APPELLATE COURT OPINIONS

This appeal arises out of the dissolution of a partnership. After several days of trial, the parties reached a settlement agreement. After the partnership property was sold pursuant to the settlement agreement and the proceeds were to be disbursed, one of the defendants claimed that he was entitled to more money than the settlement agreement provided for him to receive. The trial judge denied the request for additional funds. We affirm and remand for the trial court to determine a reasonable and appropriate attorney’s fee.

The Defendant, Christopher Collins, was indicted by the Lawrence County grand jury on three counts of felony child neglect, a Class E felony. The Defendant waived his right to trial by a jury and was convicted by the trial court of two counts of felony child neglect and one count of misdemeanor child neglect. The Defendant received concurrent sentences of 18 months in the  Tennessee Department of Correction for the felony convictions and a concurrent sentence of 11 months and 29 days in the county jail for the misdemeanor conviction. In this appeal as of right, the Defendant contends that the evidence was insufficient to sustain his convictions and that in the alternative, he should have been convicted of attempted child neglect. Following our review, we conclude that there was insufficient evidence to sustain the Defendant’s convictions. As there was sufficient evidence to sustain a conviction of attempted child neglect, we reverse and vacate the Defendant’s convictions of felony and misdemeanor child neglect and impose two convictions of attempted felony child neglect, a Class A misdemeanor, and one conviction of attempted child neglect, a Class B misdemeanor. The case is remanded for a new sentencing hearing.

The Defendant, Jonathan T. Stewart, entered a plea of guilty to driving under the influence, first offense. The trial court imposed a sentence of eleven months and twenty-nine days to be suspended to probation after the service of forty-eight hours of confinement. As part of the plea agreement, the Defendant attempted to reserve a certified question of law, challenging the trial court’s denial of his motion to suppress the evidence resulting from his traffic stop.  Because the Defendant has failed to properly certify his issue for review, the appeal is dismissed.

This is a termination of parental rights case concerning a minor child Navaeh L. (“the Child”), who is the daughter of Elizabeth L. (“Mother”) and William T.(“Father”). Separate petitions to terminate the parents’ rights were filed by Nicole Q., the Child’s maternal aunt, and her husband, Bryan (collectively, “Aunt and Uncle”), after the Child was adjudicated dependent and neglected, pursuant to Mother’s stipulation. Following this finding, the Child was placed in the custody of Aunt and Uncle. Father’s paternity of the Child was not established until after the adjudicatory hearing, but before the petition to terminate was filed. Mother and Father, represented by separate counsel, each opposed the termination of their rights. Following a bench trial, the court granted both petitions upon finding, by clear and convincing evidence, that each of the alleged grounds was established and that termination was in the best interest of the Child. As to Father, the trial court relied upon the grounds of abandonment by failure to support and failure to visit and the persistence of unremedied conditions. Father appeals. ¹ We affirm.

The Defendant, Melvin L. Finley, pleaded guilty to one count of aggravated robbery, a Class B felony. See Tenn. Code Ann. § 39-13-402(b). The trial court sentenced the Defendant as a Range I, standard offender to nine years in the Department of Correction. In this direct appeal, the Defendant contends that the trial court erred when it: (1) did not sentence him to the Community Corrections Program; and (2) did not consider his drug addiction as a mitigating factor. After our review, we affirm the judgment of the trial court.

Plaintiff, a guest passenger in a vehicle involved in an accident, filed this action to recover uninsured motorist benefits. The vehicle in which Plaintiff was riding was owned and operated by an insured of Shelter Insurance Company. The accident was the fault of the driver of another vehicle who was not insured; therefore, Plaintiff seeks to recover uninsured motorist coverage benefits from Shelter. Insisting that Plaintiff was not entitled to benefits under the driver’s policy because Plaintiff did not meet the definition of an “insured” in the policy, Shelter moved for summary judgment. The trial court found that Plaintiff was an “insured” under the terms of the Shelter policy and denied the motion. This interlocutory appeal followed. We have determined that Plaintiff is not an “insured” pursuant to the terms of the Shelter policy and that Shelter is entitled to summary judgment as a matter of law. Therefore, we reverse and remand with instructions to grant Shelter’s motion for summary judgment.

The Petitioner, Celso Vilorio Melendez, aka Edwin Canales, appeals as of right the Davidson County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner alleges that his guilty pleas to two counts of facilitation to deliver over 300 grams of cocaine, a Class B felony, was not voluntarily, knowingly and understandingly made due to the ineffective assistance of counsel. Specifically, he contends that trial counsel did not advise him of the eligibility requirements for participation in the Department of Correction’s (DOC) Boot Camp Program, and that, had he been properly advised, he would not have pleaded guilty. After the appointment of counsel and a full evidentiary hearing, the post-conviction court found that the Petitioner failed to prove his allegations by clear and convincing evidence and denied the petition. Following our review, we conclude that trial counsel rendered deficient representation when he incorrectly advised the Petitioner that he was eligible for the boot camp program. We reverse the judgment of the post-conviction court and remand for a determination regarding whether that deficiency was prejudicial to the Petitioner.

