APPELLATE COURT OPINIONS

A Tennessee Supreme Court Rule 10B petition for recusal appeal was filed in this Court after the trial court denied a motion for recusal. Because the petition for recusal appeal was not timely filed in accordance with Tennessee Supreme Court Rule 10B, we dismiss the appeal.

Defendant, Pamela Moses, was placed on intensive probation following the entry of guilty pleas to several offenses. The State filed two petitions to revoke her probation. After a lengthy hearing, the trial court revoked Defendant’s probation and ordered the “original judgment of conviction” into execution with additional jail credit for time served in confinement. Defendant argues on appeal that the trial court improperly revoked probation. For the following reasons, we affirm the judgment of the trial court.

The State of Tennessee appeals from the Houston County Circuit Court’s order granting the Defendant, Trevor Wallace’s, motion to dismiss the indictment charging him with driving under the influence. See T.C.A. § 55-10-401(a) (Supp. 2014) (amended 2015). The trial court granted the motion on the basis that the indictment failed to state an offense. The State contends that the trial court erred in granting the motion to dismiss. We reverse the judgment of the trial court and remand the case for further proceedings.

This action involves a will contest in which the decedent’s daughter alleged that the current will was void due to either undue influence or lack of mental capacity. The case proceeded to a jury trial, after which the jury invalidated the will. We affirm.

This appeal arises from a declaratory judgment action seeking to determine whether the decedent died intestate. The decedent executed a will in 2005 and executed another will in 2011, which expressly revoked all prior wills and codicils. Following the decedent’s death in 2016, the original of the 2011 will could not be located; however, the original of the 2005 will was found in the decedent’s personal filing cabinet. The decedent’s children then filed a Petition to Open Estate and [for] Declaratory Relief, seeking a declaration that the decedent died intestate. The decedent’s live-in companion of approximately 30 years, and a beneficiary under both wills, filed an answer, contending that the decedent died testate under either the 2005 or the 2011 will. At the trial, the decedent’s companion conceded that she did not have evidence to overcome the presumption that the decedent revoked the 2011 will; thus, the trial focused on whether the decedent intended to revive his 2005 will upon revoking the 2011 will. The trial court found “there is no proof Decedent revoked the 2011 Will with the intent to execute a later will,” and “[g]iven the preservation and nearby-safekeeping of the 2005 Will following revocation of the 2011 Will and the lack of evidence indicating a contrary intent, the Court concludes Decedent intended to revive his 2005 Will.” We affirm.

Father unilaterally modified his child support obligation without submitting a petition to modify to the trial court because his oldest child emancipated. The trial court found that Father had impermissibly modified his child support obligation based, inter alia, on the fact that Father failed to follow the Child Support Guidelines. Discerning no error, we affirm the trial court’s judgment.

The defendant, Kenneth Michael McIntosh, pled guilty to sixteen counts of aggravated child abuse and a single count of child abuse. The trial court sentenced the defendant to eight years for each aggravated child abuse conviction and eleven months and twentynine days for the single child abuse conviction and ordered two of the sentences for aggravated child abuse to be served consecutively for an effective sentence of sixteen years. On appeal, the defendant argues the trial court erred in ordering two of his eightyear sentences to be served consecutively. Upon review, we affirm the findings of the trial court.

This case was originally filed in general sessions court. The general sessions court entered a default judgment against Appellant in the amount of $8,066.04 on January 27, 2012. In September of 2015, Appellant filed a motion for relief from the general sessions judgment, alleging that the judgment was void because she was not properly served with the civil warrant. The general sessions court denied the motion, and Appellant appealed to the circuit court. The circuit court vacated the general sessions’ default judgment finding that Appellant was not properly served but remanded the case to general sessions for a trial on the merits. Because the general sessions court lacked personal jurisdiction over Appellant, we conclude that the default judgment entered in the general sessions court is void. Accordingly, we affirm the circuit court’s order vacating the default judgment, but reverse the circuit court’s remand of the case to general sessions court, and instead we remand to the circuit court with instructions to dismiss the case.

This appeal arises out of protracted litigation following a foreclosure sale. The plaintiff asserted claims against the mortgage holder and the purchaser at the foreclosure sale for breach of contract, breach of the implied duty of good faith and fair dealing, improper foreclosure, and fraud. The trial court dismissed each of the claims, and the plaintiff appeals. Due to the deficiencies in the plaintiff’s brief on appeal, we conclude that she has waived consideration of any issues and hereby dismiss the appeal.

