APPELLATE COURT OPINIONS

The petitioner, James Rimmer, appeals from the Shelby County Criminal Court’s denial of his petition seeking post-conviction relief on the ground of ineffective assistance of counsel. After a thorough review of the issues and applicable law, we affirm the judgment of the lower court.

This is a divorce case. The parties were declared divorced in February 2003. The divorce decree reserved issues regarding their minor child, property valuation and distribution, alimony, and attorney’s fees. After a hearing on the reserved issues, the trial court granted the wife alimony and designated her the primary residential parent of their child, set child support, and distributed the marital property. The husband appealed the trial court’s decision on all of the reserved issues. We affirm the trial court’s decision, with modification on the issue of the husband’s residential parenting time.

Carol Bracken Orten (“Wife”) sued Thaddeus Charles Orten (“Husband”) for a divorce. During the course of discovery, Husband refused to provide certain financial information as he felt the information to be irrelevant. After Husband failed to appear without explanation at the second Trial Management Conference, the Trial Court entered a default judgment against Husband as a sanction for his actions. Husband’s attorney immediately withdrew from the case and the Trial Court then proceeded to distribute the marital property and award Wife alimony and child support based solely on Wife’s uncontested testimony. Husband secured new counsel and filed a motion to alter or amend the judgment, or for a new trial. The Trial Court denied Husband’s motion and this appeal followed. We affirm.

I concur completely with the majority’s resolution of Appellant’s first issue. I, respectfully, dissent from the majority’s decision as to Appellant’s second issue.

Mother appeals the Dickson County Juvenile Court’s Order terminating her parental rights to three children, C.L.M., M.M.M., and S.D.M. Father does not challenge the trial court’s termination of his parental rights. We affirm the judgment of the trial court.

The defendant, Gregory Mullins, was convicted of two counts of violating the vehicle registration law, two counts of driving on a suspended license, two counts of criminal impersonation, one count of speeding, one count of misdemeanor evading arrest, and one count of felony evading arrest. The trial court imposed a Range III, career offender sentence of six years for the felony evading arrest offense; concurrent terms of forty-five days for each of the driving on a suspended license offenses; eleven months, twenty-nine days for the misdemeanor evading arrest offense; and forty-five days for each of the criminal impersonation offenses. In addition, the defendant was fined $50 for each of the vehicle registration offenses; $50 for the speeding offense; $500 for each of the driving on a suspended license offenses; $3,000 for the felony evading arrest offense;  $2,500 for the misdemeanor evading arrest offense; $500 for one of the impersonation offenses; and $250 for the remaining impersonation offense. In this appeal, the defendant asserts that the evidence is not sufficient to support several of his convictions and that the dual convictions for misdemeanor evading arrest and felony evading arrest violate principles of double jeopardy. Because the convictions for felony and misdemeanor evading arrest violate the principles of double jeopardy, the conviction for misdemeanor evading arrest must be merged into the conviction for felony evading arrest. Otherwise, the judgment of the trial court is affirmed.

This is a personal injury case arising out of an automobile accident. The defendant rear-ended the plaintiff’s vehicle, and the plaintiff filed this lawsuit against the defendant for the damages resulting from the accident. A jury trial was held. At the conclusion of the trial, the jury awarded the plaintiff compensatory damages, including an amount for future pain and suffering and permanent injury.  The trial court entered a judgment on the verdict. The defendant filed a motion to alter or amend the judgment, arguing that some elements of the jury’s verdict were not supported by the evidence at trial. The motion was denied. The defendant now appeals. We affirm in part, reverse in part, and remand for the trial court to amend the judgment to conform with the evidence at trial.

I adhere to my longstanding view that a “preponderance of the evidence” standard and a “clear and convincing evidence” standard are incompatible with each other and cannot be reconciled either in the trial court or in appellate courts. The effort to make these standards compatible, as asserted in Ray v. Ray, 83 S.W.2d 726 (Tenn.Ct.App.2001), and its progeny are in my view incorrect for reasons stated at length in Estate of Acuff v. O’Linger, 56 S.W.3d 527 (Tenn.Ct.App.2001) and In re Z.J.S. and M.J.P., No. M2002-02235-COA-R3-JV, filed June 3, 2003 (Tenn.Ct.App.2003-Cain, concurring).

