APPELLATE COURT OPINIONS

A corporation filed suit against two of its former employees for violating the terms of a non-compete agreement. The defendants argued that the agreement was rendered unenforceable by changes in the structure of the business and their relationship to it after the agreement was executed. The business was originally a sole proprietorship, and the defendants worked for it as independent contractors. Several years later, the business was chartered as a corporation, but with no change in its ownership or in its day-to-day operations. The defendants became employees of the corporation while keeping the same compensation, working conditions and duties as before. The trial court granted summary judgment to the employees, ruling that the corporation had no standing to sue because it was not a party to the original agreement. We reverse, because the non-compete agreement was assigned to the corporation by operation of law.

The petitioner, Reginald Dion Hughes, appeals the circuit ¹ court’s order summarily dismissing his pro se petition for writ of habeas corpus. Following our review of the record and applicable law, we affirm the court’s order.

The petitioner, Stacy Johnson, was convicted of eight counts of burglary of a motor vehicle, two counts of burglary of a building, and theft of property over $1000. He received an effective sentence of thirty years. He seeks post-conviction relief arguing that he received the ineffective assistance of counsel at trial. He appeals the trial court’s denial of post-conviction relief, arguing that his trial counsel was ineffective in failing to move to sever his indictments and in failing to investigate an alibi defense and defense witnesses. We affirm the judgment of the trial court.

The Appellant, Quincy Bryan Banks, was convicted by a Davidson County jury of two counts of aggravated rape and one count of especially aggravated kidnapping. For these Class A felony convictions, Banks received concurrent twenty-three-year sentences for each aggravated rape conviction, to be served consecutively to a twenty-three-year sentence for especially aggravated kidnapping. On appeal, Banks challenges his convictions and resulting sentences, specifically asserting: (1) that the evidence is insufficient to support each of his three convictions and that the conviction for especially aggravated kidnapping violates the due process holding of State v. Anthony; and (2) that the aggregate sentence of forty-six years is excessive based upon: (a) misapplication of enhancing factors with regard to the length of the respective sentences; and (b) the erroneous imposition of consecutive sentences. After review, we conclude that Banks’ challenges to his convictions are without merit. Accordingly, the convictions are affirmed. With regard to sentencing, however, we conclude that because Banks was sentenced under provisions of the June 7, 2005 sentencing amendments for crimes committed in November 2004, without a waiver of his ex post facto protections as required by statute, remand for a new sentencing hearing is required. Furthermore, because the sentencing record fails to demonstrate the requisite considerations for the imposition of consecutive sentencing, the case is also remanded for reconsideration of that issue and for entry of corrected judgment forms in accordance with this opinion.

The petitioner, Otis Morris, appeals the post-conviction court’s denial of his petition for post-conviction relief. On appeal, he argues that he entered into an unknowing and involuntary guilty plea to the charge of attempted second degree murder. After a thorough review of the record and the parties’ briefs, the judgment of the post-conviction court denying post-conviction relief is affirmed.

The defendant, James Leonard Corder, was convicted of driving on a revoked license and violating the Habitual Motor Vehicle Offender Act. The defendant was sentenced to six years in confinement.  On appeal, the defendant argues that the evidence was not sufficient to sustain his conviction. The defendant also argues that the statute cited in the warrant for the defendant’s arrest was different from the statute cited in the defendant’s indictment, and therefore “an error.” Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the trial court.

Appellant, Alexander Guzman-Chavez, pled guilty to aggravated assault, with an agreed sentence of six years as a Range I offender. The parties agreed that the trial court would determine the manner of service of the sentence, and, after a hearing, the court sentenced Appellant to incarceration, denying him an alternative sentence. On appeal, Appellant contends that the trial court erred by: (1) considering enhancement factors when deciding the manner by which Appellant should serve his sentence; (2) improperly applying enhancement factor number (10), that the risk to human life was high, because a fetus is not a person for purposes of this enhancement factor; and (3) denying him an alternative sentence based, in part, on his facial expression during the sentencing hearing. Because it appears from the record that the trial court properly considered and applied the applicable enhancement factors and based its denial of an alternative sentence on appropriate considerations, the judgment of the trial court is affirmed.

I concur with the result reached by the majority, but write separately to more closely examine various statutes which are applicable, either directly or indirectly, to the issue in this case. The source of the contested issue is Tennessee Code Annotated section 39-17-1322 which provides in full as follows:

In August 2004, the petitioner, John Grider, entered a “best interest” guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), to one count of second degree murder, a Class A felony. The trial court sentenced the petitioner to twenty years in the Department of Correction. In June 2005, the petitioner filed a petition for post-conviction relief. Following a January 2006 hearing, the post-conviction court denied the petition. The petitioner appeals, alleging that he received the ineffective assistance of counsel in that counsel failed to adequately communicate with him during the time leading to his plea and failed to file a motion to suppress his statements to police. After reviewing the record, we conclude that petitioner did not receive ineffective assistance of counsel and therefore affirm the judgment of the post-conviction court.

