APPELLATE COURT OPINIONS

This case involves judicial review of the Tennessee Department of Commerce and Insurance’s denial of a staff leasing company license. The trial court reviewed the denial of the license under the common law writ of certiorari standard and upheld the decision. Finding that the denial was unsupported by substantial and material evidence, we vacate the decision of the trial court.

Petitioner, James Daniels, was convicted by a Cocke County jury of first degree murder and attempted second degree murder. He was sentenced to concurrent sentences of life in prison and twelve years, respectively. Petitioner’s convictions were affirmed on direct appeal and the supreme court denied permission to appeal. State v. James Wesley Daniels, No. E2006-01119-CCA-R3-CS, 2007 WL 2757636 (Tenn. Crim. App., at Knoxville, Sept. 24, 2007), perm. app. denied, (Tenn. Feb. 4, 2008). Subsequently, Petitioner sought post-conviction relief on the basis of ineffective assistance of counsel. After a hearing on the petition, the post-conviction court dismissed the petition for relief. Petitioner appeals. After a review, we determine that Petitioner has failed to present clear and convincing evidence that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

The petitioner, Young Bok Song (“Song”), a prisoner serving a 65-year sentence resulting from convictions for rape of a child and aggravated sexual battery, filed a petition for declaratory judgment, requesting that the Tennessee Department of Children’s Services (“DCS”) be directed to release to him copies of its investigative records from his criminal case. The trial court dismissed the petition on the grounds of sovereign immunity and failure to state a claim upon which relief can be granted. Song appeals. We affirm.

A Dyer County Circuit Court jury convicted the defendant, Leon Booker, of two counts of driving while his driver’s license was revoked, second or subsequent offense. See T.C.A. § 55-50-504. The trial court imposed concurrent sentences of 11 months and 29 days, to be served as six months’ incarceration followed by placement in a community corrections program. In this appeal, the defendant challenges the sufficiency of the convicting evidence. Finding no evidentiary insufficiency, we affirm.

The Defendant, Darryl Dewayne Bonds, pleaded guilty to one count of reckless aggravated assault, a Class D felony. See Tenn. Code Ann. § 39-13-102(a)(2). Sentencing was left to the discretion of the trial court. After conducting a sentencing hearing, the trial court sentenced the Defendant as a Range I, standard offender, to four years to be served in the Department of Correction. In this appeal, the Defendant contends that the trial court erred in setting the length of his sentence and by denying alternative sentencing. After our review, we affirm the judgment of the trial court.

Appellant, Terrence Shaw, was indicted by the Shelby County Grand Jury for reckless endangerment with a deadly weapon. After a jury trial, Appellant was found guilty of misdemeanor reckless endangerment, a lesser included offense. The trial court sentenced Appellant to six months and ordered Appellant to serve the sentence on probation. The trial court denied Appellant’s request for judicial diversion. On appeal, Appellant claims that the trial court improperly denied judicial diversion and that the evidence was insufficient to support the conviction. After a review of the record, we determine that the evidence was insufficient to support the conviction. Consequently, the judgment of the trial court is reversed, Appellant’s conviction is vacated, and the charge is dismissed. In the event of a further appeal, we determine that the trial court did not abuse its discretion by denying judicial diversion.

The trial court granted the wife a judgment of divorce after the husband failed to respond to requests for discovery and a motion to compel. After the judgment became final, the husband, who had been represented by counsel earlier in the proceedings, filed a pro se Rule 60 motion for relief, arguing that he was deprived of proper notice because the address on the certificates of service appended to each unanswered motion and notice was not accurate, with the result that he did not receive the motions and notices. The trial court denied the husband’s Rule 60 motion, but since husband’s address was incorrect on the certificates of service, we conclude the trial court erred and should have granted the husband relief from the parenting plan and child support provisions of the judgment. Accordingly, we reverse the trial court’s order as to those provisions and remand the case for further proceedings.

I concur with the majority’s decision; however, I would assess costs of this appeal against Mr. Obi (“Husband”), not Mrs. Obi (“Wife”), in that this appeal was a result of Husband’s omissions. Further, I write separately to state that I believe, upon proper application pursuant to Tenn. R. Civ. P. 37 by Wife on remand, the trial court may consider imposing monetary sanctions against Husband in the form of expenses and/or attorney fees.

The appellant sought a special exception to establish a waste transfer facility. The Metro Council, pursuant to its authority under the Metropolitan Code, disapproved of the proposed location. The appellant sought a writ of certiorari and the trial court dismissed the appeal. The appellant appealed to this court. We affirm the trial court.

