APPELLATE COURT OPINIONS

In this declaratory judgment action, the parties sought interpretation of a real estate purchase contract. The contract between the buyer and the seller provided for the assignment of all leases on the property and proration of rents to the buyer. The parties disputed whether these provisions contemplated a separate agreement between the seller and a third party. At the behest of the parties, the trial court construed both agreements and granted summary judgment to the buyer. On appeal, we raise, sua sponte, the question of whether all necessary parties were before the trial court pursuant to Tenn. Code Ann. § 29-14-107(a) and Tenn. R. Civ. P. 19. After concluding that all necessary parties were not included in this action, we vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.

This case arose over the construction of a home for plaintiffs. Plaintiffs sued the construction company and a bank and several individuals. The Trial Court resolved the issues as to defendants, except Mark Rodriguez, prior to trial. The plaintiffs' case against Rodriguez was tried by the Trial Court who directed a verdict at the end of plaintiffs' proof. Plaintiffs appealed to this Court. Plaintiffs insisted that material evidence established a violation of the Consumer Protection Act by defendant, and the directed verdict should be reversed. Upon review of the evidentiary record, we conclude that the Trial Judge properly directed a verdict in favor of the defendant, and we affirm the Trial Court's Judgment.

Following a jury trial, the Defendant, Elgene Porter aka “Twin,” was convicted of conspiracy to commit aggravated burglary, aggravated burglary, attempted aggravated robbery, aggravated rape, and two counts of aggravated kidnapping. For these convictions, he received an effective sentence of forty-two years at 100% in the Department of Correction. In this direct appeal, the Defendant contends that: (1) the trial court erred in denying his motion to suppress statements he made to police; (2) the trial court erred in failing to immediately remove a juror once a potential conflict was identified; (3) the trial court erred in setting the length of his sentences; and (4) the trial court erred in ordering partial consecutive sentences. After our review of the record and the applicable authorities, we affirm the judgments of the trial court.

This is a wrongful death action filed in the Tennessee Claims Commission (“the Commission”) by the parents and brother (“the Claimants”) of six month old Demitrus M. T. (“the Infant” or “Demitrus”), individually and on behalf of Demitrus, after he drowned in a bathtub while in the care of Sherika Hamilton, a friend of the family identified in a Tennessee Department of Child Services (“DCS” or “the Department”) safety plan as the “placement caretaker.” There is no dispute that Hamilton left the Infant unattended in the bathtub while she was otherwise occupied in an adjacent room. The primary disputes at trial before the Commissioner, and on appeal, are whether the Infant was in the “care, custody and control” of the Department so as to provide jurisdiction to the Commission; whether the Department’s “Case Recordings,” some of which were made more than a month after the event they purport to record, are inadmissible hearsay; and whether it was foreseeable to the Department that Hamilton would leave the helpless Infant unattended in a bathtub and let him drown. The Commission found that it had jurisdiction because the Department had control of the Infant even though it did not have custody, that the Case Recordings were admissible, and that the Department was not negligent because it could not have foreseen this tragic event. The Claimants appeal. We affirm in part, reverse in part, and vacate the dismissal on the merits.

A Maury County Circuit Court jury convicted the appellant, Calvin Demetrius Shaw, of simple possession of cocaine, a Class A misdemeanor. During a sentencing hearing, the trial court determined that the appellant had two prior convictions for simple possession and sentenced him to twenty months in confinement for simple possession as a Class E felony pursuant to Tennessee Code Annotated section 39-17-418(e). On appeal, the appellant contends that the trial court erred by sentencing him for a Class E felony when the jury found him guilty of a misdemeanor and that Tennessee Code Annotated section 39-17-418(e) is unconstitutional because it allows for enhanced punishment without prior notice. The State concedes that the trial court improperly sentenced the appellant for a Class E felony. We agree and conclude that the case should be remanded to the trial court for resentencing.

The petitioner, Terry D. Sneed, aggrieved of his convictions of aggravated robbery, aggravated kidnapping, aggravated rape, and two counts of aiding and abetting aggravated rape for which he received sentences totaling 124 years’ incarceration, filed a timely pro se petition for post-conviction relief. Following multiple appointments of counsel, amendments to the petition, and other procedural matters spanning over nine years, the post-conviction court denied relief after a full evidentiary hearing. On appeal, the petitioner contends that the post-conviction court erred by (1) denying his motion to sever his post-conviction hearing from that of his co-defendant, (2) denying his motion to continue the evidentiary hearing based upon the unavailability of two witnesses, and (3) denying relief for his claim of ineffective assistance of counsel based upon the single allegation that trial counsel failed to introduce evidence of a Federal Bureau of Investigation (FBI) laboratory report at trial. Discerning no error, we affirm the judgment of the post-conviction court.

