APPELLATE COURT OPINIONS

In 2001, a Cannon County jury convicted the Petitioner, Ellis Junior Burnett, of aggravated arson,2 and he received a twenty-three-year sentence. The conviction was affirmed by this Court on direct appeal. Subsequently, the Petitioner filed a petition for post-conviction relief, which was heard by the post-conviction court and denied. The Petitioner now appeals, claiming the post-conviction erred when it: (1) failed to give him a full and fair post-conviction evidentiary hearing; (2) denied his claim of ineffective assistance of counsel; (3) denied his claim that the trial court failed to properly instruct the jury as to lesser included offenses; and (4) denied his claim that the trial court failed to properly instruct the jury on circumstantial evidence. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court

I agree with the results reached and most of the reasoning in the majority opinion. However, I respectfully disagree with the majority opinion’s conclusion that the fact that the trial court had a duty to instruct the jury on applicable lesser included offenses foreclosed a claim of ineffective assistance of counsel based upon counsel’s failure to request such instructions.

In this post-divorce action, Linda Jean Cook (Ramsey) (“Wife”) requested the Trial Court to order her ex-husband, Larry Dean Cook, (“Husband”) to execute a Qualified Domestic Relations Order (“QDRO”) dividing his retirement plan according to the Property Settlement Agreement incorporated into the parties’ divorce decree more than ten years ago. The parties had previously drafted – and the Trial Court approved – several QDROs that were rejected by the plan’s administrator. Wife maintained that she was supposed to receive her one-third of the plan in shares of stock, which had appreciated considerably since the divorce. Husband asserted that Wife was entitled to a specific dollar amount instead. Following a trial, the Trial Court found that Wife’s portion of the plan was one-third of the cash value of the plan at the time of the divorce, and then awarded her an additional six-percent interest, for a total of $46,184.27. We find no error in the Trial Court’s judgment, and we affirm.

Plaintiff filed this action in General Sessions Court, seeking back rent and possession of properties leased to defendants. The Sessions Court gave plaintiff monetary judgment against defendants, who appealed to Circuit Court and made an appeal bond in the amount of $500.00 pursuant to Tenn. Code Ann. § 27-5-103. In Circuit Court plaintiff contended that defendants should have given an appeal bond as specified in Tenn. Code Ann. § 29-18-130 and asked the Circuit Court to dismiss the appeal. The Circuit Court refused and ultimately dismissed plaintiff’s claims. On appeal we hold that defendants failed to give the proper statutory bond to appeal the case to Circuit Court and that the appeal was not properly perfected and the Judgment of the Sessions Court will be reinstated upon remand.

The parties in this case have struggled mightily for many years to fashion a court order that the plan administrator would find legally acceptable as a qualified domestic relations order under the applicable federal statutory scheme. Apparently, their efforts to date have been unsuccessful. The trial court and the majority opinion place a great deal of emphasis and significance on the proposed qualified domestic relations order of November 21, 1995. I do not. It seems to me that all of the proposed qualified domestic relations orders are totally lacking in legal effect. None were accepted by the plan administrator and, hence, even though signed by the court and the parties and/or their counsel, they are without legal efficacy.

The defendant, Jashua Shannon Sides, alias Joshua Shannon Sides, was convicted of vehicular homicide by reckless conduct (Class C felony); leaving the scene of an accident involving death (Class E felony); reckless endangerment (Class E felony); and driving under the influence (Class A misdemeanor). The defendant received an effective sentence of ten years, eleven months and
twenty-nine days. On appeal, the defendant raises four issues:
(1) The trial court erred in failing to instruct the jury on lesser included offenses of felony reckless endangerment and knowingly leaving the scene of an accident involving death.
(2) The trial court erred in denying counsel’s motion to withdraw after the defendant had filed a complaint against counsel with the Board of Professional Responsibility.
(3) The trial court erred in allowing the State’s expert to testify to his opinion based on hearsay and facts not in evidence.
(4) The trial court erred in sentencing.
After review, we have found no reversible error and affirm all convictions and sentences.

