APPELLATE COURT OPINIONS

We granted the applications for permission to appeal filed by the State of Tennessee and the petitioner to determine 1) whether State v. Burns, 6 S.W.3d 453 (Tenn. 1999), which clarified the analysis for determining lesser-included offenses, created a new constitutional rule that must be applied retroactively to post-conviction cases, 2) whether the petitioner was entitled to post-conviction relief under the DNA Relief Act, and 3) whether the petitioner was denied his right to the effective assistance of counsel at trial. The trial court and the Court of Criminal Appeals granted a new trial as to the petitioner's felony murder conviction because the jury had not been charged on the lesser-included offense of second degree murder but denied post-conviction relief as to the petitioner's conviction for especially aggravated robbery. After due consideration, we conclude 1) that State v. Burns did not create a new constitutional rule that must be retroactively applied to post-conviction cases, 2) that the petitioner was not entitled to a new trial or other relief based on DNA results, and 3) that the petitioner was denied his constitutional right to effective assistance of counsel. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the case is remanded for a new trial on felony murder and especially aggravated robbery.

I concur in the opinion authored by Judge Swiney to the extent that it affirms the trial court’s dismissal of the plaintiff’s claims based upon breach of express warranty, breach of implied warranty, unjust enrichment, and money had and received. I also concur that the plaintiff’s Tennessee Consumer Protection Act (“the TCPA”) claims are not subject to dismissal at this stage of the proceedings. I write separately to express my opinion that many of the plaintiff’s morespecific allegations pertaining to his general allegation of “unfair and/or deceptive acts or practices” under the TCPA appear to fall within the “loose general praise of wares sold” referred to in Restatement (Second) of Torts § 402B. See also Ladd v. Honda Motor Co., Ltd., 939 S.W.2d 83, 100 (Tenn. Ct. App. 1996). For example, I believe a reference to one’s product as “superior” in an advertisement or other writing is nothing more than a statement of the seller’s opinion as to the worth of its product. How does one measure whether a product is superior or not? For example, it may be superior in one aspect but not in another. If a company’s DVD player emits a sound that is rated better by independent experts when compared to the products of others; but has a lower rating in the same competition from a mechanical standpoint, should a jury be permitted to speculate as to which quality the company was touting when it referred to its product as “superior”? I think not. “Superior,” like beauty, is in the eyes of the beholder.

The court reiterates a statement first appearing in a published opinion in Ray v. Ray, 83 S.W.3d 726, 733 (Tenn.Ct.App.2001). Quoting from In Re M.O.,173 S.W.3d 13, 18-19 (Tenn.Ct.App. 2005, the court says:

This potential class action lawsuit was filed by Don Daugherty (“Plaintiff”) on behalf of himself and all other Tennessee residents who purchased certain specified DVD players from Sony Electronics, Inc. (“Sony”). Plaintiff alleged in his complaint that the DVD players were inherently defective, that Sony was aware of these defects, and that Sony nevertheless marketed and sold the defective DVD players. Plaintiff brought claims for breach of express warranty, breach of implied warranty, unjust enrichment, money had and received, as well as a violation of the Tennessee Consumer Protection Act. Sony’s motion seeking to have all of the claims dismissed was granted by the Trial Court.  Plaintiff appeals the dismissal of all five claims. We affirm the judgment of the Trial Court with respect to the claims for breach of express warranty, breach of implied warranty, unjust enrichment, and money had and received. We reverse the judgment of the Trial Court dismissing Plaintiff’s Tennessee Consumer Protection Act claim.

The petitioner, Wayford Demonbreun, Jr., appeals the trial court's dismissal of his petition for habeas corpus relief. In this appeal, he alleges that his judgment of conviction for aggravated assault is void because the indictment was defective in that it failed to inform him of the essential elements of the offense for which he was convicted. The judgment of the trial court is reversed. The conviction at issue is vacated, habeas corpus relief is warranted as to that offense, and the cause is remanded for appropriate remedial action. Because the petitioner is also imprisoned for second degree murder, he is not entitled to release by virtue of this opinion.

