APPELLATE COURT OPINIONS

This appeal arises from a dispute regarding the trial court’s award of alimony in futuro to Paula Nesbitt. The trial court granted the parties’ divorce, pursuant to Tennessee Code Annotated § 36-4-129, and ultimately awarded the divorce to the wife because the husband appeared to be at greater fault on the grounds of inappropriate marital conduct. Farrell Nesbitt challenges the trial court’s alimony in futuro award, arguing rehabilitative alimony was the proper award. We affirm the trial court’s ruling. Costs of this appeal shall be assessed to the appellant, Ferrell Nesbitt.

The Petitioner, David Wayne Smart, was convicted in 2001 of first degree premeditated murder and sentenced to life in prison. We affirmed that judgment on direct appeal, and the Tennessee Supreme Court denied permission to appeal. The Petitioner subsequently filed a petition for post-conviction relief alleging he was denied the effective assistance of counsel. The post-conviction court denied the petition after a hearing. Upon a thorough review of the applicable record and law, we affirm the judgment of the post-conviction court.

I respectfully dissent from the majority based upon my conclusion that the trial court erred in summarily dismissing the petition for a writ of habeas corpus that, in my view, presents a cognizable claim for relief. The record reflects that the petitioner pled guilty to theft of property valued between $1,000 and $10,000 and evading arrest, and that he received concurrent sentences of two years and one day and one year, respectively. In his Petition for Writ of Habeas Corpus Relief, the petitioner alleges that the judgment for the theft conviction is void because he did not agree to a sentence of two years and one day and that such a sentence “is void, as obtained through misrepresentation and [an] unfulfilled promise [of] a total two (2) year sentence.” Additionally, he alleges that his guilty plea was not knowing and voluntary because he did not agree to the two year and one day sentence. In support of this allegation, the petition further asserts that both the technical record and the transcript of the guilty plea proceedings reflect that the sentence imposed should have been two years. However, neither the technical record nor the transcript of the guilty plea were attached to the petition in the habeas court. Attached to the petition for the habeas court’s consideration is the judgment of conviction reflecting a sentence of two years and one day for the theft conviction.

The Appellant, Christopher Keyln Dearing, proceeding pro se, appeals the Johnson County Criminal Court’s summary dismissal of his petition for the writ of habeas corpus. Dearing is currently an inmate at Northeast Correctional Complex in Johnson County as a result of his convictions for Class under the terms of his plea agreement, he pled guilty to Class D theft in exchange for a sentence of two years; however, the judgment form and Department of Correction records show that the actual length of the sentence he is serving is two years and one day. Dearing argues that, because the State has breached the plea agreement, his sentence of two years and one day is void. After review, we agree with the trial court that Dearing’s petition fails to state a cognizable claim for habeas corpus relief. Accordingly, the judgment of the trial court is affirmed.

Plaintiff filed a legal malpractice claim against defendant’s Estate. The Trial Court held the claim against the Decedent’s Estate was barred by the statute of limitations. On appeal, we affirm.

The petitioner, Cedric Terry, appeals the post-conviction court’s denial of his petition for post-conviction relief. On appeal, he argues that he received the ineffective assistance of trial counsel.  After a thorough review of the record and the parties’ briefs, the judgment of the post-conviction court denying post-conviction relief is affirmed.

