APPELLATE COURT OPINIONS

In June of 2008, Kelly D. McAlister ("Wife") filed a Petition to Enforce Final Decree against Robert A. McAlister ("Husband") seeking, among other things, to enforce the parties' final decree of divorce entered in June of 2000. After a hearing, the trial court entered an order on November 2, 2009 finding and holding, inter alia, that the house at issue shall be sold and the net proceeds divided by the percentages stated in the divorce decree, and that Wife's share of Husband's pension shall be calculated upon Husband's salary at the time of divorce using a fraction with the denominator being the number of months worked by Husband when he retires and the numerator being the number of months of the seventeen year marriage with Wife to receive one- half of the calculated amount. Wife appeals to this Court. We affirm as to the division of the house, reverse as to the calculation of the pension based upon Husband's salary at the time of divorce, and order that Wife's share of Husband's pension shall be calculated upon the amount of the pension at the time Husband retires based upon the formula stated in the divorce decree.

On April 10, 2000, William D. Chapman, II ("the Deceased") was involved in a motor vehicle accident. As a result of his injuries, he was admitted to Holston Valley Hospital and Medical Center in Kingsport where he came under the care of trauma surgeons, the defendants, James V. Lewis, M.D., and George M. Testerman, Jr., M.D., as well as other physicians and medical personnel. The plaintiff, Cathy L. Chapman, brought this wrongful death action against the defendants based upon her allegation that they were guilty of medical malpractice in the treatment of her husband; she claims that their malpractice caused the death of the Deceased on April 15, 2000. Following eight days of a jury trial in July 2008, counsel for the parties made their closing arguments. During the defense's argument, counsel for the plaintiff objected when counsel for Dr. Testerman projected on a video screen what purported to be the Q. and A. trial testimony of the plaintiff's medical expert, Dr. Philip Witorsch. The trial court overruled the objection and thereafter the jury returned a verdict in favor of both defendants. Later, the trial court, acting on the plaintiff's motion, reversed itself and held that the defendants failed to lay a proper foundation for the use of the projected testimony. The court also pointed out that the defendants failed to give the plaintiff prior notice of their intention to use portions of the trial transcript in closing argument. As a consequence, the court granted the plaintiff a new trial. The defendants appeal. We reverse the trial court's grant of a new trial and reinstate the court's judgment in favor of the defendants.

Pursuant to Tennessee Supreme Court Rule 51, 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. Vicky Benson (“Employee”) developed bilateral carpal tunnel syndrome in 2002, as a result of her work for New Gray Cemetery (“Employer”). Her claim was accepted. She had surgery on her right arm in 2004 and returned to work. After her return, she was terminated for reasons not related to her injury. She continued to receive conservative medical treatment from time to time. She found new employment in 2006. In September 2007, her treating physician recommended surgery for her left arm. Employer denied the claim, contending that her subsequent employer was liable for the condition and its effects. The trial court ruled that Employee’s condition had been worsened by her later employment, and dismissed the claim. On appeal, Employee contends that the evidence preponderates against the trial court’s finding. We affirm the judgment.

The Petitioner, Steven Dousay, pled guilty in Williamson County to theft over $10,000, and the trial court sentenced him to six years in the Tennessee Department of Correction. He filed a petition in the Williamson County Circuit Court for a writ of habeas corpus, which the habeas corpus court dismissed. The petitioner appeals, and, after a review of the record in this case, we conclude the habeas court properly dismissed the petition for habeas corpus relief. Accordingly, we affirm its judgment.

Pursuant to Tennessee Supreme Court Rule 51, 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. Wendy Blair (“Employee”) sustained injuries as a result of a fall which occurred in the course of her work as a sales agent for Wyndham Vacation Ownership (“Employer”). The trial court found that she suffered permanent injuries to her neck and lower back due to the fall and that she had not made a meaningful return to work. The trial court awarded Employee 78% permanent partial disability (“PPD”) benefits to the body as a whole. Employer has appealed from that judgment. We conclude that the trial court erred in its finding that Employee did not have a meaningful return towork. Consequently, we modify the judgment to award 19.5% PPD to the body as a whole.

The father has appealed from the trial court's order naming the mother as the primary residential parent and allowing her to move to Indiana with the parties' minor child. Because the trial court's order does not resolve all the claims between the parties, we dismiss the appeal for lack of a final judgment.

The Petitioner, Brandyce Lusby, appeals as of right from the Madison County Circuit Court's denial of her petition for post-conviction relief challenging her guilty plea convictions for second degree murder, attempted especially aggravated robbery, and tampering with evidence for which she received an effective sentence of forty years. The petitioner challenged the performance of trial counsel and the voluntariness of her guilty plea. Following an evidentiary hearing, the post-conviction court denied relief. We affirm the judgment of the post-conviction court.

The Defendant, Jocelyn D. Mims, pleaded guilty to one count of conspiracy to introduce contraband into a penal institution and one count of attempted introduction of contraband into a penal institution, Class D felonies. She received concurrent terms of two years as a Range I, standard offender for these convictions. After a sentencing hearing, the trial court denied the defendant's request for judicial diversion. She challenges that ruling on appeal. After a review of the record, we affirm the judgments of the Sumner County Criminal Court.

