APPELLATE COURT OPINIONS

This appeal involves an award of discretionary costs after a voluntary dismissal. The plaintiff estate filed a lawsuit against the defendant nursing home, alleging abuse and neglect of the plaintiff’s decedent. The defendant nursing home filed a motion for summary judgment and a motion to exclude the plaintiff’s expert. The motion for summary judgment was denied, but the motion to exclude the plaintiff’s expert was granted. The plaintiff then filed a notice of voluntary nonsuit. Consequently, the trial court entered an order of voluntary dismissal without prejudice. After entry of this order, the defendant nursing home filed a motion for discretionary costs, pursuant to Rule 54.04(2) of the Tennessee Rules of Civil Procedure. The trial court granted the motion, and entered an order assessing the costs against the plaintiff estate. The plaintiff estate now appeals, arguing that the defendant nursing home was not entitled to an award of discretionary costs because it obtained no relief on the merits of the case and therefore was not a “prevailing party.” We affirm, finding that Rule 54.04(2) expressly authorizes the trial court, in its discretion, to award discretionary costs to a defendant in a lawsuit that is voluntarily dismissed without prejudice.

This appeal involves a sale of equipment, made by a decedent to his friend, eleven days before he died. The administrator of the decedent’s estate filed a complaint to set aside the sale alleging fraud, undue influence, and inadequate consideration. Following a bench trial, the trial court set aside the sale and ordered the estate to reimburse the purchase money to the buyers. We reverse.

I must respectfully dissent from the majority opinion in this case.

I believe that the trial court’s decision was based on the trial judge’s determination of the witnesses’ credibility and should be affirmed on the ground of inadequate consideration. The trial judge made a factual finding that the equipment at issue had a value of $79,550, and there has been no appeal of that finding. Even according to Mr. Volner’s testimony, he paid no more than $20,000 for all of this equipment, approximately 25% of its value. This inadequacy of consideration does not stand alone; it is accompanied by “inequitable incidents” or “badges of fraud.” A “badge of fraud” can be “any fact that throws suspicion on the transaction and calls for an explanation.” Reagan v. Connelly, No. E2000-00451-COA-R3-CV, 2000 WL 1661524, at *4 (Tenn. Ct. App. Nov. 6, 2000) (quoting Macon Bank & Trust Co. v. Holland, 715 S.W.2d 347, 349 (Tenn. Ct. App. 1986). These include inadequate consideration for the transfer, a family or friendship relationship between the transferor and the transferee, and a lack of explanation for the suspicious transaction. Stevenson v. Hicks (In re: Hicks), 176 Bankr. 466, 470 (Bankr. W.D. Tenn. 1995). Similarly, “inequitable incidents” indicating fraud include undue advantage, ignorance, sickness, old age, incapacities, and the like. Estate of Fischer, ex rel Meyers v. Rogers, 2002 WL 31895721, at *5 (Tenn. Ct. Appl. Dec. 31, 2002). Where one or more badges of fraud are present, a presumption of fraud arises “and consequently shift the burden of disproving fraud to the defendant.” Id. (quoting Stevenson v. Hicks (In re: Hicks), 176 Bankr. 466, 470 9Bankr. W.D. Tenn. 1995)). In this case, there are numerous such badges of fraud and inequitable incidents.

This is a delayed appeal from a conviction for driving under the influence of an intoxicant (DUI). For this conviction, the Defendant, Larry Davis, received a sentence of eleven months and twentynine days in the Shelby County Workhouse. In this appeal, the Defendant raises several issues relating to the sufficiency of the evidence, focusing on whether the evidence was sufficient for the jury to determine that he was driving on a public road. The Defendant also contends that the State committed prosecutorial misconduct during closing argument by relating the complete language of the DUI statute to the jury, including driving in an apartment house complex. The Defendant also alleges error by the trial court’s failure to take curative action after the State’s comments. Finally, the Defendant argues that his arrest was not supported by probable cause because the misdemeanor offense was not committed in the officer’s presence. Following a review of the record, we conclude that the evidence is sufficient to support the Defendant’s conviction for DUI and that the Defendant’s remaining issues are waived. The judgment of the trial court is affirmed.

A Shelby County jury found the Appellant, Robert Austin, guilty of two counts of first degree premeditated murder and one count of criminal attempt to commit first degree premeditated murder. Following the penalty phase of the trial, the jury sentenced Austin to two terms of life imprisonment without parole. At a subsequent sentencing hearing, the trial court sentenced Austin to forty years, as a Range II offender, for the attempted first degree murder and ordered that all of his sentences run consecutively. On appeal, Austin presents the following issues: (1) whether the trial court erred in disallowing expert testimony regarding Austin’s capacity to form the requisite intent for intentional or knowing offenses; (2) whether the evidence is sufficient to support the convictions; and (3) whether the trial court erred in ordering consecutive sentencing. With regard to issue (1), we conclude that the trial court erred in excluding expert testimony; however, the error was harmless. The remaining issues are without merit. Accordingly, the judgments of conviction and the imposition of consecutive sentences are affirmed.