I respectfully dissent from the majority’s conclusion that Dr. Victor A. Pestrak’s report was properly admitted and that this Court’s interpretation of Rule 706 of the Tennessee Rules of Evidence in Dover v. Dover, 821 S.W.2d 593, 595 (Tenn. Ct. App. 1991), is too rigid. I submit that the majority's decision ignores the strict requirements of Rule 706 and opens the door for abuse of that rule.

This appeal involves a dispute regarding the residential schedule for a twelve-year-old child. In the divorce proceeding filed in the Chancery Court for Sumner County, the trial court, at the parties’ request, appointed a psychologist to examine the parties and their child and to report his findings and conclusions to the court and the parties. After the psychologist completed and filed his reports, the trial court and the parties used them to fashion interim visitation orders. Despite the earlier use of the reports, the mother objected to the use of the reports at trial on the ground that she had not been afforded an opportunity to depose the psychologist. The trial court overruled the objection. After receiving the testimony of the parties and their child, the court designated the father as the primary residential parent and fashioned a residential schedule accordingly. On this appeal, the mother asserts that the trial court erred by (1) admitting and considering the psychologist’s report, (2) designating the father as the primary residential parent, and (3) declining to award her attorney’s fees. We have determined that the wife waived her opportunity to object to the introduction of the psychologist’s reports. We have also determined that the evidence presented at the trial is, by itself, sufficient to support the trial court’s designation of the father as the primary residential parent and that the trial court did not err by denying the mother’s request for attorney’s fees.

This is a negligence case. The plaintiff, a female high school student, was being verbally harassed by a male student. The plaintiff complained repeatedly to a school administrator, who assured her that he would take care of the situation. The male student’s taunts did not stop and he threatened to beat up the plaintiff. The school administrator was told about the threat and took no action. Subsequently, in the school hallway, a confrontation between the male student and the female plaintiff resulted in the male student punching the plaintiff in the face and causing serious injuries. A lawsuit was filed on behalf of the female student against the high school board of education. The trial court denied the school board’s motion for summary judgment, and the case was tried. The trial court found for the plaintiff, awarding damages and medical expenses. The school board argued that the award should be reduced under comparative fault principles, but the trial court declined to do so because it found that the male student was the instigator. The school board appeals, arguing, inter alia, that the trial court erred by denying its motion for summary judgment, by not holding that the school board was immune under the public duty doctrine, by allocating no fault to the plaintiff, by not appropriately weighing judicial admissions of fault by the plaintiff, and by applying the clear and convincing evidence standard to determine whether the school board had established comparative fault. We affirm, finding that the denial of the summary judgment motion is not appealable after a trial on the merits, that the public duty doctrine is not applicable, that the trial court found that the male student was the instigator under the preponderance of the evidence standard, and that the preponderance of the evidence supports the trial court’s decision, even considering the plaintiff’s judicial admissions.

As a result of stealing funds from her employer, in 2002, Appellant, Laura June Mays, was convicted by a Hardeman County jury of theft of property between $10,000 and $60,000. Upon her conviction, the trial court placed Appellant on probation with a requirement that she and her co-defendant make restitution in the amount of $42,000. On January 5, 2006, Appellant’s probation was extended.  Appellant failed to make payments pursuant to the January 5, 2006 order. On October 31, 2006, a probation violation warrant was filed. Following a hearing, the trial court revoked Appellant’s probation for failure to pay restitution. On appeal, Appellant argues that the trial court erred in revoking her probation without taking into account her ability to pay. We reverse and remand the trial court’s decision because the evidence preponderates against the trial court’s findings that Appellant has willfully refused to pay her restitution or make a bona fide attempt to obtain the means to pay her restitution.

I concur in the results but would have deferred to the trial court’s rationale for dismissing the indictments had it availed the State a prior opportunity to resist the dismissal.

Appellee, Tracy C. Clark, was indicted by the Williamson County Grand Jury for possession of a weapon on school grounds. Appellee filed a motion to dismiss the indictment based on a claim of self-defense, averring that the facts would not support a conviction for the offense. The trial court dismissed the indictment after conducting a pre-trial evidentiary hearing and determining that Appellee could not be convicted because he acted in self-defense. The State filed an untimely notice of appeal. This Court, in the interest of justice, accepted the late-filed notice of appeal. Because we determine that the trial court improperly conducted a pre-trial evidentiary hearing on the motion to dismiss which essentially involved resolution of the question of Appellee’s guilt or innocence, we reverse the trial court’s ruling and remand the case for reinstatement of the indictment.