The order from which the appellant Anna Marie Roller seeks to appeal was entered on Wednesday, December 15, 2010. A notice of appeal was filed by the appellant on Tuesday, January 18, 2011, the 34th day following the entry of the trial court’s order. Because the notice of appeal was not timely filed, we have no jurisdiction to consider this appeal. Accordingly, the motion of the appellee to dismiss is granted. This appeal is dismissed.

The Petitioner, James G. Watson, entered guilty pleas to theft, felony reckless endangerment, and two counts of aggravated assault in the Knox County Criminal Court. He subsequently filed a pro se petition for writ of habeas corpus in the Johnson County Criminal Court, which was summarily dismissed. On appeal, the Petitioner argues that he is entitled to habeas corpus relief because the probationary sentence he received for his theft conviction expired before the trial court revoked his probation. Upon review, we affirm the judgment dismissing the petition for writ of habeas corpus.

The order from which the appellant Donna Angela Ross seeks to appeal was entered on Monday, August 2, 2010. A notice of appeal was filed by the appellant on Friday, September 3, 2010, the 32nd day following the entry of the trial court’s order. Because the notice of appeal was not filed timely, we have no jurisdiction to consider this appeal. Accordingly, this appeal is dismissed.

This is a direct appeal from a guilty plea pursuant to Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure. The Defendant, James F. Mason, pleaded guilty to possession of methamphetamine with the intent to deliver. As part of his plea agreement, the Defendant attempted to reserve a certified question of law, challenging the trial court’s denial of his motion to suppress the evidence seized during the search of his residence. Because the Defendant has failed to properly certify his issue for review, the appeal is dismissed.

Following a jury trial, the Defendant, Reginald Maurice Adkins, was convicted of first degree felony murder, see Tennessee Code Annotated section 39-13-302, and attempted especially aggravated robbery, a Class B felony, see Tennessee Code Annotated sections 39-12-107(a), -13-403(b). In this direct appeal, the Defendant contends that the State presented insufficient evidence to convict him of either offense. After our review, we affirm the judgments of the trial court.

In this workers’ compensation appeal, the employee alleged a work-related incident aggravated a pre-existing back condition and that he required surgery as a result of the injury. His employer denied the claim, contending that the surgery was for treatment of a preexisting condition and that the work related incident did not advance the pre-existing condition. The trial court found for the employee and awarded 20% permanent partial disability benefits. The employer appealed. We affirm the judgment.

The Petitioner, John Griggs, appeals the Shelby County Criminal Court’s denial of post-conviction relief from his convictions for aggravated kidnapping, kidnapping, aggravated burglary, aggravated assault, and attempted rape, for which he received an effective sentence of eleven years. On appeal, the Petitioner contends that his guilty pleas were not entered voluntarily and knowingly because he was not informed of his right against compulsory self-incrimination. We affirm the judgment of the trial court.

Pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the State appeals the trial court’s order denying jury instructions on lesser included offenses at the Defendant Gussie Willis Vann’s retrial for felony murder. See T.C.A. §39-13-202(a)(2) (1991). The Defendant was originally convicted by a McMinn County jury of felony murder committed in the perpetration of aggravated rape and two counts of incest. He was sentenced to death plus six years’ incarceration. In affirming his convictions on direct appeal, this court, see State v. Gussie Willis Vann, No. 03C01-9602-CC-00066, 1997 WL 309320 (Tenn. Crim. App., at Knoxville, June 10, 1997), and the Tennessee Supreme Court, see State v. Vann, 976 S.W.2d 93 (Tenn. 1998), rejected the Defendant’s claim that the trial court erred by failing to instruct the jury on the lesser included offenses of felony murder. The Defendant subsequently filed a petition for post-conviction relief, and the post-conviction court ordered a new trial on grounds unrelated to the issue presented in this appeal. Prior to retrial, the Defendant moved to dismiss his indictment and bar instructions on the lesser included offenses of felony murder arguing, among other things, (1) that principles of double jeopardy, collateral estoppel, and judicial estoppel precluded the State from prosecuting the Defendant on any lesser included offense of felony murder because the “explicit statements” of both this court and the Tennessee Supreme Court “on direct appeal that the trial record was ‘devoid of evidence’ of lesser included offenses were factual determinations, necessary to valid final judgments, from which the government is prohibited from seeking an inconsistent determination” and (2) that “the [original] trial judge’s refusal to instruct on such lesser included offenses was a qualitative determination of the evidence, tantamount to an acquittal and triggering traditional double jeopardy and res judicata [as] to those charges.”Following a hearing, the trial court agreed in part with the Defendant and actually barred retrial on any lesser included offenses of felony murder. The State sought and we granted Rule 9 review to determine “whether constitutional double jeopardy protections bar at the trial the inclusion of lesser included offenses of first degree felony murder.” Upon our review, we reverse the decision of the trial court and remand for proceedings consistent with this opinion.