Employee sued her employer under the Tennessee Human Rights Act, alleging that she was denied a promotion because of her race. The trial court granted summary judgment to the employer. We reverse the summary dismissal and remand for further proceedings.

The Petitioner, Barry Brown, filed a petition for post-conviction relief attacking his convictions of three counts of aggravated robbery on the basis of ineffective assistance of trial counsel. Following an evidentiary hearing, the post-conviction court denied relief based upon its finding that the petitioner had failed to prove his allegations by clear and convincing evidence. In this appeal as of right, the petitioner contends that trial counsel was ineffective in failing to suppress his statement, in preparing for trial, and in failing to present any mitigating evidence at his sentencing hearing. Following our review, we affirm the judgment of the post-conviction court.

The Defendant, Michael Maples, was convicted by a Hamblen County Criminal Court jury of one count of facilitation of aggravated assault, a Class D felony, and one count of aggravated burglary, a Class C felony. He was sentenced as a Range I, standard offender to four years and six years, respectively, to be served concurrently in the custody of the Department of Correction. In this appeal as of right, he argues that the trial court erred in denying his motion for a mistrial based upon the State's failure to provide exculpatory evidence pretrial. Following our review, we affirm the judgments of the trial court.

In 2008, Lena Michelle Silvey Rolen ("Mother") sued Charles Martin Wilson ("Father") alleging, in part, that Father had failed to pay child support as ordered. Father responded and filed a counter-claim seeking custody. After a trial, the trial court entered an order finding and holding, inter alia, that Father was in contempt for willful failure to pay child support as ordered, and that no material change in circumstances had occurred to justify a change in custody. Mother was awarded a judgment against Father for the child support arrearage, among other things. Father appeals to this Court. Because the record on appeal contains no transcript and no Tenn. R. App. P. 24(c) statement of the evidence, we affirm.

This appeal involves a father's child support and alimony arrearages. The trial court found the father in contempt and sentenced him to ten days in jail, with three days suspended. The court also awarded interest on the alimony and child support arrearages. We affirm in part and reverse and vacate in part.

The Defendant, Jonathan Louis Barnett, was convicted of statutory rape, a Class E felony; coercion of a witness, a Class D felony; and attempted sexual exploitation of a minor, a Class E felony. Pursuant to a plea agreement, the defendant pled guilty to violating the sexual offender registry laws, a Class E felony, in exchange for concurrent sentencing on all of his convictions. The trial court sentenced the defendant to two years for each of the Class E felonies and four years for the Class D felony. The trial court ordered the sentences to be served concurrently with one another but consecutively to a sentence imposed in an unrelated case. In this appeal as of right, the defendant contends that the evidence was insufficient to support his convictions of statutory rape, coercion of a witness, and attempted sexual exploitation of a minor. Following our review, we reverse and dismiss the defendant's conviction of coercion of a witness. We affirm the judgments of the trial court relating to the defendant's other convictions.

I concur in the result, but I respectfully disagree with the conclusion that the petitioner is presumed to have the same knowledge as his attorney regarding the photograph and the timing of its discovery. I do not believe that such a presumption applies to all facts that an attorney uncovers during representation.

In April 2004, Appellant, David L. Baker, pled guilty in Jackson County to one count of aggravated assault. Pursuant to the plea agreement, appellant was ordered to serve four years on probation. Appellant's probation officer filed a probation violation warrant alleging that appellant had violated Rules 1 and 4 of the probation order. Following a hearing, the trial court revoked appellant's probation based upon a violation of Rule 10 of the probation order. Appellant appealed to this Court arguing that his right to due process had been violated because he did not receive sufficient notice of the Rule 10 violation to support the revocation of his probation. We have reviewed the record on appeal and must agree with appellant. The trial court based the revocation upon a violation which was not alleged in the probation violation warrant and appellant had neither written nor actual notice of the allegation of this violation. Therefore, we reverse the revocation of appellant's probation and remand for further proceedings in accordance with this opinion.

The petitioner, Jimmy Gray, stands convicted of four counts of aggravated rape and is serving a sentence of eighty years in the Tennessee Department of Correction. On September 14, 2009, the petitioner filed a petition for writ of error coram nobis on the basis of newly discovered evidence. The trial court summarily dismissed the petition as filed outside the statute of limitations. On appeal, the petitioner claims that (1) due process requires tolling of the statute of limitations; (2) he filed his petition within one year of discovering new evidence; and (3) the trial court erred by summarily dismissing his petition. Following our review of the parties' briefs, the record on appeal, and the applicable law, we affirm the judgment of the trial court.

