APPELLATE COURT OPINIONS

The trial court terminated the parental rights of T.N.S.S. ("Mother") with respect to her three children, D.D.M. (DOB: February 10, 1989), D.S.Jr. (DOB: August 7, 1990), and D.J.S. (DOB: July 27, 1991). Mother appeals, arguing, inter alia, that the evidence preponderates against the trial court's dual findings, by clear and convincing evidence, that grounds for termination exist and that termination is in the best interest of the children. We affirm.

After the death of his estranged wife, the surviving husband discovered that she had secretly placed their marital residence into a revocable trust the assets of which, on her death, passed to the benefit of their son. The husband brought suit to have the transfer to the trust declared a fraudulent conveyance and to impose a resulting trust on the property for his benefit. The trial court granted him the relief he requested. While we agree with the trial court that the wife could not convey away the husband's interest in the farm, our reasoning and ultimate result differ from that of the trial court. We affirm the resulting trust, but reverse the voiding of the conveyance of the wife's half interest.

This case is about enforcement of a settlement agreement. In 1994, the parties entered into a joint agreement for the development of residential property. In 1996, the plaintiff filed a lawsuit against the defendants, alleging breach of contract. The parties attempted to reach a settlement agreement to resolve the dispute. This resulted in a written agreement signed only by the defendant. The defendant made some payments pursuant to the written agreement, but further disputes arose. The defendant moved to enforce the settlement agreement. The plaintiff alleged that she never agreed to the final settlement agreement. The trial court held that the written settlement agreement was binding on the parties. The plaintiff then appealed this ruling, again alleging that no settlement agreement ever existed, and, in the alternative, that the defendant breached the settlement agreement by not tendering the required payments. We vacate the order of the trial court, finding that even if a valid settlement agreement existed, the defendant breached the agreement by failing to tender the required payments.
 

This appeal arises out of the parties’ divorce following their second marriage to each other.  The trial court inter alia awarded the wife $75,000 for her contributions, in the form of personal services to the husband’s medical practice, and awarded her one-half of the equity in the home where the parties resided during the second marriage. Husband appeals the first award, arguing that the medical practice was his separate property and that the wife failed to prove any increase in the value of the practice during the marriage. He appeals the second award, arguing that the trial court erred by not considering two marital debts when it awarded half of the equity in the home to the wife. We vacate the $75,000 award pertaining to the value of the husband’s medical practice because there is no evidence of the value of the practice at the beginning or end of the second marriage. We remand for further proceedings the award of the equity in the home because the trial court failed to consider two marital debts, the husband’s loan to wife of $18,500 – which she used to buy her current residence – and the couple’s debt of $10,599.12, for which they were jointly liable. On remand, the trial court should consider inter alia: 1) the purpose of each debt, 2) which party incurred the debt, 3) which party benefitted from incurring the debt, and 4) which party is best able to repay the debt.

The Appellant, Christopher Demotto Linsey, appeals from the judgment of the Montgomery County Circuit Court revoking his community corrections sentences. Linsey pled guilty to aggravated robbery, aggravated burglary, and theft of property over $1,000.00 and, for these convictions, he received an effective eight-year sentence to be served in the Community Corrections Program. On November 21, 2002, a warrant was issued, alleging that Linsey violated the terms of his community corrections agreement based upon new arrests for domestic assault and possession of illegal drugs for resale and of drug paraphernalia. Following a hearing, the trial court ordered revocation of his community corrections sentences, and further ordered that his sentence for aggravated robbery be increased to ten years and that he serve the remainder of his now effective ten-year sentence in the Department of Correction. On appeal, Linsey argues that (1) the evidence was insufficient to establish that a violation occurred, (2) the trial court, in resentencing him to ten years for aggravated robbery, failed to conduct a sentencing hearing as required by the 1989 Sentencing Act, and (3) his sentences are excessive in light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). Finding no reversible error, the judgment of the trial court is affirmed.

