APPELLATE COURT OPINIONS

Aggrieved of his convictions of first degree murder and conspiracy to commit first degree murder, the petitioner, Charles Lamb, filed a timely petition for post-conviction relief alleging that he had been deprived of the effective assistance of counsel. In this appeal, he challenges the denial of his bid for post-conviction relief. Discerning no error, we affirm the judgment of the post-conviction court.

Petitioner Andrew Thomas appeals as of right the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. A Shelby County jury found Petitioner guilty of felony murder based on the killing of James Day during an attempt to perpetrate a robbery. The jury found that Petitioner had previously been convicted of one or more felonies for which the statutory elements involved the use of violence to the person. See T.C.A. § 39-13-204(i)(2). The jury further found that this aggravating circumstance outweighed mitigating circumstances beyond a reasonable doubt. The jury then sentenced Petitioner to death. Petitioner’s conviction and sentence were affirmed on direct appeal by the Tennessee Supreme Court. See State v. Thomas, 158 S.W.3d 361 (Tenn. 2005). On January 3, 2006, Petitioner filed a pro se petition for post-conviction relief. On November 13, 2006, Petitioner filed a petition for writ of error coram nobis and an amended petition for post-conviction relief. The post-conviction court held an evidentiary hearing in October 2007. On August 4, 2008, the post-conviction court entered an order denying Petitioner postconviction relief. On appeal to this Court, Petitioner presents a number of claims that can be characterized in the following categories: (1) Petitioner’s trial counsel were ineffective; (2) Petitioner’s appellate counsel were ineffective; (3) Petitioner is entitled to a new trial based upon newly discovered evidence; and (4) Tennessee’s death penalty statutory scheme is unconstitutional. Following a thorough and exhaustive review of the record and the applicable law, we affirm the judgment of the post-conviction court.

A Monroe County jury convicted Petitioner of second degree murder. State v. Darrell Fritts, No. 132, 1992 WL 236152, at *1 (Tenn. Crim. App., at Knoxville, Sept. 25, 1992), perm. app. dismissed, (Tenn. Feb. 1, 1993). Petitioner was unsuccessful on appeal. Id. at *10. Petitioner subsequently filed a petition for post-conviction relief that was denied. Darrell Fritts v. State, No. 03C01-9803-CR-00116, 1999 WL 604430, at *1 (Tenn. Crim. App., at Knoxville, Aug. 12, 1999). On appeal, this Court upheld the post-conviction court’s denial of the petition. Petitioner subsequently filed two petitions for writ of habeas corpus relief in the Monroe County Court. The first writ was dismissed because it was filed in Monroe County as opposed to the Johnson County Court which is the closest court in distance. With regard to the second writ, the State filed a motion to dismiss based upon the fact that the issues had already been determined by this Court on appeal from the denial of the post-conviction petition and that ineffective assistance of counsel at trial is not a cognizable issue for habeas corpus. The habeas corpus court granted the motion. Petitioner appeals the dismissal of both writs. The appeals have been consolidated in this Court. After a thorough review of the record, we conclude that the dismissal of the writs was correct. Therefore, we affirm the dismissals by the habeas corpus court.

The Defendant, Jeremy Stephen Parks, pled guilty to sexual exploitation of a minor, a Class D felony. See T.C.A. § 39-17-1003 (2010). He was sentenced as a Range I, standard offender to four years’ confinement, with six months to be served in the Blount County Jail and the remainder to be served on supervised probation with multiple special conditions. On appeal, he contends that the trial court erred during sentencing by (1) denying judicial diversion, (2) imposing the maximum sentence in the range and ordering confinement, and (3) imposing unreasonable terms of probation. We affirm the conviction and the length of the Defendant’s sentence, but we modify the special conditions of probation.