This is a divorce case. The husband is a musician and songwriter; the wife is a medical assistant. During the marriage, the husband became physically incapacitated, and the wife quit her job and took care of him. The parties’ living expenses and costs associated with the husband’s medical care were funded through monies that the wife inherited as well as credit cards. This resulted in significant credit card debt. The husband eventually recovered, but was deemed completely disabled and received social security disability payments during the marriage. The wife then had a health crisis. During the wife’s health crisis, the husband took over the parties’ finances, and both parties signed a document outlining division of the parties’ property in the event of divorce. Over a year later, the wife filed for divorce, based in part on the husband’s failure to care for her during her health crisis. The husband counterclaimed for divorce. After declaring the parties divorced, the trial court held a trial on the issue of property division. After one day of testimony, the husband filed a motion seeking to enforce the document signed by the parties purporting to divide their property in the event of divorce. After the hearing, the trial court refused to enforce the alleged agreement. It divided the marital property, including in the marital estate the social security disability payments that had been received by the husband. The trial court refused, however, to divide the parties’ marital debt. The husband appeals the trial court’s refusal to enforce the alleged agreement and the inclusion of his social security disability benefits in the marital estate. Both parties appeal the trial court’s failure to divide the marital debt. We affirm in part and reverse in part, finding that (1) the social security disability payments were properly included in the marital estate, (2) the document is neither an MDA nor an enforceable postnuptial agreement, and (3) the trial court erred in refusing to divide the parties’ marital debt.

The Trial Court granted defendant permission to attend traffic school in lieu of a fine. On appeal, we reverse because State and federal law does not permit diversion for a commercially licensed operator.

I concur in the result that this court has jurisdiction to hear the appeal, but respectfully, I disagree with the holding that the habeas corpus petition was filed in an appropriate court.

The Petitioner, Paul Tobias Davis, appeals the summary dismissal of his petition for habeas corpus relief. In his petition, the Petitioner asserted that his sentence is illegal because he was denied pretrial jail credits. The habeas corpus court summarily dismissed the petition because the petition did not state a sufficient reason for not being filed in the county nearest to the Petitioner. On appeal, the Petitioner raises two issues: (1) whether a motion filed in the habeas corpus court to alter or amend the judgment pursuant to Rule 59.04 of the Tennessee Rules of Civil Procedure can operate to limit the jurisdiction of this Court; and (2) whether the fact that the convicting court possesses relevant records relating to a petitioner’s sentence and retains the authority to correct an illegal sentence at anytime is a sufficient reason under Tennessee Code Annotated section 29-21-105 to file a habeas corpus petition in the convicting court rather than the court closest in point of distance to a petitioner. Following our review, we hold that motions filed pursuant to Rule 59 of the Tennessee Rules of Civil Procedure do not affect the jurisdiction of this Court in actions for habeas corpus relief and that the Petitioner presented a sufficient reason for filing his petition in the Davidson County Criminal Court. Accordingly, we reverse the judgment of the habeas corpus court and remand for the appointment of counsel and further proceedings consistent with this opinion.

The State of Tennessee has filed a petition requesting this court to rehear its opinion filed on December 3, 2007. In its petition, the State requests that the court reconsider our holding that Tennessee Rule of Civil Procedure 59 is not applicable to State habeas corpus proceedings brought by petitioners who are incarcerated as a result of criminal convictions in state courts. The State also takes issue with this Court’s direction that upon remand, the trial court should appoint counsel to represent the petitioner during further proceedings.

I agree with the majority, for the reasons outlined in its opinion, that it was error for the trial court to apply T.C.A. § 40-35-114(10) (2006) to enhance the defendant’s sentence in this case. However, I respectfully disagree with the majority’s conclusion that the trial court did not  consider the mitigating factors proposed by the defendant. In my view, the sentencing hearing transcript establishes that the trial court not only considered the mitigating factors urged by the defendant, it also applied them. The record also establishes that the defendant had a record of illegal drug use, four DUI convictions, and a theft conviction. Thus, the trial court’s conclusion, after weighing the enhancing and mitigating factors, that the enhancement factors greatly outweighed the mitigating factors was supported by the record.

The defendant, Alonzo Eugene Terrell, was convicted of domestic assault, a Class A misdemeanor, and was sentenced to eleven months and twenty-nine days, to be served on probation. He filed a motion for new trial, which was denied, and this appeal followed. On appeal, he raises seven issues. First, he argues the evidence was insufficient to support a conviction of domestic assault. He also argues that the trial court erred in allowing the State to introduce certain evidence and erred in denying both his motion to dismiss for violation of his right to speedy trial and his motion for acquittal. Additionally, he contends the court erred in refusing to allow two specific lines of questioning to the victim and a police officer during the trial. Our review reveals that the evidence was sufficient to support the conviction and that no error exists. The judgment from the trial court is affirmed.