Defendant Christopher Carney and Defendant Anthony Mitchell were each indicted for the sale and delivery of cocaine, a Schedule II drug. In both cases, the trial court dismissed the indictments, and the State now appeals. The cases were consolidated for purposes of appeal. After a thorough review, we reverse the trial court’s dismissal of the indictments as to each Defendant and remand to the trial court for further proceedings.

I must respectfully dissent from the majority opinion in this case, on the grounds that the proof does not support a finding of willful abandonment by the Father.1 Specifically, there is no evidence that the Father was aware of his duty to visit, a necessary element of willfulness.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This action, seeking permanent partial disability benefits attributable to a disputed diagnosis of a permanent lung injury, was dismissed by the trial court. We affirm the judgment of the trial court.

This appeal involves a petition to terminate a father’s parental rights that was filed by the child’s great aunt, great uncle, and another couple who would like to adopt the child. The juvenile court dismissed the petition upon finding that the father did not willfully abandon the child. The court
found that the great aunt and uncle had interfered with the father’s attempts to visit the child. The petitioners appeal. We reverse and remand for further proceedings.

The Petitioner, Terry D. Brewer, appeals the Lake County Circuit Court’s summary dismissal of his petition for the writ of habeas corpus. On appeal, Brewer argues that the indictment under which he was charged was defective, and, as a result, the Henderson County Circuit Court was without subject matter jurisdiction to enter judgments of conviction and resulting sentence of forty-five years. As such, Brewer asserts that his convictions for aggravated rape, aggravated sexual battery, and incest are void. After review, we conclude that the alleged defect is non-jurisdictional in nature and, because it was not raised prior to trial, it is waived. See Tenn. R. Crim. P. 12(f). Accordingly, summary dismissal is affirmed.

Defendant, Timothy Swofford, presents for review a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). Defendant entered a plea of guilty to one count of driving under the influence (DUI), first offense, a Class A misdemeanor. The trial court sentenced Defendant to eleven months, twenty-nine days, to be suspended after serving forty-eight hours in confinement. As a condition of his guilty plea, Defendant properly reserved a certified question of law as to whether he was subjected to an unconstitutional traffic stop. After a review of the record, we affirm the judgment of the trial court.

In this appeal we must determine whether an injured party was a “farm employee” within the meaning of a farm owner’s liability insurance policy. The alleged employee is the farm owner’s father. He was grinding corn to feed the farm owner’s cattle when he was injured. The father and his wife filed suit against the son and his wife seeking to recover damages as a result of the accident. The son’s farm owner’s liability policy provided coverage for occurrences to “farm employees” in certain instances. The insurer filed this declaratory judgment action seeking a declaration that it had no duty to defend or indemnify the insureds because the father was not a farm employee. The trial court held that the father was a farm employee and ordered the insurer to defend and indemnify the insureds in the underlying lawsuit. We affirm.

A Shelby County Jury convicted the Petitioner, Bobby Joe Lester, of attempted first degree murder, especially aggravated kidnapping, two counts of aggravated assault, and coercion of a witness. The trial court merged the aggravated assault conviction with the conviction for attempted first degree murder and sentenced the Petitioner to an effective eighty-five year sentence. The conviction and sentences were affirmed by this Court on direct appeal. State v. Bobby Joe Lester, No. W2004-00842-CCA-R3-CD, 2005 WL 1798763 (Tenn. Crim. App., at Jackson, July 28, 2005). The Petitioner filed a petition for post-conviction relief, amended by appointed counsel, alleging he did not receive the effective assistance of counsel. The post-conviction court dismissed the petition after a hearing. On appeal, the Petitioner contends that he is entitled to post-conviction relief because his trial counsel was ineffective by: (1) failing to request the jury be instructed on facilitation; (2) failing to adequately argue in the motion for new trial that his convictions for especially aggravated kidnapping and attempted first degree murder violate due process, citing State v. Anthony, 817 S.W.2d 299 (Tenn. 1991); and (3) failing to object to testimony from the victim about a prior rape. The Petitioner also contends that his appellate counsel was ineffective for failing to argue the Anthony issue on appeal. After reviewing the issues and applicable authorities, we affirm the post-conviction court’s judgment.

A Shelby County Criminal Court jury convicted the defendant, James Scott of one count of driving under the influence of an intoxicant (DUI), fourth offense. On appeal, he alleges that the trial court erred in denying his motion to dismiss the indictment for selective prosecution and his attempt to impeach a witness without viewing the pertinent parts of a video he claimed supported both claims, that the trial court erred in imposing more than the presumptive minimum sentence, and that the trial judge erred in failing to recuse himself for the ruling on the motion for new trial. Upon review, we reverse the trial court’s order overruling the motion for new trial and remand.

Petitioner, George Langford, appeals the trial court’s dismissal of his Petition for Writ of Error Coram Nobis and/or Petition for Post-Conviction Relief in which he contended that the trial court’s instructions to the jury violated his constitutional right to due process. After a thorough review, we affirm the judgment of the trial court.