APPELLATE COURT OPINIONS

The petitioner, Quintell Hardy, appeals the denial of his petition for post-conviction relief from his conviction for second degree murder, arguing that he was denied the effective assistance of counsel and that his guilty plea was unknowing and involuntary. Following our review, we affirm the denial of the petition.

In denying a request for attorneys’ fees in an action involving the enforcement of a declaration of easements and restrictions, the trial court found the phrase “costs and expenses” in that declaration does not include recovery of attorneys’ fees. The trial court is affirmed.
 

The petitioner, Young Bok Song, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that he received effective assistance of trial counsel. Following our review, we affirm the denial of the petition.

Mother sought court approval to relocate out-of-state due to a job transfer which would result in a significant increase in pay. When the matter came on to be heard, the job opportunity was no longer available. Father contends that the trial court should have dismissed the petition due to mootness. We agree. The matter is remanded to the trial court for entry of an order of dismissal.

Federal Express (“Plaintiff”) filed a Complaint on Sworn Account in the Knox County Chancery Court claiming that the defendant, The American Bicycle Group, LLC (the “LLC”), owed Plaintiff $121,619.32. The LLC filed a Tenn. R. Civ. P. 12.02(3) motion to dismiss based on improper venue. The LLC claimed that venue was improper in Knox County because: (1) Plaintiff’s principal place of business was in Shelby County; (2) the LLC’s principal place of business was in Hamilton County; and (3) the alleged cause of action arose in Shelby County. Following a hearing, the LLC’s motion to dismiss was denied by the Trial Court because the LLC’s registered agent for service of process was located and served in Knox County. Both the Trial Court and this Court granted the LLC’s request for permission to file a Tenn. R. App. P. 9 interlocutory appeal. The sole issue on this appeal is whether the Knox County Chancery Court is a proper venue for Plaintiff’s action. We affirm the judgment of the Trial Court.

Following a lengthy hearing, the trial court terminated the parental rights of the mother of two yearold twin boys on multiple grounds. We affirm the termination.

After a bench trial, the Defendant, Jamshid Maghami, was convicted of three counts of unlawfully maintaining an automobile graveyard. The trial court subsequently conducted a sentencing hearing and ordered consecutive terms of thirty days on each count. Five days were ordered to be served in the local jail, with the balance of the sentences to be served on probation. In this direct appeal, the Defendant argues that the evidence is insufficient as a matter of law to support his convictions and that the trial court erred by ordering consecutive sentences. Following a review of the sparse record, we affirm the judgments of the trial court.

After a bench trial, the Defendant, Jamshid Maghami, was convicted of three counts of unlawfully maintaining an automobile graveyard. The trial court subsequently conducted a sentencing hearing and ordered consecutive terms of thirty days on each count. Five days were ordered to be served in the local jail, with the balance of the sentences to be served on probation. In this direct appeal, the Defendant argues that the evidence is insufficient as a matter of law to support his convictions and that the trial court erred by ordering consecutive sentences. Following a review of the sparse record, we affirm the judgments of the trial court.

In this parental termination case, the Trial Court terminated the parental rights of the mother, finding that clear and convincing evidence established statutory grounds for termination as provided in Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A) and (E). The Trial Court found there was clear and convincing evidence that it was in the best interest of the minor child to terminate the parental rights of the parent. The mother has appealed and on appeal we affirm the Judgment of the Trial Court.

I agree with the results reached and most of the reasoning in the majority opinion. However, I respectfully disagree with the majority opinion’s conclusion that the fact that the trial court had a duty to instruct the jury on applicable lesser included offenses foreclosed a claim of ineffective assistance of counsel based upon counsel’s failure to request such instructions.

This appeal involves the applicability and enforceability of a forum selection clause in a construction contract. The contract was for the design and construction of a Kentucky correctional facility. The contract between the Commonwealth of Kentucky and the general contractor, a Tennessee corporation, provided that all actions on the contract must be filed in Franklin County Circuit Court in Frankfort, Kentucky. The general contractor entered into a subcontract with another Tennessee corporation for the performance of certain work on the Kentucky correctional facility. The subcontract incorporated all terms of the original contract by reference and contained a “flow-down” provision. The subcontractor later sued the general contractor in Shelby County, Tennessee. When the general contractor moved to dismiss for lack of venue, the subcontractor contended that the forum selection clause did not apply to its claims. The subcontractor also contended that the forum selection clause was unenforceable under the facts of this case. The trial court found in favor of the subcontractor. We granted the general contractor’s Rule 10 application for extraordinary appeal. We reverse and remand, finding that the forum selection clause was applicable and enforceable, and the lawsuit should have been filed in Kentucky.

