APPELLATE COURT OPINIONS

Diane Benson and the Northwest Tennessee Shooting Sports Association filed requests for variances to devote property to a Use Permitted on Appeal within a Forestry-Agricultural-
Residential-District in Dyersburg. Mrs. Benson’s request was tabled, but the NTSSA’s request was ultimately granted. Mrs. Benson, along with two others, filed a petition for writ of certiorari and for declaratory judgment. Appellees filed motions to dismiss, which the trial court granted. We affirm the trial court’s dismissal of the declaratory judgment action and we affirm the trial court’s dismissal of Mary Kruger and Kurt Kruger’s petition for writ of certiorari. However, we reverse the trial court’s grant of summary judgment as to Mrs. Benson’s claim that the BZA acted illegally, arbitrarily or capriciously, and the case is remanded for further proceedings consistent with this opinion.

The defendant, William Ray Boatwright, was convicted by a Knox County jury of especially aggravated robbery, a Class A felony, aggravated robbery, a Class B felony, especially aggravated burglary, a Class B felony, and two counts of aggravated assault, a Class C felony. The trial court merged the aggravated assault counts into the especially aggravated robbery conviction and sentenced the defendant as a Range I offender to twenty-five years at 100 percent for the especially aggravated robbery conviction, twelve years at thirty percent for the aggravated robbery conviction, and twelve years at thirty percent for the aggravated burglary conviction. The court ordered that the sentences be served consecutively, for a total effective sentence of  forty-nine years in the Department of Correction. On appeal, the defendant challenges the sufficiency of the evidence establishing his identity as a perpetrator and argues that the trial court erred by failing to give a jury instruction on accomplice testimony and by enhancing his sentences within his range and ordering consecutive sentencing. Based on our review, we conclude that the evidence is sufficient to establish the defendant’s identity, that the defendant has waived the issue regarding the jury instruction, and that the trial court did not abuse its discretion in sentencing the defendant to the maximum sentences within his range and ordering that they be served consecutively. However, we note under plain error review that Tennessee Code Annotated section 39-13-404 d) prohibits the defendant’s dual convictions for both especially aggravated burglary and especially aggravated robbery. Accordingly, we modify the defendant’s Class B especially aggravated burglary conviction to aggravated burglary, a Class C felony, and his sentence to ten years as a Range II, multiple offender for this offense. In all other respects, we affirm the judgments of the trial court.

I must respectfully dissent in part from the majority opinion in this case. In the majority opinion, the majority states the issue raised by the Board of Zoning Appeals (“BZA”) as: “Whether the trial court erred in holding that the Dyer County Zoning Resolution does not require an applicant seeking a variance to have a written lease.” In a footnote, the majority observes that the appellate record contained “no such finding by the circuit court.” Instead of leaving it at that, the majority goes on to “construe the BZA’s argument as ‘Whether the Resolution requires an applicant seeking a variance to possess a valid lease.’ ”

Defendant pled guilty to eleven counts of observation without consent, Class A misdemeanors, two counts of stalking, Class A misdemeanors, one count of phone harassment, a Class A misdemeanor, one count of theft of property worth less than $500, a Class A misdemeanor, and ten counts of criminal trespass, Class C misdemeanors. The defendant was sentenced to the maximum sentence on all counts—eleven months and twenty-nine days on each of the Class A misdemeanors and thirty days on each of the Class C misdemeanors. The trial court ordered the defendant to serve all sentences consecutively, for a total effective sentence of almost sixteen years. In addition, the trial court placed a special condition on each judgment that "further ordered that the defendant shall not receive good time credit or work release" on any of his sentences. On appeal, the defendant claims the trial court erred by ordering consecutive sentences and ordering that he not receive "good time" credit. After careful review of the record, we hold that the trial court did not abuse its discretion by ordering the defendant to serve all of his sentences consecutively. However, the trial court was without authority to order the denial of the defendant’s statutory "good time" credit. Accordingly, we reverse the trial court’s judgments with respect to the special condition directing that the defendant be denied "good time" credit and remand the case for entry of judgments deleting this special condition. We otherwise affirm the judgments.

