APPELLATE COURT OPINIONS

A Sevier County jury convicted the defendant, Mark Dewayne Culbertson, of possession of a controlled substance in a penal institution, a class C felony. The trial court sentenced the defendant, a Range II offender, to eight years and six months in prison. On appeal, the defendant contends that the trial court erred when it: (1) denied his motion to suppress his statement; (2) denied his motion for judgment of acquittal; (3) denied his motion for a new trial because he was not notified pretrial that the controlled substance was destroyed during testing; (4) denied his motion for new trial based upon prosecutorial misconduct; (5) failed to order a new trial because of newly discovered evidence; and (6) improperly sentenced the defendant. Finding that there exists no error, we affirm the judgment of the trial court.

The petitioner, Montez Dickerson, pled guilty to delivery of a controlled substance under .5 grams, and the trial court sentenced him as a persistent offender to ten years in prison. The petitioner filed a petition for post-conviction relief, which was amended by appointed counsel. In the petition, the petitioner alleges that he received the ineffective assistance of counsel and that his guilty plea was not voluntarily entered. The post-conviction court dismissed the petition after a hearing. The petitioner appeals that dismissal, and we affirm the judgment of the postconviction court.

The petitioner, Mathis T. Vaughn, appeals the summary dismissal of his petition for writ of habeas corpus. In this appeal, he asserts that the habeas corpus court erred by dismissing his petition prior to the appointment of counsel and that his conviction for first degree felony murder is void because (1) the trial court failed to charge any lesser included offenses of felony murder and (2) the indictment did not charge an underlying felony to support the felony murder charge. The judgment of the habeas corpus court is affirmed.

The appellant, Oshia Lynn Starnes, a/k/a Oshia Lynn Baffa, a/k/a Oshia Lynn Boffa, pled guilty in the Sullivan County Criminal Court to two counts each of identity theft, forgery, and misdemeanor theft and agreed to an effective sentence of four years with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered that the appellant serve her effective sentence in confinement. On appeal, the appellant contends that the trial court erred by denying her request for alternative sentencing. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

In this medical malpractice action, Ray A. Wilson and his wife, Beverly Wilson, (the “Plaintiffs”) sued the anesthesiologist and medical group responsible for administering anesthesia for Mr. Wilson’s cataract surgery. Plaintiffs allege that the improper administration of anesthetic resulted in permanent blindness in Mr. Wilson’s right eye. The defendants filed a Motion for Summary Judgment and attached an affidavit and deposition of an expert witness. At the hearing on the summary judgment motion, the Trial Court granted Plaintiffs’ oral motion to take a voluntary dismissal of their case without prejudice. The defendants filed a motion to alter or amend the order of dismissal so as to be “with prejudice,” and the Trial Court granted the defendants’ motion. Plaintiffs filed a motion requesting a rehearing. At the hearing on Plaintiffs’ motion, the Trial Court set aside its order amending the dismissal to be with prejudice and allowed Plaintiffs 30 days to file an expert witness affidavit in response to the defendants’ Motion for Summary Judgment. Plaintiffs attempted to fax file an affidavit in opposition to the Motion for Summary  Judgment. A few months later, Plaintiffs filed a second lawsuit in the same court against the same parties, alleging the same malpractice that was the basis of the first lawsuit. The defendants filed a Motion to Dismiss the second lawsuit. Following a hearing on both cases, the Trial Court found that fax filing an affidavit was not permitted by the Tennessee Rules of Civil Procedure, and therefore, Plaintiffs had not responded to the defendants’ Motion for Summary Judgment. Consequently, the Trial Court granted summary judgment to the defendants in the first case. The Trial Court dismissed the second lawsuit upon finding that the first case was pending when the second case was filed and when the Motion to Dismiss was heard. Plaintiffs appeal. We find no error in the Trial Court’s rulings, and we affirm.