The Cumberland County Bank (“the bank”) filed an unlawful detainer action in general sessions court against Dee Downs Eastman. The bank sought to obtain possession of real property conveyed to it following the bank’s foreclosure of deeds of trust securing promissory notes executed by Ms. Eastman. The general sessions court entered judgment for possession “for which a Writ of Possession may issue.” Ms. Eastman appealed to the trial court and, along with the Dee Downs Eastman Revocable Trust (“the trust”), filed in that court a counterclaim that essentially challenged the validity of the foreclosure sale by which the bank acquired its title to the subject property. The trial court granted the bank summary judgment as to all issues. Ms. Eastman and the trust appeal.  We affirm.

This appeal involves the termination of the parental rights of a biological mother who is serving a lengthy prison sentence. Following years of drug abuse, criminal conduct, periodic incarceration, and inconsistent attention to the needs of her two children, the mother pled guilty to charges of especially aggravated kidnaping and aggravated robbery and was sentenced to serve concurrent terms of fifteen and twelve years in prison. Following her incarceration, the fathers of both children filed petitions to terminate her parental rights. The juvenile court consolidated these petitions with the mother’s petition for visitation and appointed guardians ad litem for the children. The guardians ad litem later filed a joint petition to terminate the mother’s parental rights, and the fathers voluntarily dismissed their termination petitions. Following a bench trial, the juvenile court entered orders terminating the mother’s parental rights to both children on three grounds. The mother has appealed.  We have determined that the record contains clear and convincing evidence to support terminating the mother’s parental rights on two of the three grounds relied upon by the court and to support the court’s conclusion that terminating the mother’s parental rights is in the children’s best interests.

The Robertson County Circuit Court convicted the defendant, Larry Dale Driver, of assault, a Class A misdemeanor, following a bench trial. The trial court imposed a sentence of eleven months, twenty-nine days, with probation following 180 days in jail. On appeal, the defendant contends that the evidence was insufficient to support his conviction and that the trial court erred by denying him judicial diversion. We affirm the trial court.

Following a jury trial, Defendant, Lawrence Ralph, Sr., was convicted of failure to display a driver's license, a Class C misdemeanor; resisting arrest, a Class B misdemeanor; and simple possession of a Schedule III controlled substance, a Class A misdemeanor. The trial court sentenced Defendant to concurrent terms of thirty days for his failure to display a driver's license conviction, six months for his resisting arrest conviction, and eleven months, twenty-nine days for his simple possession conviction, for an effective sentence of eleven months and twenty-nine days. The trial court suspended all but 120 days of Defendant's effective sentence, and placed Defendant on probation. Defendant does not challenge the sufficiency of the evidence supporting his conviction for simple possession. On appeal, Defendant argues that: (1) the trial court erred in denying his motion to suppress; (2) the evidence was insufficient to support his convictions for resisting arrest and failure to display a driver's license; and (3) the trial court erred in determining the percentage of Defendant's effective sentence which must be served in confinement. After a review of the record, we affirm the judgments of the trial court.

The defendant, Samuel T. Cravens, was convicted by a Fentress County jury of two counts of vehicular assault and one count of assault. The defendant argues on appeal that the evidence fails to support the convictions because the witness testimony upon which the convictions are based is inherently impossible and irreconcilable with the physical evidence and because the state failed to prove that the defendant's intoxication was the proximate cause of the victims' injuries. After thoroughly reviewing the record and applicable authorities, we find sufficient evidence to support the convictions and, therefore, affirm the trial court's judgments.

The defendant, John Dillihunt, was convicted of delivery of less than .5 grams of cocaine within 1000 feet of a school, a Class B felony, for which he was sentenced as a Range I, standard offender, to eight years in the Department of Correction to be served at 100% and fined $7500. On appeal, although the defendant raises four issues, we believe they can be condensed into one: whether the evidence was sufficient to support his conviction. Following our review, we affirm the judgment of the trial court but remand for entry of a corrected judgment.

This is a post-divorce case. Clyde Edwards (“Husband”) appeals the trial court’s denial of his motion to modify his alimony obligation to his former wife, Sarah Ann Edwards (“Wife”).  Husband’s original motion was premised on the fact that Wife was living with her adult daughter and son-in-law. We affirm.

Former wife, Cathy Williams, appeals the action of the trial court in reducing the alimony in futuro obligation of former husband, Rodney Williams, from $4,000 per month to $2,000 per month based on a finding that a substantial and material change in circumstances sufficient to justify the decrease had occurred. The judgment of the trial court is affirmed.