I concur in the results of the opinion written by Judge Clement under the facts of this case and also concur in the holding that the method of presenting evidence to the trial court characterized as a “mediation” or an “Alternative Dispute Resolution Procedure” qualifies as neither under Tenn. S. Ct. R. 31.

I concur with the majority opinion in all respects save its treatment of the question whether the appellant waived his right to review alleged sentencing error vis-a-vis Blakely v. Washington, 542 U. S. ___, 124 S. Ct. 2531 (2004). First, a number of members of this Court, including the author of this concurring opinion, have concluded that Blakely review is not waived because the appellant failed to raise the issue at trial after Apprendi v. New Jersey, 530 U. S. 466, 120 S. Ct. 2348 (2000); was decided but before Blakely was decided, so long as the case was pending on direct appeal at the time of the Blakely decision. See e.g. State v. Ricky Grover Aaron, No. M2002-02288-CCA-R3-CD, 2004 WL 1533825 (Tenn. Crim. App. at Nashville, Jul. 8, 2004); State v. Charles Benson, No. M2003-02127-CCA-R3-CD, 2004WL2266801 (Tenn. Crim. App. at Nashville, Oct. 8,2 004); State v. Julius E. Smith, No. E2003-01059-CCA-R3-CD, 2004 WL 1606998 (Tenn. Crim. App. at Knoxville, July 19, 2004); State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD, 2004 wl 1607002 (Tenn. Crim. App. at Knoxville, July 19, 2004). These cases rest on the proposition that Blakely establishes a new rule in this State with respect to sentencing, one that was not dictated by the existing precedent of Apprendi. State v. Ricky Gover Aaron, No. M2002-02288-
CCA-R3-CD, 2004 WL 1533825 (Tenn. Crim. App. at Nashville, Jul. 8, 2004); State v. Charles Benson, 2004 WL 2266801 at *8; see also Blakely v. Washington, 124 S. Ct at 2549-50 (O’Connor, J. Dissenting).

A Maury County Circuit Court jury convicted the defendant, Terrance Cecil, of possessing twenty-six grams or more of cocaine with intent to sell, a Class B felony, and the trial court sentenced him as a Range I, standard offender to ten years to be served in the Department of Correction. On appeal, the defendant contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.

The issue in this case is whether the Counter-Plaintiff may testify at trial regarding transactions and conversations with the deceased Counter-Defendant when the deceased Counter-Defendant's pre-trial discovery deposition had been taken, but was incomplete. We hold that the trial court, pursuant to the Dead Man's Statute, properly prohibited the Counter-Plaintiff from testifying about transactions and conversations with the deceased Counter-Defendant. Therefore, we affirm the ruling of the trial court and remand.

The defendant, Stacy McKinley Taylor, was convicted of aggravated assault, criminal impersonation, theft, speeding, and evading arrest he received following a jury trial in the Sullivan County Criminal Court. On appeal, he claims that the aggravated assault conviction is unsupported by sufficient evidence and that the trial court erred in sentencing him. Following our review of the record, the parties’ briefs, and the applicable law, we affirm the conviction of aggravated assault but modify the sentences.

This appeal arises from a divorce action. Defendant/Dr. Halkaides appeals the trial court’s order dividing the parties’ property and debt and awarding Wife/Ms. Stohl alimony. He also asserts the trial court erred in finding Dr. Halkaides had dissipated the parties’ marital assets. We affirm as modified.

The majority concludes that modification of the defendant’s sentences for aggravated assault and theft are required in light of Blakely v. Washington, 542 U.S.___, 124 S. Ct. 2531 (2004).