Following a jury trial, the Defendant, Michael W. Poe, was convicted of first degree felony murder and aggravated child abuse, a Class A felony. See Tenn. Code Ann. § 39-13-202, -15-402(b). The trial court sentenced the Defendant to consecutive terms of life in prison for his first degree felony murder conviction and twenty-five years as a violent offender for his aggravated child abuse conviction. In this direct appeal, the Defendant contends that: (1) the trial court erred when it denied his motion for judgment of acquittal; (2) the trial court erred when it failed to declare a mistrial after one juror made a comment to another juror about the trial; (3) the trial court erred in failing to ask the other jurors whether they heard the comment at issue; (4) the trial court erred when it failed to remove or disable the televisions and radios from the jurors’ motel rooms; (5) the trial court erred when it applied two inapplicable enhancement factors and failed to consider one mitigating factor; (6) the trial court erred when it imposed consecutive sentences; (7) the trial court did not award the proper amount of jail credit; and (8) the trial court erred when it failed to dismiss the indictment. After our review, we affirm the judgments of the trial court.

Citing decreased income, Husband filed a petition to modify alimony and child support, and Wife filed a contempt petition against Husband. The trial court reduced both Husband’s alimony and child support obligations, it refused to hold Husband in contempt, and it declined to award Wife her attorney fees and court costs. We reverse the trial court’s modification of Husband’s alimony obligation and we reinstate the provisions of the Consent Order with regard to alimony; we affirm the trial court’s finding of a significant variance, but we remand for a modification of Husband’s child support obligation consistent with this opinion; we affirm the trial court’s finding regarding contempt; we award Wife her reasonable attorney fees and court costs expended in defending Husband’s petition to modify and in filing her petition for contempt, and we remand for a determination of such fees; and finally, we decline to award attorney fees on appeal.

The trial court awarded Defendant summary judgment on the basis that Defendant had negated the element of damages in this personal injury action. We reverse and remand for further  proceedings.

The Defendant, Danny Lynn Davis, was convicted at a bench trial in the Washington County Criminal Court of theft of property valued at $60,000 or more, a Class B felony; official misconduct, a Class E felony; and twenty-five counts of forgery, Class E felonies. See T.C.A. §§ 39-14-103 (theft); 39-16-402 (official misconduct); 39-14-114 (forgery). He was sentenced to ten years for the theft conviction and to one year for each of the Class E felony convictions, all to be served concurrently with one year of split confinement and the remaining nine years on probation. In this appeal, the Defendant contends that (1) the victim, the city of Johnson City, had no standing to allege the crimes, (2) the prosecution of the forgery and official misconduct offenses was barred by the statute of limitations; (3) the evidence was insufficient to support his convictions; (4) the trial judge should have recused himself because the judge’s wife was an employee of the city of Johnson City; and (5) he was deprived of the opportunity to prepare a proper defense because the trial court failed to release his income tax records during discovery. We note that two of the convictions were rendered on counts dismissed by the State during trial. We vacate the convictions for forgery in Counts 23 and 27, but we affirm the remaining judgments of the trial court.

In this case the Blount County property assessor assessed ad valorem taxes against defendant for certain raw materials the defendant used to fabricate sheets of aluminum at its manufacturing facility in Blount County. The State Board of Equalization and the Chancery Court for Blount County upheld the assessment. Defendants have appealed to this Court arguing that Article II, Sections 28 and 30 of the Tennessee Constitution provide exemptions from ad valorem taxes for "the direct product of the soil in the hands of the producer, and his immediate vendee". We affirm the Judgment of the Trial Court.

Appellant, pro se, raised as issues the Trial Judge ordering him to deposit half of his income tax refund, and in ordering him not to have his children around fiance. The record contains an Order by the Trial Judge ordering appellant to pay into the Court half of his income tax refund, but the record is devoid of any order pertaining to the latter issue. The Order on the income tax refund recites that evidence was heard on that issue, but appellant has filed no transcript or statement of the evidence. Accordingly, the Trial Judge's ruling is conclusively presumed to be correct, and we affirm the Judgment of the Trial Court.

This is an appeal of a grant of summary judgment to a hospital and physician in a medical malpractice case. Plaintiffs also appeal the denial of their motion that the trial court recuse itself due to the court’s membership on the board of directors of the defendant hospital and the court’s denial of their motion for default judgment based on spoliation of evidence. We reverse.

