APPELLATE COURT OPINIONS

The issue presented in this case is whether the trial court erred in dismissing with prejudice, on its own motion, a lawsuit alleging legal malpractice in which a summons was issued but never served on the defendant, and not reissued within one year. After careful review, we hold that the trial court did not err in dismissing the complaint. We affirm the judgment of the trial court.

The petitioner, James C. Johnson, was convicted of rape of a child, and he received a twenty-year sentence. Subsequently, he filed for habeas corpus relief, alleging that the Tennessee Department of Correction impermissibly changed his release eligibility from thirty percent to one hundred percent, his sentence is void because of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and his sentence is void because the State failed to file a notice of enhancement prior to trial.  The habeas corpus court denied the petition, and the petitioner now appeals. Upon our review of the record and the parties’ briefs, we affirm the judgment of the habeas corpus court.

The community corrections sentence of the defendant, Kathy E. Cooper, was revoked after a new law violation of driving under the influence, and the trial court resentenced her to serve twelve years, the maximum in the range, in the Department of Correction. On appeal, the defendant contends that the trial court inappropriately enhanced her sentence and revoked her community corrections sentence. Upon review, we conclude that facts which develop between the time a defendant is sentenced to community corrections and the time the sentence is revoked may be considered in applying enhancement factors and increasing a sentence.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with the provisions of 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 Employer has appealed the findings of the trial court, which determined that the Employee is entitled to recover permanent partial disability of 55% apportioned to the body as a whole. We conclude that the trial court erred in denying the Employer the right to obtain an independent medical evaluation, and, under the facts of this case, that decision was so prejudicial that it constitutes reversible error. We remand the case to allow the Employer to obtain an independent medical evaluation and for retrial.

The defendant in this case was indicted on a single count of felony murder committed during the perpetration of arson. Under the felony murder rule, criminal liability for the murder is imposed based on the culpability required for the underlying felony without separate proof of any culpability with regard to the death. As our supreme court stated in Farmer v. State, 296 S.W.2d 879, 883 (Tenn. 1956), “it is not necessary that the State prove an intention to kill, or that it was committed willfully, deliberately, premeditatedly and with malice aforethought.”

The petitioner, Rickie Boyd, appeals from the denial of his petition for post-conviction relief. On appeal, he contends that he was denied the effective assistance of counsel. Following our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court denying post-conviction relief.

The defendant, Thomas Richardson, Jr., appeals his conviction for first degree felony murder. In support of his appeal, the defendant presents three issues: (a) The evidence is insufficient to support the conviction; (b) Two photographs of the victim were improperly admitted; and (c) Hearsay statements were improperly admitted.

This appeal involves a default judgment in a paternity action. The trial court granted a default judgment against the defendant even though the defendant had not received his five days’ notice as required by Tenn. R. Civ. P. 55. Citing other grounds, the defendant moved to set aside the judgment, but the trial court denied the motion. Upon review of the record, it is our determination that the default judgment must be vacated and this case remanded for further proceedings.

The Appellant, David Jones Milton, was convicted by a Carroll County jury of aggravated sexual battery, a Class B felony, and sentenced to a term of fifteen years in the Department of Correction.  On appeal, Milton raises the single issue of whether the evidence is sufficient to support the conviction. After review of the record, we affirm the judgment of conviction.

The parties were divorced in October of 1999. The final decree of divorce incorporated the parties’ marital dissolution agreement which provided a formula for establishing the father’s child support obligation. The father subsequently filed a petition to modify his child support obligation, which culminated in the entry of a consent order incorporating a permanent parenting plan utilizing essentially the same formula for establishing the father’s child support obligation found in the marital dissolution agreement. Shortly thereafter, father retained new counsel and filed another petition to modify his child support obligation seeking to have it set at $2,100 a month pursuant to the child support guidelines. In response, the mother filed a motion to dismiss the petition for, among other reasons, failure to state a claim upon which relief could be granted. At a hearing on the mother’s motion, the father presented several exhibits which were considered by the trial court, thereby converting the motion to dismiss into a motion for summary judgment. The trial court dismissed the father’s petition for, among other reasons, failure to state a claim for which relief could be granted.  The father timely filed an appeal to this Court. On appeal, the mother requests her attorney’s fees incurred in defending this appeal. We affirm the trial court’s decision, and we remand this case to the trial court for the entry of an order awarding the mother her reasonable attorney’s fees.