Pamela K. Ginn ("Plaintiff") purchased a $50,000 life insurance policy on her husband through American Heritage Life Insurance Company ("American Heritage"). When applying for the insurance, Plaintiff told the insurance salesman, Daryle Gross ("Gross"), that her husband was in "basic good health." Plaintiff's husband died a few weeks after the life insurance went into effect. American Heritage denied Plaintiff's demand for the life insurance proceeds, claiming Plaintiff had materially misrepresented her husband's health. Plaintiff sued American Heritage and Gross ("Defendants"). The jury found Defendants breached their contract with Plaintiff. The jury also found that the refusal to pay was done in bad faith, assessing a 25% bad faith penalty. The jury also concluded Defendants had violated the Tennessee Consumer Protection Act ("TCPA") and assessed compensatory damages under the TCPA at $110,000, which was remitted by the Trial Court to $73,855.15. Pursuant to the TCPA, the Trial Court then trebled the damages and awarded attorney fees. When all was said and done, the amount of the judgment awarded to Plaintiff totaled $284,980.60. Both Plaintiff and Defendants appeal various aspect of the Trial Court's Judgment. The Judgment of the Trial Court is reversed in part and affirmed in part, and judgment is entered in favor of Plaintiff in the total amount of $73,415.15.

This case involves the demotion of an Air Crash Chief employed by the City of Memphis Fire Department following the revocation of his security clearance and driving privileges by the Memphis-Shelby County Airport Authority. Following his demotion, the Chief appealed the city’s decision to the City of Memphis Civil Service Commission. The civil service commission reversed the city’s ruling and held that the Chief must be reinstated. The city filed a common law writ of certiorari in the Chancery Court of Shelby County to appeal the finding of the civil service commission. The chancery court reversed, finding that the civil service commission exceeded its authority in reversing the city’s decision and reinstating the Chief. We affirm.
 

Defendant, Jeffery D. Hostetter, pled guilty to one count of furnishing intoxicating alcoholic beverages to a person under twenty-one years of age in violation of Tennessee Code Annotated section 39-15-404, a Class A misdemeanor, without a recommendation as to sentencing. Following a sentencing hearing, the trial court sentenced Defendant to eleven months, twenty-nine days, with fifty percent of the sentence to be served in confinement. On appeal, Defendant argues that the period of confinement imposed by the trial court is excessive and inconsistent with sentencing principles, and the trial court improperly applied enhancement factors and failed to apply appropriate mitigating factors. After a thorough review of the record, we affirm the judgment of the trial court.

This case involves a post-divorce custody dispute between the natural father and maternal grandparents and aunt of three children. The issue presented is whether the trial court erred in awarding custody to the grandparents and aunt when it made no finding in its order that an award of custody to the father posed a risk of substantial harm to the children. We hold that the record does not support such a finding of substantial harm, reverse the trial court's award of custody, and, pursuant to the father's constitutional right of privacy to rear and have custody of his children, we award the natural father custody and remand to the trial court to set appropriate visitation and support for the mother.

As part of a divorce, the trial court granted custody of the parties’ child to the mother, with visitation by the father. The father appealed, and this court affirmed the trial court. The father subsequently filed a petition to change custody. After lengthy proceedings brought on by various filings by the parties, the trial court ruled that it no longer had jurisdiction over the child’s custody. We affirm the jurisdictional ruling, making all other issues moot.

 

This appeal involves a dispute over the payment for leased construction equipment used on two sewer projects for the City of Gallatin. The general contractor was required to take over and complete the work after a subcontractor and sub-subcontractor defaulted. Thereafter, the company that had leased three pieces of construction equipment to the subcontractor and sub-subcontractor submitted claims for payment to the general contractor and the contractor's bonding company. The general contractor declined to pay for the equipment and filed suit for breach of contract against the subcontractor in the Circuit Court for Sumner County. The contractor also sought a declaratory judgment regarding its rights, as well as those of its bonding company, the subcontractor, and the City, under the construction contract, the subcontracts, and the payment bond. Following a two-day bench trial, the trial court awarded the equipment leasing company a $38,399 judgment against the bonding company and the sub-subcontractor and a $29,232 judgment against the subcontractor. The court also denied the equipment leasing company's request for pre-judgment interest because it had intentionally falsified documents during the collection process. The bonding company appealed. We have determined that the trial court erred by failing to dismiss all of the equipment leasing company's claims against the payment bond after expressly finding that the leasing company had committed fraud during the claims process. Accordingly, we reverse the judgment against the contractor's surety.

