APPELLATE COURT OPINIONS

At issue in this appeal is the amount of income that can be imputed to the father for child support, as well as whether the mother should be charged with the attorney fees and costs in regard to an order of protection. The trial court found that the father was voluntarily underemployed. Finding that the evidence does not preponderate against the trial court’s finding of voluntary underemployment, we affirm the trial court as to that matter. We reverse the trial court’s ruling regarding the attorney fees and costs.

The petitioner, Tarrean V. Nuby, appeals the denial of his petition for post-conviction relief from his convictions for attempted first degree murder and aggravated robbery, arguing that he received ineffective assistance of both trial and appellate counsel. Following our review, we affirm the denial of the petition.

This is a medical malpractice case in which Pauletta C. Crawford (“Wife”) and James Crawford (“Husband”) filed suit against Eugene Kavanaugh, M.D. (“Doctor”). While the suit was pending, Tennessee Code Annotated section 29-26-122 was amended to require the contemporaneous filing of a certificate of good faith with complaints alleging medical malpractice. Husband and Wife (collectively the “Crawfords”) dismissed their suit and filed a new complaint that did not include a certificate of good faith. Doctor filed a motion to dismiss, and the court dismissed the case. The Crawfords appeal. We affirm the trial court.

The Defendant, Michael Antonio Dodson, pled guilty to aggravated rape and two counts of especially aggravated kidnapping, Class A felonies; two counts of aggravated robbery, Class B felonies; and aggravated burglary and employing a firearm during a felony, Class C felonies. See T.C.A. §§ 39-13-502 (2010) (aggravated rape), 39-13-305 (2010) (especially aggravated kidnapping), 39-13-402 (2010) (aggravated robbery), 39-14-403 (2010) (aggravated burglary), 39-17-1324 (Supp. 2008) (amended 2009) (employing a firearm). He was sentenced to serve twenty-five years for aggravated rape, twenty-three years for each of the especially aggravated kidnapping convictions, ten years for each of the aggravated robbery convictions, five years for aggravated burglary, and ten years for employing a firearm. The trial court imposed partial consecutive sentencing yielding an effective sentence of eighty-six years. The Defendant contends that the trial court erred in choosing the length of his sentences and in imposing consecutive sentencing. We affirm the judgments of the trial court.

The petitioner, Timothy Garvin Odom, appeals the denial of his petition for post-conviction relief from his conviction for rape of a child. On appeal, he argues that the trial court erred in denying his petition because he received the ineffective assistance of counsel. After review, we affirm the denial of the petition.

This appeal concerns the existence of an easement. The dispute between the two adjoining landowners began after the defendant landowners blocked the plaintiff neighboring landowner’s access to a roadway crossing over the defendants’ property. The plaintiff landowner filed this action seeking condemnation or a finding of an implied easement for access to the roadway over the defendants’ property, arguing that his property was landlocked. Upon the admission into evidence of severalaffidavits,the trialcourtfound both an easement implied from prior use and, in the alternative, an easement created by necessity. The defendant landowners now appeal. We affirm the decision of the trial court.
 

The Department of Children's Services petitioned the Trial Court to terminate the parental rights of the mother, DJ, and the presumptive father, TH, who was married to the mother at the time of the child's birth. Following an evidentiary hearing, the Trial Court terminated the parental rights of the mother DJ and her husband at the time of the child's birth, TH. Both parties appealed to this Court and we affirm the termination of the mother's parental rights and vacate the Judgment terminating TH's parental rights on the grounds that the statutory grounds for termination was not established by the evidence.

The Petitioner, Ricky Johnson, was convicted by a Madison County jury in 1989 of burglary of an automobile and grand larceny and was sentenced to concurrent eight-year sentences as a Range II, persistent offender. More than twenty-one years later, the Petitioner filed a petition for writ of error coram nobis, alleging that there was a variance between the indictment and the proof at trial and that his convictions violated double jeopardy protections. The Madison County Circuit Court summarily dismissed the petition. On appeal, the Petitioner argues that the coram nobis court erred: (1) in dismissing the petition without an evidentiary hearing and without appointing counsel; and (2) in denying him relief. Upon review, we affirm the judgment of the coram nobis court.