This appeal arises from a divorce action. Husband appeals the trial court’s award of alimony in futuro in the amount of $1600 per month to Wife. Wife asserts this appeal should be dismissed for unclean hands. She further asserts the trial court erred by finding the parties stipulated as to grounds for divorce, in setting alimony at $1600 per month, by not ordering an automatic increase in alimony upon emancipation of the children, by failing to award her all of her attorney’s fees, and by ordering Husband to name Wife and the children as beneficiaries of his life insurance policy. We affirm.

This appeal arises from the denial of Plaintiff’s claim for unemployment benefits by the Tennessee Department of Labor and Workforce Development. We affirm.

The dispositive issue on appeal in this annexation dispute by the annexing municipality against the county and Tennessee Commissioner of Revenue is which tax allocation statute controls the allocation of Local Option Revenue derived from the annexed territory, the one in effect when the municipality passed the annexation ordinances upon final reading or the one in effect when quo warranto litigation challenging the ordinances was concluded. The county and Commissioner of Revenue contend the statute in effect when the quo warranto actions challenging the validity of the ordinances were concluded applies, because that is the date the annexations became operative. The municipality contends that the tax scheme in effect when the ordinances were passed by final reading applies became the quo warranto actions challenging the ordinances were dismissed due to the petitioners’ failure to effect sufficient service of process on the municipality. The Chancellor ruled in favor of the municipality, finding in pertinent part that the quo warranto litigation that was filed but not followed by sufficient service of process had no effect on the operative dates of annexation. We reverse, finding that the statute in effect when the quo warranto litigation was concluded controls the allocation of tax revenue from the annexed territories.

This appeal arises from a divorce case. The trial court awarded Wife a divorce based on adultery and awarded her alimony in futuro the amount of $5000 per month for ten years and $2500 per month thereafter. The trial court additionally awarded Wife alimony in solido in the amount of $100,000, and awarded Wife her attorney’s fees. Husband appeals. We affirm the award of divorce to Wife and the alimony awards, but reverse the award of attorney’s fees.

The Petitioner, Billy R. Shelly, 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 allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial court’s dismissal.

The Petitioner, Rudolph Powers, 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 comply with the procedural prerequisites for seeking habeas corpus relief. Accordingly, we affirm the trial court’s dismissal.

The tenants, who leased a newly-constructed house from the builder/owner, sued the builder/owner alleging, among other things, that the house was negligently constructed in that it was built on a site that unreasonably exposed the house to excessive moisture and with a deficient water runoff and drainage system. The tenants sought compensation for personal injury and property damage allegedly caused by toxic mold in the house due to excessively wet basement walls. The trial court granted the builder/owner summary judgment. Upon review, we vacate the trial court’s summary judgment based on our finding that genuine issues of material fact exist.

Plaintiff corporation and stockholders sued defendant to enforce a Stock Redemption and Shareholder Agreement signed by defendant, when he refused to comply with the terms of the Agreement after he was terminated from the company. The Trial Court granted plaintiff partial summary judgment, finding that the Agreement was enforceable, and defendant has appealed. We affirm the partial summary judgment of the Trial Court and remand, with instructions.

The Petitioner, Craig L. Beene, 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 allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial  court’s dismissal.

The Petitioner, Nathaniel Henderson, 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 allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial court’s dismissal.

This is a termination of parental rights case. Mother/Appellant appeals the Order of the Shelby County Juvenile Court terminating her parental rights to her two minor children. Specifically, Appellant asserts that the grounds of persistence of conditions and failure to substantially comply with the permanency plans are not supported by clear and convincing evidence in the record, and that termination of her parental rights is not in the best interests of the children. Because we find clear and convincing evidence in the record to support termination on the grounds of failure to substantially comply with the permanency plans, and clear and convincing evidence that termination is in the best interests of the children, we affirm.

