APPELLATE COURT OPINIONS

This is an appeal from an order of dismissal entered on January 23, 2013. Because the appellant did not file his notice of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.
 

Petitioner, Clarence Nesbit, was convicted by a Shelby County Criminal Court jury of first degree murder and sentenced to death. He sought post-conviction relief, and the post-conviction court vacated the death sentence and granted a new sentencing hearing, which the State has not appealed. The post-conviction court denied Petitioner relief from his first degree murder conviction. On appeal, Petitioner contends that the post-conviction court erred by denying his claim that he received the ineffective assistance of counsel during the guilt phase of the trial. We affirm the judgment of the post-conviction court.

The Defendant, Marcie Lynn Pursell, was found guilty by a Davidson County Criminal Court jury of three counts of aggravated child abuse, Class A felonies. See T.C.A. § 39-15-402 (2006) (amended 2009, 2011, 2012). She was sentenced as a Range I, standard offender to three concurrent terms of fifteen years’ confinement. On appeal, she contends that the evidence is insufficient to support her convictions and that the trial court erred by not allowing her to present evidence that she consented to a polygraph examination. We affirm the judgments of the trial court.

This appeal involves an employee’s claim of retaliation for engaging in protected activity. The plaintiff employee filed a lawsuit against his employer, the defendant university, asserting several claims of employment discrimination under state and federal statutes. Subsequently, in a second lawsuit against the university, the plaintiff employee asserted that he suffered adverse job actions after he filed his charge of discrimination with the federal Equal Employment Opportunity Commission and the first discrimination lawsuit. The alleged adverse job actions included making the employee perform tasks that resulted in physical injuries. The lawsuits were consolidated and, after an eight-day jury trial, the jury awarded the employee $3 million in compensatory damages on the retaliation claim only. The defendant university appeals. We hold that, to prove a claim of retaliation for engaging in protected activity, the plaintiff was required to present material evidence to the jury that the decisionmaker, his supervisor at the university, was aware of the plaintiff’s protected activity when she took the adverse job actions against the plaintiff. The plaintiff employee presented no material evidence at trial of such knowledge by his supervisor at the relevant time. Accordingly, we reverse the trial court’s judgment and remand for entry of an order dismissing the plaintiff employee’s complaint.
 

I respectfully disagree with the majority’s conclusion that the numerous deficiencies in counsel’s performance failed to prejudice the Petitioner cumulatively in his right to a fair proceeding and failed to call into question the reliability of the jury’s verdict. I agree with the majority’s conclusions regarding counsel’s deficiencies except its conclusion that counsel were not deficient in their pretrial investigation and trial preparation. The majority concludes that because the trial began one year and seven months after the Petitioner was indicted, counsel “would not have had time or resources to conduct the investigation performed by post-conviction counsel after the trial.” Although the majority is correct in noting the length of time it took for all the relevant witnesses to be found and presented at the post-conviction hearing, I simply cannot agree that counsel did not have adequate time to investigate and prepare for the trial.

This appeal concerns whether Tennessee courts may exercise personal jurisdiction over an Indonesian cigarette manufacturer whose cigarettes were sold in Tennessee through the marketing efforts of a Florida entrepreneur who purchased the cigarettes from an independent foreign distributor. From 2000 to 2002, over eleven million of the Indonesian manufacturer’s cigarettes were sold in Tennessee. After the manufacturer withdrew its cigarettes from the United States market, the State of Tennessee filed suit against the manufacturer in the Chancery Court for Davidson County,alleging that the manufacturer had failed to pay into the Tobacco Manufacturers’ Escrow Fund as required by Tenn. Code Ann. §§ 47-31-101 to -103 (2001 & Supp. 2012). The parties filed cross-motions for summary judgment, and the trial court dismissed the suit for lack of personal jurisdiction over the Indonesian manufacturer. The Court of Appeals reversed, granted the State’s motion for summary judgment, and remanded the case to the trial court to determine the applicable fines. State ex rel. Cooper v. NV Sumatra Tobacco Trading Co., No. M2010-01955-COA-R3-CV, 2011 WL 2571851 (Tenn. Ct. App. June 28, 2011). We find that, under the Due Process Clause of the Fourteenth Amendment, Tennessee courts lack personal jurisdiction over the Indonesian manufacturer. We therefore reverse the decision of the Court of Appeals and dismiss the case for lack of personal jurisdiction pursuant to Tenn. R. Civ. P. 12.02(2).