Following a transaction involving the sale of a business, the plaintiff filed suit against several defendants in federal court alleging causes of action grounded in federal and state law. The federal jury found some of the defendants liable, but they concluded that one of the defendants did not engage in any wrongdoing during the transaction at issue. Thereafter, the plaintiff filed suit in a Tennessee chancery court seeking to impose a constructive trust over funds held by the defendant exonerated by the jury. The defendant removed the case to the federal district court. The district court determined that the claim was barred by the doctrine of res judicata. The plaintiff appealed to the federal court of appeals, which ruled that the case was not properly removable, as it only presented a claim based upon state law. On remand to the chancery court, the defendant asserted the affirmative defenses of res judicata and collateral estoppel. The chancery court subsequently granted the plaintiff’s motion for summary judgment. The defendant appealed to this Court. We reverse the chancellor’s grant of summary judgment to the plaintiff, and we hold that the plaintiff’s claim for a constructive trust is barred by the doctrines of res judicata and collateral estoppel. Accordingly, we dismiss the case in its entirety.

Inmate filed a medical malpractice and negligence action against Defendants involved in his care following a slip-and-fall injury at the prison and Defendants involved in the maintenance of the prison. The trial court dismissed all named Defendants and inmate appeals. We affirm the decision of the trial court in all respects.

The defendant, Corey Moten, was convicted of second degree murder, a Class A felony, and sentenced as a violent offender to twenty years in the Department of Correction. On appeal, he argues that the evidence is insufficient to support his conviction and that the trial court erred in giving a sequential jury instruction. Following our review, we affirm the judgment of the trial court.

The Petitioner, Jessie Hodges, appeals the lower court’s denial of his petition for post-conviction 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 is procedurally barred from pursuing appellate review of the lower court’s denial of post-conviction relief. Accordingly, the above-captioned appeal is dismissed.

The Petitioner, Ronald Dennis Crafton, appeals the trial court's denial of his motion to reopen his petition for post-conviction petition. The State has filed a motion requesting that this Court dismiss the above-captioned appeal, or in the alternative, affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because Petitioner has failed to properly invoke this Court’s jurisdiction, the above-captioned appeal is dismissed.

The appellant, Jarrod Johnston Slaughter, was convicted by a jury in the Madison County Circuit Court of driving under the influence (DUI), third offense. He received a sentence of eleven months, and twenty-nine days, with 208 days to be served in confinement. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction and the length of confinement imposed by the trial court. Upon our review of the record and the parties’ briefs, we affirm the judgment of the trial court.

Tammy Hopkins Lindsay ("Mother") and Dwight Kelley Lindsay ("Father") were divorced in December of 2000, but have returned to court numerous times since then. Most of the post-divorce controversy centers around the amount of Father's child support payment and the arrearages which have accrued since the divorce. After the most recent hearing, the Trial Court entered a detailed order resolving competing petitions filed by the parties. The only issue in this appeal concerns that portion of the Trial Court's order which requires Father to pay an additional $50 each time he fails to exercise co-parenting time on a weekend, and an additional $25 for each day that he fails to exercise co-parenting time on a holiday or during the summer. We vacate only this particular portion of the Trial Court's Order, and affirm the order as so modified.

This application for an interlocutory appeal concerns the jurisdiction of the Circuit Court for Rutherford County to consider a mother’s appeal from a decision of the Rutherford County Juvenile Court changing custody to the father. The Circuit Court denied the father’s motion to dismiss for lack of jurisdiction, but granted mother permission to appeal pursuant to Tenn. R. App. P. 9. We concur with the Circuit Court that this is an appropriate case for an interlocutory appeal. Because the Juvenile Court’s decision does not arise out of a dependant or neglect proceeding, the appeal of the Juvenile Court’s order lies to this court rather than the Circuit Court. Accordingly, we vacate the Circuit Court’s order and remand the case to the Circuit Court with directions to transfer the appeal to this court.¹

This primary issue on appeal is whether Dwight Kelley Lindsay ("Mr. Lindsay") was properly advised of his constitutional right to counsel before being found guilty on twelve counts of criminal contempt for his failure to pay court ordered child support and health insurance reimbursement payments. All parties to this appeal now agree that Mr. Lindsay was not adequately advised of his right to counsel. The judgment of the Trial Court finding Mr. Lindsay in criminal contempt is vacated.

The Petitioner, Eric Glover, appeals the lower court’s denial of his petition for post-conviction 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 is procedurally barred from pursuing appellate review of the lower court’s denial of post-conviction relief. Accordingly, the above-captioned appeal is dismissed.