The Petitioner, Gene Shelton Rucker, appeals the habeas corpus court’s summary dismissal of his petition for habeas corpus relief from his convictions for criminally negligent homicide and aggravated arson. In his petition, he asserts that his sentence is illegal because it was improperly enhanced in violation of the United States Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296 (2004). Following our review of the record and the applicable authorities, we conclude that principles of res judicata dictate that this issue not be relitigated. The order of dismissal is affirmed.

In this divorce case, the trial court granted Roger Dale Raper (“Husband”) and Johanna Raper (“Wife”) an absolute divorce, thereby ending their 26-year union. A bench trial was held to resolve the remaining issues of property division and alimony. The court divided the marital property and awarded Wife alimony in solido and alimony in futuro. Husband appeals and challenges each of these determinations. We affirm.

The trial court awarded a directed verdict to the Defendant in this tort action arising out of an automobile accident. We reverse and remand for further proceedings.

A Davidson County jury convicted Petitioner, Keith L. Jackson, of one count of possession with the intent to sell twenty-six grams or more of a substance containing cocaine in a drugfree school zone and one count of possession of a firearm with the intent to employ it in the commission of or escape from an offense. He was sentenced to an effective sentence of thirty-six years. Following an appeal to this Court, his conviction for possession of a firearm was reversed. Petitioner filed a petition for post-conviction relief which was unsuccessful. His subsequent petition for writ of habeas corpus was also unsuccessful. Petitioner has filed a second petition for writ of habeas corpus which was summarily dismissed by the habeas corpus court. Petitioner appeals the dismissal of his petition in this appeal. He argues that his sentence requiring a 100% release eligibility is unconstitutional and is contrary to the Sentencing Reform Act of 1989. After a thorough review of the record, we affirm the dismissal of the petition because these issues were determined by this Court in Petitioner’s prior appeal from the dismissal of his earlier petition for writ of habeas corpus.

Following his convictions for second degree murder and theft, the Petitioner, Christopher Kyle, filed a petition for post-conviction relief, alleging that his trial and appellate counsel were ineffective, specifically in failing to challenge the accuracy of the autopsy report and the sentencing procedure employed by the trial court. After a hearing, the post-conviction court denied the petition, and the Petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.

A Marshall County jury convicted the Defendant, Brian Mark Driggers, of forgery and misdemeanor theft, and the trial court sentenced him to one year and three months to be served in the Tennessee Department of Correction. On appeal, the Defendant contends that the evidence is insufficient to support his convictions, that the State failed to prove venue, and that the trial court erred when it denied the Defendant an alternative sentence. After a thorough review of the record and the applicable law, we affirm the trial court’s judgments.

Following a bench trial, the Defendant, Charles Phillip Maxwell, was convicted of driving on a suspended license, a Class B misdemeanor. The trial court revoked the Defendant’s license for a year and sentenced the Defendant to 30 days in the county jail, suspended to probation following the service of 24 hours in the county jail. In this appeal as of right, the Defendant contends that the evidence was insufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

The Petitioner, Calvin Owens, appeals from the Shelby County Criminal Court’s denial of post-conviction relief from his convictions for one count of attempted second degree murder, one count of attempted especially aggravated robbery, and two counts of aggravated robbery. On appeal, the Petitioner argues that trial counsel was ineffective in failing to communicate with him, in failing to properly investigate his case, in withdrawing the suppression motion regarding the photo spread identification, in questioning the victim regarding the bad dreams he had while recovering from his injuries in the hospital, and in failing to advise him about the advantages and disadvantages of testifying at trial. In addition, the Petitioner argues that appellate counsel was ineffective in failing to appeal a hearsay issue that was included in the motion for new trial. Upon review, we affirm the judgment of the post-conviction court.

Following a bench trial, the Defendant, Alan Dale Bobyarchick, was convicted of violating an order of protection, a Class A misdemeanor. See Tenn. Code Ann. § 39-13-113(g). In this direct appeal, he contends that, in the Order of Protection, the circuit court did not make any specific findings of fact that he committed domestic abuse, sexual assault, or stalking, and, therefore, he could not be convicted of violating the Order of Protection pursuant to Tennessee Code Annotated section 39-13-113(f)(3). After our review, we affirm the judgment of the trial court.

Tina J. Parks (“the Buyer”) purchased an automobile on an installment payment plan and signed a “Retail Installment Contract and Security Agreement” (“the Installment Contract”) pledging the vehicle as collateral to the seller-lender, Chris Yousif dba Quality Motors (“the Seller”). Mid-Atlantic Finance Company, Inc. purchased the Seller’s rights in the Installment Contract. Mid-Atlantic later informed the Seller when the Buyer fell behind on her payments. The Seller repossessed the vehicle. Mid-Atlantic sold its rights under the Installment Contract to the Seller. The Buyer then filed this action against the Seller and Mid-Atlantic on various theories. The trial court granted Mid-Atlantic summary judgment and dismissed the Buyer’s claim against the company, finding that, as the purchaser of the Installment Contract, it had no duty to the Buyer. The Buyer appeals. We affirm.

