APPELLATE COURT OPINIONS

This appeal involves the Juvenile Court's termination of the parental rights of B.B.M. ("Mother") to her four children. After a trial, the Juvenile Court held there was clear and convincing evidence that DCS had made a reasonable effort to assist Mother to reunite with her children. The Juvenile Court also concluded that DCS had proven by clear and convincing evidence that Mother's parental rights should be terminated on three separate grounds. Finally, the Juvenile Court held there was clear and convincing evidence that termination of Mother's parental rights was in the children's best interest. The record on appeal is lacking in many respects and does not contain even the permanency plans developed by DCS to assist Mother in the unsuccessful attempt to reunite her with her children. We conclude the record, such as it is, does not contain sufficient evidence to support the Juvenile Court's conclusion that there was clear and convincing evidence that DCS had made a reasonable effort to assist Mother to reunite with her children. The judgment of the Juvenile Court is, therefore, reversed.

This case involves an inmate’s petition for a writ of mandamus filed against the Tennessee Department of Correction following an increase in his release eligibility date. The inmate filed the petition asking the trial court to order the department to enforce the sentencing range set forth in the judgment entered as a result of his plea agreement. The department filed a motion to dismiss which the trial court granted. We affirm.
 

This case primarily involves a dispute over the proper characterization of property held by the parties during a thirty year relationship. The parties lived together during their relationship, but never married. Mary Story filed suit against Malcolm Lanier, alleging that a marriage by estoppel existed between the parties, or in the alternative, that an implied partnership was created, justifying the equal division of all bank accounts, personal property, and real property owned by the parties. The chancellor granted Mr. Lanier’s Motion to Dismiss Ms. Story’s marriage by estoppel claim but allowed her to proceed on an implied partnership theory. Following a bench trial, the chancellor found that an implied business partnership existed in a restaurant purchased by Mr. Lanier in 1974 but not in any real property or bank accounts. Both parties have appealed the chancellor’s rulings regarding the division of the parties’ assets. Ms. Story also appeals the chancellor’s denial of prejudgment interest, the finding that no resulting or constructive trusts existed as to the real property and bank accounts, and a ruling regarding Mr. Lanier’s pleadings. For the reasons stated below, we affirm the decisions of the chancery court.

This appeal arises out of an inverse condemnation action brought by Appellant against Appellee. Appellee filed a motion to dismiss for failure to state a claim upon which relief can be granted, contending that Appellant’s claim was time barred by the applicable statute of limitation. The trial court granted Appellee’s motion, and Appellant now seeks review by this Court. For the following reasons, we reverse.
 

The Defendant, Calvin Lee Sneed, was convicted upon a jury verdict of first degree premeditated murder and sentenced to life imprisonment. The Defendant's conviction and sentence were affirmed on direct appeal. See State v. Calvin Lee Sneed, No. 03C01-9611-CR-00444, 1998 WL 309137 (Tenn. Crim. App., Knoxville, June 12, 1998). The Defendant subsequently filed a petition for post-conviction relief, alleging that he had received ineffective assistance of counsel at trial. After a hearing, the trial court denied relief. The Defendant now appeals. We affirm the judgment of the trial court.

The appellant, Michael A. Drake, was indicted on two counts of vehicular homicide and two counts of aggravated vehicular homicide. A jury found the appellant guilty of two counts of vehicular homicide by intoxication. In the second phase of the trial, the jury found the appellant guilty of two counts of aggravated vehicular homicide based on one prior DUI conviction and a blood alcohol level of .20 or more at the time of the present offense. On appeal, the appellant challenges the sufficiency of the indictment by arguing that it only gave notice that the State sought to convict him of aggravated vehicular homicide based on two prior DUI offenses. We determine that the indictment is misleading and deprives the appellant of adequate notice of the charges against him in violation of the 6th amendment to the United States Constitution and Article 1, section 9 of the Tennessee Constitution. The indictment indicated that the State sought the aggravated vehicular homicide convictions solely on the basis of the appellant's two prior DUI convictions pursuant to Tennessee Code annotated section 39-13-218(1)(a), rather than one prior DUI and a blood alcohol of .20 or more at the time of the offense, pursuant to Tennessee Code Annotated section 39-13-218(3). Thus, we are forced to dismiss the aggravated vehicular homicide conviction, modify the conviction to vehicular homicide under Tennessee Code Annotated section 39-13-213 and remand the case for resentencing.

Plaintiff/Appellant appeals from the trial court’s grant of Defendants/Appellees’ Tenn. R. Civ. P. 12 Motion to Dismiss for failure to secure service of process. Finding that Defendant/Appellees’ evidence clearly and convincingly rebuts the process server’s testimony, we affirm.
 

Following a jury trial, the defendant, Gary Lee Johnson, was convicted of aggravated assault, assault,¹ and resisting arrest. He was sentenced as a Range I, standard offender to six years in the Department of Correction for the aggravated assault and eleven months, twenty-nine days for each of the assault and resisting arrest convictions. All sentences were to be served concurrently. He appeals only the aggravated assault conviction, arguing that the evidence is insufficient to support the conviction. After review, we affirm the convictions but remand for entry of corrected judgments in Counts 1 and 2.