The Petitioner, William Casey, appeals the post-conviction court’s denial of his petition for post-conviction relief in which he challenged his convictions for first degree criminal sexual conduct and two counts of aggravated rape for offenses that occurred in 1979 and 1980. The Petitioner raised numerous issues in his petition, alleging errors at trial, prosecutorial misconduct, and ineffective assistance of counsel at trial and on appeal. The post-conviction court entered a preliminary order dismissing all of the Petitioner’s claims of errors at trial, prosecutorial misconduct, and ineffective assistance of appellate counsel and the majority of his claims of ineffective assistance of trial counsel. Following an evidentiary hearing on the Petitioner’s remaining claims, the postconviction court entered an order denying the Petitioner relief. On appeal, the Petitioner contends that the post-conviction court erred in dismissing the majority of his claims before the evidentiary hearing and in finding that the Petitioner failed to establish during the evidentiary hearing that he is entitled to relief as to his remaining claims. We conclude that the post-conviction court properly dismissed the Petitioner’s claims of errors during the trial and prosecutorial misconduct and properly denied the Petitioner relief as to his claims presented during an evidentiary hearing. We also conclude the post-conviction court erred in dismissing the Petitioner’s claims of ineffective assistance of counsel at trial and on appeal without conducting an evidentiary hearing. Accordingly, the post-conviction court’s judgment is affirmed in part and reversed in part, and we remand the case to the post-conviction court for an evidentiary hearing on the issues of ineffective assistance of counsel at trial and on appeal that were dismissed by the court in its preliminary order and properly preserved by the Petitioner on appeal.

Pro se Petitioner, Chris Jones, appeals the Shelby County Criminal Court’s dismissal of his petition for writ of error coram nobis. The Petitioner concedes that his petition was filed nearly seven years beyond the one-year statute of limitations and argues that due process consideration warrants tolling of the limitations period. Upon review, we affirm the dismissal of the petition.

This is a termination of parental rights case. Appellant/Mother appeals the trial court’s termination of her parental rights on the ground of: abandonment by willful failure to visit. Appellant also appeals the trial court’s finding that termination of her parental rights is in the children’s best interests. Because Appellee/Father thwarted Appellant’s attempts to visit the children, we conclude that Appellees failed to meet their burden to show, by clear and convincing evidence, that Appellant abandoned the children. Accordingly, we reverse the order terminating Appellant’s parental rights.

In this appeal, we address the constitutionality of police officers’ search of trash located within the curtilage of the home of the Defendant, Williams Zachary Weatherly. The police officers utilized evidence obtained from the Defendant’s trash to secure a search warrant for the Defendant’s home and vehicle. As a result of evidence seized from the Defendant’s trash and during the execution of the search warrant, the Defendant was charged with possession with the intent to sell or deliver more than one-half ounce of marijuana and possession of a firearm during the commission of a dangerous felony. The Defendant filed a motion to suppress. Following a hearing, the trial court granted the motion, finding that the warrantless search of the Defendant’s trash was unconstitutional and that the search warrant failed to establish probable cause. The State appealed. Upon reviewing the record and the applicable law, we affirm the trial court’s granting of the motion to suppress.

A mother obtained a default judgment against her former spouse for child support arrearages and other amounts. At the mother’s request, the trial court entered orders of income assignment to the former spouse’s employers, each directing them to deduct a set amount from the former spouse’s salary to satisfy the default judgment. Nearly fourteen and one-half years later, the former spouse asked the court to terminate the wage assignment, claiming the culmulative amount deducted from his income exceeded the amount of judgment plus interest. The former spouse also sought a judgment against the mother to the extent she had received more than she was entitled to under the default judgment. The mother argued that the voluntary payment doctrine barred recovery. The trial court found that the former spouse’s “overpayments were made with full knowledge of the facts chargeable to him” but that they “were not voluntary payments.” Accordingly, the court entered judgment against mother plus statutory post-judgment interest.

A jury convicted the Petitioner, Tina Nelson, of first degree felony murder committed during the perpetration of aggravated child abuse and of the underlying felony of aggravated child abuse. She petitioned for post-conviction relief, asserting ineffective assistance of counsel, and her petition was denied. On appeal, the Petitioner alleges that she is entitled to post-conviction relief because her trial counsel failed to properly investigate her case or present witnesses, failed to move for a severance, failed to properly challenge testimony that she showed no emotion, and failed to establish that her mental impairment prevented her from assisting in her own defense. After a thorough review of the record, we affirm the denial of post-conviction relief.

Originally, I was assigned the task of drafting an opinion in this case. I circulated my draft to the other panel judges, the Honorable W. Neal McBrayer and the Honorable Arnold B. Goldin. Judges McBrayer and Goldin do not agree with me “that the voluntary payment doctrine barred recovery.” I have read the majority opinion drafted by Judge McBrayer and concurred in by Judge Goldin. I now formally dissent from that majority opinion.

An employee filed a claim for workers’ compensation, alleging he injured his left knee in the course and scope of his employment. The Court of Workers’ Compensation Claims denied the claim, finding the employee had failed to prove that his knee injury arose primarily out of his employment. The Workers’ Compensation Appeals Board affirmed. The employee appealed, contending that the evidence preponderated against the judgment of the Court of Workers’ Compensation Claims. After careful review, we affirm the decision of the Workers’ Compensation Appeals Board.

