APPELLATE COURT OPINIONS

On November 3, 2006, the petitioner, Donald Thomas Stagner, pled guilty to aggravated burglary and theft over $500 and was sentenced as a Range I, standard offender to four years and one and onehalf years, respectively. The court ordered that the sentences would be served concurrently and suspended after ninety days. On October 18, 2007, the petitioner sought post-conviction relief, asserting that his pleas of guilty were unknowing and that trial counsel was ineffective. Following an evidentiary hearing, the post-conviction court denied relief by order entered on February 4, 2008. The defendant filed his notice of appeal on March 13, 2008, and the State argues that the notice of appeal was untimely and, thus, this appeal should be dismissed. Following our review, we affirm the dismissal of the petition for post-conviction relief.

The defendant, Ronnie Henry, was convicted by a Shelby County jury of four counts of aggravated robbery, a Class B felony, and four counts of robbery, a Class C felony. The counts involving the same victims were merged, resulting in two convictions for aggravated robbery and two convictions for robbery, and the defendant was sentenced by the trial court to an effective sentence of seventy years in the Department of Correction. In his original direct appeal, the defendant challenged the sufficiency of the evidence and alleged that the trial court erred in limiting the testimony of a witness and in its sentencing determinations. See State v. Ronnie Henry, No. W2006-00344-CCA-R3-CD, 2008 WL 450459 (Tenn. Crim. App. Feb. 19, 2008), perm. to appeal denied (Tenn. Sept. 29, 2008). We affirmed the convictions but remanded for resentencing “in compliance with Gomez II [State v. Gomez, 239 S.W.3d 733 (Tenn. 2007)] and our standard principles of sentencing.” Id. at *5. On remand, the trial court again sentenced the defendant to an effective sentence of seventy years in the Department of Correction. In this appeal, the pro se defendant raises issues relating to the State’s alleged untimely filing of its notice of enhanced punishment; the trial court’s ruling on the State’s motion in limine with respect to the testimony of a defense witness; and the trial court’s imposition of consecutive sentencing. The State responds by arguing that the first two issues are waived and that the record supports the trial court’s imposition of consecutive sentencing. We agree with the State and, accordingly, affirm the judgments of the trial court.

In 1967, the General Assembly passed a Private act consolidating the juvenile courts of Memphis and Shelby County by establishing a new court. The Act also provided for a second division, with the judgeship of that division to remain vacant until the County Commission determined the need for it. Almost forty years later, the Commission adopted a resolution approving the appointment of a judge to the second division of the court. The current judge of the Juvenile Court of Shelby County challenged the attempted creation of a second judgeship, arguing that the relevant portion of the Private Act constituted an unconstitutional delegation of the authority to ordain and establish courts, which power is reserved to the General Assembly by the Tennessee Constitution. Because a judge is a necessary component of a court, in order to “ordain and establish” a court under Art. VI, § 1, the legislation creating or establishing the court must make provision for a judge. The legislature cannot establish a court without also establishing a judgeship. Since Section 20 of the Private Act does not create or establish a judgeship for division 2, it did not effectively create or establish that division or court. Additionally, because in Section 20 of the Private Act the legislature delegated to the Commission the power to decide whether a judge for division 2 was needed, which is the equivalent of delegating to the Commission the authority to establish or create division 2 of the juvenile court, we conclude that Section 20 is an unconstitutional delegation of power reserved to the General Assembly by Art. VI, § 1 of the Tennessee Constitution and, therefore, reverse the trial court’s holding on that issue. We affirm the trial court’s ruling on Open Meeting Act claims based on a prior resolution that was promptly rescinded by the Commission.

This is a summary judgment case. The trial court granted summary judgment in favor of the Appellee against his former employer, the Appellant herein. Finding that the Appellee presented sufficient proof to shift the burden of production to the Appellant pursuant to Hannan v. Alltel Publ'g Co., 270 S.W.3d 1 (Tenn. 2008), and that the Appellant failed to satisfy this burden, we affirm the grant of summary judgment. Because the trial court’s order denying the Appellants’ motion to revise the grant of partial summary judgment does not include the trial court’s reasons, we cannot determine whether analysis under Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000) was necessary, or whether the trial court otherwise abused its discretion. Consequently, we vacate the trial court’s denial of Appellants’ motion to revise the grant of partial summary judgment, and remand for further proceedings. Affirmed in part, vacated in part, and remanded.

