APPELLATE COURT OPINIONS

I concur in Judge Wedemeyer’s opinion. I write separately to express my concern of how the trial court dealt with the issue of a juror’s communication with the witness Dr. Adele Lewis. The appellate record indicates that when the fact of the communication was made known to the trial court, there was no discussion of the matter on the record. Any instructions to the jury concerning appropriate juror conduct during the trial are not included in the transcripts, although the jury voir dire was added in a supplement to the record. Direct communication by a juror to a witness during the course of a trial in the nature of the “Facebook” message in this case could never be considered appropriate.

I concur in Judge Wedemeyer’s opinion. I write separately to express my concern of how the trial court dealt with the issue of a juror’s communication with the witness Dr. Adele Lewis. The appellate record indicates that when the fact of the communication was made known to the trial court, there was no discussion of the matter on the record. Any instructions to the jury concerning appropriate juror conduct during the trial are not included in the transcripts, although the jury voir dire was added in a supplement to the record. Direct communication by a juror to a witness during the course of a trial in the nature of the “Facebook” message in this case could never be considered appropriate.

This case is before us upon mandate from the Tennessee Supreme Court for reconsideration of our previous opinion, Kennard v. Townsend, No. W2010–00461–COA–R3C, 2011 WL 1434625 (Tenn. Ct. App. April 14, 2011), in light of the Tennessee Supreme Court's decision in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). In our previous review of this medical malpractice case, we upheld the trial court’s exclusion of Appellant’s medical expert under the locality rule, and further affirmed the trial court’s grant of summary judgment against the Appellant. Because the qualifications of Appellant’s expert were not considered in light of Shipley, and because the admission of expert testimony is a matter of discretion in the trial court, we vacate the orders excluding the testimony of the Appellant’s expert and the grant of summary judgment, and remand for reconsideration in light of the Shipley decision. Vacated and remanded.

The Petitioner, James K. Robbins, appeals as of right from the Morgan County Criminal Court’s dismissal of his fourth petition for writ of habeas corpus. He contends that the judgment of conviction is void because he was sentenced illegally. Upon review, we affirm the habeas corpus court’s judgment.

The Defendant, Herman S. Hester, Jr., pled guilty to four counts of selling over 0.5 grams of cocaine. The trial court imposed the ten-year effective sentenced agreed to in the plea agreement and granted the Defendant’s request for an alterative sentence, placing him in the Community Alternatives to Prison Program (“CAPP”). The Defendant’s alternative sentence supervisor filed a warrant alleging that he had violated the terms of the program. After a hearing, the trial court returned the Defendant to CAPP. The Defendant’s supervisor filed a second warrant, and, after a hearing, the trial court revoked the Defendant’s alternative sentence and ordered him to serve the balance of his sentence in the Tennessee Department of Correction. On appeal, the Defendant contends the trial court erred when it revoked his probation. After reviewing the record, we affirm the trial court’s judgment.

This is a case involving a prescriptive easement  The City of Knoxville filed a petition for an injunction against the Appellant, alleging that he was obstructing a public alley that was created by a valid prescriptive easement on his property. The Appellant answered, denying that the City of Knoxville had any right to use his property as an alley and asserting a counterclaim for damages and attorney fees. The trial court found a valid prescriptive easement, and enjoined the Appellant from blocking the alley. The Appellant appeals. Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

This appeal involves a nuisance claim. The plaintiff landowners filed a nuisance action against the defendant electrical cooperative, alleging that the cooperative’s electrical substation, built near the plaintiffs’ home, constituted a nuisance. The electrical cooperative filed a motion to dismiss, alleging that the landowners’ claim was in actuality a claim for inverse condemnation that was time-barred, and that they were precluded from asserting a tort claim for nuisance. The trial court granted the motion, and the plaintiff landowners now appeal. We reverse.
 

