APPELLATE COURT OPINIONS

The Defendant, William D. Busby, was convicted by a jury of four counts of rape of a child. The trial court subsequently sentenced him to four concurrent terms of twenty years in the Department of Correction. In this direct appeal, the Defendant contends that the trial court committed reversible error by failing to instruct the jury about the State's election of offenses. Finding that the trial court's error was harmless beyond a reasonable doubt, we affirm the judgments of the trial court.

This is a parental termination case involving a mother with a documented history of severe mental illness. The Department of Children’s Services filed a petition to terminate the mother’s parental rights to her minor son in February 2002, alleging the grounds of persistent conditions and failure to substantially comply with the permanency plans. The department filed an amended petition in August 2002, seeking to terminate the mother’s parental rights to her minor daughter based upon the same grounds. In September 2002, the department filed another amended petition alleging as an additional ground for termination the mother’s mental incompetence. Following a hearing over two non-consecutive days, the chancery court entered an order finding the department had proven all the grounds it alleged for terminating the mother’s parental rights by clear and convincing evidence, and terminating the mother’s parental rights would be in the children’s best interest. While we disagree with the trial court’s finding that DCS proved each ground for termination by clear and convincing evidence, we affirm the chancery court’s decision to terminate the mother’s parental rights.

The Petitioner, Ryan James Moran, pled guilty to multiple offenses that occurred in 1995, and the trial court sentenced him to an effective sentence of seventy-five years in prison. The Petitioner filed a pro se petition for post-conviction relief, which the post-conviction court summarily dismissed because it was barred by the statute of limitations. The Petitioner appeals, contending that the post-conviction court erred. Finding no reversible error, we affirm the post-conviction court's judgment.

This appeal involves a trial court's grant of summary judgment to the Tennessee Department of Revenue. The taxpayer operates a brick and block business on a ten-acre tract of land in Murfreesboro, Tennessee, on which is located a block manufacturing facility and retail sales office. Upon undertaking an audit of the taxpayer, the department inspected the property in Murfreesboro. The department subsequently assessed a sales and use tax liability against the taxpayer for the Murfreesboro property. The department determined that the Murfreesboro property constituted one location, and sales of concrete blocks manufactured at the facility constituted less than fifty-one percent (51%) of the gross sales at this location. The taxpayer filed an action in the trial court alleging it was entitled to a sales tax exemption under section 67-6-206 of the Tennessee Code because it operated two "locations" at the Murfreesboro property under the fifty-one percent (51%) test used by the department. Both parties moved for summary judgment. The trial court granted the department's motion and denied the taxpayer's motion. The taxpayer filed an appeal to this Court. We affirm.

Defendant, Malinda L. Mason, was indicted for driving under the influence of an intoxicant and for violation of the implied consent law. Following a jury trial, Defendant was convicted of driving under the influence, fifth offense, and sentenced to twenty-one months in the county workhouse as a Range I, standard offender. Defendant's sole issue on appeal challenges the trial court's denial of her request for a mistrial. After a review of the record, we affirm the judgment of the trial court.

This appeal involves a wife's petition for civil contempt filed against her ex-husband. The wife sought an order holding the ex-husband in civil contempt for failing to pay alimony in solido pursuant to the divorce decree and commanding him to pay the amount of the arrearage. Following a hearing on Wife's petition, the chancery court entered an order reclassifying the husband's alimony obligation from alimony in solido to rehabilitative alimony due to the parties' cohabitation after their divorce. In addition, the chancery court found that the wife was not entitled to alimony during the periods the parties lived together following their divorce, and the court awarded the wife a reduced sum of rehabilitative alimony. The wife filed an appeal to this Court. We reverse and remand this case to the chancery court.