In this post-divorce action, Linda Jean Cook (Ramsey) (“Wife”) requested the Trial Court to order her ex-husband, Larry Dean Cook, (“Husband”) to execute a Qualified Domestic Relations Order (“QDRO”) dividing his retirement plan according to the Property Settlement Agreement incorporated into the parties’ divorce decree more than ten years ago. The parties had previously drafted – and the Trial Court approved – several QDROs that were rejected by the plan’s administrator. Wife maintained that she was supposed to receive her one-third of the plan in shares of stock, which had appreciated considerably since the divorce. Husband asserted that Wife was entitled to a specific dollar amount instead. Following a trial, the Trial Court found that Wife’s portion of the plan was one-third of the cash value of the plan at the time of the divorce, and then awarded her an additional six-percent interest, for a total of $46,184.27. We find no error in the Trial Court’s judgment, and we affirm.

The parties in this case have struggled mightily for many years to fashion a court order that the plan administrator would find legally acceptable as a qualified domestic relations order under the applicable federal statutory scheme. Apparently, their efforts to date have been unsuccessful. The trial court and the majority opinion place a great deal of emphasis and significance on the proposed qualified domestic relations order of November 21, 1995. I do not. It seems to me that all of the proposed qualified domestic relations orders are totally lacking in legal effect. None were accepted by the plan administrator and, hence, even though signed by the court and the parties and/or their counsel, they are without legal efficacy.

Plaintiff filed this action in General Sessions Court, seeking back rent and possession of properties leased to defendants. The Sessions Court gave plaintiff monetary judgment against defendants, who appealed to Circuit Court and made an appeal bond in the amount of $500.00 pursuant to Tenn. Code Ann. § 27-5-103. In Circuit Court plaintiff contended that defendants should have given an appeal bond as specified in Tenn. Code Ann. § 29-18-130 and asked the Circuit Court to dismiss the appeal. The Circuit Court refused and ultimately dismissed plaintiff’s claims. On appeal we hold that defendants failed to give the proper statutory bond to appeal the case to Circuit Court and that the appeal was not properly perfected and the Judgment of the Sessions Court will be reinstated upon remand.

This appeal involves a petition to construe a will and ademption by extinction. The decedent had a non-retirement cash brokerage account that contained four municipal bonds worth approximately $340,000. Five percent of the account was held in mutual funds and cash. The decedent executed a holographic will that included a specific bequest of the contents of the brokerage account to his wife. The will identified the account by its account number and brokerage firm, and it specifically described the contents of the account being bequeathed to the wife. After the decedent executed the will, his brokerage firm assigned a new account number to his brokerage account. The decedent subsequently arranged an “in-kind” transfer of all the contents of the account to another brokerage firm. The contents of the new account were the same as the contents of the old account: the same four municipal bonds and a small amount of cash and cash equivalents. When the decedent died, he was survived by his wife and his son from a previous marriage. The son contended that because the brokerage account number named in the will held no assets, the bequest was extinguished. He argued that the brokerage account with the new brokerage firm should pass by intestate succession, and therefore he should receive seventy percent of the asset. The probate court held that the change in account number and broker did not materially change the subject of the specific bequest, and therefore the wife was entitled to the contents of the brokerage account. The son appeals. We affirm.

In 2001, a Cannon County jury convicted the Petitioner, Ellis Junior Burnett, of aggravated arson,2 and he received a twenty-three-year sentence. The conviction was affirmed by this Court on direct appeal. Subsequently, the Petitioner filed a petition for post-conviction relief, which was heard by the post-conviction court and denied. The Petitioner now appeals, claiming the post-conviction erred when it: (1) failed to give him a full and fair post-conviction evidentiary hearing; (2) denied his claim of ineffective assistance of counsel; (3) denied his claim that the trial court failed to properly instruct the jury as to lesser included offenses; and (4) denied his claim that the trial court failed to properly instruct the jury on circumstantial evidence. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court

This appeal arises from the denial of Plaintiff’s claim for unemployment benefits by the Tennessee Department of Labor and Workforce Development. We affirm.