This appeal arises out of a dispute between a contractor and landowner over the parties’ duties under a construction contract. Plaintiff/Appellee Madden Phillips Construction, Inc. (“Madden Phillips”) filed suit to enforce a mechanics’ and materialmen’s lien and to recover damages in breach of contract against Defendant/Appellant GGAT Development Corporation (“GGAT”).1 Madden Phillips’ complaint included a claim for damages and attorney’s fees pursuant to Tennessee Code Annotated sections 66-34-101 to -703, also known as the Prompt Pay Act of 1991 (“Prompt Pay Act”). GGAT counterclaimed and asserted, inter alia, that Madden Phillips failed to perform its contractual obligations in a “workmanlike and expeditious fashion to coincide with the completion schedule of [GGAT].”

The plaintiff filed a petition challenging the grant of a building permit to Verizon Wireless. The decision of the City was affirmed by the Board. After the trial court conducted a hearing, it affirmed and dismissed the petition. The plaintiff appeals. We affirm.

This is an appeal from an administrative hearing on a termination. The plaintiff was a deputy jailer with the sheriff’s department. He was arrested and charged with, inter alia, driving under the influence. The subsequent internal investigation by the sheriff’s department revealed that, prior to his hire, the deputy jailer had pled guilty to a felony drug charge. The conviction was expunged. On the plaintiff’s later application for employment with the sheriff’s department and on the background check form, the plaintiff was asked whether he had had any arrests or convictions, including any that had been expunged. The plaintiff answered that he had none. After the internal investigation, the deputy jailer was terminated for violating sheriff’s department regulations governing personal conduct, adherence to law, and truthfulness. The deputy jailer appealed his termination to the civil service merit review board which upheld the termination based on violation of the truthfulness regulation. This was appealed to the trial court, which ultimately upheld the termination as well. From this order, the deputy jailer now appeals, challenging the sufficiency of the evidence before the board and arguing that the board’s failure to include conclusions of law precludes adequate judicial review. We affirm, finding that the evidence is substantial and material; that the sheriff’s department and the civil service board properly considered the expunged conviction; and that the board’s failure to include conclusions of law in its decision does not preclude adequate judicial review in this case.

Petitioner, Thomas David Williams, appeals the dismissal of his petition for post-conviction relief in which he alleged that his trial counsel rendered ineffective assistance of counsel. Specifically, Petitioner contends that trial counsel failed to provide him with discovery until after the guilty plea was entered. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court

This case arises from the denial of Appellant’s claim against the Appellee Estate of James Alton Julian. Because Appellant held and exercised a power-of-attorney, a confidential relationship existed. The trial court determined that Appellant failed to overcome the presumption of undue influence, that the claim was satisfied by a specific bequest in the decedent’s will, and denied Appellant’s alternate theory of quantum meruit. Finding no error, we affirm.

The defendant, William Keith Paulson, was convicted by a Knox County jury of reckless endangerment, a Class E felony; two counts of felony evading arrest, Class D felonies; evading arrest, a Class A misdemeanor; driving without a license, a Class C misdemeanor; and violation of the state registration law, a Class C misdemeanor. Subsequently, he was sentenced to an effective eighteen-year sentence, as a career offender, in the Department of Correction. On appeal, he raises the single issue of whether double jeopardy principles require the merger of his convictions for reckless endangerment, felony evading arrest, and evading arrest into a single conviction for felony evading arrest. Following review of the record, we conclude that the two counts for felony evading arrest should have been merged into a single count as they were simply alternative charges for the same conduct. Further, we determine that the misdemeanor evading arrest should have also been merged with the felony evading arrest as it represented a single course of conduct. However, merger of the single remaining felony evading arrest and the reckless endangerment convictions is not required. As such, the case is remanded for entry of corrected judgments of conviction in accordance with this opinion.

The petitioner, James Young, filed a timely petition for post-conviction relief and two amended petitions for post-conviction relief. He appeals the denial of post-conviction relief, contending that he received ineffective assistance of counsel based on trial counsel’s failure to: (1) impeach a State’s witness, (2) subpoena an eyewitness to testify, and (3) request a jury instruction on selfdefense. Upon review, we affirm the judgment of the post-conviction court.

A Davidson County jury convicted the Defendant, Roger Glenn Dile, of rape of a child, a Class A felony; attempted rape of a child, a Class B felony; and two counts of aggravated sexual battery, a Class B felony. The trial court imposed a total effective sentence of thirty-two years to be served at 100% as a child rapist. The Defendant appeals, contending: (1) the evidence, as a matter of law, was insufficient to support his convictions because the proof at trial fatally varied from his indictments; (2) the trial court erred when it failed to merge one of his aggravated sexual battery convictions into his rape of a child conviction; and (3) the trial court erred when it set the length and alignment of his sentences. After a thorough review of the record and relevant authorities, we affirm the judgments of the trial court.