This is an appeal from a jury verdict in favor of John William Thomas ("Plaintiff") in the amount of $190,095, of which $53,295 was for relocation expenses and increased rent. Plaintiff was injured when he was struck by a vehicle driven by Norma E. Pino-Rutkowski ("Defendant") while Defendant was backing out of a parking space. Due to his poor eyesight, Plaintiff does not have a driver's license and has to walk to work. Plaintiff claimed he was required to move much closer to work because he could no longer walk as far as he could before being injured. Plaintiff sought as part of his damages his relocation expenses and the $300 in his increased monthly rent. Defendant claims on appeal that Plaintiff was required to specifically plead these damages and because he failed to do so, that portion of the jury's verdict cannot stand. Defendant also claims the Trial Court erred when it allowed Plaintiff's granddaughter to testify and when it told the jury that "although the law in Tennessee may require insurance, you are not to consider the presence of insurance in this case." We agree with Defendant, and we vacate the judgment in its entirety and remand for a new trial.

The Petitioner, Keith D. Henderson, appeals from the dismissal of his petition for the writ of habeas corpus. The State has filed a motion requesting that the Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State's motion has merit. Accordingly, the motion is granted and the judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

We granted this appeal to determine whether the trial court committed reversible error in granting the plaintiff eight peremptory challenges during jury selection, whether the trial court properly denied a motion for a mistrial after the plaintiff cross-examined a defense expert witness with a prior statement, whether the trial court properly allowed the plaintiff to cross-examine a defense expert with an alleged learned treatise, and whether the trial court properly excluded the deposition of a defense expert witness. The Court of Appeals held that the trial court committed reversible error on these four issues, reversed the jury’s verdict in favor of the plaintiff, and remanded for a new trial. The intermediate court chose not to review numerous remaining issues raised by the parties.

After carefully reviewing the record and authority, we conclude: 1) that the trial court erred in granting the plaintiff eight peremptory challenges but the error did not affect the outcome or prejudice the administration of justice, 2) that the trial court did not abuse its discretion in denying a motion for a mistrial after the plaintiff had cross-examined an expert witness with a prior statement, 3) that the trial court did not err in allowing the plaintiff to cross-examine a defense expert witness with an alleged learned treatise, and 4) that the trial court did not abuse its discretion in excluding the deposition testimony of a defense expert witness. In addition, after reviewing the remaining issues, including those that were pretermitted by the Court of Appeals, we hold: 1) that the trial court erred in remitting the jury’s verdict by $1,500,000, 2) that the trial court did not abuse its discretion by denying prejudgment interest to the plaintiff, 3) that awarding damages for the loss of consortium did not violate the defendants’ rights under the United States or Tennessee constitutions, 4) that the trial court did not err in finding that the plaintiff’s expert witness established the professional standard of care in the community in which the defendants practiced and in denying the defendants’ motion for directed verdict on this basis, 5) that the trial court did not err in allowing the plaintiff to introduce hearsay statements from medical literature or make arguments as to the presence or absence of medical literature, 6) that the trial court did not err in denying a motion for a mistrial or a continuance based on the unavailability of a defense expert witness, and 7) that the trial court did not err in refusing to allow the defendants a credit against the jury’s verdict based on a payment received by the plaintiff under the decedent’s executive insurance plan. Accordingly, we reverse the Court of Appeals’ judgment and reinstate the jury’s verdict in favor of the plaintiff.

Richard E. Miller, in his capacity as an officer and director of Duncan Electric Company, Inc. ("Duncan Electric"), brought this action against the company's other directors, Bernard Stone and Greta B. Lindsay (collectively "the defendants"), alleging that they had breached certain fiduciary duties owed to him. Stone and Lindsay each moved for summary judgment on the basis that a settlement agreement and release entered into by the parties in a prior and separate lawsuit barred the plaintiff's present action. The trial court granted the defendants' motions and ordered the plaintiff to pay their attorney's fees. The plaintiff appeals, arguing that the trial court erred in granting summary judgment to the defendants. We affirm.

The petitioner, La Southaphanh, appeals from the Rutherford County Circuit Court's dismissal of his two petitions for post-conviction relief from his convictions for aggravated burglary, a Class C felony, aggravated assault, a Class C felony, and theft over one thousand dollars, a Class D felony. He contends that he received the ineffective assistance of counsel at his trial for aggravated burglary and theft over one thousand dollars because his attorney failed to move to suppress his confession, failed to move for a mistrial when his co-defendant stated that the petitioner was in a gang, failed to attack the credibility of one of the investigating officers, and failed to meet with him and prepare for trial adequately. He contends that he received the ineffective assistance of counsel at his trial for aggravated assault because his attorney failed to meet with him and prepare for trial adequately. We affirm the trial court.

