APPELLATE COURT OPINIONS

This is an appeal from a final judgment of divorce entered on March 19, 2007. The Notice of Appeal was not filed until December 2, 2013, more than (30) days from the date of entry of the final judgment to which it is directed. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

This case is before us upon mandate from the Tennessee Supreme Court for reconsideration of our previous opinion, Johnson v. Floyd, No. W2012-00207-COA-R3-CV, 2012 WL 2500900 (Tenn. Ct. App. June 29, 2012), in light of the Tennessee Supreme Court’s decision in Rajvongs v. Wright, --- S.W.3d ----, 2013 WL 6504425 (Tenn. 2013). Based on the Tennessee Supreme Court’s decision, we reverse the decision of the trial court and remand for further proceedings.

In case number 6994, the Defendant, Daniel Antonio Payne, who was on bond pending the resolution of his charges, pled guilty to one count of driving while license suspended, one count of felony evading arrest, and two counts of theft over $1000.00. The trial court sentenced the Defendant to concurrent sentences of ten years for each of the theft convictions, six years for the felony evading arrest conviction, and six months for the driving while license suspended conviction. At the conclusion of the sentencing hearing, the trial court revoked the Defendant’s bond in case number 6994. As the Defendant was being taken into custody, he was found in possession of marijuana, which resulted in the charges in case number 7515. Subsequently, in case number 7515, the Defendant pled guilty to felony possession of marijuana. The trial court sentenced the Defendant to six years, to be served concurrently with his sentence in case number 6994. On appeal, the State contends that the trial court erred in not imposing mandatory consecutive sentences for case numbers 6994 and 7515. After a thorough review of the record and applicable authorities, we conclude that consecutive sentencing was mandatory. We reverse the trial court’s judgment in case number 7515 and remand for sentencing consistent with this opinion.

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.  The Petitioner, Michael Ricardo Martin, appeals the trial court’s dismissal of his petition for habeas corpus.  On appeal, the Petitioner contends that his petition was erroneously transferred to the Criminal Court for Davidson County without a judgment entered, and, thus, the Petitioner was deprived of his right to object to the transfer.  Upon a review of the record, we agree that the lower court was correct that the Petitioner is not entitled to relief.  This case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.  Accordingly, the State’s motion is granted, and the judgment of the trial court is affirmed.

This case arises from a dispute between family members over the proper distribution of assets from two separate trusts. Appellant contends that the grantor of one of the trusts revoked a modification of the trust prior to her death pursuant to a settlement agreement with Appellant. The trial court declined to give effect to a settlement agreement because it was never signed by the parties prior to the grantor’s death. Additionally, Appellant contends that the trial court erred in its interpretation of various provisions in each of the trusts. After thoroughly reviewing the record, we affirm the judgment of the trial court.

The Petitioner, James R. Lening, appeals the Circuit Court for Lauderdale County’s denial of his pro se petition for writ of habeas corpus. The State has filed a motion requesting that this court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.

Appellant, Patrick Stanton, was convicted of one count of aggravated burglary, a Class C felony, and one count of theft of property valued at $500 or less, a Class A misdemeanor. The trial court sentenced appellant as a Range III, persistent offender to fifteen years for his felony conviction and eleven months and twenty-nine days for his misdemeanor conviction. On appeal, appellant argues that the evidence at trial was insufficient to prove that he had the requisite intent to commit a theft prior to entering a habitation or that he actually committed a theft. Following our review of the parties’ briefs, the record, and the applicable law, we affirm appellant’s convictions.

A person whose property was seized, and subsequently forfeited, pursuant to a drug arrest challenges the actions of the Department of Safety. In light of the nine-year delay in the filing of a petition for review, we find no error in the trial court’s dismissal of the action.

This is an appeal from an order denying a motion for return of personal property. Because the order does not resolve all the claims between the parties we dismiss for lack of a final judgment.

The Defendant, Levester Taylor, was convicted by a Davidson County jury for multiple counts of aggravated sexual battery and rape of a child.  The trial court imposed a sentence of 10 years at 100% for each aggravated sexual battery and 20 years at 100% for each rape of a child, and ordered the sentences to run consecutively for an effective sentence of 200 years in the Department of Correction.  On appeal, the Defendant argues that the evidence is insufficient to sustain his convictions and that the trial court erred imposing an effective sentence of 200 years.  Upon review, the Defendant’s judgments of conviction are affirmed, the sentences imposed by the trial court are vacated, and the case is remanded for a resentencing hearing, following the Defendant’s election to proceed under the pre-2005 sentencing act or the amended sentencing act accompanied by the Defendant’s written waiver of his ex post facto protections. 
 