Appendix - Exhibit 1

Pursuant to a negotiated plea agreement, Defendant, Keele Camille Maynor (a/k/a Payne), pled guilty to nine charges and was sentenced as follows: in Count 1, Defendant pled guilty to Class C felony theft and was sentenced to serve 42 months in the Tennessee Department of Correction (TDOC); in Count 2, Defendant pled guilty to Class C felony theft and was sentenced to five years in TDOC, suspended with probation for ten years; in Count 3, Defendant pled guilty to Class D felony theft and was sentenced to three years in TDOC, suspended with probation for six years; in Count 4, Defendant pled guilty to Class D felony theft (although the judgment, in error, reflects a conviction for Class E felony theft) and was sentenced to three years in TDOC, suspended with probation for six years; in Count 5, Defendant pled guilty to Class E felony theft and was sentenced to two years in TDOC, suspended with probation for four years; in Count 6, Defendant pled guilty to Class D felony theft and was sentenced to three years in TDOC, suspended with probation for six years; in Count 7, Defendant pled guilty to Class E felony theft and was sentenced to two years in TDOC, suspended with probation for five years; in Count 8, Defendant pled guilty to Class E felony theft and was sentenced to two years in TDOC, suspended with probation for five years; and in Count 9, Defendant pled guilty to Class E felony forgery and was sentenced to serve two years in TDOC. Pursuant to the plea agreement, Defendant was to receive concurrent Range I sentences, but the trial court, following a sentencing hearing, determined the length, range, and manner of Defendant’s sentences. The trial court also imposed an agreed upon amount of restitution. On appeal, Defendant challenges the trial court’s imposition of a 42-month sentence of incarceration in Count 1 and asserts that the sentence structure imposed by the trial court results in consecutive, rather than concurrent, sentences. We affirm the convictions and sentences imposed in all counts, except for Count 4, which we remand for entry of a corrected judgment.

Plaintiff made claim for credit disability insurance coverage after he became disabled, and defendant insurance company denied benefits on the grounds of misrepresentations in the application for insurance, which he had executed. The Trial Court ruled in favor of plaintiff on the grounds that misrepresentations in the application did not increase the risk of loss. On appeal, we reverse the Trial Court's Judgment because the misrepresentations contained in the application for insurance increase defendant's risk of loss under the statute.

The defendant, Paul M. Stackhouse, was convicted of one count of aggravated sexual battery, a Class B felony, and sentenced to nine years in the Department of Correction. The defendant appeals his conviction, claiming that: (1) the evidence is insufficient to support his conviction; (2) the trial court abused its discretion by admitting certain expert testimony and by failing to provide a requested special jury instruction regarding same; (3) the trial court abused its discretion by allowing a witness to testify regarding a prior inconsistent statement made by one of the State’s witnesses during the State’s case-in-chief and by refusing to provide a limiting jury instruction regarding same; and (4) the trial court erred by failing to grant a judgment of acquittal. After carefully reviewing the record and the arguments of the parties, we affirm the judgment of the court below.

After a jury trial, both Appellants were found guilty of possession of .5 grams or more of cocaine with the intent to sell or deliver. As a result, they were both sentenced to fifteen years as Range II, multiple offenders. The sentences were ordered to run consecutively to sentences for other offenses for which the Appellants had already been sentenced. After the denial of a motion for new trial and motion for judgment of acquittal, Appellants have appealed to this Court. On appeal, both Appellants contend that the evidence was insufficient to support the convictions. Additionally, Appellant Currie insists that the trial court erred in denying the motion for new trial based on the “perjured testimony of a key witness.” After a review of the evidence, we determine that the evidence was sufficient to support the convictions and that Appellant Currie failed to show that the State knowingly utilized false testimony that was material to the conviction. Accordingly, the judgments of the trial court are affirmed.