These appeals find their genesis in a collision between a Georgia school bus and a CSX freight train in Polk County, Tennessee, just north of the Georgia state line. As a result of the collision, three children were killed and four others on the bus were injured. All of the children were minors. Three wrongful death actions and three personal injury actions – as well as other actions not involved in this appeal – were filed in the trial court. The cases before us named as defendants, Rhonda Cloer, the driver of the bus; the Murray County [Georgia] School District (“the School District”); and other entities. Regarding two of the wrongful death claims against the School District, the trial court held that the claims were barred by the personal injury one-year statute of limitations. As to all of the claims arising out of the collision, the trial court held that the School District’s liability could not exceed $300,000, the total amount of the coverage for one incident under the School District’s vehicle liability policy. We affirm.

James Torrence and J.T. Lemons (“the plaintiffs”) were lessees of a four-acre tract of land in Polk County. During the original term of the lease, their lessor transferred acreage, which includes the
four acres under lease, to a family partnership, The Higgins Family Limited Partnership (“the Higgins Family”). During an extended term of the plaintiffs’ lease, the Higgins Family, without the consent or knowledge of the plaintiffs, granted Hunter Properties Inc., an option to purchase a 370-acre tract – which includes the four acres – for $1,350,000. Upon subsequent written notice of the option to the plaintiffs by the Higgins Family, the lessees attempted to exercise a right of first refusal set forth in their lease. The right of first refusal provides that “[s]hould the Landlord, during the lease term, or any extended term, elect to sell all or any portion of the Leased Property, the Tenant shall have the right of first refusal to meet any bona fide offer of sale on the same terms and conditions of such offer.” The plaintiffs assert that the right of first refusal extends to the entire 370-acre tract. The Higgins Family refused to sell the lessees the property and this suit followed. The trial court held that the lessees had properly exercised their right of first refusal and were entitled to purchase the property for $1,350,000. Hunter Properties filed a notice of appeal and all parties raise issues. We affirm.

Plaintiffs applied to rezone their 1.74 acre tract of land located at 6815 Ringgold Road from R-1 Residential District to C-2 General Commercial District. The Chattanooga-Hamilton County Regional Planning Commission recommended that the Mayor and City Council of East Ridge deny the petition for rezoning. After a hearing, the City Council voted to deny the application. Plaintiffs filed a complaint in the Chancery Court for Hamilton County, asserting that the City Council erred by declining to grant the rezoning request. Following a hearing, the trial court upheld the decision of the City Council, finding that the City Council had not acted arbitrarily or capriciously in rejecting the rezoning application. After careful review, we affirm the judgment of the trial court.

Broderick Autry (“Plaintiff”) sued Charles Boston, Jr. and Corrine Boston (“Defendants”) claiming that Defendants had contracted to sell Plaintiff real property located at 2512 Ocoee Street in Chattanooga, Tennessee (“the Property”) and had breached the contract. Defendants raised, among other things, a statute of frauds defense under Tenn. Code Ann. § 29-2-101. After a bench trial, the Trial Court held, inter alia, that Plaintiff had a valid contract for the purchase of the Property, and ordered Defendants to execute and deliver a warranty deed for the Property to Plaintiff within thirty days of the payment of the balance due by Plaintiff. Defendants appeal to this Court. We affirm by holding that although the writing produced as evidence of the contract does not satisfy the statute of frauds, Defendants are estopped from denying the existence and enforceability of the contract.

I concur with the results of the court’s opinion in this case. However, I write separately to emphasize a point regarding the valuation of marital property that is only briefly addressed in the court’s opinion.

Dr. Johnson (“the wife”) and Dr. Melvin (“the husband”) were married in October 1988 while the wife was pregnant with the parties’ first child. That child born in 1989 and the second child born in 1991 are the only minor children of this marriage. Husband filed a complaint for divorce, claiming inappropriate marital conduct. The wife counterclaimed in that action. The actions of the trial court from which the wife appeals, and with which both parties raise issues on appeal, include the Decree of Divorce issued August 6, 2004; the interlocutory order and memorandum entered July 28, 2004; and three post-trial orders and one memorandum. Issues raised on appeal concern distribution of marital property, award of alimony and child support, and refusal to award the wife attorney fees and costs. We affirm the judgment of the trial court in all respects.