A Davidson County Jury convicted Appellant, Kevin Lamont Church, of kidnapping and simple assault.  The trial court sentenced him to twelve years as a Range III, persistent offender.  The judgments were entered January 6, 2010.  A motion for new trial was never filed.  On July 6, 2011, Appellant filed a post-conviction petition requesting a delayed appeal.  The trial court granted the request on October 7, 2011, and Appellant filed a motion for new trial on November 8, 2011.  At the hearing on the motion for new trial, the State conceded that the simple assault conviction should be merged into the kidnapping conviction.  The trial court agreed and dismissed count two for assault.  The trial court denied the remaining arguments included in the motion on October 10, 2012.  Appellant subsequently filed a notice of appeal on November 13, 2012.  On appeal, Appellant argues that the evidence was insufficient to support his conviction for kidnapping.  The State argues that Appellant did not file a timely notice of appeal, and this Court should dismiss the appeal.  Although we agree with the State that the notice of appeal is untimely, we have decided to waive the timely notice of appeal in the interest of justice and address Appellant’s claim that the evidence was insufficient to support his conviction of kidnapping on the merits.  We have thoroughly reviewed the record on appeal and conclude that the evidence was sufficient to support Appellant’s conviction.
 

This case is before this court on a delayed appeal of appellant’s 2004 convictions for second degree murder and arson. Appellant received an effective sentence of twenty-four years. Appellant now argues that the trial court erred by (1) allowing a witness to testify about appellant’s propensity for violence during the State’s case-in-chief; (2) allowing the testimony of a witness when appellant did not have notice of her testimony until two days before the trial; (3) incorrectly instructing the jury on self-defense; and (4) ruling that a defense witness’s testimony was irrelevant. Following our review, we affirm the judgments of the trial court.

Appellant, Brandon L. Brawner, pleaded guilty to one count of vandalism of property valued at $10,000 or more and received a six-year sentence, to be served in a community-based alternative to incarceration (community corrections). A violation of probation warrant was subsequently filed, alleging that appellant perpetrated a domestic aggravated assault, aggravated assault, and vandalism of $1,000 or more while using a knife and that appellant owed $9,438.50 in fines, costs, and restitution. The trial court revoked his probation, and this appeal follows. Appellant now alleges that the trial court abused its discretion by ordering him to serve the remainder of his sentence in the Tennessee Department of Correction. After our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the trial court.

A Shelby County jury convicted the Defendant, Curtis Moore, of attempted second degree murder, employing a firearm during the commission of a dangerous felony, and aggravated assault. The trial court merged the aggravated assault conviction with the attempted second degree murder conviction and ordered the Defendant to serve an effective sentence of fourteen years. On appeal, the Defendant contends that the evidence is insufficient to sustain his conviction for attempted second degree murder and that the trial court erred when it found him statutorily ineligible for probation. After a thorough review of the record and applicable authorities, we conclude that the evidence is sufficient to sustain the Defendant’s conviction. We further conclude, and the State concedes, that the trial court erred when it found the Defendant statutorily ineligible for probation. As such, we reverse the case for the trial court to consider the Defendant’s suitability for probation on the eight-year sentence for attempted second degree murder.

This appeal concerns FirstBank’s request for a deficiency judgment against Defendants following a foreclosure sale of real property. FirstBank filed a motion for summary judgment, asserting that it was entitled to judgment as a matter of law because there were no issues of material fact remaining. Defendants objected, asserting that the property sold for an amount materially less than the fair market value. The trial court granted FirstBank’s motion, finding that Defendants failed to prove that the foreclosure price was materially less than the fair market value. Defendants appeal. We affirm the decision of the trial court and remand this case for proceedings consistent with this opinion.

In this divorce action, the sole issue on appeal is the propriety of the trial court’s permanent parenting plan regarding the parties’ three children. Concerning co-parenting, the parties were alternating weeks with their children during the pendency of the divorce. At trial, the parties agreed to continuation of this schedule, which provided each party equal co-parenting time with the children. The issues announced for trial regarding the children were (1) which parent should be named primary residential parent and (2) which parent would have final decision-making authority. The trial court, however, chose to implement a “divided” custody arrangement, wherein father was awarded primary custody and decision-making authority during the school year while mother was awarded primary custody and decision-making authority during the summer. Mother appeals. Discerning no abuse of discretion, we affirm.

Plaintiff appeals the trial court’s judgment in favor of Defendant in this action to recover amounts allegedly due under an oral loan agreement. We vacate the trial court’s judgment and remand the matter for findings of fact and conclusions of law as required by Tennessee Rule of Civil Procedure 52.01.

