APPELLATE COURT OPINIONS

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.

The Appellant, Terrance Burke, appeals the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. On appeal, Burke argues that he was denied his Sixth Amendment right to the effective assistance of counsel. After a review of the record, we affirm the denial of post-conviction relief.

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

The Metropolitan Government of Nashville and Davidson County (“Metro”) brought this action alleging that Alfred O. Hibler, II, had failed to report earned income as required in order to avoid a reduction in the amount of his Metro disability pension, resulting in significant pension overpayments to Mr. Hibler. The income in dispute consisted of distributions of excess earnings of an S corporation owned by Mr. Hibler. The issue is whether this income is properly characterized as “earned income,” defined by the Metro Code as including “wage or salary – not rent, interest, dividends or capital gains.” After a trial, the trial court ruled that the distributions, labeled “draws” by the S corporation, were not earned income required to be reported to Metro for purposes of calculating Mr. Hibler’s disability pension, and dismissed the action. We affirm the judgment of the trial court.

The trial court found Defendant/Petitioner to be in contempt; denied his petition to modify alimonyupon finding no change in material circumstance; ordered him to pay back alimony, plus 10%interest; awarded Plaintiff/Respondent’s attorney’s fees. On appeal, Defendant/Petitioner asserts thetrial court erred in failing to find a material change in circumstance. We vacate in part, affirm in part, and remand for further proceedings.

The defendant, David Harold Hanson, was convicted of aggravated child abuse a Class A felony, and received a sentence of eighteen years imprisonment. On appeal, the defendant raises the following issues: (1) whether the evidence was sufficient to sustain his conviction; (2) whether the trial court erred in refusing to instruct the jury on the definition of “accidental means” as submitted by the defendant; (3) whether the trial court improperly instructed the jury on the “knowing” element of aggravated child abuse; and (4) whether the trial court erred by giving sequential jury instructions. Following our review of the record, the parties’ briefs and the applicable law, we conclude that the evidence was insufficient to prove that the defendant possessed the requisite mental state for aggravated child abuse; and therefore, we reverse the judgment of the trial court and dismiss the case.

A Knox County jury convicted the Defendant of aggravated assault, one count of theft, Class D felony theft, and misdemeanor vandalism, and the trial court sentenced him to an effective sentence of thirteen years. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his convictions for aggravated assault and theft; (2) the trial court improperly allowed testimony that the Defendant had kidnapped the victim the night before this incident; and (3) the trial court improperly imposed consecutive sentences. Finding that there exists no error, we affirm the judgments of the trial court.

The defendant, Scott Christopher Magness, appeals as of right from the sentence of confinement imposed by the Hardin County Circuit Court for his conviction of attempted aggravated sexual battery, a Class C felony. As a Range I, standard offender, the defendant received a sentence of six  years in the Tennessee Department of Correction. On appeal, the defendant contends that the trial court erred by denying alternative sentencing. We affirm the trial court.

I am, respectfully, unable to join in the majority’s reversal of the trial court’s judgment of conviction due to the insufficiency of the evidence, although I concur in the majority opinion regarding all other issues. The majority concludes that there is insufficient evidence upon which a rational trier of fact could conclude that the Defendant, knowingly, by other than accidental means, inflicted serious injury on this victim. Specifically, the majority concludes that there is a failure of evidence with regard to the Defendant’s mens rea.

The defendant, Marty Michelle Clark, was convicted of attempted aggravated burglary, a Class D felony, and was sentenced by the trial court as a Range II offender to six years in confinement. The defendant appeals his conviction, arguing that the trial court lacked sufficient evidence to sustain his nconviction. Upon review of the full record and the applicable law, we affirm the judgment of  the trial court.

This is a workers' compensation appeal referred to and heard by 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. The Plaintiff contends that the preponderance of evidence is contrary to the trial court's finding that the Plaintiff did not sustain a compensable work-related injury. We believe the trial court was correct, and therefore we affirm the trial court's decision.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The trial court found that the employee failed to prove that she had sustained permanent disability as a result of work-related injuries to her neck and arms. The employee has appealed that ruling, arguing that the evidence preponderates against the trial court’s finding. The employee also specifically claims that the trial court erred by referring to one of the expert witnesses as a “non-treating” physician and by allowing certain medical records into evidence. We find no error and affirm the judgment of the trial court.