A subcontractor on a large project in Texas sued the general contractor claiming the general contractor breached an agreement the parties made regarding claims both had against the owner of the Texas project. The parties agreed the subcontractor would be entitled to a pro rata share of the settlement or judgment amount if the subcontractor’s claims were not itemized. The settlement agreement between the general contractor and the owner did not include an itemization of the subcontractor’s claims. The subcontractor had been given a prepayment of its claim against the owner in the amount of $300,000, and applying this to the subcontractor’s pro rata share, the general contractor determined the subcontractor was not entitled to anything more. The trial court deducted the $300,000 from the subcontractor’s claim and awarded the subcontractor its pro rata share of the difference. Both the subcontractor and general contractor appealed, the subcontractor claiming it was not awarded enough and the general contractor claiming the subcontractor was awarded too much. We reverse the trial court’s award and hold the $300,000 the subcontractor received as a prepayment was more than it was entitled to pursuant to the terms of the parties’ agreement. Accordingly, the contractor did not breach its agreement, and the subcontractor was not entitled to any damages.
 

Ann C. King (“Wife”) filed a motion seeking to renew a 2001 judgment against David M. King (“Husband”). After a hearing, the Chancery Court for Anderson County (“Anderson Chancery Court”) entered an order renewing the judgment. Husband appeals to this Court raising issues regarding whether the Anderson Chancery Court lacked jurisdiction and whether the renewal of judgment complied with Tenn. R. Civ. P. 69.04. We hold that the Anderson Chancery Court had jurisdiction and did not err in renewing the judgment.

The Petitioner, Christopher Turner, appeals the Davidson County Criminal Court’s denial of post-conviction relief from his 2008 conviction for attempted aggravated robbery and his effective nine-year sentence. On appeal, he contends that counsel provided the ineffective assistance of counsel by failing to investigate and interview witnesses adequately and by failing to request that his case be severed from his codefendant’s case. We affirm the judgment of the trial court.

Plaintiff appeals the dismissal of her complaint to recover for personal injuries sustained in a fall at the Davidson County Correctional Development Center. Finding no error, we affirm.

This is a negligence case in which Passenger sued ETHRA and Driver for injuries she sustained when exiting an ETHRA public transit vehicle. The trial court dismissed the claim against Driver but denied ETHRA’s motion for summary judgment. Following a bench trial, the court dismissed the claim against ETHRA, holding that Passenger failed to prove that Driver was negligent. Passenger appeals. We affirm the decision of the trial court.

Carl Bond (“the Defendant”) was convicted after a jury trial of aggravated robbery. Following a sentencing hearing, the trial court sentenced the Defendant as a Range II offender to seventeen years, to be served in confinement at 100%. On appeal, the Defendant contends that the evidence is not sufficient to support his conviction, that the trial court erred in its ruling on the admissibility of a prior conviction for impeachment purposes, and that the trial court imposed an excessive sentence. Upon our thorough review of the record, we affirm the judgment of the trial court.

This case involves the bond requirements for an appeal from General Sessions Court to Circuit Court. The plaintiff sued the defendant for damages in General Sessions Court, and a judgment was entered in favor of the defendant. The plaintiff sought a de novo appeal to Circuit Court. Within ten days of the General Sessions Court judgment, the plaintiff filed a notice of appeal and paid $211.50 to the General Sessions Court clerk, pursuant to T.C.A. 8-21-401(b)(1)(C)(i). The plaintiff did not file any further bond at that time. The defendant filed a motion to dismiss, asserting that the Circuit Court lacked subject-matter jurisdiction over the case because the plaintiff had not complied with the appeal-bond requirement in T.C.A. § 27-5-103. The trial court granted the motion to dismiss on that basis. The plaintiff now appeals. We reverse in light of our recent decision in Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013), and remand for further proceedings.