In this employment contract dispute, the plaintiff seeks to recover a bonus from his former employer. He asserts the defendant breached the contract by failing to pay a bonus as provided in the employment agreement; alternatively, he asserts a claim for promissory fraud. The trial court summarily dismissed plaintiff’s breach of contract claim. Following a bench trial on the promissory fraud claim, the trial court ruled in favor of the defendant and ordered plaintiff to pay defendant $64,471.86 in attorney fees pursuant to the employment agreement. We affirm and remand with instructions that the defendants be awarded reasonable and necessary attorney fees incurred on appeal.

The pro se petitioner, Mack Transou, appeals the trial court’s denial of his petition for writ of certiorari or, in the alternative, petition for writ of error. After reviewing the record, the parties’ briefs, and the applicable law, we affirm the judgment of the trial court.

The co-defendants, Larry Alan Whited and William Henry Rutherford, appeal their resentencing, which resulted in their receiving effective sentences of forty-five years and twenty-seven years, respectively. Both defendants argue on appeal that the trial court misapplied enhancement factors, weighed the only applicable enhancement factor too heavily, and failed to apply an appropriate factor in mitigation. Following our review, we conclude that the trial court committed no error by not applying any factors in mitigation but that its use of the defendants’ juvenile adjudications and violations of probation to enhance the sentences violates the principles announced in Blakely v. Washington, 542 U.S. 296 (2004). Accordingly, we modify the defendants’ respective sentences for second degree murder to twenty-one years, one year beyond the presumptive midpoint of twenty years, and their sentences for reckless endangerment to one year and six months, six months beyond the presumptive minimum sentence of one year. In addition, we modify Whited’s aggravated assault sentences to four years, one year beyond the presumptive minimum sentence of three years. This case is, therefore, remanded to the trial court for entry of modified sentences in accordance with this opinion.

This lawsuit was filed by the decedent’s daughter against other family members alleging undue influence, conversion, breach of fiduciary duty, and civil conspiracy. After the decedent suffered a stroke, the family members, as attorney in fact and signatory on the decedent’s bank accounts, made gifts from the decedent’s assets to  themselves and to other family members. After the decedent died, the plaintiff daughter filed this lawsuit, alleging that the defendant family members wrongfully depleted the decedent’s assets during her lifetime so as to deprive the plaintiff of her specific bequest in the decedent’s will. The defendants filed a motion for partial summary judgment on various grounds. The trial court granted in part and denied in part the defendants’ motion finding, inter alia, that the plaintiff did not submit evidence to support several of her claims, and that several claims were barred by the statute of limitations. The Plaintiff now appeals. On appeal, we apply the Tennessee Supreme court’s revised analytical framework for summary judgment motions, requiring the defendant movants to either conclusively establish facts supporting an affirmative defense or negate an essential element of the plaintiff’s claim. Applying this standard, we affirm in part, reverse in part, and remand.

This is a post-divorce case where both parties sought to modify the existing custody arrangement. At the time of the divorce, the parties agreed to equal co-parenting time. Upon the mother’s request for modification, the court designated her as the primary residential parent and awarded the father standard co-parenting time. The trial court also ordered the father to pay child support and certain outstanding expenses incurred by the mother toward the child’s care. Further, the mother was awarded her attorney fees. In the initial appeal, we found that a material change in circumstances had not been proven. Accordingly, we reversed the trial court’s modification of the original custody arrangement and reinstated the initial permanent parenting plan. We also vacated the trial court’s order as to child support, the payment by the father of expenses incurred by the mother, and the award of attorney fees to the mother, and remanded the case to the trial court for further proceedings. The matter was reheard, with the parties stipulating that there has been a material and substantial change in circumstances. The trial court again named the mother primary residential parent, with the father having co-parenting time every other weekend and on an alternating two-week schedule in the summer. The father appeals. We hold that the evidence does not preponderate against the trial court’s findings. The judgment of the trial court is affirmed.

This is an appeal from a grant of summary judgment to the defendant hospital in a medical malpractice wrongful death case. The trial court struck as untimely the materials filed by the plaintiff in opposition to the defendant’s motion for summary judgment. The responsive materials were filed less than five days before the date originally scheduled for a hearing on the defendant’s motion; however the hearing was continued for several months. Having struck the plaintiff’s filings, the court held that the motion negated violation of the standard of care and causation and granted the motion as unopposed. The plaintiff contends on appeal that the defendant did not negate either violation of the standard of care or causation; that the materials responsive to the motion should not have been stricken; and that, if the materials filed in opposition to the motion are considered, the plaintiff presented issues of material fact for trial. We vacate the trial court’s grant of summary judgment and remand for further proceedings.

