APPELLATE COURT OPINIONS

The petitioner, Terry Jones, pleaded guilty to possession with the intent to sell more than twenty-six grams of cocaine, a Class B felony, and received a sentence of ten years in the Tennessee Department of Correction and a $2,000 fine. He filed a petition for post-conviction relief alleging the ineffective assistance of counsel. The post-conviction court denied relief, and the petitioner appeals the post-conviction court’s denial of relief. After a thorough review, we affirm the judgment of the post-conviction court.

This is an appeal from the circuit court’s dismissal of an appeal from the general sessions court. The appellee purchased property during a foreclosure sale. The appellee purchaser filed an action in general sessions court to gain possession of the property from the defendant/appellant and recover rent. After an adverse judgment in the general sessions court, the  defendant/appellant appealed to the circuit court. The circuit court found that the defendant/appellant failed to perfect her appeal because she did not file a cost bond or make bond for one year’s rent and costs. Consequently, the circuit court dismissed the appeal from general sessions court. The defendant/appellant appeals to this Court. We affirm based on failure to file a cost bond.

The trial court granted the wife a divorce on the ground of inappropriate marital conduct, and divided the marital property, awarding the marital home to the wife and a nearby piece of unencumbered business property to the husband. The court also made the husband responsible for 60% of the mortgage obligation on the marital home and allowed the wife to retain her entire 401(k) retirement account. The husband contends on appeal that the division of property and debt was inequitable and that the trial court impermissibly awarded the wife her 401(k) account in the form of alimony in solido. We affirm the division of marital property and marital debt. We also find that there was no alimony award, because the final order in this case, signed by the judge, treats the 401(k) as part of the division of marital property rather than as alimony. However, it appears to us that the trial court made some calculating errors when it ordered the husband to pay specific monthly amounts on the home mortgage. We therefore vacate that portion of the court’s order and remand this case to the trial court so that it may correct those calculations.

The Petitioner, Darrell Lamar Fritts, appeals as of right from the Johnson County Criminal Court’s summary dismissal of his petition for a writ of habeas corpus challenging his sentences for two counts of burglary. Following our review, we affirm the judgment of the habeas corpus court.

The defendant, Zachary Harrison, appeals the order of the trial court revoking his probation and ordering that he serve the balance of his sentence in confinement. He argues that the trial court should have instead reinstated his probation because he made a genuine effort to comply with the rules of his probation and his violations were due to factors beyond his control. Following our review, we affirm the judgment of the trial court. However, we remand for entry of corrected judgments to reflect that the defendant pled guilty to Count 4 of the indictment, rather than Count 2, and that Count 2 was dismissed.

Mountain Valley Properties, Inc. (“Plaintiff”) sued The River Preserve Owners’ Association, Inc., Richard J. Prichard, Pamela L. Prichard, Joseph E. Scott, and Paula A. Scott (“Defendants”) with regard to disputes concerning a tract of land owned by Plaintiff located in a residential development situated on Chickamauga Lake in Hamilton County, Tennessee. Both Plaintiff and Defendants filed motions for summary judgment. After a hearing, the Trial Court entered its order denying Plaintiff’s motion for summary judgment and granting Defendants’ motions for summary judgment after finding and holding, inter alia, that Plaintiff does not have standing to contest the building of a community parking area on land not owned by Plaintiff; that Plaintiff does not have the right to close off an existing drive to other land owners in the community; and that Plaintiff should not be allowed to produce additional evidence after the hearing on the motions for summary  judgment. Plaintiff appeals to this Court. We affirm.

In August 2002, the Petitioner, Ortega Wiltz, was convicted by a jury of two counts of facilitation of especially aggravated kidnapping. He later filed a petition for habeas corpus relief in the Johnson County Circuit Court, contending that his convictions were void due to his illegal arrest based upon information from an unreliable informant and due to a violation of his due process rights because he was denied a preliminary hearing. The habeas corpus court summarily dismissed the petition, finding that the Petitioner had failed to state a cognizable claim for relief. After our review of the record, we agree and affirm the order summarily dismissing the petition.