A Monroe County Circuit Court jury convicted the appellants, Michael Aaron Jenkins and Perley Winkler, Jr., of two counts of attempted first degree premeditated murder and one count of attempted aggravated arson. After sentencing hearings, Jenkins received an effective seventeen-year sentence and Winkler received an effective forty-year sentence. On appeal, the appellants contend that the evidence is insufficient to support the convictions and that the trial court erred by prohibiting them from questioning one of the victims, David Senn, about a prior felony conviction. In addition, Jenkins contends that the trial court should have allowed him to cross-examine Senn in front of the jury about Senn’s untruthfulness during an offer of proof, that the trial court should have granted his motion to sever his trial from that of his codefendant, and that the State committed prosecutorial misconduct during its closing argument. Winkler contends that the trial court erred by allowing the State to question a second victim about a threatening message Winkler allegedly left on a cellular telephone and that his sentence is excessive. After a review of the record and the parties’ briefs, we conclude that the evidence is sufficient to support the convictions and that the trial court properly sentenced Winkler. The appellants’ remaining issues are waived because the appellants failed to provide an adequate record on appeal.

In this action to terminate the parental rights of the mother, the petitioner alleged statutory grounds for termination of the mother's parental rights. The mother answered, defending her right to remain a parent. At trial, the parties stipulated that there were statutory grounds for termination of the mother's parental rights. The only issue at trial, was whether or not it was in the best interest of the child for the mother's rights to be terminated. Following the evidentiary hearing, the Trial Court found that it was in the best interest of the child to terminate the mother's parental rights by clear and convincing evidence. On appeal, we concur with the Trial Court that there was clear and convincing evidence that it was in the best interest of the child to terminate the mother's parental rights.

The petitioner, James Patterson, appeals from the denial of post-conviction relief by the Criminal Court of Shelby County. He was convicted of especially aggravated robbery, a Class A felony,  criminal attempt to commit second degree murder, a Class B felony, and two counts of especially aggravated kidnapping, Class A felonies. The petitioner received an effective sentence of thirty-two years. The convictions and sentence were upheld on direct appeal. See State v. James Patterson, No. W2005-01416-CCA-R3CD, 2007 WL 162175, at *1 (Tenn. Crim. App., at Jackson, Jan. 23, 2007). The petitioner subsequently filed a petition for post-conviction relief, which alleged that trial counsel was ineffective. The post-conviction court denied the petitioner relief. On appeal, the petitioner claims he is entitled to a new post-conviction hearing because post-conviction counsel failed to diligently investigate and present reasonable claims for relief. Upon review, we affirm the judgment of the post-conviction court.

The defendant, Adrian Ann Crain, appeals the revocation of her probation sentence, claiming that the state denied her right to a speedy trial and that the trial court did not have jurisdiction when it revoked her sentence and ordered that she serve the remainder of her sentence in the  Tennessee Department of Correction. Following our review, we affirm the judgment of the trial court.

Purchasers of home filed this action against the sellers for negligent misrepresentation and fraudulent misrepresentation for the failure to disclose defects in the home. The trial court found for the purchasers on their claim of negligent misrepresentation but denied their claim of fraudulent misrepresentation and their request for rescission. Purchasers appealed contending the trial court erred by not finding fraudulent misrepresentation and partially denying their motion to alter or amend the judgment in which they sought to introduce new evidence. We affirm the ruling of the trial court in all respects.

Father filed a petition to relocate with minor child, and mother filed a petition for change of custody. After a hearing, the trial court denied father’s petition to relocate and mother’s petition to change custody but increased mother’s parenting time. A week after the court’s order was entered, mother filed a petition to reopen the proof, and the court granted her motion. After another hearing, the trial court granted mother’s petition for a change of custody. On appeal, father argues that the trial court erred in denying his petition to relocate, in reopening the proof, and in granting mother’s petition to change custody. We affirm the decision of the trial court.

Two former employees of the City of LaVergne claimed that the defendants retaliated against them in violation of the Tennessee Human Rights Act for complaining of race discrimination in the workplace and for filing claims with the EEOC. One of the plaintiffs asserted an additional claim for hostile work environment discrimination. The jury returned a verdict for both plaintiffs for retaliation and for hostile work environment for one plaintiff. The defendants appeal the trial court’s admission of certain testimony and evidence about an alleged listening device as well as the jury verdict for hostile work environment and the amount of damages for humiliation and embarrassment. We find that the trial court erred in admitting the testimony, but that the error was harmless. The court did not err in admitting evidence about the alleged listening device. We conclude that there is material evidence to support the jury verdict’s for a hostile work environment as well as the amount of the award for damages.