In this action to quiet title in ancestral land held as a tenancy in common, the plaintiff co-tenants challenged two deeds conveying a portion of the land to a grantee outside the family. The defendant grantee procured two deeds to an undivided fractional interest in this property for the sum of $3,500. The first deed was executed by some of the heirs of a record co-tenant, and the second deed originated from two sons of a record co-tenant’s non-marital child. At that time, both the co-tenant of record and his non-marital child were deceased. Five days later, the grantee conveyed his interest in the subject property to a subsequent grantee for $21,000. The trial court set aside all deeds to the grantee, in part, on the ground of fraudulent procurement. It also set aside the deed to the subsequent grantee because the grantee had no title to convey. The court quieted title to the subject property in the plaintiff family members according to a series of quit claim deeds they had executed and recorded so as to partition the property among themselves. Further, the trial court ordered, sua sponte, the grantee to return the purchase price of the subject property, plus pre-judgment interest, to the subsequent grantee. Finding support in the record for setting aside the conveyances from only two of the original six grantors, we affirm in part, vacate in part, reverse in part, and remand for a calculation of the respective interests in the property and for a determination regarding the subsequent grantee’s counterclaim for a partition in kind.

Three guarantors of a promissory note appeal the Chancery Court’s decision to hold them liable for the deficiency owing on the note, including interest at the default rate of 24%, following the discharge in bankruptcy of the original debtor. After the debtor defaulted on the $1,500,000 promissory note, the debtor filed for Petition for Relief under Chapter 11 in Bankruptcy Court. The Bankruptcy Court approved the debtor’s plan of reorganization after declaring that the Allowed Claim Amount would be based upon the original interest rate of 8.5%, not the default rate of 24%. In the interim, the holder of the promissory note filed this action to collect a deficiency on the indebtedness, specifically the difference between the default rate of 24% and the original interest rate of 8.5%. The Chancellor ruled by summary judgment that the plaintiff was entitled to collect the deficiency on the indebtedness against the Guarantors, the deficiency being the difference in the interest rates. Following the debtor’s discharge in bankruptcy, the guarantors filed a Tenn. R. Civ. P. 60.02(4) motion contending the indebtedness owing to the plaintiff was satisfied pursuant to the Plan of Reorganization. The Chancellor denied the motion and awarded the holder of the note prejudgment and post-judgment interest at the default rate of 24%, and attorney fees incurred in this and a separate action. The guarantors appealed contending the Chancellor erred in denying their Rule 60 motion, finding the default rate of 24% to be legal, and awarding interest at the default rate prior to notice of default. The guarantors also contended it was error to award the plaintiff attorney fees for services rendered in a separate action. We have determined the debtor’s bankruptcy does not affect the liability of the guarantors and thus does not impair the plaintiff’s right to recover the deficiency. We have also determined the default rate of 24% was not usurious, and the holder of the note was not required to give notice of default to invoke the default rate. Further, we have determined the holder of the note was only entitled to recover attorney fees incurred to enforce the Guaranty Agreements, not to defend related actions that do not pertain to the Guaranty Agreements.

James Paul Hurt, the defendant, was convicted of selling .5 grams or more of a Schedule II controlled substance and also of delivering the same substance. Both are Class B felonies. These convictions were merged, and the defendant was sentenced as a Range II, multiple offender to twenty years confinement. On appeal, the defendant avers that (1) the evidence was insufficient to support the guilty verdicts, and (2) the physical restraints placed on the defendant during trial violated his constitutional rights. After review, we have concluded that the evidence was sufficient and that the restraints and safeguards imposed were reasonable under the circumstances and constitutionally permissible. Accordingly, the conviction is affirmed.

This is the second appeal by the appellant who again has asked this court to review the Probate Court of Perry County’s denial of his petition. In that petition, the appellant contested the manner in which the Executrix of his late father’s estate administered the estate. We have determined the issue is res judicata and thereby affirm the trial court. We have also determined the appeal is devoid of merit and, therefore, the Executrix is entitled to recover her reasonable expenses incurred on appeal.

