APPELLATE COURT OPINIONS

Husband filed a petition pursuant to Rule 60.02 to set aside a provision of the parties’ divorce decree that required him to pay $80,000 to Wife in accordance with an antenuptial agreement. He sought relief under Rule 60.02(2) for fraud, misrepresentation, or other misconduct of an adverse party. The trial court denied Husband’s petition and “confirmed” the divorce decree. We find that the trial court applied an incorrect legal standard, and as a result, it did not properly exercise its discretion. We also find that Wife’s conduct constituted misrepresentation or other misconduct within the meaning of Rule 60.02(2). Accordingly, we reverse the trial court’s order denying Husband’s Rule 60 petition and we vacate the challenged portion of the divorce decree.

The Petitioner, Dusty Ross Binkley, pled guilty to manufacture of methamphetamine and possession of a weapon in the commission of a dangerous felony. The trial court sentenced the Petitioner to an eight-year sentence to be served on community corrections. The Petitioner’s community corrections officer filed a violation warrant, and, after a hearing, the trial court revoked the Petitioner’s community corrections sentence, finding that he had violated the terms of his sentence, and ordered him to serve the remainder of his sentence in confinement, to run consecutively with his sentence in another county on an unrelated charge. The Petitioner filed a pro se petition for a writ of habeas corpus, which the habeas court summarily dismissed. On appeal, the Petitioner contends that the habeas court erred by summarily dismissing his petition. After a thorough review of the record and applicable law, we affirm the habeas corpus court’s judgment.
 

For the reasons discussed below, I must respectfully dissent from the majority’s opinion in this case.

We granted this appeal to determine whether the return of proof of service of process 412 days after issuance of a summons precludes a plaintiff from relying upon the original commencement of the lawsuit to toll the running of the statute of limitations. We hold that the plain language of Tennessee Rules of Civil Procedure 3 and 4.03 does not condition the effectiveness of the original commencement to toll the statute of limitations upon the prompt return of proof of service. We reverse the judgment of the Court of Appeals affirming the trial court’s dismissal of the plaintiff’s lawsuit. We remand this case to the trial court to determine whether service of process occurred within ninety days of issuance of the summons. If so, the plaintiff may rely upon the original commencement of the lawsuit to toll the statute of limitations.

The Defendant, Robert Glenn Hasaflook, was indicted for one count of promotion of the manufacture of methamphetamine, and filed a pretrial motion to suppress all his statements made to the police. The trial court denied the Defendant’s motion, and the Defendant pleaded guilty to the indicted offense reserving a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) about whether the stop of the Defendant’s vehicle by law enforcement was lawful. After review, we conclude that the Defendant has failed to comply with the strict requirements of Tennessee Rule of Criminal Procedure 37(b)(2). Accordingly, the appeal is dismissed.

I concur in the majority’s conclusion that failure to return proof of service does not render commencement ineffective to toll the statute of limitations under Rule 3. I write separately, however, to address the majority’s failure to construe Rule 4.03(1), which states that a plaintiff “shall promptly make proof of service.” See Tenn. R. Civ. P. 4.03(1) (2012). Although the majority provides a brief historical perspective of companion Rules 3 and 4.03, including significant changes in the return of proof of service requirements of both rules, the majority relies almost entirely on Rule 3 to conclude that Ms. Fair’s failure to promptly return proof of service did not affect the commencement of her action.

Pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, the State appeals the manner of service of the sentence ordered by the Criminal Court for McMinn County. As a Range I, standard offender, the Defendant, Jeremy Mulkey, entered a plea of guilty to vandalism of $1,000 or more but less than $10,000, a Class D felony, vandalism of $10,000 or more but less than $60,000, a Class C felony, and reckless endangerment, a Class E felony. The trial court sentenced the Defendant, consistent with the plea agreement, to concurrent terms of four years for Class D felony vandalism; four years for Class C felony vandalism and two years for reckless endangerment. After conducting a sentencing hearing, the trial court ordered the Defendant to serve his sentence in the community corrections program. In doing so, the State argues that the trial court abused its discretion because the Defendant pleaded guilty to reckless endangerment, a crime against the person, and therefore, failed to meet the minimum statutory requirements to be sentenced under the Community Corrections Act. Tenn. Code Ann. § 40-36-106 (2012). Upon review, we reverse and remand for resentencing.

A trial court granted Third-Party Defendant’s motion to dismiss for failure to prosecute where Third-PartyPlaintiff took no steps to pursue his claims against Third-PartyDefendant more than six years after Third-PartyPlaintiff was granted a new trial, and where Third-Party Plaintiff failed to comply with the trial court’s scheduling order, thereby causing additional delays. Third-Party Plaintiff appealed, and we affirm the trial court’s judgment. Trial courts have broad discretionary authority to control their dockets and proceedings, and the court here did not abuse its discretion in dismissing Third-Party Plaintiff’s complaint against Third-Party Defendant.
 

