APPELLATE COURT OPINIONS

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.

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.

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.

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.

The Defendant, Moses A. Ballard, Jr., was indicted for unlawful possession of a firearm and first degree premeditated murder. See Tenn. Code Ann. §§ 39-13-202, -17-1307. The unlawful possession of a firearm charge was ultimately dismissed upon the State’s request. Following a jury trial, the Defendant was convicted of the lesser-included offense of second degree murder, a Class A felony. See Tenn. Code Ann. § 39-13-210. The trial court subsequently imposed a sentence of thirty-eight years. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his conviction; (2) that the trial court erred in allowing an expert witness to testify beyond the scope of her expertise; (3) that the trial court erred by not allowing recorded jail phone calls between the Defendant and two of the State’s witnesses to be introduced at trial; (4) that the trial court erred by not allowing “evidence regarding the gang affiliation of various involved parties” to be introduced at trial; (5) that the State committed a discovery violation by withholding evidence; (6) that the withheld evidence “amount[ed] to newly discovered evidence” requiring a new trial; and (7) that the trial court was unable to perform its duty as the thirteenth juror “due to the withheld evidence.” Following our review, we affirm the judgment of the trial court.

The petitioner, Carlos Prather, appeals the denial of post-conviction relief from his 2015 Shelby County Criminal Court guilty-pleaded convictions of vandalism of property valued at $1,000 or more but less than $10,000, for which he received an effective sentence of 10 years. In this appeal, the petitioner contends that his guilty pleas were not knowingly and voluntarily entered and that he was denied the effective assistance of counsel. Discerning no error, we affirm.

The petitioner, Ronnie Bradfield, appeals from the summary dismissal of his pro se pleading, in which pleading the petitioner asked for relief via the writ of error coram nobis, the writ of habeas corpus, and Tennessee Rule of Criminal Procedure 36.1. Because the record supports the dismissal, we affirm.

On April 1, 2016, the Obion County Grand Jury indicted the Defendant, Alando Deshaun Brown, on two counts of rape. A jury convicted the Defendant of both counts at trial. At the sentencing hearing, the trial court merged Count 2 into Count 1 and sentenced the Defendant to eight years in the Department of Correction, with release eligibility after service of 100% of the sentence for Count 1. The Defendant filed a timely motion for a new trial, which the trial court denied. The Defendant filed a timely notice of appeal, claiming insufficient evidence to support the verdict. Based on the evidence in the record, we affirm the trial court’s judgments.

The Petitioner, Scott L. Bishop, was convicted of four counts of aggravated sexual battery and sentenced to serve eleven years in prison. The Petitioner filed a postconviction petition asserting that his trial counsel did not provide effective assistance, and the post-conviction court denied the petition after a hearing. On appeal, the Petitioner asserts that trial counsel was deficient in failing to present character witnesses, failing to object to leading questions asked by the prosecutor, and preventing him from viewing the victim’s recorded forensic interview. After a thorough review of the record, we conclude that the Petitioner is not entitled to relief, and we affirm the post-conviction court’s judgment.

Kenneth Ramsey (“Defendant”), pro se, appeals the April 18, 2017 order of the Circuit Court for Hamilton County (“the Circuit Court”) granting Plaintiff’s motion to dismiss Defendant’s appeal from General Sessions Court to the Circuit Court. Defendant’s brief on appeal severely fails to comply with Tenn. R. App. P. 27. We, therefore, find that Defendant has waived his issues on appeal. We affirm the Trial Court’s April 18, 2017 order.

In this interlocutory appeal, the petitioner, Nikolaus Johnson, appeals the ruling of the post-conviction court ordering that he provide discovery materials to the State. The rules governing post-conviction proceedings impose upon the State an automatic and mandatory obligation to provide discovery materials to the petitioner as part of the postconviction proceeding even in the absence of a request for such materials. Although Rule 28 of the Rules of the Tennessee Supreme Court does not include a similar provision requiring automatic and mandatory reciprocal discovery from the petitioner to the State, the Post-Conviction Procedure Act provides that Tennessee Rule of Criminal Procedure 16 governs discovery in a post-conviction proceeding. Nothing in Rule 28 specifically exempts a post-conviction petitioner from complying with the discovery requirements of Rule 16. Accordingly, we reverse that part of the post-conviction court’s ruling that held that the filing of a pro se petition for post-conviction relief, without more, triggers in the post-conviction petitioner a duty to provide reciprocal discovery to the State. Instead, we hold that a post-conviction petitioner’s duty to provide reciprocal discovery to the State arises when the State has fully complied with its own mandatory discovery obligation and has requested reciprocal discovery under the terms of Rule 16. Because the State has not yet satisfied its duty to disclose in this post-conviction proceeding, the post-conviction court erred by ordering the petitioner to provide reciprocal discovery to the State. Regarding the post-conviction court’s order that the petitioner disclose prior to the evidentiary hearing the underlying facts and data for those expert witnesses the petitioner intended to present at the evidentiary hearing, we conclude that Tennessee Rule of Evidence 705 authorizes the court’s order and, therefore, affirm.