An employee/minority shareholder appeals the summary dismissal of his action in which he sought to recover commissions the corporation allegedly owed him for prior work and damages arising out of an alleged breach of fiduciary duty and fraud by the president/majority shareholder. The trial court granted the Motions for Summary Judgment filed by the corporation and by the president/majority shareholder, finding the employee failed to show that there was a genuine issue for trial as to whether employee was owed commissions and whether the president/majority shareholder committed fraud or breached his fiduciary duty. We affirm.

This is a construction case. In a contract prepared by the plaintiff, contractor agreed to install sewer lines, water lines, roads and to perform certain site preparation work for a section of a subdivision development owned by the defendant-owner. The total contract price is $925,000, which includes the material and labor to complete the project. The trial court entered judgment for contractor. Owner appeals and contractor cross-appeals. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

The Appellant, Naomi Lovell Preyer, appeals the sentencing decision of the Tipton County Circuit Court. Pursuant to a plea agreement, Preyer pled guilty to identity theft and forgery, both Class D felonies. Following a sentencing hearing, the trial court imposed concurrent sentences of twelve years, as a career offender, for each conviction and ordered that the sentences be served in confinement. On appeal, Preyer asserts that the trial court’s denial of a community corrections sentence was error.   Following review of the record, we affirm.

The petitioner, William Miller, pleaded guilty to sale of more than .5 grams of cocaine, a Class B felony, and two counts of sale of less than .5 grams of cocaine, Class C felonies, in exchange for an effective sentence of 12 years. On post-conviction appeal, the petitioner argues that his guilty plea was unlawfully induced and entered without an understanding of the consequences, that the prosecution failed to disclose favorable evidence, and that his trial counsel was ineffective by failing to investigate alibis and inform him of opportunities to appeal motions. Discerning no error, we affirm the denial of post-conviction relief.

A Prison Disciplinary Board found a prisoner guilty of two disciplinary infractions, fined him $5.00 for each infraction and sentenced him to two thirty-day terms in punitive segregation. The prisoner filed a petition for writ of certiorari, alleging that there were irregularities in the procedures followed by the disciplinary board and that its actions were arbitrary, capricious, and characterized by an abuse of discretion. The trial court granted the writ, and the department accordingly sent the administrative record to the court for review. The respondents then filed a motion for judgment on the record. The trial court granted the motion and dismissed the prisoner's claim. We affirm the trial court.

A Weakley County jury convicted the Petitioner, Peter Graves, of possession of both a schedule II and a schedule IV drug with intent to sell or deliver, and the trial court sentenced him to an effective sentence of fifteen years. The Petitioner filed a petition for post-conviction relief, which the post-conviction court denied. The Petitioner now appeals, claiming: (1) he was denied the right to a fair trial because the jury saw him in handcuffs and shackles; (2) he was denied the right to a fair trial because the trial court did not conduct a jury out hearing when jurors wanted to ask him questions; and (3) he was not afforded the effective assistance of counsel. Upon a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

In this appeal of a directed verdict in a wrongful death case, Daniel Pantoja Garcia (“Husband”) claims that Norfolk Southern Railway Company (“Norfolk Southern”) was negligent in failing to warn his now-deceased wife, Lydia Garcia (“Wife”), of the presence of diesel fuel inside a fuel tank that Wife, as an employee of Progress Rail Services Corporation (“Progress Rail”), was assigned to dismantle. As Wife was cutting the tank with a torch-cutter on Norfolk Southern’s property, the tank exploded, killing Wife. The trial court granted a directed verdict because it found no evidence that Norfolk Southern owed any duty in this case. We affirm.

The trial court entered an order modifying its earlier parenting plan. After the Court’s judgment, the mother filed a motion attacking the jurisdiction of the Court to modify the prior order. The trial court overruled the motion. On appeal, we find that neither the child nor either of the parents have resided in Tennessee since 2002. Therefore, the trial court did not have subject matter jurisdiction to modify its prior order. We reverse and dismiss.