This appeal arises from a divorce case. The trial court awarded Wife a divorce based on adultery and awarded her alimony in futuro the amount of $5000 per month for ten years and $2500 per month thereafter. The trial court additionally awarded Wife alimony in solido in the amount of $100,000, and awarded Wife her attorney’s fees. Husband appeals. We affirm the award of divorce to Wife and the alimony awards, but reverse the award of attorney’s fees.

The defendant, Jashua Shannon Sides, alias Joshua Shannon Sides, was convicted of vehicular homicide by reckless conduct (Class C felony); leaving the scene of an accident involving death (Class E felony); reckless endangerment (Class E felony); and driving under the influence (Class A misdemeanor). The defendant received an effective sentence of ten years, eleven months and
twenty-nine days. On appeal, the defendant raises four issues:
(1) The trial court erred in failing to instruct the jury on lesser included offenses of felony reckless endangerment and knowingly leaving the scene of an accident involving death.
(2) The trial court erred in denying counsel’s motion to withdraw after the defendant had filed a complaint against counsel with the Board of Professional Responsibility.
(3) The trial court erred in allowing the State’s expert to testify to his opinion based on hearsay and facts not in evidence.
(4) The trial court erred in sentencing.
After review, we have found no reversible error and affirm all convictions and sentences.

This appeal arises from a divorce action. Husband appeals the trial court’s award of alimony in futuro in the amount of $1600 per month to Wife. Wife asserts this appeal should be dismissed for unclean hands. She further asserts the trial court erred by finding the parties stipulated as to grounds for divorce, in setting alimony at $1600 per month, by not ordering an automatic increase in alimony upon emancipation of the children, by failing to award her all of her attorney’s fees, and by ordering Husband to name Wife and the children as beneficiaries of his life insurance policy. We affirm.

The dispositive issue on appeal in this annexation dispute by the annexing municipality against the county and Tennessee Commissioner of Revenue is which tax allocation statute controls the allocation of Local Option Revenue derived from the annexed territory, the one in effect when the municipality passed the annexation ordinances upon final reading or the one in effect when quo warranto litigation challenging the ordinances was concluded. The county and Commissioner of Revenue contend the statute in effect when the quo warranto actions challenging the validity of the ordinances were concluded applies, because that is the date the annexations became operative. The municipality contends that the tax scheme in effect when the ordinances were passed by final reading applies became the quo warranto actions challenging the ordinances were dismissed due to the petitioners’ failure to effect sufficient service of process on the municipality. The Chancellor ruled in favor of the municipality, finding in pertinent part that the quo warranto litigation that was filed but not followed by sufficient service of process had no effect on the operative dates of annexation. We reverse, finding that the statute in effect when the quo warranto litigation was concluded controls the allocation of tax revenue from the annexed territories.

The Petitioner, Rudolph Powers, appeals the lower court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to comply with the procedural prerequisites for seeking habeas corpus relief. Accordingly, we affirm the trial court’s dismissal.

Plaintiff corporation and stockholders sued defendant to enforce a Stock Redemption and Shareholder Agreement signed by defendant, when he refused to comply with the terms of the Agreement after he was terminated from the company. The Trial Court granted plaintiff partial summary judgment, finding that the Agreement was enforceable, and defendant has appealed. We affirm the partial summary judgment of the Trial Court and remand, with instructions.

The tenants, who leased a newly-constructed house from the builder/owner, sued the builder/owner alleging, among other things, that the house was negligently constructed in that it was built on a site that unreasonably exposed the house to excessive moisture and with a deficient water runoff and drainage system. The tenants sought compensation for personal injury and property damage allegedly caused by toxic mold in the house due to excessively wet basement walls. The trial court granted the builder/owner summary judgment. Upon review, we vacate the trial court’s summary judgment based on our finding that genuine issues of material fact exist.

The Petitioner, Craig L. Beene, appeals the lower court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial  court’s dismissal.