APPELLATE COURT OPINIONS

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.

The Defendant-Appellant, Joshua Maurice Hickman, appeals the revocation of his community corrections sentence. He pled guilty in the Criminal Court of Davidson County to possession with intent to sell a Schedule I controlled substance, a Class B felony. Hickman was originally sentenced as a multiple offender to twelve years in the Tennessee Department of Correction. Pursuant to the plea agreement, this sentence was suspended to twelve years on community corrections. On appeal, Hickman concedes that he violated the terms of the community corrections sentence. He argues, however, that the trial court abused its discretion by imposing his original sentence. Upon review, we affirm the judgment of the trial court.

A Davidson County jury convicted the Defendant, Julio Ramirez, of six counts of aggravated sexual battery, one count of rape of a child, and one count of assault, for crimes involving multiple victims, and the trial court sentenced him to an effective sentence of eighteen years of confinement. The trial court subsequently reduced this sentence to fifteen years following a motion for new trial hearing. On direct appeal from his convictions, the Defendant contends: (1) his trial counsel deprived him of the effective assistance of counsel by failing to move to sever the offenses with respect to the multiple victims; (2) he did not knowingly waive his right to be tried separately for the offenses and, as such, his joint trial for these offenses violated his rights to due process, a jury trial, and the effective assistance of counsel; (3) the evidence was insufficient to support his conviction for rape of a child; (4) the trial court improperly limited the defense’s cross-examination of the victims’ mother; (5) the trial court improperly limited the defense’s presentation of character testimony; (6) the State made improper remarks during closing argument; and (7) the trial court erroneously instructed the jury. After a thorough review of the record and applicable law, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Mother filed a petition in 2010 to modify child support set in a 2005 order and parenting plan on the basis of a substantial and material change of circumstances. The trial court dismissed the petition, holding that there was not a significant variance in the parties’ presumptive child support obligations in 2005 and 2010. Mother appeals, contending that the 2005 order and parenting plan are void because they relieved Father of his obligation to pay child support. Finding that the 2005 order fails to comply with Tenn. Code Ann. § 36-5-1-1(e)(1)(A) and Tenn. Comp. R. & Regs. Ch. 1240–2–4–.02(7), we reverse the judgment and remand the case for further proceedings.

Defendant, Robert A. Guerrero, was indicted by the Maury County Grand Jury on two counts of first degree murder, two counts of felony murder, nine counts of attempted first degree murder, and nine counts of aggravated assault. Following a jury trial, Defendant was convicted of two counts of first degree murder and nine counts of attempted first degree murder. Defendant was sentenced by the trial court to two consecutive life sentences and nine fifteen-year sentences, to run consecutive to the life sentences, for a total effective sentence of two life sentences plus 135 years. In this direct appeal, Defendant makes the following assignments of error: 1) the trial court erred by denying Defendant’s challenges for cause to three jurors; 2) the trial court erred by not allowing Defendant to conduct an individual voir dire of the prospective jurors regarding their media exposure to the case; 3) the trial court erred by not striking three jurors after they saw Defendant being escorted to the restroom by a courtroom deputy; 4) the trial court erred in allowing a witness for the State to remain in the courtroom in violation of Tennessee Rule of Evidence 615; 5) the trial court erred by allowing the testimony of an emergency room doctor who treated some of the victims; 6) the trial court erred by allowing two exhibits into evidence over Defendant’s objection as to the chain of custody; 7) the indictments charging attempted first degree murder, Counts 5 through 9, should have been dismissed for failing to provide Defendant adequate notice of the charge; 8) the trial court erred by instructing the jury on criminal responsibility; 9) the trial court erred by imposing consecutive sentencing; 10) the evidence was insufficient to support Defendant’s convictions. Following a careful review of the record on appeal, we affirm the judgments of the trial court.

The primary residential parent of the parties’ ten-year-old daughter requested permission to relocate to Colorado. The mother’s reason for the relocation was that she had married a man who was a military service member stationed in Colorado. The father opposed the move. The trial court denied the request after finding that the mother’s conduct surrounding the move constituted a material change in circumstances and that it was in the child’s best interest that the father become the primary residential parent. The mother appeals. At the time of the request to relocate, Mother was the primary residential parent and spent substantially more time with the child; thus, Tenn. Code Ann. § 36-6-108(d) applied. Finding that the trial court erred in failing to apply Tenn. Code Ann. § 36-6-108(d), we reverse the trial court’s judgment; grant Mother’s request to relocate to Colorado with the parties’ minor child; deny Father’s petition to change custody; and remand for the trial court to set Father’s visitation.