The Appellant, Donald Franks, appeals the Hardin County Circuit Court’s denial of his petition for post-conviction relief. On appeal, Franks argues that he was denied his Sixth Amendment right to the effective assistance of counsel. After review of the record, we affirm the denial of post-conviction relief.

In this case, the trial court terminated a mother’s parental rights to her biological child upon grounds that she committed severe child abuse and that termination was in the child's best interest. The mother asserts that clear and convincing evidence was not presented that she committed severe abuse or that termination was in the best interest of the child. Mother argues that the judgment of the trial court should be vacated and the case remanded for new trial because of the unavailability of either a transcript of the proceedings below or a statement of the evidence. We vacate the order of the trial court as to termination of the parental rights of the mother and remand for new trial because the record provided this Court is insufficient to allow proper appellate review.

The defendant, Kevin Young, was convicted of one count of possession of more than one-half ounce of marijuana with intent to sell and one count of possession of more than one-half ounce of marijuana with intent to deliver. See Tenn. Code Ann. § 39-17-417(a) (2003). The trial court merged the two counts into a single conviction and sentenced the defendant, a career offender, to six years in the Department of Correction. In this appeal, the defendant asserts (1) that the evidence is insufficient to support the convictions and (2) that the trial court provided an incorrect supplemental instruction to the jury. The judgment of the trial court is affirmed.

This appeal relates to the plaintiffs’ challenge to the constitutionality of Tennessee Code Annotated section 7-51-1402 (1998), which regulates the hours during which adult-oriented establishments may remain open and, if violated, results in criminal penalties. We must determine 1) whether the trial court had jurisdiction to issue a temporary injunction barring enforcement of the statute; and 2) whether the trial court erred in consolidating the request for injunctive relief with the declaratory judgment action and addressing the constitutionality of the statute. We conclude that the trial court lacked jurisdiction to grant injunctive relief. Furthermore, the trial court erred in addressing the constitutionality of the statute without providing notice to the parties that the court was consolidating the action for injunctive relief with the declaratory judgment action. Accordingly, we affirm the judgment of the Court of Appeals and remand the case to the trial court for a trial on the merits of the declaratory judgment action.

The Appellant, Joe Mac Pearson, was convicted by a Marshall County jury of the sale and delivery of a Schedule II controlled substance and the sale and delivery of a Schedule III controlled substance. As a result of these convictions, Pearson received an effective sentence of twenty-five years in the Department of Correction. On appeal, Pearson argues that the evidence is insufficient to support his convictions. After review of the record, we conclude that the evidence is sufficient. We remand, however, for merger of offenses and for entry of corrected judgments of conviction.

The defendant, Coy Pierce, was convicted of driving under the influence (DUI), fourth offense, a Class E felony, and driving on a revoked license, a Class A misdemeanor. The trial court imposed sentences of two years for the DUI and eleven months and twenty-nine days for the driving on a revoked license. The trial court ordered that the sentences be served concurrently and that the defendant serve seven months in confinement with the remainder to be served on community corrections. On appeal, the defendant contends that he was denied a fair trial (1) as a result of prosecutorial misconduct and (2) as a result of the trial court’s ruling that the defendant could not enter a photograph into evidence. We affirm the judgments of the trial court in part but remand the driving on a revoked license case for entry of a corrected judgment.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Tennessee 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 trial court awarded Plaintiff 100 percent permanent disability. On appeal,
Defendant argues (1) the trial court was in error in finding Plaintiff’s headaches and depression were caused by the accident and, (2) the evidence does not support a finding of total permanent disability. The judgment is affirmed.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Tennessee 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 trial court awarded Plaintiff 100 percent permanent disability. Defendant
contends that Plaintiff’s pre-existing cancer and not a work-related event was the cause of his
disability. Plaintiff argues the trial court was in error in failing to provide that all medical expenses
be paid directly to the Plaintiff. Judgment of the trial court is affirmed.

The Petitioner, Ronald McCray, 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 failed to file a timely notice of appeal and this Court cannot conclude that justice requires waiver of this jurisdictional requirement.  Accordingly, the above-captioned appeal is dismissed.