The petitioner, Mariam Fada Dirie, pleaded guilty to two counts of aggravated child abuse by neglect, a Class A felony, and received concurrent sentences of 17 years’ incarceration. A timely filed petition for post-conviction relief followed wherein the petitioner alleged that her guilty pleas were involuntary due to the ineffective assistance of counsel. Following the appointment of counsel, amendment of the petition, and an evidentiary hearing, the postconviction court denied relief. On appeal, the petitioner contends that the post-conviction court erred by denying relief. Discerning no error, we affirm the judgment of the postconviction court.

Appellants filed a complaint for declaratory judgment seeking to be named the sole heirs to trust residue. However, the Attorney General moved for summary judgment, claiming that a later trust document provided for a full disposition of the trust assets, and therefore, that no assets remained to which Appellants could be entitled. The trial court granted summary judgment, finding that the intent to leave no residue stated in the later document superseded the prior edition. On appeal, Appellants argue that intent is irrelevant without a determination of the legal efficacy of the  trust documents, and that the trial court lacked subject matter jurisdiction to render an advisory opinion. We find that the trial court properly exercised subject matter jurisdiction in adjudicating the declaratory judgment. Additionally, we affirm the trial court’s denial of attorney fees and costs to SunTrust incurred at trial, and we decline to award SunTrust its attorney fees and costs incurred on appeal.

A jury convicted the petitioner, Willie Dockins, of first degree murder. The trial court sentenced him to life imprisonment with the possibility of parole. On direct appeal, this court upheld the conviction and sentence. The petitioner filed a pro se petition for post-conviction relief and two amended petitions for post-conviction relief alleging ineffective assistance of counsel at trial and on direct appeal. The post-conviction court denied relief, and the petitioner now appeals. Following a review of the parties’ briefs, the record, and applicable law, we affirm the denial of post-conviction relief.

This is a zoning case. The homeowner purchased a house in an area zoned as single-family residential and applied to have the property rezoned for office use. The application was considered by the town legislative body. Some members of the legislative body recused themselves. A majority of the members present voted in favor of the rezoning application, but it did not receive a majority of the entire membership of the legislative body, including the members who recused themselves. Pursuant to T.C.A. § 13-7-204, the rezoning application was deemed to have failed. The homeowner then filed a petition for a common law writ of certiorari, asking that the trial court deem the rezoning application approved based on the favorable vote of the majority of  the members who participated in the consideration of his rezoning application. The trial court  granted the writ, deemed the rezoning application approved, and modified the legislative body’s  decision to grant the homeowner’s application. The town appeals. We reverse, finding, inter alia,  that an affirmative vote by a majority of the entire membership of the town legislative body was required for adoption of the rezoning application.

State representative appeals dismissal of her suit to recover attorney fees incurred as a result of her former opponent’s contest of the election. The trial court held that the Tennessee Constitution and statutes governing election contests vest exclusive jurisdiction to decide contests for the office of state representative, and that, consequently, the court was without jurisdiction to determine the issue of costs and fees awardable under the statute. We hold that the chancery court correctly determined that it was without jurisdiction to decide issues arising under § 2-17-115.

The petitioner, James E. Lofton, appeals the Lauderdale County Circuit Court’s dismissal of his petition for writ of habeas corpus. Following our review, we affirm the summary dismissal of the petition.

Plaintiffs appeal the summary dismissal of their medical malpractice claims against three physicians, an orthopedic surgeon, and two hematologists. In December 2004, Plaintiffs’ mother, who suffered from several medical conditions, underwent a total hip replacement and remained in the hospital under the care of several doctors for ten days. Nine days after surgery, her condition dramatically declined; she died the following day from a severe diffuse pulmonary and gastrointestinal hemorrhage. Plaintiffs filed suit alleging the physicians breached the standard of care for their respective specialties in the care of their mother. Each defendant filed a motion for summary judgment and each motion was supported by the affidavit of the defendant as an expert witness. Plaintiffs submitted an affidavit of their expert witness in response. The trial court ruled that Plaintiffs’ only expert was not a qualified witness under Tenn. Code Ann. § 29-26-115 and granted summary judgment to all three defendants. On appeal, Plaintiffs claim the trial court abused its discretion in finding that their expert witness was not qualified to testify. We affirm the trial court’s ruling that Plaintiffs’ expert was not qualified to testify under Tenn. Code Ann. § 29-26-115 and the summary dismissal of Plaintiffs’ claims.

In this action, the Trial Court ordered the Department of Children's Services which had custody of the minor child, to furnish the parents with medical information, including video tapes. A written response was not made by the Department and the video tapes were not obtained and furnished to the parents. The Trial Court held the Department in willful contempt of the Court and entered sanctions as punishment. The Department has appealed.  We hold that the record does not establish a basis to hold the Department in willful contempt of Court and we reverse the Trial Court's contempt judgment.