Six sergeants (collectively “the Sergeants”) employed by Jim Hammond, the Sheriff of Hamilton County (“the Sheriff”), filed a grievance with the Hamilton County Sheriff’s Office Civil Service Board (“the Board”) complaining that there is an unlawful disparity in pay among the 19 sergeants on the force. The Board found a disparity and ordered the Sheriff “to equalize their pay and if all [s]ergeants do the same job that they should be paid the same if there is no written criteria to establish standards.” The Sheriff appealed 1 to the trial court by petition for a writ of certiorari. The court (1) held that the Board was without authority to order the Sheriff to equalize the pay of the 19 sergeants and (2) declared the Board’s decision “null and void.” The Sergeants appeal. We modify the trial court’s judgment and remand to the Board with instructions.

The defendant, L.V. Williamson, appeals the judgment of the trial court revoking his probation and ordering that he serve the balance of his sentence in confinement, arguing that his youth and candor before the court should have resulted in less than the full revocation of his probation. Following our review, we affirm the judgment of the trial court.

The employee, a certified nursing assistant, sustained an injury to his shoulder while moving a patient. Six months later, the employee returned to work with significant restrictions on the use of his right arm. After two weeks of on-the-job training as a phlebotomist, which offered a higher pay grade, the employee notified the employer of his resignation, believing that he would be unable to handle the duties associated with his new position. When he made a claim for workers’ compensation benefits, the trial court, accrediting the testimony of the employee, held that he did not have a meaningful return to work and applied a multiplier of six to the assigned impairment rating. A special workers’ compensation panel reversed, concluding that the evidence preponderated against the trial court’s ruling that the employee had not made a meaningful return to work and reducing the award to one-and-one-half times the impairment rating. Because the evidence demonstrates that the employee did have a meaningful return to work, the judgment of the panel is affirmed.
 

The employee, an undercover drug investigator for the City of Savannah, alleged that he sustained a heart attack as a result of a physical confrontation with a suspect on March 2, 2005, during which he experienced tightness in his chest and shortness of breath. He experienced pressure in his chest and low energy but continued to work the following two days. On March 5, while engaged in activities unrelated to his job, he experienced nausea, profuse sweating, and severe pain in his chest, jaw, and left arm. His wife took him to a hospital emergency room where he was treated for an acute myocardial infarction. At trial, one of his treating physicians testified that the heart attack began on March 2 and continued until March 5. A second treating physician and an evaluating physician testified that the March 2 incident did not cause the March 5 heart attack. The trial court found that the heart attack began on March 2, and the employer appealed. On appeal, the employer contends that the trial court erred in finding that the statutory presumption had not been overcome, erred in concluding that employee’s heart attack began on March 2, 2005, and erred by finding that employee’s heart attack was causally related to his employment. Although we agree that the trial court erred in its application of the statutory presumption, we affirm the judgment of the trial court.

This appeal presents the issue of whether a widow who signed a prenuptial agreement is entitled to an elective share of her husband’s estate. The evidence does not preponderate against the trial court’s finding that the widow signed the prenuptial agreement knowledgeably. Given the validity of the prenuptial agreement, we affirm the trial court’s decision denying the widow an elective share.
 

Ronkeivius Williamson (“the Petitioner”) filed for post-conviction relief from his conviction of second degree murder, and the resulting sentence of twenty-five years, on the grounds that he received ineffective assistance of counsel in conjunction with his guilty plea. After an evidentiary hearing, the post-conviction court denied relief, and this appeal followed. Upon our careful review of the record, we affirm the judgment of the post-conviction court.

Joshua Daniel Brookshire (“the Defendant”) pled guilty to five counts of burglary of an automobile and entered nolo contendere pleas to two additional counts of burglary of an automobile. The trial court sentenced the Defendant as a Range I offender to concurrent terms of two years to serve in the Tennessee Department of Correction on each of the seven counts. The Defendant then reached his determinate release date and was released onto supervised probation. Subsequently, a probation revocation warrant was issued alleging that the Defendant had violated his probation by committing new driving offenses, changing residences without informing his probation officer, failing to report, failing to obtain permission to leave his county of residence, and failing to pay his probation fees. The Defendant was taken into custody, and the trial court later conducted a revocation hearing. At the conclusion of the hearing, the trial court revoked the Defendant’s probation and ordered him to serve his remaining sentence in confinement. The Defendant has appealed the trial court’s ruling. Upon our careful review of the record, we affirm the trial court’s judgment.