This case involves a claim filed by the Tennessee Bureau of TennCare against the estate of an elderly decedent to recover certain benefits paid to the decedent to cover nursing home expenses during her lifetime. The executor filed an exception to the claim arguing that it was filed outside the four (4) month limitations period found in sections 30-2-306(c) and 30-2-307(a) of the Tennessee Code. The chancery court issued an order barring the bureau's claim on the grounds that is was untimely filed. For the reasons stated herein, we reverse.

This case comes before us on a motion to reopen a petition for post-conviction relief. The
petitioner alleges that he is mentally retarded as defined in Tennessee Code Annotated section 39-13- 203(a) (2003), and therefore ineligible for the death penalty under State v. Van Tran, 66 S.W.3d 790  that the petitioner failed to make a prima facie showing of mental retardation sufficient to support reopening his post-conviction proceeding, and the Court of Criminal Appeals affirmed the denial. We reverse the Court of Criminal Appeals, holding that under the specific facts of this case, in which a petitioner is able, for the first time in his motion to reopen his petition for post-conviction relief, to claim ineligibility for the death penalty due to mental retardation under Van Tran or Atkins, the motion should be considered under the “colorable claim” evidentiary standard rather than the “clear and convincing” standard. We also hold that Tennessee Code Annotated section 39-13-203(a) (2003) clearly and unambiguously requires the defendant to have an I.Q. of seventy or below to be considered mentally retarded. We conclude that the petitioner’s motion to reopen his postconviction hearing set out a colorable claim, thus entitling him to an evidentiary hearing, without a jury, on the issue of mental retardation.

Following an unlawful detainer action in general sessions court, Appellant was lawfully evicted pursuant to a writ of possession. Appellant did not appeal the judgment. Appellant filed a subsequent action in general sessions court alleging wrongful eviction. The general sessions court dismissed the action. Plaintiff appealed to circuit court, which affirmed dismissal based on the doctrine of res judicata. We affirm.
 

This is the second appeal of this case. In June 1999, an arbitration panel determined Rose Construction was entitled to damages under the parties’ contract. The trial court vacated the arbitration award. On appeal, this Court reversed and confirmed the arbitration award in its entirety. The Tennessee SupremeCourt denied Raintree Development’s application for permission to appeal, issued a mandate, and remanded the case to the trial court for entry of judgment. The trial court entered judgment for Rose Construction as ordered by this Court. Raintree Development again appeals. We affirm. We also hold this appeal frivolous and award Rose Construction damages for a frivolous appeal.
 

This is a consolidated appeal involving two Title IV-D child support cases. In each case, the mother had custody of the children, and the father was subject to a court order requiring monthly child support payments. The mother in each case received State assistance, and consequently the father was required to make the child support payments through the State’s central collection and disbursement unit. Years later, after significant child support arrearages had accrued, the father in each case filed a motion to modify the child support order and requested that the court terminate his child support obligation. Each mother joined in the father’s request, confirming that she no longer wanted the State to enforce the father’s child support obligation. In each case, the State objected, asserting that the mother had assigned to the State her right to the child support payments when she accepted public assistance benefits. The trial court dismissed each case and forgave each father’s outstanding child support arrearage. The State now appeals. We reverse, in both cases, concluding that the trial court erred in retroactively modifying its child support orders and in terminating the cases before the State had been reimbursed for public assistance benefits received by the mothers.

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The appellant has appealed the trial court's order summarily dismissing the appellant's petition for writ of habeas corpus. Upon a review of the record in this case we are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

This case arises out of the sale of real estate located in Madison County, Tennessee. Appellants filed this action to recover a real estate commission under a theory of unjust enrichment. The trial court below granted Appellee’s motion for summary judgment, and Appellants now seek review by this Court. For the following reasons, we affirm.

This is a petition to modify alimony. The parties were married for over forty-one years. In 1998, the wife filed a petition for legal separation. In October 1998, the trial court entered a final decree of legal separation, incorporating the terms of the parties’ property settlement agreement. In that agreement, the husband agreed to pay the wife alimony in futuro of $1,300 per month. In October 2001, the husband filed a petition to modify his alimony payments, based on the deterioration in his health, which hindered his ability to pay, as well as the wife’s receipt of social security benefits and income from investments that diminished her need for alimony. The trial court concluded that, since the 1998 decree, there had been no substantial or material change in circumstances that was not foreseeable when the decree was entered. Consequently, the husband’s petition to modify alimony was dismissed. The husband now appeals. We affirm.
 