The Appellant, Antonio Jackson, appeals the denial of his petition for post-conviction relief by the Shelby County Criminal Court. On appeal, Jackson contends that he was denied the effective assistance of counsel at trial. Specifically, he contends that his trial attorneys were ineffective by failing to pursue an alibi defense and by failing to properly investigate and prepare the case for trial.  After review, we affirm the denial of the petition.

The Appellant, Danny Worthington, appeals the judgment of the Scott County Criminal Court denying post-conviction relief. On appeal, Worthington argues that trial counsel was ineffective for providing erroneous advice and, as a result, his guilty plea was not knowingly and voluntarily entered. After review, the judgment of the post-conviction court is affirmed.

This is a divorce proceeding in which the parties accused each other of inappropriate marital conduct. The trial court granted both parties a divorce, and custody of the parties' child was awarded to Husband along with child support. Marital property, mostly debts, was allocated in part to Husband and in part to Wife. The trial court declined to assess attorney fees. Wife appealed claiming that she should have been granted the divorce and custody of the child. Wife also claimed that the marital debts were not allocated equitably and that she should have been awarded her attorney fees. We modify in part and affirm.

A Hamblen County Criminal Court Jury convicted the defendant, Miguel Garcia, of possession of more than three hundred grams of cocaine with the intent to deliver, a Class A felony, and the trial court sentenced him as a Range I, standard offender to twenty-two years in the Department of Correction. The defendant appeals, claiming that the trial court erred in denying his motion to suppress and that his sentence is excessive. We affirm the defendant's judgment of conviction, but we modify his sentence under the rule announced in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), from twenty-two years to twenty years.

This appeal arises out of an action for damages by a commercial tenant against a landlord. After a
jury awarded the appellee the sum of $168,000 in damages, the appellee sought pre-judgment
interest, post-judgment interest, and attorney’s fees. The trial court awarded the appellee prejudgment and post-judgment interest calculated on the entire award of damages but denied the appellee’s request for an award of attorney’s fees. The appellant seeks review of the award of prejudgment and post-judgment interest, and the appellee cross appeals, seeking review of the trial court’s denial of attorney’s fees. For the following reasons, we affirm and remand for any further proceedings consistent with this opinion.
 

The defendant, Jones Everett Travis, was indicted for Adult Driving While Impaired. On January 15, 2004, the defendant was to enter a nolo contendere plea to that charge when the district attorney’s office served notice of an Implied Consent Law violation. The parties agreed to a continuance on the Implied Consent Law violation and the defendant’s nolo contendere plea was entered. On February 10, 2004, the trial court held a hearing on the Implied Consent Law violation. The trial court first denied the defendant’s motion to dismiss the proceeding due to insufficient notice at the conclusion of the hearing. The trial court suspended the defendant’s driver’s license. The defendant now appeals this decision arguing that he was given insufficient notice that the district attorney’s office was going to allege an Implied Consent Law violation. We affirm the decision of the trial court.

In an opinion filed on January 7, 2005, this court affirmed the trial court's denial of probation but modified the defendant's sentence to comply with the requirements of Blakely v. Washington, 542 U.S. ____, 124 S. Ct. 2531 (2004). On January 18, 2005, the state filed a petition to rehear pursuant to Tennessee Rule of Appellate Procedure 39. The state asserts that this court erred by modifying the sentence because the defendant waived any challenge under Blakely and because the record was incomplete.

A Montgomery County jury convicted the Defendant, Ronnell Jason Leberry, of aggravated assault, extortion, especially aggravated kidnapping, and two counts of facilitation to commit aggravated rape. The trial court sentenced the Defendant to an effective sentence of thirty-two years and six months. On appeal, the Defendant contends that: (1) the trial court erred when it failed to instruct the jury on accomplice testimony; (2) he was denied a unanimous jury verdict; (3) the trial court erred by failing to recuse itself; (4) the evidence is insufficient to support his convictions; (5) he was denied his right to an impartial jury because certain jurors considered evidence not admitted at trial; (6) the trial court erred by failing to recuse the Assistant District Attorney General at trial; (7) he was denied the right to a fair trial because he was required to wear leg-shackles during the trial; (8) he was denied a fair trial due to the racial composition of the jury; and (9) the trial court erred by enhancing the Defendant's sentences and ordering consecutive sentencing. After thoroughly reviewing the record, we affirm all of the Defendant's convictions. Further, we hold that the trial court improperly enhanced the Defendant's sentences in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), and we reduce the Defendant's sentences in accordance with this opinion to an effective sentence of twenty-eight years.

