APPELLATE COURT OPINIONS

The Appellant, Christopher Robert Smith, was convicted by a Davidson County jury of possession with intent to deliver over 300 grams of cocaine, a class A felony. Following this conviction, he was sentenced to twenty-one years imprisonment. Smith appeals, arguing that (1) the trial court erred by denying his motion to suppress and (2) the trial court improperly admitted evidence of prior criminal conduct. After a review of the record, the judgment of the trial court is affirmed.

The petitioner, Anthony Darrell Hines, convicted of first degree felony murder and sentenced to death for a 1985 homicide, appeals from the denial of his petition for post-conviction relief, alleging that counsel were ineffective at his 1986 trial and 1989 resentencing hearing, that women were excluded from both juries, and that imposition of the death penalty violates his rights under the federal and state constitutions. The post-conviction court denied the petition after an evidentiary hearing. Following our review, we affirm the denial.

The narrow question presented by this appeal is whether Tennessee recognizes the tort of negligent misrepresentation by nondisclosure. While the Sears family’s complaint faces a daunting battle on other fronts, I would not extinguish it at this stage of the proceeding by holding as a matter of law that a professional person cannot supply the false information required by Restatement (Second) of Torts § 552 (1977) by silence.

 

Upon his plea of guilty, the Defendant was convicted of DUI. In this appeal, he attempts to present two certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). Because we conclude that this appeal does not properly present certified questions of law, we dismiss the appeal.

Following a bench trial appellant, Jason White, was found guilty of D.U.I. Second Offense in violation of T.C.A. 55-11-401. He was sentenced to eleven months and twenty-nine days with incarceration for forty-five days followed by probation for the balance of the sentence. The appellant appeals, contending that the evidence was not sufficient for a D.U.I. Second Offense conviction. After a review of the record we affirm the judgment of the trial court.

The Appellant, Emery Wells, pled guilty to two counts of aggravated assault and was sentenced to an effective eight-year sentence, with the sentence being suspended after service of ninety days in jail. A probation violation warrant was subsequently issued alleging violation of the following conditions: (1) failure to report to his probation officer; (2) failure to obey the laws of this state; and (3) failure to report a new arrest. Following a hearing, the trial court revoked Wells' suspended sentence and ordered his eight-year sentence to be served with community corrections, after service of an additional ninety-day period of jail confinement. Wells concedes that the violations occurred, but he argues that the revocation did not "aid the interest of both the public and the [Appellant]," as it will likely result in the loss of his employment.

These consolidated claims against the State of Tennessee ("State") arise out of an automobile accident which resulted in the death of James R. Madison and personal injury to Mary E. Madison, Kenneth R. Madison, and Wilma J. Madison (collectively referred to as "Claimants"). The State filed a motion for summary judgment which the Claims Commission ("Commission") granted based primarily on Claimants' failure to file a timely response. The Commission later set aside its order granting the State's summary judgment motion and ordered Claimants to file a response to that motion no later than March 19, 2003. Claimants filed their response to the motion for summary judgment on March 18, 2003. On May 14, 2003, apparently acting under the misapprehension that Claimants still had not responded to the motion for summary judgment, the Commission dismissed the claims based on Claimants' violation of its previous order directing them to respond. We vacate the dismissal of these claims and remand for further proceedings.

The defendant appeals his conviction for second degree murder and the sentence of twenty-five years. After review, we conclude that the restrictions placed on the defendant's cross examination of the witness were within the discretion of the trial court. Further, we affirm the conviction and sentence imposed.

The petitioner, Alonzo Leonardo Gayden, appeals from the Rutherford County Circuit Court's denying him post-conviction relief from his 2001 conviction for theft of property valued at $1,000 or more, a Class D felony. He contends that he received the ineffective assistance of counsel. We affirm the trial court.

The defendant filed a delayed appeal, alleging error: (1) in denying the defendant the opportunity to file an amended motion for new trial; (2) in the failure to amend the indictment for attempted first degree murder to aggravated assault; (3) in the failure of the indictment for evading arrest to contain statutory language; and, (4) in admitting the defendant’s confession in violation of an in limine order during the second phase of a bifurcated trial. We conclude that no reversible errors were attendant and affirm the convictions.

The defendants appeal their convictions of possession of more than 0.5 grams of cocaine with intent to deliver. The defendants allege error in the trial court’s failure to suppress evidence seized pursuant to a search warrant and denial of their motions for judgment of acquittal. Upon review, we reverse the failure to suppress the search warrant and reverse and dismiss the convictions of both defendants. The conviction of Stacy Mack is reversed due to insufficiency of the evidence, and Martress Shaw’s conviction is reversed due to insufficiency of evidence after suppression of the search warrant.

I write separately to explain why I am concurring in results only in this case. The record reflects that Defendant’s counsel adamantly asserted that aggravated assault was a lesser-included offense of attempted first degree murder. Just as adamantly, the State argued that aggravated assault was not a lesser-included offense of attempted first degree murder under our supreme court’s decision in State v. Burns, 6 S.W.3d 453 (Tenn. 1999). The record also reflects that while the trial court had reservations about the appropriateness of charging aggravated assault as a lesser-included offense, it was ultimately persuaded to do so by arguments of Defendant’s counsel. Counsel’s conduct may or may not be grounds for relief to Defendant in a post-conviction proceeding, but that must be decided at a later hearing on a later date.

