APPELLATE COURT OPINIONS

In this medical malpractice action, the plaintiff contends the emergency room physician failed to comply with the applicable standard of care, which she contends is the standard for board-certified emergency room physicians, regardless of the locale in which the physician practices, and that the trial judge improperly instructed the jury concerning the applicable community. The novel issue presented is whether the term “community,” as it applies to the so-called locality rule, can be construed to mean the medical community of specialists who are board-certified as emergency room physicians without regard to the geographic location of their practice. Although we find the issue intriguing, the facts of this case render the issue moot.  Accordingly, we affirm.

In this breach of contract action, the plaintiff appeals from an adverse judgment following a jury trial. She contends the trial court erred by denying her Motion in Limine and by giving the jury an erroneous jury instruction. Finding the plaintiff failed to raise either issue in a motion for new trial, which is a mandatory condition precedent, we affirm.

The Petitioner, Marlon Thomas, 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 has failed to allege any ground that would render the judgment of conviction void. Accordingly, we grant the State’s motion and affirm the judgment of the lower court.

The petitioner, Stanley F. Blackwood, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief from his convictions of first degree murder, three counts of attempted first degree murder (Class A felony), five counts of aggravated assault (Class C felony), two counts of reckless endangerment (Class E felony), and one count of aggravated burglary (Class C felony ), for which he now serves a life sentence plus twenty-two years. The petitioner claims he received ineffective assistance of counsel at trial because his attorney: (1) acknowledged to the jury in opening statements that the petitioner shot the victim; (2) characterized the petitioner’s version of events as “bizarre,” undermining his credibility with the jury; (3) failed to fully investigate the possibility that the handgun discharged accidentally; and (4) failed to object to a prejudicial jury instruction. We find no basis to grant relief and affirm the post-conviction court’s denial of relief.

The Petitioner, Anthony H. Dean, appeals as of right from the judgment of the Shelby County Criminal Court denying post-conviction relief. In 2000, a jury convicted the Petitioner of aggravated rape, and he was sentenced to forty years as a violent offender. This Court affirmed his conviction and sentence on direct appeal. Subsequently, the Petitioner filed a petition for post-conviction relief and several amendments thereto. Following multiple hearings, the post-conviction court denied relief, and he now appeals to this Court. In this appeal, he raises nine issues which, in substance, relate to the following two claims: (1) violation of his constitutional rights when he was not taken timely before a magistrate and (2) ineffective assistance of counsel. After a review of the record, we affirm the judgment of the post-conviction court denying relief.

The petitioner, James Matthew Gray, pled guilty in the Davidson County Criminal Court to a charge of reckless homicide. He was sentenced to twelve years in the Department of Correction as a career offender with a release eligibility of sixty percent. He was originally indicted on two counts: (1) felony murder, and (2) especially aggravated robbery. As part of his plea agreement, he agreed to plead out of range of his offender status. On appeal, he argues that his guilty plea was involuntary and unknowingly entered because he asserts that he received ineffective assistance of counsel. After careful review, we conclude that the petitioner has not met his burden of showing that he received ineffective assistance of counsel by clear and convincing evidence and, further, that he has not shown that his plea was involuntary and unknowing. No grounds for relief exist, and the judgment of the post-conviction court is affirmed.

The Defendant, Troy Brooks, who was formerly a licensed attorney in the State of Tennessee,was indicted by a grand jury in Wilson County for five counts of theft over $10,000, four counts of theft over $1000, six counts of fraudulent use of a credit card in the amount of $1000 to $10,000, and one count of fraudulent use of a credit card in the amount of over $500. The offenses arose from the Defendant’s misuse of nine clients’ trust monies and credit card accounts during the course of several months. The Defendant requested pretrial diversion, and the district attorney general denied the Defendant’s request. The Defendant filed a petition for writ of certiorari to the Wilson County Criminal Court, alleging that the district attorney general abused his discretion by denying pretrial diversion. The trial court denied the Defendant’s petition. The Defendant filed a motion for  interlocutory appeal of the trial court’s decision, and this Court granted the Defendant’s motion. This Court now affirms the judgment of the trial court and concludes that the district attorney general did not abuse his discretion by denying pretrial diversion.

Petitioner, Donald Wade Goff, was convicted following a November 2001 jury trial on two counts of rape of a child, eleven counts of incest, nine counts of rape, seven counts of contributing to the delinquency of a minor, and one count of attempted rape. The trial court imposed an eighty-year sentence. On direct appeal, the sentence was modified to fifty-six years based upon this Court’s dismissal of the nine rape counts due to lack of evidence of force or coercion. Petitioner subsequently filed a post-conviction petition on August 9, 2004. After the appointment of counsel and the filing of an amended petition, the post-conviction court conducted an evidentiary hearing. Following the hearing, the post-conviction court dismissed the petition. Petitioner filed this appeal claiming the post-conviction court erred in denying his post-conviction petition. Upon our review, we affirm the post-conviction court.