In September 2006, the Defendant, Marcell Jermaine Marbury, pled guilty to voluntary manslaughter. He was sentenced as a Range I, standard offender to six years and was placed on probation. Subsequently, the Defendant was transferred to enhanced probation. In February 2011, a violation report was filed, the fourth against the Defendant, citing violations of an arrest for a new offense, failure to report, and possession of illegal drugs. Following a hearing, the trial court revoked the Defendant’s sentence of probation and ordered that he serve the remainder of his six-year sentence in the Department of Correction (“DOC”). On appeal, the Defendant challenges the trial court’s imposition of total incarceration. After a review of the record, we conclude that the trial court did not abuse its discretion and affirm the judgment of the trial court.

The petitioner, David Hearing, filed a petition for a writ of habeas corpus, seeking relief from his two convictions of felony murder and the accompanying life sentences. The habeas corpus court denied relief, and the petitioner appeals. Upon review, we affirm the judgment of the habeas corpus court.

A Davidson County jury found the Petitioner, Benjamin Ashley Ray Dickens, guilty of first degree felony murder, and the trial court sentenced him to life imprisonment in the Tennessee Department of Correction. The Petitioner appealed, and this Court affirmed the conviction in State v. Benjamin Ashley Ray Dickens, No. M2006-01697-CCA-R3-CD, 2007 WL 1988024, at *4 (Tenn. Crim. App., at Nashville, May 28, 2003), perm. app. denied (Tenn. Nov. 19, 2007). The Petitioner filed a petition for post-conviction relief and filed two subsequent amended petitions. After the post-conviction court held an evidentiary hearing, it dismissed the petition. On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his petition because he received the ineffective assistance of counsel at trial, and he further argues that the State made improper arguments during its closing argument,amounting to prosecutorial misconduct. After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

This appeal involves a child support arrearage. The father sought a retroactive modification of the child support order and forgiveness of the arrearage upon learning that he was not the biological father of the child. The trial court held that it was impermissible to modify the valid child support order. The father appeals. We affirm.

The Petitioner, Roger Dale Harris, appeals the Johnson County Criminal Court’s denial of his petition for habeas corpus relief from his 1991 conviction for first degree murder and resulting sentence of life imprisonment. He contends that the conviction is void because of a defective indictment and that the trial judge should have recused himself. The State has moved this court to affirm the trial court’s denial of relief by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The State’s motion for a memorandum opinion is granted, and the judgment of the trial court is affirmed.

William Robert Lindsley (“the plaintiff’) filed this action for divorce against Lisa Whitman Lindsley (“the defendant”). The defendant, along with her answer, asserted a counterclaim asking that the marriage be declared void for bigamy predicated upon the fact that the plaintiff was married when he purported to marry her. The plaintiff obtained a divorce from his previous wife before the parties to this action separated. The defendant filed a motion for summary judgment asking that their marriage be declared void. The trial court granted the defendant summary judgment and the plaintiff appealed. In Lindsley v. Lindsley, No. E2008-02525-COA-R3-CV, 2010 WL 2349200 (Tenn. Ct. App. E.S., filed June 11, 2010) (“Lindsley I”) we held that “under Texas law where [the parties were] married, . . . they could, under the [Texas] statute, enter into a common- aw marriage after the spouse was divorced in the prior marriage.” Id. at *1. Accordingly, we reversed the trial court upon finding that there was a “disputed issue of fact . . . whether the parties entered into a common-law marriage after the plaintiff’s prior marriage ended.” Id. We remanded “for a determination of this factual issue.” Id. On remand, the trial court heard evidence and held that the plaintiff did not satisfy his burden of showing that the parties’   cohabitation established the elements of a common law marriage under Texas law. The plaintiff appeals. We affirm.