The petitioner, Thomas M. McCormick, appeals as of right the dismissal of his petition for post-conviction relief by the Bedford County Circuit Court. He seeks relief from his conviction for aggravated assault and sentence of twelve years as a Range III, persistent offender. The petitioner contends that he received the ineffective assistance of counsel which caused him to enter an unknowing and involuntary guilty plea. We affirm the judgment of the trial court.

In 1986, Petitioner, James William Taylor, a/k/a Lutfi Shafq Talal, was convicted, following a jury trial, of receiving stolen property over the value of $200.00 and concealing stolen property under the value of $200.00. The convictions were in docket number S86300 in the Circuit Court of Williamson County. No appeal was taken from these convictions. In 1987, he was sentenced to three years for receiving stolen property and one year for concealing stolen property, with the sentences ordered to be served concurrently. However, the sentences were suspended and he was immediately placed on supervised probation for five years. In December, 1987, following the filing of a probation violation warrant, he was found to be in violation of his conditions of probation and ordered to serve thirty days in the Williamson County Workhouse, following which he would be released from custody and his probation reinstated. In June of 1991, the Circuit Court of Williamson County entered an order again finding Petitioner in violation of his probation due to convictions for burglary, robbery, and first degree murder, and revoked probation and ordered him to serve the three-year sentence consecutively to the new convictions. On April 15, 2004, he filed a petition for post-conviction relief attacking the convictions for receiving stolen property and concealing stolen property in case number S86300. On September 14, 2004, the Circuit Court of Williamson County dismissed the petition for post-conviction relief because the three-year statute of limitations, which existed at the time of his convictions, had long since expired. Petitioner appealed from this order, and the State has filed a motion for this Court to affirm the dismissal pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Finding merit in the motion, we grant same and affirm the judgment of the post-conviction court.

This appeal involves a dispute between the biological father, Brett W. Woodroof, who filed a petition to establish paternity of the nine year old child, Taylor Leigh Fisher, and the stepfather, Nathan E. Fisher, with whom the child has lived since she was two years old. The trial court determined that Mr. Woodroof was the natural father and awarded him visitation rights, but did not award him custody. A review of the record indicates that Mr. Woodroof asked for custody initially in his petition to determine parentage, but subsequently withdrew his request in his amended petition, and repeatedly advised the court throughout the lengthy court proceedings that spanned sixteen months that he sought only visitation with the child, and not custody. Mr. Woodroof requested custody only at the end of the trial process, after the testimony of the medical experts and other persons had been presented, and after numerous assertions in court that he was not presently seeking custody. We hold that his request for custody came too late and therefore we affirm the judgment of the trial court and remand for further action consistent with this opinion.

This appeal involves the jurisdiction of the Circuit Court for Davidson County over a dispute regarding custodial accounts established for the benefit of a divorced couple's children. The father moved to dismiss the mother's suit on the ground that the Circuit Court for Williamson County where the divorce had been granted had jurisdiction over the claim. The trial court denied the motion but permitted the father to pursue an interlocutory appeal to this court. The parties have now filed a stipulation for an accelerated civil appeal in accordance with Tenn. Ct. App. R. 13. We granted the interlocutory appeal, and now we vacate the order denying the father's motion to dismiss, and remand the case to the trial court with directions to transfer the case to the Circuit Court for Williamson County.

This case arises out of a will contest filed by Appellants. At trial, Appellants alleged that Appellee
unduly influenced Decedent and that Decedent’s Last Will and Testament is a product of that undue influence rendering the Will invalid. After a hearing, the trial court determined that Decedent’s Will was not the product of undue influence and dismissed the will contest. Appellants now seek review by this Court, and, for the following reasons, we affirm.