The Appellant, James Anthony McCurry, appeals the Madison County Circuit Court’s dismissal of his petition for post-conviction relief in which he asserts that his conviction for misdemeanor evading arrest is voidable because of an abridgement of his Sixth Amendment right to the effective assistance of counsel. After review of the record, we affirm the post-conviction court’s judgment.

The defendant, Adam Sanders, was convicted by a Marion County Circuit Court jury of two counts of rape of a child, a Class A felony, one count of aggravated sexual battery, a Class B felony, and two counts of incest, a Class C felony. The trial court sentenced him to twenty years for each of the rape convictions, three years for each of the incest convictions, and eight years for the aggravated sexual battery conviction and ordered that the rape sentences be served consecutively to each other, for an effective sentence of forty years at 100% in the Department of Correction. Following the denial of his motion for a new trial, the defendant filed a timely appeal to this court in which he raises essentially four issues: (1) whether the trial court erred in denying his motion to suppress his statement to police; (2) whether the evidence was sufficient to sustain his convictions for rape of a child and incest; (3) whether the trial court erred in denying his motion for a new trial based on new evidence in support of his motion to suppress; and (4) whether the trial court erred in sentencing him to twenty years for each rape conviction and in ordering that the rape sentences be served consecutively. Following our review, we affirm the judgments of the trial court.

The Appellant, Ronald Crook, was convicted bya Shelby County jury of driving under the influence (DUI), first offense, and reckless driving. As a result of these convictions, Crook received concurrent sentences of eleven months, twenty-nine days with service of four days for each conviction. On appeal, Crook argues that the evidence is insufficient to support his convictions and that his sentences are excessive. After review, the judgments of conviction and resulting sentences are affirmed.
 

I concur in the results reached in the majority opinion. However, I disagree with the conclusion that the defendant’s homosexual status was admissible. The defendant moved in limine to exclude this evidence, and the trial court ruled as follows:

[I]f the discussion places into context the full [gist] of the statement . . . weighing these issues about drug usage or some on again, off again, homosexual experiences and how that explains or what did or did not happen with Mr. Wilson, I don’t think the prejudicial effect of that mentioned in the large scheme of this case is outweighed by . . . the probative value, I think is present in terms of the intent, in terms of the defendant’s defense, in terms of placing into context his explanation about his relationship with [the victim] and how that did occur and things of that nature, the probative value of that information is not outweighed by the prejudicial effect.

The defendant appeals his convictions of seven counts of aggravated sexual battery, alleging error in the following respects: 1) the evidence was insufficient to support the convictions; 2) the trial court erred in the defendant’s motion for severance; and 3) the trial court erred in admitting into evidence the videotaped statement of the defendant’s interview. Our review revealed no reversible error, and the convictions are hereby affirmed.

A Madison County jury convicted the Defendant, Harold Hack, of three counts of vehicular homicide, one count of aggravated assault, one count of felony reckless endangerment, and one count of violating the open container law. For these convictions, the Defendant received an effective sentence of twenty-four years as a Range I, standard offender to be served in the Department of Correction.  In this direct appeal, the Defendant challenges the sufficiency of the evidence and contends that his sentence is excessive. After a review of the record, ¹ we affirm the judgments of the trial court.

The Petitioner, Mark Tomlin, pled guilty to one count of possession of under 0.5 grams of cocaine with intent to sell. The Petitioner petitioned for post-conviction relief claiming that he had received the ineffective assistance of counsel. The post-conviction court dismissed the post-conviction petition, and we affirm that judgment.

In this breach of contract action, the Chancellor dismissed the Complaint and Counter-Complaint and Ordered plaintiff to remove the lien on the property where the construction of a wall was placed. We affirm.

This is the second appeal of a divorce case involving alimony and child support. In the original divorce proceeding, we reversed the trial court’s holding that the increase in value of the wife’s inheritance was separate property, as well as its award of child support, based on a floating schedule.  The case was remanded for the trial court to recalculate the child support, equitably divide the appreciation in value of the inheritance, and then reconsider the division of the marital assets and the award of alimony and attorney’s fees. On remand, the trial court divided the appreciation in value of the inheritance, recalculated the child support obligation, and reaffirmed its remaining rulings. The husband now appeals for the second time, arguing that the trial court erred in awarding the wife alimony in solido and in not applying the new incomes shares child support guidelines. We affirm, finding no abuse of discretion in the award of alimony in solido, and holding that the husband cannot raise the revised child support guidelines for the first time on appeal.

This is a class action involving federal preemption. The defendants own a series of patents for the prescription pain medication OxyContin®. In prior separate litigation between the defendants and a generic drug manufacturer, a federal district court in New York found that the defendants committed inequitable conduct before the United States Patent Office in procuring the patents. After this order was entered by the federal court in New York, the plaintiff filed the instant class action in Shelby County, Tennessee, on behalf of all consumers of OxyContin, alleging violations of the Tennessee Trade Practices Act, the Tennessee Consumer Protection Act, and common law monopolization. These state law claims were based on the defendants’ conduct before the United States Patent Office. The defendants removed the case to the federal district court for the Western
District of Tennessee. The district court remanded the case back to the Tennessee trial court, holding that the finding of inequitable conduct against the defendants by the federal court in New York operated as collateral estoppel on the issue regarding the federal patent laws. On remand, the defendants filed a motion for judgment on the pleadings based on federal preemption. The trial court granted the motion. We affirm, finding that the plaintiff’s antitrust and unfair competition claims, based on the defendants’ conduct before the Patent Office, are preempted by the federal patent laws.

