APPELLATE COURT OPINIONS

Appellant appeals the trial court’s dismissal of his Tennessee Rule of Civil Procedure 60.02 motion for relief from a judgment entered against him in the Knox County General Sessions Court. Appellant’s Rule 60.02 motion was filed approximately 8 years after the judgment was entered, and the trial court held that it lacked jurisdiction based on the expiration of the 10-day time period set out in Tennessee Code Annotated Section 16-15- 727(b). Appellant’s motion was premised on his contention that he was never served with process in the general sessions court and, as such, the judgment was void ab initio. We conclude that the 10-day statutory time period does not preclude the trial court’s jurisdiction to address Rule 60.02 motions based on a void judgment. However, we do not reach the ultimate question of whether Appellant is entitled to such relief because there is a dispute of fact regarding whether proper service was achieved. This dispute must be resolved by the trial court in order to determine whether Rule 60.02(3) relief is warranted. Vacated and remanded.

In this termination of parental rights case, Appellant/Mother appeals the trial court’s termination of her parental rights to the minor children on the grounds of: (1) substantial noncompliance with the requirements of the permanency plan, Tenn. Code Ann. § 36-1- 113(g)(2); (2) mental incompetence, Tenn. Code Ann. § 36-1-113(g)(8); and (3) failure to manifest an ability and willingness to parent the children, Tenn. Code Ann. § 36-1- 113(g)(14). Appellant also appeals the trial court’s finding that termination of her parental rights is in the children’s best interests. We reverse the trial court’s termination of Mother’s parental rights on the ground of substantial noncompliance with the requirements of the permanency plan. We affirm the trial court’s termination of Mother’s parental rights on all remaining grounds and on its finding that termination of Mother’s parental rights is in the children’s best interests.

A Tipton County jury convicted Petitioner, Angela Brewer, of first degree premeditated murder, and the trial court sentenced Petitioner to life. Petitioner appealed, and this court affirmed her conviction and sentence. Petitioner filed a pro se petition for postconviction relief, and after a hearing, the post-conviction court denied relief. On appeal, Petitioner argues that the post-conviction court erred in denying relief on her claim that she received ineffective assistance of counsel based on trial counsel’s failure to consult with Petitioner regarding the evidence and to secure a firearms expert to testify for the defense. Following a thorough review, we affirm the judgment of the post-conviction court.

Appellant appeals the trial court’s order setting aside his transfer of real property as a fraudulent conveyance. We do not reach the substantive issue because Appellant’s notice of appeal is untimely, thus depriving this Court of jurisdiction over the appeal. Dismissed.

Defendant, Kenneth Lamar Bugg, appeals the order of the Giles County Circuit Court revoking his probation and ordering him to serve his sentence in confinement. Defendant arguesthat the trial court erred by consideringevidenceof “non-adjudicated charges”that were pending against him,as a basis to revoke his probation. Hefurther contends that the trial court’s decision to fully revoke his probation was “too great a punishment for a first violation of probation.” Following a thorough review, we affirm the judgment of the trial court.

The Defendant-Appellant, Demonica Gore, was convicted by a Shelby County jury of aggravated robbery and received a sentence of twelve years’ imprisonment. In this appeal as of right, the Defendant presents the following issues for our review: (1) whether the trial court erred in sustaining the State’s objection to defense counsel’s question during voir dire concerning the juror’s views on police confessions; (2) whether the evidence was sufficient to sustain the conviction; and (3) whether the trial court erred in imposing the maximum sentence of twelve-years’ imprisonment. Upon our review, we affirm the judgment of the trial court.

In this termination of parental rights case, Appellant/Father appeals the trial court’s termination of his parental right to the minor child on the grounds of: (1) abandonment by an incarcerated parent by willful failure to visit, willful failure to support, and wanton disregard, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(iv); (2) substantial noncompliance with the requirements of the permanency plan, Tenn. Code Ann. § 36-1-113(g)(2); and (3) failure to manifest a willingness and ability to parent the child, Tenn. Code Ann.
§ 36-1-113(g)(14). Appellant also appeals the trial court’s finding that termination of his parental rights is in the child’s best interest. We reverse the trial court’s termination of Father’s parental rights on the grounds of abandonment by an incarcerated parent for failure to visit and support. We affirm the trial court’s termination of Father’s parental rights on all remaining grounds and on its finding that termination of Father’s parental rights is in the child’s best interest.  

The petitioner was convicted of felony murder and aggravated assault for which he received an effective sentence of life in prison. Since his conviction in 1994, the petitioner has filed numerous post-judgment motions seeking relief. The petitioner now appeals from the denial of his most recent motion seeking relief pursuant to Tennessee Rules of Civil Procedure, Rule 60.02. Upon our review of the record and the applicable law, we affirm the decision of the trial court.

This accelerated interlocutory appeal is taken from the trial court’s order denying Appellant’s motion for recusal. Because there is no evidence of bias that would require recusal under Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial court.