Brian Wesley Davis (“Father”) filed a petition to modify a Final Parenting Plan that, with respect to the parties’ child, granted primary residential parent status to Christine A. Williamson (now Stevens) (“Mother”). Father sought exclusive custody of the child or, alternatively, equal co-parenting time with him. Following a bench trial, the court held in favor of Mother, determining that Father had failed to show a material change in circumstances. Father appeals. We have determined that Father has provided sufficient evidence of a material change in circumstances and has demonstrated that the best interest of the child requires a modification of the existing parenting plan. Accordingly, we reverse the judgment of the trial court and designate Father as the child’s primary residential parent. We remand for further proceedings.

Petitioner was disciplined by the Chattanooga Fire Department, which discipline was approved by the City Council. She then petitioned the Chancery Court for a Writ of Certiorari, and the Chancellor, upon conducting a hearing, held that the discipline exceeded that allowed by the City Code, in that the Department had forced her to take leave time against her accrued leave for the days in excess of the 30 days allowed. On appeal, we affirm.

A Shelby County Criminal Court jury convicted the appellant, Charles Curtis, of second degree  murder and aggravated robbery, and the trial court sentenced him to consecutive sentences of  thirty-six years and sixteen years, respectively. On appeal, the appellant contends that (1) the  evidence is insufficient to support the convictions; (2) the trial court erred by allowing the appellant  and one of his codefendants to be tried jointly; (3) the trial court erred by granting the State’s  motion to sequester the jury; (4) the trial court erred by admitting autopsy photographs of the  victim’s eyes into evidence; (5) his sentences are excessive; and (6) the cumulative effect of these  errors denied him the right to a fair trial and due process. Based upon the record and the parties’  briefs, we affirm the judgments of the trial court.

The Defendant, Dana Keith Woods, was convicted of first degree premeditated murder, felony murder, attempted first degree murder, aggravated assault, aggravated burglary, and especially aggravated kidnapping. The trial court merged the convictions for first degree premeditated  murder and felony murder and also merged the convictions for attempted first degree murder and  aggravated assault. For these convictions, the Defendant received an effective sentence of life  imprisonment without the possibility of parole plus fifty years. In this direct appeal, the Defendant  raises the following issues for our review: (1) whether the trial court abused its discretion by  admitting photographs of the victim; (2) whether the evidence was sufficient to support his  convictions; (3) whether the trial court erred in failing to instruct on voluntary intoxication; and (4)  whether the trial court erred by imposing consecutive sentences.1 Following a review of the record and the applicable authorities, we affirm the Defendant’s convictions and sentences.

This appeal involves a motion to set aside an execution on a vehicle. The plaintiff received a
judgment against the defendants in the amount of $62,500, which he promptly recorded in the county register’s office. The defendants subsequently purchased a new car, and a sheriff levied execution on the car to partially satisfy the judgment. The defendants filed this motion seeking to have the execution set aside because it was defective for various reasons, and they claimed that a third party held a security interest in the vehicle and had priority over the execution lien. The trial court denied the motion to set aside the execution and ordered the sheriff’s department to sell the vehicle. The defendants appealed. We affirm.

The petitioner, James Davis, was convicted by a Tipton County jury of felony murder and aggravated robbery and received consecutive sentences of life without parole and twenty years. This court affirmed the petitioner’s convictions on direct appeal. State v. James Robert Davis, No. W2003- 02362-CCA-R3-CD, 2005 WL 452569, at *1 (Tenn. Crim. App. Feb. 24, 2005), perm. to appeal denied (Tenn. Aug. 22, 2005). In 2006, the petitioner filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel at trial. Following an evidentiary hearing, the post-conviction court dismissed the petition. After reviewing the record and finding no error, we affirm that order.