This is an appeal from the trial court’s grant of a hospital’s motion to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that plaintiff’s claim sounded in medical malpractice and dismissed plaintiff’s claim for failure to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act. Finding that Plaintiff’s complaint states claim for ordinary negligence and premises liability, we reverse the trial court and remand the case for further proceedings.

A Shelby County jury convicted the Petitioner, Dewayne Jones, of two counts of aggravated rape, and the trial court merged the convictions and sentenced him to twenty-two years as a Range I, violent offender. This Court affirmed the Petitioners convictions on direct appeal. The Petitioner filed a petition for post-conviction relief, which he later amended, and, after a hearing, the post-conviction court denied relief. The Petitioner now appeals, claiming the post-conviction court erred when it denied his petition for post-conviction relief because he received the ineffective assistance of counsel. After a thorough review of the record and relevant authorities, we conclude the post-conviction court properly dismissed the Petitioner’s petition for post-conviction relief. As such, we affirm its judgment.

The trial court dismissed this action, inter alia, for lack of subject matter jurisdiction. We dismiss this appeal for Appellant's failure to timely file the notice of appeal.

Following affirmance on direct appeal of his murder conviction and accompanying sentence of death, State v. Hugueley, 185 S.W.3d 356 (Tenn. 2006), the Petitioner, Stephen Lynn Hugueley, filed a pro se petition for post-conviction relief. The post-conviction court appointed the Office of the Post-Conviction Defender to represent the Petitioner. The Petitioner thereafter wrote the post-conviction court expressing his desire to withdraw his petition for post-conviction relief. A competency hearing was held in November 2008. On January 8, 2009, the post-conviction court found the Petitioner competent and entered an order dismissing the petition for post-conviction relief. A notice of appeal was filed on February 19, 2009. The Petitioner filed a motion to remand the matter to the post-conviction court. The motion was predicated upon the Petitioner’s desire to proceed with any and all available challenges to his conviction and sentence. This court entered an order concluding that the motion to remand shall be heard contemporaneously with arguments on the merits of the Petitioner’s Rule 3 appeal. On appeal to this court, the Petitioner presents a number of claims related to the lower court’s determination that he was competent to withdraw his petition for post-conviction relief, including the lower court’s denial of independent experts, medically appropriate experts, and sufficient time to prepare. Following a thorough and exhaustive review of the record and the applicable law, this court declines to expand the precedent established in Pike v. State and concludes that the Petitioner may not belatedly withdraw his decision to dismiss his petition for post-conviction relief. Additionally, this court concludes that the post-conviction court did not err in concluding that the Petitioner was competent to withdraw his motion. Accordingly, we affirm the judgment of the post-conviction court.

The appellant, Dane Shannon Briest, pled guilty in the Davidson County Criminal Court to theft of property valued one thousand dollars or more but less than ten thousand dollars, a Class D felony, and evading arrest, a Class A misdemeanor. He received concurrent sentences of six years, one month for the felony conviction and eleven months, twenty-nine days for the misdemeanor conviction to be served on probation. On appeal, the appellant contends that the trial court erred by revoking his probation. We affirm the judgment of the trial court.

Appellant, Ryan Watson, was indicted in June of 2009 by the Polk County Grand Jury for driving under the influence (“DUI”) of an intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system, or in the alternative, driving while the alcohol concentration in the defendant’s blood or breath was .08% or more. Prior to trial, Appellant filed a motion to suppress the following: (1) the search of his person and vehicle; (2) his statement at the time of the arrest; (3) the results of the blood alcohol test; and (4) the results of the field sobriety tests. After a hearing, the trial court denied the motions. Subsequently, Petitioner pled guilty to DUI, first offense and was sentenced to eleven months and twenty-nine days incarceration in the county jail. The trial court suspended the sentence, after service of forty-eight hours, and ordered Appellant to serve the sentence on probation. As a condition of the guilty plea, Appellant reserved a certified question of law pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure arguing that the trial court erred in denying the motion to suppress. After a thorough review of the record, we conclude that the evidence does not preponderate against the factual findings of the trial court that there was probable cause for the stop of Appellant’s vehicle. Therefore, we affirm the decision of the trial court.