Defendant, Norman Eugene Banks, was indicted for initiation of a process intended to result in the manufacture of methamphetamine, a Class B felony, in count one of the indictment, and possession of drug paraphernalia, a Class A misdemeanor, in count two. Following a bench trial, the trial court as trier of fact found defendant guilty of the lesser included offense of attempt to initiate of a process intended to result in the manufacture of methamphetamine, a Class C felony, and possession of drug paraphernalia. The trial court sentenced defendant as a Range II, multiple offender, to eight years for his Class C felony conviction and eleven months, twenty-nine days for his misdemeanor conviction, to be served concurrently for an effective sentence of eight years. On appeal, defendant argues that (1) the trial court erred in denying his motion to dismiss the indictment based on his assertion that the language in Tennessee Code Annotated section 39-17-435 is unconstitutionally vague and overbroad; (2) the statutory presumption created in Tennessee Code Annotated section 39-17-435 is unconstitutional; (3) the offense of attempt to initiate a process intended to result in the manufacture of methamphetamine is not a recognizable offense in Tennessee; and (4) the evidence is insufficient to support defendant's conviction of possession of drug paraphernalia. After a thorough review, we affirm the judgments of the trial court.

The defendant, James Edgar Leverette, stands convicted of theft of property over $500, a Class E felony. The trial court sentenced him as a career offender to six years in the Tennessee Department of Correction. On appeal, the defendant challenges the sufficiency of the evidence, arguing that the value of the property was under $500. Following our review, we affirm the judgment of the trial court.

Stoneybrook Golf Course, LLC, purchased approximately 190 acres of land ("the Property")_ on part of which was located a golf course _ with plans to develop the vacant land surrounding the course. Before purchasing the property, Stoneybrook met with the mayor and other officials of the City of Columbia and received their verbal assurances of strong support for the annexation of the 190 acres into the City and the re-zoning of the area to permit the building of condominiums. After Stoneybrook purchased the property, the city council of Columbia refused to go forward with the annexation and re-zoning until a comprehensive land use plan could be completed against which to evaluate the proposed rezoning. Stoneybrook filed this action against the City, claiming, in essence, that the City's refusal to act promptly in accord with the verbal "commitment" constitutes an unconstitutional moratorium and, alternatively, that the City is estopped from refusing to rezone the property. The trial court dismissed the complaint on the pleadings. Stoneybrook appeals. We affirm.

The defendant, David Nelson McCoy, pled guilty to voluntary manslaughter, a Class C felony, and received a negotiated sentence of ten years, as a Range I standard offender, in the Tennessee Department of Correction. On appeal, the defendant challenges the trial court's imposition of a sentence of continuous confinement. Following our review, we affirm the judgment of the trial court.

At a bench trial, the court permitted the Williams to take a non-suit as to the estate of Mr. Hollingsworth.The trial court found Laurel Valley in violation of the court's orders and awarded the Williams damages of $194,915.60. Laurel Valley appeals. We affirm.

As a result of a guilty plea, the Robertson County Circuit Court, sentenced Appellant, Taj O'Chancey Young, to an effective sentence of four years. The sentence was ordered to be served on community corrections. Appellant was placed under the supervision of a case officer on March 20, 2009. On June 29, 2009, the case officer filed a violation warrant. A second amended violation warrant was filed on August 28, 2009, asserting additional grounds. After a hearing on the warrants, the trial court revoked Appellant's community corrections sentence and ordered Appellant to serve the remainder of his sentence in incarceration. Appellant has appealed the revocation of his community corrections sentence. After a thorough review of the record, we conclude that the trial court did not abuse its discretion in revoking the community corrections sentence. Therefore, we affirm the decision of the trial court.

After a bench trial, the court found that, in September 2005, the principals "settled up" their affairs and that thereafter Leedy wrongfully took an excess of $131,489.99, for which the court gave the Agency a judgment. The court declined to award the Agency approximately $70,000 that it claimed Leedy had taken before September 2005 in excess of what he had earned. Leedy appeals, challenging the trial court's denial of a continuance, among other things, including the award to the Agency. Jones and the Agency challenge the trial court's refusal to award judgment against Leedy for the monies taken before September 2005. We affirm.

Appellant William Robert Wilson, was arrested for driving under the influence ("DUI") after being observed driving erratically by a deputy with the Putnam County Sheriff's Office. The Putnam County Grand Jury indicted appellant for one count of DUI; one count of DUI, third offense; one count of driving on a revoked license; and one count of violation of the implied consent law. Following a jury trial and his waiver of proof regarding DUI, third offense, appellant was convicted of DUI and driving on a revoked license and entered a plea to DUI, third offense. The trial court sentenced appellant to eleven months and 1 twenty-nine days for DUI, third offense and five months and twenty-nine days for driving on a revoked license. These sentences were ordered to be served concurrently with service of 130 days in confinement and the remainder in a community-based alternative program. Appellant appeals arguing that: (1) the evidence was insufficient to support his conviction for DUI; (2) the trial court erred in denying appellant's motion to dismiss his case because the officer did not have reasonable suspicion to support the traffic stop; (3) the trial court erred in denying appellant's motion for continuance; and (4) the trial court erred in denying appellant's request for a jury instruction on the State's duty to preserve evidence. We have reviewed the record on appeal and have found no basis for reversal. Therefore, we affirm the judgments of the trial court.