Husband appeals his conviction of fourteen counts of criminal contempt for violations of the Marital Dissolution Agreement and the imposition of fourteen consecutive ten-day sentences for a total of 140 days in jail. Husband also appeals an award of attorney’s fees to Wife. We affirm the award of attorney’s fees to Wife and the finding that Husband was guilty of fourteen separate counts of criminal contempt; however, we find the imposition of the maximum sentence was excessive and employ our authority under Thigpen v. Thigpen, 874 S.W.2d 51, 54 (Tenn. Ct. App. 1993) to modify the sentence. Applying contempt sentencing principles found in In re Sneed, 302 S.W.3d 825 (Tenn. 2010) and sentencing considerations under Tennessee Code Annotated § 40-35-103 and 115(b), the sentences for twelve of the counts are reduced to four (4) days each, which will run consecutive to each other, the sentences for the two remaining counts are reduced to one (1) day each, which will run concurrent to each other but consecutive to the other twelve counts for an effective sentence of forty-nine (49) days. We also award Wife her reasonable attorney’s fees on appeal pursuant to the enforcement provision contained in the parties’ marital dissolution agreement.
 

This action was filed by Arlie “Max” Watson, an elected county commissioner of Sevier County, and three other citizens and taxpayers of Sevier County, Peggy Marshall, John A. Meyers and Gerra Davis-Mary (collectively “the Plaintiffs”). They purported to act both individually and on behalf of the State of Tennessee. They named as defendants the county mayor, Sevier County, and the county commission as a body (collectively “the Defendants”). They sought to invalidate certain actions – primarily the commission’s adoption of certain procedural rules at a meeting held June 23, 2008 – and to disgorge the mayor of benefits he “wrongly” received. The trial court initially dismissed all claims – except those made under the Open Meetings Act – for lack of standing. It ordered that the caption be amended toreflect that the Plaintiffs were acting individually and not on behalf of the State. The trial court allowed the Open Meetings Act claims to proceed through discovery. Both sides of the dispute filed a motion for summary judgment. With the exception of a finding that minutes of some committee meetings were not properly filed in both the office of the county clerk and the county mayor as required by a local rule, the court found no deficiencies in the challenged actions. It granted the Defendants summary judgment as to all of the Open Meetings Act claims. The Plaintiffs appeal. We affirm.

The petitioner, Roger T. Johnson, appeals the Davidson County Criminal Court’s summary dismissal of his pro se petition for the writ of habeas corpus. In 1994, the petitioner pled guilty to first degree murder and second degree murder, and the trial court sentenced him to the agreed sentence of consecutive terms of life plus thirty years in the Department of Correction. In the instant petition for habeas corpus relief, the petitioner alleges that his convictions are void because the trial court illegally altered the terms contained in his judgment of conviction for second degree murder. This alteration, he asserts, includes an illegal sentence. He further contends the trial court erred when it summarily dismissed his petition. Following review of the record, we find no error and affirm.

The defendant, Bryan K. Watkins, appeals the revocation of his probation, arguing that the trial court abused its discretion by basing its revocation decision on his failure to pay court costs and supervision fees without also making a determination that the nonpayment was willful. Following our review, we affirm the judgment of the trial court revoking the defendant’s probation and ordering that he serve the balance of his sentence in confinement.

After fourteen years of marriage, Alyson Leigh Amonette Eberting (“Wife”) sued Jeffrey Jennings Eberting (“Husband”) for divorce. After a trial, the Trial Court entered its Final Judgment for Divorce on August 12, 2010, which, inter alia, awarded Wife a divorce, distributed the marital property, entered a Permanent Parenting Plan, awarded Wife transitional alimony, and awarded Wife attorney’s fees as alimony in solido. Husband appeals raising issues regarding the valuation of his orthodontic practice, the parenting plan, and the award of Wife’s attorney’s fees. Wife raises issues concerning the overall property division, and the amount of attorney fees and expenses awarded to Wife as alimony in solido. We affirm.