The Defendant, Jeremy Lee Carter, pleaded guilty to evading arrest, reckless endangerment, and promotion of methamphetamine manufacture; and he received an effective sentence of eight years on probation. A revocation warrant was issued, and following a hearing, the trial court found that the Defendant violated the terms of his probation, revoked his probation, and ordered him to serve his sentence in confinement. On appeal, the Defendant contends that the trial court erred in ordering him to serve his sentence in confinement. Following our review, we affirm the judgment of the trial court pursuant to Rule 20 of theRules of the Court of Criminal Appeals.

This case involves an attempt by a former shareholder of a corporation to bring suit on behalf of the corporation on the basis of a contractual assignment. The trial court granted summary judgment to the defendants, concluding that there was no valid assignment of the corporation’s rights and that any individual claims asserted by the former shareholder were barred by the applicable statutes of limitations. The former shareholder appeals. We affirm.

The petitioner, Marvin Christopher Long, appeals the denial of his petition for post-conviction relief, which petition challenged his convictions of possession with intent to deliver 300 grams or more of a substance containing cocaine in a drug-free school zone and conspiracy to commit the same, alleging that he was deprived of the effective assistance of trial counsel. Discerning no error, we affirm the denial of post-conviction relief.

This case presents an appeal as of right from the post-conviction court’s denial of relief. The Petitioner is serving an eight-year sentence for a jury conviction of theft of property valued at $1,000 or more but less than $10,000. The Petitioner asserts that Counsel’s failure to properly investigate or prepare for trial constitutes the ineffective assistance of counsel. The Petitioner, however, failed to provide clear and convincing proof at the post-conviction hearing to support his allegations of ineffective assistance of counsel. Therefore, we affirm the post-conviction court’s denial of relief.

The Petitioner, Terrance Milam, entered a best interest plea to two counts of rape of a child, involving two separate victims, and the trial court sentenced him to serve forty years, at 100%. The Petitioner filed a petition for post-conviction relief in which he alleged that he had received the ineffective assistance of counsel because his counsel failed to inform him of his right to appeal and to request that the trial court appoint appellate counsel. Following a hearing, the post-conviction court dismissed his petition, and the Petitioner timely appealed. After review, we reverse the post-conviction court’s judgment and remand the case for the appointment of counsel, entry of a certified question of law, and grant of a delayed appeal.

The Defendant, Carl R. Greene, was convicted upon his guilty plea of theft of property valued at $60,000 or more but less than $250,000, a Class B felony. See T.C.A. §§ 39-14-103(a) (2018); 39-14-105(a)(5) (2018) (subsequently amended) (grading of theft).The trial court sentenced the Defendant, a Range I offender, to split confinement consisting of one year in jail followed by eight years on community corrections. The court ordered the Defendant to pay restitution of $83,457.60. On appeal, the Defendant contends that the court erred by imposing a nine-year, split confinement sentence and by failing to consider the Defendant’s ability to pay the restitution amount. We reverse the judgment of the trial court and remand for resentencing.

The Petitioner, Audrey Downs, entered “best interest” pleas to felony murder and aggravated rape pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), and received concurrent sentences of life imprisonment without the possibility of parole and twentyfive years. In 2002, the Petitioner successfully petitioned for DNA testing of a condom collected from the scene where the victim’s body was discovered, and the results excluded the Petitioner as a contributor to the DNA. Because the State subsequently introduced evidence that the condom was unrelated to the crime, the Petitioner was denied permission to reopen his post-conviction petition. The Petitioner sought further testing of the condom to determine whether the victim’s DNA could be recovered, in an attempt to link it to the crime. The trial court summarily denied further testing, and this court remanded for the trial court to conduct the required analysis of the statutory factors. State v. Audrey Downs, No. W2018-00391-CCA-R3-CD, 2018 WL 6650597, at *2 (Tenn. Crim. App. Dec. 18, 2018), no perm. app. filed. On remand, the petition was again summarily dismissed, and the Petitioner appeals. We conclude that the petition did not allege a prima facie case for DNA testing under the statute, and we accordingly affirm the dismissal.

The Petitioner, Lajuan Harbison, appeals as of right from the Knox County Criminal Court’s denial of his petitions for post-conviction relief and writ of error coram nobis, wherein he challenged his conviction for attempted second degree murder. On appeal, the Petitioner asserts that he received the ineffective assistance of counsel because trial counsel failed to investigate and assert a claim of self-defense. Relative to the error coram nobis petition, the Petitioner contends that the post-conviction court erred by finding that new evidence from the victim, who recanted his trial testimony and averred that he was the primary aggressor rather than the Petitioner, was not credible. Following our review, we affirm.