This appeal concerns Mother’s reservation of a life estate in property she conveyed to Son pursuant to a warranty deed. After the initial conveyance in 1983, Son resided on the property for years before renting the property to others. Mother prohibited the use of the property by certain tenants, who complied with her demand to vacate. In 2008, Mother objected to the current tenant’s occupation and filed suit to enforce her right to possession of the property. The trial court dismissed the suit, finding that the claim was barred by a ten-year statute of limitations. Mother appeals. We reverse the grant of summary judgment and remand for proceedings consistent with this opinion.

The petitioner, Philander Butler, appeals the summary dismissal of his petition for the writ of error coram nobis which challenged his 1989 and 1990 guilty pleas to sale of a controlled substance, possession of a controlled substance with intent to sell, and attempted possession of a controlled substance with the intent to sell. The trial court dismissed the petition on grounds: (1) that it was filed outside the applicable statute of limitation; and (2) that the petition failed to state a cognizable claim. On appeal, he contends that the dismissal was erroneous. The petitioner also contends that the court erred in summarily dismissing his “Motion to Alter or Amend Judgment Pursuant to Rule 59.04 and Motion to Set Aside Judgment Pursuant to Rule 60.02(2)-(3).” Following review of the record we discern no error and affirm the dismissal of the petition and motion.

A Shelby County Criminal Court Jury convicted the appellant, Curtis Stanton, of the first degree premeditated murder of the victim, Regina Tidwell. The trial court sentenced the appellant to life imprisonment in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence sustaining his conviction. Upon review, we affirm the judgment of the trial court.

Appellant, Danny Ray Dunn, entered guilty pleas without recommended sentences to four counts of vehicular assault, one count of reckless aggravated assault, one count of driving under the influence, one count of driving on a revoked license, and one count of violation of the financial responsibility law. Following a sentencing hearing, the trial court sentenced him to an effective twenty-year sentence consisting of five consecutive sentences of four years each for the assaultive offenses; eleven months, twenty-nine days for driving under the influence; six months for driving on a revoked license; and thirty days for violation of the financial responsibility law, to be served in the Tennessee Department of Correction. Appellant challenges the length of his sentences, sentence alignment, denial of a suspended sentence, and denial of his motion to withdraw his guilty plea. Upon our review of the record, we affirm the judgments of the trial court.

The dispositive issue in this land use appeal highlights important legal distinctions between when a local governmental body is functioning in a legislative capacity or an administrative capacity, and what can go wrong when the governmental body fails to conduct its meetings pursuant to the proper legal standards. When the local governmental body is enacting laws, such as zoning ordinances, it is functioning in a legislative capacity; however, when the governmental body is implementing existing zoning ordinances it is functioning as an administrative body or board. In this case the Council of the Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro Council”) was functioning as an administrative board, not in a legislative capacity, when it disapproved an application for the location of a waste transfer station located on property zoned “industrial restrictive.” When the application was disapproved, the applicant filed a petition for common law writ of certiorari seeking to set aside the disapproval on the ground that it was illegal, arbitrary, fraudulent, and/or capricious because the Metro Council failed to comply with the requirements of Metropolitan Code § 17.40.280 by making a decision for the sole reason that local residents opposed the station, and not because the proposed use was “consistent or not consistent” with the requirements of Metro Code § 17.16. The trial court dismissed the petition and this appeal followed. Under the common law writ of certiorari standard, our review of the Metro Council’s administrative decision is limited to determining whether the decision is clearly illegal, arbitrary, or capricious. An administrative decision that is not supportedby substantial and material evidence is, by definition, arbitrary and capricious.This record is devoid of any substantial or material evidence to support the decision to disapprove the location for a waste transfer station; accordingly, the decision was arbitrary. We, therefore, reverse the trial court’s dismissal of the common law petition for writ of certiorari and remand with instructions to set aside the Metro Council’s disapproval of the location and to order that the application for a special exception be submitted to the Board of Zoning Appeals for its consideration pursuant to Metro Code § 17.40.280.