We granted permission to appeal to determine: 1) whether an indirect purchaser may bring an action under the Tennessee Trade Practices Act against defendants involved in an price-fixing scheme; 2) whether the conduct complained of falls within the scope of the act; and 3) whether the trial court erred in declining to grant summary judgment to the defendants as to the plaintiff's unjust enrichment claim. We conclude that although an indirect purchaser may bring an action under the Tennessee Trade Practices Act, the conduct complained of in this case did not substantially affect Tennessee commerce and thus falls outside the scope of the act. We further conclude that to sustain an unjust enrichment claim, the plaintiff is not required to: 1) establish that the defendants received a direct benefit or 2) exhaust all remedies against the party with whom the plaintiff is in privity if the pursuit of the remedies would be futile. Because the plaintiff failed to provide a factual basis to support its bare allegation that any attempt to exhaust its remedies would have been futile, the trial court erred in failing to grant the defendants' motion for summary judgment on the unjust enrichment claim. Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings in accordance with this opinion.

I concur in the majority’s decision finding the evidence sufficient to support the Defendant’s convictions for violating the vehicle registration law, speeding, driving on a suspended license, and felony evading arrest. I respectfully disagree that principles of double jeopardy under Tennessee’s constitution require the merger of the Defendant’s conviction for misdemeanor evading arrest with his felony evading arrest conviction.

Petitioner, C.S.O. Norvell, Jr., filed a petition for writ of habeas corpus, attacking his conviction for second degree murder in the Tipton County Circuit Court. The petition was summarily dismissed by the trial court without an evidentiary hearing. Petitioner has appealed, arguing that his conviction is void because he received an illegal sentence. After a thorough review, we affirm the judgment of the trial court.

I concur in the majority opinion, but I believe one issue deserves further
discussion–sequential offense consideration jury instructions in cases involving a question of second degree murder or voluntary manslaughter. The defendant’s concern is that requiring the jury to acquit on the greater offense before considering the lesser offense can cause a problem when it involves second degree murder and voluntary manslaughter. I agree.

This case is about parental relocation and child custody. The parents of a minor child divorced in 2001. Both parents lived in Lexington, Tennessee, and, at the time of the divorce, agreed to joint custody. The child alternated daily between the parents’ homes. In 2002, the mother remarried and moved to Murfreesboro, Tennessee. The mother petitioned the court to designate her as primary residential parent and allow her to move the child with her to Murfreesboro. The father opposed the petition and asked the court to designate him as the primary residential parent. The trial court found that it was in the child’s best interest to move to Murfreesboro with the mother, and designated her as primary residential parent. The father appealed. We affirm, finding that the evidence does not preponderate against the trial court’s decision to designate mother as primary residential parent and permit the child to move with her.

The appellant, Earnest Gwen Humphrey, was convicted by a jury in the White County Criminal Court of second degree murder. The trial court imposed a sentence of twenty-two years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises multiple issues for our review, including challenges to the voir dire of the jury, the sufficiency of the evidence, prosecutorial misconduct, and the jury instructions. Upon our review of the record and the parties’ briefs, we affirm the judgment of the trial court.

The petitioner, Wilson H. Tucker, filed a petition for writ of habeas corpus in the Hardeman County Circuit Court. The trial court summarily dismissed the petition, and the petitioner timely appealed.  Upon review of the record and the parties’ briefs, we affirm the judgment of the habeas corpus court.

This is an appeal from the trial court’s reversal of an administrative decision. The plaintiff police officer was involved in a one-car collision while driving a police van. At the time, he was on sick leave and was not authorized to be driving the van. The van contained numerous high-powered police weapons. After the accident, the officer locked the van and left it at the accident scene overnight. The next day, the officer notified the police department about the accident. The officer was later terminated for his conduct arising out of the accident. The officer appealed his termination to the Civil Service Commission, which upheld the termination. The officer then filed the instant lawsuit in the lower court, seeking a review of the Commission’s decision. The trial court reversed  the Commission, holding that no material evidence supported its decision to uphold the termination.  From that decision, the City now appeals. We reverse the decision of the trial court and uphold the Civil Service Commission’s decision to terminate the plaintiff officer, finding material evidence in the record to support the Civil Service Commission’s decision.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel 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. In this appeal, the employee asserts that the trial court erred in finding he was not entitled to reimbursement for medical expenses for unauthorized physicians and in finding he sustained only a 5% permanent partial disability to the whole person as the result of an injury occurring during the course of the appellant's employment with the Davidson Transit Organization. We conclude that the evidence presented supports the findings of the trial judge and, in accordance with Tennessee Code Annotated section 50-6-225(e)(2), affirm the judgment of the trial court.