The Petitioner, Jimmie Lee Hoyle, appeals the summary dismissal of his petition for post-conviction relief, arguing that it was error for the post-conviction court to deny relief without holding an evidentiary hearing, allowing him to amend his petition, or appointing counsel. Following our review, we conclude that the Petitioner stated a colorable claim in his petition. Accordingly, we reverse the post-conviction court’s order of dismissal and remand for further proceedings.

The Petitioner, Roy R. Williams, appeals the post-conviction court’s order dismissing his petition for post-conviction relief. The Petitioner argues that his conviction for murder during the perpetration of a felony should be set aside because his trial attorneys failed to properly investigate a possible insanity defense and because they coerced him to plead guilty by making him fearful of receiving the death penalty. Following our review, we affirm the post-conviction court’s order of dismissal.

Petitioner, Randall Carver, filed a pro se petition for writ of error coram nobis and/or habeas corpus relief. The trial court treated the petition as one for post-conviction and summarily dismissed the petition. On appeal, this Court affirmed the post-conviction court’s dismissal of the petition. See Randall Carver v. State, No. M2002-02891-CCA-R3-CO, 2003 WL 21145572 (Tenn. Crim. App., at Nashville, May 16, 2003). Petitioner subsequently filed a petition for writ of habeas corpus, alleging numerous claims for relief. The trial court denied the petition without a hearing, determining that because Petitioner failed to produce material to the court for consideration and that because Petitioner was being held by the State of Kentucky on Kentucky charges all of Petitioner’s issues were moot. Petitioner appealed. On appeal, this Court, without reaching the merits of Petitioner’s argument, remanded the case for determination of “why the counsel who represented the petitioner in the lower court is not representing the petitioner on appeal.” See Randall Carver v. Tony Parker, Warden, No. W2005-00522-CCA-R3-HC, 2006 WL 140408, at *2 (Tenn. Crim. App., at Jackson, Jan. 18, 2006). On remand, the trial court learned that Petitioner had been granted parole on his underlying sentences in the State of Tennessee, waived extradition and was transferred to the custody of the State of Kentucky. Subsequently, the trial court entered an order denying the petition for writ of habeas corpus. Petitioner filed a timely notice of appeal. He argues that he is entitled to request habeas corpus relief while being incarcerated in Kentucky and that this Court should transfer the petition to the court in which he was originally convicted. Because an out-of-state resident may seek habeas corpus relief in Tennessee from a Tennessee conviction, see State v. Church, 987 S.W.2d 855, 857-58 (Tenn. Crim. App. 1998), and the supreme court recently determined in Joseph
Faulkner a/k/a Jerry Faulkner v. State, ___ S.W.3d ___, 2007 WL 1226831, at *6 (Tenn. Apr. 27, 2007), that a “prisoner serving concurrent state and federal sentences in a federal correctional institution may challenge his state convictions through the use of the state writ of habeas corpus,” we determine that the trial court did not lose jurisdiction to make a determination on the merits of Petitioner’s claim by virtue of Petitioner’s parole from his Tennessee convictions and incarceration in Kentucky. Therefore, we reverse and remand the judgment of the trial court for further proceedings consistent with this opinion.

The Defendant, Gamal Edham, appeals the trial court’s order denying his motion to withdraw his guilty plea to one count of selling beer to a minor, arguing that because of his limited ability to understand English, his guilty plea was not knowingly and voluntarily entered. Following our review, we affirm the judgment of the trial court.

The Trial Court denied the husband Tenn. R. Civ. P. 60.02 relief from a default judgment in the divorce case. We grant a new trial as to equitable division of marital property.

A Blount County jury convicted the defendant, Margie Frances Hamby, of attempted theft of property valued under $500, and the trial court sentenced her to six months, with thirty days in jail and the balance to be served on supervised probation. On appeal, the defendant contends that the trial court erred in not granting her full probation. We affirm the judgment of the trial court.

We granted permission to appeal to determine whether income from a nonrecurring capital gain may be considered in determining a parent’s gross income for purposes of modifying child support. We hold that income from an isolated or “one-time” capital gain must be included in calculating gross income and that the trial court erred in dismissing the petition to modify child support. Accordingly, we affirm the judgment of the Court of Appeals and remand this case for calculation of child support pursuant to the Child Support Guidelines. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed; Case Remanded
 

We granted permission to appeal to determine whether income from a nonrecurring capital gain may be considered in determining a parent’s gross income for purposes of modifying child support. We hold that income from an isolated or “one-time” capital gain must be included in calculating gross income and that the trial court erred in dismissing the petition to modify child support. Accordingly, we affirm the judgment of the Court of Appeals and remand this case for calculation of child support pursuant to the Child Support Guidelines. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed; Case Remanded
 

Following a jury trial, the petitioner, Robert S. Barnes, was convicted of reckless endangerment, attempted rape, robbery, aggravated burglary, and assault. For his convictions, the petitioner was sentenced as a career offender to an effective sentence of forty-five years for the felony convictions, plus consecutive sentences of eleven months and twenty-nine days for each of the two misdemeanor convictions. On direct appeal, this court affirmed the judgments of the trial court. State v. Robert Sanford Barnes, No. W2003-02967-CCA-R3-CD, 2005 WL 331376 (Tenn. Crim. App., at Jackson, Feb. 11, 2005). The petitioner filed a timely petition for post-conviction relief which the postconviction court subsequently denied after an evidentiary hearing. The petitioner now appeals. In this appeal, the petitioner contends that his trial counsel was ineffective. Following a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

The defendant, William Joshua Harwood, appeals as of right from his Hamilton County Criminal Court convictions for attempt to manufacture methamphetamine and two counts of theft of property valued at over one thousand dollars. On appeal, he argues that the evidence is insufficient to support his convictions because they are based upon the uncorroborated testimony of an accomplice. The state concedes in its brief that the convictions should be reversed and dismissed for this reason. Following our review, we agree. Accordingly, the convictions are reversed and dismissed.