While I concur in the majority’s reversal of Defendant Mack’s conviction based upon insufficient evidence of constructive possession of cocaine, I respectfully dissent from the portion of the majority opinion that holds that the search warrant did not sufficiently describe the premises to be searched, because it omitted the street address, to meet constitutional standards. I disagree with the majority’s conclusion that Bostic, 898 S.W.2d 242, does not apply under the facts of this case because “[w]e are not confronted herein with an ambiguous description, i.e., one that is susceptible to multiple interpretations, but rather the omission of important details in the description.” I believe warrant, which was cured by Detective Tutor’s knowledge of the location to be searched. To hold otherwise effectively ignores the precedent established in Bostic.

The defendant was convicted of aggravated rape and aggravated robbery. He contends on appeal that 1) the evidence was insufficient to support the convictions, and 2) the trial court erred in instructing the jury as to aggravated rape. The judgment for aggravated robbery is affirmed. We conclude that a constructive amendment of the indictment for aggravated rape occurred because the jury was permitted to convict the defendant based on an element different from that which was charged or included within the indictment. Accordingly, the judgment for aggravated rape is reversed.

The defendant, Levar Gray, was convicted of two counts of aggravated robbery and two counts of aggravated kidnapping. The trial court imposed sentences of twelve years for each of the four offenses. Because the trial court ordered partially consecutive sentencing, the effective sentence is twenty-four years. In this appeal of right, the defendant contends that the evidence is insufficient to support the convictions and that the sentence is excessive. Because the record does not support the imposition of maximum sentences for each conviction and because consecutive sentences were not warranted, the judgments must be modified to reflect concurrent sentences of ten years for each conviction.

The petitioner, Floyd Lee Perry, Jr., filed a petition for post-conviction relief in the Obion County Circuit Court. In his petition, the petitioner raised several issues, with his two chief complaints being that the trial court erred by failing to charge the jury on the lesser-included offenses of felony murder and that trial counsel was ineffective. Subsequent to an evidentiary hearing, the postconviction court dismissed the petition and the petitioner timely appealed. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

This is a legal malpractice case. The client filed suit in federal court against a municipality for the
death of her husband under the Governmental Tort Liability Act and U.S.C. § 1983. The federal
court dismissed the GTLA claim but retained the §1983 claims. The client dismissed her attorneys, hired new counsel and filed the GTLA claim in state court. The state court dismissed the GTLA claim because, while the GTLA claim was pending in federal court, the applicable statute of limitations expired. The client sued her original attorneys for malpractice. Shortly thereafter, the client settled the remaining § 1983 claims against the municipality. The defendant attorneys filed a motion for summary judgment in the malpractice case, arguing that the settlement with the municipality on the §1983 claims mandated dismissal of the legal malpractice claim. The trial court granted the summary judgment motion. The client appealed. We reverse, holding that the damages sought in the legal malpractice lawsuit are separate and distinct from the damages sought in the underlying lawsuit, and therefore settlement of the underlying lawsuit does not shield the former attorneys from liability.
 

The petitioner, Stacey Baldon, appeals from the trial court's denial of post-conviction relief. The issues presented for review are whether the petitioner was denied the effective assistance of counsel and whether the guilty pleas were knowingly and voluntarily entered. The judgment is affirmed.

The defendant, James Lusk, Jr., appeals from his twenty-five-year sentence imposed by the Hamilton County Criminal Court following his guilty plea to attempted first degree murder, a Class A felony. The defendant claims that the trial court failed to apply and weigh mitigating factors properly. We affirm the judgment of the trial court.

The state in this interlocutory appeal challenges the McMinn County trial court’s order granting the defendant’s motion to suppress evidence seized pursuant to a search warrant. In suppressing the evidence, the trial court found the informant’s information in the affidavit referred to a different property location than the property authorized to be searched; therefore, the trial court found a lack of probable cause for the issuance of the search warrant. Upon review of the record and the applicable law, we affirm the trial court’s order granting the motion to suppress.

In this workers’ compensation appeal, we must determine whether an employer is liable to a health insurer who paid necessary and reasonable medical expenses incurred by an employee but did not intervene in the workers’ compensation claim to protect its interest. Although the trial court found that the treatment was necessary and reasonable, it further found that the employer was not liable for the medical expenses paid by the employee’s health insurer because the insurer failed to intervene and prove its interest. The employee appealed to the Special Workers’ Compensation AppealsPanel, which transferred the case for full Court review without a recommendation. After reviewing the record and applicable authority, we have determined that the employer is liable to the employee’s health insurer for all reasonable and necessary medical expenses and that the health insurer is not required to intervene in the workers’ compensation suit. Because the record does not fully develop the nature and extent of the expenses paid by the health insurer, we remand to the trial court for that purpose and further action consistent with this opinion.

We granted permission to appeal in this case to determine whether the Court of Appeals erred in holding that the complaint failed to state a claim for intentional infliction of emotional distress. We also consider Defendants' contention that the Court of Appeals erred in holding that Plaintiffs' cause of action was not time-barred because the discovery rule applies to this case. We hold that Plaintiffs' complaint is sufficient to state a claim for intentional infliction of emotional distress. The complaint alleges all the elements of the cause of action. We also hold that the discovery rule tolled the statute of limitations in this case. Plaintiffs could not have been expected to know, in the exercise of reasonable diligence, that Defendants' alleged statements were false, and therefore could not have been expected to know that an injury had occurred because of the false statements. Accordingly, the holding of the Court of Appeals is affirmed in part and reversed in part, and this case is remanded to the trial court.