The landlord and owner of a house filed a detainer warrant in general sessions court to regain possession of his house after notifying the tenants they should look for another place to live. In the warrant the landlord asked for possession, rents due, and reimbursement for any damages to the property. The general sessions court awarded the landlord possession only. The tenants filed a petition for writ of certiorari and supersedeas with the circuit court, claiming they had not received sufficient notice as required by statute and should therefore be permitted to remain in the house. The circuit court held a trial de novo on the issue of notice and granted the landlord a directed verdict on this issue. The tenants filed three motions asking the circuit court judge to recuse himself, and the judge denied them. The tenants appealed the court’s award of possession to the landlord and the trial judge’s refusal to recuse himself. Following the tenants’ appeal, the landlord filed a post-trial motion seeking an award of back rent and reimbursement for damages the  tenants had caused the house to suffer. Following a hearing, the trial court awarded the landlord $14,865 in back rent and damages. The tenants filed a second Notice of Appeal and argued their first Notice of Appeal divested the trial court of jurisdiction to hear the landlord’s post-trial motion. We affirm the trial court in all respects. We first determine we do not have jurisdiction to rule on the issue of notice because the tenants have vacated the house and do not wish to return, rendering that issue moot. The trial judge did not abuse its discretion in refusing to recuse himself because the tenants’ motions seeking his recusal were primarily based on the court’s adverse rulings against them. Finally, we determine the trial court retained jurisdiction to hear the landlord’s post-trial motions for back rent and damages because these issues were properly before the trial court and were unadjudicated issues when the tenants filed their first Notice of Appeal.

A Williamson County grand jury indicted the Defendant, Ashlee V. Dobbs, on five counts of fraudulent use of a credit card and one count of theft over $500. A bench trial was conducted, and, at the conclusion of the State’s proof, the Defendant filed a motion to dismiss the charges for failure to establish venue. The trial court dismissed four of the counts for failure to establish venue, found the Defendant not guilty of one count, and dismissed the final count by agreement of the parties. The State appeals, contending that the trial court erred when it dismissed four of the counts for lack of venue. After a thorough review of the record and applicable law, we conclude that the trial court properly dismissed two counts for failure of proof of venue but erred when it  dismissed the remaining two counts for the same reason. As such, we affirm in part and reverse in part the trial court’s judgments, and we remand for further proceedings.

The Defendant, Samuel Alan Ireson, was convicted by a Sullivan County jury of voluntary manslaughter, fabrication of evidence, and employment of a firearm during the commission of a dangerous felony. The trial court sentenced the Defendant as a Range I, standard offender to consecutive terms of five years for the voluntary manslaughter conviction, five years for the fabrication of evidence conviction, and six years for the firearm conviction, resulting in an effective sentence of sixteen years in the Department of Correction. On appeal, the Defendant challenges the sufficiency of the evidence supporting his convictions and several sentencing determinations made by the trial court—the length of his sentences for voluntary manslaughter and fabrication of evidence, the consecutive nature of his fabrication of evidence sentence, and the denial of judicial diversion. Following our review, we affirm the judgments of the trial court.

The plaintiff financial services company filed actions in the General Sessions Court against defendants alleging they had defaulted on promissory notes. The court entered judgments for the plaintiff on both notes, including attorney fees. After making installment payments on the judgments for well over a year, the defendants filed a Rule 60 motion in the same court to set the judgments aside, accompanied by affidavits alleging that their signatures on the notes were forgeries. The court overruled the motion because it was filed more than ten days after the challenged judgments were entered and thus was not timely in accordance with Tenn. Code Ann. § 16-15-727(b). The defendants then appealed to the Circuit Court, which dismissed the appeal on the ground of lack of jurisdiction because of the untimeliness of the defendants’ filing in the court below. We affirm the Circuit Court.

The Defendant, Derrick Sloan Taylor, was convicted by a Davidson County Criminal Court jury of felony murder, second degree murder, and especially aggravated robbery, a Class A felony. See T.C.A. §§ 39-13-202 (Supp. 2007), 39-13-210 (2010), 39-13-403 (2010). The trial court merged the convictions for felony murder and second degree murder and sentenced the Defendant as a Range III, multiple offender to life for felony murder and to forty years’ confinement for especially aggravated robbery, to be served concurrently with each other and consecutively to the Defendant’s sentence in another case. On appeal, he contends that the evidence was insufficient to support his convictions and that the trial court erred by admitting evidence of prior bad acts. We affirm the judgments of the trial court.

In this direct appeal of a judicial disciplinary proceeding, we are asked to review the Court of the Judiciary’s decision that Cocke County General Sessions Court Judge John A. Bell violated various canons of the Tennessee Code of Judicial Conduct, resulting in sanctions that included a ninety-day suspension. The Court of the Judiciary found that Judge Bell violated the Code by taking nine months to decide the complainant’s personal injury action, re-hearing the case without disclosing to a new party that he had previously made findings against the new party as to liability and damages, and contacting through an attorney the self-represented complainant while the complainant’s case was still pending before him in General Sessions Court. We affirm the code violations with respect to the delay and the ex parte communication and affirm the sanctions.