Petitioner, Cantrell Lashone Winters, stands convicted of possession of 50 grams or more of hydromorphone in a school zone with intent to sell, a Class A felony, and Class E felony evading arrest. See State v. Cantrell Lashone Winters, M2009-01164-CCA-R3-CD, 2011 WL 1085101, at *1 (Tenn. Crim. App. March 24, 2011), no perm. app. filed. The trial court sentenced him to an effective sentence of thirty-four years in the Tennessee Department of Correction. Petitioner filed for post-conviction relief, alleging that he had received ineffective assistance of counsel. The post-conviction court denied relief, and petitioner now appeals. Following our review, we affirm the judgment of the post-conviction court.

Plaintiff beneficiary filed an action challenging the reasonableness of an executor’s fee taken by SunTrust as Executor. The probate court upheld the executor’s fee, and Plaintiff then filed an action against SunTrust Bank and SunTrust as Trustee. The trial court ultimately granted summary judgment to Defendants based upon collateral estoppel and res judicata. We reverse the grant of summary judgment in favor of Defendants and we remand for further proceedings

This is an appeal from a final decree of divorce. Father challenges numerous rulings by the trial court, regarding both parenting issues and financial issues. We affirm in part, as modified, we reverse in part, and we remand for further proceedings consistent with this opinion.

Plaintiff raises a plethora of issues on appeal from an action that began as a declaratory judgment action seeking to enforce a sales contract and turned into complex litigation involving numerous claims. On appeal, Plaintiff challenges, inter alia, the trial court’s decisions regarding the exclusion of evidence pursuant to the Dead Man’s Statute, the denial of a motion to amend to add an additional party, issues related to discovery, the trial court’s grant of directed verdict on numerous claims to the Defendants, and several other rulings by the trial court. We affirm the trial court in all respects.

Unmarried parents who had been involved in extensive litigation over custody of their two children finally entered into an agreed order that gave custody of their six year old son to the father and custody of their two year old daughter to the mother.  Two years later, the father filed a petition for modification of custody, alleging improper conduct by the Mother. After a hearing, the trial court found that there had been a material change of circumstances and awarded the father primary custody of the little girl. The mother argues on appeal that the trial court’s final order was deficient because it did not specifically identify the material change of circumstance that justified reopening the question of custody and because the court did not apply the statutory factors found at Tenn. Code Ann. § 36-6-106(a) to the question of the children’s best interest. We affirm the trial court.

The Petitioner, Cornelius Richmond, appeals the Lauderdale County Circuit Court’s summary dismissal of his petition for habeas corpus relief from his 2003 convictions for robbery and three counts of forgery and resulting thirty-three-year sentence. The Petitioner contends that (1) his three forgery convictions are void because they should have been merged into a single conviction and (2) his multiple sentences violate principles of double jeopardy. We affirm the judgment of the trial court.

A surgeon left a sponge in the abdomen of a patient, closing the incision after receiving assurances from two operating room nurses that all the surgical sponges used in the operation had been fully accounted for. A second surgery was required to remove the sponge from the patient’s body. The patient died of unrelated causes seven months later. The patient’s widow filed a medical malpractice complaint against the surgeon and argued that the evidence of negligence was so plain that she could be excused from the normal requirement of producing expert testimony to prove that medical malpractice had occurred. The defendant surgeon presented expert testimony during trial to prove that the surgical standard of care entitled him to rely on the accuracy of the sponge count provided by his nurses. The jury returned a verdict for the defendant surgeon. The plaintiff argues on appeal that the trial court committed reversible error by allowing the use of expert testimony in a case that is based on the common knowledge exception and res ipsa loquitur. We affirm the trial court.

The Appellant, Brandon Rollen, appeals the Shelby County Criminal Court’s denial of his Tennessee Rule of Criminal Procedure 36 motion for correction of clerical errors in four aggravated robbery judgments. On appeal, he argues that the trial court erred in denying the motion. We reverse the trial court’s order dismissing the motion and remand the case to the trial court for consideration on the merits pursuant to Tennessee Rule of Criminal Procedure 36 and Tennessee Rule of Criminal Procedure 36.1.

This appeal arises from the grant of summary judgment in favor of Appellee. Appellants claimed that Appellee was liable for injuries caused by dogs that Appellee allegedly owned and allowed to run loose in the Appellants’ neighborhood. The trial court’s order fails to state the legal ground upon which the court granted the motion for summary judgment. Further, there is no indication in the record of the trial court’s reason(s) for granting the motion. Because Tennessee Rule of Civil Procedure 56.04 mandates inclusion of the trial court’s legal ground in the order on the motion for summary judgment, we vacate and remand.