The Defendant, Aivar Lang, pled guilty to one count of possession of drug paraphernalia, a Class A misdemeanor, and agreed to allow the trial court to determine his sentence.  After a sentencing hearing, the trial court sentenced him to eleven months and twenty-nine days in the county jail.  On appeal, the Defendant contends that his sentence is excessive.  After a thorough review of the record and applicable authorities, we conclude that no error exists in the sentence imposed by the trial court, but a corrected judgment form is required.  Therefore, the sentence is affirmed, and we remand the case for correction of a clerical error in the judgment.
 

The trial court denied Defendant’s motion to dismiss on the basis of the doctrine of prior suit pending and entered summary judgment in favor of Plaintiff under-insured/uninsured motorist insurance carrier. We hold that the action was barred under the doctrine of prior suit pending where the subject matter of the current lawsuit, namely, insurance coverage, was asserted by Plaintiff insurance carrier as a defense in an action previously filed by Defendant insured and pending in the circuit court. Summary judgment in favor of Plaintiff insurance carrier is reversed. This action is remanded to the trial court for dismissal in accordance with this Opinion.

The defendant, Thomas Bolton, appeals his Shelby County Criminal Court jury convictions of vandalism, theft of property, and violations of the Solid Waste Disposal Act, challenging the sufficiency of the convicting evidence and the propriety of certain jury instructions. We affirm the convictions and sentences but remand for correction of clerical errors in the judgments.

Physicians filed an action for malicious prosecution and abuse of process against Patient after Patient voluntarily dismissed her medical malpractice lawsuit against them. Following a change in the applicable case law, Physicians voluntarily dismissed their malicious prosecution and abuse of process claims. Patient moved for attorney fees under Tenn. R. Civ. P. 37.03(2) as a sanction against Physicians for their failure to admit a matter requested under Tenn. R. Civ. P. 36.01. Patient also sought discretionary costs. The trial court found that Physicians had reasonable grounds to believe they might prevail on their claims, but granted Patient a partial attorney fee award. We reverse the award of attorneys fees and affirm the award of discretionary costs.

The pro se petitioner, Daniel Lee Draper, appeals the summary dismissal of his petition for writ of habeas corpus. He argues that the trial court did not have jurisdiction to sentence him to life with the possibility of parole, that the habeas court erred in summarily dismissing his petition without a hearing, and that the habeas court erred in failing to treat his habeas petition as a post-conviction petition. After review, we affirm the summary dismissal of the petition.

The defendant, Jeffrey Walton, was convicted by a Shelby County Criminal Court jury of vandalism over $10,000, a Class C felony, and burglary of a building, a Class D felony, for which he received sentences of fifteen years as a persistent offender and twelve years as a career offender, to be served consecutively, in the Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence. After review, we affirm the judgments of the trial court.

This appeal involves the interpretation of a marital dissolution agreement. In the parties’ divorce, the wife was awarded the marital home and the associated debt on the home. In the parties’ marital dissolution agreement, the husband was required to pay alimony in an amount that covered half of the wife’s monthly mortgage payments. The alimony payments were to be made for fifteen years or until the mortgage on the marital home was “paid off in full.” The husband stopped making his alimony payments and the wife filed a contempt petition against him. While the contempt petition was pending, the wife fell behind on her mortgage payments and the house was sold in foreclosure. The husband then filed a petition to terminate his alimony obligation. After a hearing on both petitions, the trial court held the husband’s failure to pay alimony constituted willful contempt of court. Interpreting the marital dissolution agreement, however, the trial court also held that the husband’s alimony obligation ended when the marital home was sold in foreclosure, because at that point the mortgage was “paid off in full.” The wife now appeals. We decline to interpret the parties’ marital dissolution agreement in a manner that would terminate the husband’s alimony obligation if the foreclosure resulted from his contemptuous failure to pay alimony to the wife. Accordingly, we vacate the trial court’s decision and remand for further proceedings.

This is the second time this divorce case has been before this Court. Victor R. Peterson (“Husband”) filed the first appeal. We remanded the case to the trial court because we were “unable to determine what property was awarded to [Kathleen A. Peterson (“Wife”)] as . . . equitable division of property and what property was awarded as alimony in solido.” Peterson, 2012 WL 1413890 at *3. On remand, the trial court classified the parties’ property, valued all of the marital property except for some miscellaneous personal property, decreed a division of the marital property, and awarded Wife $10,000 in alimony in solido. Wife appeals. She argues that the division of marital property is not equitable and that the alimony award is inadequate. We affirm.