A Sevier County grand jury indicted the Defendant, Casey Treat, for driving under the influence and driving under the influence per se. The Defendant pled guilty but reserved a certified question of law, pursuant to Tennessee Rule of Criminal Procedure 37(b)(2), as to whether the absence of the video recording of his stop violated his constitutional rights. After review, we conclude that this Court does not have jurisdiction to address the certified question because it does not comply with the strict requirements of Tennessee Rule of Criminal Procedure 37(b)(2), as the certified question is (1) not dispositive of the case and (2) overly broad. Accordingly, the appeal is dismissed.

This appeal involves the assertion of the qualified immunity defense in a 42 U.S.C. § 1983 (2008) action filed in state court. A registered nurse employed at a state psychiatric facility publicly disagreed with a change in the facility’s procedures for administering prescription medications at night and on the weekend. When the facility declined to change its procedures, the nurse filed a 42 U.S.C. § 1983 action in the Chancery Court for Davidson County against various officials and employees of the then Tennessee Department of Mental Health and Developmental Disabilities, alleging the existence of a hostile work environment and retaliation for the exercise of her constitutionally protected free speech rights. The defendants filed a motion for summary judgment on the nurse’s First Amendment claim and a motion for judgment on the pleadings asserting qualified immunity. The trial court, after considering the products of two years of discovery, granted both of the defendants’ motions and dismissed the nurse’s complaint. The Court of Appeals reversed the trial court with regard to both motions based on its conclusion that material issues of fact precluded both motions. King v. Betts, No. M2009-00117-COA-R3-CV, 2009 WL 4893590 (Tenn. Ct. App. Dec. 18, 2009). We granted the defendants’ Tenn. R. App. P. 11 application for permission to appeal to address the procedure for the consideration of qualified immunity defenses in 42 U.S.C. § 1983 actions filed in Tennessee’s courts and to determine whether the defendants were entitled to qualified immunity on the facts of this case. We have determined that the defendants are entitled to qualified immunity because the nurse has failed to demonstrate that the defendants’ response to her criticism of the changes in the procedures for administering prescription medications violated a clearly established right.

Petitioner, Timothy “Tink” Watson, was indicted by the Dyer County Grand Jury in October of 2005 for two counts of sale of more than .5 grams of cocaine. Petitioner represented himself at trial and was convicted by a jury of one count of sale of more than .5 grams of cocaine. After a sentencing hearing, Petitioner received a fifteen-year 1 sentence as a Range II, multiple offender. Petitioner filed several pleadings referred to as “amended” motions for new trial after a hearing. The trial court denied the motions. Petitioner subsequently pled guilty to five subsequent indictments through a plea agreement that included a waiver of his right to appeal the felony drug conviction from the October 2005 indictment. Petitioner then sought pro se post-conviction relief. After counsel was appointed, an amended petition was filed. The trial court held a hearing on the petition. It was dismissed after a hearing by the post-conviction court because it was untimely and because Petitioner had waived his claims by his plea agreement. Appellant appeals this decision. After a review, we determine that the petition was untimely and, therefore, properly dismissed by the post-conviction court. However, the record fails to include a judgment form for Count One of the indictment. Accordingly, the judgment of the post-conviction court is affirmed, but the matter is remanded to the trial court for entry of a judgment form for Count One of the indictment.

The defendant, Victor A. Askew, was convicted by a Montgomery County jury of premeditated first degree murder,attempted second degree murder,and felony evading arrest. He was subsequently sentenced to concurrent sentences of life imprisonment, eight years,and two years in the Department of Correction. On appeal, the defendant raised the single issue of sufficiency of the evidence with regard to his first degree murder conviction. Specifically, he contends that the State failed to present sufficient evidence of the element of premeditation. Following review of the record, we find no error and affirm the judgment of conviction

I concur in Parts I, II, III, V, VI, and VII of the majority opinion. I do not concur in Part IV of the opinion addressing whether federal or state procedural rules should apply to a qualified immunity defense because the issue of whether federal or state procedural law applies is not properly before this Court. See Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009).