Defendant, Joseph Valentine Hill, was charged with one count of DUI, second offense, a class A misdemeanor, and with seven counts of aggravated assault with a deadly weapon, a class C felony. He entered pleas of guilty as charged in each count and submitted to a sentencing hearing with no agreement as to the length or manner of service of the sentences. The trial court sentenced Defendant to four years for each aggravated assault conviction and to 11 months and 29 days for the DUI second offense conviction. The DUI sentence and three of the aggravated assault sentences were ordered to be served concurrently with each other. The remaining four aggravated assault sentences were ordered to be served concurrently with each other, but consecutively to the first grouping of sentences, for an effective sentence of eight years. The trial court ordered the eight-year sentence to be served in incarceration. Recognizing that the DUI, second offense conviction requires a mandatory minimum period of incarceration, Defendant argues on appeal that the trial court erred by declining to grant him probation after serving the above-noted mandatory minimum confinement. After careful review, we affirm the judgments of the trial court.

Elizabeth Diane Carr (“Petitioner”) filed for and obtained an ex parte order of protection against her cousin, Gregory F. Allen (“Respondent”). Pursuant to statute, a hearing was conducted on whether to dissolve or to extend the order of protection. In accordance with Tenn. Code Ann. § 36-3-605(b), a trial court has two options at such a hearing: (1) to dissolve the order of protection; or (2) to extend the order of protection for a definite period of time not to exceed one year. With respect to taxing costs, Tenn. Code Ann. § 36-3-617(a) expressly prohibits taxing costs against a victim, even if the order of protection is dissolved. If the order of protection is extended, the costs must be taxed against the respondent. In the present case, following the hearing on whether to extend or dissolve the order of protection, the Trial Court instead entered a mutual restraining order and taxed costs equally to both parties. Because neither action was authorized by statute, we vacate the judgment of the Trial Court and remand for further proceedings consistent with this Opinion.

This appeal involves the transfer of a case from the chancery court to the circuit court. The plaintiff was terminated from her employment with the defendant municipality. She filed this lawsuit against the municipality for wrongful termination, seeking only unliquidated damages. The municipality filed a motion to transfer the case to circuit court, asserting that the chancery court did not have subject matter jurisdiction under Tennessee’s Governmental Tort Liability Act and also based on Tennessee Code Annotated § 16-11-102, which addresses the chancery court’s jurisdiction over claims for unliquidated damages. The chancery court denied the motion to transfer. The municipality now appeals. We reverse, concluding that once an objection to jurisdiction was made under Section 16-11-102, the chancery court was required to transfer the case to the circuit court.

The employee alleged that he injured his back in the course of his employment. His employers denied the claim based upon failure to give timely notice of the injury. The employee saw two medical doctors and a chiropractor shortly after his injury. Their records contained no reference to a work injury; one stated that the injury had happened at home. The trial court found that the employee did not provide timely notice of his alleged injury and, alternatively, that he failed to sustain his burden of proof concerning causation. The employee has appealed from those findings. We affirm the judgment.

Employee filed a complaint for workers’ compensation benefits against her former employer alleging that her work for her former employer advanced pre-existing arthritis in both knees and required her to have joint replacement surgery on her right knee. The employer denied her claim, contending that her condition was unrelated to her employment. The trial court found that she had sustained a compensable aggravation of her arthritis and that she had not had a meaningful return to work. It awarded 78% permanent partial disability (“PPD”) to the body as a whole. The employer appealed,¹ contending that the trial court erred by finding the award was not subject to the one and one-half times impairment cap found in Tennessee Code Annotated section 50-6-241(d)(1)(A). We agree with employer that employee is entitled to an award of one and one-half times her impairment rating and decrease the award to 39% PPD to the body as a whole. We affirm the judgment as modified.

The Walkers, the appellants, sued the appellee railroad seeking a declaration that an easement already existed over the railroad tracks so that appellants could have access to a public road without contracting for an easement from the railroad. The jury found that the easement contract was not valid and that the appellants had an easement by necessity and implication. The trial court granted the railroad a judgment notwithstanding the verdict on the existence of the  easement. The Walkers appealed. We reverse the trial court.