The majority in this case concludes that defendant is not entitled to relief based on the trial court’s rulings regarding the defendant’s proposed expert, Dr. Stephen Adams. As the majority states, the trial court ruled that Dr. Adams was qualified to give expert testimony regarding the defendant’s brain injuries; however, in ruling that Dr. Adams was not qualified as a psychiatric expert, the trial court stated that “[t]he court does not prefer to hear testimony regarding capacity on a non-specific intent crime.” In my view, this ruling prevented the Dr. Adams from presenting any testimony that the defendant lacked the capacity to form the requisite mental state for the offense with which he was charged. As a result, the defendant was prevented from presenting the key element of his defense, and the ruling clearly prejudiced the defendant. Therefore, I must respectfully dissent.

The defendant, Bradley Ferrell, was convicted by a Van Buren County jury of escape, a Class A misdemeanor, and was sentenced by the trial court to eleven months, twenty-nine days, suspended after service of sixty days in the county jail. On appeal, he argues that the trial court erred in finding him competent to stand trial, in not permitting his expert witness to testify about his incapacity to form the requisite intent for the crime, in refusing his request for a special jury instruction on diminished capacity, and in overruling his motion for a new trial. Following our review, we affirm the judgment of the trial court.

Blackburn & McCune brought suit alleging it was fraudulently induced to enter an administrative services contract with Pre-Paid Legal Services, Inc. The trial court dismissed the suit based upon a forum selection provision contained in an Attorney Provider Agreement executed by the parties. Blackburn & McCune has appealed. Based upon our interpretation of the forum selection clause, we reverse the judgment of the trial court.

This is a workers' compensation appeal referred to and heard by the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 50-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Defendant contends that the trial court erred in finding that plaintiff sustained a compensable work-related injury to his right shoulder, in awarding plaintiff temporary total disability benefits for work missed due to surgery, in awarding him a 12% disability to the body as a whole as to each shoulder, and in commuting the entire award into a lump sum payment. Plaintiff asks this court to find the Defendant's appeal in this case to be frivolous. We find the chancellor's rulings as to all these issues to be correct and affirm the trial court's decision. Finally, Plaintiff contends that the award is insufficient and that the trial court also erred in allowing Defendant to set-off benefits paid under the Defendant company's sickness and accident policy. Because we are unable to determine from the record the nature of the benefits paid by Defendant, we remand the case to the trial court for further proceedings consistent with this opinion.

The defendant, Jarvis Harris, was convicted of first degree premeditated murder and attempted first degree murder and sentenced to concurrent terms of life imprisonment and eighteen years. On appeal, he argues: (1) the trial court erred in denying his motion in limine to exclude references to gang affiliation and the State made improper comments about gang membership during opening and closing statements; (2) the trial court erred in denying his motion to suppress his statements; and (3) the trial court imposed an excessive sentence. Based on our review, we affirm the judgments of conviction but remand for appropriate resentencing for the attempted first degree murder conviction.

The defendant, Lachanta Monique Tyler, was convicted by a Davidson County jury of aggravated assault, a Class C felony, and theft of property involving merchandise valued at $500 or less, a Class A misdemeanor. See T.C.A. §§ 39-13-102; 39-14-103; 39-14-105; 39-14-146. She was sentenced to three years for the aggravated assault conviction and eleven months and twenty-nine days for the theft conviction, with the sentences imposed concurrently and to be served on probation. The defendant appeals, claiming (1) that the evidence was insufficient to support her conviction of aggravated assault, (2) that the trial court erred in denying her motion for judgment of acquittal on aggravated assault, (3) that the trial court erred in failing to sever these offenses from two other offenses of which she was acquitted, (4) that the court erred by admitting prior bad act evidence of a prior shoplifting incident. Upon review, we affirm the defendant’s theft conviction, modify the aggravated assault conviction to assault, and remand the case for imposition of judgment on the assault conviction including a sentence of eleven months and twenty-nine days to be served on probation and concurrently with the theft sentence.

The Northwest Correctional Complex Inmate Disciplinary Board convicted a prisoner of disciplinary infractions. The prisoner filed a petition for a common law writ of certiorari alleging the Board committed several procedural violations related to the disciplinary hearing, including violation of the prisoner’s due process rights. In this appeal we must determine whether the chancery court properly granted the Board’s motion to dismiss the prisoner’s petition. The chancery court found that it lacked subject matter jurisdiction because the prisoner did not verify his petition. The prisoner contends that the petition was verified because, along with the petition, he filed a verified inmate trust fund certification balance form and a verified affidavit of indigency. We affirm.