This case is based on the existence of an oral contract. The trial court determined that there was insufficient proof on damages to allow the plaintiff any recovery. We remand the case for findings about the existence and terms of the alleged oral contract.

I am in agreement with the majority’s well-written and well-reasoned opinion with one exception. I would not hold that the trial court’s requirement for the father to provide financial information to mother constitutes impermissible “support” after the children reach majority. I
otherwise concur in the holding.

The petitioner, Maurice Pruitt, was convicted of the sale of one-half gram or more of cocaine, a Class B felony, and was sentenced to 18 years in prison. He filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. The trial court dismissed his petition.  We affirm the judgment of the trial court.

This case involves a divorced parent’s obligation to support college-age children. After the divorce, the mother was the primary residential parent for the parties’ two children, who are now adults. In 1999, when both children were still minors, the father’s child support obligation was increased, and he was ordered to provide to the mother financial documents and financial information necessary to assist the children with their private high school and college expenses. The mother later filed a petition for contempt, arguing that the father failed to comply. At a 2001 contempt hearing, the mother asked that the father be held in contempt for, among other things, his failure to provide Mother with his 2000 tax returns for a financial aid application for the older child’s Ivy League college tuition. The trial court reserved the issue until further evidence could be presented. Soon after the hearing, in June 2001, the older child graduated from high school and the father unilaterally reduced his child support payments without seeking a modification of the trial court’s support order.  Four years went by without a court hearing, and both children reached majority. In 2005, the father filed a petition to resolve all outstanding matters and close the case. After a hearing, the trial court determined that the father was in contempt of court for his failure to provide the mother with the financial documents necessary to complete a financial aid application for the older child’s college education and awarded damages to Mother. The trial court further held that the father was not permitted to unilaterally reduce his child support payments when the older child graduated from high school and, consequently, assessed a child support arrearage against him. The father appeals. We affirm in part and reverse in part holding, inter alia, that once the parties’ child was emancipated, the trial court was without authority to require the father to provide financial documents to assist her in obtaining college financial aid.

I concur with the court’s conclusion that the plaintiffs have not demonstrated that the provision in the Commercial Provider Administration Manual requiring them to be responsible for one-half of the fees and expenses directly related to conducting the arbitration renders arbitrating
their claims prohibitively expensive. The plaintiffs have the burden of proof on this point, Green Tree Fin. Corp. - Ala. v. Randolph, 531 U.S. 79, 92, 121 S. Ct. 513, 522 (2000), and thus they must demonstrate that it will be prohibitively expensive for them to pursue their claims in the arbitral
forum.

The plaintiffs’ claims for relief in this case go far beyond disputes over specific charges to particular patients. They have presented no evidence 1 that it will be more expensive to arbitrate their claims than it would be to litigate them. See Bradford v. Rockwell Semiconductor Sys., Inc., 238 F.3d 549, 556 (4th Cir. 2001); In re Currency Conversion Fee Antitrust Litig., 265 F. Supp.2d 385, 411 (S.D.N.Y. 2003). In the absence of this sort of evidence, the trial court properly declined to invalidate the arbitration provision.

The defendant, Andre Dotson, appeals from his 2005 Shelby County Criminal Court jury convictions on two counts of aggravated robbery and two counts of robbery. On appeal, the  defendant claims that the trial court erred (1) in joining four indictments for trial, (2) in severing, on the morning of trial, the charges against a co-defendant, (3) in excluding the co-defendant’s pretrial statement as evidence offered by the defendant, (4) in failing to hold that the evidence was insufficient to support three of the convictions, (5) in denying the defendant’s motion to allow him to sit with his attorney at the counsel table, (6) in failing to instruct the jury as to the shortcomings of eyewitness testimony, and (7) in sentencing the defendant as a multiple offender on two convictions and as a persistent offender on two convictions. We reverse one conviction of robberybut affirm the court’s judgments, as modified.

This appeal has been referred to the Special Workers' Compensation Appeal Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. On April 29, 2003, the appellant, Paul J. Simms, fractured his ankle at a construction site in Spring Hill, Tennessee. The trial court determined Mr. Simms' injury did not arise out of or in the course of employment. Mr. Simms has appealed, contending that the evidence preponderates against the trial court's holding. Mr. Simms also alleges the trial court erred in allowing the testimony of Jack Russell, the subcontractor whom Mr. Simms claims employed him on the day of his accident, because Mr. Russell invoked the Fifth Amendment at trial. After carefully considering the evidence adduced at trial, we affirm the trial court's judgment.