The defendant, Tony Curtis Holmes, was convicted of one count of first degree premeditated murder and one count of attempted first degree premeditated murder, a Class A felony. He was sentenced to consecutive life sentences. On appeal, he contends that the trial court abused its discretion in three areas: failing to grant a mistrial; allowing irrelevant testimony; and allowing hearsay testimony. After careful review, we conclude no error exists and affirm the judgments from the trial court.

On January 22, 2009, the Rhea County Criminal Court dismissed two counts of driving under the influence (“DUI”) against the defendant, Kim Geselbracht. The trial court determined that a law enforcement officer’s ignoring the defendant’s repeated requests for an independent blood test for blood alcohol content (“BAC”) denied the defendant his constitutional and statutory rights. The State appeals, arguing that the trial court erred by dismissing the charges. Upon our review, we affirm the judgment of the trial court.

The matters at issue arise from the demolition of a dilapidated residential structure by the Metropolitan Government of Nashville and Davidson County. Following the demolition of the property, the Metropolitan Government filed this action to recover the cost of demolition. The homeowners, who purchased the property at a delinquent property tax sale after the Metropolitan Government had filed Notice of Violation with the Register of Deeds Office, but prior to the structure’s demolition, responded by filing a counter-claim for inverse condemnation. The homeowners contended that the Metropolitan Government had no right to demolish their property and was not entitled to recover its costs for demolition, due to the intervening delinquent property tax sale. They also asserted in the counterclaim that the Metropolitan Government intentionally destroyed their property without the right to do so and, as a consequence, they are entitled to recover the value of the structure demolished. Both parties filed motions for summary judgment. The trial court ruled in favor of the homeowners on both motions by summarily dismissing the Metropolitan Government’s claim for reimbursement and granting summary judgment to the homeowners on their inverse condemnation claim. The trial court then awarded the homeowners damages for the value of the structure and attorney’s fees; however, the court denied their request for prejudgment interest. Both parties appeal. We affirm the summary dismissal of the Metropolitan Government’s claim and the grant of summary judgment to the homeowners on their inverse condemnation claim. We also affirm the award of damages for the value of the structure and the amount of attorney’s fees awarded to the homeowners. We reverse on the issue of prejudgment interest, finding that the award of prejudgment interest in inverse condemnation cases is mandatory under Tenn. Code Ann. § 29-17-813(a).

In this workers’ compensation action, the employee, Kyle McDonnell, was assigned to work at a job site in Kentucky. His employer, Continental Machinery Movers, paid for food and lodging. While waiting in a truck for his co-workers to return from breakfast, he suffered an apparent seizure. Subsequently, his shoulder was painful and he sought and received medical care at a local emergency room. An evaluating physician testified that the seizure had caused a dislocation of his shoulder joint. Mr. McDonnell sought workers’ compensation benefits, but the employer denied liability. The trial court found that Mr. McDonnell was a “traveling employee,” and that the injury was compensable. Continental Machinery Movers has appealed.1 We conclude that the injury did not arise from the employment and, therefore, reverse the trial court’s decision.

The defendant, Corey Eshmon, was convicted by a Shelby County jury of one count of aggravated robbery, a Class B felony; two counts of aggravated assault, a Class C felony; and one count of theft of property under $500, a Class A misdemeanor. The trial court sentenced him as a Range I offender to eight years for the aggravated robbery conviction, three years for each of the aggravated assault convictions, and eleven months, twenty-nine days for the theft conviction. Finding the defendant to be a dangerous offender, the court ordered that the robbery sentence run consecutively to one of the assault sentences, for an effective sentence of eleven years in the Department of Correction. In a timely appeal to this court, the defendant raises the following issues: (1) whether the trial court erred in denying his motion to suppress witness identifications; (2) whether the evidence was sufficient to sustain the convictions; and (3) whether the trial court erred in ordering consecutive sentencing. Following our review, we affirm the judgments of the trial court.

The petitioner, Gregory L. Smith, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief. The petitioner is currently serving a twelve-year sentence following his conviction for aggravated sexual battery, a Class B felony. On appeal, he contends that the postconviction court erred in determining that he received the effective assistance of counsel. Specifically, he contends that trial counsel was ineffective by failing to: (1) adequately investigate;  2) adequately communicate with the petitioner, provide and discuss discovery, prepare the petitioner to testify, and convey plea offers; (3) elicit facts helpful to the defense at trial; and (4) interview and call witnesses for the defense. Following review of the record, we find no error and affirm the denial of post-conviction relief.