A Davidson County jury convicted the Defendant, Stephen Bartholomew Gillard, of possession of a controlled substance, third offense. On appeal, the Defendant challenges the prior conviction evidence introduced at trial to support the third offense classification for possession of a controlled substance. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

The Petitioner, Ira Minnifee, Jr., appeals the denial of post-conviction relief by the Criminal Court for Knox County. He originally entered guilty pleas to one count of possession of more than one gram of cocaine with the intent to sell within a thousand feet of a school and six counts of half a gram of cocaine or more within a thousand feet of a school, all Class A felonies. Pursuant to the plea agreement, he received an effective sentence of twenty years. In this appeal, the Petitioner contends that he received ineffective assistance of counsel due to counsel’s failure to adequately investigate his case. Consequently, the Petitioner claims he did not enter a knowing and voluntary guilty plea. Upon review, we affirm the judgment of the trial court.

A Lincoln County jury convicted petitioner, Shawn Simmons, of first degree murder. After an unsuccessful direct appeal, petitioner filed a petition for post-conviction relief alleging that he received ineffective assistance of counsel. The post-conviction court denied relief, and petitioner now appeals. Upon review, we discern no error and affirm the judgment of the post-conviction court.

The Defendant-Appellant, Dustin Swaney, entered a plea of guilty to abuse of a child under the age of eight, a Class D felony, with the court to determine the length and manner of service of sentence. After a sentencing hearing, Swaney was sentenced to three years and six months’ confinement. The sole issue presented for our review is whether the trial court abused its discretion in imposing sentence. Upon review, we affirm the judgment of the trial court.

The appellant, Deon Marquett Boykins, pled guilty to two counts of introducing contraband into a penal institution and one count of possessing a Schedule II controlled substance with intent to deliver. He was sentenced as a Range I, standard offender to an effective five years on probation. On appeal, the appellant contends that the trial court erred by denying his request for judicial diversion. Based upon the record and the parties’ briefs, we reverse the judgment of the trial court and remand the case for a new sentencing hearing.

Petitioner, Derrick Lemon Goode, was convicted by a Bedford County jury of one count of the sale of .5 grams of cocaine and one count of the delivery of .5 grams or more of cocaine. State v. Derrick Lemon Goode, No. M2009-02259-CCA-R3-CD, 2010 WL 4674298, at *1 (Tenn. Crim. App., at Nashville, Nov. 17, 2010), perm. app. denied (Tenn. Apr. 13, 2011). After the merger of the convictions, Petitioner was sentenced to twelve years. He was unsuccessful on appeal. Id. Petitioner subsequently filed a petition for post-conviction relief alleging that he was afforded ineffective assistance of counsel. After conducting a hearing, the post-conviction court denied the petition. On appeal, Petitioner alleges that he received ineffective assistance of counsel because trial counsel failed to adequately prepare for trial; failed to adequately prepare, interview and call witnesses for trial; and failed to properly investigate his addiction. After a thorough review of the record, we conclude that Petitioner has not proven either that trial counsel’s representation was deficient, or that Petitioner was prejudiced by trial counsel’s representation. Therefore, we affirm the post-conviction court’s denial of the petition.

In a joint trial, the Appellants, Alexis Mason and Terrence Harris, were convicted of various offenses by a Shelby County jury. Appellant Mason was found guilty of one count of second degree murder, a Class A felony, and three counts of aggravated assault, a Class C felony, for which she received an effective sentence of thirty-seven years in the Department of Correction. Appellant Harris was convicted of three counts of facilitation of aggravated assault, a Class D felony, and one count of facilitation of criminally negligent homicide, a Class A misdemeanor, for which he received an effective sentence of twelve years, eleven months, and twenty-nine days in the Department of Correction. In this consolidated appeal, both Appellants challenge the sufficiency of the evidence supporting their convictions and the sentences imposed by the trial court. Appellant Harris additionally argues that the trial court erred in the following evidentiary rulings: admission of various out-of-court statements; admission of an autopsy photograph; exclusion of evidence of the deceased victim’s violent character; and the denial of jury instructions on self-defense and lesser included offenses. Finding no reversible error, we affirm the judgments of the trial court.

This case concerns the liability for a collision involving a vehicle operated by one of the appellees and an ambulance operated by the appellant county. After a bench trial, the trial court awarded damages to appellee driver against the appellant. After a thorough review of the record, we reverse and remand.