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 a hearing and a report of findings of fact and conclusions of law. The trial court awarded permanent partial disability benefits of 65% to the body as a whole. The employer has appealed, contending that the trial court used an incorrect method to calculate the average weekly wage. The employer also argues that the amount of the award is excessive and that it is entitled to a credit for an overpayment of temporary disability benefits. We hold that the method used to calculate the average weekly wage was, in fact, erroneous and modify the judgment accordingly. We also hold that the Employer is entitled to credit for the overpayment of temporary disability benefits. We otherwise affirm the trial court’s judgment.

Plaintiff brought suit to enforce a contract for the sale of real estate contending that one of the selling heirs was the authorized agent of the remaining heirs to enter into the agreement. Defendants filed a motion for summary judgment supported by affidavits and the Plaintiff countered with his affidavit. Finding no genuine issue of material fact, the trial court granted the motion and we affirm.

The plaintiff in this case suffered an on-the-job injury and filed a tort claim against the third-party defendant. We granted review to determine whether the third-party defendant is entitled to argue the comparative fault of a principal contractor who is an employer for purposes of the Workers’ Compensation Law. We conclude that the third-party defendant may not argue the comparative  fault of a principal contractor even if the principal contractor does not have a subrogation interest in the plaintiff’s recovery. The third-party defendant may, however, argue that the principal contractor was the sole cause in fact of the plaintiff’s injuries. We also conclude that the jury instruction provided by the trial court accurately and adequately explained the jury’s ability to consider whether the actions of the principal contractor were the cause in fact of the plaintiff’s injuries. Accordingly, we reverse the ruling of the Court of Appeals and remand this case to the Court of Appeals for consideration of the issues pretermitted by its opinion.

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 a hearing and a report of findings of fact and conclusions of law to the Supreme Court. The trial court awarded 50% permanent partial disability to the body as a whole to the employee. The employer asserts that the trial court erred by finding that the employee sustained a compensable aggravation of his pre-existing congenital condition. In the alternative, the employer contends that the trial court erred by finding that the employee did not have a meaningful return to work and by awarding more than two and one-half times the medical impairment under Tennessee Code Annotated section 50-6-241(a). We affirm the finding of compensability, reverse the finding that the employee did not have a meaningful partial disability to the body as a whole.

The petitioner, Neil Lincoln Miller, appeals the summary dismissal of his petition for habeas corpus relief. He contends that his sentence is illegal. Because the record and law establish that the petitioner is not entitled to habeas corpus relief, we affirm the judgment of the trial court.

The Petitioner, Allen Oliver, 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 assert a ground that would entitle him to habeas corpus relief. Accordingly, we affirm the trial court's dismissal.

The defendant, Nathaniel Starr, appeals as of right his bench trial conviction for aggravated robbery, a Class B felony, for which he received a sentence of twenty-five years as a Range III, persistent offender. On appeal, he alleges that the evidence is insufficient to support his conviction for aggravated robbery and that the trial court erred in finding him to be a persistent offender. Following our review, we affirm the judgment of the trial court.

The Petitioner, Sherman Clark, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

This is a legal malpractice case. Raymond Clayton Murray, Jr. (“the Client”) sued his former attorney, Jes Beard (“the Attorney”), in connection with the Attorney’s representation of the Client in the latter’s action to modify child support. In the present case, after the Attorney failed to answer interrogatories regarding his experts, the Client filed a motion pursuant to Tenn. R. Civ. P. 37 seeking to prevent the Attorney from offering any expert testimony. The court entered an order granting the Client’s motion and barring the Attorney from introducing expert testimony at trial. The Client subsequently filed a second motion for Rule 37 sanctions, this time seeking a default judgment against the Attorney. The motion sought this further sanction as punishment for the Attorney’s alleged failure to cooperate in the discovery process. The court granted this motion and announced its decision in a fax to counsel on the day before trial. An order was never entered memorializing this ruling. The Attorney filed a motion to reconsider, which the court denied. After a hearing solely on the issue of damages, the trial court entered a judgment against the Attorney for $16,697.38. He appeals. After review, we hold that the trial court abused its discretion when it granted a default judgment against the Attorney as a Rule 37 sanction. We vacate the trial court’s judgment and remand for a new trial, but solely on the issue of liability.

Plaintiff sought to recover payment of workers compensation benefits via subrogation against the defendant. The Trial Court entered Judgment for defendant. We affirm.