In this wrongful death case, Eva Hendrix (“Daughter”), acting individually and as administratrix of the estate of her mother, the decedent Edith Beck (“Mother”), sued Life Center Centers of America, Inc. (“Nursing Home”) among others. Nursing Home filed a “Motion to Compel Arbitration” based upon an arbitration clause signed by Daughter when Mother was admitted to Nursing Home’s facility approximately four months before her death. Daughter responds that she was not actually authorized to act as Mother’s attorney-in-fact at that time because Mother was still able to make her own medical decisions and therefore the power of attorney never became effective. The trial court agreed. Nursing Home appeals, arguing that Daughter’s power of attorney was effective when she signed the arbitration clause, and that, in any event, an actual or apparent agency relationship existed between Mother and Daughter, and Mother and Daughter “treated the [power of attorney] document as though it was effective.” We find that the evidence does not preponderate against the trial court’s conclusion that the power of attorney was not in effect when Daughter signed the various documents handed to her by Nursing Home. We further hold that Nursing Home’s alternative theories must fail as a matter of law. We therefore affirm.

This is an insurance case. The plaintiff bank made a home loan to the homeowner and took a deed of trust as security. Under the loan agreement, the homeowner was required to obtain a fire insurance policy on the premises. The defendant insurance company issued a fire insurance policy covering the house. The policy contained a standard mortgage clause requiring the insurance company to protect the bank’s interest and, in turn, requiring the bank to notify the insurance company of any increases in hazard. The homeowner fell behind on her monthly mortgage payments, so the bank initiated foreclosure proceedings. The bank sent a letter to the homeowner stating that it had begun foreclosure proceedings; it did not notify the insurance company of these proceedings. Before the foreclosure process was complete, the homeowner and her husband filed for bankruptcy, which stayed the foreclosure proceedings. Soon after that, the house was destroyed by a fire. The bank notified the insurance company of the loss. The insurance company refused to pay, asserting that the foreclosure proceedings constituted an increase in hazard of which the bank was required to notify the insurance company, and that the bank’s failure to provide such notice constituted a breach of the mortgage clause in the fire insurance policy. The bank then sued the insurance company for breach of contract, bad faith refusal to pay an insurance claim, and violation of the Tennessee Consumer Protection Act. The bank later filed a motion for partial summary judgment, asserting that T.C.A. § 56-7-804 indicated that the bank was not required to provide notice to the insurance company of foreclosure proceedings. The insurance company filed a cross-motion for summary judgment, arguing that such notice was required under the policy or, in the alternative, under the statute. The trial court denied the insurance company’s summary judgment motion but granted summary judgment to the bank. The insurance company appeals. We reverse, finding that the commencement of foreclosure proceedings constituted an “increase in hazard” under the standard mortgage clause in the insurance policy and an “increase of hazard” under T.C.A. § 56-7-804.

The pro se petitioner, Michael L. McKillip, appeals as of right the Bledsoe County Circuit Court’s summary dismissal of his petition for a writ of habeas corpus. The petitioner was convicted of aggravated sexual battery pursuant to his guilty plea in the Shelby County Criminal Court and received a sentence of fifteen years as a Range II offender to be served at one hundred percent. He alleges that he is entitled to habeas corpus relief because the trial court erroneously allowed him to plead outside his range and because the 1989 Criminal Sentencing Reform Act violates the United States Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The trial court summarily dismissed the petition for failure to state a cognizable claim. Following our review, we affirm the judgment of the trial court.

The defendant, Timothy Frazier, pled guilty to one count of theft of property more than $1,000 but less than $10,000, a Class D felony. The trial court denied the defendant’s request for judicial diversion and ordered him to serve a two-year, suspended sentence on supervised probation. On appeal, the defendant argues that the trial court’s denial of judicial diversion should be reversed. Upon review of the record and the parties’ briefs, we reverse the judgment of the trial court and remand this case for reconsideration.