Mother’s parental rights to three children were terminated based on her abandonment, failure to comply with family permanency plans the Department of Children’s Services developed, and persistence of the conditions that required removal of the children initially. Mother appealed, and we affirm the trial court’s judgment. The trial court’s findings are supported by clear and convincing evidence.

The Petitioner, Charles Rice, appeals from the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. A Shelby County jury convicted the Petitioner of premeditated first degree murder and felony murder and imposed a sentence of death. The Tennessee Supreme Court affirmed the Petitioner’s convictions and sentence on direct appeal. See State v. Rice, 184 S.W.3d 646 (Tenn. 2006). On appeal, the Petitioner challenges the effectiveness of his counsel’s representation in both the guilt and penalty phases of the trial. We hold that the post-conviction court properly found that the Petitioner received effective assistance of counsel at trial. The judgment of the post-conviction court is affirmed.

A Dickson County grand jury returned an indictment charging the defendant with especially aggravated burglary, especially aggravated kidnapping, first degree premeditated murder, and first degree felony murder. Later the same day, the grand jury returned a superseding indictment re-charging the defendant and her husband with the same offenses, but adding a charge of criminal conspiracy as to each. The prosecution subsequently granted immunity to the defendant’s step-daughter and issued a subpoena for her appearance, and the grand jury reconvened to hear her testimony. The defendant filed a motion to quash the subpoena, arguing that the purpose of the testimony was to improperly acquire evidence to support the pending charges against her. The trial court denied the motion to quash. After the defendant’s step-daughter testified before the grand jury, a second superseding indictment was issued charging all offenses in the first indictment and adding a charge of accessory after the fact against the defendant’s husband. The defendant then filed motions to suppress any testimony by the defendant’s step-daughter at trial and to dismiss all pending indictments. The trial court denied each motion. At the conclusion of the trial, the jury found the defendant guilty of aggravated burglary, especially aggravated kidnapping, attempted first degree premeditated murder, and first degree felony murder. After merging the convictions for attempted premeditated murder and felony murder, the trial court imposed a life sentence for the murder and concurrent sentences of twenty-five and six years, respectively, for the especially aggravated kidnapping and the aggravated burglary. On appeal, the defendant claimed that the trial court should have dismissed the charges because of prosecutorial abuse of the grand jury process. The Court of Criminal Appeals disagreed and affirmed the judgment of the trial court. We affirm the judgment of the Court of Criminal Appeals.

Insurance Company provided Trucking Company with a general liability insurance policy that included the MCS-90 endorsement required by the Motor Carrier Act of 1980. A woman who was a passenger in the insured’s tractor made a claim against Insurance Company for injuries she sustained after the tractor turned over. Insurance Company paid the woman’s claim even though she had not filed a complaint or obtained a judgment against Trucking Company/Insured. Insurance Company then filed a complaint against Trucking Company seeking reimbursement for the amount it paid out. Trial court awarded Insurance Company reimbursement. We reverse because no judgment had been obtained against Trucking Company when Insurance Company paid the woman’s claim. The MCS-90 endorsement is not triggered unless an injured member of the public recovers a final judgment against a motor carrier/insured. Therefore, Insurance Company had no right of reimbursement.
 

The Defendant-Appellant, Taiwan S. Hoosier, entered a guilty plea to three counts of aggravated assault, Class C felonies, in the Montgomery County Circuit Court. He was sentenced to five years each on two counts and six years on the third. The trial court ordered these sentences to be served consecutively, for an effective sentence of sixteen years in the Tennessee Department of Correction. On appeal, Hoosier claims the trial court erred in imposing a consecutive sentence. Upon review, we affirm the judgments of the trial court.

A Hardeman County jury convicted appellant, Jason Allen Cobb, of second degree murder. The trial court sentenced him to twenty-three years in the Tennessee Department of Correction. On appeal, appellant contends that (1) the trial court erred in admitting improper character evidence; (2) a witness’s false testimony violated his right to a fair trial; (3) the State engaged in prosecutorial misconduct; (4) the evidence was insufficient to support his conviction; and (5) the trial court erred in ordering him to serve his sentence in this case consecutively to his sentence in another case. Upon review of the record, the parties’ briefs, and applicable law, we affirm the judgment of the trial court.