The petitioner, Tony Hoover, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief. The petitioner entered open Alford pleas to two counts of rape and two counts of incest. Following a sentencing hearing, the trial court imposed an effective sentence of twenty-one years in the Department of Correction. On appeal, the petitioner contends that his pleas were not entered with an understanding of the nature and consequences of the pleas. He also contends that trial counsel provided ineffective assistance by failing to properly inform him of the terms and consequences of his guilty pleas and by advising him to waive his ex post facto rights and be sentenced pursuant to the 2005 amendments to the Sentencing Act. Following careful review of the record, we affirm the judgment of the post-conviction court.

A Davidson County Criminal Court Jury found the appellant, Junior P. Samuel, guilty of five counts of rape and one count of sexual battery by an authority figure. The trial court imposed a total effective sentence of thirty-two years in the Tennessee Department of Correction. On appeal, the appellant raises the following issues for review: (1) whether the trial court erred in denying the appellant’s motion for judgments of acquittal because of the State’s failure to establish venue; (2) whether the trial court erred in admitting a medical report containing statements the victim made to Phyllis Lynn Thompson in violation of the Confrontation Clause and the rule prohibiting hearsay statements; (3) whether the trial court erred in imposing consecutive sentencing; and (4) whether the cumulative errors at trial denied the appellant due process. Upon review, we affirm the judgments of the trial court.

The Shelby County Grand Jury indicted Appellant, Walter Williams, for one count of rape in connection with the rape of his thirteen-year-old daughter. A jury found Appellant guilty as charged. The trial court sentenced Appellant to eight years as a Range I, standard offender. Appellant appeals his conviction. He argues that: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in allowing testimony of an expert witness; (3) the trial court erred in allowing certain questions during the jury voir dire; and (4) the trial court erred in failing to give the missing witness jury instruction. After a thorough review of the record, we conclude that Appellant’s argument must fail. Therefore, the judgment of the trial court is affirmed.

The defendant, Randy K. Sanders, entered a plea of guilty to driving under the influence, first offense, a Class A misdemeanor, on July 2, 2010. The trial court sentenced him to eleven months, twenty-nine days in the county jail and suspended all but 120 days of the sentence. On appeal, the defendant argues that the trial court relied on an inappropriate enhancement factor in determining the period of confinement. Following our review, we affirm the judgment of the trial court.

This is an appeal of a divorce matter. We dismiss this appeal for Appellant's failure to appeal a final judgment.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee filed a Worker’s Compensation action on August 22, 2003 alleging a compensable injury in the course of his employment with his employer in December 1998. The employer filed a motion to dismiss for failure to prosecute under Tenn. R. Civ. P. 41.02. The trial court entered an order in September 2008, stating that the employer was withdrawing the motion to dismiss for failure to prosecute based upon the employee’s commitment to take a medical deposition within sixty days. A second motion to dismiss for failure to prosecute was filed and heard on March 15, 2010 because the medical deposition had not been taken. The trial court granted the motion with prejudice. The employee has appealed. We affirm the judgment.

The petitioner, Thomas Edward Kotewa, appeals the trial court’s denial of his petition for writ of error coram nobis. Following our review of the record, the parties’ briefs, and applicable law, we affirm the judgment of the trial court.

Amy B. (“Mother”) is the biological mother of the minor children, Aiden R. B. and Evan M. B. (“the Children”). The State of Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate Mother’s parental rights to the Children. Following a trial, the Juvenile Court for Sevier County (“the Trial Court”) found and held, inter alia, that clear and convincing evidence existed to terminate Mother’s parental rights to the Children on four grounds under Tenn. Code Ann. § 36-1-113(g)(1), (2), and (3) and that termination was in the Children’s best interest. Mother appeals the termination of her parental rights. We affirm.

This is a child support case. The juvenile court found, inter alia, the father owed a child support arrearage of $21,356.63. We affirm in part, vacate in part, and remand.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee filed a workers’ compensation action contending his injury while cutting trees at his employer’s home was in the usual course of his employment at his employer’s floor covering business. The trial court held that employee’s work was casual employment not in the usual course of his employer’s business as defined by TCA § 50-6-106(2) and not covered by the workers’ compensation statute. We affirm the judgment.