On April 15, 1998, the Putnam County Grand Jury indicted Defendant, James Thomas Manning, on one count of aggravated burglary, two counts of aggravated rape, one count of attempted aggravated sexual battery, and one count of aggravated robbery. Following a jury trial, Defendant was convicted of two counts of aggravated rape, a Class A felony, and one count of aggravated burglary, a Class C felony. The jury acquitted Defendant of attempted aggravated sexual battery and could not reach a verdict on the aggravated robbery charge. Defendant received concurrent twenty-five year sentences for each of the aggravated rape convictions, and a consecutive six year sentence for the aggravated burglary conviction, for an effective thirty-one year sentence. These sentences were ordered to be served consecutively to a prior sentence out of Sumner County being served by Defendant at the time of trial and sentencing. In his appeal, Defendant argues that the trial court erred by (1) denying his motion to strike expert testimony for failure to lay a proper foundation; (2) excluding evidence that the victim had pending charges for aggravated assault; (3) violating double jeopardy principles in allowing Defendant to be convicted of two counts of aggravated rape; and (4) imposing consecutive sentences. We affirm the judgments of the trial court.

The petitioner, Cedric Davis aka Cedric Booker, appeals from the post-conviction court’s denial of his petition for post-conviction relief. On appeal, he argues that the post-conviction court erred in finding that he received the effective assistance of counsel. Following our review of the record and the parties’ briefs, including the petitioner’s reply brief, we affirm the judgment of the post-conviction court.

The plaintiff brought this action against her former employer, alleging that the defendant terminated her employment in retaliation for her pursuit of a claim for workers' compensation benefits. The trial court granted the defendant summary judgment, holding that the plaintiff failed to establish a prima facie case of retaliatory discharge and that she also failed to rebut the defendant's proffered legitimate reason for termination. The plaintiff appeals. We affirm.

The Defendant, Jamie Emerson New, was convicted of aggravated sexual battery and sentenced to eight years of incarceration. On appeal, he contends that; (1) the evidence is insufficient to sustain his conviction, and (2) the two child witnesses who testified against him were not competent to testify. Finding no reversible error, we affirm the judgment of the trial court.

On appeal, the defendant challenges the sufficiency of the evidence to support the verdict and the denial of alternative sentencing. Following our review, we conclude that the evidence presented was sufficient to support the jury's verdicts and that the denial of alternative sentencing was justified given the defendant's lengthy history of criminal activity and the inability of probation to deter him from such conduct. Therefore, we affirm the convictions and sentences.

The Defendant, Willie J. Simmons, was convicted of rape and sexual battery. The Defendant received an effective eight year sentence in the Department of Correction. On appeal, the Defendant argues that the trial court erred in denying alternative sentencing. We affirm the judgment of the trial court.

Petitioner, Erika Louise Bunkley Patrick, appeals the post-conviction court’s dismissal of her petition for post-conviction relief in which she alleged that her pleas of guilty were not voluntarily and knowingly entered into and that her trial counsel rendered ineffective assistance in the negotiation and entry of her pleas. After a thorough review of the record, we affirm the judgment of the post-conviction court.

Amy Lynelle Gardner appeals the post-divorce modification of child support provisions.  Father, Richard Wendell Gardner, petitioned the court for modifications claiming the child support provisions were unconscionable, in part due to the fact the parties used one attorney for the divorce proceedings from which the child support provisions emanate. The trial court found Father was not properly represented and that certain provisions were unconscionable. As a result, the trial court relieved Father of the contractual obligation to pay support for a child past majority, required that Mother apply her state employee discount to the child’s college tuition, and awarded Father the tax deduction for the years he paid tuition. Finding no error, we affirm the trial court.

In this action arising from a vehicular accident, the issues presented are whether the trial court erred in allowing into evidence deposition testimony of a Defendant pursuant to Tenn. R. Civ. P. 32.01, and whether the amount of the jury verdict was supported by material evidence. We hold the trial court did not err in its discretionary decision to admit the deposition testimony, and that there is material evidence supporting the duly approved jury verdict. Consequently, we affirm the judgment of the trial court.

The defendant, Kristi Dance Oakes, stands charged in the Sevier County Circuit Court with one count of statutory rape. The district attorney general denied her application for pretrial diversion, an action upheld by the trial court upon certiorari review of that decision. The defendant obtained an interlocutory appeal from this court via Tennessee Rule of Appellate Procedure 10. Following our review, we vacate the order upholding the denial of pretrial diversion and remand the case to the trial court.