The parents, who have three minor sons, were divorced in 2003, and they entered an agreed parenting plan whereby the mother was designated the primary residential parent and the father was ordered to pay child support. The father experienced an increase in income the following year, and the mother petitioned the chancery court for an increase in his child support obligation, to which the father agreed. In early 2006, the father left his job for a similar job with his stepfather and brother which provided him with less income. The father petitioned the chancery court for a downward modification of his child support obligation, citing his decreased income. The mother then sent the father a notice of her intent to relocate from Memphis to Franklin, Tennessee, because of an employment opportunity. After hearings, the chancery court denied the mother’s petition for relocation. The chancery court instructed the parties’ attorneys to calculate child support according to the Tennessee Child Support Guidelines using income amounts that it had imputed to the mother and father, and without providing any basis as to how it had determined these figures. At a later hearing, the chancery court set a child support amount in excess of what the parties had determined according to the Tennessee Child Support Guidelines, which amount was ordered to include the father’s contribution to the children’s private school tuition. The chancery court did not include the child support worksheets in its order, nor did it provide written findings supporting its decision to deviate. We reverse and remand for further proceedings.

Defendants appeal the trial court’s award to plaintiff of damages under an agreement wherein defendants and plaintiff were sharing brokerage commissions generated by plaintiff’s clients. The trial court found the term “retirement,” which governed whether plaintiff was entitled to a five (5) year pay out, was ambiguous and resorted to consideration of extrinsic evidence. We reverse and hold that the term is not ambiguous and that plaintiff is not entitled to payment under the retirement provision of the agreement. We also find that the defendants are not precluded by Tenn. R. App. P. 3(f) from raising the post-judgment imposition of discovery sanctions against them. However, we decline to reverse the sanctions decision since the trial court did not abuse its discretion in awarding them.

The defendant, Terna Hatten, appeals the five-year sentence he received after pleading guilty to aggravated assault, a Class C felony. He argues that the length of the imposed sentence was too long and that the trial court erred in enhancing his sentence beyond the minimum of three years. After review, we affirm the judgment from the trial court.

The defendant, William Phillip Graham, was convicted of aggravated rape, a Class A felony, at a jury trial in the Madison County Circuit Court. He is presently serving a twenty-year sentence as a Violent Offender in the Department of Correction. In this appeal, he argues 1) that the evidence is insufficient to support his conviction; 2) that the trial court erred in denying his petition to compel attendance of an out-of-state witness; 3) that the trial court made erroneous rulings during the trial relative to the scope of redirect examination of a state’s witness; 4) that the court erred in denying his request to make an offer of proof after an adverse evidentiary ruling; 5) that the court erred in allowing the state to recall the victim during its case-in-chief; and 6) that the trial court erred in denying the defendant’s requests for curative instructions relative to two aspects of the prosecutor’s closing argument. We conclude that no reversible error occurred, and we affirm the judgment of the trial court. Tenn.

The petitioner, Constancia Reyes, pled guilty in the Shelby County Criminal Court to possession of three hundred grams or more of cocaine with intent to sell and agreed to a fifteen-year sentence as a Range I, standard offender. Subsequently, she filed a petition for post-conviction relief, claiming that she received the ineffective assistance of counsel because her trial attorney failed to file a motion to suppress the evidence seized as a result of her traffic stop and that she was coerced into pleading guilty. The post-conviction court denied the petition for post-conviction relief, and the petitioner appeals. Upon review of the record and the parties’ briefs, we affirm the judgment of the postconviction court.

The plaintiff-buyers entered into an installment sales contract in 1991 in which they agreed to purchase real property owned by the defendant-seller. The contract provided that upon the plaintiffs’ payment of the purchase price, the defendant would provide a deed conveying the property to them free of encumbrances. In 2002, a general sessions judgment was entered against the defendant in an unrelated case, and the defendant appealed that judgment to the circuit court, where that case currently remains pending. The judgment was filed as a lien on the real property in 2002. In late 2004 or early 2005, the plaintiffs had made all necessary payments on the real property, and the defendant conveyed the property to them by warranty deed. While attempting to sell the real property in 2005, the plaintiffs discovered the existence of the 2002 judgment lien on the property, and they placed funds in escrow in order to satisfy their intended purchaser that the lien would be removed or paid. The plaintiffs filed a warrant in general sessions court against the defendant, alleging that he was liable for breach of the covenant against encumbrances contained in the warranty deed. The general sessions court entered judgment in favor of the plaintiffs, and the defendant appealed to the circuit court. The plaintiffs filed a motion for summary judgment and sought an award of reasonable attorney’s fees. The circuit court granted the motion for summary judgment, but denied the plaintiffs’ request for attorney’s fees. On appeal, we affirm in part, reverse in part, and remand for a determination of reasonable attorney’s fees incurred below and on appeal.