Post-conviction petitioner, Demario Johnson, challenges his 2008 conviction of first degree murder and resulting sentence of life imprisonment. On appeal, he alleges the following claims of ineffective assistance of counsel: (1) failure to investigate and present evidence of his mental health history; and (2) failure to challenge the medical examiner’s opinion regarding the victim’s cause of death. Discerning no error, we affirm the judgment of the post-conviction court.

Appellant appeals the trial court’s grant of summary judgment to the Appellee uninsured motorist carrier for failure to properly and timely serve the alleged tortfeasor. After a careful review of the record, we affirm.

The Defendant-Appellant, Wesley Jones, appeals his conviction for first degree premeditated murder. On appeal, he argues that (1) the trial court abused its discretion in allowing a witness to be recalled to testify, and (2) the evidence is insufficient to support his conviction. Upon review, we affirm the trial court’s judgment.

This case involves an alleged agreement about funds distributed from a reopened estate. The decedent father died years ago, leaving three daughters and an estranged wife. The father’s estate was probated and closed. Long afterward, the petitioner daughter discovered unclaimed funds in the father’s name held by the State. Another daughter, the executrix of the father’s estate, reopened the father’s estate. Finding no claims against the estate, the probate court distributed the funds to the executrix, in accordance with the father’s will, and closed the estate. The daughter who discovered the unclaimed funds filed the instant petition in chancery court, asserting that the sisters had agreed that the funds would be split among them in accordance with their mother’s will. Based on the probate court’s adjudication of the father’s reopened estate, the chancery court granted summary judgment in favor of the executrix daughter, holding that res judicata barred the chancery court action. We affirm the grant of summary judgment as to allegations in the chancery court petition that the probate court should have distributed the funds differently. We reverse the grant of summary judgment as to the remainder of the chancery court petition, finding that the petition also asserts claims based on an alleged separate oral agreement among the sisters, and hold that the respondent executrix sister has not conclusively established the defense of res judicata as to these remaining claims.

This is a dependency and neglect case focusing on Jaycee W. (“the Child”), the minor daughter of Ellie H. (“Mother”) and Jerry W. (“Father”). At age five weeks, the Child suffered a suspicious broken leg. Further examination revealed multiple other broken bones. The Department of Children’s Services (“DCS”) immediately took the Child into protective custody and filed a dependency and neglect petition alleging that the Child was severely abused in the custody of her parents. Following an adjudicatory hearing, the juvenile court found that the Child was dependent and neglected and that both parents had committed severe child abuse. Both appealed to the trial court. Following a trial de novo, the trial court made the same findings. Mother appeals the trial court’s finding that she is guilty of severe child abuse. We affirm.

Petitioner, Shundell Lynn Dickerson, appealed the trial court’s denial of post-conviction relief, and this court affirmed the judgment of the post-conviction court. Shundell Lynn Dickerson v. State of Tennessee, No. M2011-00644-CCA-R3-PC, 2012 WL 2564376 (Tenn. Crim. App. at Nashville, filed July 3, 2012). In that opinion, Petitioner raised the issue of whether his appellate counsel was ineffective for failing to challenge the sufficiency of the convicting evidence on direct appeal. We acknowledged that pursuant to our supreme court’s decision in State v. Parker, 350 S.W.3d 883 (Tenn. 2011), appellate review of the sufficiency of the evidence must be undertaken with respect to the offense for which a defendant was convicted rather than the greater offense with which he or she was charged. We were precluded, however, from fully considering the issue because the summary of the facts contained in our opinion in the direct appeal was not adequate to allow for review of the issue, and, through no fault of Petitioner, the appellate record in the direct appeal was destroyed in the historic Nashville flood in May, 2010. Therefore, this court could not determine from the record whether Petitioner suffered prejudice by appellate counsel’s deficient performance in failing to challenge the sufficiency of the convicting evidence on appeal. Since the filing of that opinion, this court has granted Petitioner’s petition to rehear the issue of the ineffectiveness of appellate counsel, and Petitioner has supplemented the record with copies of the trial transcript. Both parties have filed supplemental briefs. After a review of the record before us, we affirm the judgment of the post-conviction court.

