary to the statute, the plaintiff provided a non-HIPAA compliant medical authorization that only permitted the release of medical records to plaintiff’s counsel. After the plaintiff filed suit, the defendants moved to dismiss the complaint based on noncompliance with Tenn. Code Ann. § 29-26-121(a)(2)(E). The trial court denied the motion, ruling that plaintiff’s noncompliance was excused by extraordinary cause. We hold that the plaintiff was required to substantially comply with Tenn. Code Ann. § 29-26-121(a)(2)(E) and failed to do so, and that her failure to comply is not excused by extraordinary cause. We dismiss the plaintiff’s case without prejudice.

Scott J. Wexler sued James Reed, Jr., and Robert Rankin in the General Sessions Court for Knox County to recover damages based on an alleged fraudulent sale of goods. The general sessions court awarded a judgment in Wexler’s favor in the amount of $2,000, the purchase price of the goods, plus costs. Defendants appealed to the trial court. After a bench trial, the court awarded a judgment in favor of Wexler, but reduced the amount to $1,025 including interest. Wexler appeals. We modify the judgment to reinstate the award of $2,000 plus costs.

The defendant, Demetrius Hollins, appeals his Shelby County Criminal Court jury convictions of attempted second degree murder and especially aggravated robbery, challenging the sufficiency of the convicting evidence and the exclusion of certain evidence, as well as the imposition of consecutive sentencing. Discerning no error, we affirm.

The Defendant, Travis Lee Dobson, pled guilty to one count of vehicular homicide as a Range I, standard offender, and the trial court imposed twelve years’ incarceration.  On appeal, the Defendant argues that the trial court erred by imposing the maximum sentence and by denying any form of alternative sentencing.  Following our review, we affirm the judgment of the trial court.
 

After receiving a stop-work order, a property owner petitioned the City of Belle Meade Board of Zoning Appeals for a declaration that a nearly completed structure on his property constituted an accessory use as a children’s playhouse under the city’s zoning code. After a hearing, the Board denied the request and the property owner filed a petition for a writ of certiorari seeking court review; the trial court affirmed the Board’s denial. We concur with the trial court and affirm the Board’s action.

On April 11, 2011, Christine Stevens (the “Plaintiff”) provided written notice to Hickman Community Health Care Services, Inc., Elite Emergency Services, LLC, and Halford Whitaker, M.D. (collectively, the “Defendants”), advising each of them of her potential health care liability claim based upon their negligent treatment of her late husband, Mark Stevens. As required by Tennessee Code Annotated section 29-26-121(a)(2)(A)–(D) (Supp. 2011), the Plaintiff’s notice included the full name and date of birth of the Plaintiff’s late husband; the contact information for the Plaintiff; the name and address of the Plaintiff’s counsel; and a list of the names and addresses of all providers being sent a notice. The notice also included a medical authorization form intended to allow each of the Defendants to access the medical records in the possession of the other Defendants, as is required under Tennessee Code Annotated section 29-26-121(a)(2)(E). The medical authorization form, however, was not fully compliant with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 18, 26, 29, and 42 U.S.C.).

This is a motor vehicle accident case wherein the jury’s verdict resulted in an award of compensatory damages to the plaintiff of $317,000.00. The defendants filed a motion seeking a new trial or, in the alternative, a remittitur of the amount of damages awarded. The trial court granted the remittitur, finding that the damages awarded by the jury were excessive and unsupported by the evidence. The trial court also ruled that if the plaintiff rejected the remittitur, a new trial would be awarded. The plaintiff accepted the remittitur under protest, subsequently filing the instant appeal. We vacate the trial court’s judgment and remand this case for a new trial solely on the issue of damages.

The Defendant, Keenan Scott McNeal, was convicted by a Blount County jury of possession of 0.5 grams or more of a substance ontaining cocaine with intent to sell or distribute within 1,000 feet of a child care facility, a Class B felony, and received a sentence of eight years in the Tennessee Department of Correction. The sole issue presented for our review is whether the evidence is sufficient to support the Defendant’s conviction. Upon our review, the judgment of the trial court is affirmed.