The defendant, Eric D. Charles, pled guilty in Madison County Circuit Court to aggravated robbery and was sentenced as a Range I, standard offender to ten years in the Department of Correction. The defendant challenges the trial court’s application of two enhancement factors; the State concedes that one of the factors was improperly applied. We conclude that the record supports the trial court’s application of the second enhancement factor and affirm the judgment of the trial court.

In 2005, Martha Smith and her husband, Brian D. Smith, filed suit (“the First Lawsuit”) in the trial court against four individuals and the Polk County Board of Education (“PCBE”). Each of the four counts in the complaint includes an allegation that defendants Greg Brooks, Tracy McAbee, and Grady Samples “were acting in their official capacity while engaging in their illegal and tortious activity and . . . these defendants . . . are duly elected members of PCBE.” An order of voluntary nonsuit without prejudice was entered in the First Lawsuit as to PCBE and all of the individual defendants except a non-board member, Shane Wooten. In 2006, the plaintiffs again filed suit (“the Second Lawsuit”). The “illegal and tortious activity” alleged in the Second Lawsuit is identical to that alleged in the First Lawsuit. The Second Lawsuit names Brooks, McAbee, and Samples (“the defendants”) as the sole defendants. They are sued as individuals and not as members of PCBE. The defendants filed a motion to dismiss – citing Tenn. R. Civ. P. 12.02(6) – asserting that the Second Lawsuit had been filed outside the period of the applicable statute of limitations. The trial court agreed and dismissed the Second Lawsuit. The plaintiffs appeal, relying upon Tenn. Code Ann. §28-1-105(a) (2000), a part of the so-called Tennessee saving statute. We hold that, under the facts of this case, the saving statute is not available to the plaintiffs to preserve their causes of action against the defendants in their individual capacities. Accordingly, we affirm.

Lee Edward Peterson, the defendant, was charged in a two-count indictment with possession with intent to sell less than 0.5 grams of cocaine and with possession with intent to deliver less than 0.5 grams of cocaine (Class B felonies). The defendant filed a motion to suppress the evidence obtained from a warrantless search of his person. After the motion was overruled by the trial court, the defendant, pursuant to a negotiated plea, entered a plea of nolo contendere to simple possession of cocaine (Class A misdemeanor), with an agreed sentence of eleven months and twenty-nine days suspended and a fine of $250. The defendant attempted to reserve a certified question of law pursuant to Rule 37(b)(2)(1) of the Tennessee Rules of Criminal Procedure. After review, we conclude that the defendant has failed to properly reserve the certified question of law by failing to include or incorporate by reference the question in the final judgment. Accordingly, the issue is not properly before this court, and the appeal is dismissed.

The plaintiff, a debtor under a promissory note, brought this action against two defendants, the bank that issued a promissory note to the plaintiff and the holder of the note for charging and attempting to collect a rate of interest the plaintiff contends was usurious. In the Complaint, the plaintiff contends that two defendants engaged in unconscionable conduct under Tenn. Code Ann. § 47-14-117(c) and unfair and deceptive practices in violation of the Tennessee Consumer Protection Act.  The bank’s conduct at issue pertains to its issuance of a promissory note to Foster that contained a default rate of interest of 24%, which the plaintiff contends is usurious. The conduct of the other defendant, the holder of the note, pertains to its attempts to collect the default rate of interest. The Chancellor dismissed the plaintiff’s complaint upon the defendants’ Tenn. R. Civ. P. 12.02(6) motions to dismiss, concluding that the interest was not usurious, and therefore, the complaint failed to state a claim upon which relief could be granted. We affirm.

Respectfully, I would find that the preponderance of the evidence does not support a causal relationship between Employment and the Employee's gradual injury which did not manifest itself until fifty-one weeks after she left work for the Employer.