Following a jury trial, the Petitioner, Bobby Joe Rollins, was convicted of aggravated robbery, a Class B felony, and sentenced as a Range III, persistent offender to twenty-eight years. See Tenn. Code Ann. § 39-13-402 (aggravated robbery defined). This Court affirmed his conviction and sentence on direct appeal. See State v. Bobby Joe Rollins, No. M2008-00284-CCA-R3-CD, 2008 WL 5427733 (Tenn. Crim. App., Nashville, Dec. 31, 2008) (mem.), perm. to appeal dismissed, (Tenn. Mar. 23, 2009). The Petitioner filed a timely petition for post-conviction relief and, after a hearing, the post-conviction court denied relief. In this appeal, the Petitioner claims that he was denied effective assistance of counsel because: (1) Trial Counsel misadvised the Petitioner with respect to whether he should testify at his trial; (2) Trial Counsel failed to undertake any meaningful trial preparations with the Petitioner; and (3) Trial Counsel failed to object and request a mistrial when a witness stated that the Petitioner had been in “the pen.” After our review, we affirm the post-conviction court’s denial of relief.

The Petitioner, Mark Alan Deakins, appeals pro se the Lauderdale County Circuit Court’s summary dismissal of his petition for habeas corpus relief from his conviction for especially aggravated sexual exploitation of a minor, a Class B felony. The Petitioner contends that the trial court erred by finding that the judgment was not void and by dismissing his petition without an  evidentiary hearing and without appointment of counsel. We affirm the judgment of the trial court.

The appellant, Douglas Boruff, appeals the Blount County Circuit Court’s denial of his motion to discharge a fine that the trial court imposed as part of his punishment for a prior conviction. Based upon the record and the parties’ briefs, the appellant’s appeal is dismissed.

The Defendant, Scotty Mack Griffith, pled guilty to promotion of the manufacture of methamphetamine, a Class D felony, and to possession of methamphetamine, a Class A misdemeanor. See T.C.A. §§ 39-17-433, 39-17-418 (2010). He was sentenced as a Range II, multiple offender to six years’ confinement for the promotion conviction and to eleven months, twenty-nine days’ confinement for the possession conviction, to be served concurrently. On appeal, he contends that the trial court erred by imposing a sentence of full confinement. We affirm the judgments of the trial court.

The Petitioner, Kenneth Alan Steele, filed a petition for a writ of error coram nobis, alleging that because of newly discovered DNA evidence, his convictions should be vacated and/or he should be granted a new trial to present evidence of a third-party perpetrator. On appeal, the Petitioner argues that the trial court erred by dismissing his petition without a hearing and that it applied the wrong standard in making its ruling. We agree that the trial court used the wrong standard; nevertheless, we conclude that the trial court did not err in dismissing the petition. Accordingly, we affirm the judgment of the trial court.

Parties who pled guilty to violation of a Nolensville ordinance argued that the costs assessed in their cases violated Article VI, Section 14 of the Tennessee Constitution. The Nolensville municipal court found against the parties. On appeal, the circuit court also found against the parties. On further appeal, we affirm the lower courts’ decisions against one party and affirm in part and reverse in part the lower courts’ decisions against the other party.

The defendant, Eddie H. Pittman, was convicted by a Madison County Circuit Court jury of theft of property valued between $500-$1000, a Class E felony, and was sentenced as a career offender to six years in the Department of Correction. On appeal, he challenges the sufficiency of the evidence regarding the value of the stolen goods. After review, we affirm the judgment of the trial court.

I concur in the majority opinion. I respectfully express my view that the trial court’s “ would not have changed the results” formulation does not necessarily equate to the application of a wrong standard. As the majority opinion notes, Mixon and Vasques formulate the standard for establishing entitlement to coram nobis relief as when the petitioner shows that the new evidence “may have” resulted in a different judgment. See State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007); State v. Mixon, 983 S.W.3d 661, 672 (Tenn. 1999). One might view the trial court’s formulation in the present case as merely stating the correct standard in the negative. Certainly, the more precise formulation of the opposite of “may have” is “could not have” or “cannot have,” but still the court may have correctly determined that no possibility existed that the result of trial may have been different with the new evidence at play. Obviously, the use of the Mixon-Vasques language would be preferable.

This is an appeal from the grant of summary judgment in favor of Appellee. Appellant obtained a credit card from Appellee’s predecessor in interest, and defaulted on payment of the debt. Appellee brought suit to recover the debt, and the trial court granted summary judgment to Appellee. Appellant appeals, arguing that there is a dispute of fact as to whether Appellee is a lawful successor in interest, and also asserting that the trial court erred in denying Appellant’s  request to have certain documents included in the record. Affirmed.

The trial court terminated the parental rights of Mother and Father on the grounds of abandonment and persistence of conditions, and upon finding that termination was in the best interests of the children. We affirm.

Plaintiff sued Haywood County and a Haywood County sheriff’s deputy after she was sexually harassed by the deputy. Following a bench trial, the trial court entered judgment in favor of the Plaintiff against Haywood County and against the deputy. Haywood County appeals, challenging the finding of liability and the amount of damages awarded against it.  We affirm.