Father appeals the trial court’s order granting Mother’s petition that she be named the primary residential parent of their one child. Father was named the primary residential parent when the parties were divorced, and Mother was granted liberal parenting time with the child. Father filed three separate petitions during the following three years seeking to modify and limit Mother’s time with the child. However, Father was unable to prove any of his allegations against Mother, leading the court to deny each of his petitions. In response to his final petition to modify, Mother filed a counter petition asking to be named the primary residential parent. The trial court granted Mother’s petition, finding that Father’s petitions seeking to limit Mother’s time with the child and his failure to investigate the allegations in his petitions intentionally interfered in the child’s relationship with her mother, constituting a material change in circumstances unanticipated at the time the permanent parenting plan was established. Father contends the trial court was precluded by res judicata and collateral estoppel from finding his earlier petitions were frivolous and filed without adequate investigation, and that the court erred in relying on these findings to change the primary residential parent from Father to Mother. We affirm the trial court’s judgment and grant Mother her attorney’s fees incurred at trial and this appeal. We remand this case to the trial court to determine Mother’s reasonable attorney’s fees.

A Humboldt Law Court jury convicted the defendant, Brandon M. Cartwright, of first degree murder committed in the perpetration of a robbery, see T.C.A. § 39-13-202(a)(2)(2006), and especially aggravated robbery, see id. §39-13-403. On appeal, the defendant argues that the trial court erred by admitting hearsay evidence and that he was denied his right to a jury of his peers because members of his race were underrepresented in the venire due to their systematic exclusion. Discerning no infirmity in the convictions, we affirm the judgments of the trial court.

The Metropolitan Nashville Board of Zoning Appeals refused to grant a special exception permit to allow a Nashville businessman to operate a Historic Home Events business in a residential neighborhood. The Board stated that its decision was based on the businessman’s history of non-compliance with the conditions it had imposed on earlier permit grants and renewals. The businessman filed a petition for writ of certiorari in the Circuit Court of Davidson County. After a hearing, the court found that four of the BZA members had acted out of ulterior motives, i.e.,their displeasure and frustration with the applicant, and it granted the requested permit, subject to a number of restrictions. We hold that the BZA may take into consideration prior activity at the location in the context of the impact of those activities on the public health, safety, and welfare. Because herein the BZA did not relate any specific prior conduct to a public harm and because most of the activities discussed at the hearing had occurred prior to previous permit grants and renewals, we conclude that the denial was arbitrary. Accordingly, we affirm the trial court.

The Defendant, Roger Eugene Daly, was indicted for first degree murder during the perpetration of a theft, first degree premeditated murder, especially aggravated robbery, aggravated arson, and abuse of a corpse. A jury convicted him of first degree murder in the perpetration of a theft, first degree premeditated murder, aggravated robbery, a Class B felony,  setting fire to personal property or land, a Class E felony, and abuse of a corpse, a Class E felony. See Tenn. Code Ann. §§ 39-13-202, -13-402(b), -14-303(b), -17-312(b) (1997). The trial court merged the two murder convictions and sentenced the Defendant to life imprisonment. For his other convictions, the Defendant was sentenced as a Range II, multiple offender to sixteen years for aggravated robbery, eight years for setting fire to personal property, and four years for abuse of a corpse. The trial court ordered that the setting fire to personal property and abuse of a corpse sentences run concurrently with each other but consecutive to the Defendant’s life sentence, for a total effective sentence of life plus eight years. In this direct appeal, the Defendant raises the following issues for our review: (1) The State presented insufficient evidence to support his convictions for first degree murder in perpetration of a theft, first degree premeditated murder, aggravated robbery, setting fire to personal property, and abuse of a corpse; (2) The trial court erred in failing to require the State to elect or specify the object of the theft with regard to the first degree murder in perpetration of a theft count and the aggravated robbery count; (3) The State failed to prove an underlying felony to support the Defendant’s “felony murder” conviction; (4) The trial court erred in failing to grant a mistrial when a detective testified that the Defendant had a criminal history; (5) The trial court erred when it allowed a photograph of the victim’s charred body into evidence; and (6) The trial court erred when it allowed testimony regarding an assault on a witness by the Defendant’s brother. During our review, we discovered that, for count four, the trial court erroneously entered a judgment reflecting the offense of arson, a Class C felony, and the corresponding statute section, rather than the offense of setting fire to personal property or land, a Class E felony. On that count, the trial court sentenced the Defendant within the range for a Class C felony. Thus, on count four, we must remand to the trial court for the entry of a corrected judgment and for resentencing within the range for a Class E felony. In all other respects, we affirm the judgments of the trial court.

The Petitioner, Eddie Williams, Jr., appeals the Criminal Court of Shelby County’s dismissal of his pro se petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the post-conviction court’s order 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 post-conviction court.