The petitioner, James William Parsons, Jr., appeals the summary dismissal of his petition for writ of habeas corpus. In 1999, he pled guilty to theft of property over $1000, arson, consuming alcohol while under the age of twenty-one, and possession of a weapon in the commission of an offense and was sentenced to an effective sentence of two years and one day, with all but 120 days to be served on probation. He was subsequently convicted on separate charges in federal court and sentenced to the federal penitentiary. The petitioner filed a petition for writ of habeas corpus in the Greene County Criminal Court, claiming that his state plea agreement was illegal and void and therefore it was improper for the federal court to use the state convictions to enhance his federal sentence. The trial court dismissed the petition without a hearing on the matter, and the petitioner appealed. Based upon our review, we affirm the judgment of the trial court.

The Tennessee Board of Examiners in Psychology received a complaint from the patient of a psychologist alleging the psychologist breached the ethical duty of confidentiality by disclosing information to the patient's sister. During the course of the investigation, the psychologist revealed that he had disclosed confidential information about the same patient to another psychologist romantically involved with the patient. The board filed charges against the psychologist alleging violations of the ethical rules governing confidentiality and documentation of therapy. Following an administrative hearing, the board placed the psychologist's license on probation for two years subject to two conditions: (1) he complete twenty hours of continuing education training and (2) his practice be supervised during the two year probationary period by another psychologist. In addition, the board assessed a $1,000.00 civil penalty against the psychologist. The psychologist appealed the board's decision to the Chancery Court of Davidson County which affirmed the board's decision. The psychologist appealed to this Court. We affirm.

The Appellant, Kenneth M. Holliday, appeals the sentencing decision of the Shelby County Criminal Court. On appeal, Holliday argues that the trial court erred by refusing to grant his request for alternative sentencing. After review of the record, we affirm the judgment of the trial court.

The petitioner, Laconia Lamar Bowers, was convicted by a jury of second degree murder. The conviction was affirmed on direct appeal, see State v. Laconia Lamar Bowers, No. E1999-00170-CCA-R3-CD, 2000 WL 15020 (Tenn. Crim. App. at Knoxville, Jan. 11, 2000), and on appeal to the Supreme Court of Tennessee. See State v. Ely, 48 S.W.3d 710 (Tenn. 2001). The petitioner now seeks post-conviction relief on the basis of ineffective assistance of counsel. For the following reasons, we affirm the post-conviction court's dismissal of the post-conviction petition.

Appellant/Homeowner appeals from the trial court’s grant of summary judgment in favor of Appellee/Homebuilder. Appellant/Homeowner sued Appellee/Homebuilder on theories of faulty installation and construction of Appellant/Homeowner’s roof and under the Tennessee Consumer Protection Act. The trial court found that Appellant/Homeowner’s claims were time barred under both T.C.A. §28-3-202 and T.C.A. §47-18-110. We affirm.

The Defendant, Jeffrey A. Utley, appeals from the dismissal of his petition for writ of habeas corpus. The trial court found that the petition did not set forth grounds which would entitle the Defendant to habeas corpus relief. The judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

This case involves a lengthy and protracted attempt by the Department of Children's Services and numerous other social services agencies to assist the biological parents of five children with creating an acceptable environment for the children. After five years and repeated efforts, the Department of Children's Services filed a petition to terminate the parental rights of mother and father alleging the grounds of abandonment by failure to provide support, abandonment by failure to provide a suitable home, failure to substantially comply with the permanency plans, and persistent conditions. The department also alleged that termination of the parental rights was in the best interest of the children. Following a hearing on the petition, the juvenile court entered an order terminating the parental rights of the natural parents. The mother of four of the children and the father of all five children filed an appeal to this Court. After reviewing the entire record, we affirm.