A Shelby County Criminal Court jury convicted the defendant, Jerry Williams, of alternative counts of aggravated assault. The trial court ordered the convictions merged and imposed a Range I sentence of five years’ incarceration. In this appeal, the defendant challenges the sufficiency of the convicting evidence and the propriety of the five-year sentence. Discerning no error, we affirm. We remand the case, however, for the entry of a single judgment of conviction reflecting the merged convictions.

In this extraordinary appeal, the Defendant-Appellant,Charlotte McCarter, appeals the Sevier County Circuit Court’s order refusing to grant an interlocutory appeal regarding the denial of pretrial diversion. On appeal, McCarter argues that the prosecutor abused her discretion in denying her application for pretrial diversion by: (1) failing to properly consider her amenability to correction; (2) making “rote statements” that the evidence weighed in favor of denying pretrial diversion instead of properly weighing the relevant factors; (3) relying on the circumstances of the offense and the need for deterrence, where these factors were not of such “overwhelming significance” to justify the denial; and (4) failing to have “substantial evidence” to support her decision to deny pretrial diversion. Upon review, we affirm the judgment of the trial court.

The petitioner, Cameron Winselle, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief challenging his convictions of two counts of first degree murder on the basis of ineffective assistance of counsel. The petitioner specifically contends that trial counsel committed ineffective assistance by failing to present evidence of his diminished capacity, failing to exhaust peremptory challenges, failing to investigate the facts of the offense, and failing to move for the trial judge’s recusal based upon the trial judge’s previous employment as a prosecutor. The petitioner also contends that appellate counsel was deficient for failing to raise issues on appeal. Discerning no error, we affirm the judgment of the post-conviction court.

Defendant-Appellant, David Houston Greene, appeals the Sullivan County Circuit Court’s revocation of his probation in three different cases. He was originally convicted of possession of cocaine with intent to sell, aggravated perjury, and misdemeanor failure to appear. He received an effective eight-year sentence, all of which was suspended after thirty days incarceration. On appeal, Greene claims that the trial court abused its discretion in revoking his probation and in ordering him to serve the sentences in confinement. Upon review, we affirm the judgment of the trial court.

Appellant, the second mortgage holder on the subject property, appeals the trial court’s determination that Appellee held a valid first mortgage on the property, when Appellee’s mortgage was taken under a deed of trust that contained a scrivener’s error that incorrectly identified the property’s lot number. The trial court held that: (1) the scrivener’s error was not fatal to Appellant’s deed of trust as the instrument otherwise clearly identified the property; (2) Appellant’s mortgage was superior to Appellee’s; and (3) Appellee’s bid at Appellant’s foreclosure sale created a valid contract, under which Appellee owed Appellant the purchase price. Finding no error, we affirm.

The petitioner, Konstantinos Diotis, appeals from the dismissal of his petition for post conviction relief as time-barred. In this appeal, the petitioner contends that application of the statute of limitations in his case is inappropriate because (1) the United States Supreme Court decision in Padilla v. Kentucky, __ U.S. __, 130 S. Ct. 1473 (2010), should be applied retroactively and (2) principles of due process require the tolling of the statute of limitations. The petitioner waived his claim of due process tolling by failing to present it to the post conviction court. Further, because we conclude that Padilla should not be applied retroactively, we affirm the judgment of the post-conviction court dismissing the petition as untimely.

The pro se petitioner, Philip Reed Bryan, appeals the Shelby County Criminal Court’s summary dismissal of his petition for writ of habeas corpus. Following our review, we affirm the judgment of the habeas corpus court.