This appeal concerns the rule-making authority of the Tennessee Department of Environment and Conservation under the Tennessee Uniform Administrative Procedures Act. The City of Cookeville, seeking to expand its treatment works facility, obtained a permit from the Tennessee Department of Environment and Conservation which placed nitrogen limits on the City's effluent emissions into Pigeon Roost Creek in Putnam County, Tennessee. The city filed a declaratory judgment action with the Chancery Court of Davidson County asking the court to find as follows: (1) the section 303(d) list created by the Tennessee Department of Environment and Conservation, which listed Pigeon Roost Creek as organically enriched, amounted to an improperly promulgated rule in violation of the Tennessee Uniform Administrative Procedures Act, and (2) the organic enrichment criteria contained in the section 303(d) list amounted to an improperly promulgated Water Quality Standard, which in turn constitutes an improperly promulgated rule, that the Tennessee Department of Environment and Conservation used to impose restrictions on the city's permit. The parties each filed motions for summary judgment with the chancery court. The chancellor granted the city's motion, finding that the section 303(d) list containing the organic enrichment criteria amounted to improperly promulgated rules as a matter of law. The state appealed the chancellor's ruling to this Court and, for the reasons contained herein, we dismiss this case as non-justiciable.

This is a suit for personal injuries brought by the mother of a mentally challenged 17 year old boy occurring when his teacher attempted to transfer him from one chair to another and tripped over a nearby rocker. Neither his teacher nor the Defendant Nurse who immediately attended to him after the accident detected the fractured leg. Young Jason Jenkins died from causes unrelated to the accident, and his suit was revived against Defendants, Metropolitan Government of Nashville, Davidson County, Mary Ann Armbrister, and Lisa Morrow. The case was voluntarily dismissed as to Defendant teacher Ms. Armbrister, and a settlement was reached between Plaintiff and Metropolitan Government of Davidson County. The trial court sustained a Motion for Summary Judgment on behalf of Ms. Morrow from which Plaintiff appeals. We affirm the action of the trial court.

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The appellant has appealed the trial court's order summarily dismissing the appellant's "Affidavit of Specific Negative Averment." In that document the petitioner apparently desired to set aside his guilty plea because it failed to comply with certain provisions of the Uniform Commercial Code. Upon a review of the record in this case we are persuaded that the trial court was correct in summarily dismissing the "Affidavit of Specific Negative Averment" and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

A Hamilton County Criminal Court jury convicted the defendant of the attempted first degree murder of a police officer, and the defendant pled guilty to twenty-nine charges, including multiple counts of car burglary, felony theft, and misdemeanor theft. The trial court sentenced him as a Range I, standard offender to twenty-five years for the attempted murder conviction and as a Range II, multiple offender to an effective sentence of six years for the remaining convictions. The trial court ordered that the twenty-five-year and six-year sentences be served consecutively to each other and consecutively to a six-year revoked probation sentence. The defendant appeals, claiming that the trial court erred (1) by refusing to dismiss a juror for cause; (2) by refusing to compel the state to provide the defense with the police department's written use-of-force policy; (3) by refusing to allow the defense to cross-examine police officers about the use-of-force policy; (4) by refusing to allow an expert to testify about the victim's excessive use of force against the defendant; (5) by refusing to instruct the jury on deadly force; and (6) by ordering consecutive sentencing. We affirm the judgments of the trial court.

This is an appeal from the trial court’s grant of an injunction against Appellant to remove its electrical lines and facilities from McNairy County. The trial court found that Appellant was a “nonconsumer owned electric system” and, as such, subject to injunction under T.C.A. §65-34-103. Finding that Appellant is, in fact, an “electric and community service corporation,” we hold that Appellant is not subject to injunction under T.C.A. §65-34-103. We reverse and remand.
 

This case involves a dismissal for failure to prosecute. In January 1988, the plaintiff residents filed this lawsuit against the defendant municipal officials for allegedly enacting an unconstitutional and unreasonable annexation ordinance. In 2003, after the case had been on the trial court’s docket for fifteen years with little activity, the trial court clerk filed a motion to dismiss for lack of prosecution. In June 2003, the trial court granted the clerk’s motion and dismissed the case. The plaintiff residents now appeal. We affirm, finding that the trial court did not abuse its discretion in dismissing the case. The caption of the case lists 17 Plaintiffs. However, the first 1 two named Plaintiffs, Dwayne and Julie Byrd (“the Byrds”), are now counsel to the Plaintiffs and are not real parties in interest. The suit was originally filed when the Byrds were law students and residents of Getwell West. Subsequently, the Byrds moved out of Getwell West, but entered appearances on behalf of the other Plaintiffs after they became licensed to practice law. 2On November 14, 1995, the trial court entered an order dismissing the case for lack of prosecution. Apparently, however, that order was inadvertently entered, and two weeks later the trial court set that order aside. -2- Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed.

The petitioner, Michael S. Holmes, was convicted in 1997 of aggravated robbery, aggravated assault, aggravated kidnapping, felony escape, burglary of a vehicle, and theft of property over $1000. His convictions were affirmed on direct appeal. Subsequently, he filed a petition for post-conviction relief alleging ineffective assistance of counsel and improper jury instructions on lesser-included offenses. After a review of the affidavits submitted by the petitioner, the post-conviction court denied the petition, and this appeal followed. We affirm the order of the post-conviction court denying the petition.