The petitioner, Andrew Helton, appeals the habeas corpus court’s order summarily dismissing his pro se petition for writ of habeas corpus. Following our review of the record, the parties’ briefs, and applicable law, we affirm the court’s judgment.

A Campbell County jury convicted the Defendant, Shirley LaRhonda Gagne, of driving under the influence (“DUI”), third offense; driving on a suspended license, second offense; possession of drug paraphernalia; violation of the seatbelt law; and violation of the open container law. The trial court sentenced the Defendant to eleven months and twenty-nine days, with 130 days to be served in confinement and the remainder to be served on probation. On appeal, the Defendant contends that: (1) the trial court erred when it admitted into evidence testimony pertaining to a blood sample taken from her; and (2) the evidence is insufficient to support her conviction for DUI, third offense. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Primary residential parent appeals determination that the parties rotate the federal tax exemption for their minor child on a yearly basis. At the time the determination was made, the trial court had not determined the amount of child support to be paid by the alternate residential parent in accordance with the child support guidelines. We reverse the decision and remand for reconsideration of the award of the exemption.

assault by the use or display of a deadly weapon. After a bench trial, Appellant was convicted of the charge. Appellant was later sentenced to four years as a Range I, standard offender. He was ordered to serve the sentence on supervised probation and attend domestic violence counseling. On appeal, he argues that the evidence was insufficient to sustain the conviction. After a review of the record, we determine that the evidence was sufficient to support the conviction. Accordingly, the judgment of the trial court is affirmed.

Defendant, Brooke Lee Whitaker, was indicted for aggravated rape. Pursuant to a negotiated plea agreement, she was allowed to plead guilty to the lesser included offense of rape, with the trial court to determine the length of the sentence after a sentencing hearing. Defendant was sentenced to serve twelve years, and she appeals, arguing that the sentence is excessive.  We affirm the judgment of the trial court.

In this interlocutory appeal, the Appellants, Jesse Grant Craven, Tommy Davenport, and Greg Pope, appeal the Warren County Circuit Court’s order denying them relief from the prosecutor’s denial of each of their respective applications for pretrial diversion. After a thorough review of the record and relevant authorities, we conclude that the trial court properly affirmed the prosecutor’s denial of pretrial diversion. Accordingly, we affirm the judgments of the trial court.

The Defendant, Carl Lee Bright, was convicted by a Monroe County Criminal Court jury of driving under the influence (DUI), fourth offense, a Class E felony, and was sentenced as a Range I, standard offender to two years’ confinement. See T.C.A. § 55-10-401 (Supp. 2009) (amended 2010). On appeal, the Defendant contends that the trial court erred by (1) denying his motion to dismiss the case due to insufficient evidence, (2) denying his motion to suppress evidence, (3) denying his motion to dismiss the indictment or remand for a preliminary examination because his Sixth Amendment right to counsel had been violated, and (4) imposing confinement for the maximum allowable sentence. We affirm the judgment of the trial court.

The Petitioner, Assadot Starling, pled guilty in the Davidson County Criminal Court to possession of .5 grams or more of cocaine in a drug free zone with the intent to sell or deliver. He received a sentence of eight years in the Tennessee Department of Correction. Thereafter, he filed a petition for post-conviction relief, alleging that his counsel was ineffective and that his pleas were not knowingly and voluntarily entered. The postconviction court denied the petition, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

This appeal involves subject matter jurisdiction over a petition for a writ of certiorari. The petitioner is an inmate in the custody of the Tennessee Department of Correction. The respondent, the Tennessee Board of Probation and Parole, denied the inmate’s request for parole. The inmate thereafter filed a petition for a writ of certiorari in the chancery court challenging the Board’s decision as illegal, arbitrary, and fraudulent. The chancery court dismissed the case for lack of subject matter jurisdiction because the inmate did not file a verified, notarized petition within the sixty-day jurisdictional time limit. We affirm.

The trial court determined that the insuror of a bar was liable under its commercial general liability policy and liquor liability policy for injuries to a bar patron. We have concluded that this occurrence is excluded under the assault and battery exclusion of the commercial general liability policy but is covered by the liquor liability policy.