Following a jury trial, the Petitioner, Charles Nash, was convicted of first degree murder and especially aggravated robbery. This Court affirmed his convictions on direct appeal. See State v. Charles Nash, No. E2008-00951-CCA-R3-CD, 2009 WL 2461178 (Tenn. Crim. App., Knoxville, Aug. 12, 2009), perm. to appeal denied, (Tenn. Mar. 1, 2010). The Petitioner filed a timely petition for post-conviction relief, however, the post-conviction court summarily dismissed it without conducting an evidentiary hearing. In this appeal, the Petitioner contends that he presented colorable claims in his petition and that the post-conviction court erred when it dismissed his petition without an evidentiary hearing. TheState concedes that the trial court erred. We agree and remand to the post-conviction court for proceedings consistent with the Post-Conviction Procedure Act.

I cannot concur in the majority’s decision – as stated by it – “that Ready Mix was required to exhaust the administrative remedies provided by statute and the ordinance by appealing the zoning official’s stop work order to the Board of Zoning Appeals.” The majority relies heavily upon our decision in State ex rel. Moore & Associates v. West, 246 S.W.3d 569 (Tenn. Ct. App. 2005). In Moore, the plaintiff alleged that the zoning administrator failed or refused to issue a certificate of compliance even though the developer had installed a Category B landscape buffer that complied with the requirements of the Metro ordinance, giving specifics as to the materials installed, their spacing, and the dimensions and nature of the buffer.  Id. at 576-77. The Moore plaintiff asked the court to declare that the buffer it had established in connection with its newly-constructed hotel “complied with the [buffer] requirements of the . . . Code [of the Metropolitan Government of Nashville and Davidson County].” Id. at 577.

This is a construction case. The plaintiffs hired the defendant construction company to build two residential houses. Disputes arose during construction over completion of the work and the plaintiffs did not make some payments to the construction company. After the plaintiffs terminated the contract, they sued the defendant construction company. The construction company filed a counter-complaint. After a trial, the trial court dismissed the plaintiffs’ complaint and the defendants’ counter-complaint. However, the trial court failed to issue written findings of fact and conclusions of law as required under Rule 52.01 of the Tennessee Rules of Civil Procedure. We vacate the trial court’s judgment and remand the cause to the trial court for written findings of fact and conclusions of law.

A Knox County Criminal Court jury convicted the appellant, Nile Bradley LaRue, of voluntary manslaughter. After a sentencing hearing, the trial court sentenced him to six years to be served as one year in jail and the remainder on probation. On appeal, the appellant contends that (1) the evidence is insufficient to support the conviction, (2) the trial court committed plain error by instructing the jury on the defense of protection of property, and (3) his six-year sentence is excessive and the trial court erred by denying his request for full probation. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

This appeal involves a claim under the Federal Employers’ Liability Act. The plaintiff employee filed this lawsuit against the defendant railroad alleging injuries caused by his employment. The railroad company filed a motion for summary judgment, asserting that the employee’s claims are time-barred. The railroad argued that, under the discovery rule, the facts showed that the employee knew or should have known that his injuries were work-related more than three years before the lawsuit was filed. The trial court denied the motion for summary judgment. The railroad was granted permission for this interlocutory appeal. We affirm.

Two municipalities sought to annex the same territory outside the urban growth boundaries for both municipalities set forth in the county’s growth plan. One municipality attempted to annex territory that was not within its urban growth boundary by proposing an amendment to the county growth plan and enacting an ordinance annexing the territory. A second municipality annexed the same territory by an annexation referendum pursuant to Tennessee Code Annotated sections 6-51-104 to -105 and 6-58-111(d)(2). We granted permission to appeal in this case to address the application of Tennessee Code Annotated sections 6-58-101 to -116 to these municipalities’ annexation efforts. After considering the related statutes, we hold that Tennessee Code Annotated section 6-58-111 requires an amendment to the county growth plan for a municipality to effect an annexation of territory beyond its urban growth boundary by ordinance. We reverse the judgment of the Court of Appeals and reinstate the chancery court’s order dismissing the case.

On February 16, 2010, the defendant, Michael D. Hawk, entered an open plea in case numbers S1000006 and S1000007 to three counts of burglary, Class D felonies; six counts of theft over $1,000, Class D felonies; eight counts of theft under $500, Class A misdemeanors; two counts of criminal trespass, Class C misdemeanors; and one count of vandalism under $500, a Class A  misdemeanor. The trial court imposed a total effective sentence of six years, to be served in the Tennessee Department of Correction as a Range I, standard offender. On appeal, the defendant argues that his sentence is excessive and disputes the denial of alternative sentencing. Following our review, we affirm the judgments of the trial court.