The principal issue in this interlocutory appeal is whether intentional misrepresentations made by health care providers to induce a prospective patient to engage the health care providers’ services are within the purview of the Tennessee Health Care Liability Act (“the Act”), Tenn. Code Ann. § 29-26-101 to -122. The complaint filed by the patient, Donna Cooper (“Mrs. Cooper”), and her husband alleges that Dr. Mason Wesley Mandy (“Dr. Mandy”) and Rachelle Norris (“Ms. Norris”) with NuBody Concepts, LLC, intentionally misrepresented that Dr. Mandy was a board-certified plastic surgeon and, based on their misrepresentation, Mrs. Cooper gave Dr. Mandy her consent to perform the surgery. Following “painful, disastrous results,” the plaintiffs asserted four claims: (1) intentional misrepresentation; (2) medical battery; (3) civil conspiracy; and (4) loss of consortium. Defendants filed a Tenn. R. Civ. P. 12 motion to dismiss for failure to comply with the presuit notice and filing requirements of the Act, specifically Tenn. Code Ann. §§ 29-26-121 and -122. The trial court denied the motion to dismiss, finding the Act did not apply. This interlocutory appeal followed. We hold that Mrs. Cooper is entitled to proceed on her claims of intentional misrepresentation and civil conspiracy because the alleged misrepresentations were inducements made prior to the existence of a patient-physician relationship; thus, the claims were not related to “the provision of . . . health care services.” See Tenn. Code Ann. § 29-26-101(a)(1). We also affirm its ruling on the medical battery claim because a physician’s misrepresentation of a material fact, if proven, may vitiate consent, and, without consent, the very act of touching Mrs. Cooper may constitute an unlawful and offensive act that is not related to the provision of health care services. See Holt v. Alexander, No. W2003-02541-COA-R3-CV, 2005 WL 94370, at *6 (Tenn. Ct. App. Jan. 13, 2005). Further, we affirm the trial court’s ruling on Mr. Cooper’s claim for loss of consortium because, as the trial court held, his claims relate to Dr. Mandy’s and Ms. Norris’s false representations of Dr. Mandy’s credentials, not to a provision of, or a failure to provide, a health care service. Accordingly, we affirm the trial court in all respects and remand for further proceedings consistent with this opinion.

After a bench trial, the Defendant, Austin Forkpa, was convicted of resisting arrest, for which he received a six-month sentence. On appeal, the Defendant argues that his conviction was not supported by sufficient evidence, specifically alleging that he did not intentionally use force to prevent or obstruct an arrest and, alternatively, that he was acting in self-defense based upon the officers’ use of excessive force. After our review, we affirm the judgment of the trial court.

Defendants appeal the trial court’s grant of summary judgment to the plaintiff corporation, the effect of which was to accord full faith and credit to a New York judgment based on a confession of judgment, or cognovit note. Defendants argue that the foreign judgment should not be enrolled in Tennessee because it is contrary to public policy, based on Tennessee Code Annotated section 25-2-101(a), which prohibits the use of prelitigation confessions of judgment and declares void any judgment based upon such a device. After reviewing the record and case law, we hold that the Constitution’s full faith and credit mandate requires enrollment of the foreign judgment so long as Defendants validly waived their due process rights. Accordingly, we affirm.

The petitioner, Elvis Louis Marsh, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

The plaintiff instituted this action to recover payments allegedly due under an agreement to sell his membership interest in a corporation. Following a bench trial, the trial court agreed with the defendant corporation’s contention that the “additional consideration” provision of the agreement was void and unenforceable because it was not supported by consideration. The trial court determined that the corporation received no consideration in exchange for its promise to make annual payments to the plaintiff. The plaintiff has appealed. Upon thorough review, we conclude that sufficient consideration supported the agreement, and we reverse the trial court’s judgment in that regard. The balance of the trial court’s judgment is affirmed.

The Defendant, Brandon Luke Baron, appeals from the Cumberland County Criminal Court’s denial of his request for judicial diversion following his guilty plea to child abuse, a Class D felony. See T.C.A. § 39-15-401 (2014) (subsequently amended). The court imposed the agreed-upon two-year sentence and ordered the Defendant to serve it in the Department of Correction. The Defendant contends that the court erred in denying judicial diversion. We conclude that the trial court failed to consider and weigh all of the relevant factors in accord with State v. Electroplating, 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998), and State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996), but upon de novo review, we affirm the judgment of the trial court denying judicial diversion.

The Tennessee Department of Children’s Services filed a petition to terminate a father’s parental rights based on abandonment by failure to support; abandonment by failure to visit; abandonment by wanton disregard; substantial noncompliance with permanency plans; and failure to manifest an ability and willingness to assume custody of the child. The trial court granted the petition, finding that the Department proved the alleged grounds by clear and convincing evidence and that terminating the father’s parental rights was in the best interests of the child. The father appeals the trial court’s conclusion that terminating his parental rights is in the best interests of the child. We affirm. 

Following a public reprimand of the trial judge presiding over her divorce, Wife filed a motion to recuse the trial judge pursuant to Tennessee Supreme Court Rule 10B. The trial court denied the motion, and Wife appealed to this Court. Thereafter, the presiding judge of the Thirteenth Judicial District entered an order transferring the case to another judge in order to “equitably distribute the case load[.]” Wife then filed a notice in this Court seeking direction as to whether the appeal is moot. Following our review, we dismiss this appeal as moot.