The Petitioner, Steven Davis, appeals the post-conviction court’s dismissal of his petition as time-barred, arguing that he delivered his petition to the designated employee in the prison mail room in a timely manner. Following our review, we affirm the summary dismissal of the petition.

In this personal injury action arising from an automobile-motorcycle accident, the trial court granted the plaintiff’s motion to enlarge the time allowed to obtain service of process on the defendant upon finding that the plaintiff’s failure to timely obtain service of process had been due to excusable neglect. Consequently, the trial court in the same order denied the defendant’s motion to dismiss the plaintiff’s complaint for lack of service. Upon the defendant’s subsequent motion, the trial court granted permission for an interlocutory appeal, as did this Court. Upon review of the issues certified by the trial court, we affirm the trial court’s utilization of Tennessee Rule of Civil Procedure 6.02 as a method of enlarging the timeframe for issuance and service of process, pursuant to Tennessee Rule of Civil Procedure 3, when the complaint was timely filed and when excusable neglect can be demonstrated. However, having concluded that the trial court made insufficient findings and conclusions regarding excusable neglect in this matter, we vacate the trial court’s determination on that issue and remand this matter to the trial court for further proceedings consistent with this opinion. We also vacate the trial court’s determination that the defendant would be estopped from asserting a defense based on the statute of limitations because the parties had no express agreement waiving service of process in this matter.

The Defendant, Daniel Lee Mooneyhan, appeals his Bedford County convictions for Count 1: aggravated burglary, and Counts 2 and 4: theft of property between the value of $1,000 and $10,000, for which he received an effective sentence of five years with a 30% release eligibility, to serve in the Department of Correction. The Defendant contends that the evidence presented at trial was insufficient to support his convictions in Counts 1, 2, and 4 because the State offered no independent evidence to corroborate an accomplice’s testimony about the Defendant’s involvement in the offenses. The Defendant does not appeal his conviction in Count 3, felon in possession of a handgun. Upon review, we affirm the judgments of the convictions, but remand for merger of Counts 2 and 4.

The Defendant, Andrew McMurray, Jr., appeals the revocation of his community corrections sentence and the trial court’s order that he serve the remainder of his sentence in prison. After a thorough review of the record and the applicable law, we discern no abuse of discretion, and we affirm the trial court’s judgment.

A Lewis County jury convicted the Defendant, Steven O. Summers, II, of theft of more than $1,000, and the trial court sentenced him to four years on probation and ordered him to pay restitution to the victim. In this appeal, the Defendant contends that: (1) the trial court erred when it failed to excuse certain members of the jury pool for cause; (2) the evidence is insufficient to support his conviction; and (3) the trial court ordered the Defendant to pay an incorrect amount of restitution and failed to follow the proper procedure when it determined restitution. After review, we affirm the trial court’s judgment.

Former police officer appeals the denial of her petition for a writ of certiorari and the denial of her motion for relief from a final judgment related to the termination of her employment. Here, the evidence was undisputed that the former police officer neglected her duties, failed to follow the directive of a “superior” and was repeatedly informed about various instances of misconduct. As such, the city administrator’s decision to uphold Appellant’s dismissal was supported by material evidence and was neither arbitrary, illegal, nor capricious.

Fredrick Sledge (“Petitioner”) appeals the June 16, 2017 order of the Chancery Court for Nashville and Davidson County (“the Trial Court”) dismissing Petitioner’s October 2016 petition for declaratory judgment (“2016 Petition”) based upon the prior suit pending doctrine. We find and hold that the prior suit pending doctrine applies as Petitioner had a prior suit pending involving the same parties and the same subject matter in a court that had both personal and subject matter jurisdiction. We, therefore, affirm the Trial Court’s June 16, 2017 order dismissing Petitioner’s petition.

Robert A. Hanks and Lee E. Hanks (“Plaintiffs”) sued First American Title Insurance Co. (“First American”) for breach of contract with regard to an owner’s title insurance policy (“Title Policy”). First American filed a motion for summary judgment. After a hearing, the Chancery Court for Sumner County (“the Trial Court”) granted summary judgment to First American after finding and holding, inter alia, that the Title Policy excluded any claim pursuant to either federal bankruptcy code or Tennessee law for an alleged fraudulent conveyance, fraudulent transfer, or preferential transfer. Plaintiffs appeal the grant of summary judgment to this Court. We find and hold that First American made a properly supported motion for summary judgment demonstrating that Plaintiffs’ evidence is insufficient to establish an essential element of their claim and that Plaintiffs failed to demonstrate that there are genuine disputed issues of material fact with regard to the claims for fraudulent conveyance or fraudulent transfer. We further find and hold that the claim for post-petition transfer is not excluded from coverage pursuant to exclusion 4 of the Title Policy, and, therefore, summary judgment on the post-petition claim was improper. We, therefore, affirm the grant of summary judgment, in part, and reverse it, in part, and remand this case to the Trial Court for further proceedings consistent with this Opinion.