The defendant, Angelo Allen, was convicted of possession of cocaine and two counts of possession of marijuana, all Class A misdemeanors. The defendant was sentenced to eleven months and twentynine days for each conviction. The court ordered that the marijuana convictions be merged and that the remaining two convictions run concurrently, for a total effective sentence of eleven months and twenty-nine days. The defendant raises four issues on appeal: (1) the trial court improperly denied his motion to suppress; (2) count two of his indictment should have been dismissed; (3) venue was not established at trial; and (4) he was sentenced improperly. After careful review, we conclude that the motion to suppress was properly denied, count two was proper, and venue was established. However, we remand for affixing a percentage of the sentence to be served by the defendant.

This is an appeal from a grant of summary judgment. The plaintiff patient filed a lawsuit against the defendant physician alleging medical negligence. The patient attempted personal service on the physician by leaving the summons and the complaint at the reception desk of the hospital at which the physician practiced. Eventually, the summons and the complaint were delivered to the physician. The summons stated that service would be made by the commissioner of insurance or the U.S. mail. In his answer to the complaint, the physician asserted insufficiency of service of process, and stated that the summons indicated that service was made by the commissioner of insurance through the U.S. mail. No new process was issued.

The Defendant-Appellant, Corey Gilliam, was convicted by a Shelby County jury of theft of property valued at over $1,000, felon in possession of a handgun, leaving the scene of an accident resulting in injury, and driving on a suspended license. He was sentenced to twelve years as a career offender for the theft of property conviction, six years as a career offender for the felon in possession of a handgun conviction, eleven months and twenty-nine days for the leaving the scene of an accident resulting in injury conviction, and eleven months and twenty-nine days for the second or subsequent driving on a suspended license conviction. The trial court ordered the sentences to be served consecutively. In this appeal, the defendant argues: (1) the insufficiency of the evidence; (2) the trial court erred by providing the jury with an instruction on reasonable doubt that was unconstitutional; (3) the trial court erred by finding that the defendant’s 2007 conviction for aggravated robbery was admissible for impeachment; (4) the imposition of consecutive sentencing violated the Sixth Amendment; (5) the State failed to elect when the defendant drove on a suspended license in the indictment; and (6) the jury instructions for leaving the scene of an accident resulting in injury and driving on a suspended license failed to charge a mens rea. Following our review, we affirm the judgments of the trial court.

The petitioner, James Leon Miller (hereinafter “the petitioner”), was convicted by a jury of criminal responsibility for first degree murder and criminal responsibility for aggravated assault. He now appeals the denial of post-conviction relief, claiming “the trial court erred in finding that the trial court counsel effectively assisted and represented the [petitioner].” Upon our review of the record, we affirm the judgment of the post-conviction court.

The Petitioner, Alejandro Avila-Salazar, pleaded guilty on September 6, 2006, to one count of second degree murder and one count of attempted aggravated rape. He was sentenced to serve forty years for the second degree murder conviction and twelve years for the attempted aggravated rape conviction, those sentences to be served concurrently at 100%. He later filed a petition for postconviction relief alleging that his guilty plea was not knowingly and intelligently entered because he received ineffective assistance of counsel. A post-conviction hearing was held on March 10, 2008, after which the post-conviction court denied the Petitioner relief. In this appeal, the Petitioner contends that the post-conviction court erred in holding that he received the effective assistance of counsel and that he entered his guilty plea knowingly and intelligently. After our review, we affirm the judgment of the post-conviction court.

The Petitioner, Danny Ray Lacy, was convicted by a jury of first degree murder and sentenced to life without parole. The Petitioner filed a petition for habeas corpus relief, contending that his conviction was void due to erroneous jury instructions at trial and ineffective assistance of counsel. The Wayne County Circuit summarily dismissed the petition, finding that the Petitioner had failed to state a cognizable claim for relief. After our review of the record, we agree and affirm the order summarily dismissing the petition.

A Davidson County Criminal Court jury convicted the defendant, Corey Danielle Wellman, of one count of possessing with intent to sell .5 grams or more of cocaine, one count of possession of drug paraphernalia, one count of attempted felony possession of a weapon, and one count of introducing contraband into a penal facility. The defendant appeals his convictions, maintaining that the trial court erred in denying his motion to suppress evidence that he argues resulted from an illegal search. The defendant also challenges the sufficiency of evidence for all his convictions except for his introducing contraband into a penal facility conviction. We hold that the defendant has waived his suppression issue. We affirm the judgments of the trial court regarding his drug and drug paraphernalia convictions, and we reverse his attempted felony possession of a weapon conviction, and dismiss that charge.