The Appellant, Karl Daniel Forss, appeals the sentencing decision of the Cocke County Circuit Court. Under the terms of a plea agreement, Forss entered “open” pleas of guilty to the offenses of attempted aggravated robbery, aggravated assault, and aggravated criminal trespass. The plea  agreement provided that the length and manner of the sentences would be determined by the trial court, that Forss would be sentenced as a Range I, standard offender, that the aggravated assault conviction would merge with the attempted aggravated robbery conviction, and that the misdemeanor sentence for the aggravated criminal trespass conviction would run concurrently with the attempted aggravated robbery conviction. Following the sentencing hearing, the trial court imposed an effective sentence of six years in confinement. Forss now appeals the length and manner of his six-year felony sentence. After a thorough review of the record and the arguments of the parties, we modify Forss’ six-year sentence for attempted aggravated robbery to reflect a sentence of four years. We affirm the denial of alternative sentencing. We remand to the trial court for entry of an amended judgment to reflect this sentencing modification.

In this case, the employer appeals the judgment of the trial court, which awarded a twelve percent permanent partial disability to the employee’s left arm and found that the employee provided timely notice of her injury pursuant to Tennessee Code Annotated section 50-6-201(b)(1). At trial, the employee contended that she sustained a gradually occurring injury from her work with the employer over a fifteen-year period, causing ulnar nerve neuropathy in her left elbow. The employer argues on appeal that the employee failed to carry her burden of proof as to causation and did not provide timely notice of the injury to the employer. After careful consideration of the record in this case, we affirm the judgment of the trial court.

A Cheatham County jury convicted the Petitioner, Anthony Darrell Hines, of first-degree felony murder and sentenced him to death. After a remand to reconsider sentencing, the Tennessee Supreme Court affirmed a second sentence of death, and the United States Supreme Court denied certiorari. The Petitioner filed a petition for post-conviction relief in 1997, which was denied by the trial court and ultimately affirmed by this Court in 2004. The Petitioner filed this petition for post-conviction relief requesting permission and funds to test seven pieces of evidence for DNA. The trial court denied the petition, and, upon a thorough consideration of the facts and applicable law, we affirm the judgment of the trial court.

Defendant, Vern Braswell, was indicted for first degree premeditated murder. Following a jury trial, Defendant was found guilty of the lesser included offense of second degree murder. After a sentencing hearing, Defendant was sentenced as a Range I, standard offender, to twenty-four years. On appeal, Defendant argues that (1) the evidence is insufficient to support his conviction; (2) the trial court erred in certain evidentiary rulings; and (3) his sentence is excessive. After a thorough review, we affirm the judgment of the trial court.

The defendant was convicted by a Knox County jury of three counts of especially aggravated kidnapping and one count each of aggravated robbery, attempted aggravated robbery, assault, and aggravated burglary, and received an effective sentence of twenty-four years. The trial court subsequently granted the defendant’s motion for judgment of acquittal as to the three especially aggravated kidnapping convictions, holding that the defendant could not be convicted of both kidnapping and robbery because the movement or confinement supporting each kidnapping conviction was essentially incidental to the commission of the robbery, decisions which the State appealed. The defendant likewise appealed, challenging the sufficiency of the evidence supporting his conviction for aggravated robbery. We affirm the defendant’s conviction for aggravated robbery and the trial court’s dismissal of one count of especially aggravated kidnapping. We reverse the trial court’s dismissal of the remaining two counts of especially aggravated kidnapping and remand for reinstatement of those convictions. In all other respects, the judgments of the trial court are affirmed.

The petitioner, Emmett Crutcher, pled guilty in 2005 to attempted aggravated arson and was sentenced as a Range II, multiple offender to twelve years in the Department of Correction. In 2006, the petitioner filed for post-conviction relief, alleging that his trial counsel was ineffective. After an evidentiary hearing, the post-conviction court denied his petition, and we affirm that judgment.