A Madison County Circuit Court Jury convicted the appellant, Marquon L. Green, of aggravated robbery, and the trial court sentenced him as a Range I offender to ten years to be served at 85%. On appeal, the appellant contends that the evidence is insufficient to support the conviction. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

In this negligence action, the trial court, following a bench trial, found the defendant 51% at fault and the plaintiff 49% at fault for a severe injury plaintiff, Margie R. Huskey, suffered to her left arm at the Rhea County Convenience Center. The trial court assessed total compensatory damages at $298,376.65, which it reduced by 49%, awarding $152,172.09 to Ms. Huskey. The court further assessed damages of $25,000.00 for loss of consortium in favor of plaintiff, Norman Huskey, which it likewise reduced by 49%, awarding $12,750.00. The County raises three issues on appeal: (1) whether the trial court erred by finding the County liable for negligence; (2) whether the injured plaintiff was at least 50% at fault and therefore barred from recovery; and (3) whether the damages awarded were excessive.  Discerning no error, we affirm.

This appeal concerns the appropriate response when a trial court learns during a jury’s deliberations that a juror exchanged Facebook messages with one of the State’s witnesses during the trial. A criminal court in Davidson County declined the defendant’s request to hold a hearing to question the juror and the witness to ascertain whether the communications required a new trial. The Court of Criminal Appeals concluded that the trial court had not erred by declining the defendant’s request for a hearing. State v. Smith, No. M2010-01384-CCA-R3-CD, 2012 WL 8502564 (Tenn. Crim. App. Mar. 2, 2012). We disagree and, therefore, vacate the judgment and remand the case for a hearing consistent with this opinion.

The petitioner, Stephen A. Pugh, Jr., appeals the denial of his petition for post-conviction relief. Specifically, he contends that trial counsel was ineffective by failing to recognize a defective indictment and by allowing the petitioner to plead guilty under that indictment, which did not charge a crime recognized under the law of Tennessee. The petitioner is currently serving an effective seventeen-year sentence in the Department of Correction following his guilty plea to two counts of attempted first degree murder. Following review, we affirm the denial of relief.

William Henry Preston (“the Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus. Pursuant to a plea agreement and his pleas of guilty to six counts of aggravated rape, the Petitioner received a total effective sentence of forty years as a Range I standard offender. In his petition, he alleges that his sentences are illegal because the trial court and his counsel failed to advise him that he would be subject to community supervision for life as a result of his convictions. In addition, the Petitioner asserts that his total effective sentence of forty years has expired due to the accumulation of sentence reduction credits. The habeas corpus court dismissed his petition. The Petitioner now appeals. Upon our thorough review of the record and applicable law, we affirm the judgment of the habeas corpus court.

This is a breach of contract case. Appellant, a medical doctor, was hired by Appellee Clinic under terms outlined in an employment agreement. After four years employment, the relationship between the parties reached an impasse and Appellant made plans to leave the Clinic to open his own practice. When the parties could not agree concerning payments due under the contract, the instant lawsuit was filed by Appellant, claiming that the Appellee had breached the contract. Appellee counter-sued for breach of contract, breach of duty of loyalty, and conversion, claiming that the Appellee had retained certain of his accounts receivable and had limited his work schedule in contravention of the contract. The trial court granted summary judgment in favor of the Appellee on the breach of contract and duty of loyalty claims, and set damages pursuant to the report of the Special Master. Appellant appeals. We conclude that remaining questions of law and fact preclude the grant of summary judgment, but that the trial court properly denied Appellant’s claim for unpaid vacation time and properly referred the issue of damages to the Special Master. Reversed in part, affirmed in part, and remanded.

Stephen Mark Addleburg (“the Defendant”) was convicted by a jury of failure to provide proof of financial responsibility; possession of less than one-half ounce of marijuana; possession of a weapon by a convicted felon; and possession of a handgun while under the influence. Following a sentencing hearing, the trial court sentenced the Defendant to four years’ incarceration. In this appeal, the Defendant contends that the trial court erred in denying his request for alternative sentencing. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court. We remand the case solely for correction of clerical errors contained in the two misdemeanor judgments.

The Defendant, Eric Dates, was convicted by a Shelby County Criminal Court jury of driving under the influence (DUI), a Class A misdemeanor, and was sentenced to eleven months, twenty-nine days, all suspended but 48 hours. See T.C.A. 55-10-401 (2012). On appeal, he contends that (1) the traffic stop was an unconstitutional search and seizure, (2) the evidence was insufficient to support his DUI conviction, and (3) the verdicts were inconsistent. We affirm the judgments of the trial court.