The mother of the minor child at issue appeals the termination of her parental rights. The juvenile court found several grounds for terminating the mother’s parental rights and that termination was in the best interest of the child. We affirm the termination of the mother’s parental rights.

A Dickson County grand jury indicted appellant, Howard B. Lewis, III, for especially aggravated burglary, aggravated assault, and domestic assault. He entered a guilty plea to aggravated assault, and the State dismissed the remaining charges. The parties agreed to submit the length of the sentence and any alternative sentencing decision to the trial court. Following a sentencing hearing, the trial court sentenced appellant to six years in the Tennessee Department of Correction. Appellant now challenges the trial court’s findings, alleging that the trial court impermissibly enhanced his sentence. Discerning no error, we affirm the judgment of the trial court.

This case involves a dispute over the ownership of a parcel of real property to which the appellees obtained title in May 2010. The appellant argued that the property belonged to her through the doctrine of adverse possession because she and her mother had used the property exclusively since 1937. The appellees proved at trial that the appellant had not paid taxes on the land for more than 22 years and moved for a directed verdict at the close of the appellant’s case-in chief. The trial court granted the motion based upon the statutory bar imposed by Tennessee Code Annotated section 28-2-110. The appellant appeals. We affirm.

The Petitioner, Melissa Barnett, appeals the Polk County Criminal Court’s denial of her petition for a writ of error coram nobis regarding her convictions for first degree murder and conspiracy to commit first degree murder, for which she is serving a life sentence. The Petitioner contends that the trial court erred by denying her relief. We affirm the judgment of the trial court.

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

The petitioner, Wade P. Tucker, appeals the summary dismissal of his pro se petition for writ of habeas corpus, arguing that the court erred in failing to consider his motion for appointment of counsel and that the indictment was defective so as to deprive the trial court of subject matter jurisdiction. After review, we affirm the summary dismissal of the petition.

The primary issue we address in this appeal is whether certain evidence was erroneously admitted at trial and if so, whether it more probably than not affected the jury’s verdict. This case arose out of the death of Raymond Smallman and the ensuing dispute between his two sons from a previous marriage and Linda Caraway, whom he married two weeks before his death. Mr. Smallman’s sons challenged the validity of their father’s marriage to Ms. Caraway and the validity of the lost will that Ms. Caraway sought to have established. Ms. Caraway claimed to be Mr. Smallman’s surviving spouse and the sole beneficiary of his estate pursuant to the terms of his will. The case went to trial, and the jury was allowed to hear evidence about Ms. Caraway’s real estate holdings and her late mother’s will. The jury found in favor of Mr. Smallman’s sons. The Court of Appeals affirmed. We granted Ms. Caraway permission to appeal to address whether Mr. Smallman’s sons had standing to contest the validity of their father’s second marriage and whether the introduction of evidence regarding Ms. Caraway’s late mother’s will and her real estate holdings was error and if so, whether it more probably than not affected the jury’s verdict. We hold that Ms. Caraway waived her argument that Mr. Smallman’s sons lacked standing to contest the validity of her marriage to their father. We further hold that the trial court erred in allowing into evidence testimony regarding Ms. Caraway’s real property holdings and her late mother’s will. Because this evidence more probably than not affected the jury’s verdict, we reverse the judgment of the trial court and remand for a new trial.

Appellant, Eric Pernell Taylor, was on probation after entering guilty plea in the Montgomery County Circuit Court on January 7, 2011. On July 13, 2011, a probation violation warrant was issued alleging that Appellant had failed to report his arrest, failed to report to his probation officer, failed to pay litigation taxes, and tested positive for cocaine. He also admitted to the cocaine usage in writing. After holding a probation revocation hearing, the trial court revoked Appellant’s probation and ordered him to serve his sentence in incarceration. After a thorough review of the record, we conclude that the trial court did not abuse its discretion in revoking the probation or ordering the service of the sentence in incarceration. Therefore, we affirm the decision of the trial court.