Appellant, Hezekiah Cooper, was convicted of four counts of attempt to commit second degree murder, four counts of aggravated robbery, one count of aggravated burglary, and one count of possession of a firearm. As a result, the trial court sentenced Appellant to an effective sixty-year sentence. After the denial of a motion for new trial, Appellant presents the following issues for our review: (1) whether the evidence is sufficient to support the convictions; (2) whether the trial court erred “in refusing to allow Appellant to argue alternative theories” at trial; (3) whether the trial court erred in refusing to admit exculpatory evidence; (4) whether the trial court improperly instructed the jury on lesser included offenses; (5) whether Appellant’s sentences were excessive; and (6) whether the trial court erred by ordering Appellant to serve his sentences consecutively. After reviewing the issues, we determine that: (1) Appellant waived the issue regarding lesser included offenses for failing to request instructions at trial; (2) the trial court did not abuse its discretion in failing to admit exculpatory evidence; (3) Appellant waived several evidentiary issues by raising them for the first time on appeal; and (4) the trial court properly sentenced Appellant. However, we determine that the evidence was only sufficient to support two convictions for attempted second degree murder with respect to the actions against Ms. Thompson and her daughter Tanisha. Therefore, we reverse and dismiss the two remaining convictions for attempted second degree murder. Further, we determine that the evidence supports only one conviction for aggravated robbery because there was only one theft from the victims’ residence of property that was owned by Mr. Norfleet. However, we modify the conviction for aggravated robbery with respect to Jeraldrika Thompson to a conviction for aggravated assault and remand to the trial court for sentencing on that count. However, we are unable to modify the two remaining convictions for aggravated robbery with respect to the   actions taken against Ms. Thompson and Tanisha Thompson to aggravated assault because double jeopardy principles prohibit dual convictions for attempted second degree murder and aggravated assault. Accordingly, the convictions for aggravated robbery with respect to Ms. Thompson and Tanisha Thompson are reversed and dismissed. In all other respects, we affirm the judgment of the trial court.

I must respectfully dissent from the majority’s interpretation of the 1995 final decree of divorce to award only $338.30 per month out of the monthly retirement benefit to Ms. Ziobrowski.

The defendant, Joe Allen Brown, pleaded guilty to two counts of possession of under .5 grams of cocaine with the intent to sell and/or deliver and was sentenced in the Madison County Circuit Court to an effective four year term to be served in a community corrections program. On March 16, 2007 the court revoked the community corrections sentence and resentenced the defendant to serve six years in the  Department of Correction.  From that order, the defendant appeals. Upon review, we affirm the judgment below.

This appeal involves a final decree of divorce that was entered in 1995, and a proposed qualified domestic relations order (“QDRO”) entered pursuant to that decree in 2006. The former husband claims that the proposed QDRO allows his former wife to receive a greater share of his monthly retirement benefit than the trial court awarded to the wife when it divided the parties’ marital property. We reverse and remand for further proceedings.

The Appellant, Scott Eric McDonald, presents for review a certified question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(A). McDonald pled guilty to driving under the influence (DUI), second offense, and, as a condition of his guilty plea, reserved a certified question of law challenging the denial of his motion to suppress evidence, arguing that there was no reasonable suspicion to support the initial stop of his vehicle. On appeal, the State asserts that McDonald failed to properly reserve his certified question, and, as a result, this court is without jurisdiction to hear the appeal. Following review, we agree that the certified question of law was not properly reserved. Accordingly, the appeal is dismissed.

This is a negligence case that resulted in a directed verdict for the defendant. The plaintiff’s minor son was killed when the truck he was riding in collided with a logging truck pulling the defendant’s load of logs. All parties involved in the accident died, and there were no eyewitnesses. The plaintiffs filed suit against the defendant on behalf of their deceased son. At trial, the defendant moved for a directed verdict, which the court granted. The plaintiffs now appeal, alleging that the trial court applied the wrong standard when it granted the directed verdict. Next, the plaintiffs argue that the court should have applied the theory of joint and several liability because the case involved concurrent negligence resulting in an indivisible harm. Finally, the plaintiffs argue that the court erred by excluding evidence relating to the defendant’s liability insurance. We affirm.